Delhi High Court
Ic 57454M Col Jps Bakshi vs Union Of India And Ors on 3 June, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: May 26, 2022
Pronounced on: June 03, 2022
(i) + W.P.(C) 4307/2022, CM.APPL.16359/2022 & CM.APPL.
16430/2022
IC 57454M COL JPS BAKSHI ..... Petitioner
Through: Mr. A.K. Bhardwaj & Mr. Jaideep
Singh, Advocates.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Mr. S. Bushra Kazim,
Mr. Srish Kumar Mishra & Mr. Sagar
Mehlawat, Advocates for UOI.
(ii) + W.P.(C) 4371/2022, CM APPL. 16365/2022 & CM APPL.
16432/2022
IC - 60269K LT COL PUNEET SHARMA ..... Petitioner
Through: Mr. A.K. Bhardwaj & Mr. Jaideep
Singh, Advocates.
Versus
UNION OF INDIA AND ORS . ..... Respondents
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Mr. S. Bushra Kazim,
Mr. Srish Kumar Mishra & Mr. Sagar
Mehlawat, Advocates for UOI.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
W.P.(C) 4307/2022 & W.P.(C) 4371/2022 Page 1 of 16
JUDGMENT
SURESH KUMAR KAIT, J
1. The above captioned two petitions have been filed by the petitioners
seeking setting aside of order dated 23.02.2022 passed by the Armed Forces
Tribunal in OA 122/2022 and OA 156/2022 respectively and consequently,
setting aside the Court of Inquiry dated 27.01.2022 being illegal, biased and
against the principles of natural justice as well as in violation of mandatory
provisions of Army Rule-180.
2. The petitioner - Col. J.P.S. Bakshi [in W.P.(C) 4307/2022], who is
currently posted as Director in Border Roads Organization and petitioner-
Col. Puneet Sharma [in W.P (C) 4371/2022] are aggrieved of order dated
23.02.2022 passed by the learned Arms Forces Tribunal vide which their
challenge to the Attachment Order proposing disciplinary action against
them based on the report bearing No. C/06290/WC/852/20(07)/AG/DV-2
dated 27.01.2022, has been dismissed. The petitioners are also aggrieved by
order bearing No. 2020/Discp/DV-2 (236 Engineer Regiment) dated
06.03.2020, vide which respondent No. 5-GOC HQ 11 Corps has directed
HQ 7 Inf Div to take disciplinary action against the petitioners.
3. While advancing arguments on behalf of petitioners, learned counsel
appearing on their behalf submitted that the impugned directions to attach
the petitioners and take disciplinary action against them are based upon
illegal court of inquiry; having being conducted in a biased manner. It was
submitted that the Presiding Officer- respondent No.5 has conducted the
inquiry proceedings on the sole ground that disciplinary action has been
directed vide impugned Attachment Order dated 27.01.2022 and even copy
of disciplinary proceedings has not been furnished to the petitioners.
4. To put-forth the factual position, petitioner- COL JPS Bakshi on
09.12.2016 and petitioner- COL Puneet Sharma on 09.06.2016 took over
the command of 236 Engineer Regiment when the Regiment was deployed
in Counter Insurgency Operations in Guwahati (Assam) on OP-RHINO.
The main body of the Regiment moved to under HQ 11Corps. 236 Engr
Regt on 02.06.2018. The first meeting to monitor progress and execution of
the works was held on 04.06.2018 wherein they, along with other officials
of the team, came to know about 24 sites of six units where the work was
under initial progress. Petitioners further claim that while the Regiment was
in the process of shifting the unit stores from the Railway Station to a place
30 kms away from Jalandhar Cantt., the Regiment was allotted six
additional (special) construction works of constructing security wall/fence
around various Military Units/Installations in the Corps zone of HQ 11
Corps, covering the area of approx. 14.36 km, by HQ 11 Corps vide MO4
letter No A/40355/18-19/WC/SAE/MO-4 dated 30.05.2018. The last date
for construction of integrated Fence works/jobs was fixed as 30.11.2018 and
for other constructions of Hybrid Fence works/jobs, was fixed as
31.12.2018. Petitioners claim that the dead line for execution of the
aforesaid work was stipulated without consulting them and since they both
were also in the process of familiarizing with the location, the short period
of 06 months created huge pressure and stress on the unit of petitioners.
5. Learned counsel appearing on behalf of petitioners submitted that the
construction work/ job was sanctioned as an emergent measure to
strengthen the security around the Military Units/Installations on an urgent
basis due to the situation arising out of the opening of the cantonment routes
to the general public and the heightened security threat from the enemy
across the western border, however, role of petitioners was limited to
monitoring of execution of the work after receipt of the necessary materials
which were required to be sanctioned and procured, through a process of
electronic-contract for which General GOC 11 Corps and General Staff
(GS) Branch of HQ 11 Corps, were the Competent Financial Authority
(CFA). Neither petitioners nor any officer of their Command were
responsible in selecting vendors for supplies of the requisite material.
During the course of hearing, learned counsel for petitioners drew attention
of this Court to Para-16(a) to (l) in both the petitions to show how the
proposal for procuring the necessary material was prepared, submitted and
uploaded for supply of material required.
6. Learned counsel appearing on behalf of petitioners submitted that
both the petitioners are highly meritorious and have clean career and never
had any adverse remarks against them. Vide letter dated 01.06.2019 written
by GOC HQ 91 Sub Area to GOC HQ 11 Corps, the respondents alleged
financial impropriety by the petitioners‟ unit. The first being "variation in
request for proposal and supply order, wherein store list has been
considerably reduced" and the second, "the supply order was placed on
lesser quantity than request for proposal but the costing is done as per the
request for proposal". According to petitioners, pursuant thereto, the HQ 91
Sub Area and GOC HQ 11 Corps, verbally directed the petitioners unit to
instruct the suppliers/vendors/contractors to refund the excess amount
received by them, as the then Chief Engineer; the then BGS; the then
Commander 138 (I) Infantry Brigade and the then General Officer CHQ 91
Sub A could influence many of the vendors and consequently, between
04.06.2019 to 10.06.2019 suppliers/vendors/contractors deposited amount
of Rs.1.92 crores in the Government Treasury received by them in excess.
7. Thereafter, vide Convening Order dated 19.06.2019, a Court of
Inquiry to investigate the circumstances under which the discrepancies
between request for proposal and corresponding supply order placed by 236
Engineer Regiment, was convened under the provisions of Rule 180 of
Army Rules, 1950. Thereafter, an attachment order was also issued
removing the petitioners from their permanent place of posting and
attaching them to different units at a faraway place.
8. Learned counsel for petitioners next submitted that the Court of
Inquiry and the consequential first attachment order dated 07.07.2020 were
set aside by the learned Arms Force Tribunal vide order dated 25.09.2020
[OA No. 1175/2020 preferred by petitioner- COL JPS Bakshi], which
according to learned counsel is also applicable to the case of petitioner- Col.
Puneet Sharma [who has since filed OA no. 1362/2020] also. It was pointed
out by learned counsel that these petitions arise out of attachment order
dated 27.01.2022 for the second Court of Inquiry pursuant to Convening
Order dated 06.01.2021 to investigate into the circumstances under which
discrepancy(ies) occurred between the Request For Proposal and the
corresponding Supply Order placed by 236 Engineer Regiment against Job
No.4774,4775 4776, 4777, 4779 and 4780 in respect to security related
operational work undertaken by the petitioners‟ unit.
9. Learned petitioners‟ counsel drew our attention to the provisions of
Rule 180 of Army Rules to submit that the court of inquiry was held in
complete violation thereof, without there-being any iota of incriminating
evidence against both of them. Attention of this Court was also drawn to
various instances of biased and unfair inquiry conducted by the Presiding
Officer, who used to publicly pass remarks against the petitioners and did
not afford full opportunity of defence to the petitioners. Neither copies of
documents placed on record were supplied nor statement of witnesses have
been shown to the petitioners, thereby rendering them to counter what has
been added during the proceedings. Furthermore, learned counsel submits,
denial of an opportunity to examine the witnesses cited in spite of the
specific written directions of the Convening Authority as well as repeated
written requests made by the petitioners, has vitiated the enquiry
proceedings.
10. Learned counsel for petitioners challenged the validity of the
attachment orders by submitting that the Chief of Army Staff was the only
competent authority to issue the attachment orders and as the same have not
been issued by him and therefore, be declared illegal and nullity under law.
Further, the earlier Court of Inquiry on the same subject matter was
convened by the very same officers (BGS) who conveniently convened the
Court of Inquiry and also appeared before it as witnesses, which led setting
aside of the first attachment order dated 07.07.2020. However, the
respondents have relaunched the same Court of Inquiry, albeit with a
different Presiding Officer with the mala fide intention to save senior
officers, who were actually involved in creating the discrepancies.
11. IN view of the aforesaid, learned counsel submitted that the
impugned order dated 23.2.2022 passed by the learned Armed Forces
Tribunal in OA No.122/2022 and OA No. 156/2022 respectively deserve to
be set aside. Learned counsel for the petitioner also prayed that the
impugned Court of Inquiry dated 27.01.2022 be held as violation of
principles of natural justice as well as the mandatory provisions of Rule 180
of Army Rules and a direction be passed to stay the operation of the
impugned Attachment Order with immediate effect till the production of the
complete Court of Inquiry and its original Video Recording on record
before this court, or in the alternative, direct the respondents to shift the
Attachment of the petitioners for his Summary of Evidence to a different
formation other than 15 Infantry Division.
12. Lastly, learned counsel placed reliance upon decisions in Ltd. Gen.
Surendra Kumar Sahni Vs. Chief of Army Staff & Ors. 2007 SCC OnLine
Del 1928; Harbhajan Singh Vs. Ministry of Defence, Govt. of India &
Ors. 1982 SCC OnLine Del 359 and Lt. Gen. S.K. Dahiya Vs. Union of
India & Ors. ILR Supp. 4 (2007) Del 189 to allow these petitions.
13. On the other hand, learned Central Government Standing Counsel
appearing on behalf of respondents has opposed these petitions on the
ground that impugned Attachment order and the court of inquiry initiated by
the respondents are based on facts and evidence and do not deserve any
interference by this Court. Learned counsel submitted that the impugned
order dated 23.02.2022 is well merited and does not call for any interference
by this Court and hence, these petitions deserve to be dismissed.
14. The arguments advanced by learned counsel representing both the
sides were heard at length and the material placed on record has also been
perused.
15. Pertinently, vide Convening Order dated 19.06.2019, a Court of
Inquiry to investigate the circumstances under which the discrepancies
between requests for proposal and corresponding supply order occurred,
was convened and the attachment order dated 07.07.2020 was issued.
However, the same was set aside by the learned Arms Force Tribunal on
25.09.2020, as the officers who convened the Court of Inquiry also
appeared as witnesses. It is not the case of petitioners that they were
exonerated in first round of inquiry and thereby, the second round initiated
by the respondents is vicious. Rather it has been brought to the notice of this
Court that the second Court of Inquiry is convened by different Presiding
Officers and therefore, this Court is not required to go into this aspect.
16. The relief sought in these petitions pertains to second Attachment
Order dated 27.01.2022, pursuant to Convening Order dated 06.01.2021 to
investigate the discrepancies which occurred in respect of proposal and
supply of material order placed by the 236 Engineer Regiment against Job
No.4774,4775 4776, 4777, 4779 and 4780 for security related operational
work undertaken by the petitioners‟ unit. The petitioners had challenged the
aforesaid Attachment Order before the learned Armed Forces Tribunal,
which was dismissed vide order dated 23.02.2022. The relevant paras of
impugned order dated 23.02.2022 read as under:-
"2. Having heard the learned counsel for the parties, we are
of the considered view that the CoI is not a trial. It is only a fact
finding inquiry which has a limited purpose and based on the report
of the CoI, now the matter is before the competent authority, who,
after following the mandate of Rule 22 of the Army Rules, will take
necessary action in the matter. We are also informed by the
respondents that based on the application submitted, a few witnesses
and certain documents, which were relevant for the issue, have
already been supplied to the applicant. It has been the consistent
view of the Tribunal based on the Supreme Court judgment that at
the stage of CoI until and unless specific statutory violations and
mala fides are established, interference into the matter is not called
for.
3. Keeping in view these facts, we find no reason to
interfere with the matter. The applicant may raise these grounds
before the competent authority where further proceedings are to be
held."
17. During the course of hearing, learned counsel appearing on behalf of
petitioners challenged the aforesaid order primarily on the ground that the
learned Tribunal has failed to take into consideration the pleas urged by the
petitioners that during Court of Inquiry, despite several written and verbal
requests, copies of key documents were not furnished to the petitioners nor
were they permitted to inspect the same. Another ground urged is that 50%
of the questions asked by the petitioners in cross-examination were declared
irrelevant.
18. Pertinently, the order dated 23.02.2022 records that Court of Inquiry
is not a trial and it is only a fact finding inquiry and the matter is before the
competent authority for further action in terms of Section 22 of the Army
Rules.
19. Relevantly, Section 22 of The Army Rules, 1954 postulates that the
charged persons shall be heard in the presence of the Commanding Officer
in the presence of the accused and also that the accused person shall have
full liberty to cross-examine any witness against him, provided the charge
against the accused arises as a result of investigation by a court of inquiry.
20. Further, Section 180 of The Army Rules, 1954 reads 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 receives notice of and fully understands his rights,
under this rule."
21. The contention raised by the petitioners is that out of the list of
witnesses, only a few witnesses were permitted to be examined and also
50% of the questions put by them in the cross examination were declared
irrelevant. It is not the case of petitioners that they were not present when
the witnesses were examined. In a catena of decisions, the Hon‟ble
Supreme Court has held that proceedings before the Courts of Inquiry are in
the nature of „fact finding enquiry‟ conducted at a pre-investigation stage
and are not adversarial proceedings. The petitioners shall have complete
right to examine and cross-examine the witnesses which they deem
necessary, during disciplinary proceedings.
22. The petitioners have urged that copies of key documents or inspection
thereof, has not been provided to them, whereas the learned Tribunal has
noted that copies of relevant documents have been provided to the
petitioners. On this count, we find that furnishing petitioner the copy of
disciplinary proceedings or each and every document produced before the
Presiding Officer during Court of Inquiry, is not mandatory, as the
proceedings under the Court of Inquiry are in the nature of preliminary
enquiry for the purpose of collecting evidence and report and not final in
nature. Thus, there appears to be no violation of provisions of Section 22 or
Section 180 of The Army Act, 1954 at this stage.
23. So far as reliance placed upon decision in Surendra Kumar Sahni
(Supra) is concerned, in the said case the petitioner was working as Director
General Supplies and Transport, had challenged the Court of Inquiry
conducted by the respondents on the ground that it was based upon
anonymous complaint to falsely implicate him and without following Rule
180 of the Rules. The respondents therein had pleaded that the Court of
Inquiry was in the form of fact finding inquiry and denied breach of Rule
180. The Hon‟ble Supreme Court had observed that "the respondent were
under an obligation to provide an opportunity to the petitioner whether he
wanted to lead any defence, cross-examine any witnesses already examined
in the Court of Inquiry or take any other steps in terms of Rule 180.
Admittedly, the officer was not notified, either at the initiation of the enquiry
or at the stage when in the opinion of the competent authority the character
or the military reputation of the officer could be questioned. On the
contrary, at a subsequent stage he was called upon to record that the
provisions of Rule 180 have been complied with, which the petitioner
specifically declined by writing a detailed representation dated 9-6-2006 to
the authorities." In the aforesaid view of the said case, the Supreme Court
observed that since provisions of Rule 180 of Rules were not complied by
the respondents, therefore, proceedings pursuant to the Court of Inquiry,
could not be taken further. The Supreme Court, allowed the writ petition
filed by the petitioner therein to the aforesaid limited extent, while giving
liberty to the respondents to continue further proceedings under Rule 180 or
in the alternative, to take recourse to Rule 22 of the Rules.
24. Similarly, in Harbhajan Singh (Supra), the petitioner who was a
Major in Army and had challenged the validity of his dismissal order on the
ground that during Court of Inquiry proceedings, he was not allowed to
produce the defence witnesses and so, the procedure laid down in Rule 180
was not followed; though respondents had stated that the petitioner had not
requested for defence witnesses. In these facts of the said case, the Court
held that since opportunity to procure the relevant witnesses in defence was
not provided to petitioner, therefore, Court of Inquiry was vitiated. On the
other hand, in the present petitions, it is not the case of petitioners that they
were not given notice of the Court of Inquiry initiated against them or they
were not permitted to participate in the proceedings.
25. Thus, decisions in Surendra Kumar Sahni and Harbhajan Singh
(Supra), are of no assistance to the case of petitioners, as petitioners have
been granted opportunities and served with the relevant documents.
26. In view of the above, finding no reason to interfere with the order
dated 27.02.2022, these petitions are dismissed. Needless to say,
respondents are under the obligation to comply with the mandatory
requirements envisaged under Section 22 or Section 180 of the Army Act,
1954 during the proceedings.
(SURESH KUMAR KAIT)
JUDGE
(SAURABH BANERJEE)
JUDGE
JUNE 03, 2022
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