Sushil 2022.05.25 vs The Union Of India
2022 Latest Caselaw 221 Mani

                                                                             Page |1

          Digitally
SHAMUR    signed by
          SHAMURAILA               IN THE HIGH COURT OF MANIPUR
AILATPA   TPAM SUSHIL                        AT IMPHAL
M         SHARMA
          Date:                             WP(C) No. 909 of 2021
SUSHIL    2022.05.25
SHARMA    15:38:20
          +05'30'
                                Smt. L. Nirmala Singh, aged about 56 years, W/o
                                Laiphrakpam Ibotombi Singh, a resident of
                                Thangmeiband Khomdram Selungba Leikai, PO
                                & PS Lamphel, Imphal West District, Manipur -
                                795004.
                                                                    ... PETITIONER

                                                   - VERSUS -

                             1. The Union of India, Ministry of Defence through
                                the Defence Secretary Integrated HQ of MoD,
                                DHQ PO, South Block New Delhi - 110001;

                             2. The Chief of the Army Staff, Integrated HQ of
                                Ministry of Defence (Army) DHQPO, New Delhi -
                                110011;

                             3. The General Officer Commanding-in-Chief, HQ
                                Eastern Command, Pin - 908542, C/O 99 APO;

                             4. The General Officer Commanding, HQ 33 Corps,
                                Pin - 908533, C/o 99 APO;

                             5. Court of Inquiry, represented by Maj Gen Jagroop
                                Singh, HQ 111 Sub Area, Pin - 908111, C/o 99
                                APO.
                                                             ... RESPONDENTS

WP(C) No. 909 of 2021 Page |2

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. S. Biswajit, Advocate.

For the Respondents          ::    Mr. Vijayanand Sharma,
                                   Sr.PCCG
Date of Hearing and
reserving Judgment &
Order                        ::    13.05.2022

Date of Judgment &
Order                        ::    24.05.2022


                        JUDGMENT AND ORDER
                              (CAV)

This writ petition has been filed by the petitioner to

quash the impugned order/letter dated 25.11.2021 issued by the

fifth respondent and to stay the proceedings of fresh Court of

Inquiry initiated vide Convening Order dated 25.2.2020 in respect

of the petitioner's husband.

2. Briefly stated case of the petitioner is as follows:-

The petitioner is the wife of a retired Brigadier of the

Indian Army, namely Laiphrakpam Ibotombi Singh, who even

after his retirement has been facing many unfortunate turn of

events and grave injustice because of which, he is undergoing

great turmoil mentally, physically and financially, which have led

him to depression with psychotic features. A Court of Inquiry [for

short, "COI"] was ordered against her husband in June, 2012,

WP(C) No. 909 of 2021 Page |3

immediately after her husband while posted as Deputy Director

General (Discipline) Army Headquarters had undertaken certain

unpleasant official disciplinary follow up actions against a few

senior officers of Headquarters 3 Corps as per the official policy

and directives of then Army Chief for a botched operations in

Jorhat. As her husband had commanded a brigade under

Eastern Command, immediately after change of Army Chief,

taking advantage, the inquiry was ordered without any written

complaints or records. The inquiry was completed in December,

2012 which was done in violations of mandatory statutory

provisions.

2.1. The petitioner's husband filed Civil Appeal

No.9223-9224 of 2019 before the Hon'ble Apex Court against the

orders dated 6.2.2019 and 15.3.2019 passed in O.A.No.85 of

2013 by the Armed Forces Tribunal, Principal Bench, New Delhi,

whereby directing the disciplinary proceedings to be continued

without examining substantial grounds raised by her husband

with regard to bias, irregularities, tampering of evidence and

deliberate violation of Army Rule 180 and 184(2). By the

judgment dated 17.12.2019, the Hon'ble Apex Court disposed of

the Civil Appeals by modifying the direction given by the Armed

Forces Tribunal to process the disciplinary proceedings further

WP(C) No. 909 of 2021 Page |4

through a duly constituted legal process by directing the COI to

be conducted afresh, thereby quashing the earlier COI.

2.2. According to the petitioner, the judgment of the

Hon'ble Apex Court dated 17.12.2019 has been misinterpreted

by the military authorities by ordering a fresh inquiry. Against the

legal positions stated by the Hon'ble Apex Court in its judgment,

the military authorities on 25.8.2020 communicated to her

husband that they have initiated a fresh COI in terms of the

direction in the judgment dated 17.12.2019.

2.3. The effect of the direction of the Hon'ble Apex Court

to conduct the COI afresh would necessarily mean that the final

proceedings dated 14.12.2012 of the previous COI directing

disciplinary action to be initiated against her husband was set

aside and all consequential order based on the previous COI

such as attachment order, order dated 15.2.2013 imposing

Discipline and Vigilance ban with effect from 14.12.2012 and

order dated 24.4.2019 invoking Section 123 of Army Act with

effect from 30.4.2019 become null and void. However, the

military authorities continued to rely on the same to deny the

commutation of pension and gratuity which her husband is

entitled to, as he was superannuated from service on 30.4.2019.

WP(C) No. 909 of 2021 Page |5

2.4. Despite several representations made by her

husband, the military authorities have not lifted the DV ban as

well as well as the attachment order and also has not revoked

the order under Section 123 of the Army Act and the authorities

have also not released financial benefits entitled to her husband

post his retirement in terms of commutation of pension, gratuity

and release of all his other retiral benefits.

2.5. Due to inaction of the military authorities in not

giving the benefits of commutation of pension, gratuity and other

benefits to her husband who has served for about 36 years in the

Indian Army, instruments for killing 52 Pakistanis while serving in

Drass during operation Parakaram for which he was awarded

with Yudh Seva Medal has been rendered helpless as her

husband require regular medical treatment due to hypertension,

diabetes and for depression with psychosis features, besides her

daughter is suffering from medical condition "lupus" for which

treatment is required on daily basis. Instead, the authorities are

linking release of entitled financial emoluments as ransom to

fresh COI, which prove to be pre-decided opinion made by the

authorities to somehow harass and punish her husband.

WP(C) No. 909 of 2021 Page |6

2.6. The petitioner's husband is suffering from

depression with psychotic features and suicidal tendencies since

January, 2021. As such, vide letters dated 6.2.2021, 4.3.2021,

7.4.2021, 23.4.2021, 15.6.2021 and 20.7.2021, the military

authorities have been regularly replied and updated with

supporting medical documents to the summons issued by the

officer assembling COI regarding the same.

2.7. On 17.8.2021, the Deputy Commissioner, Imphal

West through whom the Army authorities have issued summons

was informed about the ongoing medical treatment undergone

by her husband and he cannot be left alone without a family

member as attendant. It was also informed about the request

made by the petitioner for shifting the venue of the enquiry near

to Imphal, earlier proposed by the military authorities. On

6.9.2021, the military authorities were informed by the Deputy

Commissioner, Imphal West, taking into consideration the health

and mental condition of the petitioner's husband, for shifting the

enquiry venue to Leimakhong, Manipur.

2.8. It is stated that the petitioner's husband who is

presently suffering from depression with psychotic features is not

in a mental state to avail the opportunities during the course of

WP(C) No. 909 of 2021 Page |7

enquiry and therefore, the military authorities should permit her

husband to be presented by a lawyer during the course of

enquiry. On 17.9.2021, stating all these facts, the petitioner has

submitted a representation to the respondent authorities. In

response, the fifth respondent, by the impugned order/letter

dated 25.11.2021 informed the petitioner that as per the dictum

of the Apex Court, the inquiry is required to be conducted in a

time bound manner for which the presence of the petitioner's

husband is necessary. It was also informed that the change of

location of COI from Bengdubi Military Station to Leimakhong,

Manipur is not feasible and hence the request of the petitioner

cannot be accepted. Further, it was informed that the request for

representation by a lawyer at the COI cannot be acceded to in

accordance with the instructions on the subject. Challenging the

impugned order/letter dated 25.11.2021, the petitioner has filed

the present writ petition.

3. The respondents filed affidavit-in-opposition, inter

alia, stating that pursuant to the judgment of the Apex Court, a

fresh COI was ordered vide Headquarter 33 Corps convening

order dated 25.2.2020 and Major General Arun Kumar Gupta

was detailed as the Presiding Officer of the COI. Number of

summons were served upon the petitioner's husband to appear

WP(C) No. 909 of 2021 Page |8

before the COI, however, he never appeared citing health issues

on account of Covid-19 infection. On 9.1.2021, the Presiding

Officer offered that the COI was ready to proceed to Leimakhong,

however, the petitioner's husband did not give any positive

response to the offer citing health issues. The Presiding Officer

of the said COI i.e. Major General Arun Kumar Gupta, stood

posted out due to which the said COI had to be cancelled and a

fresh COI was convened vide order dated 6.3.2021 in which the

fifth respondent was detailed as the Presiding Officer.

4. It is stated that the fifth respondent issued almost

10 summons upon the petitioner's husband to appear before the

COI, however, he has not attended. Since the petitioner's

husband failed to appear before the COI, the Court of Chief

Judicial Magistrate, Imphal West was approached for issuance

of arrest warrant in order to ensure the presence of the

petitioner's husband before the COI. After considering all facts,

the Chief Judicial Magistrate issued warrant of arrest. On

15.11.2021, the petitioner's husband appeared before the

Learned Chief Judicial Magistrate, Imphal West and gave an

undertaking that he will appear before the COI at the designated

time and date. Accordingly, he was let on bail on furnishing a

surety of Rs.50,000/- and there was no pleading before the

WP(C) No. 909 of 2021 Page |9

Learned Chief Judicial Magistrate citing any mental health issues

and the undertaking recorded in the order dated 15.11.2021 had

been given by the officer himself.

5. It is stated that on 17.8.2021, the petitioner

submitted a representation requesting for shifting the venue of

the COI to Leimakhong. The said representation was replied by

the fifth respondent vide letter dated 15.9.2021 explaining that

holding the COI at Leimakhong besides causing delay would also

cause financial burden on the exchequer. Another

representation dated 17.9.2021 was received from the petitioner

reiterating the same issues as contained in the representation

dated 17.8.2021. Immediately after sending the representation

dated 17.9.2021, the petitioner has filed W.P.(C) No.808 of 2021

and by the order dated 16.11.2021, this Court disposed of the

said writ petition by directing the respondents to sympathetically

consider the representation dated 17.9.2021. The representation

of the petitioner dated 17.9.2021 was finally disposed of vide

speaking order dated 25.11.2021 after sympathetic

consideration and duly assuring the petitioner that all the health

related requirements of the husband of the petitioner will be taken

care of by the respondents. In spite of assurance, the petitioner

has filed the present writ petition.

WP(C) No. 909 of 2021 P a g e | 10

6. It is further stated that presently the matter is

pending at the stage of COI itself which could not progress due

to non-participation of the husband of the petitioner repeatedly

citing ill-health issues, despite issuance of several summons and

warrant of arrest. The delay in conduct of the COI is attributable

to non-appearance of the husband of the petitioner before the

COI. This delay shall be at the peril and on account of the

husband of the petitioner in further disciplinary proceedings, if

any, conducted pursuant to the COI and shall not come in the

way of the respondents in any manner, whatsoever. It has been

ordered by the Hon'ble Apex Court that fresh COI and further

proceedings are to be expeditiously completed in the matter.

Since the order impugned is a reasoned one, the petitioner has

no right to maintain the writ petition and therefore, the same is

liable to be dismissed.

7. Assailing the impugned order, Mr. S. Biswajit, the

learned counsel for the petitioner submitted that as the mental

health condition of the petitioner's husband has become

deteriorating and the Army authority was so adamant to start the

COI outside Manipur without providing any assistance from legal

expert, the petitioner submitted a detailed representation dated

17.9.2021 to the respondent authorities. Instead of considering

WP(C) No. 909 of 2021 P a g e | 11

the representations filed by the petitioner and her husband, the

fifth respondent approached the Learned Chief Judicial

Magistrate, Imphal West to issue arrest warrant against the

petitioner's husband by concealing the mental health conditions

of the petitioner's husband only on the ground that he failed to

appear before the COI despite repeated summons. The handing

over of custody of the petitioner's husband to the military

authorities through the Learned Chief Judicial Magistrate by

means of arrest warrant would have caused further deterioration

of the mental health of the petitioner's husband during the fragile

stage of medical treatment of petitioner's husband.

8. The learned counsel further submitted that the

authority completely neglected various documents related with

the medical history of the petitioner's husband which clearly

prove that he is not fit to appear before the COI for the time being.

In W.P.(C) No.808 of 2021, this Court directed the respondents,

particularly the fifth respondent to consider the representation of

the petitioner dated 17.9.2021 sympathetically and dispose of the

same by issuing a speaking order in respect thereof within the

time frame. The fifth respondent made a reply order impugned

dated 25.11.2021 thereby disposing of the representation dated

WP(C) No. 909 of 2021 P a g e | 12

17.9.2021 is quite contradictory to the direction of this Court

passed in W.P.(C) No.808 of 2021 dated 16.11.2021.

9. The learned counsel then submitted that on

2.12.2021 a summon was served asking the petitioner's husband

to appear for COI in Bengdubi (WB) on 14.12.2021. Since the

petitioner's husband mental health was not stable, the fifth

respondent was informed by the petitioner about inability for him

to appear for COI on 14.12.2021. Since the impugned order

issued by the fifth respondent is not in terms of the order of this

Court dated 16.11.2021 passed in W.P.(C) No.808 of 2021, the

petitioner has filed the present writ petition to set aside the same,

thereby staying the proceeding of the fresh COI.

10. Per contra, Mr. Vijayanand Sharma, the Learned

Sr.PCCG for the respondents submitted that in the speaking

order dated 25.11.2021, a reasoned reply was given to the

petitioner with respect to the prayer regarding the change of

venue for COI, wherein the same was declined due to

administrative and logistic difficulties. The respondent authorities

has agreed to conduct COI in Leimakhong, Manipur despite

many hardships. He would submit that as far as the prayer

regarding representation of the legal counsel during the COI, the

WP(C) No. 909 of 2021 P a g e | 13

respondents have provided adequate reply in the speaking order

dated 25.11.2021 itself. The COI in themselves is duty bound to

ensure that the rights available to the petitioner are sufficiently

provided as per Rule 180 of the Army Rules, 1954.

11. The learned counsel further submitted that insofar

as the prayer regarding stay of the petitioner's husband at his

own residence during the conduct of COI is concerned, the

respondents have no objection. If the petitioner so requires

assistance in terms of the accommodation and transportation

shall willingly extended by the respondents during the period of

conduct of COI proceedings at Limakhong Military Station.

However, considering the health condition of the petitioner's

husband, the daily travelling anticipated, the presence of a full-

fledged military hospital and keeping in view the early completion

of COI, this Court may direct the husband of the petitioner to

relocate to Leimakhong Military Station.

12. Regarding the revocation of Army Act Section 123

and removal of DV ban, the learned counsel contended that the

same has already been intimated to the petitioner through the

impugned speaking order dated 25.11.2021. As per the existing

records, neither the provisions of Army Act Section 123 nor DV

WP(C) No. 909 of 2021 P a g e | 14

ban are invoked against the husband of the petitioner. He would

submit that the prayer regarding reimbursement of financial

benefits in nature of commutation of pension, gratuity and other

retiral benefits before the commencement of fresh COI

proceedings is concerned, the same can be claimed before the

appropriate forum only and not before this Court.

13. This Court considered the rival submissions and

also perused the materials available on record.

14. The grievances of the petitioner are as under:

(a) Permit the petitioner's husband to be represented

by a learned counsel during the course of COI

proceedings till he recovers from Paranoid

Schizophrenia.

(b) Permit the location of the COI be shifted in Manipur

in any nearby military station nearer to the

residence of the petitioner's husband or have the

COI by video conferencing as being practiced in the

Army under exceptional circumstances.

(c) Permit the petitioner's husband to stay at his

residence for better care and medication and also

permit him, if necessary to appear, along with his

WP(C) No. 909 of 2021 P a g e | 15

learned counsel to commute to the COI venue on

daily basis whenever the inquiry proceedings

assemble, which was earlier agreed by the fifth

respondent.

(d) Early release of financial benefits entitled to

petitioner's husband, post his retirement, in terms of

commutation of pension, gratuity and other retiral

benefits before commencement of the fresh COI

proceedings so as to ensure access to better

medical treatment of the petitioner's husband,

petitioner's daughter who is suffering from "lupus",

the petitioner herself suffering from asthma and

diabetes, as right to life and medical treatment is a

fundamental right.

(e) Close the case by way of appropriate administrative

action based on One Man inquiry recommendations

so as to avoid prolonging the case further.

(f) Hand over the investigation to some other agencies,

other than Armed Forces, so as to facilitate

immediate flawless investigations without invoking

Army Rule 180 to the petitioner's husband so that

he can be represented by a learned counsel till he

WP(C) No. 909 of 2021 P a g e | 16

recovers from Paranoid Schizophrenia. The

practice is precedent in the Army as some cases

pertaining to even serving personnel have been

dealt by other agencies in the past.

15. According to the petitioner, she is the wife of a

retired Brigadier of the Indian Army, who after retirement has

been facing many unfortunate events and injustice because of

which her husband is undergoing great turmoil mentally,

physically and financially which have led him to depression with

psychotic features. Owing to certain allegations and

circumstances, the mental health conditions of her husband have

deteriorated in the last few months despite medications.

16. In the instant case, a COI came to be ordered in the

month of January, 2012 against the petitioner's husband, as her

husband while being posted as Deputy Director General

(Discipline) Army Headquarters had undertaken certain

unpleasant official disciplinary follow up actions against a few

senior officers of Headquarters 3 Corps as per the official policy

and directions of the then Army Chief for a botched operation in

Jorhat. Since her husband had commanded a Brigade under

Eastern Command, immediately after change of Army Chief and

WP(C) No. 909 of 2021 P a g e | 17

taking advantage thereof, an inquiry was ordered without any

written complaint or record. According to the petitioner, the

inquiry was completed in the month of December, 2012 which

was done in violation of the mandatory provisions.

17. The petitioner's husband approached the Armed

Forces Tribunal, New Delhi by filing O.A.No.85 of 2013, wherein

certain orders were passed whereby the Tribunal even after its

finding that statutory provision has not been complied with by the

military authorities at the time of holding COI directed the

disciplinary proceedings to be continued without considering the

grounds raised by her husband with regard to bias, irregularities,

tempering of evidence and deliberate violation of the provisions

of Army Rule 180 and 184(2).

18. Being aggrieved by the aforesaid orders, the

petitioner's husband filed Civil Appeal Nos.9223-9224 of 2019

before the Apex Court and by the judgment dated 17.12.2019,

the Apex Court modified the direction of the Tribunal to process

the disciplinary proceedings further through a duly constituted

legal process and directed the COI to be conducted afresh,

thereby quashing the earlier COI. In compliance with the

judgment of the Apex Court, the military authorities issued

WP(C) No. 909 of 2021 P a g e | 18

communication to the petitioner's husband informing him that

they had initiated a fresh COI and the said communication was

received by the petitioner's husband.

19. According to the petitioner, even after the previous

COI directing disciplinary action to be initiated against her

husband having been quashed, the military authorities continued

to rely on the same to deny the commutation of pension and

gratuity which her husband is entitled to as he had retired on

30.4.2019 from service on attaining the age of superannuation.

Despite several representations, the military authorities have

failed to lift the DV ban as well as the attachment order and to

release the financial benefits entitled to by her husband post his

retirement in terms of commutation of pension, gratuity and other

retiral benefits. According to the petitioner, the consequences of

which her husband is prejudiced and presumed to be prima facie

guilty.

20. Since the respondent authorities failed to consider

the grievances expressed by the petitioner, she filed W.P.(C)

No.808 of 2021 before this Court. After hearing both parties, by

the order dated 16.11.2021, this Court passed the following

order:

WP(C) No. 909 of 2021 P a g e | 19

"[10] When the instant writ petition is taken up

for consideration, it has been submitted by

Shri S.Biswajit Meitei, learned Advocate

appearing for the petitioner that the instant writ

petition can be disposed of by passing an

innocuous order and accordingly, the instant

writ petition stands disposed of with the

direction that the respondents and in

particular, the respondent No.5 shall

sympathetically and dispose of the

representation dated 17.09.2021 submitted by

the petitioner within a period of three weeks

from the date of receipt of a copy of this order

by issuing a speaking order in respect thereof.

Considering the peculiar facts and

circumstances of the present case, it is

directed that the proceedings of the fresh CoI

shall be kept in abeyance till the disposal of the

said representation for the end of justice."

WP(C) No. 909 of 2021 P a g e | 20

21. Pursuant to the direction of this Court passed in the

aforesaid writ petition, the fifth respondent issued the impugned

letter dated 25.11.2021 informing the petitioner as under:

1. Refer the following:-

(a) Representation made by Smt L. Nirmala Singh

wife of Brigadier U Singh, YSM (Retired) dated 17

September 2021.

(b) Our letter No 04020/C of 1/L1/DV/AW-1

addressed to Smt L Nirmala Singh dated 15 Sep

2021 disposing of your request made vide letter

dated 17 Aug 2021 received on 15 September

2021.

(c) Order dated 16 Nov 2021 passed by Hon'ble

High Court Manipur in WP(C) No.808/2021 titled

Smt L. Nirmala Singh Vs UOI and others.

2. Reply to Paras 2 (a) and (c) of the

representation.

(a) This is to inform you that prior to receipt of the

letter mentioned at Para 1 (a) and (b) above, the

Presiding Officer of the Court of Inquiry had

telephonically spoken to you. You were explained in

WP(C) No. 909 of 2021 P a g e | 21

detail, the importance of presence of Brigadier Lt

Singh, YSM (Retired) in the instant inquiry and due

assurance was given that all the concerns with

respect to Brigadier LI Singh, YSM (Retired)

regarding the health, administration, commutation

etc will be catered for by this Headquarter. You had

also raised a concern for taking care of your

daughter to which you were assured that necessary

administrative arrangements would be made for her

too.

(b) You had raised a concern that Brigadier LI

Singh, YSM (Retired) may need medical attention

during the Court of Inquiry. It is once again assured

that Brigadier LI Singh, YSM (Retired) will be

provided all necessary medical assistance at 158

Base Hospital, Bengdubi. There are specialist

doctors including a psychiatrist available at 158

Base Hospital who will cater to any health condition

in respect of Brigadier LI Singh, YSM (Retired). It is

also for your information that besides 158 Base

Hospital, there are many reputed Hospitals in

Siliguri and hence no issues will be faced with

WP(C) No. 909 of 2021 P a g e | 22

respect to the treatment of Brigadier LI Singh, YSM

(Retired) North Bengal Medical College and

Hospital as well as many other reputed hospitals

are also located at Siliguri for any additional

advanced medical assistance, if required.

(c) Your request for change of location of Court of

Inquiry from Bengdubi Military Station to

Leimakhong (Manipur) was also sympathetically

considered. It is informed that it is not feasible to

shift the location of Court of Inquiry since the said

inquiry involves move of almost 36 Army service

personnel and civilian witnesses from across India

The present location of the Court of Inquiry is well

connected by all three modes of transportation that

is rail, road & air for enabling quick movement of

witnesses Shifting the location of Court of Inquiry to

Leimakhong besides resulting in delay in the Court

of Inquiry proceedings will also put unnecessary

financial burden on the exchequer Moreover the

medical facilities available in Siliguri can take care

of any health related eventuality arising during the

course of Court of Inquiry it may be appreciated that

WP(C) No. 909 of 2021 P a g e | 23

the Court of Inquiry under the Army Act 1950 as per

dims of Hon ble Supreme Court, is required to be

concluded in a time bound manner for which

presence of Brigadier Li Singh. YSM (Retired) is

necessary at Bengdubi Military Station.

(d) It is further informed that as per the undertaking

given by Brigadier LI Singh YSM (Retired) before Ld

CJM Imphal West Manipur, as recorded in the older

dated 15 Nov 2021 passed in Criminal

Miscellaneous Case Number 207 of 2021, Brigadier

L Singh YSM (Retired) has submitted that he is

ready to appear before the Court of Inquiry on a

date fixed by the Court of Inquiry, if insisted by the

authority After duly considering the health condition

of Brigadier LI Singh YSM (Retired) Ld CJM in the

said order recalled and cancelled the warrant of

arrest and he has been let on bail on his furnishing

a PR bond of Rs 50,000/ only and on the condition

that he shall appear before the Court of Inquiry on

a date fixed by the Court of Inquiry.

(e) In view of the foregoing it is informed that

change of location of Court of Inquiry from Bengdubi

WP(C) No. 909 of 2021 P a g e | 24

Military Station to Leimakhong (Manipur) is not

feasible and hence your request in this regard

cannot be accepted.

Reply to Para 2 (b) of the representation. The

Court of Inquiry is an investigative proceeding

conducted to gather factual matters of evidence on

a particular matter circumstance it is not a trial, its

deliberations are non adversarial and do not result

in the conviction of an accused person. By its very

investigative intent, its proceedings are closed to

participation or attendance by persons not called by

the court to be present. Therefore, the request for

representation by a lawyer at the Court of Inquiry

cannot be acceded to in accordance with the

instructions on the subject.

4. Reply to Para 2 (d) of the representation. As

per the records presently neither The provisions of

Army Act Section 123 nor DV Ban are invoked

against Brigadier LI Singh, YSM (Retired)."

22. As could be seen from the impugned order/letter

dated 25.11.2021, this Court finds that pursuant to the judgment

WP(C) No. 909 of 2021 P a g e | 25

of the Apex Court in the Civil Appeal Nos.9223-9224 of 2019,

dated 17.12.2019, the respondent authorities agreed to conduct

COI at Leimakhong, Manipur. Insofar as the prayer of the

petitioner to represent a legal counsel during COI, the fifth

respondent has rightly stated that the COI is only an

initial/preliminary evidence collecting mechanism and is not in

any manner an adversarial system and the COI in themselves is

duty bound to ensure that the rights available to the petitioner are

sufficiently provided as per Army Rule 180. Regarding stay at

his own residence during COI, the fifth respondent has no

objection. In addition, the fifth respondent stated that if the

petitioner so requires assistance in terms of accommodation and

transportation shall willingly extended by the respondents during

the period of conduct of COI proceedings at Leimakhong Military

Station. However, considering the health condition of the

petitioner's husband, the daily travelling anticipated, the

presence of a full fledged military hospital and keeping in view

the early completion of the COI, this Court may direct the

husband of the petitioner to relocate to Leimakhong Military

Station. As far as the prayer for revoking of Army Act Section 123

and removal of DV ban, the fifth respondent stated that as per

the existing records that presently neither the provisions of Army

WP(C) No. 909 of 2021 P a g e | 26

Act Section 123 nor DV ban are invoked against the husband of

the petitioner. Regarding reimbursement of financial benefits in

the nature of commutation of pension, gratuity and other retiral

benefits before the commencement of fresh COI is concerned,

the fifth respondent stated that the appropriate jurisdiction to

claim the said benefits is the Armed Forces Tribunal as per

Section 2 read with Section 3 (o) of the Armed Forces Act, 2007.

23. On a perusal of the judgment of the Hon'ble Apex

Court, it is clearly held that the COI shall be held against the

petitioner's husband and the COI be completed expeditiously

without any delay. However, the petitioner and her husband is

dragging the conduction of inquiry proceedings, which was

initiated on 25.2.2020 by filing representation after

representation and writ petition after writ petition showing health

issues of the petitioner's husband. In the instant case, the

respondent authorities themselves agreed to shift the enquiry

place from Bengdubi Military Station to Leimakhong, Manipur,

which is the place of the residence of the petitioner's husband.

Though 36 Army personnel/witnesses involved in the inquiry

proceedings and the inquiry place Bengdubi Military Station

though connected by all three modes of transportation i.e. rail,

road and air for enabling quick movement of witnesses, taking

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into consideration the grievance expressed by the petitioner, the

respondents agreed to shift the inquiry place at Leimakhong,

Manipur.

24. Since the COI is only an initial/preliminary evidence

collecting mechanism and is not in any manner adversarial

system, the fifth respondent has rightly declined the prayer of the

petitioner seeking assistance of a lawyer during the COI. No law

or any judgment of the Courts permit representation of the

delinquent officer through a legal counsel during the COI.

25. At this stage, it is to be pointed out that the COI in

themselves is duty bound to ensure that the rights available to

the petitioner's husband are sufficiently provided as per Army

Rule 180, as the said provision contemplates full opportunity

afforded to delinquent 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 of military reputation. The Presiding Officer of the Court

shall take such steps as may be necessary to ensure that any

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such person so affected and not previously notified receives

notice and fully understands his rights, under the said Rule.

26. In view of a clear provision contemplated, there is

no question of seeking assistance of legal counsel on behalf of

the petitioner's husband during COI. Therefore, as rightly stated

by the respondent authorities the COI is an investigative

proceeding conducted to gather factual matters of evidence on a

particular matter/circumstance. It is not a trial, its deliberations

are non-adversarial and do not result in the conviction of an

accused person. By its very investigative intent, its proceedings

are closed to participation or attendance by persons not called

by the Court to be present. Therefore, the request for

representation by a lawyer at the COI cannot be acceded to and

has rightly rejected the said prayer of the petitioner while

considering the representation of the petitioner dated 17.9.2021.

However, it is made clear that the COI in themselves duty bound

to inquire that the rights available to the petitioner's husband as

per Rule 180 has been given.

27. For all the reasons stated above, this Court finds

any infirmity in the impugned order/letter dated 25.11.2021 and

on the other hand, while considering the representation of the

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petitioner dated 17.9.2021, the fifth respondent has taken note of

all relevant facts and also the legal position and has rightly issued

the impugned order/letter. The only modification in the impugned

letter is the shifting of inquiry place from Bengdubi Military Station

to Leimakhong, Manipur, as agreed by the respondents.

28.    In the result,

              (a)       The writ petition is partly allowed.

              (b)       The respondents are directed to shift the

inquiry place from Bengdubi Military Station,

West Bengal to Leimakhong, Manipur (as

agreed by them).

(c) The prayer in respect of representation of a

legal counsel during the COI proceedings

stands dismissed.

(d) The respondent authorities are directed not

to invoke the provisions of Section 123 of the

Army Act nor DV ban at present.

(e) The petitioner's husband is directed to

approach the Armed Forces Tribunal as per

Section 2 read with Section 3(o) of the Armed

Forces Act, 2007 for reimbursement of

financial benefits in nature of commutation of

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pension, gratuity and other retiral benefits, if

he so chooses.

(f) The petitioner's husband is directed to give

his fullest co-operation in the COI for early

completion of the inquiry.

(g) If the petitioner's husband failed to co-

operate the COI proceedings, then the

Presiding Officer of the COI is at liberty to

proceed the inquiry further in accordance

with law.

(h) The Presiding Officer of the COI is directed

to complete the inquiry within a period of four

months from the date of receipt of a copy of

this order on day-to-day basis, for which the

petitioner as well as the petitioner's husband

are directed to co-operate with the COI.

              (i)       No costs.




                                                     JUDGE

    FR/NFR

   Sushil




WP(C) No. 909 of 2021