W.P.(C)6614/2007 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6614/2007 % Reserved on: 28th August, 2008 Date of Decision: 5th September, 2008 NAIB SUBEDAR MANJEET SINGH ..... Petitioner Through Mr. Rajeev Anand, Advocate. versus UOI & ORS. …Respondents Through Ms. Barkha Babbar, Advocate with Major S.S. Pandey, Dy JAG CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? MOOL CHAND GARG,J 1. The petitioner was employed in Indian Army on 17.12.1999 and was posted as Naib Subedar in 167 field regiment detailed in J&K in or around December 2003. He was served with an order passed by the respondents dated 20.07.2005 whereby he has been awarded with the punishment of “Severe Displeasure (Recordable)” on the basis of the findings returned by a Court of Inquiry(COI) held against Lance Naik Jagtar Singh posted in the same regiment. Before awarding the punishment as aforesaid, a W.P.(C)6614/2007 Page 2 of 23 show cause notice was also issued to the petitioner on the directions of the GOC 16 Corps who found the petitioner blame worthy even though he was not a party to the Inquiry. 2. It is the case of the petitioner that on 7th December, 2003 at the field location of the Unit Battery in J & K, Lance Naik Jagtar Singh fired indiscriminately from his service weapon.This caused the death of two of his colleagues and injured one posted in the same Regiment, and thereafter, Jagtar Singh also attempted to commit suicide. A Court of Inquiry was ordered by Headquarter 29 Infantry Division vide the order No. 3013/2/167/A3 dated 08.12.2003 to investigate the circumstances under which No. 1496656N Lance Naik Jagtar Singh of 167 Field Regiment fired indiscriminately from his personal weapon 5.56 mm INSAS rifle causing death of Hav Ramesh Singh and Hav Ajit Singh and injury to Hav Baldev Singh and thereafter attempted to commit suicide on that day. 3. The Court of Inquiry examined as many as 40 witnesses including the petitioner. Before issuing the show cause notice the respondents granted an opportunity to the petitioner to cross- examine the witnesses recorded during the Court of Inquiry after the Inquiry was concluded without issuing any notice to him and also without supplying the copies of the statements of those witnesses. Yet based upon the findings returned in the COI the petitioner was found blameworthy for having not controlled the situation by the GOC 16 corps and a show cause notice dated 20.6.2004 was served upon him to show cause as to why W.P.(C)6614/2007 Page 3 of 23 appropriate censure be not awarded to the petitioner. The show cause notice dated 20th June, 2004 reads as under: “CONFIDENTIAL HQ 16 Corps. C/o 56 APO 2710/29D/A3 (iv) 20 Jun 04 JC.262675M Nb. Sub Manjeet Singh 167 Fd Regt C/o 56 APO SHOW CAUSE NOTICE:JCO 1. A Court of Inquiry was ordered by HQ 29 Inf Div vide their convening order NO. 3013/2/167/A3 dt. 08 Dec 2003 to investigate the circumstances under which No. 14496656N Lance Hav Jagtar Singh of 167 Fd Regt fired indiscriminately from his personal wpn 5.56 mm INSAS Rif and caused death of NO. 14347165Y Hav Ramesh Singh and NO. 14350951H Hav Ajit Singh and injury to NO. 14462587W Hav Baldev Singh and thereafter attempted to commit suicide on 07 Dec 2003. 2. The proceedings of the C of I were placed before the General Officer Commanding 16 Corps who has found that you are blameworthy for deliberately avoiding taking action as Junior Commissioned Officer to control the situation at the time when L/Hav Jagtar Singh opened fire in the Unit Lines. 3. It appears to GOC 16 Corps that your censure in appropriate form is called for the above lapse on your part. You are, therefore, afforded an opportunity to explain your conduct on the above count as to why censure of GOC 16 Corps, in appropriate form be not conveyed to you for the above lapse on your part. 4. You should submit your reply to Show Cause Notice within one month of its receipt failing which it would be assumed that you have no grounds to urge against the proposed action and an exparte decision will be taken. 5. A copy of court of inquiry proceedings is forwarded herewith for your perusal and early return please. 6. This show cause notice will be ack. W.P.(C)6614/2007 Page 4 of 23 Sd/-(VK Chaturvedi) Brig Adm for GOC” 4. The petitioner replied to the show cause notice. However the reply did not find favour with the respondents and censure in the form of SEVERE DISPLEASURE (RECORDABLE) was issued to the petitioner by the GOC 16 Corps. It is this order which has been impugned before us. It reads as under: “CENSURE ORDERS OF GENERAL OFFICER COMMANDING 16 CORPS TO BE CONVEYED TO JC-262675M NAIB SUBEDAR MANJEET SINGH OF 167 FIELD REGIMENT. 1. I have considered the reply to the show cause notice submitted by JC-262675M Naib Subedar Manjeet Singh of 167 Field Regiment vide his letter No Nil dated 14 Jul 2004. 2. I find that there is inadequate merit in the reply. The Junior Commissioned Officer is blameworthy for deliberately avoiding to take action to control the situation at the time when Lance Havildar Jagtar Singh opened fire in the Unit Lines. 3. I, therefore, direct that my 'Severe Displeasure' (Recordable) be conveyed to JC-262675M Naib Subedar Manjeet Singh of 167 Field Regiment. Sd/-(Sudhir Sharma) Lt Gen GOC” 5. As a consequence thereof the petitioner was also not considered for promotion for the rank of Subedar. Aggrieved by the aforesaid, the petitioner raised his grievances by filing statutory complaint dated 5th January, 2006 and 30th January, 2007 under Section 26 of the Army Act 1950. However, the complaints so made were rejected vide communications dated W.P.(C)6614/2007 Page 5 of 23 13.1. 2007 and dated 23.03.2007 sent to the petitioner. The petitioner also served a legal notice dated 2.6.2007 which remained un-replied till date. Hence the petitioner filed the present writ petition. 6. Before us the petitioner has assailed the impugned order which has been admittedly issued based upon the findings returned by the COI held in the case of Jagtar Singh as illegal because it was issued without complying with the provisions of Rule 180 of the Army Rules, 1954 which lays down a mandatory procedure to be followed whenever the character or military reputation of a person subject to the provisions of Army Act is questioned while holding a court of enquiry. The said provision is reproduced herein for the sake of reference: “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 the 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 the character or military reputation and producing any witnesses in defence of his character or military reputation. The prescribing officer of the court shall take steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of any fully understands his rights, under this rules.” 7. Explaining his grievance, the petitioner has submitted that in the instant case Court of inquiry was conducted only against Jagtar Singh and the petitioner was merely a witness who W.P.(C)6614/2007 Page 6 of 23 deposed in respect of the incident. There were 39 other witnesses. It is only after recording the statement of all the witnesses that the petitioner was asked to cross-examine them without even supplying the copies of the statement so recorded. Thus it is stated that there was no compliance of Rule 180 of the Act in this case, as no opportunity was given to the petitioner to remain present during the COI when the statement of the witnesses was recorded or to cross examine them at the same time or to make a statement in defence or to lead defence witnesses, if any. It is also submitted that even after the completion of the Court of Inquiry no proceeding was initiated against the petitioner viz. hearing by the Commanding Officer, recording of Summary of Evidence or holding a Court Martial. 8. It is submitted that the petitioner was put under immense pressure from the unit to get the matter hushed up and told to give a dictum reply as required by his seniors. The petitioner accordingly gave his reply dated 12.07.2004 which in the peculiar fact and circumstances was made at the instance and in the interest of the unit of the petitioner. It is also the case of the petitioner that the order of censure issued by GOC 16 corps dated 20th July, 2005 is arbitrary, illegal, violative of principles of natural justice and contrary to the provisions contained under the Army Act and the Rules framed thereunder and, in particular, Rule 180 thereof. This also resulted in supersession of the petitioner despite his fitness for the promotion to the rank of W.P.(C)6614/2007 Page 7 of 23 Subedar. According to him, his complaints were also wrongfully rejected by the authorities. 9. Detailing the circumstances, the petitioner submitted that he was not negligent when the incident took place on 7th December, 2003 nor did he avoided taking action, whatever was possible when Lance Naik Jagtar Singh fired indiscriminately. It is stated that the petitioner cannot be held blameworthy because he was not in Command of the troops at the time of the incident; was not the Senior JCO vested with the responsibility over the troops; he was not present on the spot when the firing was resorted to by Lance Naik Havildar Jagtar Singh although Havildar Major (Key position in the battery) was present on the spot and has been exonerated in the incident. It is also stated that no firing or any untoward incident occurred after the petitioner reached the spot. It is also his case that the incident has taken place in the Counter Insurgency Scenario where in the first instance, upon indiscriminate firing by L/Hav Jagtar Singh, it was the first and foremost duty of the Commanders to find out if there was some militant attack/action before jumping in the situation and it was in the fraction of seconds that the indiscriminate firing ceased and the situation was under control when the delinquent gave his weapon to the Battery 21C present on the scene of incident. 10. On the other hand, the respondents have justified the action taken. Detailing the circumstances, it has been pleaded that the petitioner was one of the Junior Commissioned Officer deployed in the Counter Terrorist Column, at Ujh Barrage in 29 Infantry W.P.(C)6614/2007 Page 8 of 23 Division. The action was taken against him based upon the finding returned by the Court of Inquiry conducted against Lance Naik Jagtar Singh. In view of the circumstances which came to the light, the GOC 16 Corps decided to take administrative action against the petitioner for the omission and commission on his part where he deliberately avoided taking action as a Junior Commissioned Officer to control the situation at the time when one non commissioned officer opened fire indiscriminately in unit lines after issuing a show cause notice where it was very specifically stated that the circumstances brought to light during the Court of Inquiry held against Lance Naik Jagtar Singh makes it apparent, that the petitioner was negligent in performance of his duties as JCO at the time of the aforesaid incident. It has also been stated that the provisions of Rule 180 of the Army Rules, 1954 were complied with inasmuch soon after the Court of Inquiry reached to a conclusion that there were circumstances which were affecting the character, military reputation of the petitioner, he was given an opportunity of cross examination of the witnesses produced during the Court of Inquiry but the petitioner failed to avail the opportunity. Thus, taking into consideration the overall conduct of the petitioner, he was awarded punishment simply with “Severe Displeasure (Recordable)” which was also awarded to all others who were similarly responsible. It is also stated that the show cause notice was issued to the petitioner on account of directions and recommendations given by the General Officer Commanding, 16 W.P.(C)6614/2007 Page 9 of 23 Corps. It is also pleaded that before filing the present petition no grievance was made regarding alleged violation of Rule 180. 11. It will be appropriate to take note of the observations made by the GOC which resulted in issuing of the show cause notice to the petitioner as appears in Annexure R-2 filed by the respondents “1. I agree with the findings and the opinion of the Court. 2. The perusal of Court of Inquiry reveals serious disciplinary and administration lapses at all levels of the command in 167 Field Regiment. It also reveals that the basic clad down drill and management practices were not being adhered to/followed by officers and Junior Commissioned Officers, which resulted in the preventable shoot out on 07 December 2003 at Ujh Barrage Post resulting in death of two Non Commissioned Officers. The following facts have emerged:- a) Number 14496656N Lance Havildar Jagtar Singh Committed murder of Number 14347165Y Havildar (General Duty) Ramesh Singh and Number 14350951H Havildar (General Duty) Ajit Singh and attempted to murder Number 14462587W Havildar Baldev Singh (General Duty) by causing gun shot wound injury before attempting to commit suicide by causing gun shot wound injuries to himself with his personal weapon Rifle INSAS Registered Number 15576913. b) Number 14462587W Havildar Baldev Singh had deliberately avoided to give correct version of the incident and tried to mislead the Court despite being prime witness in the incident. c) IC 37715 N Colonel RK Chadha, Commanding Officer, 167 Field Regiment had displayed poor officer management and failed to ensure adequate precautionary measures to avoid such incidents being the Commanding Officer of 167 Field Regiment. d) IC 51335A Major DR Mishra, the Battery Commander, had not fully involved himself in the operational and administrative aspects of the battery and on 07 December 2003 he had left the Battery location in sensitive area without prior permission of HQ 78 Infantry Brigade under whom the Battery was deployed for operational tasks in contravention to the existing orders on the subject. e) Though IC 59107M Captain Ashutosh Sharma tried to stop Lance Havildar Jagtar Singh from shooting himself, he did not exercise adequate command and control over the Battery, being second in command, prior to the incident. W.P.(C)6614/2007 Page 10 of 23 f) JC 262651H Naib Subedar Mohinder Singh, JC 262481K Naib Subedar Prakash Chand and JC 262675M Naib Subedar Manjeet Singh deliberately arrived late at the place of incident in a bid to distance their personal involvement instead of reacting promptly and controlling the situation on the ground immediately on hearing the sound of first gun-shot. They are also found to be blameworthy for not attending the roll call parades, a mandatory drill followed in every sub unit. 3. I direct that:- (a) Disciplinary action be initiated against Number 14496656N Lance Havildar (General Duty) Jagtar Singh for committing murder of Number 14350951H Havildar (General Duty) Ramesh Singh and Number 14347165Y Havildar (General Duty) Ajit Singh, and attempt to commit murder of Number 14462587W Havildar (General Duty) Baldev Singh and attempting to commit suicide. (d) Disciplinary action be initiated against Number 14462587W Havildar (General Duty) Baldev Singh for deliberately avoiding to give correct version of the incident despite being the prime witness of the incident. (e) Administrative action at the level of General Officer Commanding 29 Infantry Division be initiated against IC 59107M Captain Ashutosh Sharma for not fully involving himself in the operational and administrative aspects of the Battery. 4. I recommend that administrative action at the level of General Officer Commanding 16 Corps be initiated against:- (a) IC 37715N Colonel RK Chadha, Commanding Officer, 167 Field Regiment for failing to ensure precautionary measures to avoid such incidents, being a command responsibility. (b) IC 51335A Major DR Mishra for not fully involving himself in the operational and administrative aspects of the Battery, and for leaving the CT column location on 07 December 2003 without taking prior approval of Headquarters 78 Infantry Brigade. (c) JC 262651H Naib Subedar Mohinder Singh, JC 262481K Naib Subedar Prakash Chand and JC 262675M Naib Subedar Manjeet Singh for deliberately avoiding taking action as Junior Commissioned Officers to control the situation 5. The deaths of Number 14347165Y Havildar (General Duty) Ramesh Singh and Number 14350951H Havildar (General Duty) Ajit Singh of 167 Field Regiment are attributable to military service in field and the gunshot wound injury sustained by Number 14462587W Havildar Baldev Singh W.P.(C)6614/2007 Page 11 of 23 (General Duty) is also attributable to military service in field. Station:C/o 56 APO (A N Aul) Major General Dated:15Mar2004 General Officer Commanding” 12. We have heard the submissions made by the parties and have also perused the record produced by the respondents. While deciding a petition under Article 226 of the Constitution of India it is not for us to go into the factual controversies but we can certainly look into the violation of the mandatory procedures to be followed as prescribed under the Army Act and the Rules framed thereunder. A perusal of the record of the Court of Inquiry goes to show that in the present case as many as 40 witnesses had been examined during the Court of Inquiry held against Lance Naik Jagtar Singh. It is not clear as to how much time had been taken to record the statements of the aforesaid witnesses. None of the witnesses have made any categorical allegation against the petitioner. 13. Rule 180 of the Army Rule mandates that whenever it is proposed to take any action against the incumbent whose reputation and character is found to be in question on account of the evidence recorded during the court of enquiry, it becomes necessary to follow the procedure as prescribed by the Rule (supra) in toto. However what has been done by the respondents was only to permit the petitioner to cross examine the witnesses W.P.(C)6614/2007 Page 12 of 23 after the conclusion of the enquiry that also without supplying the copies of the evidence so recorded which was a misnomer. The relevant observation, in this regard, can be inferred from a perusal of the Court of Inquiry in the manner as below : “ CONFIDENTIAL 140 CROSS EXAMINATION OF WITNESSES ON 17 JAN 04 The court decides to invoke provisions of Army Rule 180 against the following :- (a) IC-37715N Colonel RK Chadha (b) IC-51335A Major DR Mishra (c) IC-59107M Captain Ashutosh Sharma (d) JC-262481K Naib Subedar Parkash Chand (e) JC-262675MNaib Subedar Manjeet Singh (f) JC-262651HNaib Subedar Mohinder Singh (g) 14398556MLance Havildar (TA)Jai Singh (h) 15120927K Naik (GD) Paramjeet Singh The complete Court of Inquiry (the statement of all the witnesses) were read over in their presence and they declined to cross-examine any witness. Sd/-x/x/x/x/x IC-37715N Colonel RK Chadha Sd/-x/x/x/x/x IC-51335A Major DR Mishra Sd/-x/x/x/x/x IC-59107M Captain Ashutosh Sharma Sd/-x/x/x/x/x JC-262481K Naib Subedar Parkash Chand Sd/-x/x/x/x/x JC-262675M Naib Subedar Manjeet Singh Sd/-x/x/x/x/x JC-262651H Naib Subedar Mohinder Singh Sd/-x/x/x/x/x 14398556M Lance Havildar (TA) Jai Singh Sd/-x/x/x/x/x 15120927K Naik (GD) Paramjeet Singh CONFIDENTIAL” W.P.(C)6614/2007 Page 13 of 23 14. It has been submitted by the petitioner that following of procedure as provided under Rule 180 of the Army Rules was mandatory which required the respondents to have issued a notice to the petitioner giving him an opportunity to remain present throughout the court of enquiry from the stage when the evidence came against him; cross examine the witnesses whose evidence were likely to affect his character or military reputation, making a statement in defence and to produce the evidence in defence of his character or military reputation. However nothing of the kind has been done. Non compliance of the aforesaid procedure makes the entire proceedings taken out against the petitioner by issuing show cause notice and awarding of the punishment as illegal and unsustainable in law. 15. In this regard the petitioners have relied upon a judgment delivered by a Division Bench of this Court in the W.P.(C) 11839/2006 on 11.01.2007 in the case of Lt. Gen. Surendra Kumar Sahni Vs. Chief of Army Staff and Ors. Some of the paragraphs of this judgment which speaks for themselves and supports the case of the petitioner are reproduced for the sake of reference: “18. Army authorities are vested with the powers but equally true is that they are entrusted with certain duties. The provisions of law like Rules 22, 24 and 180 of the Army Rules enjoins on the authorities important responsibilities omission of which could be of serious consequences particularly when they cause prejudice to the basic protections available to the member of the Force under different provisions as the Supreme Court in the case of Lt. Col. Prithi Pal Singh Bedi (supra) had held as under: When an offence is committed and a trial by a W.P.(C)6614/2007 Page 14 of 23 general court martial is to be held, there is no provision which requires that a court of enquiry should be set up before the trial is directed. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the court of enquiry should be afforded full opportunity so that nothing is done at his back and without opportunity of participation, Rule 180 merely makes an enabling provision to ensure such participation. But it cannot be used to say that whenever in any other enquiry or an enquiry before a commanding officer under Rule 22 or a convening officer under Rule 37 or the trial by a court martial, character or military reputation of the officer concerned is likely to be affected a prior enquiry by the court of enquiry is a sine qua non. 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 Ors. 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 defense (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 defense 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.” W.P.(C)6614/2007 Page 15 of 23 16. It has been held by this Court in Maj. Harbhajan Singh v. Ministry