IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1306/2007 Reserved on 19.5.2008 Decided on.6.6.2008 Satish Kumar Vashisht. …Petitioner. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. yes. For the petitioner : Mr. B.R. Kaushik, Advocate. For the respondents : Mr. Y.P.S. Dhaulta, Central Government Counsel for the respondents Rajiv Sharma, J. The brief facts necessary for the disposal of the writ petition are that the petitioner was recruited in the Army on 29th April, 1996. He applied for 20 days part of annual leave with effect from 17th January, 2007 to 5th February, 2007 on 26th December, 2006. The annual leave was sanctioned on 29th December, 2006. He thereafter requested the Senior JCO of the Company to extend his leave to 30 days i.e. with effect from 17th January, 2007 to 15th February, 2007. Thereafter the petitioner on 10th January, 2007 applied for 30 days part of annual leave with effect from 12th January, 2007 to 10th February. He made complaint against the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 authorities to His Excellency the President of India, RMCOAS, the Defence Ministry, Home Ministry and S.O.INC on 30th January, 2007. He also sent a complaint to the Defence Minister on 28th February, 2007. He sent another complaint to RM-COAS and S.O.INC on 10th March, 2007. He was chargesheeted and proceeded against and he was sent to jail for seven days from 14th June, 2007 to 20th June, 2007. The respondents were directed to produce the record of the proceedings, which were held on 14th June, 2007. Mr. Y.P.S. Dhaulta, Central Government Counsel produced the entire record for the perusal of the Court. Mr. B.R. Kaushik, Advocate appearing on behalf of the petitioner had strenuously argued that the proceedings dated 14th June, 2007 were not in accordance with law. He also contended that there was violation of principles of natural justice since the petitioner has been directed to undergo imprisonment for seven days only on the basis of the statements of two witnesses that too oral. He further contended that his client was entitled to get the copies of the proceedings under rule 147 of the Army Rule, 1954. Mr. Y.P.S. Dhaulta, Central Government Counsel had supported the proceedings initiated against the petitioner whereby he was imprisoned for seven days. I have heard the learned counsel for the parties and perused the record carefully. The petitioner belongs to a discipline force. It is high tradition of the Indian Army to maintain discipline and decorum while serving. The petitioner had made various complaints to highest dignitaries as noticed hereinabove. There is a detailed procedure prescribed under para 552 (A) of RA 1987 for the redressal of grievances. If the petitioner was 3 aggrieved in any manner by the actions of the respondents, he should have taken recourse to the mechanism provided under para 552 (A) for the redressal of his grievance. Under no circumstances, he could approach the higher authorities for the redressal of his grievance directly. The act of the petitioner to approach the higher authorities without exhausting proper channel will definitely undermine the discipline of the Army Forces. Para 557 of Regulations of the Army (RA), 1987 specifically provides that in no circumstances will Officers, JCOs, WOs, OR or NCs (E) address the President, the Head of a State, A Minister, the Chief of Army Staff or any Army Commander, or any Principal Staff Officer at Army Headquarters, or Heads of the Services, or any other superior formation commander on any official or service matter except through the authorized channels. The Court disproves the manner in which the petitioner had been approaching the higher authorities in violation of para 557 of Regulations of the Army (RA), 1987. Now, the Court has to appreciate the submission made by Mr. B.R. Kaushik, Advocate whether the proceedings dated 14th June, 2007 commenced and concluded were in accordance with law or not. Mr. Y.P.S. Dhaulta, Central Government Counsel had argued that the acts of the petitioner were violative of section 63 of the Army Act, 1950 and he has been proceeded under section 80 read with Rule 22 of the Army Rules, 1954 read with AO No. 24/94. To ascertain whether there is a compliance of the mandatory provisions of law or not, the Court had perused the record of the summary trial of the petitioner, which commenced on 14th June, 2007. The charge is reproduced in column 2 of the “offence report” which reads thus: “at Yol Cantt at about 0800 hrs on 14th June, 2007, while on parade, when asked by Lt. Col. MS Cheema, the Second-in-Command about his improper turn out, 4 improperly and insolently replied that he did not have a mirror.” The petitioner had pleaded not guilty, however, as per findings recorded in the offence report he was found guilty. In the same report, the names of the witnesses Sub. Maj. Amar Singh and Sub R.N. Singh have been mentioned. The punishment awarded to the petitioner is seven days rigorous imprisonment in military custody. It is evident from the record of proceedings before the Commanding Officer under rule 22 of the Army Rules, 1954 that the witnesses, namely, Sub. Maj. Amar Singh and Sub R.N. Singh were heard orally. The petitioner had not cross-examined the witnesses. The authorities should have recorded the statements of the witnesses in writing and thereafter the petitioner was to be afforded with an opportunity to cross-examine them. There is no mention whatsoever what these witnesses have stated even orally. The procedure adopted in summary trial against the petitioner is not in accordance with the principles of natural justice. True it is that all the rigours of the principles of natural justice may not apply stricto sensu to the personnel serving in the Army, but there has to be compliance of the basic principles of natural justice, more particularly, when the person concerned has to suffer criminal consequences in the nature of imprisonment. It is clear from Annexure –I of the proceedings that a tentative charge-sheet was prepared against the petitioner. Once the charge-sheet has been prepared against the petitioner, he was to be afforded reasonable opportunity of at least two weeks to file reply to the same. This admittedly has not been done by the respondents. In the reply, the respondents have stated that the acts of omission of the petitioner were in violation of good order and discipline. It is evident from the phraseology of section 63 of the Army Act, 1950 that any person is liable to suffer imprisonment if he is convicted by court 5 martial. In the present case, the petitioner has been proceeded against under section 63 but he has been tried summarily under section 80 of the Army Act, 1950. If Section 63 of the Army Act, 1950 was invoked, the petitioner was to be court martialled or reasons were to be assined for trying him summarily. Thus the very initiation of the proceedings against the petitioner under section 63 of the Army Act, 1950 and to try him summarily under section 80 is void ab initio. Section 79 provides that punishments may also be inflicted in respect of offence committed by persons subject to this Act without the intervention of a court martial and in the manner stated in section 80, 83, 84 and 85. The learned Single Judge of Calcutta High Court has held in Paramjit Singh Kohli versus Union of India and others, 1997 Lab.I.C.- 2153 that army personnel charged under section 63 of the Army Act, 1950 cannot be tried by way of summary trial in the absence of reasons for the same. The learned Single Judge has held as under: “Either in the Army Act or in the Army Rules framed thereunder, no provision exists which prescribes any parameters, criteria, guidelines or conditions under which an officer charged with an offence under the Army Act has to be dealt with, either by a Court martial, which is the general rule as is evident from a perusal of S. 71, or by a single individual, as is provided under section 79 read with section 84. In what cases, on what considerations, under what circumstances and in what situations/conditions such a person is to be tried either by Court Martial or by a single individual are factors which are totally absent both in the Army Act and the Army Rules. How and in what manner the discretion has to be exercised, whether objectively or subjectively and on what considerations is also not to be found in the Army Act or the Army Rules. Whether the discretion can be exercised arbitrarily, by misuse or abuse of the discretionary power, or in a given situation upon the 6 existence of a particular consideration, are factors which are very vital and important for the proper implementation of the exercise of this power as contemplated under section 79 of the Act. In the instance case, nothing at all was suggested to the Court either in the affidavit-in-opposition of the respondents or during the course of arguments as to why was the petitioner dealt with abnormally by taking the recourse to his summary trial in terms of section 84 read with section 79 of the Act rather than by affording him an opportunity of being tried by a General Court Martial. A careful perusal of the original record also did not indicate the existence, even the mention of any such reason or circumstance. Undoubtedly a General Court Martial is a full-fledged criminal Court of law duly constituted under the Army Act, comprising of members of the jury, guided in law by a Judge Advocate. In a General Court Martial the application of the provisions of the Evidence Act is mandatory and every accused person has a statutory right of defending himself strictly in accordance with the provisions of law. Every verdict of a General Court Martial is guided by the application and existence of evidence, legally admissible and properly taken on oath and it is only after observing all principles of natural justice and strict requirements of law, a verdict is pronounced by a General Court Martial almost in identical terms as is done by a Criminal Court of ordinary jurisdiction under the Code of Criminal Procedure for trying persons, other than those subject to Army Act for commission of offences under normal laws of the land.” In the present case also no material has been placed by way of reply why the petitioner has been proceeded by way of summary trial even though he has been charged under section 63 of the Army Act, 1950. The order dated 14.6.2007 is a non-speaking order. The authorities were bound to give at least some reasons even though cryptic 7 to show that there was due application of mind while issuing the order having severe consequences. It is clear from the reading of section 80 that Commanding Officer or such other officer as is, with the consent of the Central Government, specified by the Chief of Army Staff, may, in the prescribed manner, proceed against a person subject to the Act. In the present case the respondents have not placed on record the consent of the Central Government before inflicting punishment of seven days rigorous imprisonment upon the petitioner. This is a serious breach of mandatory requirement under section 80 of the Army Act, 1950. The Court besides perusing the original record has also perused all the documents filed along with the reply by the respondents including the record of proceedings before the Commanding Officer under rule 22 of the Army Rules, 1954. In view of above discussion, it is evident that there is violation of the principles of natural justice while contemplating, initiating and concluding the proceedings against the petitioner. The statements of the witnesses relied upon by the authorities should have been recorded in writing. The Court cannot take cognizance which has been stated orally that too which has not been recorded in the proceedings. The petitioner has been proceeded against under section 63 of the Army Act, which is not permissible under the law. The punishment under section 63 of the Army Act, 1950 can only be awarded by the authorities under the court martial and not in summary proceedings. The respondents have not placed on record the consent of the Central Government as contemplated under section 80 of the Army Act, 1950 before awarding the punishment of seven days rigorous imprisonment upon the petitioner. The respondents have placed on record the copies of the proceedings initiated on 14th June, 2007 and the petitioner cannot be presumed to be prejudiced at this 8 stage even if he had not been supplied the copies of the proceedings at the initial stage. The conviction and sentence as in the present case have serious consequences. The authorities are required to pass a speaking order before sending a person to military custody. The speaking order enables the Courts to see whether there is due application of mind or not. Accordingly, the writ petition is allowed. The proceedings Annexure R-4 commenced and concluded on 14th June, 2007 are quashed and set aside. The punishment of sentence awarded to the petitioner henceforth will be deleted from the personal record of the petitioner. There shall be no order as to costs. June 6, 2008 (Rajiv Sharma ), J. *awasthi*