IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 159 (S/B) of 2006 Col. Punit Sethi (IC-40662L) Attached to HQ Infantry Brigade C/O 56 APO … Petitioner Vs 1. Union of India through Secretary Ministry of Defence, Sough Block, New Delhi 2. Chief of the Army Staff, Army Headquarters New Delhi 3. General Officer Commanding 14 Infantry Brigade, C/o 56 A.P.O. 4. Commander, 116 Infantry Brigade, C/o 56 APO 5. Brigadier DC Katoch, VCM, Ex Station Commander Ambala Cantt … Respondents Sri Lalit Kumar, learned counsel for the petitioner Sri V.B.S. Negi, learned Standing Counsel (Central) for the respondents Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. By means of this writ petition, the petitioner has prayed for the following reliefs:- A) To issue writ order or direction in the nature of certiorari to quash the charges emerging from the courts of inquiry held against the petitioner at HQ 22 Artillery Brigade at Meerut and at HQ 98 Armed Brigade at Patiala. B) To issue writ order or direction in the nature of certiorari to quash the order of recording the summary of evidence passed by Respondent No.4 against the petitioner without supplying the copy of charge sheet to the petitioner and without hearing the Charge as mandatorily required vide Rule 22 of the Army Rules 1954. 2 C) To restrain Respondent Nos.3 and 4 from initiating any action against the petitioner on the above charges during the pendency of this writ petition. D) To award exemplary cost and compensation to the petitioner as against the respondents for infringement of petitioner’s Fundamental Rights as also for subjecting him to immense mental, physical and financial harassment. E) To grant any other relief which the Court may deem fit, proper and equitable on the facts and circumstances of the case. 2. The petitioner was granted commissioner as an Officer by the President of India, in the Corps Engineers of the Regular Army. The petitioner has acquired various qualifications and achievements between the years August 1981 to 2001. The petitioner was posted in the prestigious appointment of Commander Works Engineer (CWE), Ambala Cantt where the respondent No. 5 i.e. Brigadier DC Katoch, VSM was posted as Station Commander, Ambala Cantt. The petitioner was to be sent on deputation in National Highways Authority of India (NHAI) as General Manager (Technical). Before he could move to join the NHAI, a court of inquiry was ordered against the petitioner by Head Quarter, Western Command vide their Convening Order dated 10th January, 2004 and by subsequent orders to investigate into the allegations arising against him in the complaint made by one Sri Ashwani Kumar. The petitioner has stated in para 16 to the writ petition that it appeared that the said court of inquiry had absolved the petitioner from all allegations arising from the said complaint which had been disowned by Sri Ashwani Kumar. The movement order was issued to the petitioner to join the NHAI vide 3 movement order dated 21st February, 2004 as General Manager (Technical), with an endorsement that there was no disciplinary/vigilance/criminal inquiry pending against the petitioner. After six months from the date of his joining on deputation, the Army Headquarters while exercising its powers under Army Instruction 30/86 at the instance of GOC-in-C Western Command, vide its letter dated 27th July, 2004, ordered the petitioner’s attachment with HQ 116 Infantry Brigade till finalisation of disciplinary case pending against him. The disciplinary case was for the period when the petitioner was posted as Commander Works Engineer, Ambala Cantt. An another disciplinary case was also pending at HQ 22 Meerut, Artillery Brigade against the petitioner. The petitioner after this attachment at HQ 116 Infantry Brigade was sent to attend the court of inquiry proceedings held against him at Meerut as well as at Patiala. After publication of the inquiry pertaining to the petitioner in the court of inquiry proceedings held under Army Rules 177 and under Army Rules 179, the petitioner was sent back to HQ 116 Infantry Brigade. Army Rule 177 provides that a court of inquiry is an assembly of officers or of officers and junior commissioned officers or warrant officers or non-commissioned officers directed to collect evidence, and if so required, report with regard to any matter which may be referred to them. Army Rule 179 provides that the court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the character of the information required. They shall also state whether a report is required or not. Sub-Rule 3 of Army Rule 179 provides that previous notice should be given of the time and place of the meeting of a court of inquiry, and of all adjournments of the court, to all persons concerned in the inquiry except a prisoner of war was is still 4 absent. Sub-Rule 4 of Army Rule 179 provides that the court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth. Sub- Rule 5 of Army Rule 179 provides that the court may be re-assembled as often as the officer who assembled the court may direct, for the purpose of examining additional witnesses, or further examining any witness, or recording further information. Sub-Rule 5(A) provides that any witness may be summoned to attend by order under the hand of the officer assembling the court. The summons shall be in the Form provided in Appendix III. Sub-Rule 6 provides that the whole of the proceedings of a court of inquiry shall be forwarded by the presiding officer to the officer who assembled the court. Thus, it is clear that the court of enquiry report is a fact finding report. 3. It is not disputed that the petitioner was attached at both the stations i.e. at Meerut as well as Patiala to participate in the court of inquiry proceedings. Learned counsel for the respondents submitted that the petitioner was sent on temporary duty there in order to enable him to participate in court martial proceedings. 4. Learned counsel for the petitioner submitted that the court of inquiry was conducted in violation of Army Instruction 30/86. On the other hand, learned counsel for the respondents submits that the Army Instruction 30/86 is not attracted in the case of court of inquiry proceedings as in the instant case, fresh attachment orders attaching the petitioner for temporary duty were issued posting him on two different times at two different places i.e. at Meerut as well as at Patiala whereby the petitioner participated in the court of enquiry proceedings, therefore the Army Instructions 5 30/86 which provides for attachment is not attracted in this case. 5. After the report was submitted, the proceedings under Army Rules 22 have been initiated by the Commanding Officer. For these reasons as stated above, the prayer No.(A) made by the petitioner is refused. 6. The petitioner has prayed for quashing order of the recording of the summary of evidence passed by Respondent No. 4 under Rule 22 of the Army Rules, 1954, as the Commanding officer has proceeded under Rule 22 of the Army Rules to record the summary of evidence without supplying the copy of the chargesheet and without hearing also. Learned counsel for the petitioner submitted that for want of chargesheet, the petitioner is not in a position to proceed for the proceedings under Rule 22 of the Army Rules and therefore, all the orders are void being in violation of principles of natural justice. Learned counsel for the petitioner further submitted that Rule 33 of the Army Rules confers Right of accused to prepare defence and the petitioner cannot prepare his defence without the chargesheet, therefore, the proceedings under Rule 22 of the Army Rules are vitiated. It has further been submitted on the basis of the averments made in Paragraphs number 27, 28 and 29 of the writ petition that the Respondent No.4 – the Commanding Officer ordered the petitioner to be present in his office at 11:00 hours on 3rd May, 2006 for hearing of charge under Rule 22 of the Army Rules. On 3.5.2006, when the petitioner presented himself before Respondent No. 4 for hearing of charge under Rule 22 of the Army Rules, the said Respondent No. 4 orally informed the petitioner that there were a total of seven charges against 6 him. The petitioner was further informed by Respondent No.4 that four of them arose from the inquiry held at Meerut and three of them arose from the inquiry held at Patiala and they pertained to his absence without leave in the year 2004. On the same day, the petitioner requested to the Respondent No.4 to provide him a copy of the chargesheet. The Respondent No.4 flatly refused to supply the copy of the chargesheet saying that the petitioner would not be given any document which would enable him to approach a court of law for its interference, where after the said Respondent No. 4 without hearing the charge as mandatorily required by Rule 22 of the Army Rules, with pre-fixation and pre-determination passed the order for recording the summary of evidence against the petitioner, which is sought to be quashed by Prayer No. (B). 7. Now, we may proceed to examine Rule 22 of the Army Rules. Rule 22 and 23 of the Army Rules reads as under:- 22. Hearing of Charge: - (1) Every Charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). (2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with: 7 Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec. 120 without reference to superior authority as specified therein. (3) After compliance of sub-rule 91), if the commanding office is of the opinion that the charge ought to be proceeded with, he shall within a reasonable time- (a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or (b) refer the case to the proper superior military authority; or (c) adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trail by a summary court- martial; Provided that the commanding officer shall not order trail by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trail of the alleged offender unless – (a) the offence is on which he can try by a summary court-martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as well as the investigation of the original charge. 23. Procedure for taking down the summary of evidence:- (1) Where the case is adjourned for the purpose of having the evidence reduced to waiting, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence 8 appears to be relevant, shall be taken down in writing the presence and hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added of the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” Any statement thereupon made by the accused shall be taken down and read to him, but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires, any witness as to character. (4) The evidence of witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. 9 8. A perusal of Rule 22 of the Army Rules reveals that the every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. Under sub-rule(2) of Rule 22 of the Army Rules, the Commanding Officer is entitled to dismiss the charge if he is satisfied that evidence does not show that the offence under the Act has been committed. Sub-Rule (3)(c) of Rule 22 of the Army Rules provides that after compliance of sub-rule (1), if the commanding officer is of the opinion that the charge ought to be proceeded with, he shall within a reasonable time adjourn the case for the purpose of having the evidence reduced to writing. Rule 23 of the Army Rules provides that where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. Sub-Rule (2) of Rule 23 of Army Rules provides that accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. The stages of rest of the sub-rules have not been reached so far, therefore the order of recording the summary of evidence has been challenged by the petitioner by way of this writ petition on the ground that no chargesheet was given to him under Rule 22 and no hearing was done on that day and the case was adjourned as stated by the petitioner in 10 Paragraph 29 of the writ petition so that he might not approach the court of law for interference. 9. The question that arises for our consideration is whether a chargesheet is required to be served under Rule 22 of the Army Rules or not. We have examined the provisions of Rule 22 of Army Rules. It does not specifically provide for service of chargesheet before proceeding under this Rule. The petitioner has annexed as Annexure No.17 to the writ petition a copy of Army Order No.24/94 i.e. hearing of the charge by the commanding officer which is being reproduced hereunder:- “A.O. 24/94 Discipline: Hearing of a charge by the Commanding Officer. 1. Disciplinary process under the Military Law commences with Army Rule 22 which lays down that every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. This is a mandatory requirement and its non- observance will vitiate any subsequent disciplinary proceedings. However, where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Army Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure as prescribed in Army Rule 22(1) in so far as it relates to calling and hearing of the witnesses. It may be noted that even in such cases the Commanding Officer shall read out and explain the charge(s) to the accused and make appropriate orders on conclusion of the hearing. 2. It is, therefore, incumbent on all Commanding Officers processing a disciplinary case to ensure that “Hearing of the Charge” enjoined by Army Rule 22 is scrupulously held in each and every case and the provisions of the ibid Rule are complied with in letter and spirit. 11 3. It may be clarified that the charge at this state is a “Tentative Charge” which may be modified after the hearing or during the procedure prescribed in Army Rule 22(3)(c) or during examination after completion of the procedure under the said sub Rule, depending on the evidence adduced, under Army Rule 22(4). It is, however, not necessary at this stage to hear all possible prosecution/ defence witnesses provided that CO had heard sufficient evidence in support/disproof of the charge(s). As a matter of abundant caution, it would be desirable to have one or two independent witnesses during the hearing of the charge(s). 4. After the procedure laid down in Army Rule 22 has been duly followed, other steps as provided in Army Rule 23 and 24, shall be complied with in letter and spirit. In order to ensure that there is no omission or laxity in the strict compliance of the procedure laid down in the Army Rules, the form given in Appendix ‘A’ to this Army Order shall be duly completed by the Commanding Officer and kept on record in all cases. 5. A copy of this Army Order will be kept in the Unit Court Martial Box. 6. Army Order 70/84 is hereby cancelled. A28119/AG/DV-1 10. The last sentence of para-1 of the instruction 24/94 provides that the charges shall be read down and commanding officer shall read out and explain the charge(s) to the accused. It has not been stated anywhere that the charges were not read out and were not explained rather the petitioner has stated that he was informed that there were total of 7 charges against him and he further was informed that 4 out of them arose from the inquiry held at Meerut and three of them arose from the inquiry held at Patiala. Since, it has also not been stated by the petitioner anywhere that the charges were not explained to him and were not read out, therefore, the procedure adopted by the commanding officer is inconformity with the provisions of Rules 22 of the Army Rules. We may clarify here that the framing of the charges begins under Rule 28, 29, 30, 31 and 32 of 12 the Army Rules. Rule 28 provides that the chargesheet shall contain the whole issue or issues to be tried by a court-martial at one time. Therefore, the stage of framing of the chargesheet comes when the commanding officer after holding the inquiry under Rules 22 and 23 of Army Rules recommends for the court martial proceedings and not before that. Thus, the argument of learned counsel for the petitioner that the order of recording the summary of evidence passed under Rule 22 of the Army Rules is vitiated on account of non-supplying of chargesheet and on account of violation of Rule 33, is misconceived and is accordingly rejected. 11. Thus, for the reasons recorded above, we are not inclined to entertain the writ petition. The writ petition is dismissed in-limine. No order as to costs. (B.C. Kandpal, J.) (P.C. Verma, J.) May 19, 2006. R. Dang