W.P.(C)5644/2002 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT New Delhi + WP (C) No. 5644/2002 Reserved on : 05th September, 2008 % Date of decision: 22nd September, 2008 Lt. Col. RAVENDRA KUMAR …Petitioner Through: Mr. C.M. Khan, Advocate. Versus UNION OF INDIA & ORS. ...Respondents Through: Ms. Anjana Gosain, Adv. 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 reported in the Digest? Yes : MOOL CHAND GARG, J. 1. The petitioner joined Indian Army in the year 1979 as an Engineering Graduate. In 1996 he was posted as Officer Commanding of Station Workshop EME at Belgaum, North Karnataka as Lt. Col. At that station, other units including Maratha LIRC commanded by Brigadier S. P. Sharma, (SM) was also stationed. One Col. C. D. Sawant was the Dy. Commandant of the Maratha LIRC. In July 1997 Government of India decided to disband the Station Workshop EME Belgaum and the responsibility to sell off the W.P.(C)5644/2002 Page 2 of 25 regimental properties was placed upon the petitioner. Auction of the Regimental Property took place on 16.3.98. A unit namely EME Cell Belgaum was raised in place of the workshop which was also placed under the command of the petitioner. The property of the EME Cell was also disposed of by an auction held on 24.3.1999 in terms of the decision taken on 19.3.99. A final audit of the regimental fund account was submitted on 30.3.1999 signed by all the board members and countersigned by the petitioner. However Major A.K. Singh who also happened to be the chairman of auction board on the very next day i.e. on 31.3.1999 raised certain objections to the audit report. A response was called from the petitioner which was submitted on 5.4.1999. The allegations leveled against the petitioner are about misappropriation of certain properties of the unit not put up for auction, and kept by the petitioner himself by manipulating the auction. 2. It is the case of the petitioner that Col. C. D. Sawant (SM) was inimical to the petitioner and has falsely implicated him in this case. Soon after Major A.K.Singh raised objections, Col. Sawant ordered a Court of Inquiry by appointing his battalion officer Lt. Col. G. C Chohan OF 8 Maratha LI as its Presiding Officer. During the Court of Inquiry the petitioner was attached to Station Head Quarter, W.P.(C)5644/2002 Page 3 of 25 Belgaum even though his unit the EME Cell stood disbanded on 31.3.1999 and ceased to exist. It is stated that his movement for next posting to Nagaland was delayed even though he was not connected with the Court of Inquiry. He was allowed to join to his next posting after the conclusion of the Court of Inquiry on 10.8.1999 to 310 Field Station Workshop EME (Nagaland). 3. It is also his case that no one deposed against him during the aforesaid C O I. However, vide letter dated 2.2.2000 signed by Brig. S. P. Sharma, the Station Commander, the petitioner was asked to make good a loss of Rs.63924/- of the Regiment fund of the Ex-EME Cell Belgaum by alleging that the said amount had been misappropriated while disposing off the properties of the Regiment. The petitioner was also attached to Maratha LIRC for finalization of disciplinary case against him, on 30.01.2000 and on the same day he was also informed that Lt. Col. Satbir will record the summary of evidence who also happened to be from Maratha LIRC. It is stated that hearing of charge was done by Col. C. D. Sawant even though he was not his Commanding Officer without any prior verbal or written notice contrary to the provisions of Army Rule 22 in a very intransparent and surreptitious manner. It is alleged that the provisions of Army Rule 180 were also not W.P.(C)5644/2002 Page 4 of 25 complied with. Petitioner further alleged that during recording of summary of evidence he was harassed and made to wait and sit in isolation. The petitioner claims to have objected to the malpractices adopted by Col.C.D. Sawant vide his letters dated 8.4.2000, 11.4.2000 & 17.4.2000. 4. It is the case of the petitioner that after recording the summary of evidence the petitioner was tried by a General Court Martial as per order dated 6.9.2000 without supplying him summary of evidence immediately, but supplied only on 28.2.2001. Even the relevant documents were also not supplied. It is also submitted that during the General Court Martial also he was harassed several times and denied visit to his civil counsel. During adjournments of trial he was not released which further prejudiced his defence. The Deputy Judge Advocate General, appointed for GCM was junior to the petitioner and was not changed despite objections raised. Even the defence assistant of the petitioner Col. A. K. Malhotra was humiliated by DJAG. Consequently he withdrew from the proceedings. Finally the petitioner was convicted by the General Court Martial of the charges framed against him under Section 63 of Army Act (for short “the Act”) later converted to Section 52 (b) of the Act and has been sentenced to undergo punishment of „cashiering‟ and sentence of one year rigorous imprisonment vide orders W.P.(C)5644/2002 Page 5 of 25 pronounced on 15.6.2001. The pre-confirmation petition filed by the petitioner under Section 164(1) of the Act was decided vide order dated 21.9.2001 only after intervention of this Court and was rejected. The sentence imposed was confirmed except that authorities remitted the remaining period of sentence of one year RI and thereafter the remaining sentence was promulgated. The petitioner then filed the post confirmation petition which was also dismissed vide order dated 24.4.2002. Hence this petition. 5. By way of the present Writ Petition, the petitioner has prayed for setting aside the disciplinary proceedings taken out against him right from the beginning and also prays that the sentence imposed upon him be set aside and he be reinstated in service with all consequential benefits, on the following grounds: (i) Because Col C.D. Sawant who directed holding of the court of inquiry, recording summary of evidence and conducted hearing of charge had no authority to do so. He was also biased against him. (ii) Because no opportunity was granted to the petitioner for the cross-examination of witnesses as per Rule 22 of the Army Rules (for short ―the Rules‖). The hearing on the tentative charge was a mere farce. (iii) Because the initiation of the disciplinary action against the petitioner when no witness had spoken against him in the Court of Inquiry was illegal and biased. Rule 180 of the Army Rules also not complied with. (iv) Because the respondents ought not to have appointed a Judge Advocate General who was a junior of W.P.(C)5644/2002 Page 6 of 25 the petitioner. In any case when objection was raised corrective steps should have been taken. (v) Because the DJAG committed misbehavior with the defending officer of the petitioner compelling him to opt out of the proceedings causing a serious prejudice to the case of the petitioner. (vi) Because the punishment of Cashiering and rigorous imprisonment for one year was not justified in the present case. (vii) Col. C.D. Sawant who acted as the Commanding Officer of the petitioner at the relevant time acted with bias and with a determined intention to harm the petitioner. 6. It will be appropriate to take note of the tentative chargesheet issued to the petitioner which is reproduced hereunder: The accused No. IC-39032 W Lt Col Ravender Kumar of 310 Stn Wksp EME, C/o 99 APO, attached with the Maratha Light Infantary Regimental Centre, Belgaum is charged with:- Army Act Section 63 AN OMMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at Belgaum, on 16 March 1998 and 24 March 1999 while functioning as officer Commanding, EME Cell, Belgaum failed to administer the Regimental fund judiciously by allowing auction of regimental property to the disadvantage of Regimental Fund. Station: Belgaum Sd/- Date 02 March 2000 (CD Sawant) Colonel Officier Commanding Troops The Maratha LIRC, Belgaum Later on this charge was converted into Section 52(b) of the Act. W.P.(C)5644/2002 Page 7 of 25 7. On the other hand the respondents denied all the aforesaid submissions. They have submitted that the grounds raised by the petitioner have no legs to stand. It is submitted that the charge sheet was issued by the competent authority as Brigadier S. P. Sharma was admitted in Hospital and in his place Col. C. D. Sawant by virtue of being IInd in Command acted as the officiating commandant of the Maratha Light Infantry Regimental Centre in addition to his own duties of Dy. Commandant and Officer Commanding Troops and as such he was the commanding officer of the petitioner at the relevant time. In this regard, an official notification was also issued in accordance with the Defence Service Regulations. A copy of the notification in respect of the authority of Col. C. D. Sawant is available on record which is reproduced hereunder: ―RESTRICTED CENTRE ROUTINE ORDER PART I BY COL CD SAWANT, SM OFFICIATING COMMANDANT THE MARATHA LIGHT INFANTRY REGIMENTAL CENTRE, BELGAUM _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Station: Belgaum Wednesday 09 Feb 2000 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 076 CHANGE OF COMMAND. IC-28419F Brig SP Sharma, Comdt, MH Belgaum mein dinank 09 Feb 2000 ke admit hone par IC-3246DP Col CD Sawant SM, Dy. Comdt. Ke allawa Karyawahak Commandant ka padbhar sambhalenge." W.P.(C)5644/2002 Page 8 of 25 8. The respondents also submitted that Army Rule 180 was duly complied with during the COI. Once allegations came against the petitioner he was allowed to cross- examine the witnesses. As such, there was no requirement of hearing of charge as per the proviso to Army Rule 22. The Commanding Officer was empowered to direct Recording of Summary of evidence if prima facie case existed against the petitioner. However, though not required, hearing of charge was properly done by giving an opportunity to the petitioner as per law. Rule 22 of the Army Rule is reproduced as under for the sake of reference: ―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).‖ --------------------------------------------------- 9. Regarding the third submission, it is submitted that only after the conclusion of Court of Inquiry when it became clear that the petitioner abused his position as officer commanding of the unit (EME Workshop & EME Cell) W.P.(C)5644/2002 Page 9 of 25 and forced his subordinates to tow his line to show that a proper auction was carried out whereas it was not so carried out and loss was caused to the state, taking into account the facts and material available on record, disciplinary action was ordered against the petitioner giving all opportunity to the petitioner under Army Rule 180. This is apparent from the attachment order of the petitioner for the purpose of disciplinary action to be taken against him. The said order was passed on 31.1.2000 and reads as under: ―Confidential Tele: 337511 Additional Directorates Discipline and Vigilance Adjutant General’s Branch Army Headquarters DHQ PO New Delhi-110011 C/06270/SC/228/AG/DV-2 31 Jan 2000 Headquarters Eastern Command ATTACHMENT ORDER: OFFICERS 1. Ref HQ Southern Command letter no. A/2402615/DV-2(2A) dated 10 Jan 2000. 2. Under the provisions of AI 30/86, IC-39031W Lt. Col. Ravinder Kumar of 310 Stn Wksp EME/Eastern Command is hereby attached to MARATHA LI RC, Belgaum till finalization of the disciplinary case pending against him. 3. The officer will move on attachment forthwith. (TK De) SCSO Dir/DV-2 ForAdjutant General W.P.(C)5644/2002 Page 10 of 25 Copy to : HQ Southern Command ATNKK AND G AREA (A) Stn Hq Belgaum MARATHA LI RC Belgaum 310 Stn Wksp EME C/O 99 APO CDA(O), Pune MS (12)‖ 10. The respondents have summarised their case against the petitioner by making following averments in paras 3 (iv) & (v) of their counter affidavit ; ―3.(iv) In reply to para 3(iv) it is submitted that on disbandment of the station workshop, EME Belgaum on 31.7.1997, the new unit called EME cell, Belgaum with one officer, one Junior Commissioned Officer and 6 other ranks was to be raised by transfer of personnel from disbanded Station Workshop, EME Belgaum. The petitioner as Officer Commding was aware of the disbandment of this EME Cell, Belgaum well before 19th March 1999. Though the Station Workshop EME, Belgaum stood disbanded on 31.7.1997, the work on transfer of unit personnel, deposition /distribution unserviceable stores/properties, disposal of Regiment and other Government properties, connected documents was not completed by the petitioner well before 31.7.1997 as it is quite common that works of raising/disbandment carries on beyond the dates fixed for the same. Accordingly, the process of disbandment continued much beyond 31.7.1997. The fact that the auction of items of Regimental properties of Station W.P.(C)5644/2002 Page 11 of 25 Workshop EME, Belgaum was held nine months later in March 1998 amply proves the same. Similarly, the petitioner dragged the disbandment process of his minor unit EME Cell, Belgaum consisting of just eight personnel well beyond 31st March 1999 he moved on posting to 310 Field Workshop in Nagaland by September, 1999. For the sake of administration and to regularize the overstay of the petitioner and his unit personnel beyond 31st March 1999 their attachment to Station Headquarter Belgaum with effect from 1st April 1999 was ordered and it continued till completion of disbandment work. 3.(v) contents of para 3(V) are wrong and are denied. It is submitted that the auction was to be conducted under the provisions of Special Army order 9/S/76 and Regulations for the Army. In violation of these provisions regarding giving wide publicity to all units in station and producing all the listed stores for auction, the petitioner as Officer Commending of EME Cell, Belgaum failed in his duties. The items in which the petitioner had personal interest were never produced for auction hence there was no bidding on those items. The petitioner himself was also present for both the auctions. Everything at the auctions was as per his orders and instructions. The Junior Commissioned Officers & Non commissioned Officers detailed as Presiding Officer/Members of the auction board carried out his illegal orders. Evidence to this effect is already on record at the Summary of Evidence and General Court Martial proceedings.‖ W.P.(C)5644/2002 Page 12 of 25 11. It is further submitted that the appointment of JA of a lower rank was made since JA of the rank of the petitioner was not available. It is stated that JAG of junior rank could be there for the trial of the GCM which is permissible. A certificate to that effect was endorsed in the convening order by the convening authority in compliance of C.S. Gill‟s judgment. It is also submitted that since the petitioner was represented by a legally qualified counsel who defended him in the trial and the fact that a suitable officer was provided as defending counsel to the petitioner as per law, no prejudice has been caused to the petitioner on this account. 12. It is submitted that the punishment given to the petitioner while confirming was reduced by the confirming authority to „cashiering‟ and remission of the unexpired portion of the rigorous imprisonment. Considering the nature of the charge, complicity of the offence committed by the petitioner by abusing his position and manipulating the documents, the punishment was commensurate with the charge and no interference is called for on this account. Further, the punishment was awarded in view of the fact that the petitioner had carefully planned and executed the illegal auction whereby the petitioner misappropriated the funds to the tune of Rs.63,924/- (Out of a total of W.P.(C)5644/2002 Page 13 of 25 approximately Rs. 90,000, as submitted by the petitioner in court) by not submitting attractive items, like T. V., VCP etc. for auction of which the petitioner was already in possession. In the auction no member of the board was allowed to participate, the petitioner submitted false details of buyers and continued to enjoy the said products. It is also pertinent to note that the minimum reserve price was also fixed by the petitioner. The petitioner further proceeded to make two of his Junior officers Members of the Board of Auction so that the Petitioner could use undue influence on them to get the O.K. report and being head of the command, it was a gross indiscipline on his part, particularly when he made his own two unit members to do something illegal under his command and there is clear finding against him. 13. Dealing with the issue of the attachment of the petitioner it is submitted that he was attached for disciplinary proceedings only after finalization of Court of Inquiry. Previously his attachment to the station HQ was necessitated because the disbandment proceeding of EME Cell was required to be completed by 31.03.1999. However, the same was completed in Sept. 1999 when ultimately petitioner moved on to new place of posting. The petitioner and other unit personnel were allowed for administrative W.P.(C)5644/2002 Page 14 of 25 purpose to stay at Station HQ Belgaum. The attachment order of petitioner for taking disciplinary action against him was issued by Army HQ on 31.1.2000 after finalization of COI and pursuant to the direction of the competent authority for taking disciplinary action against the petitioner. 14. About the audit of auction proceedings and there being no objection to it, reliance has been made to the averments made in para 3(iv) and 3(v) of the counter affidavit (supra). As to how the petitioner manipulated the Board proceedings a letter was written to the Unit of the petitioner by the Presiding Officer of the Board, copy of which is already annexed as Annexure R-1. The said letter is also being reproduced for the sake of reference. ―Telephone Military:422517/5227 Marath Light Infantry Regiment Kendar The Maratha Light Infantry Regimental Centre Belgaum – 590 009 PPRI/4842/Gen 31st March, 1999 EME CELL Belgaum-9 Convening Order : Disbandment of EME Cell, Belgaum 1. Ref Stn HQ Convening order NO. 152/G(PC) dt. 12th March, 99. W.P.(C)5644/2002 Page 15 of 25 2. The bd proceedings were left with you at 1900 hrs on 30th March, 99 for me to enable fairing out the draft observations and also to discuss these with other members the next day. 3. However it is obs that your yourself or your staff have put your remarks as ―Nil‖ at para (m) & (h) and obtained the signatures of other members w/o appraising them about the observations and submitted the bd proceedings to Stn HQs directly. 4. The obsn as under are now sent herewith for your information and necessary action: (a) It is obs that value of property auctioned and credited into Regt Fund Account (RV-21 dt 24th March, 99) in terms of SAO 26/S/73 is seemingly disproportionate to the actual value of stores that have been auctioned. Few examples are as under:- S.No. Item Date of Purchase C. of Value (i) Camera Niken F 18 Dec. 99 PV-99 Rs. 8300/- (ii) Auto Stand 22 Jan.99 PV-117 Rs. 3462/- (iii)Zoom Lons 21 Jan. 99 PV-113 Rs.11200/- (iv) Carpet 16 Jan.99 PV-108 Rs. 9000/- (b) A large No. of donations have been made the receipts of which were not shown to the presiding officers despite repeated requests. 5. The above is for your information and necessary action please. Sd/- (A.K.Singh) Major Presiding Officer‖ 15. We have given our thoughtful consideration to the rival submissions including written submissions filed by the parties and have also gone through the provisions of the Act as well as the rules framed there under. W.P.(C)5644/2002 Page 16 of 25 16. At the outset, we may discuss the scope of judicial intervention in the matter like the one in hand, which is very limited. It is well settled that while sitting as a writ court under Article 226 of the Constitution, this Court does not sit as a Court of appeal and interferes only if infraction of the rules or the provisions of the Act are writ large during the proceedings or when the punishment imposed is excessively disproportionate and shocks the conscience of this Court. 17. It would be useful to extract some observations by the Apex Court which lay down the law in this regard. Para 4 and 5 of the judgment delivered by the Apex Court in the case of Union of India Vs. Himmat Singh Chahar JT 1999 (3) SC 631 reads as under: ―4. In view of the rival submissions at the Bar the short question that arises for consideration is what would be the extent of the jurisdiction in exercising power under Article 226 of the Constitution over the findings of the Authority in Court Martial Proceedings? The Defence personnel serving in Army, Navy or Air force when commit any offence are dealth with by the special provisions contained in the Army Act or the Navy Act or the Air force At and not by the normal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an officer should be tried by Court Martial. The Act also provides sufficient safeguard by way of further appeal to be Chief of the Staff and then ultimately to the Union Government. W.P.(C)5644/2002 Page 17 of 25 5. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the Competent Authority in the Court Martial Proceeding. It is of course true that notwithstanding the finality attached to the orders of the Competent Authority in the Court Martial Proceeding the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the Competent Authorities in Court Martial Proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior Tribunal. This being the parameter for exercise of the power of Judicial review against the findings of a Competent Authority in a Court Martial Proceeding, and applying the same to the impugned judgment of the High Court we have