WP (C) No.2003/2006 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 2003/2006 % Reserved on : 30.09. 2008 Date of decision : 16.10.2008 S. S. SHEKHAVAT …PETITIONER Through: Major K. Ramesh, Advocate Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr.A.K.Bhardwaj, Advocate With Col. I.S. Singh 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 a Commissioned Officer of Indian Army promoted to the rank of Lt. Col. was served with a charge sheet dated 15.5.1997 containing five charges alleging supply of unhygienic meat to the troops and management by mixing water in the carcasses. The charge sheet read as under:- “CHARGE-SHEET The accused, IC-39285N Maj SS Shekhawat of 890 Animal Transport Battalion, attached to composite Food Laboratory, Lucknow, an officer holding a permanent commission in the regular Army, is charged WP(C) No. 2003/2006 Page 2 of 27 with:- FIRST CHARGE SUCH AN OFFENCE AS IS MENTIONED ARMY ACT CLAUSE (F) SECTION 52 OF THE ARMY ACT Section 52 WITH INTENT TO DEFRAUD, In that he, At Lucknow, on 05 Mar 95, being the Supervising Officer, 44 Coy ASC (Supply) Butchery, with intent to defraud, accepted carcasses containing water for issuing to the troops, well knowing that it was his duty to ensure that the said carcasses were to be removed and destroyed under his supervision. SECOND CHARGE AN ACT PREJUDICIAL TO Army Act GOOD ORDER AND MILITARY DISCIPLINE. Section 63 (alternative to in that he, First charge) at Lucknow, on 05 Mar 95, being the Supervising Officer, 44 Coy ASC (supply) Butchery , improperly accepted carcasses containing water for issuing to the troops, well knowing that it was his duty to ensure that the said carcasses were to be removed and destroyed under his supervision. THIRD CHARGE SUCH AN OFFENCE AS MENTIONED Army Act IN CLAUSE (f) of SECTION 52 OF Section 52(f) THE ARMY ACT WITH INTENT TO DEFRAUD, In that he, At Lucknow, on 30 mar 1995, being the Supervising officer, 44 Coy ASC (supply) Butchery with intent to defraud, accepted carcasses containing water for issuing to the troops, well knowing that it was his duty to ensure that the said carcasses were to be removed and destroyed under his supervision. FOURTH CHARGE AN ACT PREJUDICIAL TO GOOD Army Act ORDER AND MILITARY DISCIPLINE, Section 63 (alternative to in that he, WP (C) No.2003/2006 Page 3 of 27 Third charge) at Lucknow, on 30 mar 95, being the Supervising Officer, 44 Coy ASC( Supply), Butchery, improperly accepted carcasses containing water for issuing to the troops, well knowing that it was his duty to ensure that the said carcasses were to be removed and destroyed under his supervision. FIRFTH CHARGE AN OMISSION PREJUDICIAL Army Act TO GOOD ORDER AND MILITARY DISCIPLINE, Section 63 in that he, at Lucknow, on 30 mar 95, improperly omitted to ensure that the green weight and dry weight of carcasses were duly entered in the register by the butchery staff, contrary to para 35 of unit SOP dated 01 Mar 95. 2. The petitioner was tried by a General Court Martial (for short GCM), which exonerated him of all the charges by holding him „Not Guilty‟. The confirming Authority instead of confirming the report exercised its right of revision under Section 160 of the Army Act (hereinafter „Act‟) and remanded back the matter to the GCM with certain directions. On remand the GCM recorded additional evidence and examined some more documents. However vide order dated 9.3.1999 the GCM reiterated its earlier stand and again declared the petitioner „Not Guilty‟ of all the charges. The respondents again decided not to confirm the report of GCM and issued a notice to the petitioner to show cause, as to why administrative action to convey appropriate censure of the GOC in C be not taken against him. The petitioner sent a reply objecting to the proposed action yet the respondents awarded him Censure of „Severe Displeasure (recordable)‟ vide WP(C) No. 2003/2006 Page 4 of 27 order dated 8.11.99. 3. The petitioner pleads that such a course of action was not available to the respondents having no sanction of law and was a time barred action. It is also his case that the aforesaid punishment came in the way for his promotion to the rank of Lt. Colonel which was delayed considerably. A petition filed by the petitioner challenging the aforesaid action under Section 164(2) of the Army Act was rejected by the Competent Authority vide order dated 22.7.2003. Hence the petitioner filed the present writ petition with the following prayers: “(i) Issue a writ, order or direction in the form of certiorari to quash the Govt. of India-Ministry of Defence Order dated 22.07.2003 and the censure of Severe Displeasure (recordable) dated 08.11.1999, as also the consequent result of the Selection Board No.4 for promotion to the rank of lieutenant colonel for selection grade declared vide order dated 17 Dec 2002 (ii) Issue a writ, order or direction in the form of Mandamus to the respondents to hold a Selection Board No.4 for consideration of the petitioner for promotion to the rank of Lt. Col. Selection Grade as a fresh candidate with retrospective original seniority (iii) Pass such other and further exemplary orders/directions as may be deemed just and proper by this Hon‟ble Court for the consequential benefits of the petitioner in the circumstances of the case.” 4. The show cause notice issued to the petitioner on 6th July, 1999 proposing administrative action reads as under: “Mukhyalaya Madhya Raman Headquarters Central Command WP (C) No.2003/2006 Page 5 of 27 Lucknow – 226 002 19905/5534/A (DV) 06 Jul 99 IC-39285N Maj SS Shekhawat 890 AT Bn ASC att to CFL ASC Lucknow SHOW CAUSE NOTICE : OFFICERS 1. You were Officer-in-Charge Butchery of 44 Coy ASC (Sup) Type „E‟ Lucknow. The following lapses have been observed by the GOC- in-C from the perusal of the proceedings of the Court of Inquiry held to investigate the irregularities and mismanagement in the above mentioned Butchery resulting in issue of deed animals and carcasses containing profuse quantity of water on 30 Mar 95 :- (a) That you allowed use of water on the carcasses to increase their physical weight contrary to ASC Trg. Vol-II Sec IV and MG ASC Tech Insrtr. 09/89 dated 28 Apr 89, which resulted in burning of 11 kgs. of the Meat on 30 Mar 95. (b) That you allowed inedible oils to remain attached with the carcasses before issue to troops on 30 Mar 95. (c) That you managed falsification of document with the help of butchery staff with intent to make wrongful loss to the troops on 30 Mar 95 and subsequent days. (d) That you failed to ensure correct maintenance of documents by you subordinates in the butchery. (e) That you had been casual in dealing with the units in the issuance of meat during your tenure and making such remarks as “Nobody could do a thing to us” or words to that effect. 2. In view of the above mentioned lapses on your part, you are hereby afforded an opportunity to explain your conduct on the said counts and to explain as to why administrative action by way of appropriate ensure of GOC-in-C, Central Command not be conveyed to you. 3. You should submit your reply to show cause notice through normal staff channel within 30 days of its receipt failing which it would be assumed that you have no ground to urge against the proposed action and an ex parte decision will be taken. Sd/XX Brig „A‟, for GOC in C” 5. The impugned order conveying the award of Censure dated WP(C) No. 2003/2006 Page 6 of 27 9.11.99 is also reproduced: “DIRECTIONS OF THE GENERAL OFFICER COMMANDING-IN- CHIEF, CENTRAL COMMAND ON THE REPLY TO SHOW CAUSE NOTICE IN RESPECT OF IC-39285N MAJ SS SHEKHAWAT OF 890 ANIMAL TRANSPORT BATTALION ASC (EX 44 COMPANY ASC (SUPPLY) ATTACHED WITH COMPOSITE FOOD LABORATORY ASC, LUCKNOW 1. The reply to Show Cause Notice dated 23 Jul 99, submitted by IC-39285N Maj SS Shekhawat of 890 Animal Transport Battalion ASC attached with Composite Food Laboratory, ASC Lucknow has been examined in the light of Court of Inquiry proceedings, recommendations of commanders in chain and other documents on record. 2. I agree with the recommendations of General officer Commanding Uttar Pradesh Area. 3. The reply of the officer is unsatisfactory. As Officer-in-Charge Butchery of 44 Company ASC, (Supply) Type „E‟ Lucknow, he allowed use of water on the carcasses to increase their physical weight contrary to the provisions of ASC Training Volume II, Section IV and MG ASC Technical Instructions of 09/89 resulting in subsequent destruction of 111 kgs Meat on 30 Mar 1995. Besides, the officer allowed inedible oils to remain attached with the carcasses at the time of issue to the troops on 30 Mar 1995. It is also on record that the officer did not ensure proper supervision over his subordinate staff and maintenance of documentation in the butchery which resulted in wrongful loss to the troops on 30 Mar 95 and subsequent days. 4. I, therefore, direct that my „Severe Displeasure (to be recorded) be conveyed to IC-39285N Maj SS Shekhawat (ex 44 Company ASC (Supply) Type „E‟) of 890 Animal Transport Battalion ASC attached to Composite Food Laboratory ASC Lucknow for the above mentioned lapses on his part. Station: Lucknow (Surjit S Sangra) Lieutenant General Dated: 08 Nov 99 General Officer Commanding- in-Chief.” 6. The petitioner has submitted that once the GCM reiterated its findings 2nd time after revision of the original findings, there WP (C) No.2003/2006 Page 7 of 27 was no other option available to the respondents except to confirm the same. It is stated that the action of the confirming authority instead of confirming the findings so returned by the GCM and taking administrative action against him is illegal and unjustified. It is submitted that the impugned action amounts to a third trial of the petitioner for the same charges by taking recourse to the so-called administrative action for which there is no sanction either under the Act or the Rules framed there under. It is submitted that the action is perverse and is only an example of command bias besides being malicious. 7. The petitioner has also relied upon the following Judgments of different High Courts to support his case; (i) Subedar Surat Singh Vs. UOI ( AIR 1970 J&K 179) (ii) Dharam Pal Vs. Chief of Army Staff (1978 Lab IC 9) and (iii) J.S. Kang Vs. UOI, 1987 Lab IC 1839. 8. It is also his case that the impugned action is barred by limitation under Section 122 of the Army Act which prescribes limitation of three years from the date of offence or at best form the date of the knowledge of the offence for taking disciplinary proceedings against an accused. In the present case the period of three years commenced with effect from 6th October, 1995 when a Court of Inquiry was instituted and is therefore unsustainable in law. To support the plea of limitation the petitioner has relied upon the case of Major Radha Krishnan Vs. UOI, (1996) 3 SCR WP(C) No. 2003/2006 Page 8 of 27 837. It is also submitted that the action of the respondents not only suffers from the vice of double jeopardy but is also contrary to the policy letter of the Army Headquarter dated 5th January, 1989 laying down the guidelines for issuing Censure. Reliance has been made upon paragraph 5 of the aforesaid policy letter which reads as under: “5. Attention is invited to Para 42 of the Regulations for the Army, 1962, which stipulates that persons committing offences involving moral turpitude, fraud, theft, dishonesty and culpable negligence involving financial loss to public or regimental property must be tried by a Court Martial or prosecuted in a Civil Court. Such cases will not be disposed of summarily or by administrative action.” It is submitted that it was not a case covered by the aforesaid paragraph. 9. It is stated that even though the award of censure does not debar a person from being considered for promotion, yet it is taken cognizance of while looking to the officer‟s overall record of service in assessing his performance. A recordable censure writes off the officer‟s career by such an order. It is thus pleaded that on account of the impugned award Selection Board No. 4 was totally prejudiced against the petitioner and delayed his promotion till 17th December, 2002 though it was due much earlier. 10. On the other hand, the respondents have opposed the petition by filing a counter affidavit. It has been stated that the WP (C) No.2003/2006 Page 9 of 27 petition is completely misconceived, denying that the impugned order issued by the General Officer Commanding is an order which can be termed as unprecedented one way or the other. It has been submitted that every sentence “holding the accused guilty or not guilty” by a Court Martial is liable to be revised in accordance with Section 160 of the Army Act. However, when the proceedings are not confirmed, the competent authority can proceed under section 19 of the Army Act read with Army Rule 14(2). It is submitted that Section 122 of the Army Act is not applicable in the present case being a case of administrative action. It was pointed that the Judgment delivered in the Case of Radha Krishnan (supra) stands overruled by the Supreme Court in the case of UOI Vs. Harjeet Singh Sandhu reported in JT 2001 (4) Sc 597. Besides placing reliance on the Judgment of the Apex Court in Harjeet Singh Sandhu‟s case (supra), reliance has also been placed upon the decision given by the Apex Court in the case of Chief of Army Staff and Ors. Vs. Major Dharam Pal Kukrety as reported in [(1985) 2 SCC 412] and another Judgment delivered by the Apex Court in Union of India and Ors. Vs. J.S.Sivia, MLJ 1996 SC 3 where award of censure has been held as Custom of Service. 11. It may be appropriate to take note of following paragraphs of the judgment in the case of Major Dharam Pal Kukrety (supra) as observed after taking note of the provisions of the Army Act in WP(C) No. 2003/2006 Page 10 of 27 Chapter IV and rule 14 of the rules framed thereunder ; “13. It is pertinent to note that under Section 160 the confirming authority has the power to direct a revision of the finding of a court-martial only once. There is no power in the confirming authority, if it does not agree with the finding on revision, to direct a second revision of such finding. In the absence of any such confirmation, whether of the original finding or of the finding on revision, by reason of the provisions of Section 153 the finding is not valid. Therefore, in the case of the Respondent, the finding of the general court-martial on revision not having been confirmed was not valid. Could he, therefore, be tried again by another court-martial on the same charges ? Under Section 121, a person subject to the Army Act, who has been acquitted or convicted of an offence by a court-martial or by a criminal court, is not liable to be tried again for the same offence by a court-martial. It can well be argued that by reason of the provisions of Section 153 under which no finding or sentence of a general, district or summary general court-martial is valid except in so far as it is confirmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court-martial until the finding of "guilty" or "not guilty" in his case has been confirmed by the confirming authority. There is, however, no express provision in the Army Act which empowers the holding of a fresh court-martial when the finding of a court-martial on revision is not confirmed. 14. The decisions of three High Courts may be referred to in this connection. The first decision is that of Allahabad High Court in G.B. Singh v. Union of India and Ors. [1973] Crl. L.J. 485. That was a case under the Air Force Act, 1950 (Act No. 45 of 1950). In that case, the officer was found guilty by a general court-martial and sentenced to be dismissed from service. The finding and sentence was referred to the confirming authority. The confirming authority passed an order reserving the same for confirmation by superior authority and forwarded the proceedings to the Chief of the Air Staff. The Chief of the Air staff passed an order not confirming the finding or sentence awarded by the court- martial. The finding and sentence which were not confirmed by the Chief of Air Staff were promulgated after the lapse of about ten months. A fresh general court-martial was convened to retry the office. On enquiry the officer was informed that WP (C) No.2003/2006 Page 11 of 27 the findings and sentence of the general court- martial had not been confirmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the officer. After considering the relevant provisions of the Air Force Act and the Air Force Rules, 1969, which are in part materia with the corresponding provisions of the Army Act and the Army Rules, a learned Single Judge of the Allahabad High Court held that the effect of non-confirmation was that though the finding and sentence passed by the court-martial existed, they could not be put into effect unless they had been confirmed under the provisions of the Air Force Act, and that in such a case Section 120 of the Air Force Act (which is in pari materia with Section 121 of the Army Act) barred a second trial by a court-martial. In Major Manohar Lal v. The Union of India and Anr. 1971 (1) S.L.R. 717 the petitioner was tried by a general court-martial which found him not guilty. The General Officer Commanding-in-Chief held the proceedings to be null and void on the ground that one of the members of the court-martial was of the rank of Captain and was thus lower in the rank to the petitioner and no certificate had been recorded by the officer convening the court-martial as required by Rule 40(2) of the Army Rules, that an officer of the rank of the petitioner was not available and he, therefore, ordered a retrial. A learned Single Judge of the Punjab and Haryana High Court held that under the Army Act and the Army Rules, a Captain was eligible to be made a member of a general court-martial and the mere fact that the convening officer did not append the certificate that an officer of the rank of the petitioner was not available did not make the Constitution of the general court martial invalid or the finding given by it to be without jurisdiction or the proceedings of the trial before it to be null and void. He further held that as the petitioner had no say in the Constitution of the general court-martial and had suffered the trial before it, the proceedings could not have been declared null and void on a highly technical ground. The learned Single Judge, therefore, came to the conclusion that the second trial of the petitioner was without jurisdiction and the sentence imposed upon him in consequence of that trial was wholly illegal. In J.C. 13018 Subedar Surat Singh v. The Chief Engineer Projects (Beacon). Co. 56 A.P.O. A.I.R. 1970 J. & K. 17. A Division Bench of the Jammu and Kashmir High Court held that though every finding of a general court-martial, whether of acquittal or of guilt, cannot be recorded as valid unless it is WP(C) No. 2003/2006 Page 12 of 27 confirmed by the competent authority, the Legislature could not have reasonably intended that an officer convening a general court martial can go on dissolving such court-martials and re reconstituting them ad infinitum until he obtained a verdict or a finding of his own liking. The Division Bench further held that such a position would not only be against public policy and the ancient maxim "nemo debet bis vexari pro una et eadem causa" (no man ought to be twice vexed for one and the same cause) but would also reduce the provisions of the Army Act to a mockery and give an appearance of mala fides. According to the Jammu and Kashmir High Court, in such a case the proper course for the confirming authority would be to refer the case to its superior authority for confirmation. 15. This being the position, what then is the course open to the Central Government or the Chief of the Army Staff when the finding of a court-martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court-martial is not permissible. The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government of the Chief of the Army Staff to have recourse to that Rule in the first instance without directing trial by a court-martial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court-martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word "inexpedient" as meaning "not expedient; disadvantageous in the circumstances, unadvisable, impolitic". The same dictionary defines "expedient" inter alia as meaning "advantageous; fit, proper, or suitable to the circumstances o the case". Webster's Third New International Dictionary also defines the term "expedient" inter alia as meaning "characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances". 16. In the present case, the Chief of the Army Staff had, on the one hand, the finding of a general court- martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the Respondent in the service was WP (C) No.2003/2006 Page 13 of 27 undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a definitive pronouncement of this Court. In such circumstances, to order a fresh trial by a court-martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law.” 12. Some of the paragraphs in case of Harjeet Singh Sandhu (supra) which also throws light on the controversy relevant for our decision are reproduced hereunder: “35. As the term used in sub-rule (2) of Rule 14 is `impracticable' and not `not reasonably practicable', there is more an element of subjectivity sought to be introduced by this provision in the process of arriving at the satisfaction, obviously because the rule is dealing with the