Case: U.O.I.  Vs. Charanjit S. Gill

The relevant and almost admitted facts for determining the controversy in this appeal are that the first respondent joined the Indian Army as a Commissioned Officer in 1971 and was promoted to the rank of Major in 1984. He was posted at Fort William, Calcutta in April, 1990. While attached with 235 IWT company, Engineers, the respondent No. 1 was alleged to have absented himself without leave on four occasions which was an offence under Section 39(1) of the Army Act. He was also charged under Section 63 of the Army Act for violation of good order and military discipline. A GCM was convened by the General Officer Commanding (GOC), Bengal Area by his order dated 23rd December, 1991. The court martial comprised of Col. Rabinder Bahadur Singh as Presiding Officer and Col. Kunjachen Puthenveetil Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge-Advocate General was appointed as Judge-Advocate in the Court marital proceedings. The respondent No. 1 was found guilty of four out of five charges by the GCM and was sentenced to forfeit six months service for the purposes of promotion. The order of conviction and sentence was, however, made subject to the confirmation by the Confirming Authority to whom the proceedings were transmitted by the GCM in terms of Section 153 of the Army Act. The Confirming Authority felt that the sentence awarded to the respondent No. 1 by the GCM was grossly inadequate and inappropriate which required review. The order of the Confirming Authority dated 2.5.1992 was conveyed to the GCM which on 19.5.1992 upon, re-consideration revoked the earlier sentence and passed a fresh order of sentence of dismissing the respondent No. 1 from service. This order was also made subject to confirmation by the Confirmingby the order of conviction and sentence passed by the GCM, the respondent No. 1 filed writ petition being CO No. 7102(W) of 1992 in the High Court at Calcutta praying therein for quashing orders dated 23.12.1991, 10.2.1992, 2.5.1992 and 19.5.1992. At the time of admission of the writ petition a learned Single Judge of the High Court passed an interim order on 29th May, 1992 directing the appellants not to confirm the impugned order of dismissal and not to take any steps against respondent No. 1, without the leave of the Court. The interim order was, however, vacated by the learned Single Judge on 16.12.1996 allowing the Confirming Authority to complete the process of confirmation and passing appropriate orders. Consequently, the GCM proceedings were confirmed on 17.12.1996 and the respondent No. 1 was dismissed from service on 18.12.1996. The writ petition filed by the first respondent was dismissed by the learned Single judge on 3rd July, 1997. Feeling aggrieved by the judgment of the learned Single Judge the respondent No. 1 preferred appeal being MAT No. 218197 before the Division Bench which was allowed vide the order impugned in this appeal.

Reasoning:
It is contended by Shri Rawal, learned ASG that a person fit to be appointed asis such officer who does not suffer from any ineligibility or disqualification in terms of Rule 39 alone. It is further contended that Rule 40 does not refer to disqualifications. We cannot agree with this general proposition made on behalf of the appellant inasmuch as(2) of Rule 40 specifically provides that members of afor trial of an officer should be of a rank not lower than that of the officer facing the trial unless such officer is not available regarding which specific opinion is required to be recorded in the convening order. Rule 102 unambiguously provides that "an officer who is disqualified for sitting on a court martial shall be disqualified for acting as ain a court martial". A combined reading of Rules 39, 40 and 102 suggest that an officer who is disqualified to be a part of court martial is also disqualified from acting and sitting as aat the court martial. It follows, therefore, that if an officer lower in rank than the officer facing the trial cannot become a part of the court martial, the officer of such rank would be disqualified for acting as aat the trial before a GCM. Accepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the Court in(2) of Rule 40.14. Arguments of the learned ASG, if analysed critically, and accepted would mean that in effect and essence no disqualification or eligibility can be assigned to any officer in becoming aStretching it further it can be argued that as Rule 40 does not refer to the ineligibility or disqualification of an officer to be aeven an officer below the rank of a Captain can become a member of the court martial for the trial of a Field Officer as bar of(3) of Rule 40 is not applicable. Such an interpretation is uncalled for and apparently contradictory in terms.15. The purpose and object of prescribing the conditions of eligibility and qualification along with desirability of having members of the court martial of the rank not lower than the officer facing the trial is obvious. The law makers and the rule framers appear to have in mind the respect and dignity of the officer facing the trial till guilt is proved against him by not exposing him to humiliation of being subjected to trial by officers of lower in rank. The importance of theas noticed earlier being of a paramount nature requires that he should be such person who inspires confidence and does not subject the officer facing the trial to humiliation because the accused is also entitled to the opinion and services of theAvailing of the services or seeking advise from a person junior in rank may apparently be not possible ultimately resulting in failure of justice.16. It has been argued that as officers of the same rank or higher in rank than the officers facing the trial in court martials are not available, an interpretation as rendered by the impugned judgment would render the holding of court martials impossible. Such an argument is to be noticed for only being rejected.(2) of Rule 40 itself gives a discretion to the convening officer who is authorised to appoint a member of thete who is lower in rank than the officers facing the trial, if he is of the opinion that officer of such rank is not (having due regard to the exigencies of the public service) available, subject to a further condition that such opinion is required to be recorded in the convening order. It implied, therefore, that the provisions of(2) of Rule 40 are not mandatory because they give a discretion to appoint a member of the court martial or awho is lower in rank than the officer facing the trial under the circumstances specified. Rule 39, admittedly, has no exception and is thus mandatory.17. Further relying upon Note 2 mentioned at the foot of Rule 102 providing, "as to disqualification of aCAR 39(2)", the learned ASG submitted that the said Note having the force of law has been followed by the Army authorities from the very beginning and thus disqualifications of aIt is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All Rules and Regulations made under the Act are required to be published in the official gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act. Rules and Regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the Rules and Regulations framed thereunder. The administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by ato the effect that a person lower in rank shall not be a member of the court martial or be athe insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule or Regulation. It appears that the `notes have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of theconducted against the respondent No. 1, we are of the opinion that thethough not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to theIn other words aappointed with theshould not be an officer of a rank lower than that of the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public service) available and the opinion regardingis specifically recorded in the convening order. As in the instant case,was lower in rank to the accused officer and no satisfactionopinion in terms of(2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate freshproceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court.21. Fears have been expressed that in case the proceedings of theare quashed on the ground of thebeing lower in rank than the officer facing trial before themany judgments delivered, orders passed and actions taken by varioustill date would be rendered illegal as according to appellants a number ofhave already been held and conducted under the assumption of the disqualification not being referable to Rule 40(2), on the strength of Note 2 attached to Rule 102 of the Rules. In that event, it is apprehended, aof new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also result in great hardship to all those whose rights have already been determined. Such an apprehension is misplaced in view of "de facto doctrine" born out of necessity as acknowledged and approved by various pronouncements of the Courts.In view of this position of law the judgments rendered by thewhich have attained finality cannot be permitted to beon the basis of law laid down in this judgment. The proceedings of anyif already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification ofon the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons asls, if so required.