[2008] 12 S.C.R. 1026

RAJIV ARORA "1c-- V.

UNION OF INDIA & ORS. (Civil Appeal No.5306 of 2008)

AUGUST 29, 2008

[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

~ Air Force Rules; R.43:-

Court Martial - Charges of misconduct - Nonc examination of witnesses - Effect of - Held: No reason has

 been assigned as to why the named witnesses who only could prove the charge had not been examined in the Court Martial proceedings - Since there has been a gross violation of the principles of natural justice, the High Court should have D exercised its power of judicial review - Before convening a Court Martial proceeding, legal requirement therefor must be satisfied - Satisfaction must be based on a finding that :-r

evidence justified a trial on these charges - An order passed " without any evidence must be held to be perverse - Hence, E. the impugned order in regard to Charge Nos. 1, 2, 3 cannot be sustained as witnesses have not been examined to prove these charges - Evidence - Principles of natural justice - Compliance - Discussed.

Appellant, a commissioned Officer in the Indian Air Force, applied for premature retirement. A good conduct certificate was issued by the office. However, a -+

, I.. disciplinary proceeding was initiated against him and a charge-sheet was issued leveling 7 charges against him.

Later, a convening order was issued for trial by a General G Court Martial. He filed an application for substitution of the Judge Advocate. The application was rejected by the k authority. In the Court Martial proceedings the witness named in respect of first three charges have not been examined. Aggrieved, the employee filed a writ petition H 1026

RAJIV ARORA v. UNION OF !NOIA & ORS. 1027

-1

for quashing the proceedings before the Court Martial, A which was dismissed by the High Court. Hence the present appeal.

Partly allowing the appeal, the Court

HELD: 1.1A plea that no prejudice has been caused 8 .. to the petitioner due to non-examination of the said .

witnesses has been raised by respondents on the premise that a report had been furnished, inter alia, in respect of charge No.2 and the same has been produced in the summary of evidence. Whether prejudice has been c caused by non-examination of witnesses named in the charge-sheet is essentially a question of fact. An inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The charges framed as against the appellant were specific. The 0 '

misconducts said to have been committed are in relation

;. to the persons named therein. No explanation has been offered as to why the such witnesses could not be examined. PW-7 was the custodian of the report. He was not the maker thereof. Effective cross-examination could have been done as regards the correctness or otherwise E

of the report, if its contents were to be proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice

t. demand that the maker of the report should be examined, .. save and except in cases where the facts are admitted or F the witnesses are not available for cross-examination or similar situation. No reason has been assigned as to why the named witnesses who only could prove the charge had not been examined. Indisputably, they were the prime

,..,. witnesses. (Paras - 11,12,13) [1033, C-H; 1034, A-B] G

1.2 The High Court in its impugned judgment proceeded to consider the issue on a technical plea that no prejudice has been caused to the appellant by such nonexamination. If the basic principles of law have not been H

A complied with or there 'has been a gross violation of the

..... -

principles of natural justice, the High Court should have exercised its jurisdiction of judicial review. [para 14] [1034, C] . - 1.3 Before a court martial proceeding is convened,

B legal requirements therefor must be satisfied. Satisfaction of the officer concerned must be premised on a finding -{- that evidence justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse. The High Court was not correct c in opining that the appellant did not raise any objection in tll~ said proceedings. Hence, the impugned judgment in regard to the charge Nos.1, 2 and 3 cannot be sustained.

~ They are set aside accordingly. Since witnesses for proving charge Nos.4 to 7 have been examined, the General Court D Martial Proceedings shall continue in respect of charge

NosA to 7. (Paras - 14, 15 & 16) [1034, C-F] !

CIVILAPPELLATE.JURISDICTION: Civil Appeal No. 5306 " of 2008

E From the final Judgment and Order dated 16.11.2006 of the High Court of Delhi at New Delhi in WP ~C) No. 10271 of 2006

WITH

- ~- C.A. No. 5307 of 2008 :+ />. .

Major K. Ramesh (for Dr. Kailash Chand) for the Appellant.

Mohan Parasaran, ASG., P. Narasimhan and B. Krishna . . .

Prasad for the Respondents.

G The J'1dgment of the Court was delivered by ~

S.B.SINHA,_ J. 1 .. Leave granted. f . .

2. While appeal arising OJ.Jt of SLP (C) No. 3385 of 2007 is_ directed against a judgment and order dated 16.11.2006 H passed by the Div1sion Bench o'f the High Courfof Delhi whereby

RAJIV ARlSRA v. UNION OF INDIA & ORS. 1029

[S.B.SINHA, J.]

and whereunder a writ petition filed by the appellant herein

A , questioning the validity of a Court Martial proceeding has been dismissed, appeal arising out of SLP (C) No.5916 of 2007 is directed against the order dated 19th December, 2006 passed in the review petition.

,, 3. We may, before adverting to the contentions raised by 8

th.e parties, notice the admitted fact of the matter.

4. Appellant was commissioned in the Indian Air Force on _ or about 6.12.1985. He filed an application for posting to MOFT

Unit so as to enable him to fly MIG 21 Fighter Aircrafts. The c said application was rejected. He applied for premature retirement. A good conduct certificate was issued in his favour.

However, a disciplinary proceeding was initiated against him on or about 20.1.2006 in respect whereof a charge-sheet was

"FIRST

AN ACT PREJUDICIAL TO GOOD D

CHARGE

ORDER AND AIR FORCE

SECTION 65

DISCIPLINE

AIR FORCE

ACT, 1950 In that he

- At New Delhi on the night of 28/29 Apr. 05, E

improperly introduced himself as husband of Mrs. Ambika Singhania to Head Constable Ranbir and Constable

' Dharmendeer, Police Personnel of Delhi ' Police, knowing such statement.to.!>~ false.

SECON.D ·

BEHAVING IN A MANNER

CHARGE.

 UNBECOMING THE POSITION AND

SECTION 45

CHARACTER OF AN OFFICER

AIR,, FORCE In that he,

ACT, 1950

At New Delhi on the night of 28/29 Apr

05, used offensive language to Sh .

.. Dependra Pathak, Deputy Commissioner r of Police, South West District, New D.elhi and behaved in a riotous manner.

THIRD

INTOXICATION

CHARGE In that he

SECTION 48

AIR FORCE AT New Delhi on the night of 28/29 Apr

ACT, 1950 05, was found in a state of intoxication.

FIFTH

ASSAULTING HIS SUPERIOR

CHARGE

OFFICER

SECTION 40(a) AIR In that he, c FORCE ACT, At Gandhinagar (Gujarat), on 06 Jan.06, 1950 assaulted Gp.Capt. SS Kothari (16788) F (P) of Headquarter South Western Air Command, Indian Air Force.

SEXTH

BEHAVING IN A MANNER D

CHARGE

UNBECOMING THE POSITION AND

SECTION 45

CHARACTER OF AN OFFICER

AIR FORCE

ACT, 1950 In that he,

At Gandhinagar (Gujarat), on 06 Jan.06 E at Officers' Mess Headquarter South Western Air Command, Indian Air Force, used offensive language to 707519 Sergeant Narender Kumar, Catering Assistant of Headquarter South Western F Air Command, Indian Air Force and behaved in a riotous manner.

SEVENTH

ILL TREATING A PERSON SUBJECT

CHARGE

TO THE AIR FORCE ACT BEING HIS

SECTION 47

SUBORDINATE IN RANK G

AIR FORCE In that he,

ACT, 1950

(ALTERNATIVE At Gandhinagar (Gujarat), on 06 Jan.06, t l

TO SIXTH at the Officers' Mess Headquarter South

CHARGE) Western Air Command, Indian Air Force,

H ill-treated 707518 Sergeant Narender

RAJIV ARORA v. UNION OF INDIA & ORS. 1031

[S.B.SINHA, J.]

Kumar Catering Assistant of Headquarter A

South Western Air Command, Indian Air Force."

issued on 1.4.2006, the details whereof are as under :

5. A convening order was issued for trial by a General s

)..

Court Martial on 8.5.2006.

6. A contention was raised as regards sustainability of the first three charges, inter alia, on the ground that as the witnesses named therein were not produced for cross-examination, the c purpose of continuing the General Court Martial proceedings became frustrated. The same was rejected.

7. He filed an application for substitution of the Judge Advocate. It was also disallowed.

8. On the aforementioned premise, the writ petition was D ):

filed.

:.I.

,._:_ ..... '

9. Indisputably, the witnesses named in respect of first three charges were not examined. Was it violative of Rule 43

~ of the Air Force Rules is the question.

It reads as under :

"43. Convening of General and District Courts-martial :

(1) An officer before convening a general or district courts-

~ martial shall first satisfy himself that the charges to be F ,. tried by the court-martial are for offences within the meaning -( of the Act, and framed in accordance with Law, and that the evidence justifies a trial on those charges, he may amend the charges if he deems fit, and if not so satisfied order release of the accused, or refer the case to superior G ..... authority .

(2) He shall also satisfy himselfthat the case is a proper one to be tried by the description of court-martial he

p~poses to convene.

(3) The officer convening the court-martial shall appoint or detail the officers to form the court and may also appoint or detail such waiting officers as he thinks expedient. He may also where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.

(4) After the convening officer has appointed or detailed the officers to form a court-martial under Sub-rule (3), convening order of the court-martial and endorsement on the charge sheet for trial of the accused by the courtmartial may either be signed by the convening officer or by a staff officer on his behalf. The charge sheet on which the accused to be tried, the summary of the evidence and convening order for assembly of court-martial shall then be sent to the senior officer of court-martial and the Judge Advocate, if appointed."

Rule 57 of the Rules enables the accused to object to the charge, inter alia, on the ground that it does not disclose an offence under the Act or is not in accordance with these Rules.

10. It is not in dispute that such an objection was taken by

the petitioner, stating :

"It would be ironical and amazing to state that the cause of action relating to first three charges pertain to when I was posted at AIR HQ at New Delhi and for the last one year no cognizable action was taken against me. Now in the absence of any Court of Inquiry or formal marshaling of evidence in the Summary of Evidence, I am being prejudiced by facing these charges which have cropped up for the first time in the Court: Martial itself which is in violation of all the aforementioned AF Rules and the

principles of Natural Justice. Inter alia, the Fourth to Seventh Charges hv.ve been made out after analyzing the evidence in the Summary of Evidence but in the First three charges not a single prosecution witness had deposed in the

Summary of Evidence which is open to verification. I was

~--

RAJIV ARORA v. UNION OF INDIA & ORS. 1033

[S.B.SINHA, J.]

-:y also given a Good Conduct Certificate by my CO.

3. Therefore, I pray in all humility that the Convening ordes of the General Court Martial is not only based on sum ma~ of evidence but it also lacks jurisdiction as the only competent authority to convene the GCM is an officer f B the rank of Air Marshal in the appointment of AOC-in-C

~~ and this power and the warrant cannot be delegated to any Staff Officer as has been done in this instant case fof which there are enough case laws on the subject which the respected Judge Advocate is well aware of." c

11. Respondents never denied or disputed the said contentions. It is, however, urged that no prejudice has been caused to the petitioner due to non-examination of the said witnesses during the summary of evidence. Such a plea has been raised on the premise that a report had been furnished~ D inter alia, in respect of charge No.2 by Shri Dipendra Pathak )- and the same has been produced in the summary of evidence

~ by Sq. Ldr. T.S. Reddy who was the custodian thereof.

12. Whether prejudice has been caused by nonexamination of witnesses named in the charge-sheet is E essentially a question of fact. An inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The charges framed as against the appellant were specific. The misconducts were said to have been committed are in relation to the persons named therein. In the F proceedings, seven witnesses were examined, namely, Air ,.

Commander M. Bhandari, Sgt. Narender Kumar, Flight Lieutenant S. Dasgupta, Gp. Captain S.S. Kothari, Gp. Captain P.W. Amberkar, Gp. Captain S.C. Kabra and Sqn. Leader T.S.

Reddy.

13. No exp!anation has been offered as to why the concerned witnesses could not be examined. Shri Reddy, PW- 7 was the custodian of the report. He was not the maker thereof.

Effective cross-examination could have been 'done as regards the correctness or otherwise of the report, if the contents of H

A them were proved. The principles analogous to the provisions v- I of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the ;- -...c:_. - # witnesses are not available for cross-examination or similar ...

B situation. No reason has been assigned as to why the named witnesses who only could prove the change had not been examined. Indisputably, they were the prime witnesses.

14.The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice

c. has been caused to the appellant by such non-examination. If

the basic principles of law have not been complied with~_or there has been a gross violation of the principles of nafural justice, the High Court .. should have exercised its jurisdiction of . judicial review. Before a court martial proceeding is convened, D legal requir:ements therefor must be satisfied. Satisfaction of

toe officer concerned must be premised on a finding that ,,_

evidence justified a trial on those charges. Such a satisfaction ;.. cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse.

E 15.The High Court was also not correct in opining that the appellant did not raise any objection in the said proceedings. •..

16. We, therefore, are of the opinion that the impugned ) judgment in regard to the charge Nos.1, 2 and 3 cannot be F. sustained. The, y are set aside accordingly. It has not been -f, disputed that witnesses for proving charge Nos.4 to 7 have ...

~ been examined. The General Court Martial Proceedings shall continue in respect of charge Nos.4 to 7 and not in respect of charges No.1 to 3. Appeals are allowed to the above extent

G with costs. Counsel's fee. assessed at Rs.50,000/-.

S.K.S.

Appeal partly allowed.

r.

r..