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Landmark Indian Military Cases: Apex Court Judgements & Some Relevant Common Law Cases

Ed: Chandra Nath

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Copyright 2011 by Chandra Nath

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Contents
1 Major E. G. Barsay v. The State Of Bombay 1961 2 Ram Sarup v. The Union Of India 1963 3 Union of India v. Maj S K Sharma 1987 4 S.K. Rao v. Union Of India 1967 5 Delhi Police Est v. Lt Col S K Loraiya 1972 6 Capt Harish Uppal v. Union Of India 1972 7 O K Achudan Nair v. Union of India 1975 8 Maj Gen D.S. Nakara v. Union Of India 1982 9 Viswan v. Union Of India 1983 1 35 47 61 69 75 85 89 129

10 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985159 11 Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 173 12 Union of India v. Maj S K Sharma 1987 13 Vidya Prakash v. Union Of India 1988 14 Lt Col K D Gupta v. Unon of India 1988 15 Lt Col K.D. Gupta v. Union of India 1989 185 199 207 215

vi 16 S N Mukherjee v. Union Of India 1990 17 Ex-Hav Ratan Singh v. Union of India 1991 18 P Chandramouli v. Union Of India 1994 19 Union Of India v. R.K.L.D. Azad 1995

CONTENTS 223 251 255 261

20 Union Of India v. Major General Madan Lal Yadav 1996 265 21 Major Kadha Krishan v. Union Of India 1996 22 Major R.S. Budhwar v. Union Of India 1996 23 Anuj Kumar Dey & Anr vs Union Of India 1996 24 Union Of India And Others v. Major A. Hussain 1997) 281 287 297 305

25 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 319 26 Union of India v. Capt. A.P. Bajpai 1998 27 Union Of India v. Subedar Ram Narain 1998 28 Union of India v. Hav Clerk SC Bagari 1999 29 Union Of India v. Himmat Singh Chahar 1999 30 Union of India v. Sadha Singh 1999 31 Union Of India v. Charanjit S. Gill 2000 32 Sukhdev Singh Gill v. State Of Punjab 2000) 33 Union Of India v. R P Yadav 2000 34 Union Of India v. Harjeet Singh Sandhu 2001 35 Union Of India v. R.K. Sharma 2001 36 Union Of India v. P.D. Yadav 2001 331 339 345 351 355 359 381 387 395 419 427

CONTENTS 37 Union of India v. L.D. Balam Singh 2002 38 Union Of India v. Shivendra Bikaram Singh 2003 39 Jasbir Kaur v. Union Of India 2003 40 Union Of India v. Ashok Kumar 2005 41 Union Of India v. Ranbir Singh Rathaur 2006 42 Union of India v. Capt. Satendra Kumar 2006 43 Romesh Kumar Sharma v. Union of India 2006 44 Pradeep Singh v. Union Of India 2007 45 Union Of India v. S.P.S. Rajkumar 2007 46 Sheel Kr. Roy v. Secretary M/O Defence 2007 47 Ram Sunder Ram v. Union of India 2007 48 Union of India and another v. SPS Vains 2008 49 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008 50 Bachan Singh v. Union of India 2008 51 Union of India v. V. N. Singh 2010 52 Arun Raj v. Union Of India 2010

vii 447 457 475 481 491 501 505 511 517 521 529 535 543 551 581 593

53 Charanjit Lamba v. Commndng.Ocer,Southern Command 2010 603 54 J.S. Sekhon v. Union Of India 2010 55 Place Holder 56 Place Holder 57 Place Holder 609 615 617 619

viii 58 Place Holder 59 Place Holder 60 OCallahan v. Parker, 395 U.S. 258, 265 (1969)

CONTENTS 621 623 625

Preface

CONTENTS

Chapter 1

Major E. G. Barsay v. The State Of Bombay 1961


Major E. G. Barsay v. The State Of Bombay on 24 April, 1961 Equivalent citations: 1961 AIR 1762, 1962 SCR (2) 195 Bench: Subbarao, K. PETITIONER: MAJOR E. G. BARSAY v. RESPONDENT: THE STATE OF BOMBAY RF 1971 SC1120 (20) R 1977 SC2433 (9) D 1979 SC1255 (8) RF 1982 SC1413 (39) R 1986 SC1655 (7) RF 1992 SC 604 (125) ACT:

Criminal Trial - Criminal Misconduct - Army Ocer tried by DATE OF JUDGMENT: Special Judge-jurisdiction-Sanction for Prosecution given by Deputy 24/04/1961 Secretary-Validity-Investigation by BENCH: Inspector of Police, Special PoSUBBARAO, K. lice Establishment, Delhi-LegalityBENCH: Conspiracy-Public Servants charged with others-Legality of chargeSUBBARAO, K. Approver-Corroboration-Prevention DAYAL, RAGHUBAR of Corruption Act, 1947 (11 of 1947). CITATION: ss. 5A, 5(2), 6(r)(a)-Army Act, 1950 1961 AIR 1762 1962 SCR (2) 195 (46 of 1950), ss. 52, 70, 125, 127Criminal Law (Amendment) Act, CITATOR INFO : 1952 (46 of 1952), ss. 6, 7, 8, 9R 1963 SC1850 (59) Constitution of India, Art. 77. R 1966 SC1273 (20) HEADNOTE: R 1968 SC1323 (7) The appellant and ve other perRF 1971 SC 500 (17)

Major E. G. Barsay v. The State Of Bombay 1961 Held, that the Special judge had jurisdiction to try the appellant for the oences charged. The Army Act does not bar the jurisdiction of criminal courts in respect of acts or omissions which are punishable under the Army Act as well as under any other law in force. The oences charged were triable both by the Special judge and by a Court Martial. In such cases s. 125 of the Army Act provides that if the designated ocer decides that the proceedings should be before a Court Martial he may direct the accused to be detained in military custody. But in the present case the designated ocer bad not exercised his discretion and the Army Act was not in the way of the Special judge exercising his jurisdiction. Rule 3 made under s. 549, Code of Criminal Procedure for persons subject to military law was applicable only to magistrates and not to a Special judge who is not a magistrate within the meaning of r. 3. Besides, s. 7 of the Criminal Law (Amendment) Act, 952, provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law the oences specied in s. 6(1) shall be triable by Special judges only. The words any other law included the Army Act also. The oences for which the appellant was convicted were oences specied in s. 6(1) and were exclusively triable by a Special judge. Held, further, that the sanction for the prosecution of the appellant was a good and valid sanction. Article 77 of the Constitution which pro-

sons, three of them not being public servants, were charged with criminal conspiracy to dishonestly or fraudulently misappropriate or convert to their own use military stores and with dishonestly and fraudulently misappropriating the same. Sanction for prosecution of the accused was given by a Deputy Secretary on behalf of the Central Government. The accused were tried by a Special judge. The main evidence led was that of one L, a security ofcer., who had been asked to join the conspiracy and who had joined it with a view to have the oenders apprehended. The Special judge convicted all the accused persons. On appeal the High Court conrmed the conviction of the appellant and one other accused now dead and acquitted the other four accused persons holding that the evidence of L was corroborated in material particulars in respect of the appellant and one other accused only. The appellant contended:- (i) that the appellant who was subject to the Army Act could only be tried by a Court Martial and the Special judge had no jurisdiction to try him, (ii) that the sanction to prosecute was void as it was not expressed to be made in the name of the President, (iii) that the investigation by the Inspector of Police, was illegal, (iv) that there could be no legal charge of conspiracy between accused who were public servants and accused who were not, and (v) that L was a wholly unreliable witness whose testimony ought to have been rejected totally and no question of its corroboration arose.

3 vides that all orders of the Central Government shall be expressed to be in the name of the President is only directory and not mandatory. Where an order was not issued in strict compliance with the provisions of Art. 77 it could be established by extraneous evidence that the order was made by the appropriate authority. In the present case there was uncontroverted evidence which established that the order of sanction was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him under the rules delegating such power to him. consent in respect of all the members of the establishment. It was not necessary that the consent be given to every individual member of the Establishment. H.N. Rishbud & Inder Singh v. State of Delhi, [1955] 1 S.C. R. 1150, followed,

Held, further, that there was no defect in the charges. It was not illegal to charge public servants and persons who were not public servants with the criminal conspiracy to do certain acts for which all of them could not be convicted separately. Though all the accused were not liable for the individual oences, they were all guilty of the oence of conThe State of Bombay v. Pu- spiracy to do illegal acts. rushottam jog Naik, [1952] S.C.R. Held, further, that the evidence 674, Dattareya Moreshwar Pan- of L was reliable and that it was garkar v. The State of Bombay, corroborated in material particulars [1952] S.C.R. 612, J. K. Gas Plant so far as the appellant was conManufacturing Co., Ltd. v. The cerned. Though L was not an accomKing Emperor, [1947] F.C.R. 141, plice, he was an interested witness P. Joseph John v. The State of and required corroboration. The evTravancore-Cochin, [1955] 1 S.C.R. idence of an approver and the cor1011 and Ghaio Mall & Sons v. The roborating pieces of evidence could State of Delhi, [1959] S.C.R. 1424, not be treated in two dierent comapplied. partments; but had to be considered Held, further, that though the conditions of investigation by the Inspector of Police as laid down in S. 5A, Prevention of Corruption Act were not complied with the trial. was not vitiated by the illegality as it did not result in any miscarriage of justice. The powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of offences in the State of Bombay had been duly extended by a notication of the Government of Bombay dated August 13, 1949, giving a general together. Though some parts of the evidence of L were not accepted, his version was broadly accepted in regard to the conspiracy and the manner in which articles were smuggled out. Sarwan Singh v. The State of Punjab, [1957] S.C.R. 953, explained. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2 of 1958. Appeal from the judgment and

Major E. G. Barsay v. The State Of Bombay 1961

order dated July 27, 1957, of the mand, were his superior ocers. AcBombay High Court in Criminal Ap- cused No. 1, Major Barsay, was secpeal No. 254 of 1957. WITH ond in command in the Depot and Criminal Appeal No. 81 of 1960. was in charge of stores section; he was subordi- nate to Col. Rao. MaAppeal by special leave, from the jor Nag, another subordinate to Col. judgment and order dated July 27, Rao, was in charge of the administra1957, of the Bombay High Court, in tion of the Depot. One Capt. Pratap Criminal Appeals Nos. 255 and 257 Singh was the Security Ocer in the of 1957. Depot; but, during the period in M.H. Chhatrapati, Ravindra question, one Lawrence was acting as Narain, O. C. Mathur and J. B. the Security Ocer in place of Capt. Dadachanji, for the appellant (in Pratap Singh. Kochhar, accused No. Criminal Appeal No. 2 of 1958). 2, who was on leave from October 25, B.K. Khanna and D. Gupta, for 1954, was recalled to duty by accused the respondent in Criminal Appeal 2 No. 1 and was put in charge of kit of 1958) and appellant (in Criminal stores in the Depot. Avatar singh, Appeal No. 81 of 1960). Ram Lal accused No. 3, who was working in Anand and S. N. Anand, for respon- the Unit Sub Park, was transferred dent No. 1 (in Criminal Appeal No. to the Kit Stores by accused No. 1 during the absence on leave of Col. 81 of 1960). B.S. Gheba, for respondent No. 2 Rao. Accused No. 4, Saighal, was (in Criminal Appeal No. 81 of 1960). an Ex-Col. and was at one time the Station Commandant of the Depot; 1961. April 24. The Judgment of after retirement he had been staythe Court was delivered by SUBBA ing in a bungalow at a short distance RAO, J.-These two appeals-one led from mile No. 92/7 on the Poonaby accused No. 1 by certicate and Bombay Road. Accused No. 5, Ramthe other led by the State of Mahachand Gangwani, was a refugee from rashtra by special leave-against the Sind and he was running a hotel at judgment of the High Court of BomLonnavala. Accused No. 6, Debay conrming the conviction and vichand, and one Khemchand, who sentence of accused No. 1 and setting is absconding, are sons of accused aside the convictions and sentences of No. 5. Accused Nos. 4 and 5 were accused Nos. 2 and 3. friends and they were also partners The prosecution case may be along with one Bhagwan Parshuram briey stated. There was a depot of Bombay in The Bombay Loncalled the Dehu Vehicle Depot in avala Disposal Syndicate. There which military stores were kept. In were large consignments of Kits in the year 1944 Col. Rao, the Chief Shed No. 48 of Kit Stores which were Ordnance Ocer, was in charge of unitemized and unaccounted for in the Depot; Col. Sindhi, the Station the books of the Depot. The accused Commandant, and Brig. Wilson, the entered into a conspiracy to smuggle Brigadier, Ordnance, Southern Com- out some of the said stores and to

5 make an illegal gain by selling them of the conversation accused No. 1 at Bombay through accused No. 4. suggested to Lawrence that valuable The brain behind the conspir- stores in Shed No. 48 might be smugacy was accused No. 1. The plan gled out and the large amounts exchalked out to implement the ob- pected to be realized from their sale ject of the conspiracy may be briey might be shared between the conspirstated. Col. Rao was to proceed ators, including Lawrence. Presumon leave sometime in December 1954 ably to put him in a suitable frame of and Maj. Barsay, being the next in mind to accept the suggestion to becommand, was naturally to succeed come a conspirator, he also hinted to him as Chief Ordnance Ocer of the Lawrence that Col. Rao suspected Depot during the absence on leave that he (Lawrence) had a hand in of Col. Rao. The smuggling of the the theft. The scheme outlined by goods out of the Depot was there- accused No. 1 was conrmed by acfore arranged to take place during cused No. 2 a few days later. Accordthe period when Maj. Barsay was ing to the plan chalked out by Maj. acting as the Chief Ordnance O- Barsay, he was to appoint a board cer of the Depot. Col. Rao went of ocers for itemization of Speon leave from December 11, 1954. cialist Boxed Kits in Shed No. 17 Kochhar, the second accused, who and once the board started functionwas in charge of the Fit- Park, pro- ing there would be shuttle of trucks ceeded on two months leave of ab- moving from Shed No. 48 to Shed sence with eect from October 25, No. 17 and vice versa and during 1954, but he was recalled by accused the movements of those trucks two No. 1 and posted as ocer in charge or three trucks loaded with valuable of Kit Stores on November 25, 1954. stores were to be moved out through Accused No. 3, Avatarsingh, was the main gate of the Depot on the working in the Unit Sub Park, and pretext of being back-loaded to the he too was shifted from there to the Return Stores Sub-Depot. He was Kit Stores on or about November 22, also to take Col. Rao to Shed No. 1954. These two, postings were made 48 and explain to him that the boxes by accused No. 1 without the con- contained very few items so that he sent or knowledge of Col. Rao when too, on his return from leave, would he had gone to Delhi on some tempo- not be surprised at the nal result of rary duty for ten days from Novem- the itemization. It was also agreed ber 20, 1954 to November 30, 1954. that the scheme should be pushed On the night of December 1, 1954, through tentatively on December 16, there was a theft of various articles 17 and 18, 1954. But, for one reain the Unit Park of the Depot. Ac- son or other, it could not be pushed cused No. 1 called in Lawrence, the through during those days, as Capt. acting Security Ocer, ostensibly to Kapoor was frequently visiting the discuss with him certain matters re- scene of itemization. garding the theft. During the course On December 18, 1954, a meet-

Major E. G. Barsay v. The State Of Bombay 1961 On the evening of December 19, 1954, Lawrence went to the house of Saighal and the latter showed him the spot where the stores were to be transshipped. Thereafter, after taking his dinner, Lawrence went to the Depot at 9 p.m. The Orderly Ocer at the Depot, one Shrinivasan, informed Lawrence that Jamadar Kundanlal, who was to have been on duty at the main gate on December 20, 1954, was sick and had taken 3 days leave of absence on medical grounds and that Maj. Barsay had sent a chit to him asking him to send Lawrence to the bungalow of Maj. Barsay. Lawrence went to the bungalow of Maj. Barsay, but could not meet him; and then Lawrence went to the residence of Jamadar Kundanlal and tried to persuade him to attend to his duty at the main gate on December 20, 1954. On December 20, 1954, at about 9.15 a.m. Maj. Barsay called Havaldar Pillay to his oce and asked him to allot a new vehicle to the Kit Stores and to detail driver Ramban on that vehicle. Havaldar Pillay did accordingly. At about 10 a.m., Maj. Barsay called Maj. Nag and Lawrence to his oce and, in the presence of Maj. Nag, he issued orders to Lawrence to go to Dehu Ordnance Depot (D.O.D.) personally and get the re hoses. After Maj. Nag left the place, Lawrence told Maj. Barsay that Jamadar Kundanlal had reported himself to be sick and had taken leave of absence and that one Godse was at the main gate. Maj. Barsay suggested to Lawrence that 26 Jamadar Jogendrasingh may

ing took place at Maj. Barsays bungalow and accused Nos. 1 to 4 and Lawrence attended that meeting. At that meeting the details of working out the plan to be carried out on December 20, 1954, were nalized. Kochhar reported to the conspirators that he had briefed Jamadar Kundanlal, and Lawrence told them that, as per Kochhars suggestion, he had already detailed Jamadar Kundanlal on day duty at the main gate during the next week. Maj. Barsay agreed to get a driver of his condence detailed on one of the trucks to be allotted to the Kit Stores and he offered to give orders to Kochhar on the morning of December 20, 1954, in the presence of all, to transfer the itemized kits to Shed No. 26 ostensibly for the purpose of conditioning and preservation. That would enable accused No. 3, Avatar Singh, to load the stores from Shed No. 17. The rst trip was to be of ordinary stores in which the conspirators were not interested and the second trip was to be of valuable stores which were to be smuggled out of the gate. Maj. Barsay also undertook to call Maj. Nag to his oce on December 20, 1954 and issue orders in the presence of Maj. Nag to Lawrence to go to Dehu Ordnance Depot (D.O.D.) and get the re hoses which were sent there for repairs. Kochhar agreed to prepare a bogus voucher on Monday (December 20, 1954) morning, and Lawrence undertook to provide a bogus gate-pass. Accused No. 4, Saighal, agreed to keep a lorry and some laborers present near his bungalow for transshipping the stores.

7 be put at the main gate in place of Godse, and he informed him that he had xed upon Ramban as the driver of the vehicle in which the stores were to be smuggled out. At about 11 a.m. Lawrence met Maj. Barsay and Kochhar near, Shed No. 48 and was told by Maj. Barsay that the scheme was to proceed according to schedule. Kochhar and Lawrence then went to Shed No. 17 where Avatarsingh, accused No. 3, was present. Kochhar told Avatarsingh that he had not prepared any voucher as it was not necessary. Lawrence had brought an old gate-pass with him and he handed over the same to Avatarsingh. Truck No. D. D. 5963 was, in the rst instance, loaded with ordinary stores and was sent to Shed No. 26. In the meanwhile, Lawrence went to the Depot and asked Godse to take over at the Unit Sub Park gate and he ordered Jamadar Jogendrasingh to take over from Godse at the main gate. As Jamadar Jogendrasingh refused to accept the gate-pass to be produced by the driver and pass out the vehicle without making an entry regarding the same in the Vehicles In and Out Register, Lawrence gave him a written order to that effect with instructions not to show or hand over that written order to anybody except himself on his return or to Maj. Nag. At about 1 p.m. Maj. Barsay told Lawrence that he had become apprehensive of the scheme succeeding, as he had seen the Station Commandants car near the Barrack Oce and, therefore, he told him not to take out the vehicle till that car had gone out. Lawrence agreed and went to Shed No. 17 where Avatarsingh was present, and Avatarsingh got the truck loaded and handed over the bogus gate-pass and the dutyslip of the vehicle to Ramban, and he also asked Lawrence to get into the truck there itself instead of near the main gate as per the plan. After Lawrence got into the truck, it proceeded towards the main gate at about 1.40 p.m. At the main gate, Ramban gave the duty-slip of the vehicle and also the bogus gate-pass to Jamadar Jogendrasingh and the latter told Lawrence that Maj. Barsay had left a message for him not to do it on that day. Lawrence, ignoring the said directions, took the vehicle out of the gate. At a spot near Talegaon there was a civilian lorry bearing No. BYL 3289 kept ready by accused Nos. 4, 5 and 6 for transhipping the stores, and to that place the truck was driven. The two lorries were parked back to back, and accused No. 6. and the absconding accused Khemchand and two others started transhipping the stores from the military lorry to the civilian lorry. At that stage, the police ocers appeared at the scene and prevented further fullment of the plan of the accused. It is a further case of the prosecution that Lawrence ostensibly joined the conspiracy with a view to bring to book the culprits and was informing the superior ocers and the police orally and in writing from time to time as and when the important events were taking place. As some argument was made on the basis of the charges, it would be convenient at this stage to read

Major E. G. Barsay v. The State Of Bombay 1961 you accused Nos. 1, 2, 3,4, 5, 6 and another (Khemchand Ramchand Gangawani), between about October 1954 and December 1954 in pursuance of the abovesaid conspiracy jointly and in furtherance of the common intention of all of you, you accused No. 1, Major Barsay, Ociating Chief Ord. nance Ocer, and you accused No. 2, H. S. Kochbar, Civilian Group Ocer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, Civilian Store Keeper, and you accused No. 4, W. S. Saighal, released Lt. Col., and you accused No. 5, Ramchand Pahalajrai Gangawani, and you accused No. 6, Deviprasad Ramchand Gangawani, did on 20th of December 1954, dishonestly or fraudulently his. appropriate with a common intention or convert for your own use Government property in the form of Military Stores described in detail in Schedule A appended herewith, entrusted to or under the control of the rst three accused, namely, Major E. G. Barsay, H. S. Kochhar and Avatarsingh Seva Singh, who were public servants and thereby committed an oence under Section 5(1)(c), punishable under section 5(2), of the Prevention of Corruption Act, read with Section 34 of the Indian Penal Code and within my cognizance. (3) That you accused Nos. 1, 2,3, 4, 5, 6 and the absconding accused Khemchand Ramchand Gangawani, in pursuance of the abovesaid conspiracy, jointly and in furtherance of the common intention of all of you, did by corrupt or illegal means by abusing their position as public servants, obtained for yourselves or for any other persons, the

the charges framed by the Special Judge, Poona. The charges are: (1) That you accused No. 1 Major E. G. Barsay, when ociating as Chief Ordnance Ocer, D. U. V. and you accused No. 2, H. S. Kochhar, when posted as Civilian Group Ofcer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, then working as Civilian Stores Keeper, D. U. V., and you accused No. 4, W. S. Saighal, released Lt. Col., and you, accused No. 5, Ramchand Pahlajrai Gangawani, and you accused No. 6, Deviprasad Ramchand Gangawani and the absconding accused Khemchand between about October 1954 and December 1954 were parties to a criminal conspiracy at Dehu Road area by agreeing to do certain illegal acts to wit: Firstly, dishonestly or fraudulently fraudulently misappropriate or otherwise convert to your own use the Military Stores lying in the Vehicle Depot, Dehu Road and which was entrusted or was in-charge of Major E. G. Barsay, H. S. Kochhar, and Avatarsingh Seva Singh and which was also under their control, as public servants; Secondly, to obtain by corrupt or illegal means for yourselves or for any other persons such stores which amounts to abusing their position as public servants i.e., the coconspirators; Thirdly, to commit illegal acts of committing theft or receiving of stolen property and the above said illegal acts were done in pursuance of the said agreement and that you have thereby committed an oence punishable under Section 120-B of the Indian Penal Code and within my cognizance. (2) That

9 valuable things in the form of Military Stores detailed out in Schedule A appended herewith, and this act 205 constitutes an oence under Section 5(1)(d) of the Prevention of Corruption Act, punishable under Section 5(2) of the said Act read with Section 34 of the Indian Penal Code and within my cognizance. (4) That you accused Nos. 1, 2, 3, 4,5, 6, along with the absconding accused, Khemchand Ramchand Gangawani, did on 20th of December 1954, in pursuance of the abovesaid conspiracy jointly and in furtherance of the common intention of all of you, dishonestly or fraudulently remove the Military stores described in detail in Schedule A appended herewith from the Dehu Road Depot and this act constitutes an oence punishable either under Section 381 or 411 of the Indian Penal Code, read with Section 34 of the Indian Penal Code and within my cognizance. The main defence of the accused was that, in view of the thefts going on in the Depot, the reputation of Lawrence, the Security Ocer, was at the lowest ebb, that in order to resurrect his reputation and to ingratiate himself into the good books of his superiors, he concocted the scheme of huge fraud and implicated therein the accused, including the Acting Chief Ordnance Ocer of the Depot. Shortly stated, the defence was that all the accused were innocent and that it was Lawrence that abducted the truck with the stores, made false statements to the superior ocers from time to time giving concocted versions to t in with the theory of conspiracy. The Special Judge, on a consideration of the evidence, held that all the charges were made out against the accused. He rejected the technical objections raised in regard to the framing of the charges, the validity of the investigation made by the investigating ocer and the sanction given by the Central Government for the prosecution of the accused, and came to the conclusion that prima facie there was no good ground to discard the evidence of Lawrence, but he placed the said evidence in the category of interested evidence and required independent corroboration before acceptance. In the words of the learned Special Judge, Shri Lawrences evidence can, therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case. He found ample evidence and circumstances corroborating the evidence of Lawrence. After considering the entire evidence, he came to the following conclusion: The above discussion of the evidence on record and the circumstances in the case makes it abundantly clear that the prosecution has been able to prove beyond a reasonable doubt that every one of these six accused did commit overt acts in furtherance of the criminal conspiracy alleged against them. He held that accused Nos. 1 to 6 were guilty of the principal oence charged against them and convicted all of them under s. 120-B of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947,

10

Major E. G. Barsay v. The State Of Bombay 1961 also appear to be improper so far as accused Nos. 1 to 3 were concerned; but it held that so far as accused Nos. 4, 5 and 6 were concerned, the charge under s. 411, read with s. 34, Indian Penal Code, would be quite proper. Before the High Court, learned counsel appearing on behalf of the accused and the special counsel, Mr. Amin, appearing on behalf of the State, asked the Court to proceed to examine the evidence of Lawrence on the basis that he was a decoy and a trap witness. The High Court agreed with the learned Special Judge that the evidence of Lawrence would, have to be treated on par with that of a trap witness and that it would be inadvisable to rely upon the said evidence without independent corroboration. It also pointed out that the corroboration required was not a corroboration of every particular in respect of which the accomplice or the approver gave his evidence, but the corroboration must be such as to make the court believe that the evidence of the accomplice was a truthful one and that it would be safe to act upon that evidence. Finally the High Court premised its discussion of the evidence in the following words: In our opinion, all these decisions would clearly establish that it would not be safe to rely on the evidence of Lawrence who is admittedly a decoy or trap witness, without his testimony being corroborated from independent sources. Then the learned Judges of the High Court considered the evidence of Lawrence minutely, discarded some parts of the evidence which

read with B. 34 of the Indian Penal Code. He gave varying sentences of imprisonment and ne to the accused. The accused preferred ve appeals to the High Court against their convictions and sentences. A division bench of the Bombay High Court which heard the appeals set aside the conviction of accused Nos. 2, 3, 5 and 6, but conrmed those of accused Nos. 1 and 4. The High Court also rejected all the technical objections raised at the instance of the appellant-accused in regard to some parts of 2nd, 3rd and 4th charges. In regard to the 2nd and 3rd head sub-charges, tile High Court accepted the plea that accused Nos. 4, 5 and 6 could not be charged with having committed an oence under s. 5(1)(c) and s. 5(1)(d) of the Prevention of Corruption Act, as they were not public servants; but they held that it would be proper to frame a charge against them under s. 109 of the Indian Penal Code for having abetted the commission of the oence of criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, committed by accused Nos. 1 to 3. As the High Court held that they were not prejudiced by the irregularity of the charge, it altered the charge to one under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the Prevention of Corruption Act. As regards the last head of the charge, it held that all the accused could not be charged with having committed an oence under s. 381 of the Indian Penal Code and that the charge under s. 411 of the Indian Penal Code would

11 were discrepant or inconsistent with other proved facts and accepted the broad story of conspiracy given by him as true to the extent it was corroborated by other unimpeachable pieces of evidence and circumstances. After elaborately considering the evidence of Lawrence, the learned Judges of the High Court came to the following con- clusion: We, therefore, accept Lawrences evidence, nd that his story is probable and true and we also nd that the evidence on the record justied the nding of the trial Court that there was a conspiracy as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot. Then the learned Judges considered the question as to which of the accused took part in the conspiracy. As regards accused No. 1, they came to the conclusion that there was cogent evidence to implicate him in the conspiracy, and in that view, they conrmed the nding of the trial court that he was a party to the conspiracy to smuggle military goods out of the Depot. As regards accused No. 2, they held that the evidence was not sucient to establish that he was a member of the alleged conspiracy and that, as he could not be held to be a member of the conspiracy, he could not also be held to be guilty of committing criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. As regards accused No. 3, they were of the opinion that the case against him was not established beyond reasonable doubt and that he could not be held to be guilty of criminal conspiracy as well as criminal misconduct. As regards accused No. 4, they accepted the nding of the learned Special Judge, as independent acceptable evidence corroborated the evidence of Lawrence in respect of this accused. So far as accused Nos. 5 and 6 were concerned, they found the evidence to be very weak and therefore set aside the convictions and sentences passed against them. In the result, they conrmed the convictions and sentences of accused Nos. 1 and 4, and set aside those of accused Nos. 2, 3, 5 and 6. It appears that accused No. 4 died after the appeal was disposed of by the High Court. Accused No. 1 preferred Criminal Appeal No. 2 of 1958 against his conviction and sentence passed by the High Court and the State preferred Criminal Appeal No. 81 of 1960 challenging the correctness of the order of acquittal made in respect of accused Nos. 2 and 3. We shall rst take the appeal led by accused No. 1. Learned counsel for the appellant raised before us all the technical points which he unsuccessfully raised before the Special Judge as well as before the High Court. At the outset we shall deal with the said contentions before considering the arguments advanced on the merits of the case. The rst contention of learned counsel for the appellant is that the Special Judge, Poona, had no jurisdiction to take cognizance of the offences with which the accused were charged and that they should have been tried only by a court martial

12

Major E. G. Barsay v. The State Of Bombay 1961 ned under the Army Act, unless the conditions laid down therein were strictly complied with, that is, unless requisite notice is given to the ocer referred to in s. 125 of the Act. To appreciate the said argument it is necessary to scrutinize the provisions of the Army Act in some detail. Section 2 describes the dierent categories of army personnel who are subject to the Army Act. Section 3(ii) denes civil oence to mean an oence which is triable by a criminal court; a. 3(vii) denes court martial to mean a court martial held under this Act; s. 3(viii) denes criminal court to mean a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir; s. 3(xvii) denes oence to mean any act or omission punishable under this Act and includes a civil oence; and s. 3(xxv) declares that all words and expressions used but not dened in this Act and dened in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. Chapter VI is comprised of ss. 34 to 70. The heading of the Chapter is Oences. As we have already noticed, the word oence is dened to mean not only any act or omission punishable under the Army Act, but also a civil oence. Sections 34 to 68 dene the oences against the Act triable by court martial and also -give the punishments for the said oences. Section 69 says that any person subject to the Act who at any Place in or beyond India commits any civil oence shall be deemed to be guilty of an oence against the

under the Army Act. The argument of learned counsel for the appellant may be briey stated thus: The Army Act, 1950 (46 of 1950) created new oences. Section 52 of the said Act created oences with which accused in the present case were charged, and provided a new machinery, namely, a court martial, to try persons committing the said oences. Therefore by necessary implication the trial of the said oences was excluded from the jurisdiction of ordinary criminal courts. This argument was sought to be reinforced by the provisions of s. 69 of the Army Act whereunder, it was said, by a ction, oences committed by army personnel which were triable by ordinary courts were to be deemed to be oences committed against the said Act. That difference between oences against the Army Act and the oences deemed to be committed against the Army Act, the argument proceeded, was an unfailing clue for the true construction of the pro- visions of the Army Act in that the oences under the rst category were exclusively triable by court martial and the oences; of the latter category were subject to concurrent jurisdiction of two courts. The logical conclusion from this premises, it was said, was that the provisions designed to resolve conict of jurisdiction related only to the second category of oences. Assuming that the said contention was wrong, it was argued, s. 126 of the Army Act is peremptory in its language, namely, that a criminal court shall not have jurisdiction to try an oence 27 de-

13 Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be punishable as provided for the oence under any law in force in India or such less punishment as is in the Act mentioned. Under s. 70, A person subject to this Act who commits an oence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an oence against this Act and shall not be tried by a Court martial. There are three exceptions to this section with which we are not concerned now. Shortly stated, under this Chapter there are three categories of oences, namely, (1) offences committed by a person subject to the Act triable by a court martial in respect whereof specic punishments have been assigned; (2) civil oences committed by the said person at any place in or beyond India, but deemed to be oences committed under the Act and, if charged under s. 69 of the Act, triable by a court martial; and (3) oences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law. Subject to a few exceptions, they are not triable by court martial, but are triable only by ordinary criminal courts. The said categorisation of oences and tribunals necessarily bring about a conict of jurisdiction. Where an oence is for the rst time created by the Army Act, such as those created by ss. 34, 35, 36, 37 etc., it would be exclusively triable by a courtmartial; but where a civil oence is also an offence under the Act or deemed to be an oence under the Act, both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provided for by as. 125 and 126 of the Act. Under s. 125, When a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the ocer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other ocer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that ocer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in military custody. Under a. 126(1) of the Act, When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged oence, it may, by written notice, require the ocer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. Clause (2) of that section says that, In every such case the said ofcer shall either deliver over the of-

14

Major E. G. Barsay v. The State Of Bombay 1961 What is more, s. 127 of the Army Act provides for successive trials by court martial and by criminal court in respect of the same oence. Under sub-s. (1) of that section, A person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same oence, or on the same facts. But sub-s. (2) thereof imposes a limitation in the matters of punishment; for, under that sub-section, the criminal court shall, in awarding punishment, have regard to the punishment the oender may already have undergone for the said oence. The scheme of the Act, therefore, is selfevident. It applies to oences committed by army personnel described in s. 2 of the Act; it creates new oences with specied punishments, imposes higher punishments to preexisting oences, and enables civil offences by a ction to be treated as oences under the Act; it provides a satisfactory machinery for resolving the conict of jurisdiction. Further it enables, subject to certain conditions, an accused to be tried successively both by court martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving conict of jurisdiction between a criminal court and a court martial in respect of a same oence,

fender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be nal. Section 125 presupposes that in respect of an offence both a criminal court as well as a court martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act. as well as under any law in force in India. It may also arise in the case of an oence deemed to be an oence under the Act. Under the scheme of the said two provisions, in the rst instance,, it is left to the discretion of the ocer mentioned in s. 125 to decide before which court the proceedings shall be instituted, and, if the ocer decides that they should be instituted before a court martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, he may issue the requisite notice under s. 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the ocer may either deliver over the oender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be nal. These two sections provide a satisfactory machinery to resolve the conict of jurisdiction, having regard to the exigencies of the situation.

15 but also provide for successive trials and under the Prevention of Corrupof an accused in respect of the same tion Act. They are also oences unoence. der s. 52 of the Army Act. Though Now let us apply this legal posi- the oence of conspiracy does not fall tion to the facts of the case. Under under s. 52 of the Act, it, being a s. 52 of the Act, any person sub- civil oence, shall be deemed to be an ject to the Act who commits theft oence against the Act by the. force of any property belonging to Govern- of s. 69 of the Act. With the rement or to any military, naval or air sult that the oences are triable both force mess, band or institution, or to by an ordinary criminal court having any person subject to military, naval jurisdiction to try the said oences or air force law, or dishonestly mis- and a court martial. To such a situappropriates or converts to his own ation ss. 125 and 126 are clearly inuse any such property, or commits tended to apply. But the designated criminal breach of trust in respect of ocer in s. 125 has not chosen to exany such property, or does any other ercise his discretion to decide before thing with intent to defraud, or to which court the proceedings shall be cause wrongful gain to one person or instituted. As he has not exercised wrongful loss to another person shall, the discretion, there is no occasion on conviction by court martial, be li- for the criminal court to invoke the able to suer im- prisonment for a provisions of s. 126 of the Act, for term which may extend to ten years the second part of s. 126(1), which or such less punishment as is in the enables the criminal court to issue a act mentioned. Section 2 (xxv) says notice to the ocer designated in s. that all words and expressions used 125 of the Act to deliver over the ofbut not dened in the Army Act fender to the nearest magistrate or and dened in the Indian Penal Code to postpone the proceedings pending shall be deemed to have the mean- a reference to the Central Governings assigned to them in that Code. ment, indicates that the said subsecThe section does not create new of- tion presuppose, that the designated fences, but prescribes higher punish- ocer has decided that the proceedments if the said oences are tried ings shall be instituted before a court by a court martial. The appellant martial and directed that the accused and the other accused were charged person shall be detained in military in the present case, among others, custody. If no such decision was arfor having been parties to a criminal rived at, the Army Act could not obconspiracy to dishonestly or fraud- viously be in the way of a criminal ulently misappropriate or otherwise court exercising its ordinary jurisdicconvert to their own use the mili- tion in the manner provided by law. tary stores and also for dishonestly The correct approach to the probor fraudulently misappropriating the lem may be stated thus: The apsame. The said acts constitute of- pellant and the other accused have fences under the Indian Penal Code committed oences under the Indian Penal Code and the Prevention of

16

Major E. G. Barsay v. The State Of Bombay 1961 an oence for which he is liable to be tried-by a Court Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any oence triable by such Court, unless, (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or air-force authority; or (b) he is moved thereto by such authority. This rule obviously cannot apply unless the Special Judge constituted under the Criminal Law (Amendment) Act, 1952, is a magistrate within the meaning of that rule. A special judge is appointed under s. 6(1) of the Criminal Law (Amendment) Act to try the offences specied therein. Section 6(2), of that Act lays down that A person shall not be qualied for appointment as a special judge under this Act unless he is, or has been, a sessions Judge or an additional sessions Judge or an assistant sessions Judge under the Code of Criminal Procedure, 1898 (V of 1898). Section 8(1) of the said Act says, A Special Judge may take cognizance of oences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by magistrates. Under sub-s. (3) thereof, Save as provided in sub-section

Corruption Act. By reason of s. 7 of the Criminal Law (Amendment) Act, 1952, the said oences are triable by a special judge appointed under that Act. The special judge so appointed would have jurisdiction to try the said oences unless the Army Act expressly, or by necessary implication, excluded the oences alleged to have been committed by the appellant and others from the jurisdiction of that court. The aforesaid discussion of the provisions of the Army Act indicates that there is not only no such exclusion but also that there is clear and unambiguous indication to the contrary. An argument advanced by learned counsel for the appellant in this context may conveniently be noticed at this stage. The second branch of the argument of learned counsel for the appellant under this head is based upon s. 549 of the Code of Criminal Procedure. Under that section, The Central Government may make rules, consistent with this Code and the Army Act............... as to the cases in which persons subject to military, naval or air-force law shall be tried by a court to which this Code applies, or by Court Martial................ . The Central Government made rules in exercise of the power conferred on it under this section. No rule was made prescribing that the oences with which we are now concerned shall be tried only by a court martial. But reliance is made on r. 3 which reads: Where a person subject to military, naval or air-force law is brought before a Magistrate and charged with

17 (1) or sub- section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purpose of the said provisions, the Court of the Special Judge shall be deemed to be a Court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor. Under s. 9 of the said Act, The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Crimi- nal Procedure, 1898 (Act V of 1898), on a High Court as if the Court of a Special Judge were a Court of session trying cases without a jury within the local limits of the jurisdiction of the High Court. These provisions equate a special judge with a sessions judge, and the provisions of the Code of Criminal Procedure applicable to a sessions judge, in so far as they are not inconsistent with the Act, are made applicable to a special judge. But it is said that s. 8(1) of the Act puts him on par with a magistrate and therefore r. (3) of the rules framed under s. 549 which applies to a magistrate equally applies to a special judge. This argument overlooks the limited purpose for which s. 8(1) is enacted. Section 8 of the Criminal Law (Amendment) Act makes a distinction between the power of a special judge to take cognizance of an oence and the procedure to be followed by him in trying the case. In trying accused persons, he is enjoined to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by magistrates. The warrant procedure is incorporated in the Act by reference to the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure provides the procedure for the trial of warrant cases; and s. 549 is not one of the sections in that Chapter. Nor does it empower the Central Government to make rules modifying the warrant procedure. That apart, can it be said that, by reason of the procedure to be followed by the special judge, he would be a magistrate empowered to try such a person within the meaning of r. (3)? Section 8(1) of the Criminal Law (Amendment) Act maintains a clear distinction between jurisdiction and the procedure. It is, therefore, not possible to hold that a special judge is a magistrate within the meaning of r. (3). If so, it follows that r. (3) has no application to the trial of an army personnel by a special judge. There is a more formidable obstacle in the way of learned counsels argument. Section 7 of the Criminal Law (Amendment) Act, 1952, reads: Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the oences specied in subsection (1) of section 6 shall be triable by special Judges only. Doubtless the Army Act is comprehended by the words any other law. The oences with which we

18

Major E. G. Barsay v. The State Of Bombay 1961 1952. Under s. 7 of the said Act, the said oences are exclusively triable by a special judge. In the present case the accused were charged with having committed oences expressly falling under B. 6 of the said Act and, therefore, the special judge had clearly jurisdiction to try the accused in respect of the said oences. The mere fact that the said acts or omissions might also constitute an oence under s. 52 of the Army Act would not be of any relevance, as jurisdiction was exclusively conferred on the special judge notwithstanding anything contained in any other law. If that be so, the special judge had exclusive jurisdiction to try oences covered by s. 6 of the Criminal Law (Amendment) Act, 1952. At this stage, another argument of learned counsel may be adverted to. He says that some of the oences with which the accused are charged in the present case are not those enumerated in s. 6 of the Criminal Law (Amendment) Act, 1952. This objection is clearly answered by s. 7(b) of the said Act which says,

are now concerned are certainly offences specied in sub-s. (1) of s. 6 of the Criminal Law (Amendment) Act. The non obstante clause in s. 7 clearly confers jurisdiction to try persons committing the said oences on a special judge. But it is contended that the Army Act is a special Act and therefore s. 7 found in the general Act cannot take away the jurisdiction conferred on a court martial in respect of the said oences. That proposition of law may have some bearing when there is conict of jurisdiction arising out of a general Act and a special Act, without any specic exclusion of the jurisdiction in the general Act of that conferred under the special Act. But that principle may not have any relevance to a case where the general Act in express terms confers jurisdiction on a particular tribunal in respect of specied oences to the exclusion of anything contained in any other law. In such a situation, the intention of the Legislature is clear and unambiguous, and no question of applying any rule of interpretation would arise, for the rules of interpretation are evolved only to ascertain the intention of the Legislature.

When trying any case, a special judge may also try any oence other than an oence specied in section It is contended that s. 7 confers 6 with which the accused may, unan exclusive jurisdiction on a special der the Code of Criminal Procedure, judge only in regard to oences spec- 1898, be charged at the same trial. ied in sub-s. (1) of s. 6 and that It is then argued that the prosethe said subsection does not comprise cution has failed to establish that the oences under s. 52 of the Army Central Government accorded sancAct. There is a fallacy underlying tion to prosecute the appellant under this argument. Certain acts commits. 6(1) of the Prevention of Corrupted or omissions made by a person tion Act. Under s. 6(1)(a) of the constitute oences under s. 6(1) of Prevention of Corruption Act, the Criminal Law (Amendment) Act,

19 No Court shall take cognizance of an oence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or under subsection (2) of section 5 of this Act, alleged to have been commuted by a public servant, except with the previous sanction-(a) in the case of a person who is employed in connection with the aairs of the Union and is not removable from his oce save by or with the sanction of the Central Government, of the Central Government............ It is common case that the appellant was a public servant within the meaning of the said sub-section and, therefore, he cannot be prosecuted without the sanction of the Central. Government. The sanction given in this case for the prosecution of the appellant reads thus: . . . . . . . . . . . . . . . . . . . . NOW, THEREFORE, THE CENTRAL GOVERNMENT doth hereby accord sanction under section 197 of the Criminal Procedure Code (Act V of 1898) and section 6(1)(a) of the Prevention of Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect of the aforesaid oences and other cognate oences punishable under other provisions of law. Sd. M. Gopala Menon, Deputy Secretary to the Govt. of India. Ex facie the said order giving the requisite sanction purports to have been issued in the name of the Central Government and is signed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs. P.W. 36, Dharambir, an Assistant in the Minstry of Home Aairs, New Delhi, has given evidence in respect of this document. He says that the papers relating to the present case were submitted to the Home Ministry by the Inspector General of Police, Special Police Establishment, New Delhi, for obtaining the necessary sanction, that the papers were put up before the Deputy Secretary in that Ministry, that the Deputy Secretary was competent to accord sanction on behalf of the President, and that he gave the said sanction under his signature. In the crossexamination, this witness says that he cannot say whether the Deputy Secretarys signature was in his own right or by way of authentication of the Presidents order. This uncontradicted evidence clearly established that the Deputy Secretary was competent to accord sanction on behalf of the President and that he gave the sanction in exercise of the power conferred on him, presumably, under the rules framed by the President in this behalf. The statement made by this witness in the cross-examination is not inconsistent with that made by him in the examination-in-chief. The Deputy Secretary may have power to make some orders in his own right and also may have power to authenticate other orders issued in the name of the President. But in this case, this witness has clearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex

20

Major E. G. Barsay v. The State Of Bombay 1961 der was defective as it was not expressed to be in the name of the Governor within the meaning of Art. 166(1) of the Constitution and accordingly was not protected by cl. (2) of the said Article. Adverting to this contention, Bose, J., speaking for the Court, said at p. 678: In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there. This judgment lays down that we must look at the substance of the order. On a construction of the order that was in question in that case, having regard to the denition of State Government in the General Clauses Act and the concluding words By order of the Governor of Bombay, the Court came to the conclusion that the order was expressed to have been taken in the name of the Governor. In Dattatreya Moreshwar Pangarkar v. The State of Bombay (2), an (1) [1952] S.C.R. 674.(2) [1952] S.C.R. 612. order made under the Preventive Detention Act, 1950, was questioned on the ground that it did not comply with the provisions of Art. 166(1) of the Constitution. There the order was made in the name of the Government and was signed by one Kharkar for the Secretary to the Government of Bombay, Home Department. Das, J., as he then was, after referring to the decision of the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. v. The KingEmperor (1) observed at p. 625 thus:

facie shows that he did not authenticate it by order of the President, we must hold that he gave the sanction in his own right. In this context, an argument based upon Art. 77 of the Constitution may be noticed. Under cl. (1) of Art. 77, all executive actions of the Government of India shall be expressed to be taken in the name of the President; and under cl. (2) thereof, orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specied in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Under the General Clauses Act, the expression President means the Central Government. It is, therefore, argued that as the order issuing the sanction was not expressed to be made in the name of the President, the sanction was void. This Article and the corresponding Article viz., Art. 166, were subject to judicial scrutiny by this Court. The validity of an order of detention made by the Bombay Government under s. 3 of the Preventive Detention Act, 1950, was considered in The State of Bombay v. Puru- shottam Jog Naik (1). There, in the body of the order the satisfaction was shown to be that of the Government of Bombay; at the bottom of the order the Secretary to the Government of Bombay, Home Department, signed it under the words By order of the Governor of Bombay. It was contended that the or-

21 Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The learned Judge came to the above conclusion on the ground that the provisions of the said article are only directory and not mandatory. This decision was followed by this Court in P. Joseph John v. The State of Travancore-Cochin (2). There the show cause notice issued under Art. 311 of the Constitution was impugned on the ground that it was contrary to the provisions of Art. 166 thereof. The notice was issued on behalf of the Government and was signed by the Chief Secretary to the Government, who had under the rules of business framed by the Rajpramukh the charge of the portfolio of service and appointments at the Secretariat level in the State. This Court held that the said notice was issued in substantial compliance with the directory provisions of Art. 166 of the Constitution. The latest decision on the point is that in Ghaio Mall & Sons v. The State of Delhi(1). There the question was whether the com- munication issued by the Under Secretary, Finance, Government of Delhi State, had complied with the provisions of Art. 166 of the Constitution. This Court held that it did not comply with the provisions of (1) (1947) F.C.R. 141. (2) [1935] 1 S.C.R. 1011. 223 Art 166 of the Constitution and also found that the said order was not, as a matter of fact, made by the Chief Commissioner. When the decision in Dattatreya Moreshwar Pangarkars case (1) was cited this Court observed at p. 1439 thus: In that case there was ample evidence on the record to prove that a decision had in fact been taken by the appropriate authority and the inrmity in the form of the authentication did not vitiate the order but only meant that the presumption could not be availed of by the State. The foregoing decisions authoritatively settled the true interpretation of the provisions of Art. 166 of the Constitution. Shortly stated, the legal position is this: Art. 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Art. 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in r. (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any noncompliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority.

22

Major E. G. Barsay v. The State Of Bombay 1961 in the present case. Section 5A of the Prevention of Corruption Act, 1950, on which reliance is placed reads:

Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Art. 166 and the same principles must govern the interpretation of that provision.

Notwithstanding anything contained in the Code of Criminal Procedure., 1898, no police ocer below If that be the legal position, in the rankthe instant case the impugned or(a) in the presidency towns of der does not comply with the pro- Madras and Calcutta, of an assistant visions of Art. 77(2) of the Consti- commissioner of police, tution and, therefore, it is open to (b)in the presidency town of the appellant to question the validBombay, of a superintendent of poity of the order on the ground that it lice, and was not an order made by the Pres(c) elsewhere, of a deputy superident and to prove that it was not intendent of police, shall investigate made by the Central Government. But this legal position does not help any oence punishable under section the appellant, for as we have pointed 161, section 165 or section 165A of out, the uncontroverted evidence of the Indian Penal Code or under subP. W. 36, an Assistant in the Home section (2) of section 5 of this Act, Ministry, which was accepted by the without the order of a presidency High Court and the Special Judge, magistrate or a magistrate of the rst establishes that the order was made class, as the case may be, or make by the Deputy Secretary on behalf of any arrest thereof without a warrant: the Central Government in exercise Provided that a police ocer of of the power conferred on him un- the Delhi Special Police Establishder the rules delegating such power ment, not below the rank of an Into him. spector of police, who is specially auThe next contention challenges thorized by the Inspector-General of the legal competence of Jog, an In- Police of that Establishment may, if spector of Police in the Delhi Spe- he has reasons to believe that, on accial Police Establishment, to make count of the delay involved in obtainthe investigation. In his evidence Jog ing the order of a magistrate of the stated that the Inspector General of rst class, any valuable evidence rePolice, Special Police Establishment, lating to such oence is likely to be New Delhi, empowered him under s. destroyed or concealed, investigate 5A of the Prevention of Corruption the oence without such order; but Act to investigate the oences men- in every case where he makes such intioned therein without the sanction vestigation, the police ocer shall, as of any magistrate. The question is soon as may be, send a report of the whether he can make an investigation same to a magistrate of the rst class, in regard to the oences alleged to together with the circumstances in have been committed by the accused which the investigation was made.

23 The proviso governs the present case. Jog, who was specially authorized by the Inspector-General of Police under s. 5A of the Prevention of Corruption Act to investigate the oences mentioned therein being an Inspector of Police, was certainly empowered to make an investigation within the meaning of that proviso. But what is contended is that the power to investigate under that proviso is hedged in by two conditions, namely, that the said ocer should have reasons to believe that on account of delay involved in obtaining the order of a magistrate of the rst class, any valuable evidence relating to such oence is likely to be destroyed or concealed, and subsequently he should have sent a report of the same to a magistrate of the rst class together with the circumstances in which the investigation was made. The High Court on a consideration of the evidence found that the said two conditions have not been complied with by Jog. On that nding, the question arises whether the trial of the accused by the Special Judge was vitiated by the non- compliance with the aforesaid two conditions. This Court in H. N. Rishbud & Inder Singh v. The State of Delhi (1) held that s. 5(4) and proviso to s. 3 of the Prevention of Corruption Act, 1947, and the corresponding s. 5A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal. In the same decision this Court also pointed out that the illegality committed in the course of investigation did not aect the competence and jurisdiction of the court for trial and where cognizance of the case had in fact been taken and the case had proceeded to termination the validity of the preceding investigation did not vitiate the result unless miscarriage of justice of been caused thereby. The question is whether in the present case the investigation made by the Inspector duly authorized by the InspectorGeneral of Police to investigate under s. 5A of the Prevention of Corruption Act, without complying with the two conditions laid down in the proviso to that section, had caused any prejudice to the accused. The High Court, after considering the entire evidence, found that the alleged irregularity would not justify the conclusion that the non- observance of the conditions prescribed in the proviso to s. 5A of the Prevention of Corruption Act had occasioned any failure of justice. Learned counsel has taken us through dierent steps in the investigation made by the said ocer, and we have no reason to differ from the conclusion arrived at by the High Court. The validity of the investigation made by Jog was questioned yet on another ground. It was said that he had not obtained the requisite permission of the State Government under s. 6 of the Delhi Special Police Establishment Act, 1946, before he started the investigation. Section 5 of that Act authorizes the Central Government to extend to any area the powers and jurisdiction of members of the Delhi Special Police

24

Major E. G. Barsay v. The State Of Bombay 1961 jurisdiction in that area, though the State Government can do so. When a State Government can authorize a single ocer to exercise the said jurisdiction, we do not see any legal objection why it could not authorize the entire force operating in that area belonging to that Establishment to make such investigation. The authorization led in this case suciently complies with the provisions of s. 6 of the Delhi Special Police Establishment Act, 1946, and there are no merits in this contention. The next contention centres round the framing of charges. The charges framed in this case have been fully extracted in the earlier part of the judgment. The rst objection is that the Special Judge had no jurisdiction to try the accused on charges involving oences other than those mentioned in s. 6(1) of the Criminal Law (Amendment) Act, 1952. This argument ignores s. 7(2)(b) of the Act which says, When trying any case, a special judge may also try any oence other than an oence specied in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. The objection, therefore, has no force. The next criticism is that there can be no legal charge of a conspiracy between accused Nos. 1 to 3, who are public servants, and accused Nos. 4 to 6, who are not public servants, in respect of oences under the Prevention of Corruption Act for the reason that they can only be committed by public servants. But this contention ignores the scope of the oence of

Establishment for the investigation of any oences or classes of oences specied in a notication under s. 3 thereof. But s. 6 of that Act says that nothing contained in s. 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railways area, without the consent of the Government of that State. The Government of Bombay, Home Department, addressed a letter to the Government of India, dated August 13,1949 and it was stated therein, .....I am directed to state that this Government re-arms, with reference to section 6 of the Delhi Special Police Establishment Act, 1946, the consent given for an indenite period under its letter No. 5042/4-D, dated the 6th November 1946, to the members of the Delhi Special Police Establishment exercising powers and jurisdiction in the area of the not province of Bombay. It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under a. 6 of the Delhi Special Police Establishment Act, no member of the said Establishment can exercise powers and jurisdiction in any area in a State without the consent of the Government of that State. That section does not lay down that every member of the said Establishment should be specically authorized to exercise

25 criminal conspiracy. Section 120A of the Indian Penal Code denes criminal conspiracy and under that definition, When two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. The gist of the oence is an agreement to break the law. The parties to such an agreement will be guilty of criminal con- spiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the oence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under s. 43 of the Indian Penal Code, an act would be illegal if it is an oence or if it is prohibited by law. Under the rst charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the oences has no relevancy in considering the question whether the oence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual oences all of them may not be liable. The second objection is in regard to the second charge. It is said that accused Nos. 4, 5 and 6 could not be charged with having committed an oence under s. 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, as they are not public servants. The learned Judges of the High Court accepted the said legal position as correct, but held that they could be convicted under s. 109 of the Indian Penal Code, read with cls. (c) and (d) of s. 5(1) of the Prevention of Corruption Act. But on the merits they convicted accused No. 1 under s. 5(2) of the Prevention of Corruption Act, instead of under the said section read with s. 34 of the Indian Penal Code, and they convicted accused No. 4 under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the Prevention of Corruption Act, instead of under s. 5(2) of the said Act, read with s. 34 of the Indian Penal Code. As accused No. 4 was dead before the appeal was led in this Court, nothing need be said about the legality of his conviction. The only outstanding question, therefore, is whether the High Court was justied in convicting accused No. 1 under s. 5(2) of the Prevention of Corruption Act instead of under the said section read with s. 34 of the Indian Penal Code. To such a situation, s. 537 of the Criminal Procedure Code applies and under that section, no sentence passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the charge, including any misjoinder of charges, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. This Court in W. Slaney v. State of M. P. (1) held that in adjudging a question of prejudice the concern of the court should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the im- pugned facts sought to be established against him were

26

Major E. G. Barsay v. The State Of Bombay 1961 exceptional circumstances. Learned counsel for the appellant made a serious and sustained attempt to have the said nding reopened by advancing arguments under the following three heads: (1) The High Court has failed to draw correct inferences from the facts found by it and has also drawn wrong conclusion ignoring probabilities arising in a given situation; (2) the High Court has ignored the distinction between an untruthful witness and a truthful witness, whose evidence under the rule of prudence could be accepted only in so far as it is corroborated in material particulars, and the High Court, having disbelieved Lawrences evidence in regard to important incidents in his narration, should have rejected his evidence in toto; and if it had done so, the question of corroboration would not arise for consideration; and (3) the independent pieces of evidence accepted by the High Court did not corroborate the evidence of Lawrence in material particulars implicating him in the crime.

explained to him clearly and fairly and whether he was given a full and fair chance to defend himself. Judged by the said test it is manifest that accused No. I cannot be said to have been prejudiced by his conviction under s. 5(2) of the Prevention of Corruption Act, for accused No. I had clear knowledge from the inception that the prosecution case against him was that he committed an oence under s. 5(2) of the Prevention of Corruption Act and that he had every opportunity, and indeed he made a sustained eort throughout the trial to defend himself against the said accusation. It is not possible to hold in this case that there was any failure of justice by reason of the High Court convicting him for a substantive offence under s. 5(2) of the said Act.

So far as the third head of the charge is concerned, the High Court held that it was bad in regard to accused No. 1. Accused No. 1, therefore, cannot obviously have any grievance with that nding. For the foregoing reasons, we hold that there are no merits in the contentions The rst argument is a direct atraised by learned counsel on the basis tack on the correctness of the nding of the charges framed in this case. of fact arrived at by the High Court. Now we come to the merits of the As we have said, the practice of this case. So far as the appellant is con- Court in an appeal under Art. 136 cerned, both the Special Judge and, of the Constitution is not to allow on appeal the High Court accepted such an attack except in exceptional the evidence of Lawrence, as it was circumstances. Learned counsel adcorroborated in material particulars dressed at some length on this aspect by other acceptable evidence. They of the case, and after hearing him, we concurrently found that the appel- were satised that there were no such lant was a party to the conspiracy. exceptional circumstances present in The nding is one of fact, and the this case. Our reluctance to depart practice of this Court is not to inter- from the usual practice is hightened fere with such nding except under by the fact that in the present case,

27 so far as the appellant is concerned, unreliable witness. there are concurrent ndings of fact Relying upon these observations, by both the courts. learned counsel contends that in the The second argument is a subtle present case the High Court did not attempt to reopen the ndings of fact accept the evidence of the approver from a dierent perspective. This ar- in regard to important events and gument is based upon a decision of therefore the High Court should have this Court in Sarwan Singh v. The rejected his evidence without further State of Punjab (1). In that case, attempting to see whether there was Gajendragadkar, J., speaking for the any corroboration in material parCourt, observed at p. 959 thus: ticulars in other evidence. Before But it must never be forgotten we consider this argument in the that before the Court reaches the context of the facts of the present stage of considering the question of case, we would like at the outset corroboration and its adequacy or to make some general observations. otherwise, the rst initial and essen- This Court could not have intended tial question to consider is whether to lay down that the evidence of even as an accomplice the approver an approver and the corroborating is a reliable witness. If the answer to pieces of evidence should be treated this question is against the approver in two dierent compartments, that then there is an end of the matter, is to say, the Court shall have rst to and no question as to whether his consider the evidence of the approver evidence is corroborated or not falls dehors the corroborated pieces of evto be considered. In other words, idence and reject it if it comes to the the appreciation of an approvers ev- conclusion that his evidence is unidence has to satisfy a double test. reliable; but if it comes to the conclusion that it is reliable then it will Then the learned Judge prohave to consider whether that eviceeded to state, We have carefully dence is corroborated by any other read the judgment delivered by the evidence. This Court did not lay High Court but we nd no indication down any such proposition. In that in the whole of the judgment that the case it happened that the evidence learned Judges considered the charof the approver was so thoroughly acter of the approvers evidence and discrepant that the Court thought reached the conclusion that it was that he was a wholly unreliable witthe evidence given by a reliable witness. But in most of the cases the ness. said two aspects would be so interLater on the learned Judge fur- connected that it would not be possither stated, ........ the evidence of ble to give a separate treatment, for the approver is so thoroughly dis- as often as not the reliability of an crepant that it would be dicult to approvers evidence, though not exresist the conclusion that the ap- clusively, would mostly depend upon prover in the present case is a wholly the corroborative support it derives

28

Major E. G. Barsay v. The State Of Bombay 1961 cause it is just possible that in some cases an accomplice may give evidence because he may have a feeling in his own mind that it is a condition of his pardon to give that evidence, but no such consideration obtains in the case of the evidence of a person who is not a guilty associate in crime but who invites the police to lay a trap. All the same, as the person who lodges information with the police for the purpose of laying a trap for another is a partisan witness interested in seeing that the trap succeeds, it would be necessary and advisable to look for corroboration to his evidence before accepting it. But the degree of corroboration in the case of a tainted evidence of an accomplice would be higher than that in the case of a partisan witness. In our opinion, all these decisions would clearly establish that it would not be safe to rely on the evidence of Lawrence who is admittedly a decoy or trap witness, without his testimony being corroborated from independent sources. Even Mr. Amin, learned special counsel on behalf of the State asked the courts to proced to examine the evidence of Lawrence on the basis that he was a decoy or trap witness. We are denitely of opinion that both the courts had approached the evidence of Lawrence from a correct standpoint. Though Lawrence was not an approver, he was certainly an interested witness in the sense that he was interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence without

from other unimpeachable pieces of evidence. We must also make it clear that we are not equating the evidence of Lawrence with that of an approver; nor did the Special Judge or the High Court put him exactly on that footing. The learned Special Judge in his judgment observed thus: He (Lawrence) is obviously decoy or spy and agent provocateur and his evidence will have, therefore, to be approached with great caution and much weight cannot be attached to it unless it is corroborated by other independent evidence and circumstances in the case.... Not being tainted evidence, it would not suffer from a disability of being unworthy of acceptance without independent corroboration. But being interested evidence, caution requires that there should be corroboration from an independent source before its acceptance. To convict an accused on the tainted evidence of an accomplice is not illegal but it is imprudent; to convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent but inadvisable therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case. The learned Judges of the High Court practically adopted the same attitude in the manner of their approach to the evidence of Lawrence. The learned Judges observed: To convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent, be-

29 corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a dierence in the degree of corroboration required rather than the necessity for it. Approaching the case from this perspective-in our view that is a correct one-the learned Special Judge came to the following conclusion: There was no compelling necessity for Shri Lawrence to concoct a false story against Major Barsay and the other accused. It is, therefore, clear that prima facie there is no good ground to discard the evidence of Shri Lawrence. Then the learned Special Judge considered the corroborative pieces of evidence and nally held that Lawrences evidence had been corroborated in material particulars in respect of the appellant. Likewise, the learned Judges of the High Court considered the evidence of Lawrence along with that of other acceptable witnesses. Though the learned Judges of the High Court rejected the evidence of Lawrence in regard to some events either because that part of the evidence was not consistent with the other parts of his evidence or with the evidence of some disinterested witnesses, they did not see any reason to reject the story given by Lawrence as a myth or a concoction. After considering the evidence, the learned Judges concluded, record justies the nding of the trial Court that there was a conspiracy as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot. Having accepted broadly the version given by Lawrence, the High Court took the case of each of the accused and held that in the case of accused Nos. 1 to 4 Lawrences evidence had been amply corroborated by other evidence in all material particulars. In these circumstances, we cannot accept the contention of learned counsel for the appellant that the High Court had rejected the evidence of Lawrence. As we have said, the High Court did not accept some parts of the evidence of Lawrence, but it had broadly accepted the version given by Lawrence in regard to the conspiracy and the manner in which the articles were smuggled out of the Depot. If some of the accused were acquitted it was because there were some discrepancies in the evidence of Lawrence in respect of them and particularly because that part of his evidence was not corroborated in material particulars by other evidence. But in the case of the appellant the High Court accepted the evidence given by Lawrence and convicted the appellant because that version was corroborated in all material particulars by the evidence of other disinterested witnesses. We, therefore, reject this contention.

We, therefore, accept This leads us to the considerLawrences evidence, nd that his ation of the only remaining quesstory is probable and true and we tion, namely, whether Lawrences evalso nd that the evidence on the idence is corroborated in material

30

Major E. G. Barsay v. The State Of Bombay 1961 ingh from Unit Sub Park to the Kit Stores. The prosecution has established by clear evidence that Major Barsay was instrumental in posting Kochhar, accused No. 2, to the Kit Stores after asking him to cut short his leave which was for, a period of two months. It was also established by evidence that Major Barsay brought Avatarsingh to the Kit Stores. Though these facts might not have implicated Kochhar and Avatarsingh, they certainly corroborate the evidence of Lawrence that Major Barsay told him that these transfers were made to facilitate the implementation of the scheme. Lawrence stated in his evidence that Major Barsay told him on December 3, 1954, that he had chalked out a detailed scheme in consultation with Kochhar to transfer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, and that as soon as the Board of Ocers was appointed there would be a shuttle of trucks moving from Shed No. 48 to Shed No. 17 and vice versa and nobodys suspicion would be roused if one or two trucks were taken away out of the main gate during the course of these movements of the trucks between these two sheds. There is evidence to show that a Board of Ocers was appointed to do the work of itemization and that one Captain Mehendiratta was appointed the President of that Board. Lawrence said that Major Barsay told him that he would show certain boxes from Shed No. 48 to Col. Rao and tell him that they did not contain many

particulars implicating the appellant by other acceptable evidence. The corroboration must be by independent testimony conrming in some material particulars not only that the crime was committed but also that the appellant committed it. It is not necessary to have corroboration of all the circumstances of the case or every detail of the crime. It would be sufcient if there was corroboration as to the material circumstances of the crime and of the identity of the accused in relation to the crime. These principles have been settled in R. v. Baskerville, (1) which has rightly been considered as the locus classicus of the law of approvers evidence and has been followed by courts in India. Looking from that aspect, both the courts have found corroboration from disinterested witnesses in material particulars implicating the appellant in the crime. Lawrence gave a detailed account of the unfurling of the scheme of fraud from the date he met Major Barsay on December 2, 1954, upto December 20, 1954, when the oending truck was obstructed by the police from proceeding further on its onward journey. Lawrence stated in his evidence that on December 3, 1954, Major Barsay told him, inter alia, that he had chalked out a detailed scheme in consultation with Kochhar to transfer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, that he had already recalled Kochhar from leave of absence prior to its expiry and posted him in the Kit Stores, and that he had also posted Avatars-

31 of the articles which they were said to contain, so that Col. Rao also would not be surprised at the nal result of the itemization. It has been established by other evidence that on December 8, 1954, Major Barsay went to Col. Rao and took him to Shed No. 48 and showed him the military stores that were lying there awaiting itemization. At about midday on December 18, 1954, Lawrence stated, Major Barsay met him at the Depot and told him that he and other conspirators would meet at his residence to discuss about the scheme. It is in evidence that on the 18th the meeting was held as deposed to by Lawrence. Evidence of Col. Sindhi and Capt. Sharma, which was accepted by both the courts, establishes this fact. The same evidence also establishes that at that meeting Major Barsay, Saighal, Lawrence and two Sikhs were present, and though the two Sikhs were not identied to be accused Nos. 2 and 3, the presence of accused Nos. 1 and 4 and two Sikhs corroborates the evidence of Lawrence. Lawrence stated that at that meeting Major Barsay undertook to do certain things. According to Lawrence Major Barsay told the conspirators that he would detail a driver of his condence in a vehicle for executing the plan, that he would send Kochhar to Shed No. 17, order Kochhar to transfer the itemized goods from Shed No. 17 to Shed No. 26 ostensibly for the purpose of preservation, that he would call Major Nag on Monday (December 20) and in his presence he would order Lawrence to go to the D.O.D. to bring the re hoses. The evidence of Havaldar Pillay, Godse, Suryawanshi and G. K. Pillay establishes the fact that Barsay secured one truck and a driver for shifting of the stores from Shed No. 17 to Shed No. 26. The evidence of Jamadar Lachmansing proves that Major Barsay went to Shed No. 17 and ordered the shifting of stores from there to Shed No. 26 for conditioning and preservation. The evidence of Major Nag establishes that in his presence Major Barsay sent for Lawrence and asked the latter to go to the D.O.D. and expedite the return of the re hoses. These established facts certainly corroborate the evidence of Lawrence as to what took place on the 18th and also his evidence that Major Barsay gave the said instructions to him in the presence of Major Nag. The evidence of Lawrence that Major Barsay told him and the other conspirators that there should be two loadings of the trucks at Shed No. 17, the rst loading to carry innocuous articles and the second the articles intended to be smuggled out of the Depot, was also corroborated by disinterested evidence. Both the courts accepted that evidence. Then there is evidence of the movements of Major Barsay during the crucial time when the smuggling out of the goods was scheduled to take place. The evidence of Jogendrasingh, Rambhan and Wagh shows that at about 1-10 p.m. on December 20, 1954, Major Barsay was rather worried and was moving to and

32

Major E. G. Barsay v. The State Of Bombay 1961 were being transported into the civilian truck when they came on the scene. All this evidence supports the version of Lawrence when he said that Major Barsay gave the necessary instructions as to the manner of transport of the military goods to the civilian truck. The said facts found by both the courts below implicate accused No. 1 in the matter of the preparation, laying down of the details of implementation and the actual carrying out of the scheme of smuggling the goods out of the Depot through all the stages and thereby establish that the appellant was the main conspirator and the brain behind the conspiracy. We cannot, therefore, say that the version given by Lawrence implicating accused No. 1 is not corroborated by other independent evidence. It follows that the conviction of the appellant by the High Court is correct. This leads us to the appeal led by the State against the judgment of the High Court acquitting accused Nos. 2 and 3 on the ground that the evidence of Lawrence implicating them in the oence was not corroborated in material particulars by independent evidence. In this appeal also we have not allowed learned counsel for the State to canvass the correctness of the nding arrived at by the High Court on the appreciation of the evidence in the case. Taking the ndings arrived at by the High Court, we nd it dicult to take a dierent view from that taken by the High Court. In regard to accused No. 2 the High Court arrived at the following ndings: (1)

fro near the main gate because he was suspecting that somebody was watching their movements. Jamadar Jogendrasingh deposed that Major Barsay asked him to tell Lawrence, not to do it as there was something suspicious about it. Major Nag also supported this version. These nervous movements of Major Barsay certainly corroborate the evidence of Lawrence that he was the moving spirit in the conspiracy. The evidence of Lawrence that the duty of going along with the truck was allotted to his part in the conspiracy is corroborated by the circumstances establisbed by the evidence that Lawrence got into the truck near Shed No. 17 and went in the truck to its destination. The evidence of Lawrence regarding how Major Barsay directed the smuggling of the goods out of the Depot was corroborated by other independent evidence. There is evidence of Jog and Diwate to show that on December 19, in the morning, Saighal showed the spot where the transshipment was to take place to Lawrence. There is the evidence of Darekar to show that a truck was arranged and that he was asked by Yakubsaheb to take his truck to Talegaon for the transport of iron goods. There is also the evidence of Darekar and Hatnolkar to establish that accused No. 4 was waiting near the cemetry on the Talegaon-Dabhade Road and that Darekar was also instructed by Saighal to park the lorry in a particular way. Then there is the evidence of the police ocers that the goods brought in the military lorry

33 There is no evidence or allegation on the record to show that there was any understanding between him and Major Barsay before he left on two months leave. (2) There is no evidence that Kochhar, accused No. 2, met Lawrence on December 6, 1954. (3) Accused No. 2 moved Major Barsay by his letter (Ex. 151) to convene the itemization board. (4) Prior to the appointment of the board and its constitution, accused No. 2 ordered the shifting of the specialist boxed kits from Shed No. 48 to Shed No. 17, but this was done under Major Barsays instructions. (5) Accused No. 2 was present when Fernandez was ordered by Major Barsay to complete the identication of the rst set before December 13, even by working on Sunday the 12th December, and in that connection a written order was issued by him on December 11. (6) On December 12 Lawrence persuaded accused No. 2 to go in for two insurance policies. (7) Though according to Lawrence, Kochhar undertook to prepare a bogus voucher and to be at the Depot at the opening hours on Monday the 20th to prepare that voucher in the oce of Lawrence, it is admitted that Kochhar refused to issue the voucher. (8) Accused No. 2 was present at Shed No. 17 when Major Barsay issued orders to shift the stores to Shed No. 26. And (9) Accused No. 2 accompanied Major Barsay to Shed No. 19 in the morning and lie was present when the truck was being loaded for the second trip at Shed No. 17. The High Court found that the said circumstances, though some of them might raise a suspicion, did not implicate accused No. 2 in the oence and they are consistent also with his innocence. Though some of the facts give rise to a suspicion, we cannot say that the High Court was wrong in holding that the said facts did not corroborate the evidence of Lawrence in implicating the said accused in the oence. Now coming to accused No. 3, the High Court found the following facts based on the evidence other than that of Lawrence: (1) Avatarsing, accused No. 3, was transferred from Unit Sub Park to Kit Stores. (2) Accused No. 3 was a party to the shifting of stores from Shed No. 48 to Shed No. 17 even before the appointment of the board of itemization. (3) Though Lawrence stated that Avatarsing expressed his inability to push the scheme on account of Capt. Kapoors constant vigilance and visits to Shed No. 17, Lawrence had admitted that his rst contact with Avatarsing was in the noon of 18th December. (4) There is no evidence that Avatarsing attended the meeting at Major Barsays on the 18th. (5) Avatarsing loaded the truck for the rst trip and also for the second trip, and in loading the second trip he used the usual laborers and two outside workers. (6) After the truck was loaded, he asked Rambhan to take the truck to D. 0. D. under instructions from the superior ocers. (7) The words D. O. D. in Ex. 42, the duty slip, were not entered by Avatarsing. The High Court held that the said facts found on independent evidence did not implicate the said accused in the oence

34

Major E. G. Barsay v. The State Of Bombay 1961 Lawrence in implicating the accused in the oence. We, therefore, accept the nding of the High Court in regard to accused Nos. 2 and 3. In the result both the appeals fail and are dismissed. Appeals dismissed.

and they were all consistent with his innocence. Though some of the ndings give rise to suspicion we cannot say that the High Court was wrong in holding that the said facts found did not corroborate the evidence of

Chapter 2

Ram Sarup v. The Union Of India 1963


Ram Sarup v. The Union Of India And Another on 12 December, 1963 Equivalent citations: 1965 AIR 247, 1964 SCR (5) 931 Bench: Dayal, Raghubar PETITIONER: RAM SARUP v. RESPONDENT: 1965 AIR 247 1964 SCR (5) 931 CITATOR INFO : R 1971 SC 500 (19) R 1971 SC1120 (17) R 1979 SC1588 (14) R 1982 SC1413 (15,17) RF 1983 SC 658 (7) ACT:

Army Act (XLVI of 1950), ss. THE UNION OF INDIA AND 125, 126 and 164-Scope of- ConstituANOTHER tion of India, 1950, Art. 33-Eect on DATE OF JUDGMENT: fundamental rights-s. 125 of Army 12/12/1963 Act if violative of Art. 14 of the ConBENCH: stitution. DAYAL, RAGHUBAR BENCH: HEADNOTE: The General Court Martial sentenced the petitioner, a sepoy, to DAYAL, RAGHUBAR death under s. 69 of the Army Act SINHA, BHUVNESHWAR read with s. 302 of the Indian PeP.(CJ) nal Code for shooting dead two seWANCHOO, K.N. poys and a Havildar. The Central AYYANGAR, N. RAJAGOPALA Government conrmed the sentence. The petitioner led writs of habeas MUDHOLKAR, J.R. corpus and certiorari for setting aside CITATION: the orders of the Court Martial and

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Ram Sarup v. The Union Of India 1963

the Central Government and for his tution, that provision does not, on release. that account, become void, as it must be taken that Parliament has in exHeld: ercise of its power under Art. 33 of (i) The petitioner made no rethe Constitution made the requisite quest for being represented at the modication to aect the respective court martial by a counsel of his fundamental right. (v) The provichoice; consequently no such request sions of s. 125 of the Act are not diswas refused, and that there has been criminatory and do not infringe the no violation of the fundamental right provisions of Art. 14 of the Constiof the petitioner to be defended by a tution. counsel of his choice. (vi) The discretion to be exer(ii) There has been no noncised by the Military Ocer specicompliances of the provisions of S. ed in s. 125 of the Act as to the 132(2) of the Act. In view of the trial of accused by Court Martial or provisions of rr. 45, 46, 61(2) and by an ordinary court, cannot be said 62 of the Army Rules, 1954, the peto be unguided by any other policy titioners statement, that the death laid down in the Act or uncontrolled sentence was voted by an inadequate by any authority. There could be a majority of the members of the Court variety of circumstances which may which can be considered to be a mere inuence the decision as to whether allegation, cannot be based on any the oender be tried by a Court Mardenite knowledge as to how the vottial or by ordinary criminal court and ing went at the consideration of the therefore becomes inevitable that the nding in pursuance of r. 61. (iii) discretion to make the choice as to Section 164 does not lay down that which court should try the accused the correctness of the order or senbe left to responsible Military otence of the Court Martial is always cers under whom the accused is servto be decided by two higher authoring. Those ocers are to be guided ities; it only provides for two remeby considerations of the exigencies of dies. The further petition can only the service, maintenance of discipline be made to the authority superior in the army, speedier trial, the nature to the authority which conrms the of the oence and the person against order of the Court Martial, and if whom the oence is committed. This there be no authority superior to the discretion is subject to the control of conrming authority, the question of the Central Government. remedy against its order does not (vii) According to s. 549 of arise. the Code of Criminal Procedure and (iv) Each and every provision of the rules thereunder, the nal choice the Army Act is a law made by Parabout the forum of the trial of a perliament and that if any such provison accused of a civil oence rests sion tends to aect the fundamental with the Central Government, whenrights under Part III of the Constiever there be dierence of opinion be-

37 tween a Criminal Court and Military authorities about the forum. The position under ss. 125 and 126 of the Army Act is also the same. ting aside the order dated January 12, 1963 of the General Court Martial and the order of the Central Government conrming the said ndings and sentence and for his release from JUDGMENT: the Central Jail, Tehar, New Delhi, ORIGINAL JURISDICTION: where he is detained pending execuPetition No. 166 of 1963. Under Artion of the sentence awarded to him. ticle 32 of the Constitution of India The contentions raised for the pefor the enforcement of fundamental titioner are: (1) That the provisions rights. of s. 125 of the Act are discriminaO.P. Rana, for the petitioner. tory and contravene the provisions of C.K. Daphtary, B.R.L. lyengar Art. 14 of the Constitution inasmuch and R.H. Dhebar for the respon- as it is left to the unguided discretion dents. of the ocer mentioned in that secDecember 12, 1963. The Judg- tion to decide whether the accused ment of the Court was delivered by person would be tried by a Court Martial or by a Criminal Court. (2) RAGHUBAR DAYAL J.Ram Sarup, petitioner, was a se- Section 127 of the Act which provides poy in 131 Platoon DSC, attached for successive trials by a Criminal to the Ordnance Depot, Shakurbasti. Court and a Court Martial, violates As a sepoy, he is subject to the Army the provisions of Art. 20 of the ConAct, 1950 (XLVI of 1950), hereinafter stitution as it provides for the prosecution and punishment of a person called the Act. for the same oence more than once. On June 13, 1962 he shot dead (3) The petitioner was not allowed two sepoys, Sheotaj Singh and Ad to be defended at the General Court Ram and one Havildar Pala Ram. He Martial by a legal practitioner of his was charged on three counts under choice and therefore there had been S. 69 of the Act read with s. 302 a violation of the provisions of Art. I.P.C. and was tried by the General 22(1) of the Constitution. (4) The Court Martial. On January 12, 1963 procedure laid down for the trial of the General Court Martial found him oences by the General Court Marguilty of the three charges and sential had not been followed inasmuch tenced him to death. as the death sentence awarded to The Central Government con- the petitioner was not passed with rmed the ndings and sentence the concurrence of at least two-thirds awarded by the General Court Mar- of the members of the Court. (5) tial to the petitioner. Thereafter, Section 164 of the Act provides two the petitioner has led this writ pe- remedies, one after the other, to a tition praying for the issue of a writ person aggrieved by any order passed in the nature of a writ of habeas by a Court Martial. Sub-s. (1) allows corpus and a writ of certiorari set- him to present a petition to the o-

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Ram Sarup v. The Union Of India 1963 tion but was made in the reply after the State had led its counter adavits in which it was stated that no such request for his representation by a legal practitioner had been made and that there had been no denial of his fundamental rights. We are of opinion that the petitioner made no request for his being represented at the Court Martial by a counsel of his choice, that consequently no such request was refused and that he cannot be said to have been denied his fundamental right of being defended by a counsel of his choice. In paragraph 9 of his petition he did not state that he had made a request for his being represented by a counsel of his choice. He simply stated that certain of his relatives who sought interview with him subsequent to his arrest were refused permission to see him and that this procedure which resulted in denial of opportunity to him to defend himself properly by engaging a competent civilian lawyer through the resources and help of his relatives had infringed his fundamental right under Art. 22 of the Constitution. If the petitioner had made any express request for being defended by a counsel of his choice, he should have stated so straight-forwardly in para 9 of his petition. His involved language could only mean that he could not contact his relations for their arranging a civilian lawyer for his defence. This negatives any suggestion of a request to the Military Authorities for permission to allow him representation by a practising lawyer and its refusal.

cer or authority empowered to conrm any nding or sentence of the Court Martial and sub-s. (2) allows him to present a petition to the Central Government or to any other authority mentioned in that sub-section and empowers the Central Government or the other authority to pass such order on the petition as it thinks t. The petitioner could avail of only one remedy as the nding and sentence of the Court Martial was conrmed by the Central Government. He, therefore, could not go to any other authority against the order of the Central Government by which he was aggrieved. It will be convenient to deal with the rst point at the end and take up the other points here. The petitioner has not been subjected to a second trial for the oence of which he has been convicted by the General Court Martial. We therefore do not consider it necessary to decide the question of the validity of s. 127 of the Act in this case. With regard to the third point, it is alleged that the petitioner had expressed his desire, on many, occasions, for permission to engage a practising civil lawyer to represent him at the trial but the authorities turned down those requests and told him that it was not permissible under the Military rules to allow the services of a civilian lawyer and that, he would have to defend his case with the counsel he would be provided by the Military Authorities. In reply,, it is stated that this allegation about the petitioners requests and their being turned down was not correct, that it was not made in the peti-

39 We therefore hold that there had been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice, conferred under Art. 22(1) of the Constitution. Further, we do not consider it necessary to deal with the questions, raised at the hearing, about the validity of r. 96 of the Army Rules, 1954, hereinafter called the rules, and about the power of Parliament to delegate its powers under Art. 33 of the Constitution to any other authority. The next point urged for the petitioner is the sentence of death passed by the Court Martial was against the provisions of s. 132(2) of the Act inasmuch as the death sentence was voted by an inadequate majority. The certicate, signed by the presiding ocer of the Court Martial and by the Judge Advocate, and produced as annexure A to the respondents counter to the petition, reads: Certied that the sentence of death is passed with the concurrence of at least Two-third of the members of the Court as provided by AA Section 132(2). It is alleged by the petitioner that this certicate is not genuine but was prepared after his ling the writ petition. We see no reason to accept the petitioners allegations. He could not have known about the voting of the members of the General Court Martial. Rule 45 gives the Form of Oath or of Armation which, is administered to every member of a Court Martial. It enjoins upon him that he will not on any account at any time whatsoever disclose or discover the vote or opinion of any particular member of the Court Martial unless required to give evidence thereof by a Court of Justice or Court Martial in due course of law. Similar is the provision in the Form of Oath or of Armation which is administered to the Judge Advocate, in pursuance of r. 46. Rule 61 provides that the Court shall deliberate on its nding in closed Court in the presence of the Judge Advocate. It is therefore clear that only the members of the Court and the Judge Advocate can know how the members of the Court Martial gave their votes. The votes are not tendered in writing. No record is made of them. Sub-rule (2) of r. 61 provides that the opinion of each member of the Court as to the nding shall be given by word of mouth on each charge separately. Rule 62 provides that the nding on every charge upon which the accused is arraigned shall be recorded and, except as provided in the rules, shall be recorded simply as a nding o guilty or of not guilty. In view of these provisions, the petitioners statement, which can be considered to be a mere allegation, cannot be based on any denite knowledge as to how the voting went at the consideration of the nding in pursuance of r. 61. Further, there is no reason to doubt what is stated in the certicate which, according to the counteradavit, is not recorded in pursuance of any provision governing the proceedings of the Court Martial, and does not form Dart of any such proceedings. It is recorded for the satisfaction of the conrm-

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Ram Sarup v. The Union Of India 1963 thority against the order of conrmation. The further petition can only be to the authority superior to the authority which conrms the order of the Court Martial and if there be no authority superior to the conrming authority, the question of a remedy against its order does not arise. Section 164, does not lay down that the correctness of the order or sentence of the Court Martial is always to be decided by two higher authorities. It only provides for two remedies. Section 153 of the Act provides inter alia that no nding or sentence of a General Court Martial shall be valid except so far as it may be conrmed as provided by the Act and s. 154 provides that the ndings and sentence of a General Court Martial may be conrmed by the Central Government or by any ocer empowered in that behalf by warrant of the Central Government. It appears that the Central Government itself exercised the power of conrmation of the sentence awarded to the petitioner in the instant case by the , General Court Martial. The Central Government is the highest authority mentioned in sub-s. (2) of s. 164. There could therefore be no occasion for a further appeal to any other body and therefore no justiable grievance can be made of the fact that the petitioner had no occasion to go to any other authority with a second petition as he could possibly have done in case the order of conrmation was by any authority subordinate to the Central Government. The Act itself provides that the Central Government is to conrm the ndings and sentences of General Courts Martial and therefore

ing authority. The certicate is dated January 12, 1963, the date on which the petitioner was convicted. The adavit led by Col. N.S. Bains, Deputy Judge Advocate General, Army Headquarters, New Delhi, contains a denial of the petitioners allegation that the certicate is a false and concocted document and has been made by the authorities after the ling of the writ Petition. We see no reason to give preference to the allegations of the petitioner over the statement made by Col. Bains in his adavit, which nds support from the contents of Exhibit A signed by the presiding ocer of the Court.Martial and the Judg-Advocate who could possibly have no reason for issuing a false certicates We therefore hold that there had been no noncompliance of the provisions of s. 132(2) of the Act. Next we come to the fth point. It is true that s. 164 of the Act gives two remedies to the person aggrieved by an order, nding or sentence of a Court Martial, they being a petition to the authority which is empowered to conrm such order, nding or sentence and the petition to the Central Government or some other ocer mentioned in sub-s. (2), after the order or sentence is conrmed by the former authority. The nal authority to which the person aggrieved by the order of the Court Martial can go is the authority mentioned in subs. (2) of s. 164 and if this authority happens to be the conrming authority, it is obvious that there could not be any further petition from the aggrieved party to any other higher au-

41 could not have contemplated, by the provisions of s. 164, that the Central Government could not exercise this power but should always have this power exercised by any other ocer which it may empower in that behalf by warrant. We therefore do not consider this contention to have any force. Lastly, Mr. Rana, learned counsel for the petitioner, urged in support of the rst that in the exercise of the power conferred on Parliament under Art. 33 of the Constitution to modify the fundamental rights guaranteed by Part 111, in their application to the armed forces, it enacted s. 21 of the Act which empowers the Central Government, by notication, to make rules restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the fundamental rights under Arts. 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney-General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modied the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to aect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modication to aect the respective fundamental right. We are however of opinion that the provisions of s. 125 of the Act are not discriminatory and do not infringe the provisions of Art. 14 of the Constitution. It is not disputed that the persons to whom the provisions of s. 125 apply do form a distinct class. They apply to all those persons who are subject to the Act and such persons are specied in s. 2 of the Act. The contention for the petitioner is that such persons are subject to be tried for civil oences i.e., oences which are triable by a Criminal Court according to s. 3 (ii) of the Act, both by the Courts Martial and the ordinary Criminal Courts, that s. 125 of the Act gives a discretion to certain ocers specied in the section to decide whether any particular accused be tried by a Court Martial or by a Criminal Court, that there is nothing in the Act to guide such ocers in the exercise of their discretion and that therefore discrimination between dierent persons guilty of the same oence is likely to take place inasmuch as a particular ocer may decide to have one accused tried by a Court Martial and another person, accused of the same oence, tried by a Criminal Court, the procedures in such trials being dierent.

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Ram Sarup v. The Union Of India 1963 nally. Section 69 provides for the punishment which can be imposed on a person tried for committing any civil oence at any place in or beyond India, if charged under s. 69 and convicted by a Court Martial. Section 70 provides for certain persons who cannot be tried by Court Martial, except in certain circumstances. Such persons are those who commit an oence of murder, culpable homicide not amounting to murder or of rape, against a person not subject to Military, Naval or AirForce law. They can be tried by Court Martial of any of those three oences if the oence is committed while on active service or at any place outside India or at a frontier post specied by the Central Government by notication in that behalf. This much therefore is clear that persons committing other oences over which both the Courts Martial and ordinary Criminal Courts have Jurisdiction can and must be tried by Courts Martial if the oences are committed while the accused be on active service or at any place outside India or at a frontier post. This indication of the circumstances in which it would be better exercise of discretion to have a trial by Court Martial, is an index as to what considerations should guide the decision of the ocer concerned about the trial being by a Court Martial or by an ordinary Court. Such considerations can be based on grounds of maintenance of discipline in the army, the persons against whom the oences are committed and the nature of the

We have been taken through the various provisions of the Act and the rules with respect to the trial of offences by a Court Martial. The procedure to be followed by a Court Martial is quite elaborate and generally follows the pattern of the procedure under the Code of Criminal Procedure. There are, however, material dierences too. All the members of the Court Martial are Military Ocers who are not expected to be trained Judges, as the presiding ocers of Criminal Courts are. No judgment is recorded. No appeal is provided against the order of the Court Martial. The authorities to whom the convicted person can represent against his conviction by a Court Martial are also non- 941 judicial authorities. In the circumstances, a trial by an ordinary Criminal Court would be more benecial to the accused than one by a Court Martial. The question then is whether the discretion of the ocers concerned in deciding as to which Court should try a particular accused can be said to be an unguided discretion, as contended for the appellant. Section 125 itself does not contain anything which can be said to be a guide for the exercise of the discretion, but there is sucient material in the Act which indicate the policy which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance with it. Magistrates can question it and the Government, in case of dierence of opinion between the views of the Magistrate and the army authorities,. decide the matter

43 oences. It may be considered better for the purpose of discipline that oences which are not of a serious type be ordinarily tried by a Court Martial, which is empowered under s. 69 to award a punishment provided by the ordinary law and also such less punishment as he mentioned in the Act. Chapter VII mentions the various punishments which can be awarded by Courts Martial and s. 72 provides that subject to the provisions of the Act a Court Martial may, on convicting a person of any of the oences specied in ss. 34 to 68 inclusive, award either the particular punishment with which the oence is stated in the said sections to be punishable or in lieu thereof any one of the punishments lower in the scale set out in s. 7 1, regard being had to the nature and degree of the oence. The exigencies of service can also be a factor. Oences may be committed when the accused be in camp or his unit be on the march. It would lead to great inconvenience if the accused and witnesses of the incident, if all or some of them happen to belong to the army, should be left behind for the purpose of trial by the ordinary Criminal Court. The trials in an ordinary court are bound to take longer, on account of the procedure for such trials and consequent appeals and revision, then trials by Courts Martial. The necessities of the service in the army require speedier trial. Sections 102 and 103 of the Act point to the desirability of the trial by Court Martial to be conducted with as much speed as possible. Section 120 provides that subject to the provisions of sub-s. (2), a summary Court Martial may try any of the oences punishable under the Act and sub-s (2) states that an ocer holding a summary Court Martial shall not try certain oences without a reference to the ocer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged offender when there is no grave reason for immediate action and such a reference can be made without detriment to discipline. This further indicates that reasons for immediate action and detriment to discipline are factors in deciding the type of trial. Such considerations, as mentioned above, appear to have led to the provisions of s. 124 which are that any person, subject to the Act, who commits any oence against it, may be tried and punished for such oence in any place whatever. It is not necessary that he be tried at a place which be within the jurisdiction of a criminal court having jurisdiction over the place where the oence be committed. In short, it is clear that there could be a variety of circumstances which may inuence the decision as to whether the oender be tried by a Court Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible military ocers under whom the accused be serving. Those ocers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the

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Ram Sarup v. The Union Of India 1963

army, speedier trial, the nature- of cused, to the Commanding Ocer of the oence and the person against the regiment, corps, ship or detachwhom the oence is committed. ment to which he belongs, or to the Lastly, it may be mentioned that Commanding Ocer of the nearest the decision of the relevant military military, naval or air-force station, as ocer does not decide the matter - the case may be, for the purpose of nally. Section 126 empowers a crimi- being tried by Court Martial. This nal court having jurisdiction to try gives a discretion to the Magistrate, an oender to require the relevant having regard to the rules framed, military ocer to deliver the oender to deliver the accused to the milito the Magistrate to be proceeded tary authorities for trial by Court against according to law or to post- Martial. The Central Government pone proceedings pending reference framed rules by S.R.O. 709 dated to the Central Government, if that April 17, 1952 called the Criminal criminal court be of opinion that pro- Courts and Court Martial (Adjustceedings be instituted before itself in ment of Jurisdiction) Rules, 1952, respect of that oence. When such under s. 549 Cr. P.C. It is not necesa request is made, the military o- sary to quote the rules in full. Suce cer has either to comply with it or to it to say that when a person charged make a reference to the Central Gov- is brought before a Magistrate on an ernment whose orders would be nal accusation of oences which are liwith respect to the venue of the trial. able to be tried by Court Martial, the Magistrate is not to proceed with the The discretion exercised by the case unless he is moved to do so by military ocer is therefore subject to the relevant military authority. He the control of the Central Governcan, however, proceed with the case ment. Reference may also be made when he be of opinion, for reasons to to s. 549 of the Code of Criminal be recorded, that he should so proProcedure which empowers the Cenceed without being moved in that betral Government to make rules conhalf by competent authority. Even in sistent with the Code and other Acts, such a case he has to give notice of including the Army Act, as to the his opinion to the Commanding Ocases in which persons subject to milcer of the accused and is not to pass itary, naval or air-force law be tried any order of conviction or acquittal by a court to which the Code applies under ss. 243, 245, 247 or 248 of the or by Court Martial. It also proCode of Criminal Procedure, or hear vides that when a person accused of him in defence under s. 244 of the such an oence which can be tried said Code; is not to frame any charge by an ordinary criminal court or by against the accused under s. 254 and a Court Martial is brought before a is not to make an order of committal Magistrate, he shall have regard to to the Court of Session or the High such rules, and shall, in proper cases, Court under s. 213 of the Code, till deliver him, together with a statea period of 7 days expires from the ment of the oence of which he is acservice of notice on the military au-

45 thorities. If the military authorities intimate to the Magistrate before his taking any of the aforesaid steps that in its opinion the accused be tried by Court Martial, the Magistrate is to stay proceedings and deliver the accused to the relevant authority with the relevant statement as prescribed in s. 549 of the Code. He is to do so also when he proceeds with the case on being moved by the military authority and subsequently it changes its mind and intimates him that in its view the accused should be tried by Court Martial. The Magistrate, however, has still a sort of control over what the military authorities do with the accused. If no eectual proceedings are taken against the accused by the military authorities within a reasonable time, the Magistrate can report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. All this is contained in rr. 3 to 7. Rule 8 practically corresponds to s. 126 of the Act and r. 9 provides for the military authorities to deliver the accused to the ordinary courts when, in its opinion or under the orders of the Government, the proceedings against the accused are to be before a Magistrate. According to s. 549 of the Code and the rules framed thereunder, the nal choice about the forum of the trial of a person accused of a civil offence rests with the Central Government, whenever there be dierence of opinion between a Criminal Court and the military authorities about the forum where an accused be tried for the particular oence committee by him. His position under ss. 125 and 126 of the Act is also the same 1/SCI/64-60 It is clear therefore that the discretion to be exercised by the military ocer specied in of the Act as to the trial of accused by Court Martial or by an ordinary court, cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority. Section 125 of the Act therefore cannot, even on merits, be said to infringe the provisions of Art. 14 of the Constitution. The writ petition therefore fails and is dismissed. Petition dismissed.

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Chapter 3

Union of India v. Maj S K Sharma 1987


PETITIONER: UNION OF INDIA THROUGH MAJOR GENERAL H.C. PATHAK v. RESPONDENT: MAJOR S.K. SHARMA DATE 29/06/1987 OF JUDGMENT: as is contemplated by r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. HEADNOTE: An ocer in the Army led a complaint before a Magis- trate alleging that another ocer has assaulted him, that the Commanding Ocer to whom he had complained earlier had failed to take satisfactory action and thus both of them had committed oences under the Indian Penal Code. The Magistrate examined the complainant under s. 200 Cr. P.C., took cognizance of the oences under s. 190(A) and, on being satised of the existence of a prima facie case, issued summons under s. 204(A) for the appearance of the accused. Upon applications being made by the appellants urging that the case be handed over to the Military Authorities for disposal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of

BENCH: PATHAK, R.S. (CJ) BENCH:PATHAK, R.S. (CJ), KHALID, V. (J) CITATION: 1987 AIR 1878 1987 SCR (3) 456 1987 SCC (3) 490 JT 1987 (3) 12 1987 SCALE (2)12 ACT: Criminal Procedure Code, 1973S. 475Read with ss. 200 to 204 of the Code, and the provisions of the Army Act, 1950 and the Army RulesWhen a Magistrate has taken cognizance of an oence committed by a member of the Armed Forces and thereafter transferred the case for trial under the Army Act and the Rules, it is not open to the Competent Authority to hold an inquiry for determining whether there is any case for trying the accusedIt must proceed to hold the Court Martial or take such other eectual proceedings

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Union of India v. Maj S K Sharma 1987 by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provi- sions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused ocers and having directed their appearance, the Army Authority must proceed to hold a Court Martial for their trial or take other eectual proceedings against them as contemplated by the law. [468G-H] (i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to inquire into a complaint of an oence alleged to have been committed by a military person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. Inasmuch as there is always a possibility of the same offence being triable either by a Criminal Court or by a Court Martial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a

the Army Act, 1950 after trial by a Court Martial at any place within the jurisdic- tion of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appel- lants making further applications praying for review of the said order on the ground that under the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submitting that the disciplinary action against the ocers concerned would be initiated after an investigation of the alleged oences, the Magistrate, pointing out that the judicial process for ascertaining the prima facie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and,therefore, it was not permissible for the Army Authorities to hold a preliminary investigation. However, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be intimated at intervals of four months. in the Revision led by the appellants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction requiring the Army Au- thorities to inform the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal

49 Court Martial, such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused, to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs, it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of deliv- ering such statement can be easily understood, for it is to enable the Army Authority to appreciate the circumstances in which a Court Martial is required by the law. [464C-D; 465E-H] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magistrate under s. 5 or 6 thereof to the competent military or other authority, it is for the purpose of trial by a Court Martial or other eectual proceedings to be taken or ordered to be taken against him inasmuch as the competent authority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other eectual proceedings have been taken or ordered to be taken against him and the communication of such information is mandatory. When the Magistrate is in- formed that the accused has not been tried or other eectual proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstances to the State Government and the State Government, in consultation with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accord- ance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the competent military or other authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. [467B-E] (iii) The policy of our Constitutional Polity is that no person should be regarded as being above the law. Military, navel or air force personnel are as much subject to the law as members of the civil population. It is signicant that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 empowers the Magistrate, on coming to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted

50

Union of India v. Maj S K Sharma 1987 tance in deciding whether it is open to the Army Authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. [468EF] (vi) There is nothing in the provisions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magistrate it is open to the Army Authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investigate the charge directed against the ac- cused ocer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and supersede the proceeding already taken by the Magistrate. [469B-D] JUDGMENT: CRIMINAL APPELLATE ORIGINAL JURISDICTION: Criminal Appeal No. 271 of 1987. From the Judgment and Order dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Srivastava for the Appellant in Crl. A. No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in

before him and that the presence of such person cannot be procured except through military, navel or air force authorities, to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Govern- ment for determination as to the Court before which the proceedings should be instituted. [467GH; 468A-B] (iv) Section 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried against by a Criminal Court for the same oence or on the same facts which is an exception to the rule contained in Art. 20 of the Constitution that no person shall be prose- cuted and punished for the same oence more than once. It is to enable the operation and application of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the compe- tent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each juris- diction in respect of an oence, it will he in the discre- tion of the Commanding Ocer of the accused to decide before which Court the proceedings shall he instituted, is of no assis-

51 W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was delivered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Command- er, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area Ocers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subbaiah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Ofcer Commanding, B. Comp. Signal Regiment on 14 January 1986 seeking clarication from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satisfactory response, led a complaint 21 January 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempt- ing to protect Col. Ali. It was alleged in the complaint that Col. Ali had committed the oences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the oence under section 2 17 of the Indian Penal Code. The Additional Chief Judicial Magistrate exam- ined the complaint, and taking cognizance of the oences alleged to have been committed by Col. Ali and Brigadier Randhawa it directed that summons be issued to them for their appearance before him on 7 March, 1986. On two applications moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry insti- tuted in respect of certain complaints made against Major Sharma by his Commanding Ocer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate. On 7 February 1986 the Union of India moved an applica- tion before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Major General T.S. Chaudhri informing the Chief Judicial Magistrate that the General Ocer Commanding was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the com- plaint before the Additional Chief Judicial Magistrate

52

Union of India v. Maj S K Sharma 1987 transferred to the Army authorities pursu- ant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 after trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima facie amounted to contempt for which it was open to Major Sharma to apply to the High Court for necessary action. He also directed that Major Sharma should be permitted to proceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General Ocer Commanding led an application before the Chief Judicial Magistrate for modication of the order dated 17 February 1986. In that application it was contended that under the Army Act and the Army Rules it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by the Court Martial and that the directions made by the Chief Judicial Magistrate with regard to the trial

against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12 February 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al Ocer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17 February 1986 the Chief Judicial Magistrate, Jothat made an order disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the oences had been taken by the Additional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for trial by a Court martial by the competent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be

53 of Brigadier Randhawa and Col. Ali by Court Martial were in contravention of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Jurisdiction) Rules 1978. It was asserted that the proposed disciplinary action would be initiated by the General Commanding Ocer after an investigation of the alleged oences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by deleting the direction for a trial by Court Martial at a place within the jurisdiction of the Court of the Chief Judicial Magistrate and of the direction further that the progress of the case should be intimated to the Chief Judi- cial Magistrate at intervals of two months. On 7 April 1986 the Union of India led another application making more detailed submissions for modication or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate requesting that the records of the case be handed over to the Army authorities. These applications were disposed of the Chief Judicial Magistrate by his order dated 8 May 1986. In that order he noted that the Additional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the oence under s. 190(A) of the Code and on being satised of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie existence of a case had thereby been completed. He held that in the circumstances the trial of the accused ocers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investiga- tions by a departmental court of inquiry did not seem per- missible in the case. However, having regard to s. 124 of the Army Act which conferred absolute power on the Army authorities to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General Ocer Com- manding for deleting the direction in respect of the venue of the trial. The Chief Judicial Magistrate also directed that instead of intervals of two months the Army authorities should, having regard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at intervals of four months. On 14 June 1986 the Union of India through the General Ocer Commanding led a revision petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court interfered with the order of the Chief Judicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months, and it directed instead that the result of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the

54

Union of India v. Maj S K Sharma 1987 oence alleged to have been committed by a military person, where it fails within its juris- diction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly con- stituted Army authorities to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Proce- dure provide the procedure to be followed by Magistrates taking cognizance of an oence on a complaint. The Magis- trate is required to examine on oath the complaint and the witnesses present and reduce the substance of such examina- tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the proce- dure except when the complaint is made in writing by a public servant or the Magistrate makes over the case for trial or inquiry to another Magistrate. The Magistrate may either inquire into the case himself or direct an investiga- tion to be made by a police ocer or by such other person as he thinks t for the purpose of deciding whether or not there is sucient ground for proceeding. Where, however, it appears to the Magistrate that the oence complained of its triable exclusively by the Court of Session no such direction for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opin-

Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present appal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army authorities should report periodi- cally to the Chief Judicial Magistrate in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authori- ties to constitute a Court of Inquiry, enter upon an inves- tigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceedings already taken by the Additional Chief Judicial Magistrate must be ignored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Although the point was not taken before the High Court we have per- mitted it to be raised before us and it has been argued by learned counsel at length. It is apparent from the provisions of the Code of Crimi- nal Procedure that it is open to a Magistrate to inquire into a complaint of an

55 ion that the oence complained of is triable exclusively by the Court of Session he must call upon the complainant to produce all his wit- nesses and examine them on oath. If after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no sucient ground for proceeding he must dismiss the complaint. Where 465 the Magistrate is of opinion that there is sucient ground for proceeding he must adopt the procedure setforth in sections 204 onwards. He must issue process for the attend- ance of the accused. In certain cases he may dispense with the personal attendence of the accused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army authority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his defence. If the Commanding Ocer investigating the charge nds no offence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satised that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule 22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier. Now inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial the law has attempted to resolve the competings claims of the civil authority and the military authori- ty in such cases. Section 475 of the Code of Criminal Proce- dure empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magistrate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magis- trate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the

56

Union of India v. Maj S K Sharma 1987 a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused speci- ed in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Command- ing Ocer of the accused to give notice subsequently under Rule 5 to such Magistrate that, in the opinion of such ofcer or authority the accused should be tried by a Court Martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to specically in Rule 4 before receiving such notice, must stay the pro- ceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the Ocer speci- ed in that subsection. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding Ocer or the military, naval or air force authority of his intention to do so, Rule 6 empowers the Commanding Ocer or the competent authority to give notice to the Magistrate within the aforesaid period of 15 days or in any event before the Magistrate takes any action or makes any order referred to in that Rule, that in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice the Magistrate must stay the proceedings and deliver the ac-

oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of delivering such statement can be easily understood, for it is to enable the Army authority to appreciate the circumstances in which a Court Martial is required by the law. We now turn to the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under s. 475 of the Code of Criminal Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an oence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that eect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an oence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an oence after the Magis- trate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Ses- sion the Magistrate must, under Rule 4, give written notice to the Commanding Ocer of the accused and refrain for

57 cused together with the statement referred to in s. 475(1) of the Code to the ocer specied in that subsection. It is clear that when the accused is made over by the Magistrate to the Commanding Ocer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other eectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 or 6 the Commanding Ocer or the competent military, naval or air force authority must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectual proceedings have not been taken or or- dered to be taken against him, he is obliged to report the circumstance to the State Government and the State Govern- ment, in consultation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial. and pursuant to the aforesaid rule, delivers the accused to the Commanding Ocer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding Ocer or the competent au- thority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Ocer or the competent military, naval or air force au- thority may not try the accused or take eectual proceed- ings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that eect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our Constitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil population. It is signicant that Rule 8 empowers the Magistrate. on coming to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military. navel or air force authorities. to require the Commanding Ocer of 468 such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for

58

Union of India v. Maj S K Sharma 1987 Army authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused o- cers and having directed their appearance, the Army authority must proceed to held a court martial for their trial or take other effectual proceedings against them as contemplat- ed by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected. We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter- mine whether there is any case for trying the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised

determination as to the Court before which the proceedings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provi- sion. It provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried again by a Criminal Court for the same offence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same oence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces. It is to enable the operation and application of s. 127 of the Act that Rule 7(1) of the Criminal courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Com- manding Ocer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken against him. Our attention has been drawn by learned counsel for the appellants to s. 125 of the Army Act. Section 125 provides that when a Criminal Court and a Court Martial have each jurisdiction in respect of an oence it will be in the discretion of the Commanding Ocer of the accused to decide before which Court the proceedings shall be institut- ed. This provision is of no assistance in deciding whether it is open to the

59 before us. If, on the analysis detailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused ocer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the proceedings already taken by the Additional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully perused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us. Accordingly, the appeal is dismissed. In the Criminal Writ Petition Major S.K. Sharma prays for a number of reliefs. The material reliefs are that a direction be issued to the Army authorities to postpone the return of the petitioner to the Unit to which he has been posted and direct the Army authorities to stay all parallel proceedings against the petitioner until the hearing and disposal of their Special Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress suffered by the petitioner, apparently necessitating his treatment at a hospital with sychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are available we have no reason to doubt that the Army authorities will aord such posting to the petitioner. In doing so it will be open to the Army authorities to obtain the latest medical report respecting the condition of the petitioner. As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ petition is dismissed. H.L.C. Petition dismissed.

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Union of India v. Maj S K Sharma 1987

Chapter 4

S.K. Rao v. Union Of India 1967


S.K. Rao v. Union Of India ter of Capt. Raghbir Singh, he (Uoi) on 23 February, 1967 Bench: K (Capt S.K. Rao) assisted Kumari Prakash in going away from her perHegde, J Singh ents prtoection and planning to run JUDGMENT away with an Ob, by (aa) receiving K.S. Hegde and Jagjit Singh, JJ. her in his house in the early hours (1) On April 9, 1959, the Cen- of 4th April 1958, and taking her in tral Government directed the re- his scotoer to 511 GR. Lines, (bb) moval from service of Captain S.K.. arranging her meeting with 9402844 Rao under rule 14 of the Army Rules, Rfn Jai Prashai LembJ of 5/11 GX. 1954. A petition under article 226 of at the unit lines and, (cc) acquiescthe Constitution was led by Cap- ing in the girl being met by the Ob tain Rao for quashing the order of latter at teashop nearby to receive a his removal from services on the present of a sari and a blouse from ground that rule 14 is ultra vires the him in his presence. The Ocer thus Army Act, 1953, and therefore, ac- actively abetted in the attempt of brtion taken there under is without the toher ocers daughter to elope with authority of law. an OB. (ii) He took Kumari Prakash (2) The petitioner was a com- to a htoel Saidiya Lodge in Hydermissioned ocer in the Indian Army abad and gto a room to themselves Ordnance Corps Training Centre, Se- by impersonating and giving a false cundarabad. It was alleged that on identity as Mr. and Mrs. Prakash. April 4,1958, the petitioner commit(3) An enquiry into the matted acts of gross-misconduct. The al- ter was made by Court of Inquiry. legations against him were as follows The Chief of the Army Sta, af:ter going through the proceedings (I)Knowing her as the daugh- of the Court of Inquiry, Considered

62 that the conduct of Captain Rao was most unbecoming an ocer and as he was of opinion that trial of the ocer by a General Court Martial was inexpendient, he ordered administrative action to be taken under rule 14.B, memorandum Tbib, 6914/88 No. 13802/15/ Tb, dated September 4, 1958, the petitioner was called upon to submit his explanation and defense regarding the allegations against him. The explanation of the petitioner, on being submitted, was placed before teh Central Government, who found it unsatisfactory and an order (dated April 9, 1989) was passed removing the petitioner from service. (4) In the petition a some what dierent version was given of what had happend. According to the petitioner, he did nto in any way assist Kumari Prakash, daughter of Captain Raghbir Singh, to go away from her parents house. It was stated by him that with the help of Major A.C. Gupta he had taken book. Kumari Prakash from a htoel to her parents house. (5) For purpose of this petition, it is, however, nto necessary to consider as to which of the two versions is correct. That was a matter Fur the competent authority to determine. The only point which has to be considered is the validity of rule 14 of the Army Rules, 1954 (hereinafter referred to as the Rules). If rule 14 is intern vires the Army Act, 1950 (hereinafter referred to as the Act), the petitioner has no case. (6) Admittedly the petitioner was subject to the Act. The Rules, in-

S.K. Rao v. Union Of India 1967 cluding rule 14, purported to have been made by the Central Government under the rule-making powers given by section 191 of the Act. Rule 14 reads: 14(1) When after considering the reports on an oncers misconduct, the Central Government is satised or the C-in-C is of the opinion, that the trial of the ocer by a Court Martial is inexpedient or impracticaile but considers the further retention of the said ocer in the service as undesirable, tha C-in-C shill communicated the view of the Central Government or his views, as the case may be, to the ocer together with all reports adverse to him and he shall be called upon to submit his explanation and defense. (2) In the event of the explanation of the ocer being considered unsatisfactory by the C-in-C, or when so directed by the Central Government, the case shall be submitted to the Central Government with the ocers defense and the recommendation of the C-in-C as to whether the ocer should be (a) dismissed from the service; or (b) removed from the service; or (e) called upon to retire; or (d) called upon to resign. (3) The Central Government, after due consideration of the reports the ocers defense, if any, and the recommendation of the C-in-C, may dismiss or remove the ocer with or without pension or call upon him to retire or resign, on his refusing to do so the ocer may be retired from or gazetted out of the service ...gratuity if any admissible to him. (7) Thus under rule 14 action

63 can be taken for misconduct against an ocer, whose further retention in service is considered undesirable, without the ocer being tried by a General Court Martial. But before doing so, the ocer must be called upon to submit his explanation and defense. If the explanation is found unsatisfactory, the Central Government has the power to dismiss or remove the ocer. ery person subject to the Act shall hold oce during the pleasure of the President. Section 19 is to the effect that subject to the provisions of the Act and the rules and regulations made there under, the Central Government may dismiss or remove from service any person subject to the Act. Chapter Vi, containing sections 34 to 70, deals with oences that may be committed by persons subject to the (8) As stated above, the Rules Act. Section 45 is important for purwere made under section 191 of the poses of this case and is reproduced Act. Sub section (1) of section 191 below:45.Any ocer, junior commisgive p3wer to the Central Government to make rules for the purposes sioned ocer or warrant ocer who of carrying into eect the provisions behave in a manner unbecoming his of the Act. Sub-section (2) men- position and the character expected tions specic matters about which of him shall, on conviction by court rules may be made, but this power is martial, if he is an ocer, be liable without prejudice to the generality to be cashiered or to suer such less of the power conferred by sub-section punishment as is in this Act men(1). Clause (a) of sub-section (2) tioned; and, if he is a junior comrefers to the removal, retirement, re- missioned ocer or a warrant ocer lease or discharge from service of per- be liable to be dismissed or to suer such less punishment as is in this Act sons subject to the Act. (9) So far as the impugned rule mentioned. (11) Shri S S. Chadha, learned counsel for the petitioner, contended that as the services of the petitioner were nto terminated by the President, section 18, which provides that every person subject to the Act shall hold oce during the pleasure of the President, has no application to the facts of the present case. Elaborating his argument, he seated that a distinction has been made in Sections 18, and 19 between the power of the President and the Central Govern(10) Some provisions of the Act ment. While the President could termay appropriately be mentioned minate the services of the petitioner here. Section 18 provides that ev- at his pleasure, the Central Govern(rule 14) is concerned. its validity depends upon the fact as to whether it enables to carry in to eect any provision of the Act. In order to be valid, the rule must net be inconsistent with the provisions of the Act. In the State of U.P. v Babu Ram. it was observed by their Lordships of the Supreme Court that one of the principles fundamental to the rules of construction was that the rules should be consistent with the provisions of the Act.

64 ment under section 19, could only act subject to the provisions of the Act and the rules and regulations made there under. It was urged that as the Act contained specic provisions for punishing unbecoming conduct, a rule could nto have been validly made in derogation of section 46 to give power to the Central Government to remove an ocer without being tried and convicted by court martial. Rule 14 was, therefore, stated to be ultra vires. (12) On a plain reading of section 19, there can be no doubt that the power of the Central Government to dismiss or remove from service any person subject to the Act can be exercised only subject to the provisions of the Act and the rules and regulations made there under. As already stated, rules can be made under section 191 of the Act for the purpose of carrying into eect the provisions of the Act. Regulations can be made under section 192, but we are nto concerned with them, as rule 14 forms part of the Rules which were made under section 191 of the Act. In the return submitted on behalf of the respondent, the Union of India, the stand taken was that rule 14 had been made under section 191(2)(a) of the Act and that for removal from service under section 19, read with rule 14 a court martial was nto necessary. (13) Shri S.N. Shankar, learned counsel for the Union of India, aid nto dispute the proposition that act made a, distinction between the powers of the President and the Central Government. He, however, con-

S.K. Rao v. Union Of India 1967 tended that the power given to the Central Government by section 19 was nto fettered by the provisions of section 45 of the. Act. According to him, section 19 was independent of section 45 and consequently rule 14 could nto be regarded as inconsistent with the provisions of section 45 of the Act. In this connection, a reference was also made by him to a recent judgment of Kapur, J. in the case of Om Parkash Bhardwaj v. The Union of India. (14) Under Article 310 of the Constitution, every person, who is a member of the defense service, holds oce during the pleasure of the President. In the case of civil servants the Pleasure doctrine in subject to certain restrictions provided in Article 311, but that has no application to members of the defense service. Section 18 embodies the rule enunciated in Article 310 of the Constitution so far as persons subject to the Act are concerned. The removal of the petitioner having been made by the Central Government, under section 19 of the Act, and nto by the President, the pleasure doctrine cannto be invoked. The Act, as already stated, makes a distinction between the power of the President and the Central Government. the power of the Central Government to dismiss or remove a person subject to the Act was specically made subject to the provisions of the Act and the rules and regulations, made there under such rules and regulations, in order to be valid, should nto be inconsistent with the provisions of the Act. Under the Act, unbecoming

65 conduct of an ocer can be pun- dent of section 45 or that section 19 ished only under section 45. gives independent power to the Cen(15) It follows that except where tral Government for dismissing cr reaction is taken by the President, un- moving persons subject to the Act is, der section 18 of the Act, any ocer, in our opinion, nto tenbble. Any such junior commissioned ocer or war- interpretation will amount to ignorrant ocer subject to the Act can ing in section 19 the words subject only be punished under section 45 of to the provisions of this Act and the the Act for behaving in a manner un- rul(r).s and regulations made there becoming the position and character under. expected of him. (16) The implication of the words subject to the provisions of this Act, occurring in section 19, is that power of the Central Government to dismiss or remove from service any person subject to the Act cannto be exercised contrary to the provisions of ihe Act or in toher words in derogation of the provisions of section 45. If the intention of the legislature had been to empower the Central Government to exercise those powers being restricted by the provisions of the Act, then the use of the words subject to the provisions of this Act was unnecessary. That the legislature did nto intend to give unfettered powers to the Central Government for purpose of dismissing or removing from service persons subject to the Act nds further support from the use of the words subject to the rules and regulations made there under. Rules and regulations can be made for the purpose of carrying into eect the provisions of the Act, which means that a rule or regulation cannto be made which is outside the scope of any of the provisions of the Act. The contention of the learned counsel for the Union of India that section 19 of the Act is indepen(17) The contention of Shri Shanker that the impugned rule was made with a view to facilitate the proper exercise of the power given to the Central Government under section 19 overlooks in that section the crucial words subject to the provisions of this Act. The eect of these words is that if a person subject to the Act is liable under any of the provisions of the Act to be dismissed or removed from service as a punishment for an oence, than without complying with the requirements of these provisions action cannto be taken by the Central Government by purporting to act under section 19 of the Act. (18) Rule 14 of the Rules clearly goes beyond the scope of sections 19, 45 and 191 of the Act and is inconsistent with those provisions. The power of the Central Government to dismiss or remove from service being subject to the provisions of the Act has to be exercised in conformity with section 46 of the Act. The rule, as it exists, has the eect of abrogating the provisions of buth sections 19 and 45. It appears that at the time of making this rule the opening words of section 19 subject to the provisions of this Act were lost sight of.

66 (19) The case of Om Parkash Bhardwaj, cited by the learned counsel for the Union of India, i elated to dismissal of a Wing Commander on the ground of moral turpitude, under section 19 of the Air Force Act, 1950, section 19 of the Act, 1950, corresponds to section 19 of the Act. while dealing with section 19 of the Air Force Act, 1950 in that case, the learned Judge made the following observations :- SECTION 19 of the said Act provides the tenure of service to be during the pleasure of the President. Section 19 gives an absolute power to the Central Government to dismiss or remove from service any person-subject to this Act. It is abundantly recognised that Persons who enter the military service and take the States pay, and who are content to act under the Presidents commission, although they do nto cease to be citizens in respect of responsibility yet they do, by a compact which is intelligible, and which requires only the statement of it to the consideration of any one of common sense become subject to military rule and military discipline. In case of civil servants certain special safeguards have been provided by Article 311 of the constitution. Those safeguards admittedly do nto extend to the army personnel. Admittedly, no rules have been framed in this behalf and there is, therefore, no question of any violation thereof. If any rules bad been framed and violated, possibly dierent considerations may have arisen. As the law however stands at present it seems to recognise that employment in Army is nto a right but only a privilege by the

S.K. Rao v. Union Of India 1967 sovereign at will and ecient management demands that power to appoint should necessarily include the power to dismiss. In Army matters the legislature has conferred on the Government the same proprietary, rights as provided to employers to hire and re without restrictions............ With great respect, we are unable to agree with this view. It appears that distinction between sections 18 and 19 of the Air Force Act,1950,was nto urged before his Lordship and the eect of the words subject to the provisions of this Act occurring in section 19 of that Act, was nut taken into consideration (20) The rule of pleasure as laid down in Article 310 of tie Constitution has been embodied in section 18 of the Act. When the services of a person subject to the Act are terminated by an authority ether then the President, then it is incumbent on that authority to proceed in accordance with the provisions of the Act. No rule can be validly made under section 91 of the Act which may authorise the Central Government or any toher authority to exercise the power of dismiss I or removal in a manner inconsistent with any provision of the Act (21) In conclusion, we hold that rule 14 of the Rules is ultra vires the provisions of sections 19, 45 and 191 of the Act. The removal of the petitioner under rule 14 cannto be sustained as the order of removal suers from lack of jurisdiction. The petition is, therefore, accepted and the order, dated April 9, 1959 whereby

67 the Petitioner was removed from ser- stances of the case, there will be no vice, is qusahed. In the circum- order as to costs.

68

S.K. Rao v. Union Of India 1967

Chapter 5

Delhi Police Est v. Lt Col S K Loraiya 1972


DELHI SPECIAL POLICE ES- of more than three years between TABLISHMENT, NEW DELHI v. commission of oences and framing of chargesCourt martial whether has LT. COL. S. K. LORAIYA PETITIONER: DELHI SPE- jurisdiction to try oences-Word juCIAL POLICE ESTABLISHMENT, risdiction in s. 549(1) Cr. P.C. and s. 125 Army Act, meaning of. NEW DELHI HEADNOTE: The respondent who was an army ocer was alleged RESPONDENT: LT. COL. S. K. to have committed certain oences LORAIYA under the Indian Penal Code and the DATE OF JUDGMENT24/08/1972 Prevention of Corruption Act 1947. BENCH: DWIVEDI, S.N. The oences were alleged to have BENCH: DWIVEDI, S.N. SHELAT, been committed in the year 1962. The special judge, Gauhati charged J.M. PALEKAR, D.G. CITATION: 1972 AIR 2548 1973 him with these oences in the year SCR (1)1010 1972 SCC (2) 692 CI- 1967. The High Court quashed the TATOR INFO : R 1986 SC1655 (8) charges on the ground inter alia that the procedure in s. 549(1) Cr. P.C. RF 1987 SC1878 (4) and the rules made thereunder had ACT: Code of Criminal Procenot been followed. The appellant in dure 1898, s. 549(1) and rules appeal by special leave to this Court made thereunderArmy Act 1950, ss. contended that since more than three 122 and 125-Army ocer charged years had elapsed between the comwith oences under I.P.C. and Premission of the oences and the framvention of Corruption Act 1947 by ing of the charges the court martial Special Judge-Procedure under s. had in view of s. 122(1) of the Army 549(1) and r. 3 not followed-Charges Act ceased to have jurisdiction to whether liable to be quashed-Lapse v.

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Delhi Police Est v. Lt Col S K Loraiya 1972 and not the ordinary criminal court has got jurisdiction to decide the issue of limitation. If the court martial nds that it cannot try the oence on account of the expiry of three years from the commission of the oence the Central Government can under s.127 of the Act sanction the trial of the oender by an ordinary criminal court. [1014D-F] Section 125 of the Army Act provides that when a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the commanding ocer to decide before which court the proceedings shall be instituted. Section 125 supports the view that the court martial alone has jurisdiction to decide the issue as to limitation. [1014H] The word jurisdiction in s.125 really signies the initial jurisdiction to take congnizance of a case. It refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court martial to decide the case on merits. Section 549(1) should be construed in the light of s.125 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the court martial. Both of them should receive the same construction. [1015B] It was an admitted fact that in the present case the procedure specied in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respondent. Section 549(1) Cr.P.C. and rule 3 are mandatory. Accordingly the charges framed by the Special

try the said oences and therefore s. 549(1) and the rules made thereunder were not attracted to the case. HELD, Section 549(1) Cr. P.C. is designed to avoid the conict of jurisdiction in respect of oences which are triable by both the ordinary criminal court and the court- martial. The clause for which he is liable to be tried either by the court to which this code applies or by a courtmartial qualies the preceding clause when any person is charged with an offence in s. 549(1). Accordingly the phrase ,is liable to be tried either by a court to which this Code applies or a court martial imports. that the offence for which the accused is to be tried should be an oence of which cognizance can be taken by an ordinary criminal court as well as court martial. The phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide on merits. It was admitted that both the ordinary criminal court and the court martial had concurrent jurisdiction with respect to the offences for which the respondent had been charged by the special judge. So s. 549 and the rules made thereunder were attracted to the case in hand. [1013H-1014C] Again, subsection (3) of s.122 of the Army Act provides that while computing the period of three years specied in subsection (1), any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the oence, shall be excluded. On a con- joint reading of sub-ss. (1) and (3) of s.122 it is evident that the court martial

71 Judge against the respondent could charges were framed by the Special not survive. [1013C] Judge without following the proceJUDGMENT: CRIMINAL AP- dure specied in the Rules made unPELLATE JURISDICTION : Crim- der s. 549 Cr.P.C.; and (2) the trial inal Appeal No. 79 of 1970. Ap- was held in the absence of a sancpeal by special leave from the judg- tion by the appropriate authority unment and order dated May 23, 1969 der S. 196A(2) of the Code of Crimof the Assam & Nagaland High Court inal Procedure in respect of the ofin Cr. Re- vision No. 31 of 1967. fences under s. 5 of the Prevention D. Mukherjee, G. L. Sanghi and R. of Corruption Act. The High Court N. Sachthey, for the appellant. A. took the view that such sanction was S. R. Chari and R. Nagaratnam, for essential as the oence under s. 5 the respondent. The Judgment of of the Prevention of Corruption Act the Court was delivered by. Dwivedi, is a non-cognizable oence. CounJ. The respondent, Lt. Col. S. K. sel for the appellant has submitted Loraiya, is in the army Service. In that both the reasons given by the November-December, 1962, he was High Court are erroneous. Taking posted as Commander, 625, Air Field up the rst reason rst, s. 5(1)(b) of Engineers, Tejpur. He was charged the Criminal Law Amendment Act, under s. 120B, Indian Penal Code 1966, could not give exclusive jurisread with s. 5 (1) (e) :and (d) and diction to the Special Judge, Gauhati s. 5(2) the Prevention of Corruption lo try the respondent. It is true that Act and under ss. 467 and 471 I.P.C. the trial started against him on June by the Special Judge, Gauhati, ap- 7, 1966, but the charges were framed pointed under the Prevention of Cor- on January 7, 1967, i.e., long after ruption Act, in respect of the oences June 7, 1966. Section 5(1)(b) does alleged to have been committed by not apply where charges are framed him in November-December, 1962, after June 7, 1966. So, prima facie as Commander, 625, Air Field En- both the ordinary criminal court and gineers, Tejpur. The trial started on court martial have concurrent jurisJune 7, 1966. but the charges were diction to try the respondent for the framed against him by the Special aforesaid oences. And S. 549(1) Judge on January 7, 1967. The re- Cr.P.C. applies to such a situa- tion. spondent led a revision against the The material part of S. 549(1) reads : framing of the charges in the High The Central Government may make Court of Assam and Nagaland. The rules consistent with this Code and High Court allowed the revision and the Army Act as to the cases in which quashed the charges. Hence this ap- persons subject to military law shall peal by the Delhi Special Police Es- be tried by a court which this Code tablishment, New Delhi, by special applies or by a court martial; and leave under Art. 136 of the Con- when any person is brought before stitution. The High Court quashed a Magistrate and charged with an the charges for two reasons : (1) The oence for which he is liable to be tried either by a court to which this

72

Delhi Police Est v. Lt Col S K Loraiya 1972 mitted fact in this case that the procedure specied in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respondent. Section 549 (1) Cr.P.C. and rule 3 are mandatory. Accordingly the charges, framed by the Special Judge against the respondent cannot survive. But counsel for the appellant has urged before us that in the particular circumstances of this case the respondent is not liable to be tried by a Court Martial. Section 122(1) of the Army Act, 1950, provides that no trial by court martial of any person subject to the Army Act for any oence shall be commenced after the expiry of the period of three years from the date of the oence. The oences are alleged to have been committed by the respondent in November-December, 1962,. So more than three years have expired from the alleged commission of the oence. It is claimed that having regard to s. 122(1), the respondent is not liable to be tried by courtmartial. This argument is built on the phrase is liable to be tried either by the court to which this Code applies or by a Courtmartial in s. 549(1). According to counsel for the appellant this phrase connotes that the ordinary criminal court as well as the Court Martial should not only have concurrent initial jurisdicdiction to take cognizance of the case but should also retain jurisdiction to try him upto the last stage of conviction or acquittal. We are unable to accept this construction of the phrase. As regards the trial of offences committed by, army men, the Army Act draws a threefold scheme.

Code applies or by a Courtmartial, such Magistrate shall have regard to such rules and shall in appropriate cases deliver him, together with a statement of the oence of which he is accused, to the commanding ocer of the regiment, corps . or detachment to which he belongs or to the commanding ocer of the nearest military station for the purpose of being tried by Court Martial. The Central Government has framed under s. 549(1) Cr. P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of jurisdiction) Rules, 1952. The relevant rule for our purpose is rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by a court martial also, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such a case, the Magistrate has to give notice to the Commanding Ocer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. The Commanding Ocer may inform the Magistrate that in his opinion the accused should be tried by the Courtmartial. Subsequent rules prescribe the procedure which is to be followed where the Commanding Ocer has given or omitted to give such information to the magistrate. It is an ad-

73 Certain oences enume- rated in the Army Act are exclusively triable by a Court- martial; certain other offences are exclusively triable by the ordinary criminal courts; and certain other oences are triable both by the ordinary criminal court and the court- martial. In respect of the last category both the courts have concurrent jurisdiction. Section 549(1) Cr. P.C. is designed to avoid the conict of jurisdiction in respect of the last category of oences. The clause for which he is liable to be tried either by the court to which this Code applies or by a court martial in our view, qualies the preceding clause when any person is charged with an oence in s. 549(1). Accordingly the phrase is liable to be tried either by a court to which this Code applies or a court martial imports that the offence for which the accused is to be tried should be an oence of which cognizance can be taken by an ordinary criminal court as well as a court martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of. the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the Court Martial have concurrent jurisdiction with respect to the oences for which the respondent has been charged by the Special Judge. So, S. 549 and the rules made thereunder are attracted to the case at hand. Again, subsection (3) of s. 122 of the Army Act provides that while computing the period of three years spectied in sub-section any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the oence. shall be excluded. On a con joint reading of sub-ss. (1) and of S. 122, it is evident that the court martial and not the ordinary criminal court has got jurisdiction to decide the issue of limitation. There it nothing on record before us to indicate that the respondent had not been evading arrest after commission of the oence. As the court martial has initial jurisdiction to enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the respondent inspite of subs. (1) of s. 122. The issue of limitation is a part of the trial before it. If the court- martial nds that the respondent cannot be tried on account of the expiry of three years from the date of the commission of the oence, he cannot be go scot free. Section 127 of the Army Act provides that when a person is convicted or acquitted by a court martial, he may, with the previous sanction of the Central Government, be tried again by an ordinary criminal court for the same oence or on the same facts. go it would be open to the Central Government to proceed against the respondent after the court martial has recorded a nding that it cannot try him on account of the expiry of three years from the date of the commission of the oence. Section 125 of the Army Act provides that when a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the ocer commanding the army, army corps division or independent brigade in which the accused person is serving to de-

74

Delhi Police Est v. Lt Col S K Loraiya 1972 be construed in the light of s. 126 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the courtmartial. So both of them should receive a similar construction. In the result, we are of opinion that the High Court has rightly held that as the charges were framed without following the procedure specied in the rules framed under s. 549 (1) Cr. P.C., they cannot stand. As this nding of ours is sucient to dispose of this appeal, we are not expressing any opinion on the correctness or otherwise of the second reason assigned by the High Court for quashing the charges. The appeal is dismissed. G.C Appeal dismissed.

cide before which court the proceedings shall be instituted and if that ocer decides that they should be instituted before a court martial he will direct that the accused person shall be detained in military custody. Sections 12 (1) and 12 5 both nd place in Chapter X of the Army Act. Section 125 supports our view that the court- martial alone has jurisdiction to decide the issue of limitation under s. 122(1). The word jurisdiction in s. 125 really signies the initial jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court martial to decide the case on merits. It appears to us that s. 549 ( 1) should

Chapter 6

Capt Harish Uppal v. Union Of India 1972


ACT: Captain Harish Uppal v. Union Of India And Others on 27 NovemArmy Act, 1950, Sections 158 ber, 1972 Equivalent citations: 1973 and 160-Upward revision of sentence AIR 258, 1973 SCR (2)1025 Bench: Whether violative of natural justice Alagiriswami, A. principle in the circumstances of the case. PETITIONER: Army Act, Section 160-Whether opportunity to be heard necessary v. when Conrming Ocer decides to RESPONDENT: send back the matter to the Court UNION OF INDIA AND OTH- Martial for considering upward reviERS sion of the sentence. DATE OF JUDGMENT27/11/1972 Army Act, Sections 112 and 157Whether the words authority and BENCH: Ocer denote dierent authorities. ALAGIRISWAMI, A. Army Act, Section 164-Whether opBENCH: portunity to be heard necessary beALAGIRISWAMI, A. fore conrmation of upward revision of sentence by the Army Chief of the VAIDYIALINGAM, C.A. Sta. CITATION: CAPTAIN HARISH UPPAL 1973 AIR 258 1973 SCR (2)1025 1973 SCC (3) 319 CITATOR INFO : RF 1991 SC 564 (5) RF 1991 SC1070 (6) HEADNOTE: The petitioner was found guilty by the Court Martial (acting under the Army Act) under section 392 IPC of committing robberies of a bank property and the private property

76

Capt Harish Uppal v. Union Of India 1972 justice inasmuch as that the Court Martial while re-considering the sentence did not act as a free agent, that no opportunity of being heard was given to the Ocer at the time of remand and at the time of the nal conrmation by the Army Chief of the Sta and that the revision was recommended by an ocer subordinate in rank to the ocer who convened the Court Martial. In dismissing the petition, HELD : (i) Sec. 158 of the Army Act describes the procedure regarding the re-consideration of the sentence by the Court Martial. In considering a petition led under Art. 32 of the Constitution, the only relevant Article is Art. 21, and the procedure established by law has been cornpletely followed in this case. The circumstances requiring the reconsideration pointed out by the Ocer Commanding were unexceptionable and there was no violation of the principle of natural justice. The petitioner failed to appear before the Court Martial in the fresh bearing. [1031 C-D] A. K. Kraipak & Ors. Etc. v. Union of India and Ors. [1970](1) SCR 457 and Purtabpore Co. Ltd. v. Cane Commissioner- of Bihar & Ors. [1969] (2) SCR 807, distinguished. (ii) No opportunity to be heard was necessary before the Conrming Ocer formed the opinion to send the case back to the Court Martial for re-consideration of sentence. [1032 C] (ii) The words authority and Ocer in Sec. 112 of the Army

of the Manager and peons of the Batik during the period of the liberation of Bangladesh, in Bangla Desh. The Court Martial sentenced the petitioner to be cashiered. When the matter went to the Ocer Commanding under whom the petitioner was working as an Ocer, for conrmation of the sentence u/s 153 of the Act, he returned the same to the Court Martial for re-considering whether the upward revision of sentence was necessary in the light of the observations made by the Conrming Ocer. The Conrming Ocer had pointed out in his report that the robberies were committed during the liberation of Bangladesh where the Indian Forces had gone as liberators and as guardians and custodians of the life and property of the people of Bangladesh. Considering the nature aid gravity and maintenance of high standard of discipline in the Armed Forces, the sentence awarded was not commensurate. The Conrming Ofcer further directed that the delinquent ocer should be given opportunity to address the Court, if he so de-sired, if the Court decides to enhance the sentence. In the fresh proceedings before the Court Martial, the Ocer did not present himself. The Court Martial revoked the earlier sentence and sentenced him to be cashiered and to suer rigorous imprisonment for two years. The said sentence was duly conrmed by the Chief of the Army Sta. in the petition challenging the legality of the order under Art., 32 of the Constitution, the petitioner contended that the impugned order was bad for the violation of the principle of natural

77 Act have one and the same meaning. The Ocer recommending the reconsideration of the sentence was also an Ocer commanding the Division though he was only ociating and was a Brigadier. The actual conrmation of the enhanced sentence was made by the Chief of Army Sta who was higher in rank than the convening Ocer. [1033 C] (iv) In the face of the very clear indication in the Constitution, the provisions of Code of Criminal Procedure cannot be adopted in respect of Court Martial. It is as open to the petitioner to make a petition to the Chief of the Army Sta under section 164 of the Army Act which he did not do. [1O33 H] JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 456 of 1972. Petition under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. A. K. Sen and B. Datta for the petitioner. F. S. Nariman. Addl. Solicitor-General of India, B. D. Sharma and S. P. Nayar for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The petitioner was an ocer of the Indian Army who served in Bangla Desh. On 11th December, 1971 he was in a place called Hajiganj. He was tried before the Summary General Court Martial on the charge of committing robbery at Hajiganj by causing fear of instant hurt to the Custodian of the United Bank Ltd., of certain properties belonging to the Bank and also the personal property of the Manager of the Bank as well as of a Chowkidar of the Bank. The Court sentenced the petitioner to be cashiered. This sentence was subject to conrmation under the provisions of Chapter XII of the Army Act, Maj-Gen. Hira, General Ocer Commanding, 23 Mountain Division, of which the petitioner was an ocer, passed an order directing the revision of the sentence. Thereafter the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the conrming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suer rigorous imprisonment for two years. Brig. D. P. Bhilla, the Ociating General Ofcer Commanding 23 Mountain Division, referred the nding and sentence for conrmation to the Chief of the Army Sta, who in due course conrmed the nding and the sentence. The present petition is led under Article 32 of the Constitution for quashing the order passed by the Chief of the Army Sta, after setting aside the order passed by Maj-Gen. Hira. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against, the petitioner should be quashed: 1. The authority to conrm the sentence passed by a Court Martial does not confer on the conrming authority the power to enhance the sentence. That authority cannot, there-

78

Capt Harish Uppal v. Union Of India 1972 in section 71. Under Section 160, any nding or sentence of a court martial which requires conrmation may be once revised by order of the conrming authority and on such revision, the court, if so directed by the conrming authority, may take additional evidence. Even after revision the sentence passed by the court martial would have to be conrmed because of provision of Section 153. The order passed by MajGen. Hira directing revision of the sentence passed by the court martial is as follows : The Summary General Court Martial, which assembled at Field, on 9 March 1972 and subsequent days for the trial of IC-16394 Substantive Lieut (Actg. Capt.) HARISH UPPAL, Arty, 198 Mountain Regiment, will reassemble in open court on 15 May 1972 at Field at 1000 hrs for the purpose of reconsidering the sentence awarded by it, whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations of the Conrming Ocer. 2. The accused was convicted by the Court, under Army Act Section 69 for committing a civil oence, that is to say, Robbery, contrary to section 392 of the Indian Penal Code, the particulars hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by causing fear of instant hurt to the Custodians committed Robbery in respect of the undermentioned articles, the property belonging to the persons indicated as follows (a) The

fore, achieve that object indirectly by directing the revision of the sentence. The Court Martials verdict should be unfettered. 2. In any case, the conrming authority should have given a hearing to the aected party. 3. The conrmation can be made only by the ocer who convened the Court Martial and not by a dierent ocer as was done in this case. 4. The ocer who nally conrmed the sentence on the petitioner should also have heard the petitioner. (1) The ocer who convened the Summary General Court Martial, which tried the petitioner, was MajGen. Hira. It was he that directed the revision of the sentence passed on the petitioner. The argument is that this order was in such terms that the Court Martial which revised the sentence was compelled to and was left with no alternative but to enhance the sentence and that this was against all principles of natural justice. Under Section 153 of the Army Act no nding of a Court Martial shall be valid except so far as it may be conrmed as provided under the Act. Under Section 157 the ndings and sentences of summary general courts martial may be conrmed by the convening ocer or if he so directs, by an authority superior to him. Under Section 158, a conrming authority may, when conrming the sentence of a court martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down

79 property of the United Bank Ltd. the oence under IPC Sec. 392 is COMILLA Dist. 10 years RI. Even though the proper (i) Cash in Pakistan Currency. amount of punishment to be inicted Rs. 11,222.91 (ii) 28-12 Bore guns is the least amount by which disciRegistered Two with s No. 027373 pline can be eectively maintained, it is nevertheless equally essential that and 342. cartridges. the punishment awarded should be (iii) Wall clock. One appropriate and commensurate with (iv) Telephone Set Auto TIP One the nature and gravity of the of(Sky Blue) fence and adequate for the mainte(v) Telephone CE without One nance of the high standard of discipline in the Armed Forces. It should hand set (Black) be clearly borne in mind that our (vi) Pens (eagle) Two Forces had been ordered to march (vii) Locks with four keys TWO into BANGLADESH as the libera(viii) Winter uniform of peons tors of the oppressed people who had and Two pairs guard. been subjected to untold torture and (b) Personal property of Shri miseries at the hands of Pak troops. MAKALAM, Manager, United Bank It is, therefore, clear that our Forces Ltd., HAJIGANJ Branch: Wrist had gone there as guardians and custodians of the lives and property of Watch (Romer popular) One (c) Personal property of Shri the persons of that country. The conHabibullah, Chowkidar, United duct of the accused by indulging in Bank Ltd., Hjiganj Branch: PAK- broad day light bank robbery is despicable and his stooping so low as ISTAN Currency Rs. 6/to deprive Shri HABIBULLAH (PW3. It is, therefore, apparent 2), Chowkidar of the United Bank that apart from the property of the Ltd., of paltry amount of Rs. 6 United Bank, Ltd., the accused com- in Pak currency as also his taking mitted robbery in respect of the per- away the Romer Wrist watch from sonal properties of its two custodi- Shri MAKALAM (PW-4), Manager ans at a time when the War of lib- of the said Bank, is indeed highly eration of BANGLADESH was still reprehensible. Such actions on the being waged on some fronts though part of responsible ocer of the Inthe hostility in the town had ceased dian Army are calculated to bring a in HAJIGANJ area and the situation blot on the fair name of the Indian was fast returning to normalcy. Army. It is, therefore, our imperative 4. It would be appreciated that duty to ensure that such cases dealt the charge of which the accused was with rmly when a verdict of guilty convicted is of a very serious na- has been returned by the court. ture. The punishment of Cashiering, 5. There are certain norms and therefore, awarded for the oence ap- standards of behaviour laid down in pears to be palpably lenient. The the Armed Forces for strict adhermaximum punishment provided for

80

Capt Harish Uppal v. Union Of India 1972 General Ocer Commanding the Division the ocers constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on them by the Ocer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provisions of the Army Act set out earlier the conrming authority could himself mitigate or remit the punishment awarded by the court martial or commute that punishment for any lower punishment and, therefore, when a sentence is directed to be revised by the conrming authority it necessarily means that the conrming authority considers that the punishment awarded by the court martial is not commensurate with the oence and it should, therefore, be revised upwards. To object to this is to object to the provisions of section 158 itself. A direction by the conrming authority merely showing that the punishment awarded by the court martial is not commensurate with the oence, would be certainly unexceptionable and would be in accordance with- the provisions of law. Instead of baldly stating so the conrming authority in this case has given reasons as to why he considers that the punishment awarded to the petitioner was wholly inadequate.

ence by persons who have the honour to belong to the Corps of Ocers of the Indian Army. A person of the rank, of an ocer, who indulges in such an oence, should, therefore, be awarded suitable punishment. In the course of six years commissioned service he had once been convicted under Army Act Sect-ion 41(2) for disobeying a lawful command given by his superior ocer in the execution of his duties for which he was severely reprimanded on 13 June 1970. 6. The accused/or his defending ocer/counsel should be given an opportunity to address the court, if so desired. The court should then carefully consider all the above and should they decide to enhance the sentence, then the fresh sentence should be announced in open court as being subject to conrmation. 7. The, attention of the court is drawn to Army Act Section 160, Army Rule 68 and the form of proceedings on revision given on page 370 of N1ML (1961 Reprint), which should be amended to conform to the provisions of Army Rule 67(1). 8. After revision, the proceedings shall be returned to this Headquarters. Sd/(R. D. HIRA) Maj-Gen. General Ocer Commanding 23 Mtn Div. Field

We consider that the reasons, given by him cannot be taken exception to. It was urged that the con03 May 1972. It was contended that in the face rming authority proceeded on the of such strong observations by the basis that in respect of the charges

81 against the petitioner the evidence available was as he had set out in his order directing revision and that this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed the court martial itself could not have set out the evidence against the petitioner; it should have only given the nding and the sentence. Under the provisions of Article 136(2) of the Constitution this Court cannot grant special leave in respect of any judgment, determination or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. In considering a petition led under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure estab- lished by law as required under that Article has been completely followed in this case. It is, however, urged that the decisions of this Court have laid down that the rules of natural- justice operate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required under Article 21, the principles of natural justice should also be followed. The cases relied on are A. K. Kraipak & Ors. etc. v. Union of India & Ors. (1) and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar & Ors. (2). This Court in the rst decision had pointed out that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. It was also pointed out that the Court has to decide whether the observance of that rule was necessary for a just decision and that the rule that enquiries must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. There is no analogy between the facts of that case and the present and applying the ratio of that to the facts of this case we are not satised that any rule of natural justice has been violated. The latter was a case where the authority competent to pass the order had simply passed an order adopting what the Minister had directed and had not applied his mind. The facts of this case are quite dierent. The conrming authority while pointing out the facts had left the discretion regarding the punishment to be imposed to the court (1) [1970] 1 S.C.R. 457.(2) [1969] 2 S.C.R. 807 martial. If the court martial in spite of the direction given by the conrming authority had rearmed its original order, the conrming authority could do nothing because it can exercise its power of directing revision only once, and that power was already exhausted. Furthermore, when the court martial reassembled to revise its earlier order under the directions

82

Capt Harish Uppal v. Union Of India 1972 also made it clear,. that the court martial was not bound by his opinion by stating that should the court martial decide to enhance the sentence the fresh sentence should be announced in open court as being subject to conrmation. Right in the beginning of his order he had also stated Whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations. To hold in the circumstances that the conrming authority should have, heard the appellant before he directed the revision of the sentence passed on him would not be a requirement of principle of natural justice. In the circumstances and facts of a case like the present one where the petitioner had an opportunity of putting forward whatever contentions he wanted to rely upon before the court martial, we do not consider that there is any- substance in this contention. 3) The contention here was that while the court martial was convened by a Maj-General the ocer who directed revision was a Brigadier, and that only the convening ocer can conrm or direct revision. This is perhaps the one contention with the least substance put forward on behalf of the petitioner. The contention is based on the words found in Section 157 of the Army Act that the ndings and sentences of summary general courts martial may be conrmed by the convening ocer or if he so directs, by an authority superior to him. The words convening ocer and an authority superior to him are

of the conrming authority, the petitioner was given the reasons of the conrming ocer for requiring revision and asked whether he wanted to address, the court, he replied in the negative. It was open to him to have pointed out to the court martial how the observations of the conrming authority were wrong, how they were not borne out by the evidence on record. Having failed to avail himself of the opportunity accorded to him, the petitioner cannot be now heard to complain that he was not given an opportunity by the conrming authority before he directed revision. The court martial had originally found the petitioner guilty of the charge of robbery, under Section 392 of the Indian Penal Code. There was, therefore, no question of the court martial, when it proceeded to reconsider the matter, of reconsidering the nding of guilty. Therefore, any attempt to question the order of the conrming authority on the basis that he relied upon facts which were not proved for directing revision, is wholly beside the point. And as far as the question of sentence is concerned, one cannot quarrel with the sentiments expressed by the conrming authority. We nd ourselves unable, therefore, to agree to petitioners contention that the order of the conrming authority directing revision is in any way vitiated. (2) We have already held above that the conrming authority, when he directed a revision of the sentence passed on the petitioner, was only exercising the powers conferred on him by Section 160 of the Army Act. He

83 sought to be contrasted and it is argued that while a conrmation can only be by a convening ocer and by no other, the authority superior to hi-in may also conrm showing that in the latter case neither the rank of authority nor the person holding the post is relevant. Section 112 of the Act which deals with the power to convene a summary general court martial shows that this attempted distinction between authority and ocer is without substance. The ocer is the authority and the authority is the ocer. Both the words refer only to one person. To accept this argument would mean that if the ocer who convened the court martial is transferred to a distant place or retires or is dead, the whole procedure would have to be gone through again. A useful comparison will be of decisions under Article 311 of the Constitution where it has been held that the power to dial with an ofcer under that Article can be exercised even by an authority lower in rank to the authority which originally appointed the ocer, if at the, relevant period of time that authority was competent to appoint the ofcer sought to be dealt with. It may be noted that in this case the ocer who convened the court martial was a Maj-General Ocer Commanding the 23rd Mountain Division, and the ocer who directed that the ndings and sentence should be conrmed by the Chief of Sta was also the ocer Commanding the same Division, though he was only ociating and was a Brigadier. The conrmation itself was by the Chief of Army Sta, higher in rank than the convening ofcer. (4) The contention that Bring Bhilla should either have given a hearing to the petitioner or the Chief of Army Sta should have given a hearing to the petitioner before conrming the subsequent sentence by the court martial is not a requirement under the Act. While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in eect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the conrming authority should give a hearing to the petitioner before it conrmed the sentence passed by the court martial, is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are 1034 applicable to all the civil cases are not applicable to cases; of Armed Personnel. It is not a requirement of the principles of natural justice. Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Sta for conrmation it was open to the petitioner to have availed himself of the remedy provided tinder Section 164 of presenting a petition to the conrming ocer, i.e. the Chief of the Army Sta in this case. He does not appear to have done so.

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Capt Harish Uppal v. Union Of India 1972

We are, therefore, of the opinion that and dismiss it. there are no merits in this petition S.B.W. Petition dismissed.

Chapter 7

O K Achudan Nair v. Union of India 1975


Ous Kutilingal Achudan Nair & tution provides an exception to the Ors v. Union of India & Ors [1975] Preceding Articles in Part III including Act. 19(1)(c). By Art. 33, ParINSC 284 (20 November 1975) SARKARIA, RANJIT SINGH liament is empowered to enact law SARKARIA, RANJIT SINGH RAY, determining to what extent any of A.N. (CJ) BEG, M. HAMEEDUL- the rights conferred by Part III shall. in their application to the members LAH SHINGAL, P.N. of the armed forces or forces charged CITATION: 1976 AIR 1179 1976 with the maintenance of public order, SCR (2) 769 1976 SCC (2) 780 be restricted or abrogated so as to CITATOR INFO: ensure the proper discharge of their F 1983 SC 658 (10) E&R 1987 SC duties and the maintenance of discipline among them. [770GH, 771A] 379 (10) F 1987 SC 413 (2) By virtue of s. 2(l) of the Army Act, ACT: the Central Government was comConstitution of India, 1950-Art. petent to make rules restricting or 33-Scope of. curtailing the Fundamental Rights of Army Act, 1950, S.. 2(1)-Civilian civilian employees of Defence Estabemployees of defence establishments- lishments to form trade unions under If could form trade unions. Art. HEADNOTE: 19(1)(c) of the Constitution. AlOn the question whether civilian though they are non- combatants and employees of Defence Establishments are in some matters governed by have the right to form trade unions the civil service regulations, yet they under Art, 19(1) (c) of the Constitu- are? integral to the armed forces. They answer the description of the tion, HELD: Article 33 of the Consti- members of the armed forces within

86

O K Achudan Nair v. Union of India 1975

the contemplation of Art. 33. [771- mandant also issued a notice to the B-D] appellants to show cause why disciCIVIL APPELLATE JURIS- plinary action be not taken against DICTION: Civil Appeal No. 18 1 them for forming this unlawful association. of 1974. Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974. K. R. Nambiar for the appellant. The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by Art. 19(1)(c) of the Constitution.

In their reply-adavit, the reL. N. Sinha, Sol. General of India spondents averred that the Civilian and Girish Chandra for respondents. Non-Combatants in the Defence EsThe Judgment of the Court was tablishments were governed by the delivered by SARKARIA, J. This is Army Act and were duly prohibited an appeal by special leave against by Rules framed thereunder from a judgment of the High Court of joining or forming a Trade Union; Andhra Pradesh. The appellants are that the associations in question were oce-bearers of the Civil Employees formed in breach of that prohibition, Unions in the various Centers of the and were therefore, validly declared Defence Establishments of Secunder- illegal. abad and Hyderabad. They led a The learned Judge of the High writ petition in the High Court to imCourt, who tried the petition, held pugn the authority of the Commanthat the right of the appellants to dants (Respondents 2 and 3 herein) form associations given by Art. 19(1) in declaring the Unions, represented (c) of the Constitution, had been by the appellants as unlawful associlawfully taken away. He accordingly ations. dismissed the petition. The Registrar of Trade-Unions The appellants carried an appeal had issued Certicates of Registrato the appellate Bench of the High tion to the four Unions represented Court. The Bench dismissed the apby the appellants between 1954 and peal holding that the impugnea ac1970. The General Secretary of Class tion was not without jurisdiction. IV, Civil Employees Union, Bolaram, The main contention of Mr. K. Secunderabad was informed, per letR. Nambiyar, appearing for the apter dated 770 12-5-1971, by the Under Secretary of the Government of pellants is that the members of the India, Ministry of Defence that their Unions represented by the appelUnions could not be granted recogni- lants, though attached to the Detion as these employees being in the fence Establishments, are civilians, Training Establishments, were not designated as Non- Combatants UnThey include cooks, entitled to form Unions. The Com- Enrolled.

87 chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc. and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called members of the Armed Forces covered by Art. 33 of the Constitution. The points sought to be made out are: that the members of the appellants Unions are not subject to the Army Act as they do not fall under any of the categories enumerated in sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned notications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution. For reasons that follow, the contentions must be repelled. Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including Art. 19(1) (c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure 771 the proper discharge of their duties and the maintenance of discipline among them. any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specied by the Central Government by notication in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army. The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are noncombatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the members of the Armed Forces within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army Act, the Central Government was competent by notication to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c). Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms. No persons subject to the Act shall without the express sanction of the Central Government:

In enacting the Army Act, 1950, (i) xx xx xx (ii) be a member of, in so far as it restricts or abrogates or be associated in any way with, any

88

O K Achudan Nair v. Union of India 1975 ments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notication, persons not covered by s. (i) of s. 3 also as persons on active service. 772 In view of these notications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution. The appeal fails and is dismissed. There will be no order as to costs.

trade union or labour union, or any class of trade or labour unions In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notication dated 11-2-1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notication dated 23-2-1972, issued under r.79, of the Army Rules, civilian employees of the training establish-

Chapter 8

Maj Gen D.S. Nakara v. Union Of India 1982


D.S. Nakara Others vs Union Of India on 17 December, 1982 Equivalent citations: 1983 AIR 130, 1983 SCR (2) 165 Bench: Desai, D.A. PETITIONER: D.S. NAKARA OTHERS v. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT17/12/1982 BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J) CITATION: 1983 AIR 130 1983 SCR (2) 165 1983 SCC (1) 305 1982 SCALE (2)1213 CITATOR INFO : R 1983 SC 937 (34) R 1984 SC 121 (28) R 1984 SC1064 (18) R 1984 SC1247 (1) RF 1984 SC1361 (19) RF 1984 SC1560 (2) F 1985 SC1196 (2,7) D 1985 SC1367 (39,43) RF 1986 SC 210 (19,20,22,26) R 1986 SC 584 (1) R 1986 SC1907 (1,2) R 1987 SC 943 (8) RF 1987 SC2359 (17) D 1988 SC 501 (3,4,6,7) RF 1988 SC 740 (13) D 1988 SC1291 (9) R 1988 SC1645 (8) D 1989 SC 665 (7) F 1989 SC2088 (7) R 1990 SC 334 (104) RF 1990 SC 883 (6) E 1990 SC1760 (9)

90

Maj Gen D.S. Nakara v. Union Of India 1982 RF 1990 SC1923 (3) D 1990 SC2043 (2,7) Forces personnel retiring on or after April 1, 1979. Petitioners 1 and 2 who had retired in the year 1972 from the Central Civil Service and the Armed Forces service respectively, and petitioner No. 3, a registered society espousing the cause of pensioners all over the country, challenged the validity of the above two memoranda in so far as the liberalisation in computation of pension had been made applicable only to those retiring on or after the date specied and the benet of liberalisation had been denied to all those who had retired earlier.

E 1991 16,18,19,23)

SC1182

(6

TO

RF 1991 SC1743 (1,2,4) R 1992 SC 96 (11) R 1992 SC 767 (2,4,TO 8,10) ACT:

Constitution of India, Art. 14Central Civil Services (Pension) Rules, 1972 and Regulations governing pension for Armed Forces Personnel-Liberalisation in computation of pension eective from specied date-Divides pensioners so as to Counsel for petitioners contended confer benet on some while denying that all pensioners entitled to receive it to others- Classication arbitrary, pension under the relevant rules form devoid of rational nexus to object of a class irrespective of the dates of liberalisation and violative of Art. 14 their retirement and there cannot be Constitution of India, Art. 14- a mini-classication within this class; Doctrine of severability-Severance that the dierential treatment acmay have eect of enlarging scope of corded to those who had retired prior legislation. to the specied date is violative of Rules and Regulations governing Art. 14 as the choice of specied date grant of pension- Pension is a right- is wholly arbitrary and the classicaDeferred portion of compensation for tion based on the fortuitous circumservice rendered-Also a social-welfare stance of retirement before or subsequent to the specied date is invalid; measure. and that the scheme of liberalisation HEADNOTE: in computation of pension must be By a Memorandum dated May uniformly enforced with regard to all 25, 1979 (Exhibit P-1) the Govern- pensioners. ment of India liberalised the formula Counsel for respondents confor computation of pension in respect tended that a classication based on of employees governed by the Central Civil Services (Pension) Rules, the date of retirement is valid for the 1972 and made it applicable to em- purpose of granting pensionary benployees retiring on or after March 31, ets; that the specied date is an 1979. By another Memorandum is- integral part of the scheme of libersued on September 23, 1979 (Exhibit alisation and the Government would P-2) it extended the same, subject never have enforced the scheme deto certain limitations, to the Armed void of the date; that the doctrine

91 of severability cannot be invoked to sever the specied date from the scheme as it would have the eect of enlarging the class of pensioners covered by the scheme and when the legislature has expressly dened the class to which the legislation applies it would be outside the judicial function to enlarge the class; that there is not a single case where the court has included some category within the scope of provisions of a law to maintain its constitutionality; that since the scheme of liberalisation has nancial implications, the Court cannot make it retroactive; that if more persons divided the available cake the residue falling to the share of each, especially to the share of those who are not before the court would become far less and therefore no relief could be given to the petitioners that pension is always correlated to the date of retirement and the court cannot change the date of retirement and impose fresh commutation benet which may burden the exchequer to the tune of Rs. 233 crores; and that the third petitioner has no locus standi in the case. Allowing the petitions, HELD: Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated dierently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. Article 14 forbids class legislation but permits reasonable classication for the purpose of legislation. The classication must be founded on an intelligible dierentia which distinguishes persons or things that are grouped together from those that are left out of the group and that dierentia must have a rational nexus to the object sought to be achieved by the statute in question. In other words, there ought to be causal connection between the basis of classication and the object of the statute. The doctrine of classication was evolved by the Court for the purpose of sustaining a legislation or State action designed to help weaker sections of the society. Legislative and executive action may accordingly be sustained by the court if the State satises the twin tests of reasonable classication and the rational principle correlated to the object sought to be achieved. A discriminatory action is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. [176 B, 178 D-E, 179 B-C, 177 CD, 179 C-D, 176 E-F, 179 H, 180 A-C] Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621; Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors., [1959] S.C.R. 279; In re Special Courts Bill, [1979] 2 S.C.R,

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Maj Gen D.S. Nakara v. Union Of India 1982 putation of pension average emoluments of the last 36 months service of the employee provided the measure of pension. By the liberalised scheme, it is now reduced to average emoluments of the last 10 months service. Pension would now be on the higher side on account of two fortuitous circumstances, namely, that the pay scales permit annual increments and usually there are promotions in the last one or two years of the employees service. Coupled with it a slab system for computation has been introduced and the ceiling of pension has been raised. Pensioners who retired prior to the specied date would suer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling. [191 A-D] (iii) Both the impugned memoranda do not spell out the raison detre for liberalising the pension formula. In the adavit in opposition it is stated that the liberalisation was decided by the government in view of the persistent demand of the employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the pre-liberalised scheme did not provide adequate protection in old age, and that a further liberalisation was necessary as a measure of economic security. The government also took note of the fact that continuous upward movement of the cost of living index and diminishing purchasing power of rupee necessitated upward revision of pension. When the government favourably responded to the demand it thereby

476; E.P Royappa v. State of Tamil Nadu, [1974] 2 S.C.R. 348; Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors., [1981] 2 S.C.R. 79; Air India etc. v. Nargesh Meerza Ors., [1982] 1 S.C.R. 438 and Ramana Dayaram Shetty v. International Airport Authority of India Ors., [1979] 3 S.C.R. 1014, referred to. In the instant case, looking to the goals for the attainment of which pension is paid and the welfare State proposed to be set up in the light of the Directive Principles of State Policy and Preamble to the Constitution it indisputable that pensioners for payment of pension from a class. When the State considered it necessary to liberalise the pension scheme in order to augment social security in old age to government servants it could not grant the benets of liberalisation only to those who retired subsequent to the specied date and deny the same to those who had retired prior to that date. The division which classied the pensioners into two classes on the basis of the specied date was devoid of any rational principle and was both arbitrary and unprincipled being unrelated to the object sought to be achieved by grant of liberalised pension and the guarantee of equal treatment contained in Art. 14 was violated inasmuch as the pension rules which were statutory in character meted out dierential and discriminatory treatment to equals in the matter of computation of pension from the dates specied in the impugned memoranda. [190 F-H, 194 A-C, 194 F-H] (ii) Prior to the liberalisation of the formula for com-

93 ipso facto conceded that there was a larger available national cake, part of which could be utilised for providing higher security to retiring employees. With this underlying intendment of liberalisation, it cannot be asserted that it was good enough only for those who would retire subsequent to the specied date but not for those who had already retired. [191 F-G, 192 A, 191 H, 192 B] 2. If removal of arbitrariness can be brought about by severing the mischievous portion, the discriminatory part ought to be removed retaining the benecial portion. [198 F] In the instant case, the petitioners do not challenge, but seek the benet of the liberalised pension scheme. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation. There is nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specied date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having an undesirable eect of dividing a homogeneous class and of introducing discrimination the same can be easily severed and set aside. It is therefore just and proper that the words introducing the arbitrary fortuitous circumstance which are vulnerable as denying equality be severed and struck down. In Exhibit P-1 the words: That in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date, and in Exhibit P-2, the words: the new rates of pension are effective from Ist April 1979 and will be applicable to all service ocers who became/become noneective on or after that date are unconstitutional and are struck down with the specication that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specied date, irrespective of the date of retirement. Arrears of pension prior to the specied date as per fresh computation is not admissible. [190A-C, 198 G, 198 E-F, 205 F-H, 209 F-H, 210 A-D] D.R. Nim v. UNion of India, [1967] 2 S.C.R. 325; and Jaila Singh Anr. v. State of Rajasthan Ors., [1975] Supp. S.C.R. 428, relied on. Union of India Anr. v. M/s. Parameswaran Match Works etc., [1975] 2 S.C.R. 573; and D.C. Gouse Co. etc. v. State of Kerala Anr. etc., [1980] 1 S.C.R. 804, explained and distinguished. Louisville Gas Co. v. Alabama Power Co., 240 U.S. 30 [1927], referred to. (ii) The reading down of the impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable. The Court is not legislating in reading down the memoranda; when the

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Court strikes down the basis of classication as violative of Art. 14 it merely sets at naught the unconstitutional portion retaining the constitutional portion. There is no difculty in implementing the scheme omitting the event happening after the specied date, retaining the more human formula for computation of pension. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specied date. The Court is satised that the additional nancial liability that may be imposed by bringing 169

down the Parliament would not have enacted the measure. The executive, with parliamentary mandate, liberalised the pension scheme. It is implicit in the scheme that the need to grant a little higher rate of pension to the pensioners was considered eminently just. One could have understood persons in the higher pay bracket being excluded from the benet of the scheme because it would have meant that those in the higher pay bracket could fend for themselves. Such is not the exclusion. The exclusion is of a whole class of people who retired before a certain date. Parliament would not have hesitated to extend the benet otherwise considered eminently just and this becomes clearly discernible from in pensioners who retired prior p.35 of the 9th Report of the Comto April 1, 1979 within the fold of mittee on Petitions (6th Lok Sabha), the liberalised pension scheme is not April 1979. [206 H, 207 A-E] too high to be unbearable or such (v) Whenever classication is as would have detracted the Govern- held to be impermissible and the ment from covering the old pension- measure can be retained by removers under the scheme. The severance ing the unconstitutional portion of of the nefarious unconstitutional part the classication, the resultant eect does not adversely aect future pen- may be of enlarging the class. In such sioners and their presence in these a situation the court can strike down petitions is irrelevant. the words of limitation in an enact[204 G-H, 197 E-F, 206 B, 196 G, ment. That is what is called reading 208 G, 199 B] (iii) To say that by down the measure. There is no prinits approach the Court is restructur- ciple that severance limits the scope ing the liberalised pension scheme is of legislation but can never enlarge it. to ignore the constitutional mandate. [205 B-C] Jaila Singh Ors. v State of The Court is not conferring benets Rajasthan Ors., [1975] Supp. S.C.R. by its approach; it is only removing 428 and Randhir Singh v. Union of the illegitimate classication and af- India Ors. [1982] 1 S.C.C. 618, relied ter its removal the law takes its own on. course. [206 D-E] (vi) The absence of precedent (iv) It is not correct to say that does not deter the court. Every new if the unconstitutional part is struck norm of socio-economic justice, every

95 new measure of social justice commenced for the rst time at some point of time in history. If at that time it was rejected as being without a precedent, law as an instrument of social engineering would have long since been dead. [193 G, 193 C- D] (vii) The court is not making the scheme of liberalisation retroactive by its approach. Retroactiveness is implicit in the theory of wages. When revised pay-scales are introduced from a certain date, all existing employees are brought on to the revised scales adopting a theory of tments and increments for past service. The benet of revised scales is not limited to those who enter service subsequent to the date xed for introducing revised scales but is extended to all those in service prior to that date. Even in the case of the new retiral benet of gratuity under the Payment of Gratuity Act, 1972, past service was taken into consideration. The scheme of liberalisation is not a new retiral benet; it is an upward revision of an existing benet. Pension has correlation to average emoluments and the length of qualifying service and any liberalisation would pro tanto ber etroactive in the narrow sense of the term. Assuming the government had not prescribed the specied date and thereby provided that those retiring, pre and past the specied date, would all be governed by the liberalised pension scheme it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and eective from the date the revised scheme comes into force. A statute is not properly called retroactive because a part of the requisites for its action is drawn from a time antecedent to its passing. (viii) There is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. The pension scheme, including the liberalised scheme, is non-contributory in character. The payment of pension is a statutory liability undertaken by the Government. Whatever becomes due and payable on account of pension is recognised as an item of expenditure and is budgeted for every year. At any given point of time there is no xed or pre-determined pension fund which is divided amongst eligible pensioners. [195 C-G] (ix) The date of retirement of each employee remaining as it is, there is no question of fresh commutation of pension of the pensioners who retired prior to 31st March 1979 and have already availed of the benet of commutation. It is not open to them to get that benet at this late date because commutation has to be availed of within the specied time limit from the date of actual retirement. [206 C-D] 3. The discernible purpose underlying the pension scheme must inform the interpretative process and it should receive a liberal construction. [185 G-H] (i) Pension is a right; not a bounty or gratuitous payment. The payment of pension does not depend

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upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. [186 A-B]

tablishing a socialist welfare society. While examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light Deoki Nandan Prasad v.State of of the Preamble provides a reliable Bihar Ors.,[1971] Supp. S.C.R. 634 yardstick to hold one way or the and State of Punjab Anr.v Iqbal other. [190 E,187 F,189 A-B,189 H] Singh, [1976] 3 S.C.R. 360, referred Randhir Singh v. Union of India to. Ors., [1982] I S.C.C. 618 and Minerva (ii) The pension payable to a gov- Mills Ltd. Ors. v. Union of India ernment employee is earned by ren- Ors., [1981] I S.C.R. 206, referred to. dering long and ecient service and 4. Any member of the public therefore can be said to be a deferred having sucient interest can mainportion of the compensation for ser- tain an action for judicial redress vice rendered. [185 F] for public injury arising from breach (iii) Pension also has a broader of public duty or from violation of signicance in that it is a social- some provision of the Constitution welfare measure rendering socio- or the law and seek enforcement of economic justice by providing eco- such public duty and observance of nomic security in old age to those such constitutional or legal provision. who toiled ceaselessly in the hey-day The locus standi of petitioner No. 3 which seeks to enforce rights that of their life. [185 D- E, 186 B-C] may be available to a large number of (iv) Pension as a retirement benold, inrm retirees is unquestionable et is in consonance with and in furas it is a non-political, non-prot, therance of the goals of the Constivoluntary organisation registered untution. The goals for which pension der the Societies Registration Act, is paid themselves give a llip and 1860 and its members consist of pubpush to the policy of setting up a lic spirited citizens who have taken welfare state. The preamble to the up the cause of ventilating legitimate Constitution envisages the establishpublic problems. [208 H, 209 A-C] ment of a socialist republic. The baS.P.Gupta v. Union of India, [1981] sic framework of socialism is to proSupp. S.C.C.87, referred to. vide a decent standard of life to the JUDGMENT: working people and especially proORIGINAL JURISDICTION : vide security from cradle to grave. Article 41 enjoins the State to secure Writ Petition Nos. 5939-41 of 1980. public assistance in old age, sickness Anil B. Divan, Mrs. Vineeta Sen and disablement. Every state action Gupta and P.H.Parekh for the Petiwhenever taken must be directed and tioners must be so interpreted as to take soL.N.Sinha,Attorney General, ciety one step towards the goal of esM.M. Abdul Khader, N. Nettar and

97 Miss A. Subhashini for Union of India. G.L. Sanghi and Randhir Jain for the interveners. S.R.Srivastava for the Intervener. for an answer in the backdrop of a welfare State and bearing in mind that pension is a socio-economic justice measure providing relief when advancing age gradually but irrevoK.K. Gupta for the Intervener. cably impairs capacity to stand on The Judgment of the Court was ones own feet. delivered by Factual matrix has little releDESAI,J.With a slight variation vance to the issues raised and canto suit the context Wooleseys prayer vassed at the hearing. Petitioners 1 : had I served my God as reverently and 2 are retired pensioners of the as I did my king, I would not have Central Government, the rst being fallen on these days of penury is a civil servant and the second being chanted by petitioners in this group a member of the service personnel of of petitions in the Shellian tune : the Armed Forces. The third petiI fall on the thorns of life I bleed. tioner is a society registered under Old age, ebbing mental and physical the Societies Registration Act, 1860, prowess, atrophy of both muscle and formed to ventilate the legitimate brain powers permeating these petipublic problems and consistent with tions, the petitioners in the fall of life its objective it is espousing the cause yearn for equality of treatment which of the pensioners all over the counis being meted out to those who are try. Its locus standi is in question soon going to join and swell their own but that is a dierent matter. The ranks, rst petitioner retired in 1972 and on Do pensioners entitled to receive computation, his pension worked out superannuation or retiring pension at Rs. 675/- p.m. and along with under Central Civil Services (Pen- the dearness relief granted from time sion) Rules, 1972 (1972 Rules for to time, at the relevant time he was short) form a class as a whole ? Is the in receipt of monthly pension of Rs. date of retirement a relevant consid- 935/-. The second petitioner retired eration for eligibility when a revised at or about that time and at the relformula for computation of pension is evant time was in receipt of a penushered in and made eective from sion plus dearness relief of Rs. 981/a specied date ? Would dieren- p.m. Union of India has been revistial treatment to pensioners related ing and liberalising the pension rules to the date of retirement qua the from time to time. Some landmark revised formula for computation of changes may be noticed. pension attract Article 14 of the ConThe First Central Pay Commisstitution and the element of discrimision (1946-47) recommended that the nation liable to be declared unconstiage of retirement in future should be tutional as being violative of Art. 14 uniformly 58 years for all services and ? These and the related questions dethe scale of pension should be 1/80 of bated in this group of petitions call the emoluments for each year of ser-

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Maj Gen D.S. Nakara v. Union Of India 1982 pensioners because in its view unless the terms of reference were suitably amended it would not be within their jurisdiction to examine this question and on a reference by them, the Government of India decided not to amend the terms of reference. With regard to the future pensioners the Third Pay Commission while reiterating that the age of superannuation should continue to be 58 years further recommended that no change in the existing formula for computing pension is considered necessary. The only important recommendation worth noticing is that the Commission recommended that the existing ceiling of maximum pension should be raised from Rs. 675 to Rs. 1,000 p.m. and the maximum of the gratuity should be raised from Rs. 24,000 to Rs. 30,000. On May 25, 1979, Government of India, Ministry of Finance, issued Oce Memorandum No. F19(3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on March 31, 1979 and retire from service on or after that date (specied date for short). The formula introduced a slab system for computation of pension. This liberalised pension formula was applicable to employees governed by the 1972 Rules retiring on or after the specied date. The pension for the service personnel which will include Army, Navy and Air Force sta is governed by the relevant regulations. By the Memorandum of the Ministry of Defence bearing

vice, subject to a limit of 35/80 with a ceiling of Rs. 8,000 per year for 35 years of service, which the Government of India while accepting the recommendation raised to Rs. 8,100 per year which would earn a monthly pension of Rs. 675 at the maximum. The Second Central Pay Commission (1957-58) re-armed that the age of superannuation should be 58 years for all classes of public servants but did not recommend any increase in the non- contributory retirement benets and recommended that if in future any improvement is to be made, it was the considered view of the Commission that these benets should be on a contributory basis. The Administrative Reforms Commission (ARC for short) set up by the Government of India in 1956 took note of the fact that the cost of living has shot up and correspondingly the possibility of savings has gone down and consequently the drop in wages on retirement is in reality much steeper than what the quantum of pension would indicate, and accordingly the ARC recommended that the quantum of pension admissible may be raised to 3/6 of the emoluments of the last three years of service as against the existing 3/8 and the ceiling should be raised from Rs. 675 p.m. to Rs. 1000 p.m. Before the Government could take its decision on the recommendations of the ARC, the Third Central Pay Commission was set up. One of the terms of reference of the Third Pay Commission was death-cum- retirement benets of Central Government employees. The Third Pay Commission did not examine the question of relief to

99 No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the Armed Forces personnel subject to limitations set out in the memorandum with a condition that the new rules of pension would be eective from April 1, 1979, and may be applicable to all service ocers who become/became non-eective on or after that date. (for short specied date). The chronology of events herein narrated would bring to surface the contentions raised in these petitions. The liberalised pension formula shall be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants covered by 1972 Rules and in respect of defence personnel those who became/become non-eective on or after April 1, 1979. Consequently those who retired prior to the specied date would not be entitled to the benets of the liberalised pension formula. Petitioners accordingly contend that this Court may consider the raison detre for payment of pension. If the Pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social welfare or socio-economic justice measure, the dierential treatment for those retiring prior to a certain date and those retiring subsequently, the choice of the date being wholly arbitrary, would be according dierential treatment to pensioners who form a class irrespective of the date of retirement and, therefore, would be violative of Art. 14. It was also contended that classication based on fortuitous circumstance of retirement before or subsequent to a date, xing of which is not shown to be related to any rational principle, would be equally violative of Art. 14. Primary contention is that the pensioners of the Central Government form a class for purpose of pensionary benets and there could not be miniclassication within the class designated as pensioners. The expression pensioner is generally understood in contra-distinction to the one in service. Government servants in service, in other words, those who have not retired, are entitled to 175 salary and other allowances. Those who retire and are designated as pensioners are entitled to receive pension under the relevant rules. Therefore, this would clearly indicate that those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression pensioners. Is this class of pensioners further divisible for the purpose of entitlement and payment of pension into those who retired by certain date and those who retired after that date ? If date of retirement can be accepted as a valid criterion for classication, on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Cen-

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Maj Gen D.S. Nakara v. Union Of India 1982 embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits..... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. The decisions clearly lay down that though Art. 14 forbids class legislation, it does not forbid reasonable classication for the purpose of legislation. In order, however, to pass the test of permissible classication, two conditions must be fullled, viz., (i) that the classication must be founded on an intelligible dierentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that dierentia must have a rational relation to the objects sought to be achieved by the statute in question. (see Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Others.(1) The classication may be founded on dierential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e., causal connection between the basis of classication and object of the statute under consideration. It is equally well settled by the decisions of this Court that Art. 14 condemns discrimination not only by a

tral Pay Commission were accepted by the Government of India that the retirement dates have been specied to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. Now, if date of retirement is a valid criterion for classication, those who retire at the end of every month shall form a class by themselves. This is too microscopic a classication to be upheld for any valid purpose. Is it permissible or is it violative of Art. 14 ? The scope, content and meaning of Article 14 of the Constitution has been the subjectmatter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India(1) from which the following observation may be extracted: ...... what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-

101 substantive law but also by a law of procedure. After an exhaustive review of almost all decisions bearing on the question of Art. 14, this Court speaking through Chandrachud, C.J. in Re. Special Courts Bill (2) restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are: 3. The constitutional command to the State to aord equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classication need not be constituted by an exact or scientic exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classication in any given case. Classication is justied if it is not palpably arbitrary. 4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of dierences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. 6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classication should never be arbitrary, articial or evasive. 7. The classication must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fullled, namely, (1) that the classication must be founded on an intelligible dierentia which distinguishes those that are grouped together from others and (2) that dierentia must have a rational relation to the object sought to be achieved by the Act. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classication. As was noticed in Maneka Gandhis case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identied with the doctrine of classication because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classication making the dierentia fulls the aforementioned two conditions.

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Maj Gen D.S. Nakara v. Union Of India 1982 Arming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi others etc. (3) held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14. After a review of large number of decisions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza Ors. etc etc. (1) the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated dierently without any reasonable basis. Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classication for the purpose of legislation which classication must satisfy the twin tests of classication being founded on an intelligible dierntia which distinguishes persons or things that are grouped together from those that are left out of the group and that dierentia must have a rational nexus to the object sought to be achieved by the statute in question. As a corrolary to this well established proposition, the next question is, on whom the burden lies to armatively establish the rational principle on which the classica-

However, in EP. Royappa v. State of Tamil Nadu(1), it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under: From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it aects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. Justice Iyer has in his inimitable style dissected Art. 14 as under: The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight- errants of executive excesses-if we may use current cliche-can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you.(2)

103 tion is founded correlated to the object sought to be achieved ? The thrust of Art. 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state armative action. In the absence of doctrine of classication such legislation is likely to ounder on the bed rock of equality enshrined in Art. 14. The court realistically appraising the social stratication and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classication. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satises the twin tests of reasonable classication and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to armatively satisfy the Court that the twin tests have been satised. It can only be satised if the State establishes not only the rational principle on which classication is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The International Airport Authority of India Ors.(1) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. The basic contention as hereinbefore noticed is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which classication of pensioners retiring prior to specied date and retiring subsequent to that date can provide a rational principle correlated to object, viz., object underlying payment of pensions. In reply to this contention set out in para 19 of the petition, Mr. S.N. Mathur, Director, Ministry of Finance in part 17 of his adavit-inopposition on behalf of the respondents has averred as under: The contentions in part 18 and 19 that all pensioners form one class is not correct and the petitioners have not shown how they form one class. Classication of pensioners on the basis of their date of retirement is a valid classication for the purpose of pensionary benets. These averments would show at a glance that the State action is sought to be sustained on the doctrine of classication and the criterion on which the classication is sought to be sustained is the date of retirement of the Government servant which en-

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Maj Gen D.S. Nakara v. Union Of India 1982 ployee has ceased to render service ? What is a pension ? What are the goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such articial division of retirement pre and post a certain date ? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any ones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension ows to the ocer not because of any such order but by virtue of the rules. This view was rearmed in State of Punjab Anr. v. Iqbal Singh (1).

titled him to pension. Thus according to the respondents, pensioners who retire from Central Government service and are governed by the relevant pension rules all do not form a class but pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct and separate classes. It may be made clear that the date of retirement of each individual 181 pensioner is not suggested as a criterion for classication as that would lead to an absurd result, because in that event every pensioner relevant to his date of retirement will form a class unto himself. What is suggested is that when a pension scheme undergoes a revision and is enforced eective form a certain date, the date so specied becomes a sort of a Rubicon and those who retire prior to that date form one class and those who retire on a subsequent date form a distinct and separate class and no one can cross the Rubicon. And the learned Attorney General contended that this dierentiation is grounded on a rational principle and it has a direct correlation to the object sought to be achieved by liberalised pension formula.

The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee There are various kinds of peneven after the contract of employ- sions and there are equally variment has come to an end and the em- ous methods of funding pension pro-

105 grammes. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. Initially this class of pension appears to have been introduced as a reward for loyal service. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire, wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved want was recognised and as a rst step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo, was that when the employee was physically and mentally alert he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benets. In most of the plans of retirement benets, everyone who qualies for normal retirement receives the same amount. (see Retirement Systems for Public Employees by Bleakney, page 33.) history of its initial introduction in early stages and continued existence till today may be illuminating. Superannuation is the most descriptive word of all but has become obsolescent because it seems ponderous. Its genesis can be traced to the rst Act of Parliament (in U.K.) to be concerned with the provision of pensions generally in public oces. It was passed in 1810. The Act which substantively devoted itself exclusively to the problem of superannuation pension was superannuation Act of 1834. These are landmarks in pension history because they attempted for the rst time to establish a comprehensive and uniform scheme for all whom we may now call civil servants. Even before the 19th century, the problem of providing for public servants who are unable, through old age or incapacity, to continue working, has been recognised, but methods of dealing with the problem varied from society to society and even occasionally from department to department.

A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure wherein the retiral benet is grounded on considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age, but the evolving concept of social security is a later day development. And this journey was over a rough terrain. To note only As the present case is concerned one stage in 1856 a Royal Commiswith superannuation pension, a brief sion was set up to consider whether

106

Maj Gen D.S. Nakara v. Union Of India 1982 merit the criticism that if a developing country like India cannot provide an employee while rendering service a living wage, how can one be assured of it in retirement ? This can be aptly illustrated by a small illustration. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, that is funny, I could not before. It appears that determining the minimum amount required for living decently is dicult, selecting the percentage representing the proper ratio between earnings and the retirement income is harder. But it is imperative to note that as self- suciency declines the need for his attendance or institutional care grows. Many are literally surviving now than in the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly inuences its social objectives. These objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby the social policies are implemented and pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the benets in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed. (see Social

any changes were necessary in the system established by the 1834 Act. The Report of the Commission is known as Northcote-Trevelyan Report. The Report was pungent in its criticism when it says that: in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity, furnish strong inducements to the parents and friends of sickly youths to endeavour to obtain for them employment in the service of the Government, and the extent to which the public are consequently burdened; rst with the salaries of ocers who are obliged to absent themselves from their duties on account of ill health, and afterwards with their pensions when they retire on the same plea, would hardly be credited by those who have not had opportunities of observing the operation of the system (see Gerald Rhodes, Public Sector Pensions, pp. 18-19). This approach is utterly unfair because in modern times public services are manned by those who enter at a comparatively very young age, with selection through national competitive examination and ordinarily the best talent gets the opportunity. Let us therefore examine what are the goals that pension scheme seeks to subserve ? A pension scheme consistent with available resources must provide that the pensioner would be able to live: (i) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent at the preretirement level. This approach may

107 Security law by Prof. Harry Calvert, in Douge v. Board of Education(1) p. 1). a pension is closely akin to wages Viewed in the light of the present in that it consists of payment proday notions pension is a term applied vided by an employer, is paid in conto periodic money payments to a per- sideration of past service and serves son who retires at a certain age con- the purpose of helping the recipient sidered age of disability; payments meet the expenses of living. This apusually continue for the rest of the pears to be the nearest to our apnatural life of the recipient. The proach to pension with the added reasons underlying the grant of pen- qualication that it should ordinarsion vary from country to country ily ensure freedom from undeserved and from scheme to scheme. But want. Summing-up it can be said broadly stated they are (i) as com- with condence that pension is not pensation to former members of the only compensation for loyal service armed forces or their dependents for rendered in the past, but pension also old age, disability, or death (usually has a broader signicance, in that it from service causes), (ii) as old age is a measure of socio-economic justice retirement or disability benets for which inheres economic security in civilian employees, and (iii) as so- the fall of life when physical and mencial security payments for the aged, tal prowess is ebbing corresponding disabled, or deceased citizens made to aging process and therefore, one is in accordance with the rules govern- required to fall back on savings. One ing social service programmes of the such saving in kind is when you gave country. Pensions under the rst your best in the hey-day of life to head are of great antiquity. Under your employer, in days of invalidity, the second head they have been in economic security by way of periodiforce in one form or another in some cal payment is assured. The term has countries for over a century but those been judicially dened as a stated alcoming under the third head are rel- lowance or stipend made in consideratively of recent origin, though they ation of past service or a surrender are of the greatest magnitude. There of rights or emoluments to one reare other views about pensions such tired from service. Thus the pension as charity, paternalism, deferred pay, payable to a Government employee is rewards for service rendered, or as a earned by rendering long and ecient means or promoting general welfare service and therefore can be said to (see Encyclopaedia Britannica, Vol. be a deferred portion of the compen17 p.575.) But these views have be- sation or for service rendered. In one sentence one can say that the most come otiose. practical raison detre for pension is Pension to civil employees of the the inability to provide for oneself Government and the defence persondue to old age. One may live and nel as administered in India appear avoid unemployment but not senility to be a compensation for service renand penury if there is nothing to fall dered in the past. However, as held back upon.

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Maj Gen D.S. Nakara v. Union Of India 1982 pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the state action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38 (1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India Ors.(1) Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under : Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence and the forward looking posture of this Court, the under-privileged also are clamouring for the rights and are seeking the intervention of the Court with touching faith and condence in the Court. The Judges of the Court have a duty to redeem their Constitutional oath and do justice no less to the pavement dweller than to the guest of the Five Star Hotel.

The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane (see American Jurisprudence 2d. 881). From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution ; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered ; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure. Having succinctly focussed our attention on the conspectus of elements and incidents of

109 Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated dierently in the matter of their pay merely because they belong to dierent departments. If that cant be done when they are in service, can that be done during their retirement? Expanding this principle, one can condently say that if pensioners form a class, their computation cannot be by dierent formula aording unequal treatment solely on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Art. 41 obligates the State within the limits of its economic capacity and development, to make eective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art. 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities. Recall at this stage the Preamble, the ood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic. Expression socialist was intentionally introduced in the Preamble by the Constitution (Forty-Second Amendment) Act, 1976. In the objects and reasons for amendment amongst other things, ushering in of socioeconomic revolution was promised. The clarion call may be extracted : The question of amending the Constitution for removing the diculties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some time......... It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism........to make the directive principles more comprehensive...... What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. During the formative years, socialism aims at providing all opportunities for pursuing the educational activity. For want of wherewithal or nancial equipment the opportu-

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Maj Gen D.S. Nakara v. Union Of India 1982 freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Art. 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative Executive and Judiciaryto strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fullment of goal every State action whenever taken must be directed, and must be so interpreted, as to take the society one step towards the goal. To some extent this approach will nd support in the judgment in Minerva Mills Ltd. Ors. v. Union of India Ors.(1). Speaking for the majority, Chandrachud, C.J. observed as under : This is not mere semantics. The edice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. At a later stage it was observed that the fundamental rights are not an end in themselves but are the means to an end, the end is specied in part IV. Bhagwati, J. in his minority judgment after extracting

nity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education from primary to Ph. D. but the pursuit must be by those who have the necessary intelligence quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill-equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst o shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a Mahatma, a worker or a pariah. The old age overtakes each one, death being the fullment of life providing freedom from bondage. But there socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid,

111 a portion of the speech of the then Prime Minister Jawahar Lal Nehru, while participating in a discussion on the Constitution (First Amendment) Bill, observed that the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and everyone, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the fundamental rights. It, therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other. With this background let us now turn to the challenge posed in these petitions. The challenge is not to the validity of the pension liberalisation scheme. The scheme is wholly acceptable to the petitioners, nay they are ardent supporters of it, nay further they seek the benet of it. The petitioners challenge only that part of the scheme by which its benets are admissible to those who retired from service after a certain date. In other words, they challenge that the scheme must be uniformly enforced with regard to all pensioners for the purpose of computation of pension irrespective of the date when the Government servant retired subject to the only condition that he was governed by the 1972 Rules. No doubt, the benet of the scheme will be available from the specied date, irrespective of the fact when the concerned Government servant actually retired from service. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benet is in consonance with and furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a llip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life. If such be the goals of pension, if such be the welfare State which we propose to set up, if such be the goals of socialism and conceding that any welfare measure may consistent with economic capacity of the State be progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their mite but when the fruits of their labour led to the owering of economic development

112

Maj Gen D.S. Nakara v. Union Of India 1982 was not available and the ceiling was at a lower level. Thus they suffer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling. What then is the purpose in prescribing the specied date vertically dividing the pensioners between those who retired prior to the specied date and those who retire subsequent to that date? That poses the further question, why was the pension scheme liberalised ? What necessitated liberalisation of the pension scheme ? Both the impugned memoranda do not spell out the raison detre for liberalising the pension formula. In the adavit in opposition by Shri S.N. Mathur, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the preliberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of economic security. When Government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government servants who would retire. The Government also took note of the fact that continuous upward movement of the cost of living index as a sequel of inationary inputs and diminishing purchasing power of rupee neces-

and higher gross national produce bringing in larger revenue and therefore larger cake is available, they would be denied any share of it ? Indisputably, viewed from any angle pensioners for payment of pension form a class. Unquestionably pension is linked to length of service and the last pay drawn but the last pay does not imply the pay on the last day of retirement but average emoluments as dened in the scheme. Earlier average emoluments of 36 months service provided the measure of pension because the pension was related to the average emoluments during 36 months just preceding retirement. By the liberalised scheme it is now reduced to average emoluments of 10 months preceding the date. Any one in government service would appreciate at a glance that with an average of 10 months it would be on the higher side on account of the two fortuitous circumstances that the pay- scales, if one has not reached the maximum, permit annual increments and there are promotions in the last one or two years. With a view to giving a higher average the scheme was liberalised to provide for average emoluments with reference to last 10 months service. Coupled with it, a slab system for computation is introduced and the ceiling is raised. This is liberalisation. Now, if the pensioners who retired prior to the specied date and had to earn pension on the average emoluments of 36 months salary just preceding the date of retirement, naturally the average would be lower and they will be doubly hit because the slab system as now introduced

113 sitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specied date but those who had already retired did not suer the pangs of rising prices and falling purchasing power of the rupee ? What is the sum total of picture ? Earlier the scheme was not that liberal keeping in view the denition of average emoluments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inationary inputs. If therefore, those who are to retire subsequent to the specied date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specied date. The Government was perfectly justied in liberalising the pension scheme. In fact it was overdue. But we nd no justication for arbitrarily selecting the criteria for eligibility for the benets of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specied date. nale behind the eligibility qualication. The learned Attorney-General contended that the scheme is one whole and that the date is an integral part of the scheme and the Government would have never enforced the scheme devoid of the date and the date is not severable from the scheme as a whole. Contended the learned Attorney-General that the Court does not take upon itself the function of legislation for persons, things or situations omitted by the legislature. It was said that when the legislature has expressly dened the class with clarity and precision to which the legislation applies, it would be outside the judicial function to enlarge the class and to do so is not to interpret but to legislate which is the forbidden eld. Alternatively it was also contended that where a larger class comprising two smaller classes is covered by a legislation of which one part is constitutional, the Court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. It was also said that severance always cuts down the scope of legislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is Therefore, let us proceed to ex- not a single case in India or elsewhere amine whether there was any ratio- where the Court has included some category within the scope of provi-

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sions of a law to maintain its consti- this point need not deter us at all. tutionality. We are all the more happy for the The last submission, the absence chance of scribbling on a clean slate. of precedent need not deter us for a moment. Every new norm of socio economic justice, every new measure of social justice commenced for the rst time at some point of history. If at that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be pragmatic is not to be unconstitutional. In its onward march law as an institution ushers in socioeconomic justice. In fact, social security in old age commended itself in earlier stages as a moral concept but in course of time it acquired legal contention. The rules of natural justice owed their origin to ethical and moral code. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilised society is proud ? Can anyone be bold enough to assert that ethics and morality are outside the eld of legal formulations ? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Over-emphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratied and atrophied. Therefore absence of a precedent on If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benets form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily xing an eligibility criteria unrelated to purpose of revision, and would such classication be founded on some rational principle ? The classication has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we nd no rational principle behind it for granting these benets only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst o than those who retire later. Therefore, this division which classied pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specied date. Both were in the same pay bracket, the average emolu-

115 ment was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ? One retiring a day earlier will have to be subject to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last ten months average. The articial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Art. 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specied date, the rules accord dierential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours dierence in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classication does not stand the test of Art.14. Further the classication is wholly arbitrary because we do not nd a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Art. 14. The next question is what is the way you ? The learned Attorney-General contended that the scheme is to be taken as a whole or rejected as a whole and the date from which it came into force is an integral and inseparable part of the scheme. The two sub-limbs of the submissions were that, (i) the Court cannot make a scheme having nancial implications retroactive, and (ii) this Court cannot grant any relief to the pensioners who retired prior to a specied date because if more persons divide the available cake, the residue falling to the share of each especially to those who are likely to be beneted by the scheme will be comparatively smaller and as they are not before the Court, no relief can be given to the pensioners. Let us clear one misconception. The pension scheme including the liberalised scheme available to the Government employees is noncontributory in character. It was not pointed out that there is something like a pension fund. It is recognised as an item of expenditure and it is budgeted and voted every year. At any given point of time there is no xed or predetermined pension fund which is divided amongst eligible pensioners. There is no articially created fund or reservoir from which pensioners draw pension within the limits of the fund, the share of each being extensive with the available fund. The payment of pension is a statutory liability undertaken by the Government and whatever becomes due and payable is budgeted for. One could have appre-

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Maj Gen D.S. Nakara v. Union Of India 1982 to qualifying service. It has correlation to the average emoluments and the length of service. Any liberalisation would pro tanto be retroactive in the narrow sense of the term. Otherwise it is always prospective. A statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. (see Craies on Statute Law, sixth edition, p. 387). Assuming the Government had not prescribed the specied date and thereby provided that those retiring pre and post the specied date would all be governed by the liberalised pension scheme, undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and eective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benet. It is an upward revision of an existing benet. If it was a wholly new concept, a new retiral benet, one could have appreciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. Pension is a reward for past service. It is undoubtedly a condition of service but not an incentive to attract new entrants because if it was to be available to new entrants only, it would be prospective at such distance of thirty-ve years since its introduction. But it covers all those in service who entered thirty-ve years back. Pension is thus not an incen-

ciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata aect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget. Therefore, the argument of divisions of a cake, larger the number of sharers, smaller the share and absence of residue and therefore by augmentation of beneciaries, pro rata share is likely to be aected and their absence making relief impermissible, is an argument born of desperation, and is without merits and must be rejected as untenable. By our approach, are we making the scheme retroactive ? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualifying service of 35 years. His length of service is a relevant factor for computation of pension. Has the Government made it retroactive, 35 years backward compared to the case of a Government servant who retired on 30th March, 1979 ? Concept of qualifying service takes note of length of service, and pension quantum is correlated to qualifying service. Is it retroactive for 35 years for one and not retroactive for a person who retired two days earlier ? It must be remembered that pension is relatable

117 tive but a reward for past service. And a revision of an existing benet stands on a dierent footing than a new retiral benet. And even in case of new retiral benet of gratuity under the Payment of Gratuity Act, 1972 past service was taken into consideration. Recall at this stage the method adopted when pay-scales are revised. Revised pay-scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of tments and increments for past service. In other words, benet of revised scale is not limited to those who enter service subsequent to the date xed for introducing revised scales but the benet is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benets being available to future retirees only ? Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages. That takes us to the last important contention of the learned Attorney General. It was urged that the date from which the scheme becomes operative is an integral part of the scheme and the doctrine of severability cannot be invoked. In other words, it was urged that date cannot be severed from the main object of the scheme because the Government would have never oered the scheme unless the date was an integral part of it. Undoubtedly when an upward revision is introduced, a date from which it becomes eective has to be provided. It is the event of retirement subsequent to the specied date which introduces discrimination in one otherwise homogeneous class of pensioners. This arbitrary selection of the happening of event subsequent to specied date denies equality of treatment to persons belonging to the same class, some preferred and some omitted. Is this eligibility qualication severable ? It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We nd no diculty in implementing the scheme omitting the event happening after the specied date retaining the more humane formula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the oor and the ceiling. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its

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umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specied date, their pension would be computed afresh and would be payable in future commencing from the specied date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal dierence in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words who were in service on 31st March, 1979 and retiring from service on or after the date excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no diculty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed.

an eligibility criteria subsequent to a specied date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable eect of dividing homogeneous class and of introducing the discrimination, the same can be easily severed and set aside. While examining the case under Art. 14, the approach is not: either take it or leave it, the approach is removal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to remove the discriminatory part retaining the benecial portion. The pensioners do not challenge the liberalised pension scheme. They seek the benet of it. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation and we nd no diculty in severing and quashing the same. This approach can be legitimised on the ground that every Government servant retires. State grants upward revision of pension undoubtedly from a date. Event has occurred revision has been earned. Date is merely to avoid payment of arrears which may impose a heavy burden. If the date is wholly removed, revised pensions will have to be paid from the actual date of retirement of each pensioner. That is impermissible. The State cannot be burdened with arrears commencing from the date of retirement of each pensioner. But effective from the specied date future There is nothing immutable pension of earlier retired Governabout the choosing of an event as ment servants can be computed and paid on the analogy of tments in

119 revised pay-scales becoming prospectively operative. That removes the nefarious unconstitutional part and retains the benecial portion. It does not adversely aect future pensioners and their presence in the petitions becomes irrelevant. But before we do so, we must look into the reasons assigned for eligibility criteria, namely, in service on the specied date and retiring after that date. The only reason we could nd in adavit of Shri Mathur is the following statement in paragraph 5 : The date of eect of the impugned orders has been selected on the basis of relevant and valid considerations. We repeatedly posed a question: what are those relevant and valid considerations and waited for the answer in vain. We say so because in the written submissions led on behalf of the Union of India, we nd not a single valid or relevant consideration much less any consideration relevant to selection of eligibility criteria. The tenor is we select the date and it is unquestionable; either take it or leave it as a whole. The only submission was that the date is not severable and some submissions in support of it. Having examined the matter on principle, let us turn to some precedents. In D.R. Nim v. Union of India(1) the appellant questioned his seniority which was to be determined in accordance with the provisions contained in Indian Police Service (Regulation of Seniority) Rules, 1954. These rules required rst to ascertain the year of allotment of the person concerned for the determination of his seniority. In doing so, the Government of India directed that ocers promoted to the Indian Police Service should be allowed the benet of their continuous ociation with eect only from 19th May, 1951. The appellant challenged the order because the period of ociation from June 1947 to May 1951 was excluded for the purpose of xation of his seniority. His grievance was that there was no rationale behind selecting this date. After taking into consideration adavit in opposition, this Court held as under : It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the nalisation of the Gradation List of the Indian Police Service because it was a date which had reference to the nalisation of the Gradation List for the IAS. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the adavit reproduced above. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons recruited to the service had been nalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. BRL Iyengar, the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the adavit of Mr. D.K. Guha, Deputy Secretary to the Government of India, Min-

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Maj Gen D.S. Nakara v. Union Of India 1982 that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. The Court held that the Central Government cannot pick out a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. In case before us, the eligibility criteria for being eligible for liberalised pension scheme have been picked out from where it is dicult to gather and no rationale is discernible nor one was attempted at the hearing. The ratio of the decision would squarely apply to the facts of this case. Similarly in Jaila Singh Anr. v. State of Rajasthan Ors.(1), this Court struck down as discriminatory the division of pre-1955 and post1955 tenants for the purpose of allotment of land made by the Rules under the Rajasthan Colonisation Act, 1954 observing that the various provisions indicate that the pre-1955 and post-1955 tenants stand on the same footing and therefore do not form dierent classes and hence the division was held to be based on wholly irrelevant consideration. The court further observed that it is dicult to appreciate how it would make any dierence from the point of view of allotment of land, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when Rajasthan Tenancy Act came into force. This

istry of Home Aairs, dated December 9, 1966 that the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Aairs letter No. 2/32/51-AIS, dated the 25th August, 1955 will not be applicable to those SCS/SPS ocers, who were appointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous ociation was approved by the Ministry of Home Aairs and Union Public Service Commission. It further appears that in the case of Shri C.S. Prasad also, an IPS Ocer of Bihar, a decision has been taken to give the benet of full continuous ociation in senior posts and to revise his year of allotment accordingly. But, it is stated that as Shri Nim was appointed to IPS on the 22nd October 1955, i.e. after the promulgation of IPS (Regulation of Seniority) Rules, 1954, and after the issue of letter dated 25.8.1955, his case does not fall even under this category. The above statement of the case of the Government further shows that the date, May 19, 1951 was an articial and arbitrary date having nothing to do with the application of the rst and the second provisos to Rule 3 (3). It appears to us that under the second proviso to Rule 3 (3) the period of ociation of a particular ocer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat-and

121 division for the purpose of allotment of land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved. As against this the learned Attorney-General invited our attention to Union of India Anr. v. M/s Parameswaran Match Works etc.(2) By a notication dated July 21, 1967, benet of a concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a nancial year. As framed the notication extended the benet to manufacturers with higher capacity to avail of the concessional rate of duty by ling a declaration as visualised in the proviso to the notication by restricting their clearance to 75 million matches. This notication was amended on September 4, 1967 with a view to giving bona de small manufacturers, whose total clearance was not estimated to be in excess of 75 million matches, the benet of concessional rate of duty prescribed under notication dated July 21, 1967. The respondent in the case applied for a licence for manufacturing matches on September 5, 1967, that is, a day after the date on which amended notication was issued and led a declaration that the estimated manufacture for the nancial year would not exceed 75 million matches, but this was rejected. In a writ petition led by the respondent, the High Court held that the classication was unreasonable inasmuch as the xation of the date for making a declaration had no nexus with the object of the Act. In the appeal by the Union of India, this Court held that the concessional rate of duty was intended for small bona de units who were in the eld when the notication dated September 4, 1967 was issued. The concessional rate of duty was not intended to benet the large units which had split up into smaller units to earn the concession. With reference to selection of the date this Court observed as under : The choice of a date as a basis for classication cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of xing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark. In reaching this conclusion the Court relied on Louisville Gas Co. v. Alabama Power Co. (1) This decision is not an authority for the proposition that whenever a date is chosen, or an eligibility criteria which divides a class, the purpose of choice unrelated to the objects sought to be achieved must be accepted as valid. In fact it is made clear in the decision itself that even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical, the choice of the legislature may be accepted. Therefore, the choice of the date 203

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Maj Gen D.S. Nakara v. Union Of India 1982 delivering the budget speech, at the time of introduction of the 1970-71 budget, the intention to introduce a fresh Bill for the levy of tax was made clear. The Bill was published in June 73 in which it was made clear that the Act would be brought into force from April 1, 1970. After recalling the various stages through which the Bill passed before being enacted as Act, this Court held that the choice of date April 1, 1973 was not wide of the reasonable mark. The decision proceeds on the facts of the case. But the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneciaries of the legislative/executive action becomes selective, the division or classication made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the rst test that the division must be referable to some rational principle, if the choice of the date or classication is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. Now if the choice of date is arbitrary, eligibility criteria is unrelated to the object sought to be achieved and has the pernicious tendency of dividing an otherwise homogeneous class, the question is whether the liberalised pension scheme must wholly fail or that the pernicious part can be severed, cautioning itself that this Court does not legislate but merely interprets

cannot be wholly divorced from the objects sought to be achieved by the impugned action. In other words, if the choice is shown to be thoroughly arbitrary and introduces discrimination violative of Art. 14, the date can be struck down. What facts inuenced the Courts decision in that case for upholding the choice of the date are worth- recalling. The Court held that the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneciaries of the bounty. This was the weighty consideration which prompted the court to uphold the date. The learned Attorney General next referred to D.C. Gouse and Co. etc. v. State of Kerala Anr. etc. (1) This Court while repelling the contention that the choice of April 1, 1973 as the date of imposition of the building tax is discriminatory with reference to Art. 14 of the Constitution, approved the ratio in the case of M/s. Parameswaran Match Works etc. supra. Even while reaching this conclusion the Court observed that it is not shown how it could be said that the date (April 1, 1973) for the levy of the tax was wide of the reasonable mark. What appealed to the Court was that earlier an attempt was made to impose the building tax with eect from March 2, 1961 under the Kerala Building Tax Act, 1961 but the Act was nally struck down as unconstitutional by this Court as per its decision dated August 13, 1968. While

123 keeping in view the underlying intention and the object, the impugned measure seeks to subserve ? Even though it is not possible to oversimplify the issue, let us read the impugned memoranda deleting the unconstitutional part. Omitting it, the memoranda will read like this : At present, pension is calculated at the rate of 1/80th of average emoluments for each completed year of service and is subject to a maximum of 33/80 of average emoluments and is further restricted to a monetary limit of Rs. 1,000/- per month. The President is, now, pleased to decide that with eect from 31st March, 1979 the amount of pension shall be determined in accordance with the following slabs. If from the impugned memoranda the event of being in service and retiring subsequent to specied date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specied date. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable. In reading down the memoranda, is this Court legislating ? Of course not. When we delete basis of classication as violative of Art. 14, we merely set at naught the unconstitutional portion retaining the constitutional portion. We may now deal with the last submission of the learned Attorney General on the point. Said the learned Attorney- General that principle of severability cannot be applied to augment the class and to adopt his words severance always cuts down the scope, never enlarges it. We are not sure whether there is any principle which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classication is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classication, by striking down words of limitation, the resultant eect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enactment. That is what is called reading down the measure. We know of no principle that severance limits the scope of legislation and can never enlarge it. To refer to the Jaila Singhs case (supra), when for the benet of allotment of land the articial division between pre-1955 and post-1955 tenant was struck down by this Court, the class of beneciaries was enlarged and the cake in the form of available land was a xed quantum and its distribution amongst the larger class would protanto reduce the quantum to each beneciary included in the class. Similarly when this Court in Randhir Singhs case (supra) held that the principle of equal pay for equal work may be

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properly applied to cases of unequal pay based on no classication or irrational classication it enlarged the class of beneciaries. Therefore, the principle of severance for taking out the unconstitutional provision from an otherwise constitutional measure has been well recognised. It would be just and proper that the provision in the memoranda while retaining the date for its implementation, but providing that in respect of Government servants who were in service on the 31st March, 1979 but retiring from service in or after that date can be legally and validly severed and must be struck down. The date is retained without qualication as the eective date for implementation of scheme, it being made abundantly clear that in respect of all pensioners governed by 1972 Rules, the pension of each may be recomputed as on April 1, 1979 and future payments be made in accordance with fresh computation under the liberalised pension scheme as enacted in the impugned memoranda. No arrears for the period prior to 31st March, 1979 in accordance with revised computation need be paid.

ing in view the emoluments drawn by him before retirement but in accordance with the principles of the liberalised pension scheme. The two features which make the liberalised pension scheme more attractive is the redening of average emoluments in Rule 34, and introduction of slab system simultaneously raising the ceiling. Within these parameters, the pension will have to be recomputed with eect from the date from which the liberalised pension scheme came into force i.e. March 31, 1979. There is no question of fresh commutation of pension of the pensioners who retired prior to 31st March, 1979 and have already availed of the benet of commutation. It is not open to them to get that benet at this late date because commutation has to be availed of within specied time limit from the date of actual retirement. May be some marginal retirees may earn the benet. That is inevitable. To say that by our approach we are restructuring the liberalised pension scheme, is to ignore the constitutional mandate. Similarly, the court is not conferring benets by this approach, the court only removes the ilIn this context the last submis- legitimate classication and after its sion of the learned Attorney Gen- removal the law takes its own course. eral was that as the pension is alBut in this context the learned ways correlated to the date of retire- Attorney submitted the following ment, the Court cannot change the quotation which appears to have date of retirement, and impose fresh been extracted from a decision of commutation benet. We are doing American Court, citation of which nothing of this kind. The apprehen- was not available. The quotation sion is wholly unfounded. The date may be extracted from the written of retirement of each employee re- submission. It reads as under: mains as it is. The average emoluIt remains to enquire whether ments have to be worked out keep- this plea that Congress would have

125 enacted the legislation and the Act being limited to employees engaged in commerce within the district of Columbia and the Territory. If we are satised that it would not or that the matter is in such doubt that we are unable to say what Congress would have done omitting the unconstitutional features then the statute must fail. essential commodities. In view of the present economic conditions in India and constant rise in the cost of living due to ination, it is all the more important even from purely humanitarian considerations if not from the stand point of fairness and justice, to protect the actual value of their meagre pensions to enable the pensioners to live in their declining years with We entertain no such apprehen- dignity and in reasonable comfort. sion. The Executive with parliamenTherefore, we are not inclined to tary mandate liberalised the pension share the apprehension voiced by the scheme. It is implicit in liberal- learned Attorney that if we strike ising the scheme that the deed to down the unconstitutional part, the grant little higher rate of pension to parliament would not have enacted the pensioners was considered em- the measure. Our approach may inently just. One could have un- have a parliamentary avour to senderstood persons in the higher pay sitive noses. bracket being excluded from the benThe nancial implication in such ets of the scheme because it would matters has some relevance. Howhave meant that those in higher pay ever in this connection, we want bracket could fend for themselves. to steer clear of a misconception. Such is not the exclusion. The ex- There is no pension fund as it is clusion is of a whole class of peo- found either in contributory penple who retire before a certain date. sion schemes administered in foreign Parliament would not have hesitated countries or as in Insurance-linked to extend the benet otherwise con- pensions. Non- contributory pensidered eminently just, and this be- sions under 1972 rules is a State oblicomes clearly discernible from page gation. It is an item of expenditure 35 of 9th Report of Committee on voted year to pear depending upon Petitions (Sixth Lok Sabha) April, the number of pensioners and the es1976. While examining their repre- timated expenditure. Now when the sentation for better pensionary ben- liberalised pension scheme was introet, the Committee concluded as un- duced, we would justiably assume der: that the Government servants would The Committee are of the view that Government owe a moral responsibility to provide adequate relief to its retired employees including pre 1.1.1973 pensioners, whose actual value of pensions has been eroded by the phenomenal rise in the prices of retire from the next day of the coming into operation of the scheme and the burden will have to be computed as imposed by the liberalised scheme. Further Government has been granting since nearly a decade temporary increases from time to time to pen-

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Maj Gen D.S. Nakara v. Union Of India 1982 sion is admissible to all retirees. The gures submitted are thus neither frightening nor the liability is supposed to be staggering which would deect us from going to the logical end of constitutional mandate. Even according to the most liberal estimate, the average yearly increase is worked out to be Rs. 51 crores but that assumes that every pensioner has survived till date and will continue to survive. Therefore, we are satised that the increased liability consequent upon this judgment is not too high to be unbearable or such as would have detracted the Government from covering the old pensioners under the scheme. Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-prot and voluntary organisation. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protracted, and. therefore, approached petitioner No. 3 which espoused their cause Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India(1) rules that any member of the public having sucient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law

sioners. Therefore, the dierence will be marginal. Further, let it not be forgotten that the old pensioners are on the way out and their number is fast decreasing. While examining the nancial implication, this Court is only concerned with the additional liability that may be imposed by bringing in pensioners who retired prior to April 1, 1979 within the fold of liberalised pension scheme but effective subsequent to the specied date. That it is a dwindling number is indisputable. And again the large bulk comprises pensioners from lower echelons of service such as Peons, L.D.C., U.D.C., Assistant etc. In a chart submitted to us, the Union of India has worked out the pension to the pensioners who have retired prior to the specied date and the comparative advantage, if they are brought within the purview of the liberalised pension scheme. The dierence upto the level of Assistant or even Section Ocer is marginal keeping in view that the old pensioners are getting temporary increases. Amongst the higher ocers, there will be some difference because the ceiling is raised and that would introduce the dierence. It is however necessary to refer to one gure relied upon by respondents. It was said that if pensioners who retired prior to 31st March, 1979 are brought within the purview of the liberalised pension scheme, Rs. 233 crores would be required for fresh commutation. The apparent fallacy in the submission is that if the benet of commutation is already availed of, it cannot and need not be reopened. And availability of other benets is hardly a relevant factor because pen-

127 and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old inrm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic important because locus standi of petitioners Nos. 1 and 2 was never questioned. memoranda, Exhibits P-I and P-2, violates Art. 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Exhibit P-1, the words: that in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that That is the end of the jour- dateand in Exhibit P-2, the words: ney. With the expanding horizons the new rates of pension are efof socio-economic justice, the social- fective from 1st April 1979 and will ist Republic and welfare State which be applicable to all service ocers we endeavour to set up and largely who became/become non-eective on inuenced by the fact that the old or after that date. men who retired when emoluments are unconstitutional and are were comparatively low and are ex- struck down with this specication posed to vagaries of continuously ris- that the date mentioned therein will ing prices, the falling value of the be relevant as being one from which rupee consequent upon inationary the liberalised pension scheme beinputs, we are satised that by in- comes operative to all pensioners troducing an arbitrary eligibility cri- governed by 1972 Rules irrespective teria: being in service and retir- of the date of retirement. Omitting ing subsequent to the specied date the unconstitutional part it is defor being eligible for the liberalised clared that all pensioners governed pension scheme and thereby divid- by the 1972 Rules and Army Pening a homogeneous class, the classi- sion Regulations shall be entitled to cation being not based on any dis- pension as computed under the libercernible rational principle and hav- alised pension scheme from the specing been found wholly unrelated to ied date, irrespective of the date of the objects sought to be achieved by retirement. Arrears of pension prior grant of liberalised pension and the to the specied date as per fresh comeligibility criteria devised being thor- putation is not admissible. Let a writ oughly arbitrary, we are of the view to that eect be issued. But in the that the eligibility for liberalised pen- circumstances of the case, there will sion scheme of being in service on be no order as to costs. the specied date and retiring subH.L.C. Petition allowed. sequent to that date in impugned

128

Maj Gen D.S. Nakara v. Union Of India 1982

Chapter 9

Viswan v. Union Of India 1983


ACT: R. Viswan & Others v. Union Of India & Others on 6 May, 1983 Army Act, 1950-S. 21Equivalent citations: 1983 SCR (3) Constitutional validity of-Whether 60, 1983 SCC (3) 401 Bench: Bhag- saved by Art. 33. wati, P.N. Army Act, 1950-Sub-ss. (1) and PETITIONER: (4) of s. 4-Force- Meaning of. R. VISWAN & OTHERS General Reserve Engineering Force. (GREF)-Whether it is force within the meaning of sub-ss. (1) RESPONDENT: and (4) of s. 4 of Army Act, UNION OF INDIA & OTHERS 1950-Whether members of GREF DATE OF JUDGMENT06/05/1983 are members of Armed Forces within the meaning of Art. 33 of BENCH: Constitution- Whether S.R. Os. 329 BHAGWATI, P.N. and 330 applying provisions of Army BENCH: Act, 1950 and Army Rules 1954 to BHAGWATI, P.N. members of GREF in exercise of power under sub-ss. (1) and (4) of CHANDRACHUD, Y.V. ((CJ) s. 4 of Army Act, 1959 ultra vires REDDY, O. CHINNAPPA (J) Art. 33 of Constitution-Whether apERADI, V. BALAKRISHNA (J) plication of Central Civil Services MISRA, R.B. (J) (Classication, Control and Appeal) Rules, 1965 as also provisions of CITATION: Army Act and Army Rules to mem1983 SCR (3) 60 1983 SCC (3) bers of GREF violative of Art. 14 of 401 Constitution. 1983 SCALE (1)497 HEADNOTE: v.

130 The petitioners who belonged to the General Reserve Engineering Force (GREF) were charged under s. 63 of the Army Act, 1950 on allegations inter alia that they had assembled in front of the Chief Engineer and shouted slogans demanding release of personnel placed under arrest, participated in a black ag demonstration and associated themselves with an illegal association. They were tried by Court Martial in accordance with the prescribed procedure and, on being convicted, were dismissed from service. The petitioners submitted that their convictions by Court Martial were illegal and raised the following contentions in support of their plea: that the GREF was a civilian construction agency and not a force raised and maintained under the authority of the Central Government and consequently, the members of GREF were not members of Armed Forces or the Forces charged with the maintenance of public order within the meaning of Art. 33 of the Constitution and therefore the application of s. 21 of the Army Act read with rs. 19 to 21 or the Army Rules to them was unconstitutional since it restricted their fundamental rights in a manner not permitted by the Constitution; that S.R. Os 329 and 330 which were notications having the eect of applying the provisions of the Army Act and the Army Rules to the members of the GREF were ultra vires the powers of the Central Government under sub-ss. (1) and (4) of s. 4 of the Army Act; that s. 21 of the Army Act was unconstitutional as it was not justied by the terms

Viswan v. Union Of India 1983 of Art. 33 since under that Article it was Parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall, in application to the members of the Armed Forces or Forces charged with the maintenance of public order, be restricted or abrogated and Parliament could not have left it to the Central Government to determine the extent of such restriction or abrogation as was sought to be done under s. 21; that the petitioners were entitled to exercise their fundamental rights under cls. (a), (b) and (c) of Art. 19 (1) without any of the restrictions imposed by rs. 19 to 21 of the Army Rules and therefore they could not be charged under s. 63 of the Army Act on the facts alleged against them; that their trial was not in accordance with law; and that the application of the provisions of the Army Act and the Army Rules to the members of GREF for purposes of discipline was discriminatory and violative of Art. 14 inasmuch as the members of the GREF were governed both by the Central Civil Services (Classication Control and Appeal) Rules, 1965 and the provisions of the Army Act and the Army Rules in matters of discipline. Dismissing the petitions, HELD 1. (a) The functions and duties of GREF are integrally connected with the operational plans and requirements of the Armed Forces. There can be no doubt that without the ecient and disciplined operational role of GREF the military operations in border areas during peace as also in times of war will

131 be seriously hampered and a highly disciplined and ecient GREF is absolutely essential for supporting the operational plans and meeting the operational requirements of the Armed Forces. The members of the GREF answer the description of members of the Armed Forces within the meaning of Art. 33 and consequently the application of s. 21 of the Army Act to the members of GREF is protected by that Article and the fundamental rights of the members of GREF must be held to be validly restricted by s. 21 read with rs. 19 to 21 of Army Rules. The petitioners were therefore liable to be charged under s. 63 of the Army Act for the alleged violations of rs. 19 to 21 and their convictions and subsequent dismissals must be held to be valid. [88 F-89 B] (b) The fact that the members of the GREF are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Services (Classication, Control and Appeal) Rules, 1965 is not determinative of the question whether they are members of the Armed Forces. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of Art. 33 must depend essentially on the character of GREF, its organisational set up, its functions, the role it is called upon to play in relation to the Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces. The history, composition, administration, organisation and role of GREF clearly show that GREF is an integral part of the Armed Forces and that the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of Art. 33. It is undoubtedly a departmental construction agency as contended on behalf of the petitioners but it is distinct from other 62 construction agencies such as the Central Public Works Department in that it is a force intended primarily to support the Army in its operational requirement. [87 D-H, 83 G] Ous Kutilingal Achudan Nair and Ors. v. Union of India and Ors., [1976] 2 S.C.R. 769, referred to. (c) The Central Government is empowered under sub-s. (1) of s. 4 of the Army Act to apply any of the provisions of that Act to any force raised or maintained in India under the authority of that Government. When the provisions of the Army Act are applied to any force under sub-s. (1) of s. 4, the Central Government can, by notication issued under subs. (4) thereof, direct by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of that force. The word force is not dened any where in the Army Act but sub-s. (2) of s. 4 clearly contemplates that force referred to in sub-s. (1) of s. 4 must be a force organised on similar lines as the army with rank structure. There can be no doubt that GREF is a force organised on army pattern with units and sub-units and rank

132 structure. It is clear from the letter dated June 16, 1960 addressed by the Secretary, Border Roads Development Board to the Director General Border Roads that GREF is a force raised and maintained under the authority of the Central Government. The Central Government therefore had the power under subss. (1) and (4) of s. 4 to issue notications S.R.O. 329 and S.R.O. 330 applying some of the Army Act and the Army Rules to the GREF. [82 BH] (d) There is no substance in the contention that applying the provisions of the Army Act and the Army Rules to the members of GREF for purpose of discipline is discriminatory and violative of Art. 14. The nature of the proceedings which may be taken under the Central Civil Services (Classication, Control and Appeal) Rules against an erring employee is dierent from the nature of the proceedings which may be taken against him under the provisions of the Army Act read with Army Rules, the former being disciplinary in character while the latter being clearly penal. There is no overlapping between the two because ss. 20 and 71 of the Army Act which deal with dismissal, removal or reduction in rank have not been made applicable to the members of GREF by S.R.O. 329. The respondents have positively stated in their adavit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take ac-

Viswan v. Union Of India 1983 tion against an employee of GREF under Central Civil Services (Classication, Control and Appeal) Rules or the Army Rules and therefore it is not possible to say that the discretion vested in the authorities is unguided or uncanalised. Moreover, the decision in Northern India Caterers v. Punjab on which this contention is based has been overruled in Maganlal Chhaganlal v. Municipal Corporation, Greater Bombay. In any event, the provisions of the Army Act and the Army Rules as applied to the members of GREF are protected by Art. 33 against invalidation on the ground of violation of Art. 14. [90 G-92 B] Northern India Caterers v. Punjab, [1976] 3 S.C.R. 399; and Maganlal Chhaganlal v. Municipal Corporation, Greater Bombay, [1974] 2 S.C.C. 402, referred to. (e) The contention that the trial of the petitioners was not in accordance with law was strongly resisted by the respondents and having regard to the averments made by them on this point it is not possible to hold that the convictions of the petitioners by the Court Martial were not in accordance with law. In any event, the allegation of the petitioners in this behalf raised disputed questions of fact which it is not possible to try in a writ petition. [90 A-F] (f) The alleged disparity between the Army personnel posted in GREF units and ocers and men of GREF in so far as the terms and conditions of service such as salary, allowances and rations has no real bearing on the question whether the members of GREF can be said to be members of Armed Forces. Since the members of GREF are drawn from

133 dierent sources it is possible that the terms and conditions of service of the personnel coming from the two sources may be dierent. In case it is found that there is any disparity the Central Government may consider the advisability of taking steps for its removal. [89 C-H] 2. Section 21 of the Army Act empowers the Central Government to make rules restricting to such extent and in such manner as may be necessary three categories of rights of any person subject to the Army Act. These rights are part of the fundamental rights under cls. (a), (b) and (c) of Art. 19(1) and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. But s. 21 is saved by Art. 33 which carves out an exception in so far as the applicability of fundamental rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned. On a plain grammatical construction of its language, Art. 33 does not require that Parliament itself must by law restrict or abrogate any of the fundamental rights in order to attract the applicability of that Article. What it says is only this and no more, namely that Parliament may by law determine the permissible extent to which any of the fundamental rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order. Parliament itself can by enacting a law restrict or abrogate any of the fundamental rights in their application to the members of these forces as in fact it has done by enacting the Army Act But having regard to the varying requirement of army discipline and the need for exibility in this sensitive area it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which fundamental rights in the interest of proper discharge of duties by the members of these Forces and maintenance of discipline among them The extent of such restrictions would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed on the fundamental rights of the members of these Forces than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them. They therefore, decided to introduce a certain amount of exibility in the imposition of such restrictions and, by Art. 33, empowered Parliament to determine the permissible extent to which any of the fundamental rights in their application to the members of these Forces may be restricted or abrogated so that, within such permissible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such fundamental rights. Parliament was therefore, within its power under Art. 33 to enact s.21. The extent to which restrictions may be imposed on the fundamental rights

134 under cls. (a), (b) and (c) of Art. 19(1) is clearly indicated in cls. (a), (b) and (c) of s. 21 and the Central Government is authorised to impose restrictions on these fundamental rights only to the extent of the rights set out in cls. (a), (b) and (c) of s. 21 and no more. The guidelines for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in Art. 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under s. 21. Once the Central Government has imposed restrictions in exercise of this power, the Court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 must, in the circumstances, be held to be constitutionally valid as being within the power conferred under Art. 33. [83 B-D, 78 -81 C] Ram Swarup v. Union of India, [1964] 5 S.C.R. 931, referred to.

Viswan v. Union Of India 1983 4510, 4511, 4512, 4551/80 & 3861, 3848, 8317/81 and 59 of 1982. (Under article 32 of the Constitution of India) AND Special Leave Petition (Crl.) Nos. 2061-65 of 1980. From the Judgment and Order dated the 19th May, 1980 of the Delhi High Court in Criminal Writ Petition Nos. 2427/80 & 30/80. K.K.Venugopal, Miss Mridula Roy, D. P. Mukherjee, A.K. Ganguli & G.S. Chatterjee, with him for the Petitioners in WPs. 815, 5116, 843, 844, 8317. M. K. Ramamurthy, Janardhan Sharma and P. Gaur with him for the Petitioners in WPs. 3460, 1383, 4510, 4551, 1301-04, 4511, & SLPs. 2061-65. Miss Kailash Mehta for the Petitioners in WP. 3861. M.M.L. Srivastava for the Petitioner in WP. 3848. Chandramouli-Petitioner in personin WP.632. Nemo in WP. 59. R.K. Mehta for the Petitioner in WP. 4512/80. L.N. Sinha, Attorney General, M.K.Banerji, Additional Solicitor General, K.M. Abdul Khader, Girish Chandra and Miss A. Subhashini with them for the Respondents. The Judgment of the Court was delivered by

BHAGWATI, J. These writ petitions raise a short but interesting question of law relating to the interpretation of Article 33 of the Constitution. The question is whether section 21 of the Army Act 1950 read JUDGMENT: with Chapter IV of the Army Rules ORIGINAL JURISDICTION : 1954 is within the scope and ambit of W.P. (CRL) Nos. 815, 843, 632/80, Article 33 and if it is, whether Cen844, 5116/81, 1301-04, 1383, 3460, tral Government Notications Nos.

135 SRO 329 and 330 dated 23rd September 1960 making inter alia section 21 of the Army Act 1950 and Chapter IV of the Army Rules 1954 applicable to the General Reserve Engineering Force are ultra vires that Article since the General Reserve Engineering Force is neither an Armed Force nor a Force charged with the maintenance of public order. It is a question of some importance since it aects the fundamental rights of a large number of persons belonging to the General Reserve Engineering Force and in order to arrive at a correct decision of this question, it is necessary rst of all to consider the true nature and character of the General Reserve Engineering Force. In or about 1960 it was felt that economic development of the North and North Eastern Border areas were greatly handicapped by meagre and inadequate communications and defence of these areas also required a net work of roads for eective movement and deployment of Armed Forces. This was rendered all the more necessary because the relations of India with its neighbours were in a state of potential conict and part of the Indian territory was under foreign occupation and there were also hostile forces inviting some sections of the people to carry on a campaign for secession. The Government of India therefore, with a view to ensuring coordination and expeditious execution of projects designed to improve existing roads and construct new roads in the border areas is order to improve the defence preparedness of the country, created several posts in the Directorate General of Works. Army Head Quarters for work connected with the development of border roads as per letter dated 9th April 1960 addressed by the Under Secretary to the Government of India, Ministry of Defence to the Chief of the Army Sta. On 18th April 1960, within a few days thereafter, the Government of India sanctioned the post of Directorate General Border Roads in the rank of Major-General in the Directorate General of Works, Army Head Quarters; vide letter dated 18th April 1960 addressed by the Under Secretary to the Government of India, Ministry of Defence to the Chief of the Army Sta. The Director General Border Roads was placed in charge of this new organisation which started originally as part of the Directorate General of Works, Army Head Quarters. But subsequently, for reasons of high policy, it was decided that this Organisation should not continue as part of the Directorate General of Works, Army Head Quarters but should be under the Board Roads Development Board set up by the Government of India as a separate self contained Authority under the Chairmanship of the Prime Minister with the Defence Minister as Deputy Chairman, the Financial Adviser (Defence) as Financial Adviser and a few other members nominated by the Prime Minister. The budget of the Border Roads Development Board formed part of the budget of the Ministry of Shipping and Transport but the nancial control was vested in the Ministry of Finance (Defence). The Govern-

136 ment of India by a letter dated 16th June 1960 addressed by the Secretary of the Border Roads Development Board to the Director General, Border Roads conveyed the sanction of the President to raising and maintenance of a General Reserve Engineering Force for the construction of roads in the border areas and such other tasks as may be entrusted to it by the Border Roads Development Board. It was directed that the General Reserve Engineering Force will be under the over all command of the Director General Border Roads under whom will be Regional Chief Engineers/Independent Deputy Chief Engineers who will exercise command Over the units of the Force placed under their control. The General Reserve Engineering Force (hereinafter referred to as GREF) was thus raised under the authority of the Government of India and It was placed under the over all command of the Director General, Border Roads. Ever since then the Director General, Border Roads, has always been an army ocer of the rank of Major General and he functions under the directions of the Border Roads Development Board, The General Reserve Engineering Force (GREF) is organised on army pattern in units and sub units with distinctive badges of rank and a rank structure equivalent to that in the army. The ocers and other personnel of GREF arc required to be in uniform right from class IV to Class I personnel. Though GREF is undoubtedly a departmental construction agency, it is maintained by the Government of India to meet the op-

Viswan v. Union Of India 1983 erational requirements of the army whose operational planning is based on the availability of the units of GREF for operational purposes. In fact GREF pro- vided support to the Army during Indo-China conict of 1962 and Indo-Pakistan conicts of 1965 and 1971 and also assisted the Army in the maintenance of public order during the disturbances in Mijoram in 1966 and in Assam in 198081. The personnel of GREF are primarily drawn from two sources and they consist of (I) ocers and men belonging to the Army and (2) ocers and men recruited, through the Union Public Service Commission in case of ocers and departmentally in case of other ranks. A ten per cent quota is reserved for recruitment of ex-servicemen. The posting of Army ocers and men in GREF is done, not on any ad hoc basis, but in accordance with a well thought out manning policy laid down by the Government of India for the purpose of maintaining at all times and at all levels the special character of GREF as a force designed to Meet the operational requirement of the Army. The manning policy laid down by the Government of India in respect of ofcers is as under: G Posts Army GREF Brig/Col/Chief Engineer Gr. I & II 75% 25% Lt. Col./Superintending Engineer 50% 50% Major/Executive Engineer 42% 58% Capt./Asstt. Executive Engineer 20% 80% Assistant Engineer - 100% So far as ocers and men recruited through the Union Public

137 Service Commission or departmentally are concerned, all of them are given training at the GREF Centre, immediately after recruitment. The GREF Centre is organised on lines similar to an Army Regimental Centre and also functions in the same manner. It is located at a place adjoining an Engineer Regimental Centre, initially at Roorkee and now at Pune, so that it can, if necessary, draw upon the resources of the Engineer Regimental Centre. The new recruits are imparted training in the following three military disciplines: (a) Discipline, which includes drill, marching and saluting. (b) Combat training, including physical training i.e. standing exercises, beam exercises, rope work, route marches etc., harbour deployment drills, camp protection etc. (c) Combat Engineering Training, including eld engineering, handling of service explosives, camouage, combat equipment, bridging, eld fortications, wire obstacles etc. GREF personnel are not trained in the use of arms, since the role to be performed by GREF is such that its personnel are not required to use arms and they need arms only for static protection and for use during emergency. Therefore in GREF issue of arms is restricted only to Army personnel and ex- servicemen apart from certain units like the Provost Units (GREF Police) which having regard to the nature of their duties, have necessarily to be armed. The tasks which are to be carried out by GREF comprise not only maintenance of strategic roads but also support for the operational plans of the Army in place of Army Engineer Regiments. We shall presently elaborate these tasks in order to highlight the true character of GREF, but before we do so, we may point out that the role and organisation of GREF units have been reviewed from time to time in consultation with the Army Headquarters and as a result of a major review carried out after the Indo-Pakistan Conict of 1971, the Army Headquarters dened the role and organisation of GREF units in a secret document dated 24th January 1973. It is clear from this document that, according to the Army Headquarters, a minimum of 17 Border Roads Task Forces and 34 Pioneer Companies are permanently required for providing engineer support to the Army and over the years, this minimum requirement has been fullled and 17 Border Roads Task Forces and 34 Pioneer Companies have been made permanent. These 17 Border Roads Task Forces and 34 Pioneer Companies have to be maintained as essential units of GREF for meeting the operational requirement of the Army, even if sucient work load is not available in Border Areas at any given point of time. There are, in fact, at present 21 Border Roads Task Forces and 34 Pioneer Companies, that is, four Border Roads Task Forces more than the minimum required by the Army Authorities The requirement of these four additional Border Roads Task Forces is reviewed from time to time depending on the work-load. What should be the composition of the Bor-

138 der Roads Task Forces is laid down in the document dated 24th January 1973 and this document also sets out the tasks to be carried out by the Border Roads Task Forces which may be briey summarised as follows: (a) Maintenance of line of communication in rear areas of the theatre of operations including roads constructed by the Border Roads and roads maintained by CPWD, State PWD and MES. (b) Improvement and maintenance of operational roads and tracks constructed by combat engineers; (c) Construction and maintenance of AICs and helipads; (d) Improvement and repairs to airelds; (e) Construction of accommodation and all allied facilities for maintenance areas required for sustaining operations; (f) Construction of defence works and obstacles; and (g) Water supply in dicult terrain and deserts. These tasks are required to be carried out by the Border Roads Task Forces during operations with a view to providing engineering support to the army in its operational plans. The Border Roads Task Forces have to perform these tasks not only within the country upto the border but also beyond the border upto the extent of advance into enemys territory. Even during peace time the Border Roads Task Forces have to be suitably positioned in the likely area of operations so that they can, in the event of hostilities, be quickly deployed on their operational tasks. The Border Roads Tasks Forces alongwith the Pi-

Viswan v. Union Of India 1983 oneer Companies attached to them are also included in the Order of Battle of the Army so that the support of these units to the Army is guaranteed and can be requisitioned at any time. These units of GREF are further sub-allotted to the lower army formations such as Command, Corps and Division and they appear on the Order of Battle of these formations. Their primary function is to carry out works projected by the General Sta, Army Headquarters to meet the operational requirements and these works, include, inter alia, construction and maintenance of roads operational tracks, airelds, ditch-cum-bund. (water obstacles on the border) and eld fortications like bunkers re trenches and Pill Boxes. If after meeting the requirements of the General Sta, Army Headquarters, there is spare capacity available with these units of GREF, they undertake construction work on behalf of other ministries or departments, though even there, preference is given to strategic and other roads in sensitive border areas. The funds allocated for the Border Roads Organisation are non- plan funds meant exclusively to meet the requirements of the General Sta, Army Headquarters and they cannot be used for carrying out the works of other ministries or departments. When works are undertaken by GREF units on behalf of other ministries or departments, they are treated as works on agency basis and, where applicable, agency charges are collected by the Border Roads Organisation from the ministries or departments whose work is carried out by them.

139 GREF units undertake, as far as possible, only those tasks which are similar in nature to the tasks for which they are primarily designed to meet Army requirements. It is apparent from the further adavit of Lt. Col. S.S. Cheema that the major portion of the work carried out by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and the tasks carried out on agency basis on behalf of other ministries or departments are comparatively of much lesser value. In fact, until 1966 no work on agency basis was undertaken by GREF units and during the period 1967 to 1970 less than 2 percent of the total work was executed by GREF units for other ministries or departments. Even during the years 1970-71 to 1980-81, the percentage of work carried out by GREF units on behalf of other ministries of departments did not on an average exceed 15 per cent of the total work. The gures for the year 1980-81 also reveal the same pattern. During 1981-82 the work executed by GREF units for General Sta, Army Headquarters consisted of construction and maintenance of 12865 kms. of roads out of the funds of the Border Roads Organisation and 310 kms. of ditch-cum-bunds out of funds provided as the Defence Ministry while the agency work entrusted by the Ministry of Shipping and Transport did not cover more than 519 km. of strategic roads, 216 kms. of sensitive broader area roads and 376 kms. of National Highways in border areas and the agency work entrusted by other ministries was limited only to 702 kms. of roads. It will thus be seen that the major part of the work executed by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and only a small percentage of work is being done on behalf of other ministries or departments when spare capacity is available. So far as the personnel of GREF are concerned, they are partly drawn from the Army and partly by direct recruitment. Army personnel are posted in GREF according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of GREF as a force intended to support the Army in its operational requirements. The posting of Army personnel in GREF units is in fact regarded as normal regimental posting and does not entitle the Army personnel so posted to any deputation or other allowance and it is equated with similar posting in the Army for the purpose of promotion, career planning, etc. The tenure of Army personnel posted in GREF units is treated as normal Regimental Duty and such Army personnel continue to be subject to the provisions of the Army Act 1950 and the Army Rules 1954 whilst in GREF. But quite apart from the Army personnel who form an important segment of GREF, even the directly recruited personnel who do not come from the Army are subjected to strict Army discipline having regard to the special character of GREF and the highly important role it is called upon to play in support of the Army in its operational requirements. Since the capacity and e-

140 ciency of GREF units in the event of outbreak of hostilities depends on their all time capacity and eciency they are subjected to rigorous discipline even during peace time, because it is elementary that they cannot be expected suddenly to rise to the occasion and provide necessary support to the Army during military operations unless they are properly disciplined and in t condition at all times so as to be prepared for any eventuality. The Government of India has in exercise of the power conferred upon it by sub- sections (1) and (4) of Section 4 of Army Act 1950 issued a Notication bearing SRO 329 dated 23rd September 1960 applying to GREF all the provisions of that Act with the exception of those shown in Schedule A, subject to the modications set forth in Schedule B and directing that the ofcers mentioned in the rst column of Schedule C shall exercise or perform, in respect of members of the said Force under their command, the jurisdiction, powers and duties incident to the operation of that Act specied in the second column of Schedule C. This Notication makes various provisions of Army Act 1950 applicable to GREF and amongst them is Section 21 which provides: Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notication, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act:-

Viswan v. Union Of India 1983 (a) to be a member of, or to be associated in any way with, any trade union or labour union or any class of trade of labour unions, or and society, institution or association or any class of institution or associations; (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; (c) to communicate with the press or to publish or cause to be published any book, letter or other documents. The other sections which are made applicable deal with special privileges, oences, punishments, penal deductions, arrest and proceedings before trial, Court Martial and other incidental matters. These section which are made applicable are primarily intended to impose strict discipline on the members of GREF the same kind of discipline which is required to be observed by the regular Army personnel. The Government of India has also in exercise of the powers of conferred by Section 21, sub-section (4) of Section 102 and section 191 of the Army Act 1950 issued another Notication bearing SRO 330 on the same day, namely, 23rd September 1960, directing that the Army Rules 1954 as amended from time to time shall, with the exception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to be Rules made under the Army Act 1950 as applied to GREF. Rules 19, 20 and 21 of the Army Rules 1954 are material for the purpose of the present writ petitions and they provide inter alia as follows

141 19. Unauthorised organisationsNo person subject to the Act shall, without the express sanction of the Central Government:to a political question or on a service subject or containing any service information, or publish or cause to be published any book or letter or article or other document on such question or matter or containing such information without the prior sanction of the Central Government, or any ocer specied by the Central Government in this behalf; or

(i) take ocial cognizance of, or assist or take any active part in, any society, institution or organisation not recognised as part of the Armed Forces of the Union; unless it be of a recreational or religious nature in which case prior sanction of the su(ii) deliver a lecture or wireless perior ocer shall be obtained; address, on a matter relating to a po(ii) be a member of, or be asso- litical question or on a service subciated in any way with, any trade ject or containing any information or union or labour union, or any class views on any service subject without the prior sanction of the Central of trade or labour unions. Government or any ocer specied 20. Political and non-military by the Central Government in this activities-(1) No person subject to behalf. the Act shall attend, address, or take These rules obviously owe their part in any meeting or demonstration held for a party or any political pur- genesis to Section 21 and they imposes, or belong to join or subscribe pose restrictions on the fundamental in the aid of, any political association rights of members of GREF. Since the Army Act 1950 and Army Rules or movement. 1954 are made applicable by virtue (2) No person subject to the Act of SRO Nos. 329 and 330 dated 23rd shall issue an address to electors or in September, 1960, GREF personnel any other manner publicly announce when recruited, are required to achimself of allow himself to be pubcept certain terms and conditions of licly announced as a candidate or as a appointment which include inter alia prospective candidate for election to the following: Parliament, the legislature of a State, 5 (iv): You will be governed by or a local authority, or any other pubthe provisions of Central Civil Serlic body or act as a member of a candidates election committee or in any vice (Classication, Control and Apway actively promote or prosecute a peal) Rules, 1965, as amended from time to time. Notwithstanding the candidates interests. above, you will be further subject to 21. Communications to the certain provisions of the Army Act, Press, Lectures, etc-No person sub1950, and Rules made thereunder, as ject to the Act shall.laid down in SROs. 329 and 330 of (i) publish in any from whatever 1960, for purposes of discipline. It or communicate directly or indirectly will be open to the appropriate disto the Press any matter in relation ciplinary authority under the Army

142

Viswan v. Union Of India 1983

Act 1950 to proceed under its provi- tion must apply equally in regard to sions wherever it considers it expedi- the other writ petitions. The petient or necessary to do so. tioners in writ petition No. 815 of 5 (v): You will be required to 1980 are 24 in number and at all maserve anywhere in India or outside In- terial times they were members of dia and when so called upon by the GREF. Out of them, petitioner Nos. Government or the appointing au- 1 and 24 were deserters from service thority or your superior ocer, you and warrants were issued for their arshall proceed on eld service. 5 (vi): rest under the provisions of the Army You shall, if required, be liable to Act 1950 but the Police Authorities serve in any Defence Service or post were not able to apprehend them. So connected with the defence of India. far as petitioners Nos. 2 to 23 are concerned, they were charged before 5 (xi): On your appointment, you the Court Martial for oences unwill be required to wear the preder section 63 of the Army Act 1950 scribed uniform while on duty, abide in that they alongwith some other by such rules and instructions issued GREF personnel assembled in front by your superior authority regardof HQ Chief Engineer (Project) Varing discipline, turnout, undergo such tak shouting slogans and demanding training and take such departmenrelease of HQ CE (P) Vartak pertal test as the Government may presonnel placed under arrest, removed scribe. their belts and threw them on the The result is that the directly ground in the vicinity of OCs Oce, recruited GREF personnel are gov- participated in a black ag demonerned by the provisions of Central stration and failed to fall in line Civil Service (Classication, Control though ordered to do so by Brig. Goand Appeal) Rules 1965 as amended sain, Chief Engineer Project, Vartak from time to time but for purposes and also associated themselves with of discipline, they are subject to cer- an illegal association called All Intain provisions of the Army Act 1950 dia Border Roads Employees Assoand the Army Rules 1954 as laid ciation. These 22 petitioners were down in SROs 329 and 330 dated tried by the Court Martial in ac23rd September 1960. cordance with the procedure preThe material facts in all the writ scribed by the Army Act 1950 and petitions which are being disposed the Army Rules 1954 as applicaof by this Judgment are similar and ble to the members of GREF and hence it is not necessary to set out on being convicted, they were disseparately the facts of each writ pe- missed from service. The petitioners tition. It will suce to set out the thereupon preferred writ petition No. facts of writ petition No. 815 of 815 of 1980 challenging the validity 1980 which was tried as the main writ of SROs. 329 and 330 dated 23rd petition and whatever we say in re- September 1960 since these Noticagard to the facts of this writ peti- tions had the eect of applying the provisions of the Army Act 1950 and

143 the Army Rules 1954 to the members of GREF and restricting their fundamental rights. The petitioners contended that GREF was not a Force raised and maintained under the authority of the Central Government and SROs. 329 and 330 dated 23rd September 1960 were ultra vires the powers of the Central Government under sub-sections (1) and (4) of Section 4 of the Army Act 1950. The petitioners also urged that in any event the application of Section 21 of the Army Act 1950 read with Rules 19 to 21 of the Army Rules 1954 to the members of GREF was unconstitutional since it restricted the fundamental rights of the members of GREF in a manner not permitted by the Constitution and such restriction of the fundamental rights was not protected by Article 33, because the members of GREF was not members of the Armed Forces or the Forces charged with the maintenance of public order within the meaning of that Article. There was also one other contention advanced on behalf of the petitioners which, if well founded would render it unnecessary to examine whether GREF was a Force raised and maintained under the authority of the Central Government and the members of GREF were members of the Armed Forces or the Forces charged with the maintenance of public order and that contention was that Section 21 of the Army Act 1950 was in any event not justied by the terms of Article 33, since under that Article it was Parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall, in application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them and Parliament could not leave it to the Central Government to determine the extent of such restriction or abrogation as was sought to be done under- Section 21. Section 21 was therefore, according to the petitioners, unconstitutional and void and alongwith Section 21 must fall Rules 19 to 21 of the Army Rules 1954. The petitioners contended that in the circumstances they were entitled to exercise their fundamental rights under Clauses (a), (b) and (c) of Art. 19 (1) without any of the restriction imposed by Rules 19 to 21 of the Army Rules 1954 and if that be so, they could not be charged under section 63 of the Army Act 1950 on the facts alleged against them and their convictions by the Court Martial were illegal and void and consequently they continued in service of GREF. The self same contentions were repeated on behalf on the petitioners in the other writ petitions. The respondents disputed the validity of these contentions and submitted that GREF was a Force raised and maintained under the authority of the Central Government and having regard to the special character of GREF and the role which it was required to play in support of the Army operations, the members of GREF could legitimately be regarded as members of the Armed Forces within the meaning of Art. 33 and the Cen-

144 tral Government was therefore entitled to issue SROs. 329 and 330 dated 23rd September 1960 making the provisions of the Army Act 1950 and the Army Rules 1954 and particularly Section 21 and Rules 19 to 21 applicable to the members of GREF. The respondents defended the validity of Section 21 and contended that it was a proper exercise of power by Parliament under Art. 33 determining the extent to which the Fundamental Rights may, in their application to the members of the Armed Forces including GREF, be restricted or abrogated and it was not outside the power conferred on Parliament by that article and, read with Rules 19 to 21, it validly restricted the Fundamental Rights of the members of GREF. The respondents submitted that in the circumstances the petitioners were rightly charged under Section 63 of the Army Act 1950 and their convictions by the Court Martial and subsequent dismissals were valid. The respondents thus sought to sustain the validity of the action taken by the authorities against the petitioners. Now the rst question that arises for consideration on these rival contentions is as to the constitutional validity of Section 21. That section empowers the Central Government by notication to make rules restricting to such extent and in such manner as may be necessary three categories of rights of any person subject to the Army Act 1950, namely, (a) the right to be a member of or to be associated in any way with, any trade union or labour union, or

Viswan v. Union Of India 1983 any class of trade or labour unions, or any society, institution or association or any class of institution or associations; (b) the right to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; and (c)the rights to communicate with the press or to publish or cause to be published any book, letter or other document. These rights which are permitted to be restricted are part of the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. If any restrictions are to be imposed, that can be done only by law and such law must satisfy the requirements of clause (2), (3) or (4) of article 19 according as the right restricted falls within clause (a), (b) or (c) of article 19(1). The restrictions imposed must be reasonable and in case of right under clause (a) of article 19(1), they must be in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an oence as provided in clause (2) of article 19, in case of right under clause (b) of article 19(1), they must be in the interest of the sovereignty and integrity of India or public order as provided in clause (3) of article 19 and in case of right under clause (c) of article 19(1), they must be in the interest of the sovereignty and integrity of India or public order or morality

145 as provided in clause (4) of article 19. Then only they would be valid; otherwise they would be unconstitutional and the law imposing them would be void. Now here we nd that Section 21 does not itself impose any restrictions on the three categories of rights there specied. If Section 21 had itself imposed any such restrictions, it would have become necessary to examine whether such restrictions are justied under clause (2), (3) or (4) of article 19, as may be applicable. But Section 21 leaves it to the Central Government to impose restrictions on these three categories of rights without laying down any guidelines or indicating any limitations which would ensure that the restrictions imposed by the Central Government are in conformity with clause (2), (3) or (4) of article 19, whichever be applicable. It confers power on the Central Government in very wide terms by providing that the Central Government may impose restrictions on these three categories of rights to such extent and in such manner as may be necessary. The Central Government is constituted the sole judge of what restrictions are considered necessary and the Central Government may, in terms of the power conferred upon it, impose restrictions it considers necessary, even though they may not be permissible under clauses (2), (3) and (4) of article 19. The power conferred on the Central Government to impose restrictions on these three categories of rights which are part of the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is thus a broad uncanalised and unrestricted power permitting violation of the constitutional limitations. But, even so, section 21 cannot be condemned as invalid on this ground, as it is saved by article 33 which permits the enactment of such a provision. Article 33 carves out an exception in so far as the applicability of Fundamental Rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned. It is elementary that a highly disciplined and ecient armed force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Every eort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination aecting the well being and imperilling the human rights of the entire people of the country. The constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the

146 Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Article 33 on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to attract the applicability of that Article. What it says is only this and no more, namely, that Parliament may by law determine the permissible extent to which any of the Fundamental Rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order. Parliament itself can, of course, by enacting a law restrict or abrogate any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order as, in fact, it has done by enacting the Army Act, 1950, the provisions of which, according to the decisions of a Constitution Bench of this Court in Ram Swarup v. Union of India(1) are protected by article 33 even if found to aect one or more of the Fundamental Rights. But having regard to varying requirement of army discipline and the need for exibility in

Viswan v. Union Of India 1983 this sensitive area, it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which Fundamental Rights in the interest of proper discharge of duties by the members of the Armed Forces and the Forces charged with the maintenance of public order maintenance of discipline among them. The extent of restrictions necessary to be imposed on any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them, would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them, and therefore they decided to introduce a certain amount of exibility in the imposition of such restrictions and by article 33, empowered Parliament to determine the permissible extent to which any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order may be restricted or abrogated, so that within such per-

147 missible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such Fundamental Rights. Parliament was therefore within its power under article 33 to enact Section 21 laying down to what extent the Central Government may restrict the Fundamental Rights under clauses (a), (b) and (c) of article 19(1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces. The extent to which restrictions may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is clearly indicated in clauses (a), (b) and (c) of section 21 and the Central Government is authorised to impose restrictions on these Fundamental Rights only to the extent of the rights set out in clauses (a), (b) and (c) of section 21 and no more. The permissible extent of the restrictions which may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1) having been laid down in clauses (a), (b) and (c) of section 21, the Central Government is empowered to impose restrictions within such permissible limit, to such extent and in such manner as may be necessary. The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of this power, the court will not ordinarily interefere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 must, in the circumstances, be held to be constitutionally valid as being within the power conferred under article 33. That takes us to the next question whether the Central Government was entitled to issue SROs. 329 and 330 applying certain provisions of the Army Act 1950 and the Army rules 1954 to the members of GREF. We will rst consider the question of validity of SRO 329 because if that notication has been validly issued and the provisions of section 21, subsection (4) of section 102 and section 191 of the Army Act 1950 made applicable to the members of REF, SRO 330 applying certain provisions of the Army Rules, 1954 to the members of GREF in exercise of the powers conferred under section 21, subsection(4) of section 102 and section 191 of the Army Act 1950 would be fortiori be valid. Now SRO 329 is issued by the Central Government under sub-sections (1) and (4) of section 4 of the Army Act 1950 which provide inter alia as under:

148 Sec. 4(1) The Central Government my, by notication, apply with or without modications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government, and suspend the operation of any other enactment for the time being applicable to the said force. (2) ... ... ... ... (3) ... ... ... ... (4) While any of the provisions of this Act apply to the said force, the Central Government may, by notication, direct by what authority any jurisdiction, powers or duties incident to the operation of these provision shall be exercised or performed in respect of the said force. The Central Government is empowered under sub-section (1) of section 4 to apply any of the provisions of the Army Act, 1950 to any force raised or maintained in India under the authority of that Government and when any such provisions of the Army Act, 1950 are applied to that force under sub-section (1), the Central Government can by notication issued under sub-section (4), direct by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of that force. SRO 329 applying certain provisions of the Army Act, 1950 to the members of GREF and directing by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of GREF, would therefore be within the

Viswan v. Union Of India 1983 power of the Central Government under sub-section (1) and (4) of section 4, if GREF could be said to be a force raised and maintained in India under the authority of the Central Government. The question is: what is the true meaning and scope of the expression any force raised and maintained in India under the authority of the Central Government. The word force is not dened anywhere in the Army Act, 1950. There is a definition of the expression the forces in section 3 (xi) but it does not help, because the expregsion we have to construe is force which is dierent from the forces. There is however an indication to be found in subsection (2) of section 4 which throws some light on the sense in which the word force is used in sub-section (1) of section 4. Section 4, subsection (2) clearly contemplates that the force referred to in sub-section (1) of section 4 must be a force organised on similar lines as the army with rank structure. So far as GREF is concerned, there can be no doubt that it is a force organised on army pattern with units and sub units and rank structure. Moreover, as is clear from the letter dated 16th June, 1960 addressed by the Secretary, Border Roads Development Board to the Director General Border Roads, GREF is a force raised and maintained under the 11 authority of the Central Government. The Central Government therefore had power under subsections (1) and (4) of section 4 to issue SRO 329 applying some of the provisions of the Army Act, 1950 to GREF and directing by what authority the jurisdiction powers and

149 duties incident to the operation of these provisions shall be exercised or performed in respect of GREF. But the question is, and that is the more important question to which we have to address ourselves, whether, even if GREF was a force raised and maintained under the authority of the Central Government, the Central Government could, in exercise of the powers conferred under sub-section (1) of section 4, validly-apply section 21 to the members of GREF. Section 21 empowers the Central Government to make rules restricting to such extent and in such manner as may be necessary the rights set out in clauses (2), (b) and (c) of that section and in exercise of this power, the Central Government has made rules 19 to 21 to which reference has already been made by us. Now as already pointed out above, section 21 is protected against invalidation by Article 33, since it lays down in clauses (a), (b) and (c) the possible extent to which the fundamental rights of any person subject to the Army Act, 1950 may be restricted and every person subject to the Army Act 1950 would clearly and indubitably be a member of the Armed Forces within the meaning of Article 33. But if section 21 were to be applied to persons who are not members of the Armed Forces of the forces charged with the maintenance of public order, Article 33 would not aord any protection to section 21 in so far as it applies to such persons and the application of section 21 to such persons would be unconstitutional. We must therefore proceed to consider whether the members of GREF could be said to be members of the Armed Forces within the meaning of Article 33. If they cannot be said to be members of the Armed Forces, the application of section 21 to them would not have the protection of Article 33 and would be clearly void. The history, composition, administration, organisation and role of GREF which we have described above while narrating the facts clearly show that GREF is an integral part of the Armed Forces. It is undoubtedly a departmental construction agency as contended on behalf of the petitioners but it is distinct from other construction agencies such as Central Public Works Department etc., in that it is a force intended primarily to support the army in its operational requirement. It is signicant to note that the Border Roads organisation, which is in over all control of GREF was originally created as part of Army Headquarters and it was only later, for reasons of high policy, that it was separated from Army Headquarters and placed under the Border Roads Development Board. Though the budget of the Border Roads organisation forms part of the budget of Ministry of Shipping and Transport, the nancial control is vested in the Ministry of Finance (Defence). The entire infra-structure of GREF is modelled on the pattern of the Army and it is organised into units and subunits with command and control system similar to that in the Army. The personnel of GREF right from class IV to class I have to be in uniform with distinctive badges of rank and

150 they have a rank structure equivalent to that of the Army. GREF is primarily intended to carry out defence and other works projected by the General Sta, Army Headquarters and it is only where spare capacity is available that GREF undertakes works of other ministries or departments on agency basis and there also, preference is given to strategic and other roads in sensitive areas. The funds which are provided to the Border Roads organisation are meant exclusively for carrying out the works entrusted by the General Sta, Army Headquarters and so far as the works carried out for other ministries or departments on agency basis are concerned, the funds of the Border Roads organisation are not permitted to be used for carrying out those works and they are paid for by the respective ministries or departments and where applicable, agency charges for executing the works are also collected. The statistics given in the earlier part of the judgment show that the major portion of the work executed by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and only a small percentage of the work is being done on behalf of other ministries or departments. GREF units carry out essentially those tasks which are other wise carried out by Army Engineering Regiments and they provide engineering support to the Army both during peace time as also during hostilities. It was found necessary as a result of a major review carried out by Army Headquarters after 1971 that a minimum of 17 Border Road Task Forces and 34 Pioneer Compa-

Viswan v. Union Of India 1983 nies would be permanently required for providing engineering support to the Army and accordingly 17 Border Road Task Forces and 34 Pioneer Companies have been made permanent and their composition has been reorganised in accordance with the recommendations of the Army Headquarters. These 17 Border Road Task Forces and 34 Pioneer Companies are being maintained as essential units of GREF for meeting the operational requirements of the Army, even if sucient work is not available for them at any given point of time. The operational planning of the Army is in fact based on availability of these 17 Border Road Task Forces and 34 Pioneer Companies and during operations, they have to carry out tasks which would otherwise have been done by equal number of Army Engineering Regiments. It may be pointed out that these 17 Border Road Task Forces and 34 Pioneer Companies have replaced corresponding number of Army Engineering Regiments and Pioneer Companies in the Army. The tasks required to be carried out by the Border Road Task Forces have already been described in some details in the opening part of the Judgment while narrating the facts and we need not repeat the same over again. Suce it to state that these tasks are required to be carried out by the Border Road Task Forces during operations with a view to providing engineering support to the Army in its operational plans. The Border Road Task Forces have to perform these tasks and provide engineering support to the Army not only upto the border but even be-

151 yond upto the exent of advance into enemy territories. Even in peace time, the Border Road Task Forces have to undertake works projected by General Sta, Army Headquarters to meet their operational requirements and these work include construction and maintenance of roads, operational tracks, ditch-cum-bund (water obstacles on the broder), eld fortications like bunkers, re trenches and pill boxes, helipads and airelds. It is also signicant to note that the Border Road Task 1 Forces and Pioneer Companies attached to them are included in the order of Battle of the Army which implies that support of these units to the Army is guaranteed and can be requisitioned at any time The Border Road Tack Forces are also sub-allotted to lower army formations and they appear on the order of Battle of these formations. GREF units consisting of these Border Road Task Forces and Pioneer Companies are placed under the direct control of the Army during emergencies when the entire control of this Force is entrusted to the Chief of the Army Sta. Even during peace time, the Chief of the Army Sta exercises control over the discipline of the members of GREF units through the applicability of the provisions of the Army Act 1950. The Director General, Border Roads who is in over-all control of GREF units is always an army ocer of the rank of Major General and his condential reports are written by the Chief of the Army Sta. The signal communication of GREF is also integrated with the Army communication set up not only during operations but also in normal peace time. It is also a factor of vital signicance which emphasises the special character of GREF as a force intended to provide support to the Army in its operational plans and requirements that Army personnel are posted in GREF units according to a carefully planned manning policy so that GREF units can in times of war or hostilities be able to provide eective support to the Army. The tenure of oce of the Army personnel in GREF units is regarded as normal regimental duty and is equated with similar appointments in the Army for the purpose of promotion, career planning etc. Even the directly recruited personnel of GREF are given training at the GREF Centre before they are posted and the training given is in three military disciplines which we have described in detail in the opening part of the Judgment. The training includes not only drill, marching and saluting but also combat training including physical training such as standing Exercises, beam exercises. rope work, route marches etc. and combat engineering training including eld engineering, handling of service cxplosives, camouage, combat equipment, bridging, eld fortications, wire obstacles etc. Moreover, the directly recruited personnel are taken up only after they voluntarily accept the terms and conditions of employment which include inter alia conditions 5 (1v), (v). 5 (vi) and 5 (xi) which have been reproduced in full while narrating the facts. These conditions make it clear the directly recruited personnel my be required to serve anywhere in In-

152 dia and outside India and when directed, they would have to proceed on eld service and if required, they would also be liable to serve in any Defence Service or post connected with the defence of India. It is also stipulated in these conditions that on their appointment, the directly recruited personnel would have to wear the prescribed uniform while on duty and that they would be subject to the provisions of the Army Act 1950 and the Army Rules 1954 as laid down in SROs. 329 and 330 for purpuoses of discipline. It is abundantly clear from these facts and circumstances that GREF is an integral part of the Armed Forces and the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of article 33. The petitioners however tried to combat this conclusion by pointing out that the services constituted under Border Roads Engineering Service Group A, Rules 1977 and the Border Roads Engineering Service Group B, Rules, 1977 both of which were made by the President in exercise of the powers conferred under article 309 and brought into force with eect from 20th September 1977, were expressly designated as Central Civil Services and that in reply to Unstarred Question No. 1100, the Minister for Defence stated on 18th June, 1980 that GREF as at present organized is a civilian construction force and similarly in reply to Unstarred Question No. 6002, the Minister of Defence observed on 1st April 1981 that the civilian employees serving with the Border Roads or-

Viswan v. Union Of India 1983 ganisation and GREF are not under administrative control of Ministry of Defence but are under the administrative control of the Border Roads Development Board and so also Minister of Defence stated on 25th February 1983 in answer to Unstarred Question No. 938 that the members of the General Reserve Engineer Force of the Border Roads organisation are civilian employees of the Central Government. The petitioners contended on the basis of these statements that GREF was not an Armed Force but was a civilian construction agency and the members of GREF could not possibly be regarded as members of the Armed Forces so as to fall within the scope and ambit of article 33. This contentions though it may appear at rst blush attractive, is in our opinion not well founded and must be rejected. It is undoubtedly true that as stated by the Minister of Defence, GREF is a civilian construction force and the members of GREF are civilian employees under the administrative control of the Border Roads Development Board and that the engineer ocers amongst hem constitute what may be designed as Central Civil Services, within GREF, but that does not mean that they cannot be at the same time form an integral part of the Armed Forces. The fact that they are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Service (Classication, Control and Appeal) Rules, 1965 is not determinative of The question whether they are members of the Armed Forces lt may

153 be noted that even the members of the Civil General Transport Companies constituted under Government of India, War Department, notication No. 1584 dated 29th June, 1946 as also the members of the independent Transport Platoons have been treated as members of the Armed Forces for the purpose of application of the provisions of the Army Act 1950 by SRO 122 dated 22nd July 1960 and SRO 282 dated 17th August 1960. So also when personal of Military Engineer Service have to function in operational areas under the army, they too are brought under the provisions of the Army Act 1950 for the purpose of discipline. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of article 33 must depend essentially on the character of GREF, its organisational set up, its functions, the role it is called upon to play in relation to the Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces and if judged by this creterian, they are found to be members of the Armed Forces, the mere fact that they are non-combatant civilians governed by the Central Civil Services (Classication Control and Appeal) Rules 1965, cannot make any dierence. This view which we are taking on principle nds ample support from the decision of this Court in Ous Kutilingal Achudan Nair Ors. v. Union of India & Ors.(1) where the question was whether certain employees in the Defence Establishment such as cooks, chowkidars, laskers, barbers, carpenters, mechanics, boot-makers, tailors etc. who were noncombatant civilians governed by the Civil Service Regulations for purpose of discipline, leave, pay etc. and were eligible to serve upto the age of 60 years unlike the members of the Armed Forces, could be validly called members of the Armed Forces covered by article 33, because it Was only if they were members of the Armed Forces within the meaning of that article that the restrictions imposed upon their right to form association could be sustained. This Court speaking through Sarkaria, J. held that the employees in question were members of the Armed Forces and gave the following reasons in support of its view: The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the members of the Armed Forces within the contemplation of Article 33. Here also it is indisputable on the facts and circumstances mentioned above that the functions and duties of GREF are integrally connected with the operational plans and requirements of the Armed Forces and the members of GREF are, to use the words of Sarkaria, J. integral to the Armed Forces. There can be no doubt that with out the e-

154 cient and disciplined operational role of GREF the military operations in border areas during peace as also in times of war will be seriously hampered and a highly disciplined and ecient GREF is absolutely essential for supporting the operational plans and meeting the operational requirements of the Armed Forces. It must therefore be held that the members of GREF answer the description of members of the Armed Forces within the meaning of article 33 and consequently the application of section 21 of the Army 89 Act 1950 to the members of GREF must be held to be protected by that Article and the Fundamental Rights of the members of GREF must be held to be validly restricted by section 21 read with Rules 19 to 21 of the Army Rules 1954. If that be so, the petitioners were liable to be charged under section 63 of the Army Act 1950 for the alleged violations of Rules 19 to 21 and their convictions by Court Martial as also subsequent dismissals must be held to be valid. Before we part with this point, we may point out that an anguished complaint was made before us on behalf of the petitioners that there is considerable disparity between the Army personnel posted in GREF units and the other ocers and men of GREF in so far as the terms and conditions of service, such as, salary, allowances and rations arc concerned. It is not necessary for us to consider whether this complaint is justied; it is possible that it may not be wholly unjustied but we may point out that in any

Viswan v. Union Of India 1983 event it has no real bearing. It all on the question whether the members of GREF can be said to be members of Armed Forces. Since, the members of GREF are drawn from two dierent sources, it is possible that the terms and conditions of service of the personnel coming from the two sources may be dierent. The Army personnel posted in GREF units naturally carry their own terms and conditions of service while the other ocers and men in GREF are governed by their own distinctive terms and conditions. It is dicult to appreciate how dierences in terms and conditions of service between GREF personnel coming from two dierent streams can possibly have any impact on the character of GREF as a force integral to the Armed Forces. It is immaterial for the purpose of determining whether the members of GREF are members of the Armed Forces as to what are the terms and conditions of service of the members of GREF and whether they are identical with those of Armed personnel appointed on the same or equivalent posts in GREF units. But, we may observe that in case it is found that the terms and conditions of service of ocers and men in GREF directly recruited or taken on deputation are in any way less favourable than those of Army personnel appointed to the same or equivalent posts in GREF, the Central Government might well consider the advisability of taking steps for ensuring that the disparity, if any, between the terms and conditions of service, such as, salary, allowances, rations etc. Of Army personnel posted in GREF units and

155 other ocers and men in GREF is Lt. Col. Shergill, it is not possiremoved. ble for us to hold that the convicIt may be pointed out that a faint tions of the petitioners by the Court attempt was made on behalf of the Martial were not in accordance with petitioners to contend that their con- law. In any event, the allegations of victions by Court Martial were ille- the petitioners in this behalf raised gal since their trial was not in ac- disputed questions of fact which it cordance with law. This contention is not possible for us to try in a was strongly resisted on behalf of writ petition. We cannot in the cirthe respondents and it was positively cumstances be called upon to quash averred in the adavit of Lt. Col. and set aside the convictions of the Shergill that disciplinary action was petitioners by the Court Martial or initiated and punishment awarded by their subsequent dismissals from serthe competent disciplinary authority vice on the ground that they were not after the oences were proved in ac- in accordance with law. cordance with law and all possible help and opportunity was extended to the petitioners and others who were tried to defend themselves with the help of defending ocers of their choice or of civil lawyers. Lt. Col. Shergill stated in the clearest terms in his adavit in reply that out of 357 personnel kept under military custody, 287 have been released on the basis of their unconditional apology and those who failed to do so, have been tried by GCM/SCM summarily and awarded punishment, on the basis of the gravity of the offence proved against them. During the trial, all possible help was provided under the rules and they were allowed to meet/employ lawyers of their choice to defend the case. In all the cases, defending ocers as per their choices have also been detailed from departmental side. The trials were held strictly in accordance with the procedure laid down in the rules, and there is no denial of natural justice. Having regard to this positive statement made on oath by There was also one other contention advanced on behalf of the petitioners and it raised a question of violation of Article 14 of the Constitution. The contention was that the members of GREF were governed both by the Central Civil Services (Classication, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 in matters of discipline and therefore whenever a member of GREF was charged with misconduct amounting to an oence under the Army Act 1950, it was left to the unguided and unfettered discretion of the authorities whether to proceed against the employee under the Central Civil Services (Classication, Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 and SROs. 329 and 330 applying the provisions of the Army Act, 1950 and the Army Rules 1954 to members of GREF for purposes of discipline were therefore discriminatory and violative of Article 14. We do not think there is

156 any substance in this contention. In the rst place, the nature of the proceedings which may be taken under the Central Civil Services (Classication, Control and Appeal) Rules 1965 against an erring employee is dierent from the nature of the proceedings which may be taken against him under the provisions of the Army Act 1950 read with the Army Rules 1954, the former being disciplinary in character while the latter being clearly penal. It is signicant to note that Section 20 of the Army Act 1950 which deals with dismissal, removal or reduction of any person subject to that Act and clauses (d), (e), (f), (g) and (k) of Section 71 which provide for punishment of cashiering, dismissal, reduction in rank forfeiture of seniority and forfeiture of pay and allowances, have not been made applicable to the members of GREF by SRO 329 with the result that, so far as disciplinary proceeding are concerned, there is no overlapping between the provisions of the Central Civil Services (Classication, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 as applied to the members of GREF. Secondly, it is not possible to say that the discretion vested in the authorities whether to take action against an erring member of GREF under Central Civil Services (Classication Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 is unguided or uncanalised. It has been denied in the adavit of Lt. Col. Shergill that unguided discretion any power is vested in the disciplinary author-

Viswan v. Union Of India 1983 ity to proceed against an employee of GREF either under the Central Civil Services (Classication, Control and Appeal) Rules 1965 or the Army Act 1950 and the Army Rules 1954 or to switch over from one proceeding to the other at the any stage. Lt. Col. Shergill has stated positively in his adavit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take action against an employee of GREF under the Central Civil Services (Classication, Control and appeal) Rules 1965 of the Army Act 1950 and the Army Rules 1954 and these guidelines have been set out in full in Annexure R-5 to his adavit. Thirdly, the decision in Northern India Caterers Ltd. v. Punjab(1) on which the contention of the petitioners is based has been over-ruled by this Court in Maganlal Chhaganla v. Municipal Corporation, Greater Bombay(2) where it has been held that the contention that the mere availability of two procedures will vitiate one of them, that is, the special procedure is not supported by reason or authority. And lastly, it may be noted that in any event the provisions of the Army Act 1950 and the Army Rules 1954 as applied to the members of GREF are protected by Article 33 against invalidation on the ground of violation of Article 14. The present contention urged on behalf of the petitioners must also therefore be rejected. We may make it clear it is only in regard to the members of GREF that

157 we have taken the view that they are members of the Armed Forces within the meaning of Article 33. So far as casual labour employed by GREF is concerned, we do not wish to express any opinion on this question whether they too are members of the Armed Forces or not, since that is not a question which arises for consideration before us. The writ petitions are accordingly dismissed with no order as to costs. The special leave petitions will also stand rejected. H.L.C. Petitions dismissed.

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Viswan v. Union Of India 1983

Chapter 10

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985


1985 SCC (2) 412 1985 SCALE Chief Of The Army Sta And Others v. Major Dharam Pal (1)582 Kukrety on 21 March, 1985 EquivACT: alent citations: 1985 AIR 703, 1985 Constitution of India Article 226SCR (3) 415 Author: B P Narain Maintainability of writ petition at Bench: Madon, D.P. the stage of show cause notice to PETITIONER: terminate the services of a service CHIEF OF THE ARMY STAFF personnel by the Chief of the Army sta when the nding of a court AND OTHERS martial even on revision is perverse v. or against the weight of evidence RESPONDENT: on record-Army Act, 1950 sections MAJOR DHARAM PAL 18 to 24, 108, 121, 127, 153, 154, KUKRETY 160(1), 191 and the Army Rules 1954 Rules 14 and 68 to 71, scope ofDATE OF JUDGMENT21/03/1985 Competency of the Chief of the Army BENCH: Sta to have recourse to Rule 14 MADON, D.P. of the Army Rules, when the genBENCH: eral court martial originally and on revision returned a verdict of Not MADON, D.P. guilty -Principle of double jeopCHANDRACHUD, Y.V. ((CJ) ardy Aufrefois Acquit applicabilityMISRA RANGNATH Constitution of India Article 20(2) CITATION: read with Army Act, section 121. 1985 AIR 703 1985 SCR (3) 415 HEADNOTE:

160

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 of the Army Sta under Rule 14 of the Army Rules 1954 issued the impugned show cause notice dated November 12, 1976 stating that the Chief of the Army Sta had carefully considered the facts of the case as also the respondents defence at the trial and being satised that a fresh trial by a court martial for the said oences was inexpedient, he was of the opinion that the respondents misconduct as disclosed in the proceedings rendered his further retention in the service undesirable. and called upon the respondent to submit his explanation and defence, if any, within twenty-ve days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the respondent. The respondent, thereupon, led in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which was allowed by a Division Bench of the said High Court. Hence the appeal by special leave Allowing the appeal, the Court HELD: 1. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Courts protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ peti-

The respondent, a permanent commissioned ocer of the Indian Army holding the substantive rank of captain and the acting rank of major, as a result of certain incidents which are alleged to have taken place on November 5 and 6, 1975 was ordered to be tried by a general court martial. On March 13, 1976, the court martial announced its nding subject to conrmation, the nding being Not guilty of all the charges. The General Ocer Commanding, Madhya Pradesh, Bihar and Orissa Area, the third appellant, who was the conrming authority, did not conrm the verdict and by his order dated April 3, 1976, sent back the nding for revision. The same general court martial, therefore, reassembled on April 14, 1976, and after hearing both sides and taking into consideration the observations made by the third appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the nding subject to conrmation, that the respondent was Not guilty of all the charges. The third appellant reserved conrmation of the nding on revision by a superior authority, namely, the General Ocer, Commanding- in-Chief, Central Command, Lucknow, the second appellant, and forwarded the papers to him. By his order dated May 25, 1976, the second appellant did not conrm the nding on revision of the general court martial. The charges made against the respondent, the nding and the nonconrmation thereof were promulgated as required by Rule 71 of the Army Rules. Thereafter, the Chief

161 tion could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the jurisdiction of the Chief of the Army Sta to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondents writ petition was not premature and was maintainable. [420C-E] 2. Whether the Chief of the Army Sta was competent to issue the impugned notice of show cause depends upon the relevant provisions of the Army Act 1950 and the Army Rules 1954. Under Section 153 of the Army Act, no nding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be conrmed as provided by the Army Act. Under Section ]60 of the Army Act, the conrming authority has the power to direct a revision of the nding of a court martial only once. There is no power in the conrming authority, if it does not agree with the nding on revision, to direct a second revision of such nding. In the absence of any such conrmation, whether of the original nding or of the nding on revision, by reason of the provisions of Section 153 the nding is not valid. Therefore, in the case of the respondent, the nding of the general court martial on revision not having been conrmed was not valid. Equally, there is however, no express provision in the Army Act which empowers the holding of a fresh court martial when the nding of a court martial on revision is not conrmed. [427C-F] 3. Though it is open to the Central Government or the Chief of the Army Sta to have recourse to Rule 14 of the rst instance without directing trial by a court martial of the concerned ocer, 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 Sta from resorting in such a case to Rule 14. [429F-G] In the present case, the Chief of the Army Sta had, on the one hand, the nding of a general court martial which had not been conrmed and the Chief of the Army Sta was of the opinion that the further retention of the respondent in the service was undesirable and, on the other hand, there were three dierence conicting decisions of dierent High Courts on this point which point was not concluded by a denitive 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 Sta would be to take action against the respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law. [430B-D] Capt. Kashmir Singh Shergill v. The Union of India & Another, Civil Writ No. 553 of 1974 decided on November

162

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

6, 1974 by Prakash Narain, J., ap- he was posted in the Army School proved. of Mechanical Transport, Faizabad. G.B. Singh v. Union of India and As a result of certain incidents which Others, [1973] Crl. L.J. 485; Major are alleged to have taken place on Manohar Lal v. The Union of In- November 6 and 7, 1975, the Redia and Anr., 1971 (1) S.L.R. 717; spondent was tried by a general court J.C. 13018 Subedar Surat Singh v. martial on four charges. It is unThe Chief Engineer Projects (Bea- necessary to reproduce the charges con) C/o.56 A.P.O. AIR 1970 J. & made against the Respondent. The charge-sheet was dated January 20, K 179 referred to. 1976, and was issued by the ComJUDGMENT: mandant, Ordinance Depot, Fort AlCIVIL APPELLATE JURIS- lahabad. On January 24, 1976, the DICTION: Civil Appeal No. 663 Respondent was ordered to be tried of 1978. by a general court martial. The ReFrom the Judgment and Order spondent pleaded not guilty and his dt. 9.3.77 of the Allahabad High trial took place at Lucknow before Court in Civil Misc. Writ No. 84/77. a general court martial consisting of Dr. Anand Prakash, V.B.. Sa- one Brigadier, two Majors and two haraya and Miss A. Subhashini, for Captains Both the prosecution and the Respondent led evidence. On P the Appellants March 13, 1976, the court martial anH. S. Parihar, for the Responnounced its nding subject to conrdent. mation, the nding being Not guilty The judgment of the Court was of all the charges. The General Odelivered by MADON,J. This Ap- cer, Commanding Madhya Pradesh, peal by Special Leave granted by this Bihar and Orissa Area, the Third Court is preferred against the judg- Appellant, who was the conrming ment and order of a Division Bench authority, did not conrm the verof the Allahabad High Court allow- dict and by his order dated April 3, ing the writ petition led by the Re- 1976, sent back the nding for revispondent under Article 226 of the sion. The same general court marConstitution of India and quashing tial, therefore, re assembled on April a show cause notice dated Novem- 14, 1976, and after hearing both sides ber 12,1976 issued by the First Ap- and taking into consideration the obpellant, the Chief of the Army Sta, servations made by the Third Appelunder Rule 14 of the Army Rules. lant in his said order dated April 3, 1954. The facts which have given 1976, adhered to its original view and rise to this Appeal lie in a narrow once again announced the nding compass. The Respondent is a per- that the Respondent was Not guilty manent commissioned ocer of the of all the charges. The said ndIndian Army holding the substan- ing was also expressly announced as tive rank of Captain and the acting being subject to conrmation. The rank of Major. In November 1975, Third Appellant reserved conrma-

163 tion of the nding on revision by a superior authority, namely, the General Ocer, Commanding in-Chief, Central Command, Lucknow, the Second Appellant, and forwarded the papers to him. By his order dated May 25, 1976, the Second Appellant did not conrm the nding on revision of the general court martial. The charges made against The Respondent, the nding and the nonconrmation thereof were promulgated as required by Rule 71 of the Army Rules. Thereafter the Chief of the Army Sta under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of the Army Sta had carefully considered the facts of the case as also the Respondents defence at the trial and being satised that a fresh trial by a court martial for the said oences was inexpedient, he was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in the service undesirable. The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twentyve days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the Respondent. The Respondent thereupon led in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which, as aforesaid, was allowed. It was the contention of the Respondent in his writ petition that under the Army Act, 1950 (Act No. 46 of 1950), and the Army rules there was an initial option either to have the concerned ocer tried by a court martial or to take action against him under Rule 14 and that in his case the option having been exercised to try him by a court martial, the Chief of the Army Sta was not competent to have recourse to Rule 14 after the Respondent was - acquitted both at the time of the original trial and on revision. This contention found favour with the High Court. The High Court held that as the Respondent had in fact been tried by a court martial which both at the time of the original trial and on revision had returned a verdict of not guilty, it could not be said that it was inexpedient to try the Respondent by a court martial and, therefore, the impugned notice under Rule 14 was issued without any jurisdiction. At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was not maintainable as being premature. The High Court held that as the impugned notice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait until his services were terminated. The same contentions, as were raised before the High Court, were taken before us at the hearing of this Appeal. We will rst deal with the Appellants preliminary objection that the Respondents writ petition was not maintainable as being prema-

164

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 Chief of the Army Sta to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the Respondents writ petition was not premature and was maintainable. Before considering the rival contentions with respect to the validity of the impugned notice, we may mention that a learned Single Judge of the Delhi High Court has held in the case of Capt. Kashmir Singh Shergill v. The Union of India and another (1) that the Chief of the Army Sta was competent to issue a show cause notice under Rule 14 even though the court martial had armed its verdict on revision. The answer to the question whether the Chief of the Army Sta was competent to issue the impugned notice depends upon the relevant provisions of the Army Act and the Army Rules to which we now turn. Chapter IV of the Army Act, which consists of Section 18 to 24, deals with the conditions of service of persons appointed under (1) Civil Writ No. 553 of 1974 decided on November 6, 1974 by Prakash Narain, J. the Act. Section 18 provides that every person subject to the Army . Act shall hold oce during the pleasure of the President. Section 19 provides that subject to the provisions of the Army Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service, any person subject to the Army Act. Section 22 provides that any person

ture. It was the Respondents case that the Chief of the Army Sta had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court martial on revision. The said notice expressly stated that the Chief of the Army Sta was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the Respondents contention with respect to the jurisdiction of the Chief of the Army Sta to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the Respondent would have then suered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Courts protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the jurisdiction of the

165 subject to the Army Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed by rules made under the Act. Section 191 confers upon the Central Government the power to make rules for the purpose of carrying into eect the provisions of the Army Act. Rule 14 of the Army Rules, 1954, provides as follows: 14. Termination of service by the Central Government on account of misconduct(1) When it is proposed to terminate the service of an ocer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specied in sub-rule (2) against such action: Provided that this sub-rule shall not apply: (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court; or (b) where the Central Government is satised that for reasons to be recorded in writing, it is not expedient or reasonably practicable to give to the ocer an opportunity of showing cause. (2) When after considering the reports of an ocers misconduct, the Central Government or the Chief of the Army Sta is satised that the trial of the ocer by court martial is inexpedient or impracticable, but is of the opinion that the further retention of the said ofcer in the service is undesirable the Chief of the Army Sta shall so inform the ocer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: Provided that the Chief of the Army Sta may withhold from disclosure any such report or portion thereof, in his opinion, its disclosure is not in the interest of the security of the State. In the event of the explanation of the ocer being considered unsatisfactory by the Chief the Army Sta, or when so directed by the Central Government, the case shall be submitted to the Central Government with the ocers defence and the recommendation of the Chief of the Army Stas to the termination of the ocers service in the manner specied in sub-rule (4). (3) Where, upon the conviction of an ocer by a criminal court, the Central Government or the Chief of the Army sta considers that the conduct of the ocer which has led to his conviction renders his further retention in service undesirable, a certied copy of the judgment of the criminal court convicting him shall be submitted to the Central Government with the recommendation of the Chief of the Army Sta as to the termination of the ocers n service in the manner specied in sub-rule (4). (4) When submitting a case to the Central Government under the provisions of sub-rule (2) or sub-rule (3), the Chief of the Army Sta shall make his recommendation whether the ocers service should be terminated, and if so, whether the ocer should be(a) dismissed from the service; or

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 Respondent by a court martial was inexpedient or impracticable as in fact the Respondent had been tried by a court martial. It was also submitted that on a true construction of Rule 14, the Central Government or the Chief of the Army Sta has an initial option to have the ocer tried by a court martial or to take action against him under Rule 14 and if it were decided that he should be tried by a court martial, then action under Rule 14 was not permissible in case of his acquittal by the court martial. To test the correctness of these submissions, we must examine the provisions of the Army Act relating to court martial. Section 108 provides for four kinds of courts- martial, namely. (1) general courts martial; (2) district courts martial; (3) summary general courts martial; and (4) summary courts martial.

(b) removed from the service; or (c) called upon to retire; or (d) called upon to resign. (5) The Central Government after considering the reports and the ocers defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Chief of the Army Sta, may dismiss or remove the ocer with or with out pension or call upon him to retire or resign, and on his refusing to do so, the ocer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. We are not concerned in this Appeal with a case where an ocer has been convicted by a criminal court or with a case where the Central Government is satised that it is not expedient or reasonably practicable to give to the ocer an opportunity of showing cause.A show cause notice was in fact issued to the Respondent by the Chief of the Army Sta. Under sub-rule (2) of Rule 14, the foundation of the jurisdiction of the Central B, Government or the Chief of the Army Sta to issue a show cause notice is the satisfaction of the Central Government or the Chief of the Army Sta after considering the reports of an ocers misconduct that the trial OF the ocer by a court martial is inexpedient or impracticable and the opinion formed that the further retention of the ocer in the service is undesirable.

As the Respondent was tried by a general court martial, we are not concerned here with any other type of courts- martial, Under section 109, a general court martial may be convened by the Central Government or the Chief of the Army Sta or by any ocer empowered in that behalf by warrant of the Chief of the Army Sta. Section 113 provides that a general court martial shall consist of not less than ve ocers, each of whom has held a commission for not less than three whole The contention before us was years and of whom not less than four that in the circumstances of this case are of a rank not below that of capit cannot be said that the trial of the tain. Section 117 provides for cases

167 in which a court martial can be disThe Respondent was neither solved. These cases are: tried by a criminal court nor dealt (1) Where after the commence- with under any of the sections 80, 83, ment of a trial the court martial is 84 and 85, most of which do not apreduced below the minimum number ply to an ocer of his rank- He was, of ocers required by the Army Act. however, tried by a general court In such a case the dissolution of the martial which found him not guilty of court martial is mandatory. (2) If, any of the charges made against him. on account of the illness of the judge- Under section 125, where a criminal advocate or of the accused before the court and a court martial both have nding, it is impossible to continue jurisdiction in respect of an oence, the trial. In this case also the disso- it is in the discretion of the ocer lution of the court martial is manda- commanding the army, army crops, division or independent brigade in tory. which the accused person is serving (3) If it appears to the ocer who or such other ocer as may be preconvened a court martial that miliscribed by the Army Rules to decide tary exigencies or the necessities of before which court the proceedings discipline render it impossible or inshall be instituted. Under section expedient to continue the court mar127, a person convicted or acquitted tial. In this case, the dissolution of by a court martial may, with the prethe court martial is discretionary. vious sanction of the Central GovSub-section (4) of section 117 ex- ernment, be tried again by a crimipressly provides that where a court nal court for the same oence or on martial is dissolved, the accused may the same facts. There is, however, be tried again. Section 118 con- no provision for the trial by a court fers upon a general court martial the martial for the same oence or on the power to try any person subject to same facts where a person has been the Army Act for any oence pun- convicted or acquitted by a criminal ishable thereunder and to pass any court. Sections 153, 154 and 160(1) sentence authorized thereby. provide as follows: Section 121 provides as follows: 153. Finding and sentence not valid, unless conrmed.121. Prohibition of second trial.No nding or sentence of a genWhen any person subject to this eral, district or summary general, Act has been acquitted or convicted court martial shall be valid except so of an oence by a court martial or far as it may be conrmed as proby a criminal court, or has been dealt vided by this Act. with under any of the sections 80, 83, 154. Power to conrm nd84 and 85, he shall not be liable to be ing and sentence of general court tried again for the same oence by a martial.court martial or dealt with under the The ndings and sentences of said sections.

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 any, shall at once be transmitted for conrmation. 69. Review of court martial proceedings.- The proceedings of a general court martial shall be submitted by the judge advocate at the trial for review to the deputy or assistant judge advocate general of the command who shall then forward it to the conrming ocer. The proceedings of a district court martial shall be sent by the presiding ofcer or the judge- advocate direct to the conrming ocer who must, in all cases. where the sentence is dismissal or above, seek advice of the deputy or assistant judge advocate general of the command before conrmation. 70. ConrmationUpon receiving the proceedings of a general or district court martial, the conrming authority may conrm or refuse conrmation, or reserve conrmation for superior authority, and the conrmation, nonconrmation, or reservation shall be entered in and form part of the proceedings. 71. Promulgation-The charge, nding, and sentence, and any recommendation to mercy shall, together with the conrmation or non-conrmation of the proceedings, be promulgated in such manner as the conrming authority may direct; and if no direction is given, according to the custom of the service. Until promulgation has been eected, conrmation is not complete and the nding and sentence shall not be held to have been conrmed until they have been promulgated.

general courts martial may be conrmed by the Central Government, or by any ocer empowered in this behalf by warrant of the Central Government. 160. sentence,Revision of nding or

(1) Any nding or sentence of a court martial which requires conrmation may be once revised by order of the conrming authority and on such revision, the court, if so directed by the Conrming authority, may take additional evidence. In this connection it will also be relevant to set out the provisions of Rules 68, 69, 70 and 11 of the Army Rules. These Rules provide as follows: 68. Revision. (1) Where the nding is sent back for revision under section 160, the Court shall reassemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court. The court shall then deliberate on its nding - in closed court. (2) Where the nding is sent back for revision and the court does not adhere to its former nding, it shall revoke the nding and sentence, and record the new nding, and if such new nding involves a sentence, pass sentence afresh.

(3) Where the sentence alone is sent back for revision, the court shall not revise the nding. (4) After the revision, the presiding ocer shall date and y sign the decision of the court, and the proceedings, upon beIt is pertinent to note that under ing signed by the judge- advocate, if Section 160 the conrming authority

169 has the power to direct a revision of the nding of a court martial only once. There is no power in the conrming authority, if it does not agree with the nding on revision, to direct a second revision of such nding. In the absence of any such conrmation, whether of the original nding or of the nding on revision, by reason of the provisions of section l 53 the nding is not valid. Therefore, in the case of the Respondent, the nding of the general court martial on revision not having been conrmed 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 oence by a court martial or by a criminal Court, is not liable to be tried again for the same oence by a court martial. It can well be argued that by reason of the provisions of section 153 under which no nding or sentence of a general, district or summary general court martial is valid except in so far as it is conrmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court martial until the nding of guilty or not guilty in his case has been conrmed by the conrming authority. There is, however, no express provision in the Army Act which empowers the holding of a fresh court martial when the nding of a court martial on revision is not conrmed. The decisions of three High Courts may be referred to in this connection. The rst decision is that of Allahabad High Court in G.B. Singh v. Union of India and Others. (1) That was a case under the Air Force Act, 1950 (Act No. 45 of 1950). In that case, the ocer was found guilty by a general court martial and sentenced ,. to be dismissed from service. The nding and sentence was referred to the conrming authority. The conrming authority passed an order reserving the same for conrmation by superior authority and forwarded the proceedings to the Chief Of the Air Sta. The Chief of the Air sta passed an order not conrming the nding or sentence awarded by the court martial. The nding and sentence which were not conrmed by the Chief of Air Sta were promulgated after the lapse of about ten months.A fresh general court martial was convened to retry the oce. On enquiry the ocer was informed that the ndings and sentence of the general court martial had not been conrmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the ocer. After considering the relevant provisions of the Air Force Act and the Air Force Rules, 1969, which are in pari 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 eect of non-conrmation was that though the nding and sentence passed by the court martial existed, they could not be put into effect unless they had been conrmed 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

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 The Chief Engineer Projects (Beacon). Co. 56 A.P.O. (1).A Division Bench of the Jammu and Kashmir High Court held that though every nding of a general court martial, whether of acquittal or of guilt, cannot be recorded as valid unless it is conrmed by the competent authority, the Legislature could not have reasonably intended that an ocer convening a general court martial can go on dissolving such court martials and reconstituting them ad innitum until he obtained a verdict or a nding 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 des. According to the Jammu and Kashmir High Court, in such a case the proper course for the conrming authority would be to refer the case to its superior authority for conrmation. This being the position, what then is the course open to the Central Government or the Chief of the Army Sta when the nding 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 Sta can have resort to Rule 14 of the

a court martial. In Major Manohar Lal v. The Union of India and Anr. (1) the petitioner was tried by a general court martial which found him not guilty. The General Ocer 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 certicate had been recorded by the ofcer convening the court martial as required by Rule 40(2) of the Army Rules, that an ocer 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 ocer did not append the certicate that an ocer of the rank of the petitioner was not available did not make the constitution of the general court martial invalid or the nding 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 suered 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.

171 Army Rules. Though it is open to the Central Government of the Chief of the Army Sta to have recourse to that Rule in the rst instance without directing trial by a court martial of the concerned ocer, there is no provision in the Army Act or in Rule l 4 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Sta 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, denes the word inexpedient as meaning not expedient; disadvantageous in the circumstances, unadvisable, impolitic. The same dictionary denes expedient inter alia as meaning advantageous; t, proper, or suitable to the circumstances o the case. Websters Third New International Dictionary also (1) A.I.R. 1970 J. & K, 179. denes the term expedient inter alia as meaning characterized by suitability, practicality, and eciency in achieving a particular end: t, proper, or advantageous under the circumstances. tive 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 Sta would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarraned in law. In the result, this Appeal must succeed and is accordingly allowed and the judgment of the Division Beach of the Allahabad High Court under Appeal is reversed and the order passed by it is set aside. The writ petition led by the Respondent in the Allahabad High Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed. Before parting with this Appeal, we would like to observe that the alleged incidents in respect of which the Respondent was tried before the general court martial took place nearly ten years ago. We, therefore, feel that the Chief of the Army Sta should take into account the conduct and behaviour of the Respondent during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceeding further in the matter.

In the present case, the Chief of the Army Sta. had, on the one hand, the nding of a general court martial which had not been conrmed and the Chief of the Army Sta was of the opinion that the further retention of the Respondent in the service was undesirable and, on In the circumstances of the Case, the other hand, there were the above there Will be no order as to costs three High Court decisions and the throughout. point was not concluded by a deniS. R. Appeal allowed,

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

Chapter 11

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986


Supdt. & Remembrancer Of Legal ... v. Usha Ranjan Roy Choudhury & Anr on 21 May, 1986 Equivalent citations: 1986 AIR 1655, 1986 SCR (3) 113 Bench: Thakkar, M.P. 1986 AIR 1655 1986 SCR (3) 113 1986 SCC Supl. 190 JT 1986 363 1986 SCALE (1)931 ACT:

Criminal Courts and Court Martial (Adjustment of Jurisdiction) PETITIONER: Rules, 1952, Rules 3 and 4-Oences SUPDT. & REMEMBRANCER falling within purview of section 52 of OF LEGAL AFFAIRS, WEST BEN- Army Act, 1950-Trial by MagistrateProcedure to be followed-Special GAL Judge, whether deemed to be a Magv. istrate. RESPONDENT: Criminal Law (Amendment) Act, USHA RANJAN ROY CHOUD1952. Section 8(3A). Special JudgeHURY & ANR. Whether deemed to be a Magistrate DATE OF JUDGMENT21/05/1986 Trial of oences under section 52 for of the Army Act, 1950. BENCH: THAKKAR, M.P. (J) BENCH: HEADNOTE: The three respondents-accused were charged with oences which fell THAKKAR, M.P. (J) within the scope of section 52 of ERADI, V. BALAKRISHNA (J) the Army Act of 1950. The ordiCITATION: nary criminal court and the Court Martial both had concurrent jurisdic-

174

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 accused to a fresh trial after following the procedure prescribed by the Rules. [125D-F] 2.1 In order to avoid any conict of jurisdiction between the criminal court and the court martial in regard to oenders who are charged with having committed oences which fall under the purview of Section 52 of the Army Act, 1950, Section 549(1) of Cr.P.C. provides that Central Government may make Rules consistent with Cr.P.C. and the Army Act. In pursuance of this provision contained in Section 549(1), Cr.P.C., the Central Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952. [117H; 118A-B] 2.2 Rule 3 of the Rules requires that when a person subject to military, Naval or Air Force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by Court Martial also, the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. A combined reading of rules 3 and 4 shows that in case the Magistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority, the concerned Magistrate is enjoined to give notice to the commanding ocer in this behalf. Till the expiry of seven days from the service of such notice on the commanding ocer, the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused. Therefore, the

tion to try the said oences. They were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta. The learned Trial Judge, while convicting one of the respondents and acquitting the remaining two, failed to follow the procedure prescribed by the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 framed under Section 549(1) of the Code of Criminal Procedure of 1898. The High Court, in appeal, took the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army ocers resulting in the conviction of one of them, and the acquittal of the remaining two and quashed the proceedings. Dismissing the appeals, by the State, HELD: 1. The High Court was right in allowing the appeal of the ofcer who was convicted and dismissing the appeal of the State calling into question the acquittal of the remaining two. However, the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression acquitted has been employed by the High Court though it was sucient to say no more than this, that the order of conviction and sentence was without jurisdiction and was therefore being quashed. In the eye of law, it is not an acquittal since it is not on merits. It is, therefore, for the competent authority to decide whether or not to subject the

175 ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would, of logical necessity, vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. [118B-F] In the instant case, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their option to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.[123D-E] Delhi Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya. [1973] (1)SCR 1010 relied upon. Major E.G. Barsay v. The State of Bombay [1962] (2) SCR 195 referred. 3.1 Section 13 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 in terms accords recognition to the applicability of the Criminal Law (Amendment) Act of 1952 enacted by the Parliament except and save some of the sections, namely, sections 6,7,8,9 and 10 thereof which, as provided in Section 13, shall not apply and shall be never deemed to have applied to West Bengal. It is implicit in Section 13 of the West Bengal Act that the Central Act, namely, Criminal Law (Amendment) Act of 1952 is applicable to the State of West Bengal except and save the aforesaid ve sections. There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law (Amendment) Act of 1952 enacted by the Parliament is applicable subject to inconsistency, if any, between the said Act and the West Bengal Act. Moreover, the West Bengal Act does not contain any provision pertaining to personnel governed by the Army Act. It is altogether silent in regard to the matter pertaining to the procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr.P.C. and the rules framed under the authority thereof. There is thus no conict between the Criminal Law (Amendment) Act of 1952 and the West Bengal Act in so far as this matter is concerned. Such being the position the provision contained in Criminal Law (Amendment) Act of 1952 with a special eye on the procedure to be followed in Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of 1952 will operate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the provision of Section 549 Cr.P.C. shall so for as may be applied to the proceeding before the Special Judge and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate, the said provisions remain fully alive and unaected by the West Bengal Act. [124C-H; 125A] JUDGMENT:

176

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986

CRIMINAL APPELLATE JU- scribed by the Criminal Courts and RISDICTION: Criminal Appeal Nos. Court Martial (Adjustment of Juris170 and 171 of 1977 diction) Rules, 1952 (referred to as From the Judgment and Order Rules hereinafter) framed under Secdated 29th May, 1975 of the Calcutta tion 549 (1) of the Code of Criminal High Court in Criminal Appeal No. Procedure of 1898 (Cr.P.C.) 308 of 1972 and Govt. Appeal No. 5 of 1973. D.P. Mukherjee and G.S. Chatterjee for the Appellant. Rathin Dass and Pankaj Kalra for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. The validity of the trial of three Army Ocers is in question. The High Court has taken the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army Ocers resulting in the conviction of one of them, and the acquittal of the remaining two and has quashed the proceedings. The question which calls for determination in these two allied appeals by special leave preferred by the State of West Bengal is whether the High Court was right in doing so. The following facts are not in dispute: The following contentions were urged before the High Court on behalf of the State with a view to substantiate the contention that the learned Trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed. (1) The rules framed under Section 549(1) of Cr.P.C. were not attracted inasmuch as the rules applied to Magistrates and not to a Judge presiding over a Special Court.

(2) Having regard to the provision contained in section 122 of the Army Act, 1950, which prescribes a period of limitation of three years, which period had already elapsed during the pendency of the proceedings in the High Court, the Court Martial would have no jurisdiction to try the accused and that the trial (1) Three accused persons who held by the learned Trial Judge could were tried by the Judge presiding not be said to have been vitiated in over the Fourth Addl. Special Court, view of this circumstance. Calcutta (hereinafter referred to as (3) In view of a letter addressed the learned Trial Judge for the sake by the Brigadier of the Division conof brevity) were Army Ocers. They cerned to the Police Ocer for inveswere charged with oences in respect tigating the oences, it can be said by of which the ordinary Criminal Court necessary implication that the Army and the Court Martial both had con- authorities had opted for the trial of the case by the ordinary Civil Court. current jurisdiction. (2) The Learned Trial Judge had The High Court repelled all the failed to follow the procedure pre- three contentions, allowed the ap-

177 peal of the ocer who was convicted, and dismissed the appeal of the State calling into question the acquittal of the remaining two. Besides reiterating the same three contentions before this Court, learned counsel for the appellant has raised a new point which was not urged before the High Court. We propose to deal with the submissions which were urged in the High Court before coming to grips with the new point sought to be raised by the learned counsel for the appellant State. For a proper appreciation of the rst point, a quick look at the statutory provisions and the position emerging therefrom is called for. In regard to the oences which fall within the purview of Section 70 of the Army Act of 1950, an oender can be tried only by Court Martial whereas in regard to oences falling within the purview of Section 52 of the said Act, the oences can be tried both by the ordinary criminal court as also by the Court Martial both of which have concurrent jurisdiction. The oences with which the concerned accused were charged before the learned Trial Judge were offences which fell within the scope of Section 52 of the Army Act of 1950 and accordingly the ordinary criminal court as also the Court Martial had concurrent jurisdiction. In order to avoid any conict of jurisdiction between the criminal court and the court martial in regard to offenders who are charged with having committed oences which fall under the purview of Section 52 of the Army Act, 1950, Section 549(1)1 of Cr. P.C. provides that Central Government may make Rules consistent with Cr. P.C. and the Army Act. In pursuance of this provision contained in Section 549(1) Cr. P.C. the Central Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Rule 3 of the said Rules requires that when person subject to military, Naval or Air Force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by Court Martial also the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. On a combined reading of rules 3 and 4/2, it is evident that in case the Megistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority, the concerned Magistrate is enjoined to give notice to the commanding ocer in this behalf. Till the expiry of seven days from the service of such notice on the commanding ocer, the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused. 1 The Central Government may make rules, consistant with this Code and the Army Act, the Naval Discipline Act and the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force, as to the cases in which persons subject to military, naval or air-force law shall be tried by a Court to which this Code applies, or by court martial; and when any person is brought before a Magistrate and charged with

178

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 out compliance with the aforesaid mandatory procedure would vitiate the trial before the ordinary criminal court and the entire proceedings would be rendered null and void. Faced with this situation, counsel for the State contended before the High Court that the procedure embodied in Section 549(1) of the Cr. P.C. and Rules framed thereunder were applicable only to the court presided over by a magistrate and not to a Judge presiding over a Special Court. This contention was negatived by the High Court. And it has now been reiterated before us, it being an admitted position that the prescribed procedure has not been followed by the learned trial judge in the case giving rise to the present appeals. This argument was possibly inspired by a point debated in Major E.G. Barsay v. The State of Bombay. [1962] (2) S.C.R. 195. The view was taken therein that inasmuch as the aforesaid Rules refer to a Magistrate the Rules were not attracted with regard to a trial before a Special Judge. It was presumably on accout of this decision that the Criminal Law (Amendment) Act of 1952 was amended by incorporating Sections 8 (3A) and 11, reading as under: Section 8(3A): In particular, and without prejudice to the generality of the provisions contained in subsection (3), the provisions of Sections 350 and 549 of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate.

an oence for which he is liable to be tried either by a Court to which this Code applies, or by a court martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the oence of which he is accused, to the commanding ocer of the regiment, corps, ship or detachment to which he belongs, or to the commanding ocer of the nearest military, naval, or air-force station, as the case may be for the purpose of being tried by the Court Martial. 2. 3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an oence for which he is liable to be tried by a court martial, such magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any oence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force Authority, or (b) he is moved thereto by such authority. It is in the background of these provisions that the High Court has taken the view that compliance with the procedure prescribed by the Rules is a mandatory requirement and that any proceedings undertaken by the learned Trial Judge with-

179 Section 11: Military, naval and tention urged on behalf of the apair force laws not to be aectedpellant State, albeit on a reasoning 4. Before proceeding under which is somewhat obscure. Conclause (a) of rule 3 the Magistrate fronted by this situation counsel for shall give written notice to the Com- the appellant State has raised a new manding Ocer of the accused and point to which a reference was made until the expiry of a period of seven in the earlier part of the judgment. days from the date of the service of The new point which has been so raised is that Sections 8(3A) and 11 such notice he shall not quoted hereinabove which were in(a) Convict or acquit the accused corporated by Central Act 11 of 1958 under sections 243, 245, 247 or 248 as further amended by Central Act of the Code of Criminal Procedure, XXII of 1966 were not applicable to 1898(V of 1898), or hear him in his the State of West Bengal from where defence under section 244 of the said the matter giving rise to the present Code, or appeals stems. Since no such argu(b) frame in writing a charge ment was advanced before the High against the accused under section 254 Court, initially, we were reluctant of the said Code; or to permit counsel to raise this new (c) make an order committing the point. But having regard to the fact accused for trial by the High Court or that it goes to the root of the matthe Court of Sessions under section ter we have permitted counsel to urge this contention. We will however deal 213 of the said Code. 120 (1) Nothing in this Act shall af- with it after exhausting all the points fect the jurisdiction exercisable by, which were urged before the High or the procedure applicable to, any Court. Court or other authority under any military, naval or air-force law. This amendement was eected by virtue of Central Act XXII of 1966. Having regard to the provision contained in Section 8 (3A) of the Criminal Law (Amendment) Act of 1952 as it now stands it is clear that a Sepcial Judge is deemed to be a Megistrate for the purposes of the Rules framed under Section 549 (1) of the Code of Criminal Procedure with the end in view to eschew the conict between Court Martial on the one hand and the ordinary criminal courts on the other. The High Court was therefore perfectly justied in repelling this conThe next point which was unsuccessfully urged before the High Court was in the context of Section 122 of the Army Act of 1950 which prescribes a period of limitation of three years. The High Court did not accede to the submission in this behalf having regard to the law enunciated by this Court in Delhi Police Establishment, New Delhi v. Lt. Col. Loraiya. [1973] (1) S.C.R. 1010. We are of the opinion that the High Court was right. This Court in the aforesaid case has taken the view to the eect that the question being essentially one of the initial jurisdiction of the ordinary criminal court on the

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one hand and the court martial on the other, unless the procedure prescribed by the rules is complied with the ordinary criminal court would not have initial jurisdiction in regard to the matter, as is evident from the following passage:

well as the court martial should not only have concurrent initial jurisdiction to take cognizance of the case but should also retain jurisdiction to try him up to the last stage of conviction or acquittal. We are unable to accept this construction of the It is an admitted fact in this phrase. case that the procedure specied in As regards the trial of oences rule 3 was not followed by the Spe- committed by Army men, the Army cial Judge, Gauhati before framing Act draws a threefold scheme. Cercharges against the respondent. Sec- tain oences enumerated in the tion 549 (1) Cr. P.C. and rule 3 are Army Act are exclusively triable by mandatory. Accordingly the charges a Court Martial; certain other offramed by the Special Judge against fences are exclusively triable by the the respondent cannot survive. But ordinary criminal courts; and certain counsel for the appellant has urged other oences are triable both by the before us that in the particular cir- ordinary criminal court and the court cumstances of this case the respon- martial. In respect of the last catedent is not Iiable to be tried by a gory both the Courts have concurCourt Martial. rent jurisdiction. Section 549 (1) Cr. Section 122 (1) of the Army Act, P.C. is designed to avoid the conict 1950, provides that no trial by court of jurisdiction in respect of the last martial of any person subject to the category of oences. The clauase for Army Act for any oence shall be which he is liable to be tried either commenced after the expiry of the by the Court to which this Code apperiod of three years from the date plies or by a court martial in our of the oence. The oences are al- view, qualies the preceding clause leged to have been committed by the when any person is charged with an respondent in November-December, oence in s. 549 (1). Accordingly 1962. So more than three years have the phrase is liable to be tried eiexpired from the alleged commission ther by a court to which this Code of the oence. It is claimed that hav- applies or a court martial imports ing regard to Sec. 122(1), the respon- that the oence for which the accused dent is not liable to be tried by court is to be tried should be an oence of which cognizance can be taken by martial. an ordinary criminal court as well This argument is built on the as a court martial. In our opinion, phrase is liable to be tried either the phrase is intended to refer to the by the court to which this Code apinitial jurisdiction of the two courts plies or by a Court Martial in secto take cognizance of the case and tion 549(1). According to counsel for not to their jurisdiction to decide it the appellant this phrase cannotes on merits. It is admitted that both that the ordinary criminal court as

181 the ordinary criminal court and the court martial have concurrent jurisdiction with respect to the oences for which the respondent has been charged by the Special Judge. So, s. 549 and the rules made thereunder are attracted to the case at hand Having regard to the enunciation of law to this eect it is evident that the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. We are therefore unable to accede to the submission urged on behalf of the appellant State that even if the rules are applicable, having regard the fact that more than three years have expired from the date of the commission of the alleged oence, the trial is not vitiated. The last contention raised before the High Court was that having regard to the fact that the investigation which preceded the lodging of the complaint before the learned Trial Judge was commenced in pursuance of a letter written by the Brigadier of the Division, which contained a request for investigation by the Police into alleged oences, it can be said that the Army authorities had opted for the trial of the accused person by the ordinary criminal court. The argument was that by necessary implication this would follow as a logical corollary. The High Court brushed aside this contention as untenable, taking into account the contents of the letter in question. The said letter was in the following terms: Dear Sir, (1) Please refer to Memo No. 8940 dated August 28, 1963 from Shri R.K. Bhattacharyya, Superintendent of Police, D.E.B., Darjeeling. (2) At appendix A please nd a copy of the investigation that had been carried by us. We request you to take over the case and submit your detailed report to us at your earliest convenience. The High Court relied on the fact that the Army had called for a detailed report by the Police which would show that the Army authorities had not taken any such decision either expressly or by necessary implication. Counsel for the appellant has not been able to press this point with any vigour for the obvious reason that it relates to the stage of investigation preceding the complaint. The question regarding exercise of jurisdiction by the court martial would arise only after the investigation was completed and the police report was available. What is more, it is only after the prescribed procedure under Rules 3 and 4 of the Rules is resorted to by the ordinary criminal court that the question of exercising an option can arise. In the present matter, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their op-

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tion to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.

forcement of the Constitution of India by incorporating Section 13 in 1953-3. The said Section 13 has great signicance from the stand point of At long last, we come to the last the present argument: Certain Secpoint, the point which was not urged tions of Act XLVI of 1952, not to apbefore the High Court but which ply to West Bengal: we have permitted the learned coun13. Sections 6, 7, 8, 9 and sel for the State to raise before us. 10 of the Criminal Law Amendment It is argued that the Criminal Law Act, 1952 shall not apply and shall (Amendment) Act of 1952 was not be deemed never to have applied to applicable to the State of West Ben- West Bengal. It will thus be seen gal inasmuch as the State of West that Section 13 of the West BenBengal had enacted an Act of its gal Act in terms accords recognition own known as West Bengal Criminal to the applicability of the Criminal Law Amendment (Special Courts) Law (Amendment) Act of 1952 exAct, 1949 which was in operation cept and save some of the sections throughout the whole of West Ben- namely sections, 6, 7, 8, 9 and 10 gal. No doubt it is true that Criminal thereof which as provided in Section Law is a subject which falls within 13 shall not apply and shall be never the scope of Entry 1 of List III (con- deemed to have applied to West Bencurrent list) embodies in 7th Sched- gal. It is implicit in Section 13 of ule to the Constitution of India. The the West Bengal Act that the Central Union Government as well as the Act namely Criminal Law (AmendState Government both can there- ment) Act of 1952 is applicable to the fore legislate in regard to criminal State of West Bengal except and save law. The contention that the Crimi- the aforesaid ve sections. There nal Law (Amendment) Act, 1952 en- can be no doubt or debate about acted by the Parliament of India is this position having regard to the not applicable to the State of West fact that criminal law is a subject Bengal is altogether misconceived. It which falls under the concurrent list is necessary to advert to the legisla- and the Criminal Law (Amendment) tive history for a proper appreciation Act of 1952 enacted by the Parliaof the point at issue. In 1938 the ment is applicable subject to inconGovernment of India had enacted the sistency, if any, between the said Act Criminal Law (Amendment) Act of and the West Bengal Act. So far as 1938. In 1949 the State of West Ben- the coverage of the present point is gal 124 concerned, there is no such inconsisintroduced the State legislation tency. The West Bengal Act does being the West Bengal Criminal Law not contain any provisions pertaining Amendment (Sepcial Courts) Act, to personnel governed by the Army 1949 (West Bengal Act). This Act Act. It is altogether silent in rewas further amended after the en- gard to the matter pertaining to the

183 procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr. P.C. and the rules framed under the authority thereof. There is thus no conict between the Criminal Law (Amendment) Act of 1952 and the West Bengal Act in so far as this matter is concerned. Such being the position the provisions contained in Criminal Law (Amendment) Act of 1952 with a special eye on the procedure to be followed in Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of 1952 will operate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the provision of Section 549 Cr. P.C. shall so far as may be applied to the proceeding before the Special Judge 3. This section was added by Section 3 of the West Bengal Criminal Law Amendment (Special Courts) Amending Act of 1953 (West Bengal Act of 1953). and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate, the said provisions remain fully alive and uneected by the West Bengal Act. In view of this provision the procedure prescribed by Section 549 Cr. P.C. read with the rules framed thereunder which have been quoted in the earlier part of the judgment will be applicable to a proceeding before a Special Judge in West Bengal as well. In so far as the Army personnel are concerned therefore the law governing them and the procedure required to be followed in their case would be the same in West Bengal as elsewhere in India as it should be. It may incidentally be mentioned that in the West Bengal Act also the Judge presiding over the Special Court is called a Special Judge (vide Schedule to the West Bengal Act). He would therefore deemed to be a Magistrate for the Purposes of the Rules in view of Section 8(3A) of the Criminal Law (Amendment) Act of 1952. The mandatory procedure prescribed by the Rules is accordingly obligatory even in respect of proceedings before a Special Court under the West Bengal Act. There is thus no substance in this point. We are of the opinion that this feeble and faint-hearted attempt is born out of desperation and deserves no more consideration. We have therefore no hesitation in negativing this plea. No other point has been urged. The appeal must therefore fail. But before we write nis it may be made clear that the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression acquitted has been employed by the High Court though it was sucient to say no more than this, that the order of conviction and sentence was without jurisdiction and was therefore being quashed. In the eye of law, it is not an acquittal since it is not on merits. It is thereore for the competent authority to decide whether or not to subject the accused to a fresh trial after following the procedure prescribed by the Rules. With these observations, we dismiss the appeal. M.L.A. Appeal dismissd.

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Chapter 12

Union of India v. Maj S K Sharma 1987


UNION OF INDIA THROUGH petent Authority to hold an inquiry MAJOR GENERALH.C. PATHAK for determining whether there is any v. MAJOR S.K. SHARMA case for trying the accusedIt must PETITIONER: UNION OF IN- proceed to hold the Court Martial or DIA THROUGH MAJOR GENER- take such other eectual proceedings as is contemplated by r. 7(1) of the ALH.C. PATHAK Criminal Courts and Court Martial v. (Adjustment of Jurisdiction) Rules, RESPONDENT: MAJOR S.K. 1978. SHARMA HEADNOTE: An ocer in the DATE OF JUDGMENT29/06/1987 Army led a complaint before a BENCH: PATHAK, R.S. (CJ) Magis- trate alleging that another BENCH: PATHAK, R.S. (CJ) ocer has assaulted him, that the Commanding Ocer to whom he had KHALID, V. (J) CITATION: 1987 AIR 1878 1987 complained earlier had failed to take SCR (3) 456 1987 SCC (3) 490 JT satisfactory action and thus both of them had committed oences under 1987 (3) 12 1987 SCALE (2)12 the Indian Penal Code. The MagisACT: Criminal Procedure Code, trate examined the complainant un1973S. 475Read with ss. 200 to 204 der s. 200 Cr. P.C., took cognizance of the Code, and the provisions of of the oences under s. 190(A) and, the Army Act, 1950 and the Army on being satised of the existence RulesWhen a Magistrate has taken of a prima facie case, issued sumcognizance of an oence committed mons under s. 204(A) for the appearby a member of the Armed Forces ance of the accused. Upon applicaand thereafter transferred the case tions being made by the appellants for trial under the Army Act and the urging that the case be handed over Rules, it is not open to the Com-

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Union of India v. Maj S K Sharma 1987 communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provi- sions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused ocers and having directed their appearance, the Army Authority must proceed to hold a Court Martial for their trial or take other eectual proceedings against them as contemplated by the law. [468G-H] (i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to inquire into a complaint of an oence alleged to have been committed by a military person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. Inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and

to the Military Authorities for disposal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of the Army Act, 1950 after trial by a Court Martial at any place within the jurisdic- tion of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appel- lants making further applications praying for review of the said order on the ground that under the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submitting that the disciplinary action against the ocers concerned would be initiated after an investigation of the alleged oences, the Magistrate, pointing out that the judicial process for ascertaining the prima facie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and, therefore, it was not permissible for the Army Authorities to hold a preliminary investigation. However, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be intimated at intervals of four months. in the Revision led by the appellants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction requiring the Army Au- thorities to inform the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be

187 the section provides that whenever a person is brought before a Magistrate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial, such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused, to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs, it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of deliv- ering such statement can be easily understood, for it is to enable the Army Authority to appreciate the circumstances in which a Court Martial is required by the law. [464C-D; 465EH] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magistrate under s. 5 or 6 thereof to the competent military or other authority, it is for the purpose of trial by a Court Martial or other eectual proceedings to be taken or ordered to be taken against him inasmuch as the competent authority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other eectual proceedings have been taken or ordered to be taken against him and the communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectu- al proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstances to the State Government and the State Government, in consulta- tion with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accord- ance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the competent military or other authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. [467BE] (iii) The policy of our Constitutional Polity is that no person should be regarded as being above the law. Military, navel or air force personnel are as much subject to the law as members of the civil population. It is signicant that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 empowers the Magistrate, on com-

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Union of India v. Maj S K Sharma 1987 diction in respect of an oence, it will he in the discre- tion of the Commanding Ocer of the accused to decide before which Court the proceedings shall he instituted, is of no assistance in deciding whether it is open to the Army Authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. [468EF] (vi) There is nothing in the provisions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magistrate it is open to the Army Authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investigate the charge directed against the ac- cused ocer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and supersede the proceeding already taken by the Magistrate. [469B-D] JUDGMENT: CRIMINAL APPELLATE ORIGINAL JURISDICTION: Criminal Appeal No. 271 of 1987. From the Judgment and Order dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Srivastava for the Appellant in Crl. A.

ing to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, navel or air force author- ities, to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceed- ings against such person before the Court Martial if since instituted, and to make a reference to the Central Govern- ment for determination as to the Court before which the proceedings should be instituted. [467G-H; 468A-B] (iv) Section 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried against by a Criminal Court for the same oence or on the same facts which is an exception to the rule contained in Art. 20 of the Constitution that no person shall be prose- cuted and punished for the same oence more than once. It is to enable the operation and application of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the compe- tent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other eectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each juris-

189 No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was delivered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Command- er, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area Ocers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subbaiah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Ofcer Commanding, B. Comp. Signal Regiment on 14 January 1986 seeking clarication from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satisfactory response, led a complaint 21 January 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempt- ing to protect Col. Ali. It was alleged in the complaint that Col. Ali had committed the oences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the oence under section 2 17 of the Indian Penal Code. The Additional Chief Judicial Magistrate exam- ined the complaint, and taking cognizance of the oences alleged to have been committed by Col. Ali and Brigadier Randhawa it directed that summons be issued to them for their appearance before him on 7 March, 1986. On two applications moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry insti- tuted in respect of certain complaints made against Major Sharma by his Commanding Ocer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate. On 7 February 1986 the Union of India moved an applica- tion before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Major General T.S. Chaudhri informing the Chief Judicial Magistrate that the General Ocer Commanding was of opin- ion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case

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Union of India v. Maj S K Sharma 1987 petent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be transferred to the Army authorities pursu- ant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 after trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima facie amounted to contempt for which it was open to Major Sharma to apply to the High Court for necessary action. He also directed that Major Sharma should be permitted to proceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General Ocer Commanding led an application before the Chief Judicial Magistrate for modication of the order dated 17 February 1986. In that application it was contended that under the Army Act and the Army Rules it was not mandatory that all dis-

may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the com- plaint before the Additional Chief Judicial Magistrate against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12 February 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al Ocer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17 February 1986 the Chief Judicial Magistrate, Jothat made an order disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the oences had been taken by the Additional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for trial by a Court martial by the com-

191 ciplinary cases against military personnel should culminate in a trial by the Court Martial and that the directions made by the Chief Judicial Magistrate with regard to the trial of Brigadier Randhawa and Col. Ali by Court Martial were in contravention of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Jurisdiction) Rules 1978. It was asserted that the proposed disciplinary action would be initiated by the General Commanding Ocer after an investigation of the alleged oences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by deleting the direction for a trial by Court Martial at a place within the jurisdiction of the Court of the Chief Judicial Magistrate and of the direction further that the progress of the case should be intimated to the Chief Judi- cial Magistrate at intervals of two months. On 7 April 1986 the Union of India led another application making more detailed submissions for modication or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate requesting that the records of the case be handed over to the Army authorities. These applications were disposed of the Chief Judicial Magistrate by his order dated 8 May 1986. In that order he noted that the Additional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the oence under s. 190(A) of the Code and on being satised of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie existence of a case had thereby been completed. He held that in the circumstances the trial of the accused ocers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investiga- tions by a departmental court of inquiry did not seem per- missible in the case. However, having regard to s. 124 of the Army Act which conferred absolute power on the Army authorities to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General Ocer Com- manding for deleting the direction in respect of the venue of the trial. The Chief Judicial Magistrate also directed that instead of intervals of two months the Army authorities should, having regard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at intervals of four months. On 14 June 1986 the Union of India through the General Ocer Commanding led a revision petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court interfered with the order of the Chief Judicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months,

192

Union of India v. Maj S K Sharma 1987 has been argued by learned counsel at length. It is apparent from the provisions of the Code of Crimi- nal Procedure that it is open to a Magistrate to inquire into a complaint of an oence alleged to have been committed by a military person, where it fails within its juris- diction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly con- stituted Army authorities to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Proce- dure provide the procedure to be followed by Magistrates taking cognizance of an oence on a complaint. The Magis- trate is required to examine on oath the complaint and the witnesses present and reduce the substance of such examina- tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the proce- dure except when the complaint is made in writing by a public servant or the Magistrate makes over the case for trial or inquiry to another Magistrate. The Magistrate may either inquire into the case himself or direct an investiga- tion to be made by a police ocer or by such other person as he thinks t for the purpose of deciding whether or not there is sucient ground for proceeding. Where, however, it appears to the Magistrate that the oence complained of its triable exclusively by

and it directed instead that the result of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present appal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army authorities should report periodi- cally to the Chief Judicial Magistrate 464 in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authori- ties to constitute a Court of Inquiry, enter upon an inves- tigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceedings already taken by the Additional Chief Judicial Magistrate must be ignored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Although the point was not taken before the High Court we have per- mitted it to be raised before us and it

193 the Court of Session no such direction for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opinion that the oence complained of is triable exclusively by the Court of Session he must call upon the complainant to produce all his wit- nesses and examine them on oath. If after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no sucient ground for proceeding he must dismiss the complaint. Where the Magistrate is of opinion that there is sucient ground for proceeding he must adopt the procedure setforth in sections 204 onwards. He must issue process for the attend- ance of the accused. In certain cases he may dispense with the personal attendence of the accused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army authority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his defence. If the Commanding Ocer investigating the charge nds no offence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satised that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule 22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier. Now inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial the law has attempted to resolve the competings claims of the civil authority and the military authori- ty in such cases. Section 475 of the Code of Criminal Proce- dure empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magis- trate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is

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Union of India v. Maj S K Sharma 1987 proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Ses- sion the Magistrate must, under Rule 4, give written notice to the Commanding Ocer of the accused and refrain for a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused speci- ed in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Command- ing Ocer of the accused to give notice subsequently under Rule 5 to such Magistrate that, in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to specically in Rule 4 before receiving such notice, must stay the pro- ceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the Ocer speci- ed in that subsection. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding Ocer or the military, naval or air force authority of his intention to do so, Rule 6 empowers the Commanding Ocer or the competent authority to give notice to the Magistrate within the aforesaid period of 15 days or in any event be-

delivered to the Commanding Ocer of the unit to which he belongs it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of delivering such statement can be easily understood, for it is to enable the Army authority to appreciate the circumstances in which a Court Martial is required by the law. We now turn to the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under s. 475 of the Code of Criminal Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an oence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that eect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an oence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an oence after the Magis- trate has determined that there is a case for trial. Before

195 fore the Magistrate takes any action or makes any order referred to in that Rule, that in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice the Magistrate must stay the proceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the ocer specied in that sub-section. It is clear that when the accused is made over by the Magistrate to the Commanding Ocer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other eectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 or 6 the Commanding Ocer or the competent military, naval or air force authority must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other eectual pro- ceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectual proceedings have not been taken or or- dered to be taken against him, he is obliged to report the circumstance to the State Government and the State Government, in consultation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial. and pursuant to the aforesaid rule, delivers the accused to the Commanding Ocer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding Ocer or the competent au- thority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Ocer or the competent military, naval or air force au- thority may not try the accused or take eectual proceed- ings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that eect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our Constitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil population. It is signicant that Rule 8 empowers the Magistrate. on coming to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an offence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except

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Union of India v. Maj S K Sharma 1987 Section 125 provides that when a Criminal Court and a Court Martial have each jurisdiction in respect of an oence it will be in the discretion of the Commanding Ocer of the accused to decide before which Court the proceedings shall be institut- ed. This provision is of no assistance in deciding whether it is open to the Army authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused o- cers and having directed their appearance, the Army authori- ty must proceed to held a court martial for their trial or take other eectual proceedings against them as contemplat- ed by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected. We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional

through military. navel or air force authorities. to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provision. It provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Cen- tral Government, be tried again by a Criminal Court for the same oence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces. It is to enable the operation and application of s. 127 of the Act that Rule 7(1) of the Criminal courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Com- manding Ocer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken against him. Our attention has been drawn by learned counsel for the appellants to s. 125 of the Army Act.

197 Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter- mine whether there is any case for trying the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised before us. If, on the analysis detailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused ocer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the proceedings already taken by the Additional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully perused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us. Accordingly, the appeal is dismissed. In the Criminal Writ Petition Major S.K. Sharma prays for a number of reliefs. The material reliefs are that a direction be issued to the Army authorities to postpone the return of the petitioner to the Unit to which he has been posted and direct the Army authorities to stay all parallel proceedings against the petitioner until the hearing and disposal of their Special Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress suered by the petitioner, apparently necessitating his treatment at a hospital with sychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are available we have no reason to doubt that the Army authorities will aord such posting to the petitioner. In doing so it will be open to the Army authorities to obtain the latest medical report respecting the condition of the petitioner. As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ petition is dismissed. H.L.C. Petition dismissed.

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Union of India v. Maj S K Sharma 1987

Chapter 13

Vidya Prakash v. Union Of India 1988


Vidya Prakash v. Union Of India & Ors on 10 February, 1988 Equivalent citations: 1988 AIR 705, 1988 SCR (2) 953 Bench: Ray, B.C. PETITIONER: VIDYA PRAKASH v. RESPONDENT: UNION OF INDIA & ORS. out leave-Charge sheeted-Trial by Summary Court Martial-Held guiltyDismissed from service-In writ petition assailing constitution of summary court martial by Commanding Ocer-Whether Commanding ocer of Corps competent to constitute the summary court martial-Held order of dismissal valid. HEADNOTE:

DATE OF JUDGMENT10/02/1988 The appellant was appointed to the post of Craftsman (Jawan) on BENCH: November 23, 1973. He was later RAY, B.C. (J) promoted to the post of Naik in view BENCH: of his good services and subsequently conrmed in that post. He served at RAY, B.C. (J) various places in the country, includSEN, A.P. (J) ing eld areas. He was, however, reCITATION: verted from the post of Naik to the 1988 AIR 705 1988 SCR (2) 953 post of Craftsman (Jawan). While 1988 SCC (2) 459 JT 1988 (1) 284 he was in service he incurred the displeasure of the Commanding Ocer 1988 SCALE (1)313 of his regiment (Major) as he did ACT: not comply with his directions. He Army Act, 1950/Army Rules, was consequently harassed and mal1954: Sections 39(a), 71(e), 108 and treated in various ways. Unable to 116/Rule 39(2)-Jawan-Absent with- bear the torture he surrendered to

200

Vidya Prakash v. Union Of India 1988 Martial that the appellant was not allowed to be represented by his counsel, that no objection was taken as to the competence of the Commanding Ocer to act as a Judge in the Summary Court Martial, that the appellant had earlier been convicted four times and entries were made in red ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the court martial proceedings, there was as such no illegality in the order of dismissal made in the court martial proceedings. Dismissing the Appeal, HELD: 1. Four kinds of courts martial are specied in Section 108 of the Army Act, 1950. These are:(a) General Courts Martial; (b) District Courts Martial; (c) Summary General Courts Martial and (d) Summary Courts Martial. [959G-H; 960A] 2. Section 116 of the Act says that a summary court martial may be held by the Commanding Ocer of any corps or department or detachment of the regular Army, and he shall alone constitute the court, and that the proceedings shall be attended throughout by two other persons who shall be Ocers or junior commissioned ocers or one of either, and who shall not as such, be sworn or armed. It is only in the case if general court martial or district court martial that Rule 39(2) of the Army Rules 1954 is applicable and the Commanding Ocer is not competent to convene general or district court martial. [960B,D]

the mercy of the Commanding Ocer of the Battalion (Colonel). He, however, directed him to surrender to the Commanding Ocer of his regiment and gave him a certicate of surrender. The Commanding Ofcer took him into custody. He was charge-sheeted for the purpose and sentenced to 42 days imprisonment in military custody. During the period of his remaining in military custody, his family suered harassment. The appellant on 12th September, 1984 left station with his wife and children without taking any leave. He stated that he became unwell and was under the treatment of a doctor. When he reported back to his unit with the tness certicate the Commanding Ofcer of his regiment served him with a charge-sheet on November 2, 1984 and directed that he be tried by a summary court martial. On November 9, 1984, the order of dismissal of the appellant from service was made by the Commanding Ocer in the Summary Court Martial. The appellant challenged the aforesaid order in a writ petition to the High Court, and sought quashing of the same contending: that the Commanding Ocer was not legally competent to preside a summary court martial, that the punishment of dismissal from service was disproportionate to the charge, that he was denied a fair opportunity to defend himself, and was in fact not permitted to question the witnesses. A Division Bench of the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court

201 3. In the instant case, the summary court martial was held by the Commanding Ocer of the Corps, Major P.S. Mahant and there were two other ocers Captain K.J. Singh and another ocer to attend the proceedings. In such circumstances, the summary court martial had been convened by the Commanding Ocer according to the provisions of the Army Act, 1950. [960C, E-F] 4. Section 39(a) of the Act species that to be absent without leave constitutes an oence, while Section 71(e) provides dismissal from service as one of the punishments for such an oence. [960F] 5. The appellant in the instant case, undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, was charge-sheeted for the said oence and tried by a summary court martial convened by the Commanding Ocer. After giving him due opportunity it was held that the appellant was previously punished also for the oence of absence from duty on four occasions and there was a red ink entry. Considering all this, in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustainable. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It is also evident from the judgment of the High Court that the appellant admitted his guilt of absenting from duty without any leave. [960G-H; 961A-B,F] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2107 of 1987. From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985. R.K. Garg and D.K. Garg for the Appellant. M.S. Rao and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by RAY, J. Special leave granted. Heard arguments of learned counsel for the parties. This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985. The facts of the case in brief are that the appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973. We was sent to 3 E.M.E. Centre, Bhopal for training. After completion of his two years training he was posted to 80 EME Battalion C/o 56. A.P.O. on July 25, 1975. The appellant in view of his good service was promoted to the post of Naik and subsequently he was conrmed in that post. During his service as Jawan and as a Naik, the appellant served at various places in the country including the eld area at Punj Sector in Jammu & Kashmir. The appellant was reverted from the post of Naik to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he was, thereafter, directed to re-

202

Vidya Prakash v. Union Of India 1988 After coming round he reported to Panagarh and reported in his Unit with the tness certicate. The appellant was called by the Ocer Commanding and he was served with a charge-sheet on November 2, 1984 wherein it was ordered by Major P.S. Mahant that the appellant be tried by a Summary Court Martial. It has been alleged that Major Mahant appointed his close associate Captain K.J. Singh to record summary of evidence. The appellant was not given proper opportunity to defend himself. In the proceedings the appellant was not allowed to raise any objections. On 9th November, 1984, the order of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding Ocer, in the summary court martial. The appellant challenged this order by a writ petition being Civil Writ Petition No. 2503 of 1985 on the ground that the Commanding Ocer was not legally competent to preside a summary court martial. It was also stated in the petition that the punishment of dismissal from service was disproportionate to the charge; he was denied a fair opportunity to defend himself and was in fact not permitted to ask questions to the witnesses. The appellant so prayed for issuance of an appropriate writ for quashing the impugned order of dismissal from service and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him. The writ petition was heard by a Division Bench of the High Court at Delhi and it was

port to NEFA. The appellant joined his post in NEFA. However, the appellant was subsequently transferred and posted in Panagarh. One Major N.K. Tiwari who was the Commanding Ocer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kanpur to Panagarh. The appellant was harassed and maltreated in various ways. The appellant being unable to bear the torture caused to him approached Col. R.K. Mehta, Commanding Ocer, EME Depot Battalion, Sikandrabad and surrendered to the mercy of the said Colonel. The Colonel advised the appellant to go back to Panagarh and report to his Unit. The appellant was sent with the certicate of surrender. On his return, the appellant was not permitted to join his duty; but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same. The appellant was charge-sheeted for the purpose and he was convicted to 42 days imprisonment in military custody. During the period of his remaining in military custody, he was given only a small sum of Rs.60 and as such his family had to suer much harassment. The appellant, however, on 12th September, 1984 left Panagarh with his wife and children for Kanpur without taking any leave. It is stated that he became unwell and he was under the treatment of a doctor.

203 dismissed on March 3, 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel. It was also held that in the writ petition no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in the Summary Court Martial nor objection was made to the eect that Captain K.J. Singh ordered him to keep his mouth shut. It was also observed that besides Major P.S. Mahant who was presiding Summary Court Martial there were two other members. The appellant, it was held, had earlier been convicted four times and entries were made in the red ink. The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the order of dismissal made in the court martial proceedings. It is against this judgment and order, the impugned appeal on special leave has been preferred before this Court. that the Commanding Ocer served on the Court Martial and as such the court martial proceedings are in breach of Rule 39(2) of the Army Rules, 1954. It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court Martial constituted under Section 116 of the Army Act, 1950. It has been further stated that a Summary Court Martial may be held by a Commanding Ocer of any Corps, Department or Detachment of the regular army, as stipulated by Section 116(c) of the Army Act. It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from service on November 9, 1984. It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 116(1) of the said Act. It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act, the Commanding Ocer shall alone constitute the Court. The proceedings of the Court shall be attended by two ocers/JCOs or one of either. It has been further stated that the appellant incurred the following red ink entries while serving with various units prior to the summary court martial:

An adavit in counter sworn by one Capt. D.K. Ghosh on behalf of the respondents has been led. In paragraph 4 of the said adavit, it has been submitted that Rule 39(2) of the Army Rules deals with the disqualication of ocers for General and District Courts Martial. The said rule says that an ocer is dis(i) 14 days R.I. in military cusqualied for serving on a general or tody under AA (Army Act) Sec. district court martial if he is the Commanding Ocer of the accused. 39(a) on September 3, 1975 by 80 The appellant has assailed the court EME Bn. (ii) 3 days R.I. in military cusmartial proceedings on the ground

204

Vidya Prakash v. Union Of India 1988

tody under A.A. Sec. 39(a) on 22nd June, 1979 by 1 EME Centre. (iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983 by 174 Fd. Regt.

over the same. The order of dismissal was passed in violation of the rules of natural justice. It has also been submitted that the conviction of the appellant was in utter breach of Ar(iv) 28 days R.I. and 14 days de- ticles 14 and 21 of the Constitution tention in mil. custody under AA of India and as such the said order Sec. 39(a) on 10th July, 1984 by 986 was liable to be set aside. AD. Regt WKSP. The rst submission on behalf of the appellant is that the constitution The appellant was issued a show cause notice for discharge being un- of the Summary Court Martial by the suitable inecient soldier on 30th Commanding Ocer Major P.S. MaAugust, 1984 to which he replied on hant is in contravention of Rule 39(2) 2nd September, 1984. The appellant of the Army Rules, 1954. the releagain became absent without leave vant provisions of Rules 39 are in the on 13th September, 1984. The ap- following terms: pellant did not inform the Unit authority again of taking his family to Kanpur. While leaving for Kanpur he locked his quarter securely to keep possession of the family accommodation. The proceedings of the summary court martial were in accordance with the provisions of the Army Act and the order of dismissal from service of the appellant is a valid order. A rejoinder was led by the appellant wherein he reiterated that the order of dismissal passed by the Commanding Ocer, Major P.S. Mahant was illegal and contrary to the provisions of natural justice. The charge- sheet was given to the appellant by the aforesaid Major alleging that the appellant remained absent from 13th September, 1984 to 30.10.1984 without leave from the Units line and the said ocer himself made an order that the appellant shall be tried by a summary court martial on that day. The said ocer constituted the court of summary court martial and himself presided Rule 39 ........ (2) An ocer is disqualied for serving on a general or district court martial if he: (a) is an ocer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (c) investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court martial which tried the accused in respect of the same oence; or (d) is the commanding ocer of the accused, or of the corps to which the accused belongs; or (e) has a personal interest in the case. Rule 39(2) provides that an ocer who is the Commanding Ocer of the accused or of the corps to which the accused

205 belongs or who is an ocer who convened the court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of court martials specied in Section 108 of the Army Act, 1959. These are: (a) General Courts Martial; (b) District Courts Martial (c) Summary General Courts Martial; (d) Summary Courts Martial Section 116 of the said Act says that a summary court martial may be held by the commanding ocer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be ocers or junior commissioned ocers or one of either, and who shall not as such, be sworn or armed. In the instant case a summary court martial was held by the Commanding Ocer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Ocer of the Corps, Department of Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Ocer of the Corps cannot be questioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the appellants case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Ocer is not competent to convene general or district court martial. The summary court martial was held by the Commanding Ocer of the corps, Major P.S. Mahant and there are two other ocers including Capt. K.J. Singh and another ocer to attend the proceedings. In such circumstances, the summary court martial having been convened by the Commanding Ocer of the corps according to the provisions of the Army Act, 1950, the rst submission made on behalf of the appellant fails. Chapter 6 of the Army Act species the oences and also the punishments for such offences. Section 39(a) species that to be absent without leave constitutes an oence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an oence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act. The appellant was charge-sheeted for the said oence and he was tried by a summary court martial convened by the Commanding Ocer and after giving him due opportunity it was held that the appellant was previously punished also for the oence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission that the pun-

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Vidya Prakash v. Union Of India 1988 before the Chief of the Army Sta (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave. Considering all these facts and circumstances, the judgment and order passed by the High Court of Delhi appears to us as unassailable. We, therefore, dismiss the appeal and arm the judgment and order of the High Court. There will be no order as to costs. N.V.K. Appeal dismissed.

ishment is disproportionate to charge is wholly unsustainable. The summary court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated. It appears that the appellant has not led any objection before the summary court martial objecting to the presiding of the court martial proceedings by Major P.S. Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the rst time in the appeal which the appellant led

Chapter 14

Lt Col K D Gupta v. Unon of India 1988


LT. COL. K.D. GUPTA v. pointed as a Second Lieutenant. He UNION OF INDIA & ORS rose to the level of Lt. Colonel on PETITIONER: LT. COL. K.D. 27th February, 1975. In March, 1976 he was directed to report to the MilGUPTA itary Hospital for his psychiatric exv. amination, where his medical clasRESPONDENT: UNION OF IN- sication was reduced from shape-I DIA & ORS to shape-III, and he was posted as GLO and treated as Major. There DATE OF JUDGMENT20/04/1988 BENCH: MISRA RANGNATH was however no specic order reducBENCH: MISRA RANGNATH ing him in rank. DUTT, M.M. (J) CITATION: 1988 AIR 1178 1988 SCR (3) 646 1988 SCC Supl. 347 JT 1988 (2) 199 1988 SCALE (1)791 ACT: Army Act, 1950: Section 20, 191 and 192 and Special Army Instruction No. 1 dated January 9, 1974 Army Ocer- Subjected to frequent medical examinationDowngrading and upgrading between shape-I and shape-III-Treated to have been reduced in rankWhether justied? HEADNOTE: The appellant was granted a permanent Commission in the Indian Army in 1958 and apIn December, 1976, appellants Classication was upgraded to shape II and in September, 1977 to shapeI. But it was decided that he should be subjected to special review before restoration of his rank. In a special report the Brigade Commander recorded appreciation of the appellants work, and recommended his promotion as Lt. Colonel. But the Army Headquarters directed the appellant to the Military Hospital for further examination on the ground that an earlier incident of 1963 had been overlooked when the appellant was graded as shape-I. On this ex-

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Lt Col K D Gupta v. Unon of India 1988 cal category shall be taken as being continued to be shape-I from 1977 and on that basis his promotional entitlements shall be nalised by the respondents within three months hence. It is open to the respondents to release the appellant from service after this has been done. [655F] 2. The report of the Expert Committee makes it clear that there was no justication for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as shape-II. [654G] 3. This subject of categorisation on the basis of psychiatric test is technical and should ordinarily be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. This Court has no intention to disturb the discipline of the Defence Department, but on the basis of material available on the record and on the basis of the report of the Committee of Experts, the appellant is entitled to limited relief. Though there was no order reducing him from the rank of Acting Lieutenant Colonel to Major, he was treated as having been so reduced. Then followed the frequent psychiatric examinations without any real justication. This recategorisation, in these circumstances, was without any justication. [654H; 655A-B] [Reiterating that it would like the discipline of the Defence Department to be maintained by itself in the interest of the nation, this Court observed that this case may not be taken as a precedent.] [655FG] JUDGMENT: CIVIL APPEL-

amination, the appellant was permanently downgraded as shape-II. In 1980, the appellant led a writ petition in this Court, challenging the action of Army Headquarters and his downgrading. This Court directed that he should be restored to the rank of Acting Lieutenant Colonel from the date he was reverted and that his claims to advancement, pay, arrears of pay, etc. should be considered and disposed of within six months (See 1984 (1) SCC 153). After lodging his claims, the appellant waited for a reasonable time and then led a writ petition in the High Court. The respondent contended that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with. The High Court dismissed the writ petition. In this appeal by special leave, the appellant contended that a prejudicial approach developed against him in the Headquarters establishment without any justication and he had been unduly subjected to psychiatric examination from time to time, and on the basis of the records built up against him adverse opinion had been forthcoming which resulted in recategorisation from shape-I to shape-II. To remove the apprehension of bias, this Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman. After considering the report of the Experts Committee this Court allowed the appeal in part and, HELD: 1. The appellants medi-

209 LATE JURISDICTION: Civil Appeal No. 1702 of 1987 from the Judgment and order dated 31.3.1987 of the Allahabad High Court in Civil Misc. Writ Petition No. 5702 of 1985. Petitioner in-person (Lt. Col. K.D. Gupta) Kuldeep Singh, Additional Solicitor General, C.V. Subba Rao and Pramod Swarup for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Allahabad High Court dismissing the writ application of the appellant. He was granted a permanent Commission in the Indian Army in 1958 and was initially appointed as a Second Lieutenant. He obtained successive promotions to the ranks of Lieutenant, Captain and Major. In December, 1974, he was selected for promotion to the rank of acting Lt. Colonel and was so promoted with eect from 27th February, 1975. From the following year, the appellant came to face a series of set backs in his service. On March 22, 1976, his Brigade Commander directed the appellant to report to the Ocer Commanding, Military Hospital, Kirkee for his psychiatric examination. He was examined by Lt. Colonel Mukherjee, specialist in psychiatry on 23rd March, 1976 and by Surgeon Commodore Dnetto, Psychiatry Consultant to the Indian Navy on the 26th March, 1976. On the basis of their reports, the appellants medical classication was reduced from Shape-I to Shape III by order dated August 13, 1976. By order dated November 16, 1976, the appellant was posted as GLO (Major/Captain) 152, G.L. Sec. Type Vice Captain I.K. Bedi, a post ordinarily held by a Major or Captain. Though there was no specic order reducing the appellant in rank from Acting Lt. Colonel to that of Major, he was treated as Major. On December 10, 1976, appellants classication was upgraded to Shape-II and on a second medical review on September 2, 1977 to Shape-I. His authorities, however, decided the appellant to be subjected to Special Review before restoration of the rank of Acting Lt. Colonel and on October 31, 1977, required the Brigadier Commander to initiate a special report and submit it to the Headquarters. The Brigade Commander recorded appreciation of the appellants work and recommended his promotion as Lt. Colonel. Yet, the Army Headquarters by letters dated October 12 and November 27, 1978, directed the appellant to be sent to the Military Hospital at Pune for further examination by the psychiatry consultant. It was indicated by way of justication for such requirement that when the appellant was graded as Shape I, an earlier incident of 1963 had been overlooked. On such examination the appellant was permanently downgraded as Shape II. The appellant led an application under Article 32 being Writ Petition No. 5302 of 1980 challenging these actions and his downgrading. A two-Judge bench of this Court by judgment dated August 10, 1983, allowed the same. This Court stated: According to the petitioner, this was done entirely without any basis and that even the clin-

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Lt Col K D Gupta v. Unon of India 1988 such as, consideration of the petitioners further claims to advancement, pay, arrears of pay, etc., will have to be considered by the authority and it is directed that these claims may be considered and disposed of within a period of six months from today. The appellant waited for a reasonable time after lodging his claim and ultimately went before the Allahabad High Court by ling an application under Article 226 of the Constitution being Writ Petition No. 5702 of 1985. Before the High Court he asked for quashing of the proceedings of the Review Medical Board dated 11th January, 1984, and for a declaration that he should be treated as belonging to medical category ShapeI for all purposes without interruption since 2nd September, 1977. He also asked for an appropriate posting considering his entitlement and other service benets. The claim was resisted by the respondents on the ground that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with and the appellant has no subsisting grievance. On 31st March, 1987, the High Court dismissed the petition. This appeal has been led after obtaining the special leave. The appellant as on the earlier occasion argued the appeal in person and began his arguments by contending that the respondents were guilty of not giving eect to the directions contained in the judgment of this Court. When we heard the appellant, we realised how very correct the observation of Chinnappa Reddy, J., where he re corded in the judgment of this Court were: As usual

ical reports would reveal that the petitioner was perfectly t. We do not desire to go into these claims of the petitioner since we are satised on the material placed before us that even the very reduction of the petitioners rank in 1976 from Acting Lieutenant Colonel to Major was bad. Shri Abdul Khader, learned counsel for the respondents explained to us that the petitioner had been reverted from the rank of Acting Lieutenant Colonel to Major for three reasons: (i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category; (ii) After the latest medical examination in 1978, he was not eligible to be considered for promotion for one year; his earlier reduction in rank was, therefore, justied; and (iii) He performed no duty for six months from March 22, 1976 when he was admitted in the hospital and under the rules, he stood automatically reduced in rank. This Court examined all the three points and ultimately ended by saying: As stated by us earlier, we nd no substance in any one of the reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major. The reversion or reduction in rank cannot be justied and it is 650 accordingly quashed. The petitioner is directed to be re stored to the rank of Acting Lieutenant Colonel with eect from the date he was reverted and stripped o the badges indicating his rank. As a result of the restoration of the rank of the Acting Lieutenant Colonel to the petitioner, other consequences,

211 with parties, who argued their cases themselves, he was so full of his facts and grievances, big and small, that we experienced, for quite a while, difculty in getting a picture of the case in its proper frame. After the matter was heard at length, we found that there was absolutely no merit in the contention of the appellant that the respondents were guilty of not complying with the directions of this Court. Learned Additional Solicitor General was, therefore, right in taking the stand that full eect had been given to the directions contained in the judgment of this Court. We would like to recall here that there were several other contentions made in the writ petition which this Court did not go into by saying that even without considering them the appellant was entitled to his relief. The appellant had moved this Court on the earlier occasion under Article 32 of the Constitution but on this occasion he went before the High Court under Article 226. Some of his allegations had already been made in the writ petition before this Court and others related to subsequent events. It is unnecessary to go into several aspects which the appellant in his anxiety had pleaded and even canvassed at the hearing. It is sucient to indicate that the main grievance of the appellant has been against recategorisation from Shape-I to ShapeII. We have already pointed out that the appellant enjoyed Shape-I until 1976 when he was reduced to Shape3 in August 1976. In 1977, he was brought back to Shape-I. According to the appellant, there was absolutely no justication for the direction made in March, 1976 to subject the appellant for psychiatric examination. Similarly when the appellant had been recategorised in September, 1977, as Shape-I, there was no necessity to require him to be subjected to further examination at Pune. He denied the allegation that the incident of 1963 had not been taken into account while recategorising him as Shape-I. According to the appellant, a prejudicial approach developed against him in the Headquarters establishment without any justication and he has been unduly subjected to psychiatric examination from time to time and on the basis of the records built up against him, adverse opinion has been forthcoming. To meet this objection of the appellant and remove apprehension of bias from his mind, in course of hearing, we suggested to learned Additional Solicitor General appearing on behalf of the respondents that the appellant may be examined by a board consisting of three experts specially constituted with an outsider as Chairman. Respondents learned counsel after obtaining instructions accepted the suggestion. By order made on January 25, 1988, this Court directed: In course of hearing of the appeal, we suggested to learned Additional Solicitor General appearing on behalf of the respondent to have a fresh psychiatric evaluation of the appellant by a competent body of psychiatrists by including in the board some in-service and retired Army psychiatrists and some from outside. This was initially opposed by learned Additional Solicitor General by contending that it

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Lt Col K D Gupta v. Unon of India 1988 sure his availability before the Board. The report should be made available to this Court within six weeks from today. The expenses including payment, if any, necessary to be made to any of the experts shall be borne by respondent No. 1. The evaluation shall inter alia indicate whether there was any justication to categorise the appellant as Shape-II after he had been adjudged as Shape-I and as to whether the present categorisation as Shape-II permanent is justied. We place on record that this shall not be treated as a precedent. The Board sent its report dated March 8, 1988, after examining the appellant between 22nd February, 1988 and 8th March, 1988. It evolved the following procedure: 653 (a) Each of the experts to examine the patient, independently at least twice. (b) Each expert to maintain his own observations. (c) Daily observations reports of the patient to be recorded by the Senior Resident Psychiatry. (d) Psychometeric evaluation (e) Perusal of old records of hospitalisation by the three consultants, after the current examination. (f) Maintenance of condentiality of observation by the experts, Sr. Resident and the Psychologist. (g) Review of the unit reports after current examination. (h) Joint review and report by the board on 7th and 8th March, after examining all the material collected above. In paragraph 5 of the Reports the Board observed. (a) During September 1977, when he was recommended to be upgraded to medical category S-I Lt. Col. K.D. Gupta was a symptomatic as per the medical histories examined by the board. The

would be against the discipline of the Defence Department and would create in unwholesome precedent. We adjourned the matter and gave him the opportunity to take instructions from Government and we are happy to note that on the basis of instructions, he has agreed. as a special case, to the constitution of such a board of psychiatrists. Appellant has also been heard in person in the matter. He has made writ submissions by way of an application we have taken into consideration. We direct that a board of psychiatrists consisting of three experts be constituted with the Professor and Head of the Psychiatrist wing of the All India Institute of Medical Sciences, New Delhi, Air Com. K. Sethi Consultant of the Army Hospital at Delhi and Colonel M.A. Bhasin, Senior Advisor in Psychiatry, Southern Command Hospital, Pune. The Head of the Department of the All India Institute of Medical Sciences, as referred to above, shall act as the convenor and chairman of the Board. The Board shall meet at Delhi at such place, date and time as may be xed by the convenor in consultation with the two other members. The Board shall peruse all the records relevant for the purpose of making psychiatric evaluation of the appellant and the respondents shall produce all such records as may be necessary and required for such purpose by the Board including the relevant instructions of the Defence Department in the matter of such assessment. The appellant shall appear before the Board when directed and the respondents shall take steps to en-

213 old medical records do not show any evidence of a psychiatric disorders between September 1977, when he was upgraded to S-I and the review board which took place in November 1978 following which he was recategorised to permanent S-II as per the opinion of that review board on the ground that a relapse could occur in future. (b) The current A043/78 and DG Memorandum 97 (extract attached as appendics A & B), precludes such an individual to be upgraded from medical category S-II to S-I. (c) The natural history of affective psychosis (MDP) ICD 9, is strongly supported of the fact that relapse without 654 any precipitating cause and remission without any medical intervention can take place. We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court. Prof. Mohan appeared in due course and with reference to what was stated in paragraph 5(a), he stated: We were of the view that there was no material in the Medical reports justifying the recategorisation to S-II from S-I apart from apprehensions of relapse. In answer to a question posed by learned Additional Solicitor General, Dr. Mohan stated: During September 1977, when he was recommen- ded to be upgraded to medical category S-I Lt. Colonel K.D. Gupta was a symptomatic as per the medical histories examined by the board. We meant that there was no record in the history of medical papers to suggest that Lt. Col. Gupta was unwell. Upon the suggestion of the learned Additional Solicitor General, Dr. Mohan was asked as to whether he was of the view that the appellant was at the time of the present examination entitled to be categorised as S-I and he answered. If you take the natural history of the illness, it is dicult to say one way or the other, because it is self limiting and phasic and after the phase is over there is no residual decit left. The individual is as normal as anybody else is. The period between attacks varies from one individual to another from months to year . The report and the statement made by Professor Mohan make it clear that there was no justication for the appellant to be subjected to phychiatric test in 1978 following which he was recategorised as S-II. We agree with the learned Additional Solicitor General that the subject is technical and ordinarily should be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. This Court has no intention to disturb the discipline of the Defence Department but on the basis of material 655 available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have now found on the basis of the report of examination by the Committee of Experts the appellant has become entitled to limited relief. Though there was no order reducing him from the rank of acting Lieutenent Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any real justication. These have constituted the foundation of the appellants grievance. His recategori-

214

Lt Col K D Gupta v. Unon of India 1988 motional entilement is nalised and he is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis to grant. The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be nalised by the respondents within three months hence. We make it clear that it is open to the respondents to release the appellant from service after this has been done. This case may not be taken as a precedent and we reiterate that this Court would like the discipline of the Defence Department to be maintained by itself in the interest of the nation Parties are directed to bear their own costs. G.N. Appeal partly allowed.

sation as S-II in 1978, in these circumstances, was without justication. He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I. In a petition dated 2nd April, 1988, the appellant had asked for certain directions and reliefs. The application is confused one inasmuch as arguments, pleadings and prayers have been jumbled up. The appellant, inter alia, has asked for entitlements of promotion in view of promotions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents should consider his case for promotion with an open mind on the basis of his continuity in shape-I. He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his pro-

Chapter 15

Lt Col K.D. Gupta v. Union of India 1989


Lt. Colonel K.D. Gupta v. Union not been complied with. of India & Ors [1989] INSC 112 (31 The Respondents were directed March 1989) to reconsider the case of the appelMisra Rangnath Misra Rangnath lant for promotion on the basis that Dutt, M.M. (J) his medical category continues to be CITATION: 1989 AIR 2071 1989 S-I from 1977, and that the mediSCC (3) 566 JT 1989 (3) 283 1989 cal category would be taken into account if the rules for promotion so SCALE (2)174 require; otherwise not. It was also diACT: rected that the consideration of proArmy Act, 1964: Defence motion would be completed within ServicesPromotionUnlike other four weeks; (See 1988(3) SCR 646). government servants, requisite On behalf of the respondents, it experience, consequent exposure was stated that the promotional enand appropriate review by autitlements of the petitioner had been thorities, indispensableIndividual nalised as per the directions of the capacity and special qualities Court, after re-examining the petiBasis for assessmentLower medtioners case for promotion within ical categorisationEect of for the specied time and since there was purposes of promotionGrant of no failure to comply with the direccompensationRelevant factors tions, no contempt had been comConsiderations thereof. mitted. It was also submitted that HEAD NOTE: the petitioners medical categorisaThe appellant has led a con- tion has nothing to do with the retempt petition against the Respon- fusal to promote him. dents, alleging that the directions Disposing of the petition, dated 20.4.1988 of this Court, have HELD: 1. The judgment of this

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Lt Col K.D. Gupta v. Union of India 1989 suered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives, has perhaps been suciently met by the appellate judgment which has declared that his lower medical categorisation was unjustied and the petitioner continued to be ShapeI without break from 1977. [368E-G]

Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categor- isation has nothing to do with the refusal to accord promotion to the petitioner. The plea now advanced cannot therefore be accepted. [377E-F] 371

3.2 The defence personnel have peculiar incidence of service. Lifes course does not run smoothly for ev2. The .defence services have eryone. their own peculiarities and special Some relevant factors to be conrequirements. The considerations sidered for award of compensation which apply to other government ser- are the duration of time for which vants in the matter of promotion can- the petitioner was subjected to varinot as a matter of course be ap- ous medical checks and hospitalisaplied to defence personnel of the pe- tion, and the consequent suering titioners category and rank. Req- which he underwent, the loss of prouisite experience, conse- quent ex- motional prospects and the fact that poser and appropriate review are in- he would now be obliged to request to dispensable for according promotion, be released from service prematurely. and the petitioner, therefore cannot A total compensation of RS.4 be given promotions as claimed by lakhs would meet the ends of jushim on the basis that his batch-mates tice. The petitioner would not be have earned such promotions. Indientitled to any other claim on these vidual capacity and special qualities heads, but he would be entitled to all on the basis of assessment have to other service benets which an obe found but in the case of the peticer of the Lt. Colonels rank would tioner these are not available. [377Gbe entitled to hold. [378G-H; 379AH; 378A-B] B] Major K.D. Gupta v. Union of 3.1 As regards compensation, the India, [1984] 1 S.C.C. 153 and Lt. petitioner advanced tail claims by Col. K.D. Gupta, v. Union of India, contending that he has suered phys- [1988] 3 SCR 646. referred to. ical and mental torture, loss of repuThis Court directed that the tation and of social acceptance and amount of Rs.4 lakhs be paid to the nancial loss. What promotions petitioner within 2 months and the the petitioner would otherwise have petitioner may be released from the earned would be a matter of specudefence service in accordance with lation and cannot be ascertained at any decision that might be taken on this stage for lack of appropriate dehis request for such release. [379C-D] cisive criteria. His grievance that he

217 372 directed to inform you that your case CIVIL APPELLATE JURIS- has been reexamined in the light of DICTION: Civil Misc. Petition No. the judgment of the Supreme Court of India dated 20th April, 1988. 20065 of 1988. In Civil Appeal No. 1702 of 1987. From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985. Petitioner-in-person. G. Ramaswamy, Additional Solicitor General, C.V.S. Rao and A.K. Srivastava for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Petitioner, a Lt. Colonel in the Indian Army, has led this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with. This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I and directed: The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be nalised by the respondents within three months hence. After this Courts decision, by a letter dated 17th of June, 1988, the respondents informed the petitioner to the following eect: In this connection, I have been It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of the Honble Court. Substantive 373 rank of Lt. Col. was also granted to you along with your batch-mates. Consequent to the Supreme Courts judgment dated th August, 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz., July 86, April 87, November 87 and rejected on all the three occasions based on your overall performance and merit of your batch. Your medical category was not taken into consideration as per the laid down procedure. Therefore, upgradation of your medical category from Shape-2 to Shape-I by the Supreme Court vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medical category had not aected your case for promotion to the rank of A/Colonel on any occasion. You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch Upon notice in this miscellaneous proceeding a counter adavit was led on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed. It was stated that the promotional entitlements of the petitioner had been nalised as per

218

Lt Col K.D. Gupta v. Union of India 1989 ACR 84/85 (b) R (Unt) in April, 1987 with ACR 6/85 to 2/86. (c) R (Unt) in November, 1987 with ACR 6/86 to 5/87 The Ocer has been nally superseded for promotion to the rank of acting Colonel based on his overall prole and his medical category was not taken into account during the above three considerations. However, the ocer has been granted the substantive rank of Lt. Colonel w.e.f. 01 August, 1979 vide Gazette Notication No. 1774/87 dated 19th September, 1987. Therefore, no further action is required by the department in pursuance of the judgment of this Honble Court dated 20.4.1988. I state that the petitioner had addressed a demi ocial letter dated 02.5.1988 to the Chief of Army Sta in this regard. The Chief of Army Sta called for the details of the case of the petitioner and the same were placed before the Chief of Army Sta on 03.6.1988. The Chief of Army Sta after considering the note put up to him, directed the oce to intimate the petitioner accordingly. By letter dated 17.6.1983, the oce has informed the petitioner, a copy of which is enclosed herewith. It is, therefore, humbly submitted that the case of the petitioner was considered after the judgment of this Honble Court dated 20th April, 1988 by the Military Secretary of the rank of Lt. General and it was found that it is not neces- sary to send him for selection board as he was already found unt without reference to his medical certicate Shape-II.

the directions of this Court after reexamining the petitioners case for promotion within the specied time and as there was no failure to comply with the directions, no contempt had been committed. The counteradavit proceeded to state: As per the selection procedure explained in the proceeding paragraphs, the medical category of Lt. Col. K.D. Gupta was not taken into cognizance. On receipt of the directions of the Supreme Court dated 20th April, 1988, Lt. Cot. Guptas case for promotion was reexamined. Since the Honble Court had given no such directions to the eect that the case of Lt. Col. Gupta shall be placed before the Selection Board and has only directed that the petitioners promotional entitlements be nalised in view of his continued medical category in Shape-I since 1977, his case was reexamined and nalised and the same was intimated to him vide our letter dated 17th June, 1988. The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court. In a further adavit on behalf of the respondents, Col. Bharucha stated that: By letter dated 26.5. 1988, the Military Secretary observed as under: The Ocer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following: (a) R (Unt) in July 1986 with

219 On 24th of January, 1989, this We nd no substance in any of Court made the following order: the reasons mentioned by Shri AbAfter carefully considering the dul Khader. Shri Khader was unable matter, we direct the respondents to to draw our attention to any rule, orreconsider the case of the appellant der or circular which prescribed that for promotion on the basis that his reduction in rank should inevitably medical category continues to be S-I follow on placement of an ocer in from 1977. The medical category will a lower medical category. In fact it be taken into account if the rules for was conceded by Shri Khader that an promotion so require, otherwise not. ocer whose medical classication is The consideration of promotion will downgraded, will not be reduced in be completed within four weeks from rank on that account, but will contoday ...... We have been informed tinue to hold the same rank as 376 that the petitioners case was consid- before. We are, therefore, unable to ered on the basis of record and he was understand why the petitioner had to be reduced in rank because subsenot found t for any promotion. quent to his promotion, his medical It is relevant to notice at this classication was downgraded. The stage that the petitioner had come second reason given by Shri Khader before this Court on an earlier occathat the petitioner would not be elision by ling writ petition No. 5302 gible to be promoted for a year afof 1980 which was disposed of on Auter the latest medical examination gust 10, 1983 (1984 1 SCC 153). This and, therefore, his earlier reduction Court in its judgment indicated: in rank was justied, is only to be Shri Abdul Khader, learned stated as rejected. When the peticounsel for the respondents explained tioner was promoted, he satised all to us that the petitioner had been re- the requirements including that of verted from the rank of Acting Lt. medical categorisation, if any.. We Colonel to Major for three reasons: nd it impossible to agree with the (i) Reduction in rank had to fol- proposition that since he would be low as a matter of course on place- ineligible to be promoted today, he ment of the petitioner in a lower med- could not have been promoted yesterday when he satised all the reical category; (ii) After the latest medical ex- quirements. The reason really pressed before amination in 1978, he was not elius was the third reason, namely, that gible to be considered for promotion for one year; his earlier reduction in the petitioner had not performed any duty for six months and, therefore, rank was, therefore, justied; and (iii) He performed no duty for six he had to be reduced in rank in acmonths from March 22, 1976 when he cordance with paragraph 5 of Special was admitted in the hospital and un- Army Instruction No. 1 dated Jander the rules, he stood automatically uary 9, 1974. We do not propose to examine the question whether Spereduced in rank.

220

Lt Col K.D. Gupta v. Union of India 1989 ..... on the basis of material available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have now found on the basis of the result of examination by the Committee of Experts the appellant has become entitled to limited relief. Though there was no order reducing him from the rank of acting Lt.Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any real justication. These have constituted the foundation of the appellants grievance. His recategorisation as SII in 1978, in these circumstances, was without justication. He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I. The appellant, inter alia, has asked for entitlement to promotion in view of promotions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continuity in Shape- I. The judgment of this Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord promotion to the petitioner. In the circumstances indicated above, the plea

cial Army Instruction No. 1 authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be the case of the petitioner also. The counter-adavit led in the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion. In fact in the civil appeal itself the petitioners claim for promotion to higher ranks, keeping the promotions accorded to his batch-mates in view, was challenged on the basis of the petitioners lower medical category. In the adavits led in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his health physical and mental. If that stand had been adopted, this Court would certainly have gone into that question before directing the petitioners case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the petitioner was allowed to be continued in shape-I from 1977 without any break. It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promotion by contending that his medical categorisation was vitiated. Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not, in any manner, connected with the medical category of the petitioner. That is why this Court in its judgment stated:

221 now advanced cannot be accepted. In fact, Mr. Ramaswamy, Additional Solicitor General, appearing for the respondents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justication to feel aggrieved. He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entitlements are nalised and is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis The respondents have maintained to grant. that the petitioner has not served in The petitioner also told us in the appropriate grades for the req- course of the hearing of this case that uisite period and has not possessed even if he is not accorded promotions the necessary experience and train- as claimed by him, he should suiting and consequential assessment of ably be compensated and thereafter ability which are a precondition for he should be released from the Army promotion. The defence services on the basis of voluntary retirement. have their own peculiarities and spe- The respondents have also indicated cial requirements. The considera- that his retirement is being processed tions which apply to other govern- separately. ment servants in the matter of proThe question for consideration motion cannot as a matter of course now is as to how the petitioner has be applied to defence personnel of the to be compensated and what should petitioners category and rank. be its measure. The petitioner has, of Requisite experience, consequent exposer and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We nd force in the stand of the respondents and do not accept the petitioners contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batch-mates as the measure. course, advanced tall claims by contending that he has suered physical and mental torture, loss of reputation and of social acceptance and nancial loss. What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria. His grievance that he suered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives has perhaps been suciently met by the appellate judgment which has declared that his lower medical categorisation was unjustied and the petitioner continued to be ShapeIn the appellate judgment, this I without break from 1977. Court said: The defence personnel have pecu-

222

Lt Col K.D. Gupta v. Union of India 1989 entitled to. This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisation and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court. We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service in accordance with any decision that may be taken on his request for such release. The contempt proceeding is disposed of with these directions and no order as to costs. G.N. Petition disposed of.

liar incidence of service. Lifes course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely. We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benets which an ocer of the Lt. Colonels rank, which the petitioner admittedly holds, would be

Chapter 16

S N Mukherjee v. Union Of India 1990


S.N. Mukherjee v. Union Of India on 28 August, 1990 Equivalent citations: 1990 AIR 1984, 1990 SCR Supl. (1) 44 Bench: Agrawal, S.C. PETITIONER: S.N. MUKHERJEE v. RESPONDENT: UNION OF INDIA BENCH: 1990 SCC (4) 594 JT 1990 (3) 630 1990 SCALE (2)383 CITATOR INFO : RF 1991 SC 564 (6) R 1992 SC1256 (7,9,11,14) ACT: Army Act 1950: Section 164CourtMartialPost conrmation petitionCentral Government Whether bound to give reasons. HEADNOTE:

DATE OF JUDGMENT28/08/1990

The Appellant was ociating as a Major though he held a substanAGRAWAL, S.C. (J) tive rank of Captain as a permanent BENCH: Commissioned Ocer of the army AGRAWAL, S.C. (J) when on December 27, 1974 he took MUKHARJI, SABYASACHI over as the Ocer Commanding 38 Coy. A.S.C. (Sup) Type A attached (CJ) to the Military Hospital, Jhansi. In KANIA, M.H. August, 1975 the Appellant went SHETTY, K.J. (J) to attend a training course and reSAIKIA, K.N. (J) turned in the rst week of November. 1975. In his absence Captain CITATION: 1990 AIR 1984 1990 SCR Supl. G.C. Chhabra was commanding the unit of the appellant and he submit(1) 44 ted a Contingent Bill dated Septem-

224

S N Mukherjee v. Union Of India 1990 the charges. The General Court Martial on November 29, 1978 found him guilty of rst and third charge and awarded the sentence of dismissal from service. Thereupon the appellant submitted petition dated December 18, 1978 to the Chief of Army Sta praying that the ndings of the General Court Martial be not conrmed. The Chief of the Army Sta by his order dated May 11, 1979 conrmed the ndings and sentence of the General Court Martial. The appellant thereafter submitted a post-conrmation petition under section 164(2) of the Act. This was rejected by the Central Government by order dated May 6, 1980. Thereupon the appellant led a writ petition in the High Court of Delhi which was dismissed in limine. Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it was incumbent for the Chief of the Army Sta, while conrming the ndings and sentence of the General Court Martial and for the Central Government while rejecting the post-conrmation petition of the appellant to record their reasons for the orders passed by them. Dismissing Court, the appeal, this

ber 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Bill was returned by the Controller of Defence Accounts (CDA) with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the wide dierence in the two Contingent Bills, the CDA reported the matter to the Headquarters for investigation and a Court Enquiry blamed the appellant for certain lapses. After considering the said report of the Court of Enquiry the General Ocer Commanding, M.P., Bihar and Orissa recommended that severe displeasure (to be recorded) of the General Ocer Commanding-in-Chief of the Central Command be awarded to the appellant. The General Ocer Commanding-in-Chief Central Command, however. did not agree with the said opinion and by order dated August 26, 1977 directed that disciplinary action be taken against the appellant for the lapses. Pursuant to the said order a charge sheet dated July 20, 1978 containing three charges was served on the appellant and it was directed that he be tried by General Court Martial. The rst charge was, doing of a thing with intent to defraud under section 52(f) of the Act. The second charge was alternative to the rst charge i.e. committing an act prejudicial to good order and military discipline under section 63 of the Act and the third charge was also in respect of oence under section 63 of the Act. the appellant pleaded not guilty to

HELD: The requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be

225 as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. [62H; 63A-B] The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it arms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. [63B] Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. The provisions contained in the Army Act, 1950 and the Army Rules, 1954 negative a requirement to give reasons for its ndings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy. Similarly, reasons are not required to be recorded for an order passed by the conrming authority conrming the ndings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post-conrmation petition. [70E-F] the Army Act enables a person aggrieved by an order passed by a Court Martial to present a petition against the same. The expression order under sub-section (1) does not include a nding or sentence of the Court Martial and in so far as the nding and sentence of the Court Martial is concerned the only remedy that is available to a person aggrieved by the same is under subsection (2) of section 164 of the Army Act and the said remedy can be invoked only after the nding or sentence has been conrmed by the conrming authority and not before the conrmation of the same. [72B; D-E] Though a person aggrieved by the nding or sentence of a Court Martial has no right to make a representation before the conrmation of the same by the conrming authority, but in case such a representation is made by a person aggrieved by the nding or sentence of a Court Martial it is expected that the conrming authority shall give due consideration to the same while conrming the nding and sentence of the Court Martial. [72H; 73A]

Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177; Bhagat Raja v. The Union of India & Ors., [1967] 3 S.C.R. 302; Mahabir Prasad Santosh Kumar v. State of U.P. & Ors., [1971] 1 S.C.R. 201; Woolcombers of India Ltd. v. Woolcombers Workers Union & Ant., [1974] I S.C.R. 503; Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr., [1976] Suppl. S.C.R. 489; Phelps Sub-section (1) of section 164 of Dodge Corporation v. National

226

S N Mukherjee v. Union Of India 1990 721; A.K. Kraipak & Ors. v. Union of India & Ors., [1970] 1 S.C.R. 457; R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456 and Mahon v. Air New Zealand Ltd., [1984] A.C. 648, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 417 of 1984. From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981. A.K. Ganguli, A. Sharan for the Appellant. Kapil Sibal, Additional Solicitor General, Raju Ramachandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents. T. Prasad for the Secretary, Ministry of Defence. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition led by the appellant. In the writ petition the appellant had challenged the validity of the nding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Sta conrming the ndings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition led by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as the

Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Securities and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at p. 636; John T. Dunlop v. Waiter Bachewski, [1975] 44 Law Ed. 2 377; Regina v. Gaming Board for Great Britain, Exparte Benaim & Khaida, [1970] 2 Q.B. 417 at p. 431; Mc Innes v. Onslow-Fane & Anr., [1978] 1 W.I..R. 1520 at p. 1531; Breen v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B. 175; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120; Regina v. Immigration Appeal Tribunal Ex Parte Khan (Mahmud), [1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister of National Revenue, 47 [1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yarmouth Housing Ltd. & Rent Review Commission, [1983] 139 D.L.R. (3d). 544; Osmond v. Public Service Board of New South Wales, [1985] 3 NSWLR 447; Public Service Board of New South Wales v. Osmond, [1986] 63 A.L.R. 559; M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., [1962] 2 S.C.R. 339; Madhya Pradesh Industries Ltd. v. Union of India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v. Union of India, [1970] 3 S.C.R. 40; Tarachand Khatri v. Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Authority & Ors. v. M/s. Chokhamal Contractors & Ors., [1989] 2 S.C.C.

227 Act). 48 The appellant held a permanent commission, as an ocer, in the regular army and was holding the substantive rank of Captain. He was ofciating as a Major. On December 27, 1974, the appellant took over as the Ocer Commanding of 38 Coy. ASC (Sup) Type A attached to the Military Hospital, Jhansi. In August 1975, the appellant had gone to attend a training course and he returned in the rst week of November 1975. In his absence Captain G.C. Chhabra was the ocer commanding the unit of the appellant. During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant submitted a fresh Contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the dierence in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investigation and a Court of Enquiry blamed the appellant for certain lapses. The said report of the Court of Enquiry was considered by the General Ocer Commanding, M.P., Bihar and Orissa Area, who, on January 7, 1977 recommended that severe displeasure (to be recorded) of the General Ocer Commanding-inChief of the Central Command be awarded to the appellant. The General Ocer Commanding-in-Chief. Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disciplinary action be taken against the appellant for the lapses. In view of the aforesaid order passed by the General Ocer Commanding-in-Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served on the appellant and it was directed that he be tried by General Court Martial. The rst charge was in respect of the oence under Section 52(f) of the Act, i.e. doing a thing with intent to defraud. the second charge was alternative to the rst charge and was in respect of oence under Section 63 of the Act, i.e. committing an act prejudicial to good order and military discipline and the third charge was also in respect of oence under Section 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 witnesses to prove the charges. The General Court Martial. on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the rst and the third charge and awarded the sentence of dismissal from service. The appellant submitted a petition dated December 18, 1978, to the Chief of Army Sta wherein he prayed that the ndings and the sentence of the General Court Martial be not conrmed. The ndings and sentence of the General Court Martial were conrmed by the Chief of the Army Sta by his order dated May 11, 1979. The appellant, thereafter, sub-

228

S N Mukherjee v. Union Of India 1990 gal since no reason had been given in support of the order by the Chief of the Army Sta and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under Section 165 of the Act and that the order of the Central Government was also illegal. This contention was negatived. After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court pointed that while Section 162 of the Act expressly provides that the Chief of the Army Sta may for reasons based on the merits of the case set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed, there is no express obligation imposed by Sections 164 and 165 of the Act on the conrming authority or upon the Central Government to give reasons in support of its decision to conrm the proceedings of the Court Martial. This Court observed that no other section of the Act or any of the rules made 50 therein had been brought to its notice from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the conrming authority. This Court did not accept the contention that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is a general principle or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision.

mitted a post-conrmation petition under Section 164(2) of the Act. The said petition of the appellant was rejected by the Central Government by order dated May 6, 1980. The appellant thereupon led the writ petition in the High Court of Delhi. The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981. The appellant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court. By order dated January 24, 1984, special leave to appeal was granted by this Court. By the said order it was directed that the appeal be listed for nal hearing before the Constitution Bench. The said order does not indicate the reason why the appeal was directed to be heard by the Constitution Bench. The learned counsel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Sta, while conrming the ndings and the sentence of the General Court Martial, and for the Central Government, while rejecting the post-conrmation petition of the appellant, to record their reasons for the orders passed by them. We propose to deal with this question rst. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and Others, [1969] 2 S.C.R. 177. In that case it was contended before this Court that the order of the Chief of Army Sta conrming the proceedings of the Court Martial under Section 164 of the Act was ille-

229 Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Dattas case (supra) to the extent it holds that there is no general principle or rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsideration inasmuch as it is not in consonance with the other decisions of this Court. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Bhagat Raja v. The Union of India and Others, [1967] 3 SCR 302; Mahabir Prasad Santosh Kumar v. State of U.P. and Others, [1971] 1 SCR 201; Woolcombers of India Ltd. v. Woolcombers Workers Union and Another, [1974] 1 S.C.R. 503 and Siemens Engineering & Manufacturing Co. of India Limited v. Union of India and Another, [1976] Suppl. S.C.R. 489. The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement in law that reasons be given by the conrming authority while conrming the nding or sentence of the Court Martial or by the Central Government while dealing with the postconrmation petition submitted under Section 164 of the Act and that the decision of this Court in Som Datt Dattas case (supra) in this regard does not call for reconsideration. The question under consideration can be divided into two parts: (i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and (ii) If so, does the said principle apply to an order conrming the ndings and sentence of a Court Martial and post-conrmation proceedings under the Act? On the rst part of the question there is divergence of opinion in the common law countries. The legal position in the United States is dierent from that in other common law countries. 51 In the United States the courts have insisted upon recording of reasons for its decision by an administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because administrative process will best be vindicated by clarity in its exercise Phelps Dodge Corporation v. National Labour Relations Board, [1940] 85 Law Edn. 1271 at P. 1284. The said requirement of recording of reasons has also been justied on the basis that such a decision is subject to judicial review and the Courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review and that the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained. Securities and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at P. 636. In John T. Dunlop v. Waiter Bachowski, [1975] 44 Law Ed. 2 377) it has been observed that a statement of reasons serves

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S N Mukherjee v. Union Of India 1990 ley) Ltd. v. Crabtree, [1974] ICR 120 Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52 failure to give reasons amounts to a denial of justice. In Regina v. Immigration Appeal Tribunal Ex parte Khan (Mahmud), [1983] QB 790 Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a denial of justice, has observed: A party appearing before a tribunal is entitled to know either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. (P. 794) The Committee on Ministers Powers (Donoughmore Committee) in its report submitted in 1932, recommended that any party aected by a decision should be informed of the reasons on which the decision is based and that such a decision should be in the form of a reasoned document available to the parties aected. (P. 100) The Committee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that decisions of tribunals should be reasoned and as full as possible. The said Committee has observed:

purposes other than judicial review inasmuch as the reasons promotes thought by the authority and compels it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration. The Federal Administrative Procedure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative procedures contained an express provision (Section g(b) ) to the eect that all decisions shall indicate a statement of ndings and conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state statutes.

In England the position at Common law is that there is no requirement that reasons should be given for its decision by the administrative authority (See: Regina v. Gaming Board for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes v. OnslowFane and Another, [1978] 1 W.L.R. 1520 at p. 1531). There are, however, observations in some judgments wherein the importance of reasons has been emphasised. In his dissenting judgment in Breen v. AmalgaAlmost all witnesses have advomated Engineering Union and Othcated the giving of reasoned decisions ers, [1971] 2 Q.B. 175 Lord Denning by tribunals. We are convinced that M.R., has observed that: if tribunal proceedings are to be fair the giving of reasons is one of to the citizen reasons should be given the fundamental of good administra- to the fullest practicable extent. A tion. (P. 191) decision is apt to be better if the In Alexander Machinery (Dud- reasons for it have to be set out in

231 writing because the reasons are then more likely to have been properly thought out. Further, a reasoned decision is essential in order that, where there is a right of appeal, the applicant can assess whether he has good grounds of appeal and know the case he will have to meet if he decides to appeal. (Para 98) The recommendations of the Donoughmore Committee and the Franks Committee led to the enactment of the Tribunals and Enquiries Act, 1958 in United Kingdom. Section 12 of that Act prescribed that it shall be the duty of the Tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving of notication of the decision to support the decision. The said Act has been replaced by the Tribunals and Enquiries Act, 1971 which contains a similar provision in Section 12. This requirement is. however, conned. in its applications to tribunals and statutory authorities specied in Schedule I to the said enactment. In respect of the tribunals and authorities which are not covered by the aforesaid enactment, the position, as prevails at common law, applies. The Committee of JUSTICE in its Report, Administration Under Law, submitted in 1971, has expressed the view: No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions. The law in Canada appears to be the same as in England. In Pure Spring Co. Ltd. v. Minister of National Revenue, [1947] 1 DLR 501 at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination. In some recent decisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construction Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 168) and Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 544. In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that a tribunal shall give its nal decision, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party. (Section 17). The said Act has now been replaced by the Statutory Powers and Procedure Act, 1980, which contains a similar provision. The position at common law is no dierent in Australia. The Court of Appeal of the Supreme Court of New South Wales in Osmond v. Public service Board of New South Wales, [1985] 3 NSWLR 447) had held that the common law requires those entrusted by Statute with the discretionary power to make decisions which will aect other persons to act fairly in the performance of their statutory functions and normally this will require an obligation to state the reasons for their deci-

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S N Mukherjee v. Union Of India 1990 fected by a decision an adequate opportunity of being heard. is bound to furnish reasons for the exercise of a statutory decision making power. (P. 572). The learned Judge has further observed that the common law rules of natural justice or procedural fair play are neither standardized nor immutable and that their content may vary with changes in contemporary practice and standards. In view of the statutory developments that have taken place in other countries to which reference was made by the Court of Appeal, Deane, J. has observed that the said developments are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons. (P. 573). This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act. 1977. Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision maker to furnish him with a statement in writing setting out the ndings on material questions of fact, referring to the evidence or other material on which those ndings were based and giving the reasons for the decision and on such a request being made the decision maker has to prepare the statement and furnish it to the persons who made the request as soon as practicable and in any event within

sions. The said decision was overruled by the High Court of Australia in Public Service Board of New South Wales v. Osmond, [1986] 63 ALR 559 and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely aect the interests or defeat the legitimate or reasonable expectations, of other persons. Gibbs CJ., in his leading judgment, has expressed the view that the rules of natural justice are designed to ensure fairness in the making of a decision and it is dicult to see how the fairness of an administrative decision can be aected by what is done after the decision has been made. The learned Chief Justice has. however. observed that even assuming that in special circumstances natural justice may require reasons to be given, the present case is not such a case. (P. 568). Deane J., gave a concurring judgment, wherein after stating that the exercise of a decision making power in a way which adversely aects others is less likely to be. or appear to be, arbitrary if the decision maker formulates and provides reasons for his decision, the learned Judge has proceeded to hold that the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administrative decision maker having extended to persons who might be adversely af-

233 28 days. The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the commonwealth Administrative Appeals Tribunal Act. 1975. In India the matter was considered by the Law Commission in the 14th Report relating to reform in Judicial Administration. The Law Commission recommended: In the case of administrative decisions provision should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate writs. (Vol. II P. 694). No laws has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes. The question as to whether an administrative authority should record the reasons for its decision has come up for consideration before this Court in a number of cases. In M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Others, [1962] 2 SCR 339, a Constitution Bench of this Court. while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the Companies Act, 1956 in the matter of refusal by a company to register the transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals. In that case it has been observed: If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution we fail to see how the power of this Court can be eectively exercised if reasons are not given by the Central Government in support of its order. (P. 357) In Madhya Pradesh Industries Ltd. v. Union of India and Others, [1966] 1 S.C.R. 466 the order passed by the Central Government dismissing the revision petition under Rule 55 of the Mineral Concession Roles, 1960, was challenged before this Court on the ground that it did not contain reasons. Bachawat, J., speaking for himself and Mudholkar, J., rejected this contention on the view that the reason for rejecting the revision application appeared on the face of the order because the Central Government had agreed with the reasons given by the State Government in its order. The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a sucient ground for quashing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing. The learned Judges pointed out that an order of court dismissing a revision application of-

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S N Mukherjee v. Union Of India 1990 tribunals within bounds, A reasoned order is a desirable condition of judicial disposal. (P. 472). If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest ocer may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an eective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. (P. 472). There is an essential distinction between a court and an administrative tribunal. A Judge is trained to look at things objectively, uninuenced by considerations of policy or expediency; but an executive ocer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive ofcer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders aecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with

ten gives no reasons but this is not a sucient ground for quashing it and likewise an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for the rejection. The decision in Hari Nagar Sugar Mills case (supra) was distinguished on the ground that in that case the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. According to the learned Judges there is a vital dierence between an order of reversal and an order of armance. Subba Rao, J., as he then was, did to concur with this view and found that the order of the Central Government was vitiated as it did not disclose any reasons for rejecting the revision application. The learned Judge has observed: In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a Welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the

235 it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the rst tribunal is laconic and does not give any reasons. (P. 472-73). ably only exercise its appeallate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. With reference to an order of af- This will certainly be a very unsatrmance the learned Judge observed isfactory method of dealing with the that where the original tribunal gives appeal. (P. 309). reasons, the appellate tribunal may This Court has referred to the dedismiss the appeal or the revision, as cision in Madhya pradesh Industries the case may be, agreeing with those case (supra) and the observations of reasons and that what is essential Subba Rao, J., referred to above, is that reasons shall be given by an in that decision have been quoted appellate or revisional tribunal ex- with approval. After taking note of pressly or by reference to those given the observations of Bachawat, J., in by the original tribunal. This mat- that case, the learned Judges have ter was considered by a Constitution held: After all a tribunal which exBench of this Court in Bhagat Raja ercises judicial or quasijudicial powcase (supra) where also the order un- ers can certainly indicate its mind as der challenge had been passed by the to why it acts in a particular way Central Government in exercise of its and when important rights of parties revisional powers under Section 30 of far reaching consequences to them of the Mines and Minerals (Regu- are adjudicated upon in a summary lation and Development) Act, 1957 fashion, without giving a personal read with rules 54 and 55 of the Min- hearing when proposals and counter eral Concession Rules, 1960. Dealing proposals are made and examined, with the question as to whether it the least that can be expected is that was incumbent on the Central Gov- the tribunals shall tell the party why ernment to give any reasons for its the decision is going against him in decision on review this Court has ob- all cases where the law gives a furserved: ther right of appeal. (P.315). The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art. 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word rejected, or dismissed. In such a case, this Court can probReference has already been made to Som Datt Dattas case (supra) wherein a Constitution Bench of this Court has held that the conrming authority, while conrming the ndings and sentence of a Court Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the

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S N Mukherjee v. Union Of India 1990 peal against the said order of the District Magistrate without recording the reasons. This Court has held: The practice of the executive authority dismissing statutory appeal against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law. (P. 204) Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just. (P. 205) In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tribunal. It was found that the award stated only the conclusions and it did not give the supporting reasons. This Court has observed: The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put

statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954. There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bhagat Raja case (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory jurisdiction of the High Court under Articles 136 and 227 of the Constitution of India respectively. In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR 4(1 this Court has observed: The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceedings before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. (P. 46) In Mahabir Prasad Santosh Kumar v. State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the U.P Sugar Dealers Licensing Order, 1962 without giving any reason and the State Government had dismissed the ap-

237 the authority on the alert and minimise the chances of unconscious inltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. (P. 507) In Siemens Engineering & Manufacturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision application under the Sea Customs Act, 1878. This Court has laid down: It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasijudicial order must be supported by reasons. (P 495) If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be aected by their orders and give suciently clear and explicit reasons in support of the orders made by them. Then along administrative authorities and tribunals, exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring condence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partera, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. (496) Tarachand Khatri v. Municipal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary authority, agreeing with the ndings of the Inquiry Ocer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary authority had not given its reasons for passing the order. The said contention was negatived by this Court and distinction was drawn between an order of armance and an order of reversal. It was observed: ..... while it may be necessary for a disciplinary or administrative authority exercising quasijudicial functions to state the reasons in support of its order if it diers

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S N Mukherjee v. Union Of India 1990 to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes. (P. 751-52) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasijudicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to eectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decisionmaking. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninuenced by considera-

from the conclusions arrived at and the recommendations made by the Inquiry Ocer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition too broadly to say that even an ordinary concurrence must be supported by reasons. (P. 208) In Raipur Development Authority and Others v. Mls. Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was considering the question whether it is obligatory for an arbitrator under the Arbitration Act, 194(1 to give reasons for the award. It was argued that the requirement of giving reasons for the decision is a part of the rules of natural justice which are also applicable to the award of an arbitrator and reliance was placed on the decisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra). The said contention was rejected by this Court. After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineering Co. case (Supra) this Court has observed: It is no doubt true that in the decisions pertaining to Administrative Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules. It would be in the interest of the world of commerce that the said rule is conned to the area of Administrative Law ..... But at the same time it has to be borne in mind that what applies generally

239 tions of policy or expediency whereas an executive ocer generally looks at things from the standpoint of policy and expediency. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasijudicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less signicance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be conned to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added 63 that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it arms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasijudicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The committee expressed the opinion that there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is nal and no further proceedings are open to the disappointed party by way of appeal or otherwise and that where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity. (P 80) Prof. H.W.R. Wade has also expressed the view that natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary mans sense of justice. (See

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S N Mukherjee v. Union Of India 1990 rules of natural justice. (P. 468-69) A similar trend is discernible in the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456; Mahon v. Air New Zealand Ltd., [1984] A.C. 648. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fairplay in action. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the adminis-

Wade, Administrative Law, 6th Edn. P. 548). In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that the rule requiring reasons to be given in support of an order is, like the principles of audi alteram parlem, a basic principle of natural justice which must inform every quasi-judicial process. This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak and Others v. Union of India and Others, [1970] 1 SCR 457, wherein it has been held: The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without aording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the

241 trative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that aect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specied authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the 65 enactment. The public interest underlying such a provision would outweight the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. We may now come to the second part of the question, namely, whether the conrming authority is required to record its reasons for conrming the nding and sentence of the court martial and the Central Government or the competent authority entitled to deal with the post-conrmation petition is required to record its reasons for the order passed by it on such petition. For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as the Rules) expressly or by necessary implication dispense with the requirement of recording reasons. We propose to consider this aspect in a broader perspective to include the ndings and sentence of the court martial and examine whether reasons are required to be recorded at the stage of (i) recording of ndings and sentence by the court martial; (ii) conrmation of the ndings and sentence of the court martial; and (iii) consideration of postconrmation petition. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part Ill shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High

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S N Mukherjee v. Union Of India 1990 the sentence, the decision shall be in favour of the accused. In subsection (2) it is laid down that no sentence of death shall be passed by a general courtmartial without the concurrence of at least two-thirds of the members of the court and subsection (3) provides that no sentence of death shall be passed by a summary general court martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge advocate no other address shall be allowed. Rule 61 prescribes that the Court shall deliberate on its ndings in closed court in the presence of the judge advocate and the opinion of each member of the court as to the nding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of nding and in sub-rule (1) it is provided that the nding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a nding of Guilty or of Not guilty. Sub-rule (10) of Rule 62 lays down that the nding on charge shall be announced forthwith in open court as subject to conrmation. Rule 64 lays down that in cases where the nding on any charge is guilty, the court, before deliberating on its sentence, shall,

Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suer from a jurisdictional error or any error of law apparent on the face of the record. Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the ndings and sentence of the court martial. Section 108 of the Act makes provision for four kinds of courts martial, namely, (a) general courts martial; (b) district courts martial; (c) summary general courts martial and (d) summary courts martial. The procedure of court martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court martial shall, and every district or summary general court martial, may be attended by a judge advocate, who shall be either an ocer belonging to the department of the Judge Advocate General, or if no such ocer is available, an ocer approved of by the Judge Advocate General or any of his deputies. In sub-section (1) of Section 131 it is provided that subject to the provisions of sub-sections (2) and (3) every decision of a courtmartial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the nding or

243 whenever possible take evidence in the matters specied in sub-rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the oence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any oence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and subrule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation. Sub-rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The powers and duties of judge advocate are prescribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its nding and the court, in following the opinion of the judge advocate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge advocate has, equally with the presiding ocer, the duty of taking care that the accused does not suer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him necessary or desirable to elicit the truth. It is further laid down that in fullling his duties, the judgeadvocate must be careful to maintain an entirely impartial position. From the provisions referred to above it is evident that the judge advocate plays an important role during the courts of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its ndings after the judge advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the nding by word of mouth on each charge separately and the nding on each charge is to be recorded simply as a nding of guilty or of not guilty. It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to have a specic provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its nding and

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S N Mukherjee v. Union Of India 1990 the prescribed ocer; and such ocer or the Chief of the Army Sta or any ocer empowered in this behalf may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed. In Rule 69 it is provided that the proceedings of a general court martial shall be submitted by the judge advocate at the trial for review to the deputy or assistant judge advocate general of the command who shall then forward it to the conrming ocer and in case of district court martial it is provided that the proceedings should be sent by the presiding ocer, who must, in all cases. where the sentence is dismissal or above, seek advice of the deputy or assistant judge advocate general of the command before conrmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the conrming authority may conrm or refuse conrmation or reserve conrmation for superior authority, and the conrmation, non-conrmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, nding and sentence, and any recommendation to mercy shall, together with the conrmation or non-conrmation of the proceedings, be promulgated in such manner as the conrming authority may direct, and if no direction is given, according to custom of the service and until promulgation has been eected, conrmation is not complete and the nding and sentence shall not be held to have been

sentence by the court martial and reasons are required to be recorded only in cases where the courtmartial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of ndings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation. As regards conrmation of the ndings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no nding or sentence of a General, District or summary General Court Martial shall be valid except so far as it may be conrmed as provided by the Act. Section 158 lays down that the conrming authority may while conrming the sentence of a court martial mitigate or remit the punishment thereby awarded, or commute that punishment to any punishment lower in the scale laid down in Section 71. Section 160 empowers the conrming authority to revise the nding or sentence of the court martial and in sub-section (1) of Section 160 it is provided that on such revision, the court, if so directed by the conrming authority, may take additional evidence. The conrmation of the nding and sentence is not required in respect of summary court martial and in Section 162 it is provided that the proceedings of every summary court martial shall Without delay be forwarded to the ocer commanding the division or brigade within which the trial was held or to

245 conrmed until they have been pro- reasons while conrming the ndings mulgated. and sentence of the courtmartial. The provisions mentioned above show that conrmation of the ndings and sentence of the court martial is necessary before the said nding or sentence become operative. In other words the conrmation of the ndings and sentence is an integral part of the proceedings of a court martial and before the ndings and sentence of a court martial are conrmed the same are examined by the deputy or assistant judge advocate general of the command which is intended as a check on the legality and propriety of the proceedings as well as the ndings and sentence of the court martial. Moreover we nd that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary courtmartial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for conrmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the ndings and sentence are conrmed. Section 162 thus negatives a requirement to give reasons on the part of the conrming authority while conrming the ndings and sentence of a court martial and it must be held that the conrming authority is not required to record With regard to post-conrmation proceedings we nd that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself aggrieved by a nding or sentence of any court martial which has been conrmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed ocer superior in command to the one who conrmed such nding or sentence and the Central Government, the Chief of the Army Sta or other ocer, as the case may be, may pass such orders thereon as it or he thinks t. In so far as the ndings and sentence of a court martial and the proceedings for conrmation of such ndings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a departure from the said scheme in respect of post-conrmation proceedings? There is nothing in the language of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post conrmation proceedings which may require recording of reasons for an order passed on the post-conrmation petition even though reasons are not required to be recorded at the stage of recording of ndings and sentence by a court martial and at the stage of conrmation of the ndings and sentence of the court martial by the conrming authority. With regard to recording

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S N Mukherjee v. Union Of India 1990 the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings. We will, therefore, examine the other contentions that have been urged by Shri Ganguli in support of the appeal. The rst contention that has been urged by Shri Ganguli in this regard is that under sub-section (1) of Section 164 of the Act the appellant had a right to make a representation to the conrming authority before the conrmation of the ndings and sentence recorded by the court martial and that the said right was denied inasmuch as the appellant was not supplied with the copies of the relevant record of the court martial to enable him to make a complete representation and further that the representation submitted by the appellant under sub-section (1) of Section 164 was not considered by the conrming authority before it passed the order dated May 11, 1979 conrming the ndings and sentence of the court martial. The learned Additional Solicitor General, on the other hand, has urged that under sub-section (1) of Section 164 no right has been conferred on a person aggrieved by the ndings or sentence of a court martial to make a representation to the conrming authority before the conrmation of the said ndings or sentence. The submission of learned Additional Solicitor General is that while sub-section (1) of Section 164 refers to an order passed by a court martial, sub-section (2) of Section 164 deals with the ndings or sentence of a court martial and that the only right that has been conferred

of reasons the considerations which apply at the stage of recording of ndings and sentence by the court martial and at the stage of conrmation of ndings and sentence of the courtmartial by the conrming authority are equally applicable at the stage of consideration of the postconrmation petition. Since reasons are not required to be recorded at the rst two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-conrmation petition under Section 164(2) of the Act. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the conrming authority conrming the ndings and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the postconrmation petition. Since we have arrived at the same conclusion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected. But that is not the end of the matter because even though there is no requirement to record reasons by the conrming authority while passing the order conrming the ndings and sentence of the CourtMartial or by the Central Government while passing its order on the post-conrmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before

247 on a person aggrieved by the nding or sentence of a court martial is that under sub-section (2) of Section 164 and the said right is available after the nding and sentence has been conrmed by the conrming authority. We nd considerable force in the aforesaid submission of learned Additional Solicitor General. Section 164 of the Act provides as under: (1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the ocer or authority empowered to conrm any tinging or sentence of such court martial and the conrming authority may take such steps as may be considered necessary to satisfy itself as to the correctness. legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a nding or sentence of any court martial which has been conrmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed ocer superior in command to the one who conrmed such nding or sentence and the Central Government, the Chief of the Army Sta or other ocer, as the case may be, may pass such orders thereon as it or he thinks t. In sub-section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the ocer or the authority empowered to conrm any nding or sentence of such court martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes specic reference to nding or sentence of a court martial. and confers a right on any person feeling aggrieved by a nding or sentence of any court martial which has been conrmed, to present a petition to the Central Government, Chief of the Army Sta or any prescribed ocer. The use of the expression order in sub-section (1) and the expression nding or sentence in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and the expression order in sub-section (1) cannot be construed to include a nding or sentence. In other words in so far as the nding and sentence of the court martial is concerned the only remedy that is available to a person aggrieved by the same is under sub-section (2) and the said remedy can be invoked only after the nding or sentence has been conrmed by the conrming authority and not before the conrmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the conrmation of the nding and sentence, when such conrmation is required, and before the proceedings are destroyed, to ob-

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S N Mukherjee v. Union Of India 1990 tion had not been received by the conrming authority till the passing of the order of conrmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the conrming authority till the passing of the order of conrmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the conrming authority before the passing of the order of conrmation would not vitiate the said order. Shri Ganguli next contended that the rst and the second charge levelled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the rst charge can not be sustained. It is no doubt true that the allegations contained in the rst and the second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the rst charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the rst charge he was acquitted of the second charge. There is, therefore, no inrmity in the court martial having found the appellant guilty of the rst charge while holding him not guilty of the second charge. Shri Ganguli has also urged that the ndings recorded by the court martial on the rst and third charges are perverse

tain from the ocer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court martial are to be supplied only after conrmation of the nding and sentence and that there is no right to obtain the copies of the proceedings till the nding and sentence have been conrmed. This means that the appellant cannot make a grievance about nonsupply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the conrming authority against the ndings and sentence of the court martial before the conrmation of the said nding and sentence. Though a person aggrieved by the nding or sentence of a court martial has no right to make a representation before the conramtion of the same by the conrming authority, but in case such a representation is made by a person aggrieved by the nding or sentence of a court martial it is expected that the conrming authority shall give due consideration to the same while conrming the nding and sentence of the court martial. In the present case the representation dated December 18, 1978 submitted by the appellant to the conrming authority was not considered by the conrming authority when it passed the order of conrmation dated May 11, 1979. According to the counter adavit led on behalf of Union of India this was due to the reason that the said representa-

249 inasmuch as there is no evidence to establish these charges. We nd no substance in this contention. The rst charge was that the appellant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud got altered ordnance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his oce in December, 1975. The evidence of these witnesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his oce that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/sub. P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his oce in the last week of December, 1975 or the rst week of January, 1976 and that on reaching there he found ordnance pattern woolien pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Sharif P.W. 15 to his oce and had asked him to take out 19 woolien trousers out of the lot kept there in the ofce. After Mohd. Sharif had selected 19 woollen trousers the appellant told Mohd. Sharif to take away these pants for alteration and retting. The judge advocate, in his summing up, before the court martial, has referred to this evidence on the rst charge and the court martial, in holding the appellant guilty of the rst charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the rst charge levelled against the appellant and the ndings recorded by the court martial in respect of the said charge is based on no evidence or is perverse. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while ociating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt. Chhabra. In his summing up before the court martial the judge advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. CC) raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had

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S N Mukherjee v. Union Of India 1990 based on no evidence and is perverse. In the result we nd no merit in this appeal and the same is accordingly dismissed. But in the circumstances there will be no order as to costs. R.N.J. Appeal dismissed.

knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said that the nding recorded by the court martial on the third charge is

Chapter 17

Ex-Hav Ratan Singh v. Union of India 1991


EX-HAVILDAR RATAN SINGH mary Court Martial held without juv. UNION OF INDIA AND ORS. risdiction. PETITIONER: EX-HAVILDAR HEADNOTE: The appellant, a RATAN SINGH Havildar, was charge-sheeted on the ground that during an armed action v. against a group of militants when RESPONDENT: UNION OF INthe militants opened re he ran away DIA AND ORS. in a cowardly manner and left his DATE OF JUDGMENT19/11/1991 post without permission of his suBENCH: SHARMA, L.M. (J) perior. The respondent-authorities BENCH: SHARMA, L.M. (J) proceeded on the ground that his ofVERMA, JAGDISH SARAN (J) fence was covered by section 36 of the Army Act, 1950 and accordingly secAGRAWAL, S.C. (J) CITATION: 1992 AIR 415 1991 tion 120 (1) of the Act was applicaSCR Supl. (2) 370 1992 SCC Supl. ble. Consequently, he was tried by a (1) 716 JT 1991 (4) 427 1991 SCALE summary court Martial and was convicted and reduced in rank and im(2)1047 prisoned for one year. He led an ACT: Army Act, 1950. Section application under Article 226 before 3(x), 34(a)(h), 36 and 120. Summary the Delhi High Court which was disCourt MartialJurisdiction ofHavildar missed. In appeal to this Court it engaged in armed action against milwas contended on behalf of the appelitantsCharge of running away in a lant that having regard to the nature cowardly manner and leaving the of the charge against him section 34 post without permission of superiof the Army Act was attracted and orNature of oence and jurisdictionin view of section 120(2) of the Act Held oence covered by Section 34 trial by summary Court was not perand not by section 36Trial by Sum-

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Ex-Hav Ratan Singh v. Union of India 1991 in accordance with law. [374.-C] JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 710 of 1991. From the Judgment and Order dated 29.1. 1991 of the Delhi High Court in Cr. W.P. No. 9 of 1991. B.Pajha and Manoj Prasad for the Appellant. V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted. 2. The appellant, Havildar Ratan Singh was tried and convicted by Summary Court martial. He was reduced in rank and sentenced to suer rigorous imprisonment for one year. He led an application under Article 226 of the Constitution of India before the Delhi High Court, which was dismissed by the impugned judgment. 372 3. Although a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is conned to one point. It has been contended that having regard to the nature of the charge against the appellant, the provisions of section 34 of the Army Act, 1950 (herein-after referred to as the Act) are attracted, and in view of section 120 (2) of the Act, trial by summary not permitted. The learned counsel has placed the relevant provisions of the Act indicating that the appellant would have been entitled to a qualitatively better right of defence before a court martial other than a summary court martial which was denied to him on a wrong assumption that the case

mitted. Allowing the apeal and setting aside the judgment of the High Court, this Court, HELD: 1. Under section 120 (2) of the Army Act, 1950 if an oence is covered by section 34 and immediate action for the specied reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. [372 D-F] 2. Section 36 covers a wide range of oences and the scope of 371 section 34 is limited to a smaller area where the oence is more serious attracting more severe punishments. The operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression enemy within section 3 (x). If the allegations are assumed to be true, than the appellant, on the militants opening re shamefully abandoned the place comitted to his charge and which he was under a duty to defend. Both clauses (a) and (h) of section 34 are clearly attracted. The appellant was therefore guilty of a more serious oence under clauses (a) and (h) of section 34 of the Act than under section 36. 1373 D-G] It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an ocer holding summary court martial. Consequently the impugned, hed trial by Summary Court Martial and the decision thereby must be held to be without jurisdiction and is quashed. The conviction and sentence passed against the appellant is set aside. [373 E-G] 3. The respondents-authorities can proceed to hold a fresh trial of the appellant

253 was covered by section 36, and not by section 34. The question which arises in this case, is whether the Summary Court Martial had jurisdiction to try the appellant in the facts as alleged in the present case. 4. The charge sheet states that when red upon by a group of terroristmilitants during an armed operation against them, the appellant quitted his place without orders from his superior ocer. Section 120 of the Act states that subject to the provisions of sub-section (2) of the section a summary court martial may try any oence punishable under the Act. Sub-section (2) reads as follows :- (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the ocer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged oender, an ocer holding a summary court martial shall not try without such reference any oence punishable under any of the sections 34, 37 and 69, or any oence against the ocer holding the Court. The position, thus, is that if the oence is covered by section 34 and immediate action for the specied reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. 5. Section 34 states that any person subject to the Act, who commits any of the oences enumerated thereunder, shall on conviction by court martial, be liable to suffer death or such less punishment as prescribed. The oences are detailed in 12 clauses and clauses (a) and (h) appear to be relevant in the present context. They are quoted below:(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend or uses any means to compel or induce any 373 commanding ocer or other person to commit any or the said acts; or (h) in time of action leaves his commanding ocer or his post,guard, picquet, patrol or party without being regularly, relived or without leave; or. 6. The evidence in the case, included in the paper book prepared by the appellant, indicates that the appellant while engaged in an armed action against a group of militants is alleged to have run away when the militants opened re and he, thus, in a cowardly manner left his post without permission of his superior ocer. The allegations included in the charge sheet on the basis of which the appellant was tried are also to the same eect. The appellant is, therefore, right in his stand that if the prosecution case be assumed to be correct (which he denies) he was guilty of a more serious oence under clauses (a) and (h) of section 34 of the Act than under section 36. In reply it is contended on behalf of the respondents that the case is covered by section 36, and, therefore, the Summary Court Martial was fully authorised to try the appellant under section 120 (1). 7. There is no dispute that the appellant is governed by the provisions of the Act. It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an ocer holding summary court

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Ex-Hav Ratan Singh v. Union of India 1991 learned counsel for the appellant that if he succeeded on the basis that the Summary Court Martial was without jurisdiction, he (the appellant) may have to be retired and awarded a more severe punishment, The learned counsel, however, decided to press the point even at the risk of a second trial of the. appellant. The learned counsel for the respondents stated that a fresh proceeding may now be barred by the law of Limitation, and in view of the fact that the appellant is guilty of a very serious charge, this Court should decline to exercise its power under Article 136. In reply the learned counsel for the appellant pointed out that the period of limitation for commencing a fresh proceeding against the appellant shall not expire before 05.02.92 and the apprehension expressed on behalf of the respondents that the appellant, even if guilty, may escape a trial is misconceived. We hold that the appellant is correct. Accordingly we set aside the impugned judgment of the High Court as also the conviction and sentence passed against the appellant by the Summary Court Martial, but allow the respondentsauthorities to proceed to hold a fresh trial of the appellant in accordance with law. The appeal is accordingly allowed. T.N.A. Appeal allowed.

martial. The Operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression enemy within section 3(x). The impugned order is attempted to be justied solely on the ground that section 36 covers the case. The argument overlooks the position that it is not the scope of section 36 which can answer the question raised in the present case. The issue is whether the oence is punishable under section 34 or not. Section 36 covers a wide range of oences and the scope of section 34 is limited to a smaller area where the oence is more serious attracting more severe punishments. If the allegations are assumed to be true then the appellant, on the militants opening re, shamefully abandoned the place committed to his charge and which he was under a duty to defend. Both clauses (a) and (h) are, therefore, clearly attracted. The impugned trial by summary court martial and the decision thereby must be held to be without jurisdiction and have to be quashed. 8. We do not nd any merit in the other points mentioned in the writ petition or in the special leave petition. They are nally rejected. 9. During the course of the hearing we drew the pointed attention of the

Chapter 18

P Chandramouli v. Union Of India 1994


P. CHANDRAMOULY UNION OF INDIA AND ANR. v. inal Appeal No. 625 of 1987 by the Union of India are against the CASE NO.: Appeal (crl.) 623-24 common judgment and order dated 31.3.1987 passed by a Division Bench of 1987 Of the Gauhati High Court in Writ PETITIONER: P. CHANAppeals Nos. 1,2 and 3 of 1980. DRAMOULY The four appellants, members of RESPONDENT: UNION OF INthe General Reserve Engineers Force DIA AND ANR. (hereinafter referred to as the Force) DATE OF JUDGMENT: were accused of having committed of22/07/1994 fences punishable under Section 63 of BENCH: M.M. PUNCHHI & KJ. the Army Act under four counts, as also under Section 39(a) and 41 of REDDY the said Act under one count each. JUDGMENT: For the six charges framed they were WITH tried by a Court Martial and conCriminal Appeal Nos. 620-22 of victed under all the six counts and 1987 and Criminal Appeal No. 625 awarded sentences of imprisonment, of 1987. They invoked the jurisdiction of the Central Government under Sections 1994 SUPPL. (2) SCR 43 The following Order of the Court 164 and 165 of the Army Act, 1950 but with no success. They led was delivered ; two separate writ petitions before Criminal Appeal Nos. 620 to 622 the Gauhati High Court challenging of 1987 on behalf of three members of their convictions and sentences. The the General Reserve Engineers Force, writ petitions to the ocers were acCriminal Appeals Nos. 623-624 by cepted partially to the extent that ofone more such member and Crim-

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P Chandramouli v. Union Of India 1994 are at large. It is the conceded case of the ocer-appellants that the provisions of the Army Act, subject to some exceptions are applicable to the Force with eect from 23.9.1960. The offences herein were committed in the year 1971. The plea of the appellants is that the Court Martial set up under a warrant of the Chief of the Army Sta, authorising the Chief Engineer to conduct it, was not legally constituted under the Army Act since there was no parallel ocer of an Army rank posted in the Force. It is stated that this objection to jurisdiction was taken before the Court Martial but not ignored. The appellants learned counsel was unable to support his contention. We do not nd any material in support thereof because the proceedings of the Court Martial have not been placed before us as part of the record. The judgment under appeal is also not reective of the question of jurisdiction having been raised in such manner. Even otherwise it is not available to the appellants because of the settled position in law that the General Reserve Engineers Force is part and parcel of the Armed Forces to which the Army Act is applicable. In this connection R. Viswan & Ors. v. The Union of India & Ors, [1983] 3 S.C. R. 60 and Devi Prasad Mishra v: Union of India and Ors., S L P. (Crl.) No. 1020 of 1978 may with advantage be seen. Such argument is not open to the appellants. The ancillary question raised that those judgments applied prospective and did not cover the state of law as exist-

fence under Section 63 in relation to one count was quashed. The learned Single Judge also took the view that orders of the Competent Authority under Sections 164 and 165 of the Army Act required a speaking order. The learned Single Judge in relation to the other charges suggested to the Competent Authority whether it would be worthwhile to keep operating the sentence s imposed under other charges due to the quashing of one of the charges under Section 63 of the Act. Against the partial acceptance of their writ petitions, the four ocers led their respective letters patent appeals before the Division Bench of that Court as did the Union of India, aggrieved as it was against the quashing of charge under one count under Section 63 of the Act. The Division Bench on reappraisal of the entire matter came to the conclusion that all the six charges against the ocers stood established and that there was no occasion for the learned Single Judge to have quashed one charge. While doing so it agreed with the learned Single Judge that the Authority exercising jurisdiction under Sections 164 and 165 of the Army Act was required to pass a speaking order. All the same, the convictions and sentences were maintained despite the requirement of the Authority passing a speaking order. Recommendation, however, as made to the Union of India that it was a case where sentences of the ocers deserve commuting. We are told that the Union of India accepting the suggestion committed accordingly the sentences of imprisonment of the four members and they

257 ing prior thereto and the instant being a case which arose priority is to be noted and rejected. That Court, in those cases, not only declared the state of law as existing but interpreted it to have always existed from the date of the notication applying the Army Act to the Force. Undeniably, when the Army Act is applicable, the Chief of the Army Sta is the person, besides the Central Government, to issue a warrant for convening a Court Martial. He can, therefore, authorise not only anyone from the personnel directly governed under the Army Act but also from the personnel to which the Army Act stands extended. Here the Chief Engineer could be issued a warrant for the purpose being on the roll of the Force to which the Army Act had been extended. The argument thus being of no substance is rejected. Lastly, it has been contended on behalf of the appellants that while these appeals were pending in this Court they have been served Show Cause Notices under the Central Civil Services (Classication, Control and Appeal) Rules so as to take disciplinary action against them on the basis of their convictions. It has been urged that oence of violation of good Order and discipline punishable under Section 63 of the Army Act had come to be committed because the appellants genuinely believed that they were not members of the Armed Forces and thus not bound by the strict standards of good order and discipline as expected from the Armed Forces. Now while proceeding with this judgment our attention has been drawn to the limited leave granted in these matters, only on two questions. One of the questions is to examine the eect of substitution of the word discipline in place of the expression military discipline in Section 63 of the Act by order of the Central Government dated September 23, 1960 issued in exercise of the powers conferred under Section 4(1) of the Act, as applicable to the members belonging the General Reserve Engineers Force and questions incidental thereto. It was also made clear that such grant of leave would not entitle the parties to reopen the questions decided by the Constitution Bench in R. Viswan & Ors. v. Union of India & Ors., yet the learned counsel for the appellants went on raising the question of applicability of the Army Act to the members of the General Reserve Engineers Force and transgressed the limits of special leave. Keeping that apart. Section 63 of the Act nevertheless is applicable to the members of the Force and they can be tried for any act or omission which, though not specied in the Act, is prejudicial to good order and discipline and can be convicted by a Court Martial and be held liable to suer imprisonment for a term which may extend to seven years or less, As we view it, the dropping of the word military from the text of Section 63 rather enlarges its scops in a sense for it obligates maintenance of discipline in a wider sense. It may be true, as has been contended by the learned counsel for the appellants, that the discipline envisaged for the Engineers Force can-

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P Chandramouli v. Union Of India 1994 members of the Engineers Force subjected to good order and discipline cannot work to its prejudice. Anyone violating that good order and discipline would thus have to suer. We hold accordingly. The second question on which the limited leave was granted was to discover the duty of the Conrming Authority to pass a reasoned order under Sections 150, 154 and 164 of the Act. The understanding of Sections 154, 164 of the Act would govern the role assigned under Section 165 of the Act. These provisions do not specically require any speaking order to be passed. The learned Single Judge as also the Division Bench of the High Court opined that passing of a speaking order would be: necessary. The High Court has taken this view against the Constitution Bench of this Court in Som Datta v. Union of India & Ors., [1969] 2 S.C.R. 177 wherein it has been authoritatively held that there is no express obligation imposed by Section 164 or Section 165 of the Army Act on the Conforming Authority or upon the Central Government to give reasons in support of its decision to conrm the proceedings of the Court Martial. Before the Constitution Bench, as here, no provision of the Act or any Rule made thereunder has been shown from which implication can be drawn that such a duty was cast upon the Government and the Conrming Authority. This Bench is bound by the view express by the Constitution Bench. Additionally, we do not see that absence of a speaking order, in these circum-

not be of such strict standards as is regimental or military discipline but it is, however, forgotten when so canvassing that even ordinary discipline, which is expected to be observed by the members of the Engineers Force, when violated, would attract the jurisdiction of the Court Martial which is empowered to impose sentences of imprisonment. Such imprisonment is extendable upto seven years and can be either rigorous or simple as is plain from the language of Section 71(c) of the Army Act. Other punishments enumerated in clauses (d), (e), (f), (g) and (h) of Section 71, though forming part of the Army Act, are excepted from application to the Engineers Force. Those are cashiering, dismissal from service, reduction in rank, forfeiture of seniority of rank or forfeiture of service. These cannot be imposes by the Court Martial when trying offences against the members of the Engineers Force. Since these punishments do hot fall within the domain of the Court Martial insofar as members of the Engineers Force are concerned, then obviously the Central Civil Services (C.CA) Rules come in to ll the vacuum. The members of the Engineers Force are not due for a better treatment than ordinary Government servants who have to suer disciplinary action under the said Rules on the basis of criminal convictions. Therefore, we are of the considered view that the expression military discipline when substituted as discipline, for the purpose of the Engineers Force serves the purpose above-mentioned. It goes without saying that the behaviour of the

259 stances, b any way thwarts judicial review should the court undertake the exercise since the parent order is always available to build argument? upon. This part of the view of the High Court relating to the passing of the speaking order, we cannot approve and thus we set it aside retrieving it from the judgment under appeal. Counsel without bringing to our notice the limitations within which the debate could go on terms of the special leave. Therefore, We are constrained to award costs. Criminal Appeals Nos. 620 to 624 are, therefore, dismissed with costs which we quantify at Rs. 5,000.

Criminal Appeal No. 625 of 1987 led on behalf of the Union. of India Before we part With the judg- is allowed in the above terms. In this ment, we need to observe that much appeal there shall be no costs. of our time was employed by learned

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P Chandramouli v. Union Of India 1994

Chapter 19

Union Of India v. R.K.L.D. Azad 1995


Union Of India & Ors v. M.K. MUKHERJEE, J. R.K.L.D. Azad on 9 August, 1995 Special leave granted. Equivalent citations: 1996 AIR 845, The two short questions that ate 1995 SCC Supl. (3) 426 Author: M required to be answered in these apMukherjee Bench: M M.K. peals are:PETITIONER: (i) whether a person who is subUNION OF INDIA & ORS. ject to the Army Act, 1950 (Act v. for short) can be dismissed from service for committing an oence unRESPONDENT: der the Act even after he had retired R.K.L.D. AZAD on attaining the age of superannuaDATE OF JUDGMENT09/08/1995 tion? and (ii) whether a Junior Commissioned Ocer of the Indian Army BENCH: who has to his credit the minimum MUKHERJEE M.K. (J) period of qualifying service required BENCH: to earn a pension or gratuity is eliMUKHERJEE M.K. (J) gible for the same in case he is dismissed from service under the proviJEEVAN REDDY, B.P. (J) sions of the Act? The question arise CITATION: in the wake of the following undis1996 AIR 845 1995 SCC Supl. (3) puted facts. While employed as a Ju426 1995 SCALE (4)711 nior Commissioned Ocer in the InACT: dian Army the respondent herein was placed under closed arrest on August HEADNOTE: 7, 1990 pending his trial by a General JUDGMENT: Court Martial for an oence under JUDGMENT Section 64 (e) of the Act. Since the

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Union Of India v. R.K.L.D. Azad 1995 123 of the Act, the learned Judge observed, could not give any statutory imprimatur to an order of dismissal passed against an ocer of the Army after he had ceased to hold his post consequent upon his retirement. As success of either of the contesting parties in the writ petition was only partial, both preferred Letters Patent Appeals in the High Court but they were dismissed and the order of the learned Single Judge was conrmed. Aggrieved thereby these appeals have been led at the instance of the Army authorities.

respondent was due to retire on August 31, 1990 on attaining the age of superannuation the Army authorities passed an order on August 23, 1990, extending his subjection to the Act till completion of the trial. In the trial that commenced from November 1, 1990 and ended on November 26, 1990, the respondent was convicted and the sentences imposed for the conviction were rigorous imprisonment for one year and dismissal from service. After due conrmation in accordance with Section 154 of the Act the order of conviction and sentence was promulgated on January 15, 1991.

Relying upon the provisions of sub-section (1) and (2) of Section 123 Assailing the above order of the of the Act which read as under: 123 General Court Martial the respon- Liability of oender who ceases to be dent led a writ petition in the subject to ActAndhra Pradesh High Court which (1) Where an oence under this was heard by a learned Single Judge. Act had been committed by any perThe learned Judge allowed the writ son while subject to this Act, and he petition in part by setting aside the has ceased to be so subject, he may order of dismissal of the responbe taken into and kept in military dent, but upholding his conviction custody, and tried and punished for and sentence of rigorous imprisonsuch oence as if he continued to be ment for one year. The reason which so subject. weighed with the learned Judge in (2) No such persons shall be tried setting aside the dismissal was that consequent his retirement on August for an oence, unless his trial com31, 1990 the question of his dis- mences within a period of three years missal from service could not have after he had ceased to be subject to arisen. According to the learned this Act; and in computing such peJudge the order dated August 23, riod, the time duting which such per1990, whereby the respondent was to son has avoided arrest by absconding be subject to the Act till conclusion or concealing himself or where the of the trial, only entitled the General institution of the proceeding in reCourt Martial to proceed with the spect of the oence has been stayed trial which, otherwise, would have by an injunction or order, the pebeen impermissible and illegal from riod of the continuance of the injuncthe date of the respondents retire- tion or order, the day on which it ment. Such an order under Section was issued or made, and the day on

263 which it was withdrawn, shall be excluded. it was contended on behalf of the appellants that a plain reading thereof made it abundantly clear that notwithstanding the fact that the respondent had ceased to be subject to the Act consequent upon his retirement, he could be tried for the offence under Section 64(e) of the Act, as it was committed before his retirement, and punished for the same in view of the deemed extension of his subjection to the Act under Section 123 of the Act. It was next contended that both the trial, and the punishment of dismissal that followed, were legal and valid as the former commenced within the period stipulated under sub-section (2) of Section 123 and the latter could be combined with the sentence of imprisonment imposed upon the respondent in view of Section 73 of the Act. In support of their contention the appellant relied upon Major (Retd.) Hari Chand Pahwa v. Union of India & Anr. 1995 Supp (1) SCC 221. While repudiating the above contention of the appellants by adopting the reasoning of the learned single Judge in this regard, as conrmed by the Division Bench in the Letters Patent Appeal, the learned counsel for the respondent submitted that in case it was held that the order of dismissal of the respondent was legally sustainable still he could not be deprived of his pension and gratuity in the absence of any express embargo to that eect in the dismissal order. on behalf of the appellant therein that he could only be awarded a punishment of imprisonment after conviction but not also of being cashiered from the Army (which was imposed upon the appellant therein) because he had earlier retired this Court observed: Though the appellant had retired from the Army service but by operation of sub-section (1) of Section 123 of the Army Act, he could be tried by the GCM in respect of the oences committed by him during the period of his actual service and could be committed and punished in the same manner who was subject to the Army Act could be tried and punished. The said provision clearly states that a retired person can be tried and punished for such oences as if he continued to be so subject. We, therefore, do not agree with the rst contention raised by the learned counsel for the appellant and reject the same. The GCM could award any of the punishments which could be awarded by the said court under law including to be cashiered from the Army. The provisions of section 123 make no dierence between an ocer who is still in service and who was retired from service provided the GCM proceedings are initiated within the period of limitation provided under sub-section (2) of Section 123 of the Army Act.

As the facts of the case presented before us are on all fours with those in Hari Chand Pahwa (Supra) and as In the case of Maj. (Retd.) Hari we respectfully agree with the above Chand Pahwa (supra) this Court quoted observations, the rst queswhile repelling the contention raised tion must be answered in the ar-

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Union Of India v. R.K.L.D. Azad 1995 gratuity under these Regulations. In view of the plain language of the above regulation the respondent cannot lay anylegal or legitimate claim for pension and gratuity on the basis of his previous service as, admittedly, he stands dismissed in accordance with Section 73 read with Section 71 of the Act. The second question must, therefore, be answered in the negative. On the conclusions as above these appeals are allowed. The impugned judgments of the High Court so far as they held that the dismissal of the respondent was legally unsustainable are hereby set aside and the writ petition led by the respondent is dismissed. There will be no order as to costs.

mative. Coming now to the second question we nd that the grant of pension and gratuity to Junior Commissioned Ocers, other Ranks and Non-Combatants (Enrolled) is regulated by Chapter III of the Pension Regulations for the Army, 1961 (Part I). Regulation 113 which comes under Section I of the above Chapter reads, after its amendment in 1967, as follows: 113 (a) An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service.

In exceptional cases, however, hemay, at the discretion of the President be granted service pension or gratuity at a rate not exceeding that for which he would have otherwise Before we part with this record qualied had he been discharged on we make it clear that this judgment the same date. of ours will not stand in the way of (b) An individual who is dis- the respondent to make a represencharged under the provisions of tation seeking exercise of the discreArmy Act and the rules made there- tionary powers of the President ununder remains eligible for pension or der Regulation 113 to grant pension or gratuity.

Chapter 20

Union Of India v. Major General Madan Lal Yadav 1996


Union Of India & Ors v. MaJT 1996 (3) 465 1996 SCALE jor General Madan Lal Yadav ... on (3)72 22 March, 1996 Equivalent citations: ACT: 1996 AIR 1340, 1996 SCC (4) 127 HEADNOTE: Author: K Ramaswamy Bench: RaJUDGMENT: maswamy, K. JUDGMENT PETITIONER: UNION OF INDIA & ORS. v. K. Ramaswamy, J. This appeal on reference to this Bench raises an interesting question RESPONDENT: of law. The respondent while workMAJOR GENERAL MADAN ing as Major General, Army OrdLAL YADAV [RETD.] nance Corps., Southern Command, DATE OF JUDGMENT: Pune between December 1, 1982 and 22/03/1996 July 7, 1985 was in-charge of purchase. The Controller General of DeBENCH: fence Accounts in special audit on RAMASWAMY, K. the local purchases sanctioned by the BENCH: respondent prima facie found that respondent had derelicted his duty RAMASWAMY, K. and action under the Act was iniAHMAD SAGHIR S. (J) tiated against him. At that time, G.B. PATTANAIK (J) the respondent was attached to ColCITATION: lege of Military Engineering, Pune 1996 AIR 1340 1996 SCC (4) 127 and was promoted as Major Gen-

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Union Of India v. Major General Madan Lal Yadav 1996 fence Accounts, Southern Command to carry out special audit for the period in question. The respondent had sought permission to go to Delhi in connection with his writ petition which was granted between December 16 and 18, 1986. The writ petition was dismissed by this Court on December 18, 1986 against which he led special leave petition. On January 3, 1987, the recording of summary evidence against the respondent was concluded. He sought permission to go to Delhi in connection with his special leave petition which was granted between January 12 and February 5, 1987. The summary evidence was considered and GOC in Command, Southern Command submitted his report on February 2, 1987. The special leave petition came to be dismissed by this Court on February 5, 1987. Pursuant thereto, general Court martial [for short, GCM] was ordered on February 24, 1987; the GCM assembled to try the respondent on February 25, 1987. On perusal of the report, it was found that the respondent should be tried for the oence. He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16, 1987. Warrant was issued for his arrest. The respondent voluntarily surrendered on March 1, 1987 and was placed under closed arrest w.e.f. 2130 hours on the said day. The Court Martial assembled on March 2, 1987 but it appears that the respondent had, in the meanwhile, led writ petition in the Bombay High Court challenging the ju-

eral. After initiation of the proceedings he was ordered to retire which he had challenged by ling Writ Petition No.3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986. On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 [for short, the Act]. He was kept under open arrest from that date onwards and retired from service on August 31, 1986 as Major General. On September 22, 1986, the respondent was issued a chargesheet and recording of the summary evidence commenced on September 25, 1986. The respondent led habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross-examine witnesses examined at preliminary enquiry between October 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to nonavailment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8, 1986, the case was closed for prosecution on November 20, 1986. The respondent sought 14 days time to prepare his case which was duly allowed. However, the respondent did not give list of his defence witnesses till November 30, 1986. Consequent upon it, on December 26, 1986, the Controller General of Defence Accounts directed the Controller, De-

267 risdiction of the Court Martial to try him. In W.P. No.301 or 1987, invoking the provisions of Section 123 [2] of the Acts the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court Martial was, therefore, held to be illegal and accordingly writ was issued. Calling in question this order, this appeal has been led. It is undisputably clear that the respondent had retired from service on August 31, 1986. He was kept under open arrest from August 26, 1986 and had escaped from lawful military custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987. Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been denied by the ocer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act fastens culpability of the oender who ceased to be subject to the provisions of the Act. Sub-section [1] postulates that where an oence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such oence as if he continued to be so subject. Sub section [2] which stands amended by Army Act [Amendment] Act, 37 of 1992, prescribed limitation on such action, at the relevant time, that no such person shall be tried for an oence, unless his trial commences within six months after he had ceased to be subject to the Act. The amended sub-section [2] is not relevant for our purpose since the oence in question was indisputably committed prior to the Amendment came into existence. The proviso and other sub-sections are also not relevant for our purpose. The question, therefore, is: on which date did the trial of the respondent commence? In other words, whether the trial of the respondent commenced within six months from the date of his retirement, viz., August 31, 1986? By prescription of six months limitation under sub-section [2], the trial of the respondent was to commence before February 28, 1987. Consequently, the question, therefore, is: what is the meaning of the words trial commenced as used in subsection [2] of Section 123 and as to when it commences? It is contended by Shri Malhotra, learned counsel for the appellants, that the word commenced must be understood and considered in the setting and scenario of the operation of relevant provisions of the Act and the rules framed thereunder, viz., the Army Rules, 1954 [for short, the Rules]. Their conjoint reading would indicate that the moment the Court martial assembles, takes cognisance of the oence and direct to proceed further, the trial must be deemed to have been commenced, as all the steps from the stage are integrally connected with the trial. When Court martial assembled on February 25, 1987 and found prima

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Union Of India v. Major General Madan Lal Yadav 1996 Court martial assembled, took oath in terms of Rule 45; applied their mind under Rule 41 to proceed further under Rule 43. The oath envisages thus: .....I will well and truly try the accused before the Court according to the evidence and that I will duly administer justice according to the Army Act without partiality, favour or aection and if any doubt shall arise, then, according to my conscience, the best of my understanding and the customs of war and..... The scheme would indicate that there is a distinction between inquiry and trial and the trial commences only when the Court Martial arraigns the accused on the charge against him under Rule 48 whereby the accused shall be required to plead separately to each charge. Since the above Procedure had not been followed, the trial did not commence. It is further argued that the accused has a valuable right under Rule 48 to object to the charge. If the objection is sustained, the charge is required to be amended under Rule 50. He has also right to object to the members of the Court Martial empanelled. He is also entitled under Rule 51 to object to the jurisdiction of the Court Martial. Until the Court martial assembles to proceed further, the trial cannot be said to have commenced. The question, therefore, is: as to when the trial commences within the meaning of Section 123 [2]? With a view to appreciate the rival contentions it is necessary to grasp the relevant provision of the Act and the Rules. Article 33 of the Constitution empowers the Parliament to modify the funda-

facie case against the respondent to proceed with the trial and directed to secure his presence, it was discovered that the respondent had escaped the lawful open military custody and made himself unavailable. Consequently, Court Martial could not proceed with the trial of the respondent until he was arrested and brought before the Court martial or he himself surrendered. Since presence and participation by the respondent in the trial was a condition precedent, due to non-availability of the respondent, the Court martial could not be proceeded with. After re-appearance of the respondent or, March 1, 1987, further steps were taken to conduct the trial by the Court martial. The trial, therefore, was not barred by operation of sub-section [2] of Section 123. Shri Bobde, appearing for the respondent, on the other hand, contended that Section 122 [3] provides for exclusion of time during which the accused avoided arrest after the commission of the oence. Similar provision, preceding amendment to sub-section [2] of Section 123 is not expressly made available on statute. The oence being of criminal nature, having regard to the provisions of Section 123 limitation should strictly be construed, particularly when it involves liberty of the citizen. He argues that the legislature had made a dichotomy of Sections 122 and 123 of the Act. The time during which the accused was not available cannot, therefore, be excluded in computation of six months period prescribed in sub-section [2] of Section 123. It is further contended that the trial commenced only when the

269 mental rights enshrined in Part III in their application to the members of the Armed Forces or members of the Forces charged with the maintenance of the public order etc. The Act was made to regulate the governance of the regular Army. Under Section 2 [1] (a), ocers shall be subject to the Act wherever they may be. Under Section 3, unless the context otherwise requires active service as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of, a force which is engaged in operations against any enemy, or... Court Martial under sub-section [vii] means a court martial held under the Act. Military custody under sub-section [xiii] means the arrest or connement of a person according to the usages of the service and includes naval or air force custody. Oence has been dened under sub-section [xvii] to mean any act or omission punishable under the Act and includes a civil oence as hereinbefore dened. Chapter IX deals with arrest and proceedings before trial. Section 101 enables custody of oenders. Under sub-section [1] thereof, any person subject to the Act who is charged with an oence may be taken into military custody. Under subsection [3] thereof, an ocer may order into military custody of any ocer, though he may be of a higher rank, engaged in a quarrel, aray or disorder. Chapter X deals with Court Martial The details thereof are not material for the purpose of this case since the admitted position is that G.C.M. was ordered against the respondent which is not under challenge. Section 122 deals with period of limitation for trial of any person subject to the Act. As stated earlier, sub-section [3] thereof make provision for exclusion of time, in computation of the prescribed periods i.e., of any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the oence. Section 123 deals with liability of oenders who cease to be subject to the provisions of the Act. Sub-section [1] thereof envisages that where an oence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subjects he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject In other words, though the ocer governed by the provisions of Act ceases to be the person governed by the provisions of the Act, no trial for an oence under the Act shall be proceeded with and no such person shall be tried for an oence unless the trial commences within six months of his ceasing to be subject to the Act. Chapter V of the Rules relates to investigation of the charge and trial by court martial. Rule 22 deals with hearing of charge. Subrule [1] provides the procedure to deal with the charge in the presence of the accused who shall have full liberty to cross-examine any witness examined against him and he may call any witness and make any statement in his defence. Rule 23 provides procedure for taking down the summery of evidence. Rule 24 empowers remand of the accused. Rule 25 pre-

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Union Of India v. Major General Madan Lal Yadav 1996 vant for the purposes of this Court. The rule reads as under: 41. Inquiry be court as to legal constitution. [1] On the court assembling, the order convening the court shall be laid before it together with the charge sheet and the summary of evidence or a true copy thereof, and also the ranks, names, and corps of the ocers appointed to serve on the court; and the court shall satisfy itself that it is legally constituted; that is to say(a) that, so far as the court can ascertain, the court has been convened in accordance with the provisions of the Act and these rules; (b) that the court consists of a number of ocers, not less than the minimum required by law and, save as mentioned in rule 38, not less than the number detailed; (c) that each of the ocers so assembled is eligible and not disqualied for serving on that court martial; and

scribes procedure on charge against ocer. Rule 26 provides procedure for summary disposal of the charge against the ocers. If delay occasions in postal, under Rule 27, it is required to be reported. Rule 28 deals with framing of charge-sheet containing the details and issue or issues to be tried by a Court Martial. The charge-sheet may contain one charge or several charges. Rule 29 deals with commencement of the charge-sheet. Rule 30 contains contents of the charge. Rule 33 provides procedure for preparation or defence by the accused. Rule 34 enjoins that before the accused is arraigned for an oence, he shall be informed by an ocer of every charge for which he is to be tried and also that on his giving the names of the witnesses whom he desire to call in his defence, reasonable steps will be taken for procuring their attendance etc. Rule 35 deals with Joint-trial of several accused persons. Due to military exigencies or on grounds of necessity of discipline Rule 36 empowers the suspension of rules.

(d) that in the case of general court martial, the oces are of the In Section 2 of the Rules deal- required rank. ing with General and District Courts [2] The court shall, further, if it is Martial, convening the Court mar- a general or district court martial to tial has been envisaged. Under Rule which a judge advocate has been ap38, Court Martial may be adjourned pointed, ascertain that the judge adif before arraigning the accused in- vocate is duly appointed and is not sucient number of ocers of the disqualied for sitting on that court Court martial are noticed. Rule 39 martial. speaks of disqualication and ineli[3] The court, if not satised with gibility of ocers for Court Martial. regard to the compliance with the Rule 40 envisages composition of the aforesaid provisions, shall report its GCM Rule 41 prescribes procedure opinion to the convening authority, to be followed at trial and constitu- and may adjourn for that purpose. tion of Court Martial which is releRule 43 prescribes procedure of

271 trial - challenge and swearing. if the court has satised itself that the provisions of Rule 41 and 42 have been complied with, it shall cause the accused to be brought before the court and the prosecutor, who must be a person subject to the Act, shall take his due place in the court. As seen, under Rule 45, oath is to be administered to the members of the Court Martial etc. They are required to swear by Almighty God or armation to well and truly try the accused. Similar oath may be administered to Judge Advocate and other ocers under Rules 46 and 47. Rule 48 speaks of arraignment of accused. It envisages that after the members of the Court Martial and other persons are sworn or armed as above mentioned, the accused shall be arraigned on the charges against him which shall be read out and, if necessary, translated to him in his mother tongue, and he shall be required to plead separately to each charge. Rule 49 deals with objection by the accused to the charge and Rules 50 allows amendment of the charge, if necessary. Rule 51 gives him right to take a special plea on the jurisdiction of GCM and under Rule 52 he can plead guilty or not guilty. Rule 53 deals with plea in bar and Rule 54 with procedure after plea of guilty. Rule 56 deals with plea of not guilty, application and adduction of evidence by the prosecution. Rule 57 deals with plea of no case and Rule 58 with close of case for the prosecution and procedure for defence where accused does not call witness. Rule 59 deals with the defence where the accused calls witnesses and Rule 60 with summing up of the case by the judge advocate. Rule 61 deals with consideration of nding and Rule 62 with forms record and announcement of nding. Rule 63 concerns procedure on acquittal and Rule 64 procedure on conviction. Rule 65 gives power to the Court Martial to impose sentence and Rule 66 deals with recommendation to mercy. Rule 67 deals with announcement of sentence and signing and transmission of proceedings. It is true, as rightly contended by Shri Bobde that on administration of oath to the members of the Court Martial, the members swear to try the accused according to the provisions of Act and Rules etc. and to administer justice according to the Act without partiality, favour or aection. Under Rule 44, names of the members of the Court and presiding ocer will be read over to the accused. He shall be asked, under Section 130, of his objections, if any, for trial by any ocer sitting on the court. Any such objection shall be disposed or according to the Rules. The presence and participation by the accused, therefore, is an indispensable pre-condition. Rule 42 enjoins the court to be satised that the requirements of Rule 41 have been complied with. It shall, further, satisfy itself in respect of the charge brought before it and then proceed further. If he pleads guilty, the procedure contemplated in Rule 54 is to be followed and if he pleads not guilty, the procedure contemplated in Rule 56 shall be proceeded with and evidence recorded etc.

272

Union Of India v. Major General Madan Lal Yadav 1996 of law or facts, before a court that has proper jurisdiction. In Websters Comprehensive Dictionary International Edition, at page 1339, the word trial is dened thus: ....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing....

The words trial commences employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word trial according to Collins English Dictionary means:

the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused persons guilt or innocence after hearing evidence for the prosecution and nor The word commence is dened the accused and the judicial exami- in Collins English Dictionary to nation of the issues involved. mean to start or begin; come or According to Ballentines Law cause to come into being, operation Dictionary [2nd ed.] trial means: etc. In Blacks Law Dictionary it is an examination before a compe- dened to mean : to initiate by pertent tribunal according to the law forming the rst act or step. To beof the land, of the facts or law put gin, institute or start Civil action in in issue in a cause, for the purpose most jurisdictions is commenced by of determining such issue. When a ling a complaint with the court.... court hears and determines any issue Criminal action is commenced within of fact or law for the purpose of de- statute of limitations at time prelimitermining the right of the parties, it nary complaint or information is led with magistrate in good faith and a may be considered a trial warrant issued thereon... A crimiIn Blocks Law Dictionary [Sixth nal prosecution is commenced [1] Edition] Centennial Edition, the when information is laid before magword trial is dened thus: A judiistrate charging commission of crime, cial examination and determination and a warrant of arrest is issued, or of issues between parties to action, [2] when grand jury has returned an whether they be issues of law or of indictment. fact, before a court that has jurisdicIn the Words and Phrases [Pertion... A judicial examination, in accordance with law of the land, of a manent Edition] Vol.42A, at page cause, either civil or Criminal, of the 171, under the head Commenceissues between the parties, whether ment, it is stated that .4 trial commences at least from the time

273 when work of empanelling of a jury be administered to the members of begins. the court martial the Judge AdvoThe regular It would, therefore, be clear that cate and the sta. trial begins and ends with recordtrial means act of proving or judicial examination or determination of ing the proceedings either convicting the issues including its own jurisdic- and sentencing or acquitting the action or authority in accordance with cused. Thus two views would be poslaw or adjudging guilt or innocence of sible while considering as to when the the accused including all steps neces- trial commences. The broader view sary thereto. The trial commences is that the trial commences the mowith performance of the rst act or ment the GCM assembles for prosteps necessary or essential to pro- ceeding with the trial, consideration ceed with trial. It would be seen from of the charge and arraignment of the the scheme of the Act and the Rules accused to proceed further with the that constitution of court martial for trial including all preliminaries like trial of an oence under the Act is objections to the inclusion of the a pre-condition for commencement of members of the Court Martial. readtrial. Members of the court martial ing out the charge/charges, amendand the presiding ocer on nomina- ment thereof etc. The narrow view is tion get jurisdiction to try the person that trial commences with the actual for oence under the Act. On their administration of oath to the memassembly, the accused has the right bers etc. and to the prosecution to to object to the nomination of any examine the witnesses when the acor some of the members of the court cused pleads not guilty. The quesmartial or even the presiding ocer, tion then emerges: which of the two On the objection(s) so raised, it is to views would be consistent with and be dealt with and thereafter the pre- conducive to a fair trial in accordance liminary report recorded after sum- with the Act and the Rules? mary trial and the charge trammed would be considered. The charge is required, if need be or asked by the accused to be read over and could be objected by the accused and found tenable, to be amended. Thereafter, the accused would be arraigned and in his presence the trial would begin. The accused may plead guilty or not guilty. If he pleads guilty, the procedure prescribed under Rule 54 should be followed and if he pleads not guilty, procedure prescribed under Rule 56 is to be followed. Before actual trial begins, oath would It is true that the legislature has made a distinction between Section 122 [3] and Section 123 [2]. While in the former, power to exclude time taken in specied contingencies is given, in the little, no such provision is made for exclusion of the time since the accused will be kept under detention after he ceased to be governed by the Act. It is equally settled law that penal provisions would be construed strictly. As posed earlier, which of the two views broader or narrow - would subserve the object are purpose of the Act is the ques-

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Union Of India v. Major General Madan Lal Yadav 1996 GCM and the right of the member of the GCM arises with their empanelment GCM and they get power to try the accused the moment they assemble and commence examination of the case, i.e., charge-sheet and the record. The trial, therefore, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken. Our view gets fortied by two decisions of this Court in Harish Chandra Baijapi & Anr. v Triloki Singh & Anr. [AIR 1957 SC 444] wherein the question was: as to when the trial begins in an election dispute under the provisions of the Representation of the People Act, 1951? The respondents had led election petitions against the appellant under Section 81 of that Act alleging that the appellant had committed number of corrupt practices and the respondents prayed for declaration that the appellants election was void. After trial, the election was set aside against which the appeal came to be led ultimately in this Court. One of the questions was: whether the particulars of the corrupt practices and amendment therefore is vaild in law and whether they are maintainable in appeal? In that context, the question arose: as to when the trial began? It was contended therein that the order amending pleadings under Order 6 Rule 17, CPC was not part of the trial and, therefore, it could not be subject of consideration in appeal. Considering the above question, this Court held that: Taking the rst contention, the point for decision is as to what the

tion We are of the considered view that from a conpectus of the scheme or the Act and Rules the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as GCM assembles the members are charged with the duty to examine the charge/charges framed in summary trial to give an opportunity to the accused to exercise his right to object to the empanelment of member/members of the GCM to amend the charge and the right to plead guilty or not guilty. These procedural steps are integral and inseparable parts of trial. If the accused pleads guilty further trial by adducing evidence by the prosecution is obviated. The need for adduction of evidence arises only where the accused pleads not guilty. In that situation, the members are required to take oath or armation according to Rule 45. It is to remember that the members get right power and duty to try an accused only on appointment and the same ends with the close of the particular case. Therefore, Rule 45 insists on administration of oath in the prescribed manner. For a judicial ocer the act of appointment gives power to try the oender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them, need to take oath on each occasion of trial or hearing is obviated. Therefore, the occasion to take oath as per the procedure for

275 word trial in s.90(2) means. According to the appellants, it must be understood in a limited sense, as meaning the nal hearing of the petition, consisting of examination of witnesses, ling documents and addressing arguments. According to the respondent, it connotes the entire proceedings before the Tribunal from the time that the petition is transferred to it under s.86 of the Act until the pronouncement of the award. While the word trial standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in s.90(2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in s.90(2). It occurs in Chapter III which is headed Trial of election petitions. Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another members, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences and the expression during the course of trial must therefore include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under s.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to le his written statement, issues have to be settled. If trial for the purpose of s.90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunals to call for written statements and settle issues? Section 90(4) enacts that when an election petition does not comply with the provisions s.81, s.83 or s.117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order rectication of the defects arising by reason of non-compliance with the requirements of s.81, s.83 or s.117. That not being a power expressly conferred on it under s.92 can only be sought under s. 90(2), and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in 3 court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that trial is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under s.86 until the pronounce-

276

Union Of India v. Major General Madan Lal Yadav 1996 ing Ocer have taken their respective places but the accused is not present before the court. The Prosecutor submits that the accused Shri Madan Lal Yadava formerly Lt Gen [Substantive Maj Gen] Madan Lal Yadava of Army Ordnance Corps School, Jabalpur retired from service with eect from 31 August 86 [AN]. He has been subjected to the provisions of Section 123 of the AA with eect from the same date and put under open arrest with eect from 1200 h on 30 August 1986. According to a note dated 15 February 1987, found in his room the accused had proceeded to Bombay to engage a suitable counsel. Though he had stated therein that he would keep the Comdt, NDA Khadakwasla informed about his whereabouts, they are not yet known. Vigorous eorts are being made to trace him out and produce him before the Court. In view of this he requests that the Court be adjourned till 1100 h 26 February 1987. The Defending Ocer, IC-6727F Maj Gen Yadav Yitendra Kumar, who is present in the court submits in reply that he too had had no opportunity to get in touch with the accused and as such has no information regarding whereabouts of the accused. Advice by the Judge Advocate Gentlemen, you have heard the submission made by the Prosecutor with regard to the absence of the accused as also reply of the learned Defending Ocer. The Prosecutor has given the detailed circumstances in which the accused had escaped from mili-

ment of the award. In Om Prabha Jain v. Gian Chand & Anr. [AIR 1959 SC 837], it was held that the word trial clearly means entire proceedings before tribunal from the reference to it by the Election Commission to the conclusion. This Court found no reason to attribute a restricted meaning to the word trial in Section 98 of the Representation of the People Act, 1951. In the light of the above discussion, we hold that the trial commences the moment GCM assembles to consider the charge and examines whether they would proceed with the trial. The preceding preliminary investigation is only part of the process of investigation to nd whether a charge could be framed and placed before the competent authority to constitute GCM. On February 25, 1987, the GCM assembled and recorded the proceedings as under: Trial of Shri Yadava, Madan Lal formerly IC-5122N Lt. Gen [Substantive Maj Gen] Yadava Madan Lal of Army Ordnance Corps. School Jabalpur, attached to National Defence Academy, Khadakwasla. The order convening the court, the charge-sheet and the summary of evidence are laid before the court. The court satisfy themselves as provided by Army Rules 41 and 42. I have satised myself, that no Court of Inquiry was held respect the matters forming the subject or the charge before this court martial. At this stage, the court observe that the Prosecutor and the Defend-

277 tary custody. He further submitted before you that vigorous eorts were being made to secure his presence before you to stand the trial and to this eect, prayed for the adjournment of the Court until 1100 h on 26 Feb 87. In view of the foresaid submission made by the Prosecutor, I advise you to consider granting him suitable adjournment to secure the presence of the accused. The Court decide to adjourn until 1100 h 26th Feb 1987. The above decision is announced in the court. yet been able to nd out his whereabouts and as such unable to produce him before the court. It is, however, earnestly hoped that he would be able to get some clue about his whereabouts by 01 March 1987. In that event he would be able to produce him before the court on 02 March 1987. He therefore, prays that an adjournment until 1000 h 02 March 1987 be granted. He further gives an undertaking that he will seek no further adjournment on this account and if he is not in a position On February 26, 1987 when it to produce the accused by that dates again assembled, the GCM was in- will seek sine die adjournment of the formed by the prosecutor that de- Court. The learned Defending Ocer spite their diligent steps taken to have the accused traced and pro- submits that he too has so far no induced before the court they were un- formation about the accused. able to do that and a request for adAdvice by the Judge Advocate: journing the proceedings to the next Gentlemen, you have heard the day was made and the defence counsubmissions of the Prosecutor and sel also had expressed his inability to the learned Defending Ocer. The know the whereabouts of the responProsecutor submitted before you dent. On advice by the Judge Adthat he would be in a position to provocate, the court adjourned the case duce the accused on 02 March 1987 to February 27, 1987. Similarly, the and that he would not seek any furcase was adjourned to February 28, ther adjournment of the Court on 1987 on which date when it assemthis account in case he failed to sebled, the proceedings were recorded cure his presence on or before that as under: date. In the interest of the justice, At 1000 h on 28 February 1987, you may therefore, consider granting Court re-assemble, pursuant to the him yet another adjournment to help adjournment; present the same mem- secure the presence of the accused . bers and the Judge Advocate as on The Court decide to adjourn un27 February, 1987. The Court obtil 0900 h on 2 March 1987. serve that the accused is still not Accordingly, on March 2, 1987 present before the court. when the court re-assembled the acThe Prosecutor submits that decused was present, the charge was spite the best eorts including takhanded over to him and he asked for ing help from the various civil agenadjournment for 15 days and on adcies to locate the accused he has not

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Union Of India v. Major General Madan Lal Yadav 1996 Even if narrow interpretation is plausible, on the facts in this case, we have no hesitation to conclude that the trial began on February 25, 1987 on which date the Court Martial assembled, considered the charge and the prosecution undertook to produce the respondent who was found escaped from the open detention, before the Court. It is an admitted position that GCM assembled on February 25, 1987. On consideration of the charge, the proceedings were adjourned from day to day till the respondent appeared on March 2, 1987. It is obvious that the respondent had avoided trial to see that the trial would not get commenced. Under the scheme of the Act and the Rules, presence of the accused is a precondition for commencement of trial. In his absence and until his presence was secured, it became dicult, may impossible, to proceed with the trial of the respondent-accused. In this behalf, the maxim nullus commodum capere potest de injuria sua propriameaning no man can take advantage of his own wrong - squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123 [2]. In Brooms Legal Maximum [10th Edn.] at page 191 it is stated it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness of the rule being manifest, we proceed at once to show its

vice it was adjourned to March 18, 1987 on which day the respondent informed the court of his ling the writ petition and the assurance given by the counsel appearing for the appellants in the High Court not to proceed with the trial. Accordingly, it was adjourned pending Writ Petition No.301 of 1987, the subject of this appeal. It would thus be clear that the respondent having escaped from the open military detention caused adjournment of the trial beyond February 28, 1987 to secure the presence and arrangement of the respondent at the trial by GCM. Our conclusion further gets fortied by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV Conditions requisite for initiation of proceedings containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with trial before a Court of Sessions pursuant to committal order under Section 209 and in Chapter XIX trial of warrant-cases by Magistrates containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the oence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the oence and taking further steps to conduct the trial.

279 application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium quoerit qui in legem committit. He relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee put him in prison, the bond is void. At page 193, it is stated that it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. At page 195, it is further stated that a wrong doer ought not to be permitted to make a prot out of his own wrong. At page 199 it is observed that the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed. The Division Bench of the High Court has recorded the nding that the respondent has absconded from open military detention. From the narration of the facts it is clear that the respondent was bent upon protracting preliminary investigation. Ultimately, when the GCM was constituted, he had challenged his detention order. When he was unsuccessful and the trial was to begin he escaped the detention to frustrate the commencement of the trial and pleaded bar of limitation on and from March 1, 1987. The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus commodum capere potest de injuria sua propria squarely applies to the case and he having done the wrong, cannot take advantage of his own wrong and plead bar of limitation to frustrate the lawful trial by a competent GCM. Therefore, even on the narrow interpretation, we hold that continuation of trial from March 2, 1987 which commenced on February 25, 1987 is not a bar and it is a valid trial. It is next contended that trial of the respondent at this distance of time is not justiciable. In support of this contention, reliance is placed by Shri Bobde on Devi Lal & Anr. v. The State of Rajasthan [(1971) 3 SCC 471] wherein the High Court had conrmed the conviction under Section 302 read with Section 34, IPC and sentence for imprisonment for life. This Court found that the prosecution had not proved as to which of the two persons had opened the re as found by the Sessions Court and the distinction between Section 149 and 34, IPC was not clearly noticed by the Sessions Court and the High Court. When retrial was sought for by the prosecution, this Court rejected the contention on the ground that retrial at such a belated stage was not justiable. The ratio has no application to the facts in this case. Therein, the trial was proceeded with and when the accused was convicted by the Sessions Court and conrmed by the High Court, this Court found that the prosecution had not established the case in accordance with law and had not proved the guilt be-

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Union Of India v. Major General Madan Lal Yadav 1996 ducted by GCM at Delhi. We nd no equity in this behalf. The witnesses are at Pune; records are at Pune, and the oence has taken place at Pune. Therefore, the GCM should be conducted at Pune. We nd no justication in shifting the trial to Delhi. The appeal is accordingly allowed. The judgment of the High Court is set aside. The writ petition stands dismissed. The appellants are at liberty to secure the presence of the respondent; it would be open to the respondent to surrender himself to closed military detention; and the respondent would keep him in detention and conduct the trial as expeditiously as possible.

yond reasonable doubt. Under those circumstances, this Court had rightly declined to order retrial. But the ratio does not t into the facts of this case. It is seen that the respondent had frustrated the trial by escaping from detention and reappeared after the limitation for trial of the oence was barred. Therefore, acceptance of the contentions would amount to putting a premium on avoidance. We nd ourselves unable to agree with the view expressed by the Assam High Court in Gulab Nath Singh v. The Chief of the Army Sta [1974 Assam LR 260]. It is next contended that since the respondent had surrendered himself, trial could be con-

Chapter 21

Major Kadha Krishan v. Union Of India 1996


Major Kadha Krishan v. Union Of India & Ors on 25 March, 1996 Equivalent citations: 1996 SCC (3) 507, JT 1996 (3) 650 Author: M Mukherjee Bench: M M.K. JUDGMENT M.K. MUKHERJEE, J. Leave granted.

The appellant was a permanent Commissioned Ocer of the Indian PETITIONER: Army holding the substantive rank MAJOR KADHA KRISHAN of Major. While he was posted at v. the Military Farm in Jullunder City he was served with a notice dated RESPONDENT: September 10, 1990 issued under the UNION OF INDIA & ORS. directions and on behalf of the Chief DATE OF JUDGMENT: of the Army Sta calling upon him 25/03/1996 to show cause why his services should not be terminated under Section 19 BENCH: of the Army Act, 1950 (Act for MUKHERJEE M.K. (J) short) read with Rule 14 of the Army BENCH: Rules, 1954 (Rules for short) for MUKHERJEE M.K. (J) the misconducts he was found to have committed during his tenure as G.B. PATTANAIK (J) the Ocer in-charge of the Military CITATION: Farm, Jaipur. The misconducts are 1996 SCC (3) 507 JT 1996 (3) 650 set out in paragraph 3 of the no1996 SCALE (3)241 tice but as they are not germane for the purpose of this appeal, it is not ACT: necessary to detail them. The reaHEADNOTE: sons which prompted the Chief of the JUDGMENT: Army Sta to take recourse to the

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Major Kadha Krishan v. Union Of India 1996

above provisions of the Act and the passing the above order the learned Rules are contained in paragraph 4 Judge rstly held that the appellant of the notice, which reads as under: was made a scape goat for the lapses And whereas the Chief of the and delinquencies of others. As reArmy Sta is further satised that gards the applicability of Section 19 your trial for the above misconduct of the Act and Rule 1 of the Rules is impracticable having become time the learned Judge concurred with the barred by the time the court of in- submissions of the appellant relying quiry was nalized and he is of the principally upon the Division Bench opinion that your further retention in judgment of the Delhi High Court in Lt. Col. (T.S.) H.C. Dhingra service is undesirable. v. Union of India & Anr. 1988 In due course the appellant (2) Delhi lawyer 109. In appeal preshowed cause against his proposed ferred by the respondent - Union of termination of services but it did India a Division Bench of the High not nd favour with the authorities. Court set aside the above judgment Hence, on their recommendations, of the learned Single Judge and disthe Central Government issued an missed the writ petition of the appelorder on February 28, 1992 terminatlant. The Division Bench held that ing the service of the appellant. Agthe view taken by the Delhi High grieved thereby the appellant led a Court in H.C. Dhingras case (supra) writ position before a learned Judge was not correct and that proceedings of the Rajasthan High Court. In asunder Section 19 of the Act read with sailing the order of termination the Rule 14 of the Rules could be taken principal ground that was raised by even after the expiry of the period of the appellant was that the provisions limitation prescribed under Section of Section 19 of the Act and Rule 14 122 of the Act. The ndings of fact of the Rules could not be inverted recorded by the learned Single Judge as the period of limitation prescribed in favour of the appellant were also under Section 122 of the Act for holdupset. The above order of the Diviing his trial by a Court Martial was sion bench is under challenge in this long over. Besides, it was contended appeal. that the satisfaction of the authoriTo appreciate the contentions ties that it was impracticable to hold the trial was not obtained in accor- raised by Mr. Ramachandran in supdance with Rule 14. The appellant port of the appeal it will be approprialso denied that he was guilty of ate to rst refer to the relevant provithe misconducts alleged in the no- sions of the Act and the Rules. Sectice and gave out his defence against tion 19 of the Act reads as under: Subject to the provisions of this the same. The learned Judge allowed the writ petition, quashed the or- Act and the rules and regulations der under challenge and directed that made thereunder the Central Govthe appellant be reinstated in service ernment may dismiss or remove from with all consequential benets. In the service, any person subject to

283 this Act. tunity to show cause in the manner The other section of the Act specied in sub-Rule (2) against such which need reproduction is Section action: 122 which, at the material time, Provided that this sub-rule shall stood as under: (1) Except as pro- not apply vided by sub- section (2), no trial by (a) when the service is termicourt martial of any person subject nated on the ground of conduct to this Act for any oence shall be which has led to his conviction by a commenced after the expiration of a criminal court; or period of three years from the date (b) where the Central Governof such oence. ment is satised that for reasons, to (2) The provisions of sub-section be recorded in writing, it is not ex(1) shall not apply to a trial for an pedient or reasonably practicable to oence of desertion or fraudulent en- give to the ocer an opportunity of rollment or for any of the oences showing cause. mentioned in Section 37. (2) When after considering the (3) In the computation of the pe- reports on an ocers misconduct, riod of time mentioned in sub- sec- the Central Government, or the tion (1), any time spent by such per- Chief of the Army Sta is satised son as a prisoner of war, or in enemy that the trial of the ocer by a court territory, on in evading arrest after martial is inexpedient or impracticathe commission of the oence, shall ble, but is of the opinion that the furbe excluded. ther retention of the said ocer in (4) No trial for an oence of de- the service is undesirable, the Chief sertion other than desertion on ac- of the Army Sta shall so inform the tive service or of fraudulent enroll- ocer together with all reports adment shall be commenced if the per- verse to his had he shall be called son in question, not being an ocer, upon to submit, in writing, the exhas subsequently to the commission planation. of the oence, served continuously (emphasis supplied) in an exemplary manner for not less Mr. Ramachandran rst conthan three years with any portion of tended that one of the requisites to the regular Army. invoke the summary procedure enRule 14 of the Rules, so far as it visaged under Rule 14 (2) to termiis relevant for our present purposes, nate the services of an ocer by the reads as follows: Central Government in exercise of its Termination of service by the powers under Section 19 of the Act Central Government on account of is to obtain a satisfaction that his misconduct - (1) When it is proposed trial by a Court Martial is inexpeto terminate the service of an ocer dient or impracticable. Such a satisunder Section 19 on account of mis- faction, according to Mr. Ramachanconduct, he shall be given an oppor- dran, can be arrived only at a time

284

Major Kadha Krishan v. Union Of India 1996 must therefore be held that so long as an Ocer can be legally tried y a Court Martial the concerned authorities may, on the ground that such a trial is not impracticable for inexpedient, involve Rule 14 (2). In other words, once the period of limitation of such a trial is over the authorities cannot take action under Rule 14 (2). While passing the impugned order the Division Bench however did not at all consider, while interpreting Rule 14 (2), the import of the words impracticable or inexpedient as appearing therein and proceeded on the basis that since Section 127 of the Act (since repealed) permitted trial even after a conviction or acquittal by a Court Martial, it necessarily meant that the Rule could be pressed into service even after the period of limitation. It appears that in making the above observation the High Court did not notice that Section 127 relates to a trial by a criminal court and not Court Martial and speaks of a stage after the trial by the letter is over. The matter can be viewed from another angle also. So far as period of limitation of trials by Court Martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its sub-section (1) the period of limitation for such trials but species in sub-section (2) thereof the offences in respect of which the limitation clause would not apply. Since the term of the above section is absolute and no provision has been made under the Act for extension of time like Section 473 Criminal Procedure Code - it is obvious that any trial commenced after the period of lim-

when trial by a Court Martial is permissible or possible. As in the instant case, admittedly, such a trial was barred by limitation under Section 122 of the Act the above Rule could not be invoked. We nd much substance in the above contention of Mr. Ramachandran. It is not in dispute that at the time the impugned notice was sent, no trial of the appellant by Court Martial could be held for sub-section (1) of Section 122 (as it then stood) clearly envisaged that it should not be commenced after expiration of three years from the date of commission of the oence which in the instant case was about 7 years prior to the issuance of the notice, indeed, as seen earlier, in the notice itself it is stated that the trial had become time barred. When, the trial itself was legally impossible and impermissible the question of its being impracticable, in our view cannot or does not arise, Impracticability is a concept dierent from impossibility for while the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice. According to Websters Third New International Dictionary impracticable means not practicable; incapable of being performed or accomplished by the means employed or at command. Impracticable presupposes that the action is possible but being to certain practical diculties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of inexpedient as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. It

285 itation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act, done in exercise or powers conferred under a Rule. Mr. Ramachandran was, therefore, fully justied in urging that power under Rule 14 of the Army Rules could not be exercised in a manner which would get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power it would clearly be ultra vires. We are therefore in complete agreement with the observations made by the Delhi High Court in H.C. Ohinuras case (supra) that in purported exercise of administrative power Under Rule 14, in respect of allegations of misconduct tribal by Court Martial, the authorities cannot override the statutory bar of subsection (1) of Section 122 of the Act for no Administrative act or at can discard, destroy or annul a statutory provision. The other contention of Mr. Ramachandran was that the satisfaction with regard to inexpediency or impracticability of a trial by Court Martial must be only on a consideration of the reports of misconduct. According to Mr. Ramachandran if on a perused of the reports the authorities found that the nature of misconduct or the context in which it had been committed were such that it was impracticable or inexpedient to hold the Court Martial, the procedure under rule 14 might be resorted to. In other words, Mr. Ramachandran submitted, the satisfaction regarding the inexpediency or impracticability to hold a Court Martial must ow from the nature and the context of the misconduct itself and not from any extraneous factor which in the instant case was that the Court Martial proceedings would be time barred. This contention of Mr. Ramchandran is also, in our view, indefensible. As noticed earlier, Rule 14 (2) opens with the words when after considering the reports on an ocers misconduct, the Central Government, or the Chief of the Army Sta is satised.......... It is evident, therefore, that the satisfaction about the inexpediency or impracticability of the trial has to be obtained on consideration of the reports on the ocers misconduct. That necessarily means, that the misconduct and other attending circumstances relating thereto have to be the gole basis for obtaining such a satisfaction. The purport of the above Rule can be best understood by way of an illustration. The Chief of Army Sta receives a report which reveals that an Army Ocer has treacherously communicated intelligence to the enemy - an Oence punishable under Section 34 of the Act. He however nds that to successfully prosecute the ocer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit in the interest of the security of the State. In such an eventuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be impracticable and/or inexpedient. But to dispense with a trial on a satisfaction doctors the misconduct - like

286

Major Kadha Krishan v. Union Of India 1996 and restore that of the learned Single Judge. The appeal is thus allowed with costs which is assessed at Rs. 10,000/-.

the bar of limitation in the present case - will be wholly alien to Rule 14 (2). For the foregoing discussion we set aside the impugned order of the Division Bench of the High Court

Chapter 22

Major R.S. Budhwar v. Union Of India 1996


Major R.S. Budhwar v. Union Of India & Ors on 8 May, 1996 JUDGMENT: WITH Equivalent citations: 1996 AIR CRIMINAL APPEAL No. 625 of 2000, JT 1996 (5) 39 1996. Author: M Mukherjee. (Arising out of SLP (Crl.) No. Bench: M M.K. PETITIONER: MAJOR R.S. BUDHWAR v. RESPONDENT: UNION OF INDIA & ORS. DATE 08/05/1996 BENCH: BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J) CITATION: 1996 AIR 2000 JT 1996 (5) 39 1996 SCALE (4)269 ACT: HEADNOTE: OF 2126 of (1994) Mahavir Singh V. Union of India WITH CRIMINAL APPEAL NO. 626 OF 1996 JUDGMENT: (Arising out of SLP (Crl.) No. 2138 of 1994) Inder Pal Singh V. Union of India JUDGMENT M.K. MUKHERJEE. J. The above appeal and the two Special Leave Petitions were directed to be heard together as they relate to one and the same incident but having to the facts regard to the facts

MUKHERJEE M.K. (J)

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Major R.S. Budhwar v. Union Of India 1996

that over that incident two separate trials were held by General Court Martial (GCM for short), assailing their verdicts two independent writ petitions were led and the Delhi High Court dismissed them by two separate judgments, which are under challenge herein, we have heard them one after the other and proceed to dispose of them accordingly. CRIMINAL APPEAL NO. 1194 OF 1195

the ndings and sentences recorded against him be not conrmed. The GOC-in-C Eastern Command however rejected that petition and conrmed the ndings and sentences of the GCM. He then led another petition in accordance with Section 164 (2) of the Act which was rejected by the Central Government. The appellant then approached the Delhi High Court with a petition under ArtiArmy Act COMMITTING A cle 226 of the Constitution of India CIVIL OFFENCE, THAT IS TO which was also dismissed. Hence this SAY Section 69 ABETMENT OF appeal. AN OFFENCE SPECIFIED IN Mr. Lalit, the learned counsel apSECTION 302 OF INDIAN PE- pearing for the appellant, rst conNAL CODE, IN CONSEQUENCE tended that there being not an iota OF WHICH ABETMENT SUCH of evidence in the proceedings of the OFFENCE WITH COMMITTED, G.C.M.to indicate that L/NK Inder CONTRARY TO SECTION 109 Pal Singh and Sep. Mahavir Singh READ WITH SECTION 34 OF IN- (the petitioners in the two special DIAN PENAL CODE. leave petitions) committed the murin that they together, at Field, ders of the two ocers mentioned in on or before 14 June, 1987, abetted the charge the High Court ought to No. 3173368H Sep (L/nk) Inder Pal have held that the ndings of the Singh and No. 3174523 L. Sep Ma- G.C.M. as recorded against the aphavir Singh, both of 8 JAT to com- pellant were perverse. While on this mit murders of IC 14807N Colonel SS point, Mr. Lalit however fairly conSahota and IC 28739H Major Jaspal ceded that having regard to the limSingh of the same unit, which was ited scope of enquiry the High Court committed in consequence of such exercises while sitting in its extraabetment by the said Sep (L/NK) ordinary writ jurisdiction it was difInder Pal Singh and Sep. Mahavir cult for him to assail the nding rcorded by the G.C.M. that the apSingh. pellant had instigated the above two The GCM found the appellant persons to commit the murders on and one of the other two (since the ground that it was based on no dead) guilty of the above charge and evidence, but he strenuously urged awarded them punishment of impristhat mere proof of the said fact could onment for life and cashiering. Agnot in any way saddle the appellant grieved thereby the appellant prewith the oence of abetment of the sented a petition under Section 164 commission of the murders, in ab(1) of the Army Act, 1950 (Act sence of any evidence whatsoever to for short) wherein he prayed that

289 prove that they actually committed the murders, and, that too on being instigated by the appellant. The other point that was raised by Mr. Lalit was that even if it was assumed that there was some evidence to connect the appellant with the oence alleged against him as furnished by Inder Pal Singh and Mahabir Singh, even then the GCM, which functions as a judicial Tribunal, ought not to have relied upon ths same, in absence of any independent corroboration thereof, as such evidence was adduced by the two assailants mentioned in the charge, who were undoubtedly accomnplices. Mr. Goswami, learned cuunsel appearing for the respondents on the other hand contended that ib could not be said that there was no evidence to cnnnect the appellant with the charge leveiled against him and, therefore, this Court would nut be justied in interfering with the ndings of the G.C.H.even if it, on its, own appraisal, found the evidence to be insucient or unreliable. In responding to the other contention of Mr. Lalit, Mr. Goswami rst drew our attention to Section 133 ot the Act which makes, subject to its provisions, Evidence Act, 1872 applicable to a]l proceedings before a Court Martial and contended that in view of section 133 thereof (Evidence Act), a conviction based on the uncorrcborated testimony of an accomplice could not be held to be illegai. However, Mr. Goswami submitted that in the instant case there was ampie material to corroborate the evidence of the accomplices. In the context of the rival stands of the parties the crucial point that falls for our consideratinn is whether there is any evidence to prove that Inder Pal Singh and Mahavir Singh committed the murders of Col. S.S. Sahola, the Commanding Ocer and major Jaspal Singh, Second-in-Command of 8, JAT Unit (hereinafter referred to as CO and 2IC respectively) on June 16, 1987 as alleged by the prosecution. If this question is to be answered in the negative, then the fact that there is evidence to prove that the appellant had instigated them to commit the murder - which is conceded by Mr. Lalit also - would be redundant; and, resultantly, the impugned order of the G.C.M. would have to be quashed. To nd an answer to the above question we have carefully gone through the evidence adduced during the G.C.M. proceedings. On perusal of the evidence of Mahavir Singh (PW 10 ) and Inder Pal Singh (PW 16), the two accomplices, who, admittedly were the most important witnesses for the prosecution, we nd that they rst spoke of the orders they had earlier received from the appellant and others to commit the two murders. In narrating the incident of the fateful day, both of them stated that at or about 12 noon they went towards the oce of CO and 2IC with arms and ammunitions. After moving some distance together, Mahavir Singh went towards the oce of CO and Inder Pal Singh towards that of 2IC. According to Mahavir Singh, enroute he met L/NK Ranbir Singh (PW 21) who asked him why he had come there. Mahavir Singh then red one round towards him, who im-

290

Major R.S. Budhwar v. Union Of India 1996 during crial PW 10 testied: It is correct that I alongwith L/NK Inder Pal Singh had killed the CO and 2IC on the orders of accused No. 1 (the appellant). He further stated: It is correct that accused No.1 appellant) had asked me a question as to with what aim I was trying to implicate him in this case and I had replied that I was not trying to implicate him in any case and he had given a task which I had aacomplished.

mediately caught hold of the muzzle of his (Mahavirs) rie. Mahavir Singh next stated what at that point of time, rapid re came from the drill shed side towards the COs jonga which was standing there. Simultaneously, he (Mahavir Singh) red one round which injured Ranbirs hand and he fell down. The version of Inder Pal Singh (PW 16) as regards the ring is that when he reached the oce of the 21C he found that he was not there. He then went towards the oce of the Adjutant. On the way he heard sounds of ring. When he reached the oce of Adjutant he could not see clearly as to who were inside as the room was dark and windows were covered with curtains. Through the window he saw a Captain sitting inside and talking to some one, who might be 2IC. He then red several rounds in the air. In the meantime Mahavir Singh came there and told him to run away. Then both of them ran towards the jungle.

Then again when asked about what he knew about the loss of grenades of the Unit he said the grenades were stolen to kill CO and 2IC. He also stated that he has already been sentenced to be hanged for committing the murders of CO and 2IC for obeying the orders of Major Sahib (the appellant). Again in cross-examination he testied that his job was to eliminate CO and 2IC. The other piece of his evidence, which clearly indicates that he had Drawing our attention to the committed the murders on the instiabove statements of the two accom- gation of the appellant, reads as unplices, Mr. Lalit argued that as nei- der: ther of them admitted to have comOn 18 June 87, after 1600 hrs. mitted the murders it must be said I and L/NK Inder Pal surrendered that the nding of the G.C.M. That to Hav Nav Rattan of my unit near the appellant was guilty of the charge Kambang Bridge. We have also surlevelled against him was perverse rendered our arms to him. We were being based on no evidence. We made to sit in a 1 Ton vehicle of our are unable to accept the contention unit. After some time one capt. of of Mr. Lalit for, later on in his ev16 Madras alongwith a guard of 3-4 idence P.W.10 fully supported the OR came to the 1 Ton vehicle. 2 or charge levelled against the appellant 3 OR sat with us in the vehicle. The - though PW 16 did not - and there guard Commander remained outside is other circumstantial evidence on the vehicle. The rst ocer of my record to substantiate the prosecuunit to come the site of surrender tion case. On being examined further was Maj Lamba. He had come in

291 a RCL and it was parked ahead of 1 Ton vehicle. He wished him Ram Ram while his vehicle crossed 1 Ton vehicle. He replied by saluting but did not speak anything. After about half an hour of our surrender, accused No.1 came to us to the 1 Ton vehicle. He was looking as if he had come running and he was perspiring. When he came close to us, we wished him Ram Ram. He came further close to us and patted me on my back and said Shabash Kam Kar Diya, Chettri Sahib or Doctor Sahib Ko Kiyon Rager Diya meaning thereby,well done, the job has been done, why Chettri Sahib and Doctor Sahib killed. In view of the above testimony of P.W.10 it cannot at all be said that he did not support the charge levelled against the appellant. It is of course true that PW 10 is an accomplice but from the proceedings of the trial we nd that the Judge Advocate in his closing address properly explained to the GCM the value of the evidence of an accomplice with reference to Section 133 and Section 114 (Illustration b) of the Evidence Act. If inspite of such explanation the GCM found the appellant guilty it could not be said that its nding was perverse. This apart, the following circumstances proved through other witnesses amply corroborate the evidence of P.W. 10: i) on 16 June, 1987 both Inder Pal Singh and Mahavir Singh were found going towards the main oce building with ries and some rounds of ammunitions. While Mahavir Singh went towards the oce of the CO, Inder Pal Singh went towards the oce of the 2IC: ii) Near COs oce when NK Ranbir (PW 21) caught hold of the muzzle of the rie of Mahavir Singh he red or round as a result of which Ranbir sustained an injury on his hand and fell down unconscious. After regaining his senses when he went to the oce of the CO he found him lying on the ground near his revolving chair gasping for breeth; iii) After the ring incident Mahavir Singh and Inder Pal Singh together ran away towards the jungle along with their arms and ammunition; iv) Both of them surrendered on June 18, 1987 with their ries and ammunitions which were seized and sent to Forensic Science Laboratory, Calcutta for examination; v) On examination it was found that ten cartridges cases were red through one of those ries bearing Regd. No 9744 which was issued to Inder Pal Singh and two cases were red through the other rie, bearing. Regd No.7343 which was issued to Mahavir Singh, in the morning of June 16, 1987: vi) While sitting in the oce of Adjutant, Major Chandal (CW 1) saw through the window Ranbir Singh holding the muzzle of a rie. At that moment he heard another bullet being red from the side of his back. He than ducked down on the table with face downward and saw, through the window, Inder Pal Singh ring about 10 to 15 rounds. After the ring had stopped when he came out of the oce of the CO he found him lying in a reclining position against the wall and he was

292

Major R.S. Budhwar v. Union Of India 1996 302 Field Ambulance. The two appellants were also attached to the above unit. By its order dated December 10, 1988 the GCM held them guilty of the above oences and sentenced each of them to death. Aggrieved thereby they presented petitions under Section 164 (1) of the Army Act (Act for short) wherein they prayed that the ndings and sentence of the GCM be not conrmed. Those petitions were rejected and the ndings and sentence recorded against thems were conrmed. The appellants thereafter led another petition under Section 164 (2) of the Act which was also rejected. They then moved the Delhi High Court with a petition under Article 226 of the constitution of India wherein they conned their challenge to the sentence imposed upon them on the ground that the GCM did not take into consideration the mitigating circumstances while awarding the punishment. In resisting the petition, the respondents contended that having regard to the fact that the appellants committed the murders in a planned manner they deserved the sentence of death. The High court rejected the contention of the appellants and for that matter their writ petition with the following observations: The question of sentence has to be decided by taking into account the aggravating circumstances as well as mitigating circumstances and then drawing a balance. The manner in which the crime was commited, the weapons used and brutality or lack of it are some of these relevant consid-

badly injured and gasping for breath; and vii) Dr. Senewal, (PW 15) who held post mortem examination on the dead bodies of CO and 2IC found injuries on their persons which, in his opinion, were caused by bullets and resulted in their deaths. When the above circumstantial evidene is considered along with the evidence of P.W.10 the conclusion is irresistable that it is not a case of no evidence but one of sucient evidence . The ndings of the GCM not having been assailed in any other court, the conviction and sentence of the appellant is well merited. We therefore hold that there is no merit in this appeal. It is accordingly dismissed. CRIMINAL APPEAL NO .......OF 1996 OUT OF SLP (CRL .NO.2126 OF 1994) AND CRIMINAL APPEAL NO.....OF 1994 (ARISING OUT OF S.L.P.(CRL.) NO.2158 OF 1994) Leave granted in both the petitions, limited to the question of sentence. Sep Mahavir Singh and L/NK Inder Pal Singh the appellants in these two appeals, were tried by the General Court Martial (GCM) for committing the murders of four Army Ofcers, namely, Col.S.S. Sahota, Major Jaspal Singh, Captain B.K. Chottri and Captain A. Srivastava on June 16, 1987. Of them Col. Sahota was the Commanding Ocer, Major Jaspal Singh was the Second-inCommand and Captain Chottri was an ocer attached to 8 JAT Unit while Captain Srivastava belonged to

293 erations to be borne in mind. Due regard is to be given both to the crime and the criminal. This was a case of killing of a Commanding Ocer, an Ocer Second in Command and two other ocers. The Commanding Ocer in an Army Regiment is like a father of his subordinates. The contention that the petitioners had good service record and had no advantage in killing these ocers and they had killed these ocers on instigation of major Budhwar cannot be accepted in the present petition as without going into these aspects but assuming two views on question of sentence were possible, it is not for this court to substitute its view for that of the authority under the Act. It cannot be held that the view of authorities in awarding death penalty was in manner perverse. We may notice that according to respondents life sentence was imposed on Major Budhwar as he was charged for abetment whereas petitioners were actual perpetrators of the crime. Hence these two appeals. Drawing inspiration from the judgment of this Court in Triveniben & ors. v. State of Gujarat & Ors. 1989 (1) SCR 509, wherein this Court has held that undue and prolonged delays occurring at the instance of the executive in dealing with the petitions of convicts led in exercise of their legitimate right is a material consideration for commuting the death penalty, the learned counsel for the appellants submitted that the appellants were entitled to the commutation of their sentence as it took the respondent more than three and half years to dispose of the petitions presented by the appellants under sub-sections (1) and (2) of section 164 of the Act. On going through the record we nd much substance in the above grievance of the appellants. Following the death sentence pronounced by the GCM on December 10, 1988 the appellants led their application under sub-section (i) of Section 164 on December 31, 1988 which was disposed of on February 13, 1991, that is, after a period of more than two years and one month. Thereafter the appellants moved their petition under subsection (2) of Section 164 on March 7, 1991 and this petition was disposed of after a delay of more than one year and six months. The total delay therefore, comes to more than three years and seven months; and needless to say during this period the appellants were being haunted by the shadow of death over their heads. No explanation is forthcoming for these unduly long delays and therefore, the appellants can legitimately claim consideration of the above factor in their favour, but, then, it has also been observed in Trivenibens case (supra), relying upon the following passage from the earlier judgment of this Court in Sher Singh v. State of Punjab (1983) 2 SCC 344: The nature of the oence, the upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which

294

Major R.S. Budhwar v. Union Of India 1996 of circumstances as they happened to be present at the time of the incident. Another mitigating factor which in our opinion calls for commutation of the sentence is that Major Budhwar who alongwith another ocer (since dead) masterminded the two murders were awarded life imprisonment whereas the appellants who carried out their orders have been sentenced to death. In dealing with this aspect of the matter the High Court however observed, as noticed earlier, that the appellants committed the oences while the ocers were only abettors. In our considered view in a case of the present nature which relates to a disciplined force as the Army, the oence committed by the ocers who conceived the plan, was more heinous that of the appellants who executed the plan as per their orders and directions. It is of course true that those orders being not lawful the appellants, even as disciplined soldiers, were not bound to comply with the same nor their carrying out such order minimised the offences but certainly this is a factor which cannot be ignored while deciding the question of sentence. Another factor which persuades us to commute the sentence is the post murder repentance of the appellants who not only surrendered before the authorities within two days but also spoke out the truth in their confessional statements. In fact, but for their confessional statements the Ocers, who were the masterminimize, could not have been brought to book. None of the mitigating circumstances, as noticed by us above, were taken into consideration by the

must enter into the verdict as to whether the sentence should be vacated for the reseon that its execution is delayed. that such consideration cannot be divorced from the dastardly and diabolic circumstance of the crime itself. Having given our anxious consideration to all aspects of this case in the light of the above principles we feel that the appellants do not deserve the extreme penalty of death, notwithstanding the fact that two of the murders, namely, that of the Commanding Ocer and Second-inCommand were diabolically planned and committed in cold blood. From the record, particularly the confessions made by the two appellants which formed the principal basis for their conviction we nd that the appellants did not commit the above two murders on their own volition prompted by any motive or greed much less, evincing total depravity and meanness. Indeed, it was the case of the respondents themselves at the GCM - which has been accepted by us also in the earlier appeal, that Major R.S. Budhwar alongwith other Ocers of the Unit of the appellants instigated and compelled them to commit the above two murders by exploiting their religious feelings. The record further indicates that initially the appellants declined to take any step towards the commission of the oences but ultimately they succumbed to the threat, command and inuence of their superiors. So far as the murders of the other two ocers are concerned we nd that they became the unfortunate victims

295 High Court. It was obliged to consider both the aggravating and the mitigating circumstances and therefore by ignoring consideration of the mitigating circumstances, the High Court apparently fell in error. For the foregoning discussion we allow those appeals and commute the sentence of death imposed upon each of the appellants to imprisonment for life, for the conviction recorded against them.

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Major R.S. Budhwar v. Union Of India 1996

Chapter 23

Anuj Kumar Dey & Anr vs Union Of India 1996


Anuj Kumar Dey & Anr vs Union Of India & Ors on 28 November, 1996 Author: Sen Bench: J Verma, S C Sen PETITIONER: ANUJ KUMAR DEY & ANR. v. RESPONDENT: UNION OF INDIA & ORS. DATE 28/11/1996 BENCH: J.S. VERMA, SUHAS C. SEN ACT: HEADNOTE: JUDGMENT: (With Writ Petition (C) No. 831 of 1993 and Writ Petition (C) Nos. 293, 752 & 601 of 1994) JUDGMENT SEN, J. Anuj Kumar Dey, the appellant herein, joined Indian Navy as Articer Apprentice on 12th August, 1971. OF JUDGMENT: On 17th August, 1971 the statutory oath of allegiance was administered to him. He claims that his service in the Indian Navy must be calculated from that date, that is, 17th August, 1971. ON 11th August, 1975 the appellants training as Articer Apprentice was over. Immediately thereafter, he was advanced to Electrical Articer Vth Class on 12th August, 1975. Various promotions were given to the appellant thereafter from time to time. On 31st January, 1988 the appellant was released from the Nay. The dispute in this case is about the entitlement of the appellant to get pensionary benets for his service under the Navy. According to the appellant, he has served the Navy for more than fteen years which must be counted from 17th August, 1971 when he was administrated oath of allegiance. According to the respondents, the four years spent by the appellant as Articer Apprentice was training period only and, therefore, the service of the appellant commenced only on 12th

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Anuj Kumar Dey & Anr vs Union Of India 1996 ordinate ocers shall be appointed by commission granted by the President. (3) Subordinate ocers shall be appointed in such manner and shall hold such rank as may be prescribed. 11. (1) Save as otherwise provided in this Act, the terms and conditions of service of sailors, the person authorised to enrol for service as sailors and the manner and procedure of such enrolment shall be such as may be prescribed. (2) No person shall be enroled as a sailor in the India Navy for a period exceeding twenty years in the rst instance; 12. Where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as a sailor, he shall be deemed to have been duly enrolled and shall not thereafter be entitled to claim his discharge on the ground of any irregularity or illegality in his engagement or any other ground whatsoever; and if within the said three months such person claims his discharge, no such irregularity or illegality or other ground shall, until such person is discharged in pursuance of his claim eect his position as a sailor in the naval service or invalidate any proceedings, act or thing taken or done prior to his discharge. 13. Every ocer and every sailor shall, as soon as may be, after appointment or enrolment make and subscribe before the commanding ofcer of the ship to which he belongs, or the prescribed ocer on oath or af-

August, 1975 when he was appointed Electrical Articer Vth Class, after completion of his training as Articer Apprentice on 11th August, 1975. The question is whether this period of four years, 17.8.71 to 11.8.75 during which the appellant was undergoing training as Articer Apprentice under the Navy, should be counted in the period of service rendered by the appellant. Before going into the merits of the case, it will be necessary to refer to the relevant provisions of the Navy Act, 1957 and also to some of the Regulations framed under the said Act:THE NAVY ACT, 1957 CHAPTER - I PRELIMINARY 3. In this Act, unless the context otherwise requires:(16) ocer means a commissioned ocer and includes a subordinate ocer but does not include a petty ocer; (17) petty ocer means a sailor rated as such and includes a chief petty ocer and a master chief petty ocer (20) sailor means a person in the naval service other than an ocer; CHAPTER - IV COMMISSIONS, APPOINTMENTS AND ENROLLMENTS 9. (1) No person who is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government: 10. (1) Ocers other than sub-

299 rmation in the following form that be furnished by the prescribed ois to say:cer with a certicate in the language I........... do swear in the name which is the mother tongue of such of God/solemnly arm that I will sailor and also in the English lanbear true faith and allegiance to the guage sating forthConstitution of India as by law established and that I will, as in duty bound, honestly and faithfully serve in the naval service and go wherever ordered by sea, land or air, and that I will observed and obey all commands of the President and the commands of any superior ocer set over me, even to the paril of my life. 14. Liability for service of ocers and sailors-(1) Subject to the provision of sub-section (4), ocers and sailors shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly discharged, dismissed, dismissed with disgrace, retired, permitted to resign, or released. 15. Tenure of service of ocers and sailors.-(1) Every ocer and sailor shall hold oce during the pleasure of the President. 16. Discharge on expiry of engagement. Subject to the provisions of Section 18, a sailor shall be entitled to be discharged at the expiration of the term of service for which he is engaged unless17. (1) A sailor entitled to he discharged under section 16 shall be discharged with all convenient speed and in any case within one month of his becoming so entitled: (4) Every sailor who is dismissed, discharged, retired, permitted to resign or released from service shall (a) the authority terminating his service; (b) the cause for such termination; and (c) the full period of his service in the Indian Navy and the Indian Naval Reserve Forces. Apart from the aforesaid provisions of the Navy Act, by Section 184 the Central Government has been empowered to make regulations in respect of, inter alia, the terms and conditions of service, the pay, the pensions, allowances and other benets of persons in the naval service, including special provision in this behalf during active service. In exercise of this power, the Central Government has framed the regulations called the Navy (Pension) Regulations, 1964, Service in the Indian Navy. Chapter III of the Regulations deals with Sailors. In this Chapter, Regulation 69(2) deals with Service Pension and Gratuity of the Sailors. Regulation 78 lays down, Unless otherwise provided, the minimum service which qualies for service pension is fteen years. Regulation 79 is important for the purpose of this case and lays down. All service from the date of enrolment or advancement to the rank of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity. Regulation 261 deals with

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recruitment and provides:-

For 1st Good Conduct Badge ... 4 years. 261. RECRUITMENT - (1) The Chief of Naval Sta may recruit For 2nd Good Conduct Badge ... sailors required for the service. 8 years. (2) recruitment of sailors shall be made through boy entry, articer apprentice entry and direct entry as necessary. The recruitment shall be carried out by the Recruitment Organisation established for the purpose and by any other authority as may be decided upon by the Chief of the Naval Sta from time to time. Persons authorised to enrol sailors, the manner, procedure and terms and conditions of enrolment shall be as laid down in the appropriate Regulations. for 3rd Good Conduct Badge ... 12 years. The rst question in this case is whether the appellant can be regarded as a Sailor. The argument on behalf of the respondents has been that the appellant was undergoing training as an Articer Apprentice. He could not be treated as a Sailor during this period of training. It was only when he was advanced to Electrical Articer Vth Class after completion of his training that he became a Sailor.

Regulations 290 and 291 are also Various provisions of this Act and important for the purpose of this case the regulations set out hereinabove, and are as under:do not support this contention. The 290. AWARD OF GOOD CON- denition of sailor, as given in Section 3(20), is of wide amplitude and DUCT BADGE GOOD CONDUCT BADGE means person in the naval service shall not be awarded or restored as other than an ocer. The provia matter of course merely because sions of Sections 9, 10 and 11 of the a man has avoided serious punish- Act go to show that an ocer, who ments. If the Captain is satised that is not a subordinate ocer, is apa man is fully qualied in accordance pointed by commission granted by with regulations 291 to 293 and sub- the President. Subordinate ocers regulation (1) of regulation 294 and may be appointed in the prescribed is deserving of the award a badge manner, but the sailors are enrolled shall be conferred, when due, under in the Navy. The Chapter Heading provisions of this regulation. The is Commissions. Appointments and maximum number of bedges that a Enrollments. Section 13 lays down sailor may earn during his service that every ocer and every sailor shall, as soon as may be possible afshall be three. ter appointment or enrolment, make 291. SERVICE QUALIFICAand subscribe an oath on armation TION - (1) Before a sailor can be in the prescribed form. considered for the award of a Good These statutory provisions go to Conduct Badge, he must have comshow that a person can join Indian pleted the following periods:

301 Navy as an ocer or a sailor. An ocer and a petty ocer have been dened in subsections (16) and (17) of Section 3 and any person who is other than an ocer and is in naval service has been dened as a sailor. The appellant was not an ocer. He had joined Indian Navy and immediately after his enrolment he was made to take oath which every ofcer and every sailor under Section 13 is bound to take. Moreover, Regulation 261 clearly lays down that recruitment of sailors shall be made through boy entry, articer apprentice entry and direct entry as ocer. Therefore, the fact that the appellant was enrolled as an Articer Apprentice, does not in any way go to show that he was not a sailor and was not serving the Navy as a sailor. Section 12 lays down that where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as Sailor, he shall be deemed to have been duly enrolled. Now, there is no dispute that the appellant had received pay regularly after his enrolment. It has been contended on behalf of the respondents that the appellant was allowed an allowance during the term of the training. The case of the appellant is that he used to get a xed pay during the period of the training. The fact that he used to get a xed pay does not go to show that he did not receive pay regularly after his enrolment. The position becomes even clearer if a reference is made to Section 13 which provides that every ocer and every Sailor shall as soon as may be after the appointment or enrolment make and subscribe an oath or armation in the prescribed form. This is something which only an ocer or a Sailor is required to do. There is no dispute that the appellant was administered oath. This could only be done under the Act if he was either an ocer or a Sailor. If the contention of the respondents that the appellant was not even a Sailor during the period of training, then it has not been explained why he was administered oath. The next objection was that even if the appellant could be treated as a sailor, he could not be said to have been in the service of the Navy during the period of training. This argument is also unacceptable in the facts of the case and in view of the provisions of the Act and the Regulations. In the prescribed form of oath that was administered to the appellant, he had to swear .......I will, as in duty bound, honestly and faithfully serve in the naval service ........... It is clear that the appellant was enrolled as a Sailor, took oath as a Sailor and drew salary as a Sailor and was in the service of the Navy as a Sailor during the period of undergoing training as Articer Apprentice. The qualifying period for earning pension is service of 15 years under the Navy. having regard to the facts of the case and the documents annexed to the appeal, there is little doubt that the training period as Articer Apprentice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that all service from the date of enrolment or advancement to the rank

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Anuj Kumar Dey & Anr vs Union Of India 1996 There is another document described as Certicate of the Service where Period of Engagement has been shown as twelve years (from 16.8.75 to 15.8.1985 and from 16.8.85 to 31.1.1988). On behalf of the respondents, strong reliance has been placed on this document. However, this document does not say that the appellant was in service for twelve years only. This is an entry in a column headed Period of engagement. In fact, in the very next page of that document, details of the service of the appellant and Substantive Rank held by him have given. There, it has been shown that the appellant was serving in the ship VALSURA in the Substantive Rank Art. (App) from 12th August, 1971 to 27th November, 1973. It has also been recorded in that document that the oath of allegiance was taken on 18th August, 1971. In the column headed Good Conduct Badges, it has been shown that the appellant was awarded Good Conduct Badges in August, 1975, August, 1979 and August, 1983. That document was given to show Character and Eciency on 31st December yearly, on nal discharge and other occasions prescribed by regulation. It appears that in the yearly column on and from 31st December, 1971 to 31st December, 1988 (the date of discharge), every year the appellants character has been certied as V.G. (Very Good). Under Regulation 291, these badges can be awarded only after completion of four years (rst badge). 8 years (second badge) and 12 years (third badge) of service. It has been laid down under Regulation

of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Articer Vth Class. In fact, the Discharge Certicate issued by the Navy to the appellant is to the following eect ad puts the matter beyond any doubt:- This is to certify that ANUJ KUMAR DEY, CHIEF ELECTRICAL ARTIFICER (AIR), NO. 052264-H has served in the Indian Navy from 12 AUGUST 1971 to 31ST JANUARY, 1988 as per details overleaf. This is a statutory certicate which has to be given under subsection (4) of Section 17 of the Navy Act. The discharge Certicate must state the full period of service in the Indian Navy. According to the calculation made by the Navy itself, this period of service is more than the qualifying period of 15 years. Not only that. In the details that had been given along with the Discharge Certicate, it has been mentioned that Joined on 12th August, 1971. released on 31st January, 1988. The Date of Attestation in the Indian Navy is given as 17th August, 1971 (Oath of allegiance taken). This is a certicate given by the Indian Navy in accordance with requirement of Section 17.

303 290 that the maximum number of was drawn to a judgment of Andhra badges that a sailor may earn during Pradesh High Court in the case of his service shall be three. H.S. Sarkar v. Union of India & Ors. All these facts and the various 1994 (2) An W.R. 221, where it was provisions of the Act and the Regu- held that it does not stand to reason lations leave no room for doubt that that when the training period of four the appellant even during the period years is reckoned for the purpose of he was working as Articer Appren- computation of 15 years for retiring tice was in the service of the Navy, a person., the same is not reckoned was given Good Conduct Badges for for the purpose of pension........ Paythis service and four years service ment of only a consolidated pay durwas counted from the year 1971. ing the training period and not regThe Discharge Certicate which is a ular scale of pay is immaterial in so statutory document clearly records far as the computation of the period that he has served in the Indian is concerned. Navy from 12th August, 1971 to 31st January, 1988. The respondents after granting all these certicates and badges, cannot be heard to say that the appellant had not put in the qualifying period of service of fteen years and, therefore, was not entitled to get pension. Our attention We are of the view that the Division Bench of the High Court was in error in holding that the period of four years when the appellant was employed Articer Apprentice could not be counted for computation of the qualifying period of pension.

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Chapter 24

Union Of India And Others v. Major A. Hussain 1997)


Union Of India And Others v. Major A. Hussain, IC-14827 on 8 December, 1997 Author: D Wadhwa. Bench: S V Manohar, D Wadhwa missing their appeal against judgment date April 25, 1991 of the learned single Judge of that High Court whereby the learned single Judge allowed writ petition led PETITIONER: by the respondent and quashed UNION OF INDIA AND OTHthe court martial proceedings held ERS against him including the conrmav. tion of sentence passed upon him by the court martial. RESPONDENT: A General Court Marital (GCM) MAJOR A. HUSSAIN, IC-14827 DATE OF JUDGMENT: under the Army Act, 1950 (for short the Act) was convened to try the re08/12/1997 spondent holding the rank of Major BENCH: in the army on the following charge: SUJATA V. MANOHAR, D.P. Charge Sheet WADHWA The accused IC-14827F Major ACT: Arshad Hussain, 225 Ground Liaison HEADNOTE: Section Type C attached to AOC Centare, an ocer holding a perJUDGMENT: manent commission in the Regular JUDGMENT Army, is charged with :D.P. Wadhwa. J. Army Act AN ACT PREJUDIAppellants are aggrieved by the CIAL TO GOOD ORDER AND judgment dated February 21, 1994 of MILITARY Section 63 DISCIthe Division Bench of the High Court PLINE, of Judicature: Andhra Pradesh dis-

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tence passed against the respondent at Field, between 17 Sep 84 was conrmed by the conrming auGround Liaison Section Type C, thority as required under the Act. lost by neglect twelve (12) pages of The respondent challenged his the Commanders Operational Brief conviction and sentence in a writ petaken on charge at Serial 115 on tition led by him in the High Court the Incoming TOP SECRET Regis- which, as noted above, allowed the ter of HW 150 Inf Bde which were en- same and quashed the court martial trusted to in for safe custody. Place: proceedings and conrmation of senSecunderabad Sd/tence against the respondent. The Date: 14 Aug 87 (Gautam Mitra ground which appealed to the High Court in setting aside the court mar) tial proceedings and subsequent conBrig rmation of sentence may be stated Commandant from the judgment of the of the single Judge which is as under: AOC Center The Petitioner has been denied To be tried by General Court a reasonable opportunity to defend Martial. Station: Madras - 9 Sd/Dated: 25 Aug 87 (Deepak Se- himself by not communicating the conclusion reached in Rule 22 Inhdev) Colonel quiry as contemplated by Army OrColonel A der 70/84. In the proceedings unFor General Ocer Commanding der Section 22 by not supplying the copies of statements in earlier court Andhra Tamil Nadu Karnataka of Inquiry: (i) during General Court and Kerala Area. Martial by not giving assistance of Section 63 of the Act reads as un- a defending ocer of his choice; (ii) der; 63. Any person subject to that not providing him load which was alAct who is guilty of any or omis- ready sanctioned to manage a new sion which, though not specied in counsel as the earlier counsel engaged this act, is prejudicial to good order by him had retired for no fault of and military discipline shall, on con- the petitioner; (iii) by not providviction by court martial, be liable to ing him the documents for which he suer imprisonment for a term which had made a request to the convenmay extend to seven years or such ing authority long before assembly of less punishment as is in this Act men- the Court Martial and for which his tioned. counsel had also made a request. After conclusion of the GCM proNow to understand if the High ceedings the respondent was held Court rightly exercised its power of guilty of the charge and was sen- judicial review of the court martenced to be dismissed from service tial proceedings, we may refer to a by order dated December 26, 1987 of few relevant facts and briey to the the General Court Martial. The sen- court martial proceedings. In the

in that he,

307 year 1984 respondent was serving as Ground liaison Ocer in a Brigade which was situated somewhere in Rajasthan in close proximity of international border with Pakistan. One Major P.C.Bakshi was also posted a Brigade Major in that Brigade. Brig. A.S. Bains was the commander of the Brigade. Major Bakshi was on annual leave with eect from 17.9.84 to 16.11.84 but before proceeding on leave he handed over certain classied documents to the respondent. Under provisions of Handing of Classied documents, the secret/top secret documents are to be in safe custody of an ocer not below the rank of Major. Accordingly, Brig. Bains ordered the respondent to take charge of classied documents from Major Bakshi which classied documents the respondent took over charge and duly signed the handing/taking over of these documents by signing a certicate to that eect. When Major Bakshi rejoined from his annual leave, he was required to take back the charge of classied documents from the respondent. When handing/taking over was commenced it was discovered that 12 pages of Top Secret documents were missing. A detailed search was carried out but the documents could not be traced and a report of this fact was communicated to all concerned in accordance with laid procedure. Major Bakshi declined to take charge and under orders of Brig. Bains the charge of the documents was ordered to be handed over to one Major D.K. Sharma, Deputy Assistant and Quarter Master General in the Brigade, which he did. it is stated that these Top Secret documents contained vital information adversely aecting the security of the country as these documents reected deployment of troops along the international border with Pakistan. In accordance with Army Rules 1954 framed under Section 191 of the Act sta court of inquiry was ordered under Rule 177 to investigate the loss, apportion blame and to suggest remedial measures to prevent such loss occurring in future but the court of injury, however, failed to give any denite ndings. Additional court of inquiry was ordered which examined additional witness. Appellants submitted that respondent was aorded full opportunity to be present throughout the proceedings in the court of inquiry in accordance with Army Rule 180 and for submitting anything in his defence. The Court of Inquiry apportioned blame on the respondent and it was recommended to initiate disciplinary proceedings against him. In accordance with Rule 22(1) of the Army Rules read with Army Order No. 70/84 respondent was brought before the Commanding Ofcer on April 8, 1985 and hearing of the charge was conducted in the presence of Major. D.K. Sharma. Summary of Evidence was recorded by Lt. Col. B. P. Singh from April 15, 1985 onwards in which the respondent participated. He cross-examined witnesses during the recording of Summary of Evidence. The respondent did not complain about the non-supply of the Court of Inquiry proceedings which were provided to him before the commence-

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ment of the General Court Martial High Court in that writ petition in accordance with Army Rule 184. in any detail, except to note that The Commanding Ocer of the Court Martial proceeding was interrespondent requested the trial of the rupted though ultimately the stay respondent by General Court Mar- granted by the High Court was vatial which was approved by the con- cated. The General Court Martial vening authority. The respondent assembled on September 14, 1987 was informed that he would be tried and on being arraigned the responby General Court Martial and was dent pleaded not guilty to the advised to submit a list of defence charge. Thereafter General Court witnesses as well as his choice for Martial was adjourned. a defending ocer. The respondent instead proceeded on leave for sixty days with eect from 10.6.85 to 8.8.85 which was granted. He did not rejoin his duty and instead got himself admitted in Military Hospital in Secunderabad which the appellants contend was to avoid the trial by General Court Martial. The appellants complain that the respondent adopted tactics to delay the commencement of the General Court Martial. He led a writ petition (No. 17828/86) in the Andhra Pradesh High Court at Hyderabad. The High Court by order dated August 3,1987 directed the appellants to post the respondent at Secunderabad. Respondent was thus attached to AOC Center at Secunderbad. He was supplied with copy of the chargesheet, copy of the Court of Inquiry proceeding and summary of evidence. He was also informed that General Court martial was likely to be convened by August 28, 1987. The respondent again moved the High Court by ling another writ petition (No. 12561/87) and obtained an order staying the General Court Martial proceeding. It is not necessary to refer to proceedings in the For the purpose of recording of evidence, General Court Martial resembled on November 30, 1987. In the absence of the Judge advocate, it was adjourned to the following day. On December 1, 1987, the record shows that defending ocer stated that full facilities in accordance with the Army Act, Army Rules and Regulations for the Army had been aorded to the respondent in the preparation of his defence and that the respondent had also been given full opportunity to consult and confer with him as also his defence counsel. The respondent had engaged the services of a civilian defence counsel the respondent was given an advance of Rs. 10,000/- on his request by the Army authorities. The Court also recorded submission of the defence counsel that all papers pertaining to preparation of defence of the respondent as requested earlier on August 24, 1987 and of which reminder was also sent on November 26, 1987 be made available to the defence counsel for proper conduct of the defence of the case. During the course of the proceedings, it was submitted by the defence counsel that a copy of the Summary of Evidence recorded

309 against the respondent, a copy of the court of enquiry proceedings and a copy of the additional court of enquiry proceedings had been received by the respondent in due time an that he had no grievance to that extent. He, however, submitted that there were some other documents which had not been made available to the respondent and as a result he was unable to conduct the defence case eectively. Proceedings of the court martial, however, show that whatever documents the respondent had asked for, he was given opportunity to inspect the same and in spite of the documents being made available to the respondent and his defence counsel, no attempt was made to inspect the same. We nd that most of the documents which the respondent had asked for were quite irrelevant to the proceedings. During the course of the proceedings of the Court martial, respondent had submitted certain applications which were duly considered by the General Court Martial and orders passed. We nd that full opportunity was granted to the respondent to conduct his case and proceedings could not be more fair. However, request of the defence counsel for a long adjournment wad declined. His submission that the court martial proceedings were being conducted with great haste had no basis. On one day only one witness was being examined and his cross-examination was being deferred at a request of the defence counsel himself. Court Martial was convinced for the trial of the respondent. It was not a regular court in the sense that where many cases are xed and adjournments granted. Under Army Rule 82, when a court is once assembled and the accused has been arraigned, the court shall continue the trial from day-to-day in accordance with Rule 81 unless it appears to the court that an adjournment was necessary for the ends of justice or that such continuance is impracticable. That the defence counsel had other case to attend to would hardly be a ground to adjourn the court martial. At one stage in midst of the case, the defence counsel withdrew. Grievance of the respondent that since further advance of Rs. 15,000/- was not given to him to engage another defence counsel, he could not eectively defend his case found favour with the High Court. The High Court, however, failed to take notice of the fact that the respondent was not entitled to any advance for the purpose of engaging the defence counsel and earlier as a special case an advance of Rs.10,000/- had been sanctioned. No Rule or Army Instruction has been shown under which the respondent was entitled to an advance. The respondent refused to cross-examine the witnesses on the specious ground that services of defence counsel were not made available to him due to paucity of funds. We noted that during the curse of enquiry proceedings, the respondent himself extensively cross-examined the witnesses. It is not therefore possible to accept the submission of the respondent that due to lack of funds he could not engage the services of a defence counsel particularly when during the course of court martial pro-

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ceedings, he knocked the doors of the legally qualied. prosecution examHigh Court thrice. ined Six witness including Major. On being asked by the convening P.C. Bakshi, Lieutenant colonel A.K. ocer respondent had given names of Sharma and Brigadier A.S. Bains three ocers one of whim he wanted and also brought on record various to be his defending ocer. A de- documents. The respondent was also fending ocer is to be provided to examined by the Court. In the abthe respondent in terms of the Army sence of any cross-examination by Rule 95. The services of none of the respondent, the court itself put the named ocers could be provided several questions to the witnesses in to the respondent due to exigency of the nature of cross-examination. services and particularly when the ofcers belonged to the Judge Advocate General branch and were not available. The names of the ocers which the respondent gave were (1) Maj. Gen. A.B. Gorthi, (2) Brig. Mohinder Krishan and (3) Lt. Col. R.P. Singh. It was submitted before us that though there is no bar in the Rules to provide the services of an ocer of the JAG Branch as a defending ocer but as a general policy it is not done. That would appear to be a sound policy considering the nature of functions and duties of an ocer of JAG Branch when appointed to a court martial as hereinafter mentioned. Moreover we nd that General Court martial was presided over by an ocer of the rank of Colonel. The respondent was asked to give the name of any other ocer to be appointed as his defending ocer but he declined to do so. The appellants provided the services of three defending ocers one after the other but the respondent declined to avail of their services and did not give them right of audience. All the three ocers were of the rank of lieutenant Colonel and two of them were experienced and were At this stage we may refer to the relevant provisions of law. Section 1 of Chapter V of the Army Rules deals with investigation of charges. Under Rule 22 every charge against a person subject to the Act other than an ocer shall be heard in the presence of the accused who shall have the full liberty to cross-examine any witness against him and to call any witnesses and make any statement in his defence. The commanding ocer shall dismiss the cargo brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed. However, if he is of the opinion that the charge ought to be proceeded with, he has four options, one of which is to adjourn the case for the purposes of having the evidence reduced to writing. Under Rule 23 procedure is prescribed for taking down the summary of evidence and statement taken down in writing shall either remand the accused for trial by court martial and in that case apply to the proper military authority to convene a court martial. Under Rule 25 where an ocer is charged with an oence under the Act, the investigation shall, if he requires it, be held,

311 and the evidence, if he so requires, be taken in his presence in writing, in the same manner as nearly as circumstances admit, as is required by Rules 22 and 23 in the case of other persons subject to the Act . Army Order No. 70/84 which deals with hearing of a charge by the commanding ocer may be set out as under : AO 70/84 Discipline: Hearing of a 3. It may be claried that the charge at this stage is a Tentative charge which may be modied after the hearing or during the procedure as described in Army Rule 22 (3) (c) or during examination after completion of the procedure under Army Rule 22(3) (c), depending on the evidence adduced. Further, as long as the Commanding Ocer Charge by the commanding O- hears sucient evidence in support of the charge cer. (s) to enable him to take ac1. Discipline process under the tion under sub-rules (2) and (3) of Military law commences with Army Rule 22 which lays down that ev- Army Rule 22, it is not necessary at ery charge against a person subject this stage to hear all possible prosto the Army Act, other than an ecution witnesses. As a matter of ocer, shall be heard in the pres- abundant caution it would be desirence of accused. The accused shall able to have one or two independent have full liberty to cross- examine witnesses during the hearing of the any witness against him. This is a charge(s). mandatory requirement and its nonobservance will vitiate any subsequent disciplinary proceedings. In the case of ocers, the rule becomes equally mandatory if the accused ofcer requires its observance under Army Rule 25. 2. It is, therefore, incumbent on all Commanding Ocers proceeding to deal with a disciplinary case to ensue that Hearing of Charge enjoined by Army Rule 22 is scrupulously held in each and every case where the accused is a person other than an ocer and also in case of an ocer, if he is so requires it. In case an accused ocer does not require Hearing of the Charge to be held, the Commanding Ocer may, at his discretion, proceed as described in Army Rule 22(2) or Army Rule 22(3). 4. After the procedure laid down in Army Rule 22 has been duly followed, other steps as provided in Army rules 23 to 25, shall be followed both in letter and spirit. It may be claried that the statutory requirements of Army Rules 22 to 25 cannot dispensed with simply because the case had earlier been investigated by a court of Inquiry where the accused person (s) might have been afforded full opportunity under Army Rule 180. Army Rules 180 and 184 which fall in chapter VI of Army Rules relating to Courts of Inquiry are as under : 180. Procedure when character of a person subject to the Act is involved.- Save in the case of a prisoner of war who is still absent, whenever any inquiry aects the character or military reputation of a person

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Union Of India And Others v. Major A. Hussain 1997) persons shall be entitled to a copy of the proceedings of a court o inquiry including any report made by the court on payment for the same of a sum not exceeding eight annas for every two hundred words:(a) any person subject to the Act, who is tried by a court martial in respect of any matter or thing which has been reported on by a court of inquiry, or (b) any person subject to the Act, whose character or military reputation is, in the opinion of the Chief of Army Sta aected by anything in the evidence before, or in the report of a court of inquiry, unless the Chief of the Army Sta sees reason to order otherwise. Under Rule 95 in any General Court Martial an accused person may be represented by any ocer subject to the Act who shall be called the defending ocer. Sub-rule (2) of Rule 95 Casts duty on the convening ocer to ascertain whether the accused person desires to have a defending ocer assigned to represent him and if he does so desire, the convening ocer shall use his best endeavors to ensure that the accused shall be so represented by a suitable ocer. This sub-rule (2) is as under:

subject to the Act, full opportunity must be aorded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion, aects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding ocer of the Court shall take such steps as may be necessary to ensure that any such person so aected and not previously notied, receives notice of and fully understands his rights, under this rule 184. Right of certain persons to copies of statements an documents:(1) any person subject to the Act who is tried by a court martial shall be entitled to copies of such statements and documents contained in the proceedings of a court of Inquiry, as are relevant to his prosecution or defence at his trial.

(2) Any person subject to the Act whose character or military reputation is aected by the evidence before a court of Inquiry shall be entitled to copies of such statements and documents as have a bearing on his character or military reputation as aforesaid, unless the Chief of the (2) It shall be the duty of Army Sta for reasons recorded by the convening ocer to ascertain him writing, orders otherwise. whether an accused person desires Present Rule 184 was substituted to have a defending ocer assigned by SRO 44 dated January 24, 1985 to represent him at his trial and, if and prior to its substitution Rule 184 he does so desire, the convening ofreads as under: cer shall use his best endeavors to 184. Right of certain persons to ensure that the accused shall be so copies of proceedings.- The following represented by a suitable ocer. If

313 owning to military exigencies, or for any other reason, there shall in the opinion of the convening ocer be no such ocer available for the purpose, the convening ocer shall give a written notice to the presiding ofcer of the Court Martial, and such notice shall be attached to the proceedings. irregularity in the proceedings. Whether consulted or not, he shall inform the convening ocer and the court of any informality or defect in charge, or in the constitution of the Court, and shall give his advice on any matter before the Court.

(4) Any information or advice given to the Court, on any matter Under Rule 96 a civil coun- before the Court shall, if he or the sel can also be allowed in General Court desires it, be entered in the Court Martial to represent the ac- proceedings. cused subject to his being allowed (5) At the conclusion of the case, but he convening ocer which in the he shall sum up the evidence and give present case was done and the achis opinion upon the legal bearing of cused was represented by a counsel the case, before the Court proceeds of his choice. to deliberate upon its nding. Judge Advocate administers path (6) The Court, n following the to the members of t he court martial opinion of the judge advocate on a (Rule 47) and he himself be sworn as legal point, may record that it has per the forms prescribed (Rule 46). decided in consequence of that opinIt is he who sums up in an open court ion. the evidence and advise the court (7) The judge advocate has, upon the law relating to the case. If equally with the presiding ocer, the we refer to Rule 105 we ne the powers and duties of the judge advocate. duty of taking care that the accused does not suer any disadvantage in This rule is as under: consequence of his position as such, 105. Powers and duties of judge or if his ignorance or incapacity to exadvocate.- The powers and duties of amine or cross-examine witnesses or judge advocate are as follows:otherwise and may, for that purpose, (1) The prosecutor and the ac- with the permission of the Court, cused, respectively, are at all times Call witnesses and put questions to after the judge advocate is named to witnesses which appear to him necact on the Court, entitled to his opin- essary or desirable to elicit the truth. ion on any question of law relative to (8) In fullling his duties, he the charge or trial whether he is in or judge advocate must be careful to out of Court, subject, when he is in maintain and entirely impartial poCourt to the permission of the Court. sition. (2) At a Court Martial, he repreNo fault could be found with the sents the Judge Advocate General. recording of summary evidence. Re(3) He is responsible for inform- spondent has been unable to show if ing the Court of any informality or there was any non-compliance with

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Union Of India And Others v. Major A. Hussain 1997)

the provisions of Rules 22, 23 and 24 and Army Order No. 70/84. We have been referred to two decisions of the Supreme Court in Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. [(1982) 3 SCC 140] and Major G.S. Sodhi v. Union of India [ (1991) 2 SCC 382] laying the scope of the provisions regarding recording of summary of evidence. In G.S. Sodhis case this Court with reference to Rules 22 to 25 said that procedural defects, less those were vital and substantial, would not aect the trial. The Court, in the case before it, said that the accused had duly participated in the proceedings regarding recording of summary of evidence and that there was no agrant violation of any procedure or provision causing prejudice to the accused.

of Inquiry. This Court considered the judgment in Major G.S. Sodhis case and observed that supply of a copy of the report of enquiry to the accused was not necessary because proceedings of the court of enquiry were in the nature of preliminary enquiry and further that rules of natural justice were not applicable during the proceedings of the court of enquiry though adequate protection was given by Rule 180. This Court also said that under Rule 177, a court of inquiry can be set up to collect evidence and to report, if so required, with regard to any matter which may be referred to it. Rule 177, therefore, does not mandate that a court of inquiry must invariably be set up in each and every case prior to recording of summary of evidence or conProvisions of Rules 180 and 184 vening of a court martial. As noted above, when none of the had been complied. Rule 184 does to postulate that an accused is entitled three ocers who were all from JAG to a copy of the report of court of in- Branch could be made available to quiry. Proceedings before a court of the respondent as defending ocer inquiry are not adversarial proceed- he was asked to give the name of any ings and is also not a part of pre- ocer who could be deputed his detrial investigation. In Major General fending ocer. It is not the case of Inder Jit Kumar v. Union of India the respondent that the convening of& Ors. [(1997) 9 SCC 1] this Court cer did not use his best endeavor has held that the Court of Inquiry to ensure that the respondent was is in the nature of a fact-nding en- represented by a suitable defending quiry committee. The appellant in ocer. It was the respondent himthat case had contended that a copy self who declined to give any other of the report of the Court o Inquiry name. Nevertheless the convening ofwas not given to him and the had vi- cer did depute three ocers one aftiated the entire court martial. He ter the other to represent as defendhad relied upon Rule 184 in this con- ing ocer for the respondent. But nection. With reference to Rule 184, the respondent declined to avail their the Court said that there was no pro- services. vision for supplying the accused with We may also refer to Rule 149 a copy of the report of the Court which lays down that a Court Mar-

315 tial would not be held to be invalid even if there was an irregular procedure where no injustice was done. This Rule is as under: Validity of irregular procedure in certain cases - Whenever it appears that a court martial had jurisdiction to try any person and make a nding and that there is legal evidence or a plea of guilty to justify such nding, such nding and any sentence which the court martial had jurisdiction to ass thereon may be conrmed, and shall, if so conrmed and in the case of a summary court martial where conrmation is not necessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding ocer or the convening ocer, provided that the charges have, in fact, before trial been approved by the commanding ocer and the convening ocer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the oender, and where any nding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an path or armation to the interpreter or shorthand writer; but nothing in this rule shall relieve an ocer from any responsibility for any willful or negligent disregard of any of these rules. We nd the proceedings of the General Court Martial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. Rather it would appear that the respondent made all eorts to delay the proceedings of the court martial. Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Services of qualied defending ocer was made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending ocers of his choice but he declined to do so. The court martial had been conducted in accordance with the Act and Rules and it is dicult to nd any fault in the proceedings. The Division Bench said that the learned single Judge minutely examined the record of the court martial proceedings and after that came to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examining the record of the General Court martial as if it was sitting in appeal. We nd that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the oence charged. Though Court Martial proceedings are subject to judicial review buy the High Court under Article 226 of t he Constitution, the Court Martial is not subject to the superinten-

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Union Of India And Others v. Major A. Hussain 1997) not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has been prejudiced or a mandatory provisions has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the Challenge to the validity of conviction and sentence of the accused when evidence is sucient, court martial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its powers to award punishment. After ourselves examining the record of the court martial, we nd that the high Court completely misdirected itself in coming to the conclusion that the respondent was denied reasonable opportunity to defend himself. He was given copies of all the relevant papers and also given opportunity to inspect whatever record he wanted; allowed services of a civilian counsel; special advance was given to engage the services of civil counsel as requested by the respondent; there was no rule to give further advance to engage yet another civil counsel when rst one withdrew; respondent was not hampered by paucity of funds as made out by him; no fault could be found with the covening ocer if the respondent himself did not avail the services of a defending ocer when provided; cross-examination of important witnesses was deferred at the request of the respondent; and he had participated in the recording of Summary of Evidence without

dency of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter and court must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournment have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court Martial remains to a signicant degree, a specialised part of overall mechanism by which the military discipline is preserved. it is for the especial need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an oence under the Act. Court Martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the processions of law relating to Court Martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sucient evidence to sustain conviction, it is unnecessary to examine if pretrial investigation was adequate or

317 raising any objection. The General Court Martial took into consideration all the evidence and other materials produced before it; found the respondent guilty of the charge and sentenced hi