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JUDGEMENT PRESENTS AS UNDER
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
WP(C) 5606/2012
Air Cmde Mrigendra Singh, VSM,
AOC, Adv HQ WAC Jaipur,
Presently attached to 10 Wing AF
C/0 99 APO. - Petitioner
Versus
1. Union of India
Represented by the Secretary,
Ministry of Defence, South Block,
New Delhi - 110011.
2. The Chief of the Air Staff,
Vayu Bhawan,
Integrated HQ of MoD (Air),
DHQ PO. New Delhi – 110011.
3. Air Officer Commanding-in-Command,
Eastern Air Command, C/o. 99 APO.
4. Air Marshall (Retd) S. Varthman,
25, Jalvayu Vihar, Madabakkam,
Chennai – 600126.
Earlier
AOC-in-C, Eastern Air Command,
C/o. 99 APO.
5. Air Vice Marshall K.S. Gill,
Commandant, National Defence Academy,
Khadakwasla, Pune – 411023,
Earlier
SAO, Eastern Air Command,
C/o. 99 APO.
6. Air Vice Marshall HJ Walia,
AOC Advance HQ, EAC, IAF,
Fort William, Kolkata – 700021
Earlier
Presiding Officer,
Service through respondent No.3 at Eastern Air Command,
C/o. 99 APO.
7. Wing Commander Sumit Prasad,
Admn. Officer,
Air Force Station Mohanbari,Page No. 2
WP(C) 5606/2012
C/o. 99 APO.
8. Wing Commander D. Anil Kumar
APM, 19 P & SU,
Air Force Station Chabua,
Dibrugarh, Assam.
9. Air Vice Marshall R.D. Mathur
AD Commander, HQ EAC IAF
Nonglyer, Upper Shillong, Meghalaya.
Earlier
Air Officer Commanding,
16 Wing, Air Force Hashimara, West Bengal. - Respondents
PRESENT
THE HON’BLE MR. JUSTICE I. A. ANSARI
THE HON’BLE MR. JUSTICE P. K. SAIKIA
For the petitioner : Mr. A. Choudhury, Advocate,
Mr. B. Choudhury, Advocate,
For the respondents : Mr. R. Subramaniam, Asstt. SGI,
Mr. R. Sharma, ASG
Date of hearing : 01.08.2013
Date of order : 17.08.2013
JUDGMENT & ORDER
(Ansari, J)
Standing before us, as the petitioner in this writ petition, made
under Article 226 and 227 of the Constitution of India, is a decorated
officer of the Indian Air Force, a recipient of Visistha Sewa Medal,
presently holding the rank of Air Commodore after having served the
Indian Air Force since 1983 as a fighter pilot of the highest caliber with
an impeccable and unblemished service record. The petitioner has
come to this Court, having been unsuccessful in invoking the
jurisdiction of the Armed Forces Tribunal (hereinafter referred to as
‘the AFT’), the petitioner’s grievance being that he is a victim of
harassment, humiliation and persecution in a systematic, concerted
and vindictive manner by the respondents, because the petitioner had
raised his voice against mal-administration and corruption leading to
low quality of construction of Airbase for operation of well known
Sukhoi-SU-30 MKI Aircrafts.
2. The case of the petitioner, leading to filing of the present writ
petition, may, in brief, be set out as under:
(i) The petitioner is a Commissioned officer in the Indian Air
Force (in short, ‘IAF’), the petitioner having joined the IAF as Pilot
Officer in the year 1983. During his service tenure, the petitioner not
only earned appreciation, but has also been awarded ‘Visistha Sewa
Medal’ and Chief of Air Staff and AOC-in-C Commendation cards.
(ii) In the year 2010, the petitioner was posted to 14 Wing as
Air Officer Commanding, at Air Force Station, Chabua, Assam, and he
was entrusted with the task of making the station re-activated for
induction of Sukhoi SU 30 MK-I aircrafts. At the time of petitioner’s
joining the Air Force Station, Chabua, major works of construction,
under Para 35 of the Defence Works Procedure, were in progress and
the petitioner found that the quality of work, performed by the
contractor company, namely, M/S Surface Tech Construction
Company, was not satisfactory. The predecessor-in-office of the
petitioner, dissatisfied with the poor quality of work done by the said
construction company, had already made complaints to the higher Page No. 4
WP(C) 5606/2012
authorities and the petitioner also made several complaints to the
respondent No 5 regarding the poor quality of work, but the
petitioner’s complaints failed to yield any positive response from the
respondent No 5. Thereafter, the petitioner wrote letters addressed to
respondent No. 3 requesting him for a high level inquiry into the said
matter.
(iii) The respondent No. 7 was posted as Assistant Provost
Marshal (hereinafter referred to as ‘APM’). The APM, who heads the
Provost & Security Unit, has the power and duty of ensuring
maintenance of discipline amongst Air Force personnel, preventing
and detecting crimes among service personnel, liaisoning with civil
police, other civil and military authorities and also civilian
organizations. Provost & Security units are the field level functionaries
of the vigilance organization of Air Force and, as such, enjoy wide
powers.
(iv) Consequent upon a complaint made by the Deputy
Commissioner, Dibrugarh, in March, 2011, to the petitioner as regards
unauthorised use of red light beacon by the respondent No 7 in the
civil area, the petitioner had a discussion with respondent No. 7. This
discussion resulted into heated arguments and the respondent No 7
even threatened the petitioner by saying, “You don’t know the powers of
APM, I can ruin your career”. Page No. 5
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(v) Thereafter, the petitioner wrote, at least, four letters to
respondent No. 5 about the insubordinate and improper conduct of
respondent No. 7, but no action was taken against respondent No. 7.
The petitioner, then, vide letter, dated 22.06.2011, brought the matter to
the notice of the then AOC-in-C, Eastern Air Command, and, in
consequence thereof, respondent No 7 was posted out to a nearby
station. The posting out of the respondent No 7 was neither liked by
him nor by the staff of the 19 Provost & Security Unit and the
respondent No 5 even expressed his annoyance on posting out of
respondent No. 7 by telling the petitioner, “M. Singh, you will have to
pay heavily for getting the APM removed”. Thus, the steps, so taken by
the petitioner against respondent No.7, sowed seeds of animosity of the
APM Branch (including respondent No.7 and 8) towards the petitioner.
(vi) The incident, above mentioned, according to the
petitioner, is relevant, because the APM staff, including respondent
No.8, had, thereafter, started victimizing and persecuting the petitioner
by concocting evidence and by pressurizing and threatening people to
give false evidence against the petitioner.
(vii) During the period mentioned above, the petitioner was
busy in making the station fully operational, because of the rising
security threats from a banned terrorist organization, namely, ULFA.
The Air Force Station, Chabua, was visited by many superior officers of
the petitioner and a high level inspection team even appreciated the Page No. 6
WP(C) 5606/2012
station and assessed the station as ‘Average Plus’ in operations,
maintenance as well as administration.
(viii) Apart from the sub-standard quality of work, done at the
said airbase, even the repair works carried out, latter on, by a private
contractor, namely, M/S Surface Tech Construction Company, on the
airfield, was not up to the mark.
(ix) On, thus, finding that even the later repairing works,
carried out by the private contractor, M/s. Surface Tech Construction
Company, on the airfield, was not up to the mark, the petitioner
communicated this aspect of the matter, too, to the respondent Nos.4
and 5 and sent to them, along with his communication, some
photographs to prove that the execution of the contract work was not
of the required level.
(x) No fruitful result was, however, achieved; but this
resulted in damage to, at least, four engines of the said aircrafts
causing loss of hundreds of Crores of rupees to the public exchequer.
The petitioner also requested the authorities concerned to order a high
level enquiry into the sub-standard and slow work carried out at the
said Air Force Station.
(xi) In course of time, the contractor aforementioned had to be
blacklisted and these duties were performed by the petitioner
(according to what the petitioner contends), with all sincerity and not
knowing that there was a nexus between the contractor, in question, Page No. 7
WP(C) 5606/2012
and the Air Force Establishment, at Eastern Command, headed by the
respondent No.4. This apart, only after the damage had been caused to
the four engines of the said aircrafts that a team to assess the situation
visited the Air Force Station, Chabua, and due to poor work by the said
contractor, the SU 30 Squadron had to be moved out for undertaking
the repair work.
(xii) Left with no alternative, the petitioner banned the entry of
the contractor concerned to the Air Force Station, Chabua. The actions
and steps, so taken by the petitioner, not only antagonized the
Contractor, but also the higher authorities in the Air Force
establishment, who had nexus with the Contractor.
(xiii) Describing as to how the petitioner was systematically
harassed, humiliated, victimized, pressurized and persecuted, the
petitioner submits that an anonymous letter, containing allegation
against the petitioner to the effect that the petitioner had been sexually
exploiting his junior officers’ wives, was allegedly received, on
07.03.2012, by the Headquarter, Eastern Command, without, however,
naming any lady in the letter.
(xiv) Closely following the purported anonymous letter,
received by Eastern Air Command, on 07.03.2012, about 90 anonymous
letters were allegedly received, on 04.07.2012, at the Eastern Air
Command, which were addressed to various officers making
allegations of corruption against respondent Nos.4 and 5. The Page No. 8
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respondents contend that the Headquarter, Eastern Command,
forwarded the letters to Air Force Headquarter for consideration and
appropriate action and, in the meanwhile, a preliminary investigation,
conducted in this regard, revealed, according to the respondents, that
these letters were authored and posted by the petitioner, at Guwahati,
on 30.06.2012, when he was going to attend his farewell dinner at
Shillong, but he did not attend the dinner claiming that his wife had,
suddenly, fallen ill.
(xv) The petitioner was, then, transferred, on 10.07.2012, from
14 Wing Air Force Station and left the Station for Jaipur accordingly.
Soon, thereafter, on 16.07.2013, a Court of Inquiry, at Jorhat, was
convened by respondent No.4. The ‘terms of reference’ of the Court of
Inquiry, which had been ordered into the two sets of anonymous
letters, one received against the petitioner and the other received
against respondent Nos.4 and 5, would be taken note of shortly.
(xvi) Suffice it, at this stage, to point out that respondent No. 8
requested the local police to furnish to the respondent No. 8 the call
records of mobile No.9707791027, belonging to one Ms. ‘X’ (name not
disclosed for reasons of propriety), from the local police on 07.03.2012
itself, i.e., the date on which the purported anonymous letter
containing allegation of the petitioner having been sexually exploiting
his junior officers’ wives was claimed to have been received at
Headquarter, Eastern Command. Interestingly enough, respondent Page No. 9
WP(C) 5606/2012
No. 8 had received the anonymous letter from the Headquarter,
Eastern Command, for the purpose of making discreet enquiry only on
09.03.2012, but he had had already requested for the call records of
telephone No. 9707791027, belonging to Ms. ‘X’, from the local police,
on 7.03.2012 itself, though the anonymous letter did not contain name
of any lady or any mobile number. The said telephone number belongs
to one Ms. ‘X’, wife of Wing Commander, J. Singh, with whom the
petitioner was sought to be involved in the Court of Inquiry.
(xvii) The petitioner alleges that respondent No. 8 had, in a preplanned
manner, conspired to malign the image and reputation of the
petitioner by concocting a story of improper relationship between the
petitioner and the said Ms. ‘X’, because the said Ms. ‘X’ used to
frequently visit the house of the petitioner to meet the wife of the
petitioner inasmuch as the petitioner’s wife was the President, while
Ms. ‘X’ was the Secretary of Air Force Wives Welfare Association. The
details of the call records were sought for by respondent No.8
purportedly in exercise of his powers under Section 108 of the Air
Force Act, 1950, though he does not, according to the petitioner, have
such an authority. The obtaining of the call records of an individual by
respondent No.8 amounts to, according to the petitioner, not only a
blatant invasion and breach of privacy of a civilian lady, but also
violation of her fundamental rights and is contrary to Section 108 of the Page No. 10
WP(C) 5606/2012
Air Force Act and, thus, according to the petitioner, the law of the land
was put at the back burner to, somehow, implicate the petitioner.
(xviii)The materials, placed before this Court, also reveal,
submits the petitioner, that Ms. ‘X’ has filed a suit, in Allahabad,
against the respondents, for maligning her reputation by eliciting false
imputations in the Court of Inquiry. The said Ms. ‘X’ has also lodged a
complaint with the National Commission for Women against the
respondents for publicly maligning her character and reputation
without even making an enquiry. Further-more, Ms. ‘X’ has also filed
complaint against the respondents in the Court of Magistrate,
Allahabad. Thus, the respondents started investigation on the
purported anonymous complaint, received against the petitioner, on
07.03.2012, by the Headquarters, Eastern Air Command, and, later on,
through a Court of Inquiry.
(xix) According to the petitioner, the Court of Inquiry is mala
fide, biased, discriminatory and in violation of the procedure, which has
been laid down by the Ministry of Defence, in its Memorandum, dated
22.11.1992, which requires (points out the petitioner), that whenever
the Head of Department/Chief Executive, on a prima facie examination
of an anonymous complaint, takes a decision to pursue further action
as to the verification of facts, mentioned in an anonymous complaint, a
copy of the complaint is required to be, first, made available to the
officer concerned for his comments before taking any action. However, Page No. 11
WP(C) 5606/2012
no such step was taken by the respondents and, in fact, the copy of the
anonymous letter was supplied to the petitioner only on issuance of
charge sheet, dated 26.10.2012, along with copies of the findings of the
Courts of Inquiry. This apart, the Court of Inquiry, according to the
petitioner, is also in violation of Rule 156(2) of the Air Force Rules,
1969.
(xx) Explaining how the petitioner has been harassed by the
violation of the instructions, contained in the Memorandum, dated
22.11.1992, issued by the Ministry of Defence, and how the Court of
Inquiry suffers from mala fide, bias and discrimination, the petitioner
submits that the Court of Inquiry commenced, w.e.f. 19.07.2012, having
the ‘terms of reference’, dated 16.07.2012. In the case at hand, the ‘terms
of reference’, as points out the petitioner, refers to anonymous letters,
one containing allegation against the petitioner to the effect that the
petitioner had been maintaining improper relation with the wives of
his colleagues and the other containing allegations of corruption
against respondents No. 4 and 5.
(xxi) However, while in the case of purported anonymous
letter, allegedly received, on 07.03.2012, containing allegations of the
petitioner’s improper relationship with the wives of his colleagues, the
Court of Inquiry was required to investigate into the veracity of the
allegation made in the anonymous letter, allegedly received on
07.03.2012, the set of 90 anonymous letters, which contained allegationsPage No. 12
WP(C) 5606/2012
of corruption against respondent Nos. 4 and 5, were not required to be
investigated by the Court of Inquiry for the purpose of determining as
to whether the allegations, made therein, were true or not; rather, the
Court of Inquiry was required to determine as to who the author of the
said anonymous letter, making allegation of corruption against
respondent Nos.4 and 5, was.
(xxii) Thus, points out the petitioner, the respondents adopted
double and inconsistent standards, while dealing with the two alleged
anonymous complaints inasmuch as they took the view that the
allegations of corruption, made against respondent Nos. 4 and 5, were
not required to be investigated into and what shall be enquired into
was the authorship of the said anonymous letters. Thus, without
holding any enquiry into the allegations of corruption, made against
respondent Nos.4 and 5, it was decided that the allegations of
corruption, made against the individual concerned, were untrue and
unfounded.
(xxiii)The ‘terms of reference’ were, thus, according to the
petitioner, palpably mala fide, biased and discriminatory inasmuch as
the ‘terms of reference’ did not require the Court of Inquiry to determine
if there was any truth in the allegations of corruption, which had been
made against respondent Nos. 4 and 5 by the said 90 anonymous
letters. Thus, respondent No 4, who was the convening authority of
the Court of Inquiry, became the Judge in his own case, which is Page No. 13
WP(C) 5606/2012
against the principle, “Nemo judex in causa sua”. The Court of Inquiry,
under respondent No 6 as the presiding officer, accordingly,
commenced its proceedings on 19.07. 2012.
(xxiv) The Court of Inquiry examined respondent No 7 as
witness No 1, who deposed that, while working as APM, 19 P&S (U),
he was informed by his staff that the petitioner had been seen with
Mrs. S. Singh during late hours of night in May, 2011. Though the
statements, so given by respondent No. 7, in the Court of Inquiry, were
palpably hearsay, his statements were accepted and despite the fact that
his statements malign the reputation of the petitioner, the petitioner
was not allowed to participate in the Court of Inquiry, which was in
violation of the provisions of Rule 156 (2) of the Air Force Rules,1969,
and also Regulation 790 of the Defence Service Regulations (Air Force)
apart from being in violation of the Memorandum, dated 22.11.1992,
issued by the Ministry of Defence, Govt. of India.
(xxv) Though respondent No 6, acting as Presiding Officer of
the Court of Inquiry, was required to invoke the provisions of Para 790
and Rule 156(2) of the Air Force Rules and give full and effective
opportunity to the petitioner to defend himself, the petitioner was not
accorded any such opportunity and, the respondent No. 6, as the
Presiding Officer, continued to record, on the subsequent days, the
statements of witness Nos. 2 to 6, who were ready to depose against the
petitioner as hearsay witnesses. Page No. 14
WP(C) 5606/2012
(xxvi) After examining six witnesses, the provisions of
Regulation 790 were invoked and the petitioner was accorded an
opportunity to cross- examine such witnesses, but the statements of
these witnesses were already on record, their statements having been
recorded in absence of the petitioner, and, as such, they were bound to
support their own respective statements.
(xxvii) Even from the cross examination of respondent No. 8, as
witness No 6, it transpired that the statement of the witness was false
and despite the fact that the answers to the petitioner’s questions were
refused, though they were very relevant in the matter, no objection, in
this regard, was entertained by the Presiding Officer even after the
request of the petitioner. Conducting of the Court of Enquiry was, thus,
unfair, unreasonable and in violation of the mandatory requirements of
law.
(xxviii) The respondent No. 8, as witness No 6, further
produced the written statement of two other witnesses, who were
never brought before the Court of Inquiry; but their statements,
recorded by the Air Force Police, were only taken on record and no
opportunity was, thus, accorded to the petitioner to cross-examine
these witnesses, whose statements were to be considered by the Court
of Inquiry.Page No. 15
WP(C) 5606/2012
(xxvix) Respondent No. 8, as witness No 6, further produced
the call records of Ms. ‘X’ and that of the petitioner and these call
records were accepted by the Court of Inquiry even without the same
having been authenticated by the service provider nor any service
provider was examined, as a witness, by the Court of Inquiry.
(xxx) The husband of Ms. ‘X’ was examined as witness No. 17;
but he did not make any complaint to the effect that his wife had any
improper relation with the petitioner. Moreover, when asked
specifically by the petitioner, the reply of the witness No 17 clearly
revealed that he was never informed by the Court of Inquiry as regards
the alleged relationship of his wife with the petitioner.
(xxxi) The other incident of having posted 90 anonymous letters,
addressed to various Air Force authorities, in EAC, was investigated
and the Court of Inquiry directly held the petitioner responsible for
posting of the said 90 anonymous letters on the basis of the statement
of one witness, who was a taxi driver, and who had stated that he had
been taken to SP’s office and he had made a statement in front of two
senior Air Force Officers. The said taxi driver had been called by Traffic
In-charge, Sadar Police Station, Shillong, as well as SP (Crimes), for
recording his statements and, thereafter, he was made to give his
statement before the Court of Inquiry. Page No. 16
WP(C) 5606/2012
(xxxii) The petitioner was never provided with the copies of the
said 90 anonymous letters. In fact, all the 90 anonymous letters were
not even produced before the Court of Inquiry. More-over, none of the
individuals/addressees, who had received such letters, was ever called
and examined to substantiate the fact of their having received such
letters.
(xxiii)Further-more, none of the post office staff was examined
by the Court of Inquiry to verify the receipt of such a huge number of
similar kind of envelops, in bulk, in a single clearance, meant for the
same destination. This gives, according to the petitioner, a clear
indication that the story, concocted by the respondents, was preplanned
aiming to harm the petitioner by misusing their powers.
(xxxvi) During the progress of the Court of Inquiry, the
petitioner submitted many letters regarding improper manner in which
the Court of Inquiry had been proceeding, the manner in which the
statements of witnesses had been recorded and the manner in which
their cross-examination was conducted. However, the
respondents/authorities concerned did not pay any heed to the letters,
so submitted by the petitioner, though the Court of Inquiry travelled
beyond the ‘terms of reference’ and investigated many other aspects,
which did not form part of the ‘terms of reference’ for which the Court of
Inquiry had been convened.Page No. 17
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(xxxv) The Court of Inquiry held the petitioner blameworthy in
respect of both the sets of anonymous letters.
(xxxvi) During the currency of the Court of Inquiry, which we
have referred to above, the petitioner was also sent, as a witness, to
record his statement in another Court of Inquiry, held at 16 Wing
Hashimara, regarding incident of suicide of one Corporal Ram
Swaroop Bishnoi. It is the petitioner’s contention that in the latter
Court of Inquiry, the petitioner was called initially as a witness, but
subsequently, the petitioner was sought to be blamed for allegedly
directing a falsified entry to be made in the Counselling Register even
though the petitioner, as Air Officer Commanding, 14 Wing, Air Force
Station, Chabua, had no connection with the Counselling process. This
has been done, contends the petitioner, in order to ensure that even if
the petitioner is able to withstand one Court of Inquiry, he can be
crucified in another, and, in fact, the Court of Inquiry, at Hashimara,
by its findings, dated 06.09.2012, blamed the petitioner for giving an
unlawful command.
(xxxvii) In respect of the Court of Inquiry, held at 16 Wing,
Hashimara, the allegation is that there is a false back-dated entry made
in the Counselling Register of the Security Section to show that
Corporal Ram Swaroop Bishnoi (since deceased) was duly counseled
on 17.04.2002 and this false entry was made in the Counselling Register
on the order of the petitioner. Page No. 18
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(xxxviii) The petitioner claims that even the Court of Inquiry, at
Hashimara, smacks of mala fide, because of the manner in which the
proceedings of this Court of Inquiry has also been conducted with predetermined
mind to implicate the petitioner. In this regard, the
petitioner has also pointed out that the Court of Inquiry, at 16 Wing
Hashimara, has been constituted by officers, who were directly under
the chain of command and control of respondent Nos.4 and 5, and the
common charge-sheet, dated 20.06.2012, aforementioned, is an outcome
of the two mala fide Court of Inquiry and this is ex facie illegal
warranting interference of this Court.
(xxxix) So far as the Court of Inquiry, at 16 Wing Hashimara, is
concerned, it needs to be pointed out that the Air Force Order, on
Counselling, clearly lays down the responsibilities in the Counselling
chain and AOC of a base, such as, the petitioner, is no way connected
with this chain and, therefore, the petitioner was not concerned and
had no rational cause to direct any entry to be made in the Counselling
Register. This apart, it is noteworthy that even the then Security
Officer, Wg Cdr D.N. Tiwari (witness No.19), who is alleged to have
been directed by the petitioner to have forged an entry, clearly denied
having got any such orders from the petitioner.
(xxxx) The only witness, based on whose statement, the
petitioner has been roped in, is one Junior Warrant Officer T.B. Sarkar Page No. 19
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(Witness No. 4), who has stated that on 18.06.2012, while leaving the
petitioner’s (Witness No. 22) office, he heard the petitioner instructing
Wg Cdr D.N. Tiwari (Witness No. 19) to make an entry in the said
register.
(xxxxi) With regard to the above, what can not be ignored is that
the said witness No.4 has also stated before the Court of Inquiry, at 16
Wing Air Force, Hashimara, that Wg Cdr V.K. Thakur, Stn Adjd
(Witness No. 18) and Wg Cdr A. Saxena (Witness No. 21) were also
present in the petitioner’s office at that point of time. However, the
said Wg Cdr Thakur has clearly denied that any such instruction was
given by the petitioner to Wg Cdr Tiwari in his presence and Wg Cdr
Saxena, too, has denied that in his presence, any instruction, in respect
of the Counselling register, was given by the petitioner to Wg Cdr
Tiwari.
(xxxxii) However, without assigning any cogent, plausible and
convincing reason, the Court of Inquiry has held the petitioner
blameworthy despite clear statements having been made, at the Court
of Inquiry, as indicated hereinbefore, by the person to whom the
petitioner had allegedly given orders and also by persons in whose
presence, the order was said to have been given.Page No. 20
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(xxxxiii) On the basis of the findings of the said two Courts of
Inquiry, the petitioner was issued, on 26.10.2012, a charge-sheet
containing 12 charges. The said 12 charges also include the charges,
which were beyond the scope of ‘terms of reference’. The petitioner, who
had not been earlier supplied with any of the copies of the said 90
anonymous letters, was given, on 26.10.2012, the charge-sheet along with
the findings of the Court of Inquiry, copy of two letters, out of the 90
alleged anonymous letters, even without their envelops having the
name of any addressee or any post office stamp.
3. In order to, however, enter into the soul of the subject-matter of
controversy, in the present case, let us pause and look into the case of
the respondents. The respondents’ case is, in brief, thus:
(i) An anonymous letter, alleging sexual exploitation of
women, against the petitioner was received, on 07.03.2012, by
Headquarters, Eastern Air Command, and it was decided by the
respondent No. 4, who is the competent authority, to enquire into the
matter.
(ii) On 07.03.2012 itself, oral instructions were sent to
respondent No. 8 from the Headquarters, Eastern Air Command, to
carry out a preliminary investigation and, that is why, respondent No.
8 wrote the said letter to the police, on 07.03.2012 itself, prior to his
receipt of the written instructions, on 09.03.2012, issued, in this regard,
to him by the Headquarters, Eastern Air Command. This apart, since Page No. 21
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respondent No. 8 and respondent No. 7 had prior knowledge, at Air
Force Station, Chabua, of the petitioner’s involvement with the said
lady, the call records of the specific phone number, belonging to the
lady, in question, were asked for by respondent No. 8.
(iii) Pursuant thereto, respondent No. 8 forwarded his report
to the Headquarters, Eastern Air Command, on 30.03.2012. The report,
so submitted, indicated that the petitioner was involved in exceptional
interaction, from his official mobile phone, with Ms. ‘X’, on latter’s
mobile phone and that the petitioner had also procured some SIM
cards from his subordinate employees to maintain contact with the
said lady.
(iv) As the said issue was sensitive, the report was forwarded
to the Air Headquarters for consideration and when the petitioner
came to know about this development, the petitioner was, on the
request of the petitioner, invited by respondent No. 4, on 24.05.2012,
which was more than 2 ½ months after the receipt of the anonymous
complaint and apprised him of the investigation carried out against
him.
(v) On the direction of the competent authority, the petitioner
was posted to Advance Headquarter, Western Air Command (Jaipur)
w.e.f 10.07.2012. In accordance with existing practice, petitioner, being
Air Officer Commanding of an Air Force Station, was invited to
Headquarters, Eastern Air Command, Shillong, on 29.06.2012, for a Page No. 22
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farewell dinner. The petitioner travelled by air from Dibrugarh to
Guwahati taking his wife with him. He also started from Guwahati
Airport for Shillong in a taxi. However, in the evening, he gave a call
expressing his inability to attend the dinner due to ill-health of his
wife. The petitioner returned to Dibrugarh on 30.06.2012.
(vi) The entire matter was deliberated upon and Air
Headquarters advised the Eastern Air Commander to order Court of
Inquiry to investigate the contents of the anonymous letter, dated
07.03.2012, and also to identify the author of anonymous letters written
against AOC-in-C, EAC, as well as intent and motive behind writing
such a letter. The Court of Inquiry accordingly assembled, on
19.07.2012, and continued its proceeding till 29.08.2012. A total of 50
witnesses were examined by Court of Inquiry. The proceedings have
been conducted meticulously in accordance with Air Force laws.
(vii) On the conclusion of the enquiry, the Court of Inquiry
blamed 5 Air Force personnel for various acts of omissions and
commissions. They were provided due opportunity in terms of Para-
790 of the Air Force Regulations, 1969, to present their case before the
Court of Inquiry. The Court of Inquiry also found the petitioner
blameworthy on 12 counts.
(viii) The Court of Inquiry, according to the respondents,
conducted the proceeding strictly in compliance of the various
provisions contained in Air Force Act and the Rules framed thereunder Page No. 23
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and, thus, the proceedings, in question, its finding as well as all
subsequent actions cannot be set aside and quashed, though the
petitioner has so sought for.
(ix) Neither the Office Memorandum, dated 22.11.1992, nor
Rule 156 2(2) has any application to the present proceeding conducted
by the Court of Inquiry. The proceedings, at hand, contend the
respondents, were required to be conducted under Para by 790 (C) Air
Force Regulations, 1969.
(x) Regarding the poor quality of work at Air Force Station,
Chabua, the respondents claim that the petitioner himself was incharge
at the final stage of the said project and he raised complaints
about the poor quality of work at the said Air base only after he came
to know that a preliminary investigation had been ordered against him
so as to ascertain his improper relationship with the wives of
subordinate officers and, thus, the plea of poor quality of work, carried
out at the said Air base, had been raised by the petitioner only to
deflect the attention of authority concerned from the inquiry, which
had been initiated against him.
(xi) Moreover, a set of 90 anonymous letters, addressed to
various officers, were received, on 04.07.2012, at Headquarters, Eastern
Air Command, containing allegations of corruption against respondent
Nos. 4 and 5. The Headquarters, Eastern Air Command, forwarded
the letters to the Air Headquarters for consideration and appropriate Page No. 24
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action. The preliminary investigation, according to the respondents,
indicated that those letters were also posted by the petitioner, at
Guwahati, on 03.06.2012, when he was to attend his farewell dinner, at
Shillong, but which he did not attend claiming that his wife had,
suddenly, fallen ill. As regards the Court of Inquiry at 16 Wing,
Hashimara, the respondents insisted that it was on the basis of the
materials available before the Court of Inquiry that the findings against
the petitioner has been rendered.
4. Countering the case, as set up by the respondents, the petitioner
submits that the relevant provision, which govern the present
proceeding, are not contained in Para 790 of the Air Force Regulations,
1969, but Rule 156(2) of the Rules inasmuch as his identity was already
known to one and all from the time the purported anonymous letter
was allegedly received, on 07.03.2012, by the authorities concerned.
5. The petitioner had put to challenge, by way of an Original
Application, made under Sections 14 and 15 of the Armed Forces
Tribunal Act, 2007, in the Regional Bench, Guwahati, the legality,
validity and sustainability of the Court of Inquiry, the charge-sheet,
which had been issued to the petitioner, and the disciplinary
proceeding, which had been initiated against him. The learned AFT
passed an order, on 20.11.2012, refusing to interfere and examine the
merit of the matter on the ground that the proceedings of the Court
Martial had already commenced and no interference, at such a stage,
was called for. The ground, so assumed to exist, was, according to the Page No. 25
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petitioner, wholly non-existent and suffered from non-application of
mind inasmuch as the trial by a Court Martial could have commenced
only on convening of the Court Martial and the convening of the Court
Martial could have been done only when the Summary of Evidence
was concluded; whereas the stage, when the petitioner had
approached the learned AFT, the proceedings were still at the stage of
recording of the Summary of Evidence and, hence, the question of trial
by the Court Martial having commenced had not arisen.
6. Impugning the order, dated 20.11.2012, the petitioner had,
initially, come to this Court with the present writ petition, made under
Article 226 and 227 of the Constitution of India, and while issuing
notice of motion, on 27.11.2012, this Court stayed the ongoing
proceedings of the Summary of Evidence.
7. Upon institution of the present writ proceeding, as the
respondents raised a preliminary objection with regard to the jurisdiction
of the High Court in entertaining a writ petition against an order of the
learned AFT, this Court, on hearing the learned counsel for the parties
concerned, passed an order, on 22.02.2013, and concluded that under
Article 226, there was no legal impediment in entertaining the present
writ petition. Following the conclusion, so reached, this Court issued
Rule on 22.02.2013. Since this Court’s order, dated 22.02.2013, has
never been challenged by the respondents, the order has attained
finality.
8. After this Court had already held, on 22.02.2013, the present writ
petition to be maintainable and Rule had been issued, the respondents Page No. 26
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herein, without informing anyone, made, before the learned AFT, a
Miscellaneous Application, on 11.03.2013, which gave rise to Misc.
Case No. 04/13, though it was within the knowledge of the
respondents that this writ petition would come up, for hearing, on
23.02.2013.
9. Be that as it may, by their Miscellaneous Application, the
respondents had contended that the learned AFT had inadvertently
erred in mentioning, or, because of typographical mistake, mentioned,
that General Court Martial (in short, ‘GCM’) had been convened and
that these observations, made by the learned AFT, were required to be
‘rectified’ by making appropriate order by deleting the word ‘GCM’ and
inserting, in the place thereof, the expression, “further disciplinary
proceeding”.
10. Having received the Misc. Application No.4/13 aforementioned,
the learned AFT, without giving any notice to the writ petitioner,
passed an order, on 13.03.2013, making the corrections as had been
sought for by the respondents.
11. Following the order, dated 13.03.2013, passed by the learned
AFT, this writ petition has been amended impugning herein and
putting to challenge the subsequent order, dated 13.03.2013, passed, in
Miscellaneous Application No. 04/13, by the learned AFT.
12. Situated thus, it is quite clear that the present writ petition, as it
stands today, has put to challenge not only the order, dated 20.11.2012,
whereby the learned AFT had refused to decide the Original Page No. 27
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Application No. 32/12 on merit, but also the order, dated 13.03.2013,
passed by the learned AFT, whereby the learned AFT has claimed to
have rectified the order, which it had passed, on 20.11.2012.
13. To put what have been mentioned above a little differently and
to be more precise, the petitioner has put to challenge the order, dated
13.03.2013, too, passed by the learned AFT, whereby the learned AFT
had, according to its observations, made in its order, dated 13.03.2013,
‘inadvertently’ mentioned in its earlier order, dated 20.11.2012, that the
proceedings of the General Court Martial had commenced; whereas
what had commenced was a disciplinary proceeding. Is this
conclusion, which the learned AFT has expressed in its order, dated
13.03.2013, correct? This is one of the questions for determination in the
present writ petition.
14. We may pause here to point out that the order of
correction/rectification, passed by the learned AFT, stands challenged by
the petitioner as illegal on the ground, inter alia, that no leave was
obtained from this Court, while this writ petition was pending for
hearing, no notice had been served on the petitioner before the said
correction was made, the petitioner was not heard on the respondents’
application for correction of the learned AFT’s earlier order, dated
20.11.2012, and, further, that the order, dated 13.03.2013, which had
been claimed by the learned AFT to be an order of correction, was
based on erroneously assumed facts and contrary to the records. Page No. 28
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15. We have heard Mr. A. Choudhury, learned counsel, appearing
for the petitioner, and Mr. R. Balasubramaniam, learned Assistant
Solicitor General, appearing on behalf of the respondents.
16. Before dealing with the various contentions, which have been
raised by the learned counsel, and determining the merit of such
contentions, we may point out that the respondents have tacitly
admitted that the order, dated 20-11-2012, is not in conformity with
law inasmuch as it had been submitted, on behalf of the respondents,
at the time of hearing of the preliminary objection, to the effect that this
Court may set aside the impugned order if this Court finds that the
impugned order, dated 20-11-2012, passed by the learned AFT, was not
a valid order, because of the fact that the GCM had not commenced at
the time, when the order, dated 20.11.2012, had been passed by the
learned AFT on wrong assumption that the GCM had been convened
and remand the matter to the learned AFT for adjudication afresh.
17. This Court, however, as observed, in its order, dated 22-02-2013,
had declined to interfere with the order, dated 20-11-2012, passed by
the learned AFT, on the ground that it must, first, consider whether
this Court has jurisdiction or not to entertain the writ petition and if
this Court finds that it has the jurisdiction, then, this Court would
determine if the impugned order, dated 20-11-2012, needs, or does not
need, interference by this Court in exercise of its powers under Article Page No. 29
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226 or Article 227. The relevant observations, appearing in this regard,
in the order, dated 22-02-2013, being relevant are reproduced below:
“26. Responding to the above submissions, made on behalf of the
petitioner, Mr. Sharma, learned ASG, has pointed out that as far as the
impugned order, dated 20.11.2012, is concerned, the same is a final
order, which has been arrived at after discussing the case of the
petitioner, and, hence, the petitioner does not have any right to
approach this Court either under Article 226 or under Article 227,
when a statutory right of appeal has been provided against the
impugned order. At the same time and in the same breath, the
learned ASG, as already indicated above, has submitted that if
this Court finds that the impugned order, dated 20.11.2012,
passed by the learned AFT, is not in accordance with law,
because of the fact that the GCM had not commenced, when the
impugned final order was passed by the learned AFT, this Court
may set aside the impugned order and remand the matter to the
learned AFT for adjudication afresh.
27. When a query was made by this Court as to how can this Court
interfere with the impugned order if it accepts the respondents’ plea
that the impugned order does not fall within the ambit of this Court’s
writ jurisdiction under Article 226 or 227, the learned ASG could give
no effective reply. Nonetheless, the learned ASG insists that the
impugned order is a final order and there being a statutory appeal
provided against such an order, the High Court’s jurisdiction, under
Articles 226 as well as 227, stands ousted. The conflicting submissions,
which have been made on behalf of the respondents, give an impression
that the respondents are, perhaps, of the view that the impugned order
is based on non-existent fact and, is, therefore, illegal, but they are also
of the view that since the impugned order is a final order, this Court, at
least, does not have the jurisdiction either under Article 226 or under Page No. 30
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Article 227 to interfere with the final order, because statutory
provisions for appeal against a final order exist in the AFT Act.”
(Emphasis is added)
18. Before proceeding further, let us determine the legality of the
impugned order, dated 20-11-2012, passed by the learned AFT. For the
purpose of determining if the impugned order, dated 20.11.2012,
passed by the learned AFT, is sustainable in law, we reproduce
hereinbelow the relevant observations, appearing in the impugned
order, dated 20.11.2012, aforementioned, passed by the learned AFT:
“5. We notice that although the Court of Inquiry submitted
its report on 29.08.2012 and the second one on 06.09.2012, the
appellant did not challenge the same immediately. In the
meantime, the GCM proceeding has been convened and it
started functioning against the appellant as submitted.
That apart, the statutory complaint filed by the appellant is also
yet to be disposed of by the Ministry of Defence.
6. In the case of Lt. Gen PK Nath Vs. UOI (OA
No.610/2010 dated 20.10.2010), the Principal Bench of Armed
Forces Tribunal did not interfere with findings of Court of
Inquiry when the next procedure of the GCM already
started. Again in the case of Union of India Vs. Maj Gen
Madanlal (AIR 1996 SC 1340), the Apex Court held that trial
commences the moment the General Court Martial
assembles to consider the charge and examines wherein they
would proceed with the trial. Applying this test also, in the
instant case, we find that the trial has already commenced
and there has been much progress in the GCM and hence Page No. 31
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we do not consider to interfere with the Court of Enquiry
report on the trial at this stage.
6. In view of the above discussion, we refrain from giving
any opinion on the merit of the case and in turn, dispose the
appeal with the directions that the respondents, more
particularly, respondent No.1, shall dispose of the statutory
complaint of the appellant which must have been forwarded to
them by now by the respondent No.2 as early as possible
preferably within a period of six weeks and communicate the
result thereof to the appellant forthwith.”
(Emphasis is added)
19. From a bare reading of the impugned order, dated 20.11.2012,
what clearly transpires is that the learned AFT had not only taken the
view, in its order, dated 20.11.2012, that the General Court Martial (in
short, GCM) had already commenced, but that much progress had
already been made in the proceedings of the GCM and that it (i.e., the
learned AFT) shall not interfere with the report of the Court of Inquiry,
when the proceedings of the GCM had already progressed much;
whereas the reality was that the subject-matter of the OA rested, on
20.11.2012, at the stage of recording of Summary of Evidence
(popularly called ‘S of E’) and that neither any formal charge-sheet, as
contemplated by Air Force Rules, 1969, has been served on the
petitioner nor till date the GCM has been convened.
20. In fact, it is, now, conceded by the respondents that the GCM has
not been convened. Consequently, the question of the GCM having
made progress, as had observed by the learned AFT, did not arise.Page No. 32
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21. Let us, now, turn to the scheme of the Air Force Rules, 1969, with
regard to investigation and trial. In this regard, what needs to be noted
is that it is Chapter V of the Air Force Rules, 1969, which makes
provisions for investigation of charges and trial by a Court Martial.
22. While considering Chapter V, what is of great significance to
note is that Chapter V relates to investigation of charges and remand for
trial. The word ‘charges’, appearing in Chapter V, means tentative
charges, which, in turn, means accusations and not ‘charges’, which are
formally framed by the Criminal Courts of ordinary jurisdiction. These
‘tentative charges’ are, thus, accusations and it is the Commanding
Officer, who has to decide whether or not the accusations, so made, are
to be proceeded with or not.
23. What is of utmost importance to note, while considering the
provisions contained in Chapter V of the Air Force Rules, 1969, is that
Sub-Rule (1) of Rule 24 empowers, and, at the same time, makes it a
duty of the Commanding Officer to hear every ‘charge’ against a person
subject to the Air Force Act in the presence of the accused with liberty
given to the accused to cross-examine the witnesses produced against
him and also to call such witnesses as he may require and he may
make such statement as may be necessary for his defence.
24. If, upon hearing of the ‘charges’ under Sub-Rule (1) of Rule 24,
the Commanding Officer is of the opinion that the ‘evidence’ does not
show that an offence under the Act has been committed, he must Page No. 33
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dismiss the ‘charges’. The Commanding Officer may also dismiss the
‘charge’ if he is satisfied that the ‘charge’ ought not to be proceeded
with. If, however, the Commanding Officer is of the opinion that the
‘charge’ ought to be proceeded with, he shall, within a reasonable time,
(a) dispose of the case summarily or (b) he may refer the case to the
superior air force authority for sanction under Section 83 or (c) adjourn
the case for the purpose of having the ‘evidence’ reduced to writing.
25. When the Commanding Officer adjourns the case, in terms of
Clause (c) of Sub-Rule (3) of Rule 24, for the purpose of having the
‘evidence’ reduced to writing, a Summary of Evidence, is recorded in
terms of Rule 24. At the stage of Summary of Evidence, as Rule 24
conceives, ‘evidence’ given by the witnesses is recorded with liberty
given to the accused to cross-examine the witnesses. The accused also
has the right to make a statement in his defence and may even examine
witnesses in defence of his case. The ‘evidence’, so collected, and the
statements, so recorded, under Rule 24, is called Summary of
Evidence. Rule 24 requires that the Commanding Officer shall consider
the Summary of Evidence and remand the accused for trial by a Court
Martial or refer the case to the appropriate superior air force authority
for sanction under Section 83 or disposal under Section 86 or, if he
thinks it desirable, re-hear the case and dispose it of summarily.
26. When, however, the accused is remanded for trial, he is served
with a charge-sheet, which has to be signed by the Commanding Officer Page No. 34
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in terms of Rule 37 and it is Rule 43, which empowers the convening
authority to convene a Court Martial. Where the Commanding Officer
is not the officer competent to convene a Court Martial, the competent
military authority can convene Court Martial if he is satisfied that the
‘charges’ to be tried by the Court Martial are ‘offences’ within the
meaning of the Army Act and that the ‘evidence’ justifies a trial on those
‘charges’ and if he is not so satisfied, he may order release of the
accused or may even refer the case to the superior authority.
27. What is, now, imperative to note is that until the time a
convening order is made by a competent military authority, the
accused is not put to trial by a Court Martial. More importantly,
though Rules 24, 25 and 26 use the expression ‘evidence’, the word
‘evidence’ is not really ‘evidence’ as is understood under Section 3 of the
Evidence Act and the expression ‘charge’, which appears in Rule 24, 25
and 26, is not really a formal ‘charge’, which a Criminal Court frames.
The expression, ‘charge’, as already indicated, means an accusation,
which may be under enquiry or investigation. Though called as
Summary of Evidence, none of the materials collected under Rule 24 is
‘evidence’ stricto senso and Summary of Evidence stands on the same
footing as do the previous statements of witnesses, who are examined
during the course of investigation, and can be used for the purpose of
contradicting a witness or impeaching the credibility of a witness in
terms of Section 145 of the Evidence Act. Page No. 35
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28. Thus, the scheme of the Air Force Rules, 1969, if carefully read,
clearly reflect that when an accusation, made against a person, subject
to the Air Force Act, 1950, is investigated in terms of Rule 24 or 25, the
accusation is called ‘charge’ and Summary of Evidence is merely a
collection of the statements of the witnesses recorded during
investigation with, however, liberty given to the accused to examine
the witnesses and, hence, Summary of Evidence is not, legally
speaking, ‘evidence’ as conceived under Section 3 of the Evidence Act.
29. In the case of Courts of ordinary criminal jurisdiction, a person
may appear or may be brought before the Court on accusations of his
having committed an offence either on completion of investigation or
on completion of enquiry. When an accused is brought before a
Criminal Court with an accusation, there is no formal charge. When,
however, an accused is brought before a Court Martial, charge(s), on
which the accused is to be tried, are charge(s) already framed by the
Commanding Officer.
30. In a Court Martial, unlike an ordinary Criminal Court, it is not
the Court, which frames charges. Though in both the cases, i.e., in a
trial by a Court Martial as also in a trial by an ordinary Criminal Court,
the accused is asked if he pleads guilty to the charge or not.
31. From the discussions, held above, it becomes clear that recording
of the Summary of Evidence is a stage or part of the investigation
procedure and after recording of the Summary of Evidence, a Court Page No. 36
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Martial may or may not be convened depending upon the
contingencies, which have been indicated in Chapter V.
32. The learned AFT, therefore, ex facie refused to exercise
jurisdiction on non-existent ground by erroneously treating the
Summary of Evidence as a collection of ‘evidence’ within the meaning
of Section 3 of the Evidence Act and assumed that trial by General
Court Martial had already commenced and had made much progress.
33. Considering the fact that the impugned order, dated 20-11-2012,
passed by the learned AFT, was demonstratively illegal and not
sustainable in law, because the foundation of this order was on a
wrong assumption of facts and position of law, it could not have been
logically extended to mean, nor could have the respondents, legally
speaking, contended before the learned AFT, that the word ‘GCM’ had
been mentioned by the learned AFT, in its order, dated 20-11-2012,
‘inadvertently’ or because of ‘typographical’ mistake. This apart, even the
learned AFT could not have legally held, in its subsequent order, dated
13.03.2013, that the words ‘trial’ and ‘GCM’, appearing in its earlier
order, dated 20.11.2012, should be taken to have meant disciplinary
proceeding inasmuch as mentioning of the word ‘GCM’ was only a
‘typographical’ error or an ‘inadvertent’ mistake in its order, dated
20.11.2012. Moreover, without giving any notice to the petitioner, the
order, dated 13-03-2013, could not have been passed by the learned
AFT treating the order, dated 20-11-2012, as an order, wherein Page No. 37
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‘typographical’ mistake or an ‘inadvertent’ error had crept in, while using
the word ‘trial’ and the word ‘GCM’, particularly when the learned
AFT had made it clear, in its earlier order, dated 20.11.2012 (as has
already been pointed out above), that the GCM had commenced and
made much progress.
34. In addition to what have been pointed out above, we may also
take note of the fact that it has been pointed out by Mr. A Choudhury,
learned counsel for the petitioner, with great justification, that an
Armed Forces Tribunal cannot review, in the light of Rule 18 of the
Armed Forces Tribunal (Procedure) Rule, 2008, its order if an
application for review is made after expiry of a period of 30 days from
the date of receipt of the copy of the order sought to be reviewed.
35. Though there can be no doubt that in the light of the provisions
of Section 14(4)(f) of the Armed Forces Tribunal Act, 2007, (in short,
AFT Act), the AFT does have the power to review its own order, an
AFT cannot review, in the face of Rule 18 of the Armed Forces Tribunal
(Procedure) Rule, 2008, its order if an application for review is made
after expiry of a period of 30 days from the date of receipt of the copy
of the order sought to be reviewed.
36. The above inference is reinforced from the fact that wherever the
AFT Act wanted to confer discretion, the same has been clearly
specified. For instance, while imposing limitation on the powers of the
AFT to admit an application, Section 22(2) very clearly states that ‘if Page No. 38
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the Tribunal is satisfied that the applicant had sufficient cause for not making
the application under Section 21 of the AFT Act, the Tribunal shall not admit
such an application.’ Similarly, Section 32 confers power to condone
delay by laying down that the Supreme Court may, upon an
application made, at any time by the appellant, extend the time within
which an appeal may be preferred by him to that Court under Section
30 or Sub-Section (2) of Section 31.
37. There is no provision in the AFT Act or the Rules made
thereunder making the Limitation Act, 1963, applicable. There can,
therefore, be no manner of doubt that the learned AFT could not have
entertained the application seeking rectification/correction, when the
said application had been made beyond the period of 30 days of the
receipt of the copy of the order.
38. Though the above position of law was not even disputed on
behalf of the respondents, at the time of hearing of this writ petition,
Mr. Choudhury, learned counsel, to buttress his above submission,
relies on two decisions of the Supreme Court in L.S. Synthetics Ltd. v
Fairgrowth Financial Services Ltd. and Anr., reported in (2004) 11 SCC
456, and Fairgrowth Investments Ltd. v Custodian, reported in (2004)
11 SCC 472. The references, made by Mr. Choudhury, to the cases of
L.S. Synthetics Ltd. (supra) and Fairgrowth Investments Ltd. (supra),
are, to our mind, not wholly misplaced and we, therefore, must hold,
and do hold, that the Armed Forces Tribunal, under the scheme of Page No. 39
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Armed Forces Tribunal Act, 2007, read with the Armed Forces
Tribunal (Procedure) Rules, 2008, cannot take resort to Limitation Act,
1963, for the purpose of condoning delay in making an application for
review.
39. In short, an Armed Forces Tribunal does not have, under the
scheme of the Armed Forces Tribunal Act 2007 read with Armed
Forces Tribunal (Procedure) Rules, 2008, the power to entertain a
review petition or any proceeding in the nature of review on expiry of
30 days from the date of receipt of the order, which is sought to be
reviewed. Considered in this light, there can be no escape from the
conclusion that same as the order, dated 20-11-2012, even the order,
dated 13-03-2013, is wholly without jurisdiction, palpably illegal and is
in gross violation of the principles of natural justice, particularly, when
we have noted above that the learned AFT, in the present case,
incorrectly recorded, in its order, dated 13.03.2013, to the effect that the
word ‘trial’ and the word ‘GCM’, which appeared in its earlier order,
dated 20.11.2012, were not due to ‘inadvertent’ error or ‘typographical’
mistake.
40. We would have had, in the light of the discussions held above,
set aside the orders, dated 20-11-2012 and 13-03-2013, passed by the
learned AFT, and we would have, perhaps, remanded the matter to the
learned AFT, but we restrain from doing so, because of three reasons. Page No. 40
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41. The first reason, as has been pointed out by this Court, in its
order, dated 22-02-2013, is that when an accusation of discrimination or
victimization is made, the High Court has, indeed, the power under
Article 226 to examine such issues.
42. The second reason for our decision not to remand the matter to
the learned AFT is that the learned AFT, in the light of the order,
dated, 20.11.2012, read with order, dated 13.03.2013, has clearly
reflected its mind that in the face of the materials on record, the
petitioner does not have, at this stage, any case calling for interference
by the learned AFT or to invoke jurisdiction of the learned AFT.
43. Coupled with the above, the third reason, which restrains us
from remanding the matter to the learned AFT, is that the learned
counsel for the parties, appearing before this Court, have addressed
this Court on the merit of the writ petition and having heard the writ
petition at length, it would not be advisable for this Court not to
determine the correctness of the rival submissions made before us with
regard to the sustainability of the findings of the Court of Inquiry and
the initiation of the disciplinary proceeding against the petitioner by
issuing a charge-sheet to the petitioner, particularly, when the learned
AFT, in the light of its subsequent order, dated 13-03-2013, is
convinced that the original application, which the petitioner had filed
in the learned AFT, was not to be pursued on merit. Indeed, none of
the parties to the present writ proceeding has expressed that if this Page No. 41
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Court happens to set aside the learned AFT’s order, dated 20.11.2012,
read with order, dated 13.03.2013, this Court may not, in exercise of its
jurisdiction under Article 226 or 227, examine the validity of the order
convening Court of Inquiry, the proceedings of the Court of Inquiry
and/or the charge-sheet and/or the disciplinary proceeding initiated
against the petitioner.
44. Ordinarily, this Court would not have, in exercise of its power
under Article 226 and/or Article 227, entered into the merit of the
allegations and counter allegations made by the parties to the present
writ proceeding. However, we have, very reluctantly, taken the view
that this writ petition needs to be decided on merit lest this Court’s
reluctance to interfere with the impugned proceedings creates a
‘distorted picture’ in the minds of the Air Force personnel, who stand on
the same footing as do the Army personnel, that the persons subject to
the Air Force Act, 1950, are not citizens of India. The Parliament may,
under Article 33 of the Constitution of India, restrict or abrogate the
fundamental rights of the members of an armed force; but exercise of
this power cannot be read to mean that a person subject to the armed
forces act is not entitled to the benefit of liberal spirit our Constitution
or liberty oriented approach of our Constitution.
45. It is, therefore, the right time to recall the Supreme Court’s
famous and often quoted observations made in Lt. Col. Prithi Pal
Singh Bedi v. Union of India, reported in (1983) SCR 1 393, wherein Page No. 42
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the relevant observations, appearing in Lt. Col. Prithi Pal Singh Bedi
(supra), read thus:
“8. Personnel of the Armed Forces are entitled as much as
any other citizen to the protection of the Constitution of
India. The Supreme Court had observed over thirty years ago
and reiterated regularly thereafter (yet regretfully unheeded by
the Respondents) that service in the Armed Forces can no longer
be viewed as a support or adjunct of the Rulers. We cannot do
better than to reproduce the following extract from the decision
in Lt. Col. Prithi Pal Singh Bedi v. Union of India reported in
(1983) SCR 1 393 :
44. Reluctance of the Apex Court more concerned with civil law
to interfere with the internal affairs of the Army is likely to
create a distorted picture in the minds of the military personnel
that persons subject to Army Act are not citizens of India. It is
one of the cardinal features of our Constitution that a
person by enlisting in or entering Armed Forces does not
cease to be a citizen so as to wholly deprive him of his
rights under the Constitution. More so when this Court held
in Sunil Batra v. Delhi Administration that even prisoners
deprived of personal liberty are not wholly denuded of their
fundamental rights. In the larger interest of national
security and military discipline Parliament in its wisdom
may restrict or abrogate such rights in their application to
the Armed Forces but this process should not be carried so
far as to create a class of citizens not entitled to the
benefits of the liberal spirit of the Constitution. Persons
subject to Army Act are citizens of this ancient land
having a feeling of belonging to the civilised community Page No. 43
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governed by the liberty-oriented constitution. Personal
liberty makes for the worth of human being and is a cherished
and prized right. Deprivation thereof must be preceded by an
enquiry ensuring fair, just and reasonable procedure and trial by
a judge of unquestioned integrity and wholly unbiased. A
marked difference in the procedure for trial of an offence by the
criminal court and the court martial is apt to generate
dissatisfaction arising out of this differential treatment. Even
though it is pointed out that the procedure of trial by court
martial is almost analogous to the procedure of trial in the
ordinary criminal courts, we must recall what Justice William
O'Douglas observed : That civil trial is held in an atmosphere
conducive to the protection of individual rights while a military
trial is market by the age-old manifest destiny of retributive
justice. Very expression 'court martial' generally strikes terror
in the heart of the person to be tried by it. And somehow or the
other the trial is looked upon with disfavor. In Reid v. Covert,
Justice Black observed at page 1174 as under:
Courts martial are typically ad hoc bodies appointed by a
military officer from among his subordinates. They have always
been subject to varying degrees of command influence. In
essence, these tribunals are simply executive tribunals whose
personnel are in the executive chain of command. Frequently,
the members of the court martial must look to the appointing
officer for promotions, advantageous assignments and efficiency
ratings in short, for their future progress in the service.
Conceding to military personnel that high degree of honesty and
sense of justice which nearly all of them undoubtedly have, the
members of a court martial, in the nature of things, do not and
cannot have the independence of jurors drawn from the general
public or of civilian judges.”Page No. 44
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(Emphasis is added)
46. In the light of our decision that we must decide the writ petition
on merit, we, now, turn to the Office Memorandum, dated 22-11-1992,
issued by the Ministry of Defence, Government of India, which is
reproduced under:
“a. Many anonymous/pseudonymous complaints are false and
malicious and very often, such complaints are not a reliable
source of information and enquiries into such complaints do
have an adverse effect on the morale of the services. The
Government of India are, therefore, of the view, that
generally, no action is warranted on anonymous/
pseudonymous complaints against Government Servants
and they are to be filed.
b. While as a policy, anonymous/pseudonymous complaints
should be ignored and only be filed [....] wherever the Head of
the Department/Chief Executive, on a prima facie examination
of such complaints, takes a decision, to pursue further action in
this regard as to the verification of the facts, a copy of all such
complaints, petitions, as far as possible, shall first be
made available to the officer concerned for his comments
and only thereafter, further action should be taken.”
(Emphasis is supplied)
47. From a bare reading of the office memorandum, dated 22-11-
1992, it becomes clear that according to the policy decision and
guidelines issued by the Government of India, no action is, generally,
warranted on an anonymous complaint against Government servant or Page No. 45
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pseudonymous complaint against Government servants and such a
complaint shall, ordinarily, be filed. However, when the Head of the
Department/Chief Executive, on a prima facie examination of such a
complaint, decides to pursue the complaint as regards the verification
of the acts stated therein, a copy of such a complaint, as far as possible,
shall, first, be made available to the officer concerned for his comments
and only thereafter, further action should be taken.
48. In other words, if the Head of the Department/Chief Executive,
on a prima facie examination of an anonymous or pseudonymous
complaint, decides to verify the facts stated therein, he shall, first,
make available the complaint, as far as possible, to the officer (against
whom the complaint has been made) for the comments of the officer
and it is only after having obtained his comments that further action
should be taken.
49. Initially, as reflected by the affidavit-in-opposition, which the
respondents have filed, the respondents contended that the Office
Memorandum, dated 22-11-1992, aforementioned was not applicable to
the Air Force personnel.
50. However, on a pointed query made by this Court, at the time of
hearing of the writ petition, Mr. Balasubramaniam candidly conceded
that the guidelines, issued by Office Memorandum, dated 22-11-1992,
are as much binding on the Air Force personnel as on the other
employees of the Central Government. Page No. 46
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51. Notwithstanding, therefore, the initial contention of the
respondents that the guidelines, issued by the Office Memorandum,
dated 22-11-1992, are not binding on the Air Force personnel, the
admitted position, now, is that these guidelines are, indeed, binding.
52. Moreover, what cannot be ignored and must not be ignored is
the fact that there is no provision in the Statutes, Rules or Regulations
applicable to the Air Force personnel, which lays down as to how an
authority, in the Air Force, shall deal with an anonymous or
pseudonymous complaint. This gap can be filled up, and has,
admittedly, been filled up, by issuing executive instructions in the
form of Office Memorandum, dated 22.11.1992. We may also point out
that the principle that a gap, in the enforcement of law, can be filled up
by issuance of executive instructions has not been disputed by the
respondents at the time of hearing.
53. In a situation, such as the present one, it is not only difficult but
impossible not to hold, and we, therefore, hold, that the guidelines,
issued by the Office Memorandum, dated 22.11.1992, are, indeed,
binding on the Air Force personnel.
54. As a precautionary measure, a reference, with regard to the
above, may be made to the case of Accountant General, State of
Madhya Pradesh Vs. S. K. Dubey, reported in (2011) 4 SCC 578,
wherein the Supreme Court has held, in clear terms, that in absence of
any provisions in the Statutes/Rules, there is no bar in issuing Page No. 47
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executive order or administrative instruction by the Government.
There can, therefore, be no doubt that it has been the consistent
position of law that executive instructions are in application, when the
Statutes/Rules are silent so as to fill up the void.
55. In fact, in Maj. Gen. S.K. Sahni Vs. Union of India, reported in
105 (2003) DLT 201, the Delhi High Court has pointed out that it has
been the consistent position of the Union of India that the Office
Memorandum, dated 22.11.1992, is binding on Armed Forces. This can
be clearly gathered from the observations, made in Maj. Gen. S.K.
Sahni (supra), which read thus:
“There is no contest on behalf of the respondents in so far as
applicability of the aforesaid instructions in connection with taking of
cognizance of anonymous/pseudonymous complaints to defense
personnel is concerned.”
56. The Delhi High Court has pointed out, in Maj. Gen. S.K. Sahni
(supra), that since there was omission on the part of the respondents to
act in compliance with the guidelines/directions, issued by the Office
Memorandum, dated 22.11.1992, this omission has vitiated the order
convening Court of Inquiry.
57. Considering the fact that the convening authority, in the case of
Maj. Gen. S.K. Sahni (supra), had passed the order convening Court
of Inquiry without, first, complying with the guidelines/instructions
issued by the Office Memorandum, dated 22.11.1992, aforementioned,
the High Court, in Maj. Gen. S.K. Sahni (supra), held that such a Page No. 48
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convening order, being in violation of the Office Memorandum, dated
22.11.1992, is liable to be set aside. The relevant observations,
appearing in Maj. Gen. S.K. Sahni (supra), in this regard, read as
under:
“…In terms of an Office memorandum M of D I D.No.C-
13029/I/VIG-III/91, dated 22-11-1992 (Annexure-G) made
applicable to the defense personnel as well, whenever the Head
of Department/Chief Executive, on a prima facie examination of
an anonymous/pseudonymous complaint, takes a decision, to
pursue further action as to the verification of facts, a copy of
such complaint, as far as possible, is required to be first made
available to the officer concerned for his comments and only
thereafter action, if any, is to be taken. In the present case, no copy
of any complaint was furnished to the petitioner in order to invite his
comments, if any, before taking decision for convening the Court of
Inquiry. Omission on the part of the respondents to act in compliance
with the said requirement of the office memorandum/(Annexure-G),
according to the petitioner renders the order convening the Court of
Inquiry vitiated and bad in law. There is no contest on behalf of the
respondents in so far as applicability of the aforesaid instructions in
connection with taking of cognizance of anonymous/pseudonymous
complaints to defense personnel is concerned. In the present case, no
copy of complaint(s) pertaining to the alleged charges covered under
para 3(b) to (f) is claimed to have had been supplied to the petitioner
inviting his comments before making the order convening the Court of
Inquiry to investigate into allegations directed against the petitioner.
The admitted position as reflected from the counter affidavit of the
respondents is that a copy of complaint containing allegations covered
under Para 3(b) of the counter affidavit was forwarded to the authority Page No. 49
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concerned along with convening order of the Court of Inquiry and the
petitioner was to be apprised of the same only at the time when the
Court of Inquiry was to assemble. The stand so taken by the
respondents is obviously not in conformity with the instructions
contained in the aforesaid office memorandum (Annexure-G). The
reason for supplying a copy of anonymous/pseudonymous complaints
and affording an opportunity to the official concerned to offer his
comments is to enable the authority concerned to apply its mind to the
whole matter before exercising its discretion relating to convening of
the Court of Inquiry to investigate into the allegations against him.
Since the convening authority in the instant case appears to
have passed the impugned order convening a Court of Inquiry
without furnishing the copy of the complaint(s) in question and
affording the petitioner an opportunity of offering his
comments, if any, ignoring the relevant instructions on the
subject, there was improper exercise of power on the part of the
convening authority in making the impugned order convening
the Court of Inquiry to investigate into the allegations as
detailed in para 3(b) to (f) of the counter affidavit and
consequently the same is, liable to be set aside to that extent.”
(Emphasis is added)
58. The observations, made above in Maj. Gen. S.K. Sahni (supra),
clearly show that it was not even contended, in Maj. Gen. S.K. Sahni
(supra), that the Office Memorandum, dated 22.11.1992, was not
applicable. This apart, the Court held, in Maj. Gen. S.K. Sahni (supra),
that omission, on the part of the respondents to act, in terms of the
requirement of the Office Memorandum, dated 22.11.1992, rendered
the order convening Court of Inquiry bad in law. Page No. 50
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59. What is also important to note is that in Maj. Gen. S.K. Sahni
(supra), the copy of the complaint was made available to the officer
concerned along with the convening order of the Court of Inquiry. In
the case at hand, the copy of the complaint was not furnished to the
petitioner before or at the time of convening of the Court of Inquiry. It
has been pointed out, in Maj. Gen. S.K. Sahni (supra), and we see no
reason to disagree, that the direction to supply the copy of the
anonymous complaint to the person concerned is intended to afford an
opportunity to the person concerned to offer his comments so that the
authority concerned may make up its mind before directing any
investigation.
60. In the circumstances indicated above, the pertinent question is:
Whether the copy of the anonymous complaint, which had allegedly
been made against the present petitioner and is claimed to have been
received, on 07.03.2012, by the Headquarter, Eastern Air Command,
ought to have been furnished to the petitioner?
61. In order to reach a correct answer to the question posed above, we
reproduce hereinbelow the anonymous letter aforementioned:
“Jai Hind
We Indians are very proud and respectful towards our Armed Forces.
But from some time many corruption cases, fake encounters and
adultery have surfaced in our Armed Forces.
Through our reliable sources it has been found out that Armed Forces
Officers are indulging in adultery within their own area. We have Page No. 51
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reliable information and clinching evidence that Shri M Singh Air
Commodore who is heading Air Base Chabua in Assam, is deeply
involved in sexually exploiting the wives of his colleagues.
No true Indian will allow this exploitation to happen and continue. It
is demanded that a thorough, transparent and urgent inquiry should be
carried out and Shri M Singh should be punished for his dirty work.
We want to tell you that we are contacting National Women
Commission, Human Right Commission, many women NGO,
Newspapers, TV Media. If you as a head of Indian Air Force is not able
to punish Shri M Singh, then other approach will be tried. We will try
to raise this question even in Parliament in budget session.
If any attempt is made to hide or suppress this than result will be very
bad and it will be injustice and insult to women of air base Chabua.
This will defame Indian Air Force, because true story will appear in all
possible places and platforms. The corrupt Mr. M Singh should be
punished for sexually exploiting wives of his colleagues. He must be
awarded an exemplary sentence for his acts.
Please wake up and act.
True and Patriotic Indians.”
62. It has been submitted, with considerable force, by Mr.
Choudhury, learned counsel, that the policy decision of the
Government of India, as contained in the office memorandum, dated
22-11-1992, was honoured in breach inasmuch as the copy of the
complaint, involving the petitioner, was not furnished to the petitioner
and his response was not sought thereto, though the contents of the
said complaint implicated the petitioner and contained imputations,
which impaired and damaged the reputation of the petitioner. Page No. 52
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63. As indicated above, a bare perusal of the anonymous letter, in
question, identify the petitioner as the person against whom the
offending imputations were made. The petitioner was, therefore,
entitled to a copy of the complaint and his response ought to have been
sought thereto. This was, however, not done. Why the copy of the said
complaint was not furnished to the petitioner, no reason, far less
convincing reason, has been assigned by the respondents nor is there
any plausible explanation discernible from the materials on record.
64. It is also not the contention of the respondents that it was not
possible to furnish to the petitioner a copy of the said anonymous
letter/complaint.
65. We have, therefore, no doubt in our mind that the respondents
have ignored and flouted, deliberately and consciously, the policy
decision and guidelines of the Ministry of Defence, Govt. of India,
contained in their Office Memorandum, dated 22.11.1992. The
respondents cannot, and shall not, in the light of the decision in Prithi
Pal Singh Bedi (supra), be allowed to escape from the consequences of
their omission to furnish a copy of the said letter/complaint to the
petitioner seeking his response thereto, particularly, when the
respondents have played hide and seek with this Court by initially
contending that Air Force personnel are not bound by the Office
Memorandum, dated 22.11.1992, and, then, conceding, though might
be reluctantly, that the said Office Memorandum is applicable as much Page No. 53
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to the Air Force personnel as to any other Central Government
employee.
66. Pausing at this stage, for a moment, let us turn to, and take note
of, the ‘terms of reference’ for the Court of Inquiry, which reads as
under:
“TERMS OF REFERENCE
1. To investigate and determine the veracity of the contents of the
anonymous letter received at HQ EAC on 07 Mar 12 alleging improper
relationship between an Air Force officer and the wives of his
colleagues, mentioned therein (copy annexed).
2. To investigate and determine the extent of relationship, if any,
between the said AF Officer and wives of his colleagues.
3. To investigate the circumstances in which a large number of
anonymous letters were received at HQ EAC on 04 Jul 12.
4. To investigate the motive and the reasons for writing such a large
number of anonymous letters to the officers and warrant officers of HQ
EAC.
5. To investigate and determine the identity of individual (s) who had
forwarded these anonymous letters to HQ EAC.
6. To investigate any other issue associated with or related to the above
matters.
7. To record the evidence on oath/affirmation.
8. To apportion blame, if any.
9. To record deliberations and findings.
10. To make recommendations.”
67. On careful examination of the ‘terms of reference’, what attracts
our attention, most prominently, is that according to the ‘terms of
reference’, while the Court of Inquiry was required to investigate and Page No. 54
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determine the veracity of the allegations embodied in the anonymous
letter, received against the present petitioner including the extent of
relationship, if any, between the petitioner and the wives of his
colleagues, the ‘terms of reference’ did not warrant or require the Court
of Inquiry to investigate and determine the truthfulness or veracity of
the contents of the anonymous letter, which contain allegations of
corruption against the respondent Nos. 4 and 5. Far from this, what the
‘terms of reference’ required the Court of Inquiry to do in respect of the
complaint, containing allegation of corruption against respondent Nos.
4 and 5, was to identity the person, who had forwarded the said
complaint to the Headquarter, Eastern Air Command.
68. The respondents contend that while the preliminary investigation,
as against the petitioner, had been directed by the respondent No. 4 as
the competent authority, the direction to constitute the Court of
Inquiry to enquire into the allegation of corruption, made against the
respondent Nos. 4 and 5, was directed by the Air Headquarter.
69. While dealing with the above aspect of the case, it needs to be
noted that except a bald statement that it was on instructions of Air
Headquarter that the Court of Inquiry into the second anonymous
complaint be made, nothing has been placed before this Court to show
that any such direction had, indeed, been issued by the Air
Headquarter, particularly, when it is not contended that the Court of
Inquiry was directed by the Air Headquarter without making any Page No. 55
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order in this regard as a matter of practice. The respondents cannot,
therefore, escape or be allowed to escape by contending that the Court
of Inquiry on the second anonymous complaint, which had been
received against respondent Nos.4 and 5, were ordered to be enquired
into by the Air Headquarter.
70. What is, however, of immense importance to note, while
considering the above aspect of the case, is that nowhere, it has been
contended, on behalf of the respondents, that the Air Headquarter had
asked respondent Nos.4 and 5 or directed respondent Nos.4 and 5 to
convene a Court of Inquiry on the second anonymous complaint with a
caveat that there was no need to enquire into the truth or veracity of
the allegations of corruption, which had been made against respondent
Nos.4 and 5. In fact, such a direction could not have been issued and
has, therefore, not been contended to have been issued by the Air
Headquarter to the respondent No.4. This apart, the question is not as
to who had directed the constitution of the Court of Inquiry.
71. The real question is as to why two different, contradictory,
inconsistent and mutually irreconcilable standards or yardsticks were
applied to the facts of the case at hand. Why the Court of Inquiry was
not required to determine the truthfulness or veracity of the allegations
of corruption made against the respondent Nos.4 and 5. How could the
Air Headquarter, without investigation and determination of the
correctness of allegation of corruption made against the respondent Page No. 56
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Nos. 4 and 5, come to the conclusion that their integrity,
notwithstanding the allegations made against them, were beyond
doubt, while respondent No.4 was allowed to set the ‘terms of reference’,
when he was, undoubtedly, an interested party inasmuch as the
second anonymous complaint levelled allegations of corruption
against respondent No.4 too. Mr. Choudhury, learned counsel, has,
therefore, great substance, when he submits that respondent No.4 has
become the Judge of his own cause and ought not to have been
expected by the Air Headquarter or Union of India to be impartial and
free from bias and/or prejudice.
72. Coupled with the above, it is noteworthy that though the
petitioner, right from the inception, has challenged the ‘terms of
reference’ as discriminatory and biased, the respondents have not been
able to state one sentence in justification of not making any
investigation to determine if there was any element of truth in the
allegations of corruption made against the respondent Nos. 4 and 5.
Exoneration of the respondent Nos. 4 and 5 of the allegations of
corruption made against them, in the facts and attending
circumstances of the present case, cannot, but be described as biased,
discriminatory and arbitrary.
73. We may pause here to point out that the Office Memorandum,
dated 22-11-1992 leaves it to the discretion of the Head of the
Department/Chief Executive to decide if an anonymous complaint Page No. 57
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shall or shall not be pursued and, ordinarily, no anonymous or
pseudonymous letter shall be pursued, the fact of the matter remains
that in the case at hand, the authority concerned decided to pursue the
complaint. When the decision was to pursue the complaint, then, there
has to be some explanation, convincing and acceptable, as to why no
investigation by Court of Inquiry was directed for the purpose of
determining if there was any substance, truth or veracity in the
complaint received against the respondent Nos. 4 and 5.
74. In the backdrop of what have been discussed above, there is
considerable force in the contention of the petitioner that the ‘terms of
reference’ are signs of malice and bias and that respondent Nos.4 and 5,
being the highest and second highest authorities in the hierarchy, acted
as Judges of their own cause and even the Air Headquarter allowed
them (i.e., respondent Nos.4 and 5) to decide that the allegations, made
against them (i.e., respondent Nos.4 and 5), were false and, thus,
inquiry/investigation was allowed to be stage managed and proceed
with pre-determined mind and with the sole object of finishing the
service career of the petitioner.
75. When an authority, who is required to act reasonably and
impartially, adopts two inconsistent and wholly irreconcilable courses
of action, while dealing with two sets of complaints, such course of
action cannot, but be described as ex facie unacceptable and arbitrary. Page No. 58
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In such a situation, one cannot help, but regard such unexplained act
as an act of arbitrariness and reflective of bias, prejudice and mala fide.
76. While respondent Nos. 4 and 5 have been treated with favour as
can be clearly noticed, the complaint against petitioner has been
pursued vigorously without trying to identify as to who the author of
the complaint, made against the petitioner, was. The decision in favour
of the respondent Nos. 4 and 5 has already been taken and that is why,
it is the identity of the person, who had the audacity to raise his voice
against corruption, which was sought to be suppressed so that none
dares to raise his voice against corruption; more so, when there is not
one word used by the Air Headquarter or the Union of India, in the
present case, to stand by the respondent Nos. 4 and 5 and submit
before this Court, frankly and boldly, as to why the integrity of
respondent Nos. 4 and 5 was considered so much above board that the
Air Headquarters was not even willing to look into the truth or falsity
of the allegations of corruption made against the respondent Nos. 4
and 5, while the author of the letter was to be hunted and punished, no
matter whether the allegations made against respondent Nos.5 and 6
were true or false.
77. Situated thus, one cannot ignore the petitioner’s contention that
the origin of the Court of Inquiry lies in mala fide, more particularly,
because the anonymous letters started materializing out of nowhere
and in March-April, 2012, discreet enquiries were initiated and, whenPage No. 59
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the petitioner finally made a complaint, in the month of May, 2012, as
regards the sub-standard construction work at Chabua Airbase, the
petitioner was posted to Jaipur in July, 2012, and, within a week,
thereafter, a Court of Inquiry was convened by respondent No.4.
78. Justifying the preliminary investigation, which had been
directed against the petitioner, the respondents contend that even
before the anonymous letter was received against the petitioner, on 07-
03-2013, by the Headquarter, Eastern Air Command, the APM unit, at
the Air Force Station, Chabua, knew about the unholy relationship
existing between the petitioner and Ms. ‘X’ and that was why, when
instructions were issued orally, on 07-03-2012, respondent No. 8,
immediately, asked for the records of the mobile numbers of the
petitioner and Ms. ‘X’.
79. To determine the correctness of the above contention of the
respondents, when this Court made a pointed query, at the time of
hearing of this writ petition, if the respondents were waiting for the
anonymous letter to arrive, on 07-03-2012, at Headquarter, Eastern Air
Command, so as to start the investigation into the alleged unholy
relationship, which the petitioner allegedly maintained within the
knowledge of the APM Unit, at Air Force Station, Chabua, with Ms.
‘X’, Mr. Subramanium had no reply to offer.
80. In the facts and circumstances, as mentioned hereinabove, one
cannot, but hold that the petitioner has considerable force, when he Page No. 60
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contends that he was sought to be victimized, because of the reason
that respondent Nos. 5 and 8 were annoyed and full of rage against
the petitioner, because the petitioner was instrumental in getting
respondent No. 7 transferred out of Air Force Station, Chabua, and
respondent No.4 equally angry with the petitioner, because the
petitioner had the courage to raise his voice against the poor quality of
construction and poor quality of repairing works, which contractors, in
question, had carried on.
81. It is noticeably noted that it is not the case of the respondents
that the construction work and/or the repairing work, in question,
were of the required standard or quality. Not a word has been said by
the respondents, in their affidavit, in justification of the quality of work
done by the contractor and no material has been placed before this
Court to show that the quality of works done by the contractors, in
question, were up to the required level. The respondents have tried to
duck the question, which was bound to be raised and has been raised,
by contending that it was the petitioner, who was in-charge and
responsible for supervision of the said works and that he raised the
issue of poor quality of work only when he came to know about the
investigation being carried out against him. This reaction confirms that
there is some substance in the petitioner’s contention that the quality of
construction as well as the quality of repairing works, done by the
contractors, in question, were poor and not of required standard or Page No. 61
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level and he had to, therefore, ban the entry of the contractor into the
Airbase leading to blacklisting of the contractor.
82. As regards the Court of Inquiry, which was held at 16 Wing,
Hashimara, it needs to be pointed out that in terms of the charge-sheet,
dated 20.06.2012, the petitioner is alleged to have given an unlawful
command in the sense that he had allegedly directed Wg. Cdr. D.N.
Tiwari (witness No.19) to make a false entry in the Counselling
Register to show that Corporal Ram Swaroop Bishnoi had been
counseled on 17.04.2012. In support of this accusation, respondents
rely on the sole statement of Junior Warrant Officer T.B. Sarkar
(Witness No.4).
83. No reason could, however, be assigned, at the time of hearing of
this writ petition, by the learned ASG, as to why the Court of Inquiry
has not believed the statements of Wg. Cdr. D.N. Tiwari (Witness
No.19), who has denied to have received any such order from the
petitioner, which the petitioner was alleged to have given. This apart,
the learned ASG has also failed to offer any explanation at all as to why
the Court of Inquiry found the statements of Wg Cdr V.K. Thakur, Stn
Adjd (Witness No. 18) and Wg Cdr A. Saxena (Witness No. 21) not
acceptable, when, according to the Junior Officer T.B. Sarkar (Witness
No.4), Wg Cdr V.K. Thakur, Stn Adjd (Witness No. 18) and Wg Cdr A.
Saxena (Witness No. 21) were present at the time, when Wg Cdr D.N.
Tiwari (Witness No.19) had been allegedly directed by the petitioner to Page No. 62
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make a false entry in the Counselling Register, as indicated
hereinbefore, but Wg Cdr D.N. Tiwari (Witness No.19) has denied to
have received any such instruction or order from the petitioner and
Wg Cdr V.K. Thakur, Stn Adjd (Witness No. 18) and Wg Cdr A. Saxena
(Witness No. 21) have denied that in their presence, any direction or
order, as alleged to have been given by the petitioner, had actually
been given by him.
84. The apparent discomfiture of the respondents in convincingly
explaining the reasons leave this Court with no option, but to infer that
the petitioner has substance, when he submits that roping in of the
petitioner into the Court of Inquiry, at 16 Wing, Hashimara, smacks of
mala fide so that the petitioner may, if necessary, be roped in if he is
able to withstand the Court of Inquiry convened to determine the
nature of his relationship with wives of the officers junior to the
petitioner and the authorship of the said set of 90 anonymous
complaints. This inference gets reinforced, when we notice that the Air
Force Order, on Counselling, admittedly, lays down the
responsibilities in the Counselling chain and the AOC of an Airbase, as
the petitioner was, is, nowhere, connected with this chain of
Counselling and it was, therefore, immaterial for the petitioner as to
whether any Counselling had or had not been done or any entry of
such Counselling had or had not been made in the Counselling
Register. Page No. 63
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85. Reverting to the preliminary investigation, it needs to be borne
in mind that according to the respondents, on receiving the complaint
at Air Headquarter, Eastern Air Command, on 07.03.2012, respondent
No.4 orally asked respondent No.8 to make a discreet enquiry, though
formal letter, in this regard, was issued, on 08.03.2012, by Headquarter,
Eastern Air Command, and the same was, admittedly, received by the
respondent No.8 on 09.03.2012.
86. Interestingly enough, though it has been claimed that the oral
instructions had been issued, on 07.03.2012 itself, to respondent No.8 to
make discreet enquiry into the anonymous complaint received against
the petitioner, no record of such an oral instruction was produced by
the respondents. This apart and more importantly, a careful reading of
the letter, dated 08.03.2012, whereby discreet enquiry was ordered, in
writing, by the Headquarter, Eastern Air Command, it becomes
abundantly clear that not even a word has been used by the
respondents to indicate in the letter, dated 08.03.2012, that the said
letter was a follow-up action to the oral instructions, which had
purportedly been issued, on 07.03.2012, by the respondent 4 to
respondent No.8.
87. No wonder, therefore, that the letter, dated 08.03.2012, makes no
reference to any oral instruction having been issued, on 07.03.2012, to
the respondent No.8 for making a discreet enquiry. When the letter,
dated 08.03.2012, is wholly silent that any instruction had been issued Page No. 64
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to respondent No.8, on 07.03.2012, to conduct a discreet enquiry and
when no explanation for this silence has been offered or placed in the
materials on record, the lone conclusion, which one unavoidably
reaches, as submitted by the petitioner, is that no such oral instruction
had actually been issued on 07.03.2012 and the story of oral instruction
has been concocted to justify the letter, which respondent No.8 had
written, on 07.03.2012, itself, to the Superintendent of Police,
Dibrugarh, seeking details of call record of the mobile phones of not
only of the petitioner, but also of Ms. ‘X’.
88. The above inference gets strengthened from the fact that on
12.07.2012, respondent No.8 wrote a letter to the Superintendent of
Police, Dibrugarh, asking the latter to furnish to the former the call
records of certain mobile phones on the ground that a Court of Inquiry
was in progress; whereas the Court of Inquiry was, admittedly,
directed on 16.07.2012 and the proceedings of the Court of Inquiry
commenced on 17.07.2012. The letter, dated 12.07.2012,
aforementioned, being of great relevance, is reproduced below:
“Superintendent of Police
Dibrugarh, Assam.
ASSEMBLY OF COURT OF INQUIRY
Sir,
1. A Court of Inquiry is in progress in the Air Force and there is a
requirement to produce certain evidence in front of the above quasi
judicial forum which has been assembled as per the provisions of AIR
Force Law. The undersigned being the Provost Marshal as per the Sec.
108 of AF Act is the authority who requires to produce the same in
front of the above COI.Page No. 65
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2. It is therefore requested that call details of the following numbers
from Jan 11 to Mar 12 may be provided to the undersigned so as to
produce in front of the Court of Inquiry:
(a) 9864230600
(b) 9864297476
(c) 9864765132
(d) 9435002698
(e) 9707791027
3. Your kind co-operation in this regard is highly solicited.
Thanking you.
Yours sincerely
Sd/-
(S Anil Kumar)
Wing Commander
Asstt. Provost Marshal.”
89. From a cautious reading of the contents of the above letter,
certain indigestible facts emerge on record. With the help of the letter,
dated 12.07.2012, respondent No.8 had asked for records of call details
falsely projecting and thereby misleading that Superintendent of
Police, Dibrugarh, that a Court of Inquiry was already in progress;
whereas Court of Inquiry was, admittedly, convened by order, dated
16.07.2012, and the proceedings of the Court of Inquiry commenced on
17.07.2012.
90. Thus, despite the fact that respondent No.8 has been caught
lying, no action has been initiated against him by the respondent No.4
and/or respondent No.5 and not a word of remorse has been expressed
by any of the respondents, particularly, respondent No.8, in this
regard.
91. The facts, pointed out above, which, according to us, are
indigestible, leave us with no option, but to infer that respondent No.8 Page No. 66
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had been informally and discreetly informed that a Court of Inquiry
was going to be ordered and, that is why, even before the Court of
Inquiry was called, respondent No.8 had the audacity to address a
letter to the Superintendent of Police, Dibrugarh, asking him to furnish
the call details by falsely projecting that a Court of Inquiry was in
progress. No word of defence to this action of the respondent No.8
could be said by the respondent No.8 or by other respondents, when
the writ petition was heard. These true and unavoidably noticeable
facts give rise to the inference, which supports the petitioner’s
contention, that there was, indeed, a collusion amongst respondent
Nos.4, 5 and 8 as against the petitioner and, pursuant to this collusive
design, actions and steps were taken one after the other against the
petitioner. This apart, respondent No.8, in his letter, dated 12.07.2012,
addressed to the Superintendent of Police, Dibrugarh, has claimed to
have exercised his power to call for the records of a civilian lady by
resorting to Section 108 of the Air Force Act, 1950.
92. Let us, therefore, pause and look into the provisions of Section
108 of the Air Force Act, 1950, which, we find, reads as under:
“108. Provost-marshals. – (1) Provost-marshals may be appointed by
the Chief of the Air Staff or by any prescribed officer.
(2) The duties of a provost-marshal to take charge of persons confined
for any offence, to preserve good order and discipline, and to prevent
breaches of the same by persons serving in, or attached to, the Air
Force.Page No. 67
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(3) A provost-marshal may at any time arrest and detain for trial any
person subject to this Act who commits, or is charged with, an offence,
and may also carry into effect any punishment to be inflicted in
pursuance of the sentence awarded by a court-martial, or by an officer
exercising under section 82 but shall not inflict any punishment on his
own authority:
Provided that no officer shall be so arrested or detained otherwise than
on the order of another officer.
(4) For the purposes of sub-section (2) and (3), a provost-marshal shall
be deemed to include a provost-marshal appointed under the Army Act
or the Navy Act and any person legally exercising authority under him
or on his behalf.”
93. A careful reading of Section 108 makes it clear that this Section
(Section 108) embodies the duties of a Provost Marshall, the duties
being to take charge of persons confined for any offence, to preserve
good order and discipline and/or to prevent breach of the same by a
person serving in, or attached to, the Air Force. Though a Provost
Marshall has the power to arrest and detain, for trial, a person, who
commits, or is charged with, an offence, he does not have the power to
ask call details of a civilian. Respondent No.8 did not, however, mind
going beyond his powers, conferred by Section 108, and yet the
remaining respondents remained silent and took no action against
respondent No.8.
94. In fact, in a case of present nature, on having noticed the
contents of the letter, dated 12-07-2012, it was the duty of the
respondent Nos. 4 and 5 and also the Air Headquarter to initiate Page No. 68
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appropriate action against respondent No. 8 for going far beyond his
powers and for making palpably a false statement. No such action has
been taken against the respondent No. 8 either because he is, as alleged
by the petitioner, a part of the whole collusive design of the
respondents to fix the petitioner or, here again, the superior authorities
of the Air Force have adopted double standard by ignoring the
conduct, otherwise unbecoming, of an Assistant Provost Marshall. Yet
another explanation can be that the superior authority, in the hierarchy
of Air Force, were, as contended on behalf of the petitioner, scared to
take against the respondents lest he spills the beans.
95. Coming to the Court of Inquiry, which was ordered on 16-07-
2012, and started its proceeding on 19-07-2013, it needs to be noted that
the Court of Inquiry was convened by respondent No. 4, who
appointed his subordinate officers constituting the Court of Inquiry
and these sub-ordinate officers, as rightly pointed out by the petitioner,
report to respondent No.4 as members of the Court of Inquiry, when
the allegations, in the set of 90 anonymous complaints, include the
respondent No. 4 himself. Thus, respondent No. 4 not merely became,
or was allowed to become, the Judge of his own cause, but also
constituted a Court of Inquiry consisting of officers, who are
subordinate to him and are required to report to him.
96. While dealing with the Court of Inquiry, imperative it is to note,
as we have already pointed out above, that the anonymous letter, Page No. 69
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which was allegedly received on 07-03-2012, had clearly cast
aspersions on the character and service reputation of the petitioner and
respondent No.7, appearing as witness No. 1 in the Court of Inquiry,
stated that he had been informed by his staff that the petitioner had
been seen with Ms. ‘X’, late at night, during May, 2011. The statement,
so made by respondent 7, as witness No. 1, undoubtedly, affected the
service reputation of the petitioner and provisions of Rule 156 (2) of the
Air Force Rules, 1969, ought to have been followed, but either
oblivious of their duty or deliberately, the Court of Inquiry, knowing
fully well that the proceedings of the enquiry were adversely affecting
the character and service reputation of the petitioner, who was an Air
Force Officer, continued with the proceedings of the Court of Inquiry,
without associating the petitioner with the enquiry, though he ought to
have been so associated, when it was his character and service
reputation, which were being scathed upon.
97. In the light of the contents of the anonymous letter and the ‘terms
of reference’, respondent No. 6, acting as the Presiding Officer of the
Court of Inquiry, ought to have taken recourse to the provisions of
Rule 156(2) and given full and effective opportunity to the petitioner to
defend himself. However, throwing to the wind, as has been done in
this case many a times, respondent No. 6 kept proceeding with the
Court of Inquiry by examining 5 more witnesses, whose statements
were against the petitioner. Page No. 70
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98. After 6 key witnesses had already been examined, behind the
back of the petitioner, at the Court of Inquiry, between 19-07-2012 and
24-07-2012, provisions of Paragraph 709 of Defence Service Regulations
(Air Force) was invoked on 24-07-2012 and the petitioner was accorded
an opportunity to cross-examine the witnesses, who had already been
examined behind the back of the petitioner and were, as rightly
pointed out on behalf of the petitioner, bound to support their
previous statements recorded in the absence of the petitioner.
99. The petitioner has, therefore, great justification in submitting
before this Court that when it was known to the Court of Inquiry that it
was the petitioner’s character or service reputation, which had been at
stake, he ought to have been associated with the proceedings of the
Court of Inquiry from its commencement, but the same was
deliberately not done so that the witnesses could be made or forced to
give statements, in the absence of the petitioner, in the manner as was
required to implicate the petitioner and make them thereby bound to
stand by their respective statements, which were to be recorded, and
have been recorded, in the absence of the petitioner. Thus, the
mandatory procedural requirement, which the Court of Inquiry ought
to have followed, was, grieved the petitioner, blatantly violated with
ulterior motive and pre-determined mind vitiating thereby the entire
proceedings of the Court of Inquiry. Page No. 71
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100. Before we turn to what Rule 156(2) of the Air Force Rules, 1969,
requires, it is of great relevance to note, for the purpose of this case, the
contents of this Rule, i.e., Rule 156(2), which reads as under:
“156. (2) Save in the case of a prisoner of war who is still absent,
whenever any inquiry affects the character or service reputation of
a person subject to the Act, full opportunity must be afforded to
such person of being present throughout the inquiry and of making
any statements and of giving any evidence he may wish to make or
give, and of cross-examining any witness whose evidence, in his
opinion, affects his character or service reputation, and producing any
witnesses in defence of his character or service reputation.”
(Emphasis is added)
101. While it is the contention of the petitioner that Rule 156(2) was
applicable to the present Court of Inquiry, the respondents contend
that it was Para 790 of Defence Service Regulations (Air Force), which
governed, in the present case, the course of proceedings of the Court of
Inquiry, and that the Court of Inquiry has rightly proceeded in
accordance with what Para 790 required. This apart, according to the
respondents, even Rule 156(2) has been followed inasmuch as the
Court of Inquiry, having recorded the statements of 6 (six) witnesses,
allowed the petitioner to cross-examine these witnesses.
102. The respondents have, however, no answer to the question as to
why the petitioner was not associated with the Court of Inquiry from
its commencement, when his identity was known and when it was also Page No. 72
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known that the inquiry had been ordered on allegations, which were to
affect the character or service reputation of an Air Force officer.
103. Close on the heels of Rule 156(2), we, for the sake of
convenience, extract hereinbelow Paragraph 790 of the Defence Service
Regulations (Air Force):
“790. Action when Character, etc. of persons is affected
(a) As soon as it appears to the court that the character or
professional reputation of an officer or airman is affected
by the evidence recorded, or that he is to blame, the affected
person is to be so informed by the court. All the evidence
recorded up to that stage is to be read over to the affected person,
and the court is to explain to the person, if so required by him,
how, in its opinion, it appears that the officer's or airman's
character or professional reputation is adversely affected, or how
he appears to be to blame.
(b) From the time an officer or airman is so informed, in accordance
with sub-para (a) above he has the right to be present during
all the ensuing proceedings, except when the court is
deliberating privately. The fact that an officer or airman to
whom this para applies is or is not present will be recorded in
the proceedings.
(c) The affected officer or airman may, if he so desires, crossexamine
any witness whose evidence was recorded prior to the
action taken under sub-para (a) above. He may, likewise, crossexamine
subsequent witnesses after their statements have been
recorded. He may also request the court to record the evidence of Page No. 73
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any witness in his defence. The officer or airman may make any
statement in his defence.
(d) In case the officer or airman affected cannot, for any reason be
present to exercise his privilege under sub-paras (a), (b) and (c)
above, the court is to inform him by letter (or otherwise as may
be convenient) of the reasons why, in the opinion of the court,
his character or professional reputation appears to be affected, or
he appears to be to blame. The affected person may make a
statement in writing in denial, exculpation, or explanation. This
statement is to be attached to the proceedings, and the court is to
endeavour, by examining or recalling witnesses, to accord, to the
affected person, such protection as is intended in sub paras (a),
(b) and (c) above.
(e) If, after recording all the evidence, and after taking such action
under sub-paras (a) to (d) above as may be called for in the
circumstances the court is of the opinion that an officer or
airman is to blame, or that his character or professional
reputation, is affected, the entire proceedings are to be shown to
the affected person, and he is to be asked whether he desires any
further statement to make. Any such statement is to be recorded,
and fresh points are to be fully investigated by the court.
(f) The findings, and recommendations, if called for, of the court
may then be made in accordance with the terms of reference.
(g) An officer or airman to whom sub-para (a), (b), (c) or (d) applies
does not have the right to demand that the evidence be taken on
oath or affirmation, or, except so far as the assembling authority
or the court may permit, to be represented by a solicitor or other
agent.
(h) If the assembling authority attributes blame to an officer or, an
airman other than the officer or airman held to blame by the Page No. 74
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court, or attributes blame in a way substantially different from
that of the court, the proceedings will be returned to the
presiding officer of the court (without any endorsement on the
proceedings) by the assembling authority together with a
statement from the assembling authority as to why that
authority considers that blame should be attributed to such
officer or airman or in a way substantially different from that of
the court. This statement will form part of the court of inquiry
proceedings. The court of inquiry will be reconvened and the
court will show to the affected person the entire proceedings and
statement of the assembling authority. The court will then
obtain from the person any statement that he may wish to make
and record the evidence of any witnesses he may wish to call in
cross-examination or of any fresh witnesses. When complete, the
proceedings will be forwarded to the assembling authority
together with any additional findings and or recommendations
that the court may wish to record. The assembling authority will
endorse its remarks on the proceedings only after completion of
action under this para.
(j) If blame is attributed by any authority higher than the
assembling authority to an officer or airman other than the
officer or airman held to blame by the court or the assembling
authority, the proceedings will be returned to the assembling
authority together with such authority's statement for action as
per sub para (h) The concerned higher authority will
endorse its remarks on the proceedings, only after the
proceedings are received back from the assembling authority
after completion of action. When forwarding the proceedings to
higher authority after taking action under this para, the
assembling authority or any other intermediary authority may Page No. 75
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append remarks on any additional findings recommendations
made.
(k) The same court which originally investigated the particular
occurrence will, as far as possible, be reconvened for purposes of
sub-paras (h) and (j). A fresh court is to be assembled only in
exceptional circumstances.”
(Emphasis is added)
104. Mr. A. Choudhury, learned counsel for the petitioner, has
pointed out that Rule 156(2) of Air Force Rules, which pertains to
Court of Inquiry and falls under chapter VI, has been framed by the
Central Government by virtue of Section 189(2) (d) of Air Force Act,
1950, which permits the Central Government to make Rules providing
for assembly and procedure of courts of inquiry, the recording of
summaries of evidence and the administration of oaths of affirmation
by such courts.
105. Referring to Section 190 of the Air Force Act, 1950, which confers
powers on the Central Government to make regulations for all or any
of the purpose of the said Act, other than those already specified in
Section 189, Mr. Choudhury, learned counsel, points out that Section
190 of the Air Force Act, 1950, makes it clear that on and from the date
of promulgation of the Air Force Rules, 1969, which came into effect on
24.09.1969, (when the Rules aforementioned were published in the
official gazette), Para 790 of the Defence Service (Air Force)
Regulations seized to have affect and, therefore, in the face of the Page No. 76
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specific provisions embodied in Rule 156(2), as regards the manner in
which a Court of Inquiry shall be conducted, Para 790 does not apply.
106. Apart from the fact that the above submissions of Mr.
Choudhury could not be countered by the respondents, it is
noteworthy that Section 189 does, indeed, empower the Central
Government to make rules with regard to, inter alia, assembly and
procedure of courts of inquiry. What Section 190 seeks to convey can
be best understood if Section 190 is carefully read. Section 190 is,
therefore, reproduced below:
“The Central Government may make regulations for all or any
of the purposes of this Act other than those specified in section 189.”
107. A cursory glance on Section 190 shows that the Central
Government may make regulations for any of the purposes of the Air
Force Act, 1950, other than, of course, those, which are specified in
Section 189.
108. When Section 190 is read in juxtaposition with Section 189, it
becomes clear that the Central Government may make regulations only
for the purposes, which are not specified in Section 189. Except those
matters, therefore, which Section 189 deals with, no regulation can be
framed. Viewed from this angle, when Section 189 has already
empowered the Central Government to make rules providing for, inter
alia, assembly and procedure of Court of Inquiry, no regulations, in Page No. 77
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exercise of powers under Section 190, could have been framed by the
Central Government.
109. Considering, however, the fact that at the time, when
appropriate rules, providing for assembly and procedure of courts of
inquiry, had not been framed, the Central Government could have
issued executive instructions to fill up the gap in this area. Para 790 of
the Defence Service (Air Force) Regulations has to be, therefore, read as
an executive instruction, which filled up the void that existed at the
relevant point of time. However, with the enforcement of Section
156(2), which provides for assembly and procedure of Court of
Inquiry, Para 790 of the Defence Service (Air Force) Regulations cannot
be resorted to, particularly, to a case, where the provisions of Rule
156(2) squarely apply.
110. Coupled with the above, there is, as already indicated above,
fundamental distinction between Para 790, on the one hand, and Rule
156(2) on the other. Rule 156(2) makes it clear that except in the case of
a prisoner of war, who is still absent, whenever any inquiry affects the
character or service reputation of a person subject to the Act, full
opportunity must be afforded 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, affects his character or service Page No. 78
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reputation and producing any witnesses in defence of his character or
service reputation.
111. In the face of sub-Rule (2) of Rule 156 of the Air Force Rule, 1969,
there can be no escape from the conclusion that when it is known, in a
case, such as the present one, that the Court of Inquiry has been
convened to examine the allegations, made against a person, who is
subject to the Air Force Act, 1950, adversely affecting his character or
service reputation, the person, against whom the allegations are made,
ought to be accorded ‘full opportunity’ of being present throughout the
inquiry.
112. As against the stage, when Rule 156(2) gets attrated, Para 790
comes into play, when it is not known as to whether the Court of
Inquiry is likely to affect the character or professional reputation of a
person. In such circumstances, as and when the Court of Inquiry finds
that the character or professional reputation of an officer or airman is
affected by the evidence recorded, or that he is to be blamed, the
affected person has to be so informed by the court, all the evidence
recorded, up to that stage, has to be read over to the affected person
and the Court of Inquiry has to explain to the person, if so required by
him, how, in the opinion of the Court of Inquiry, the officer's or
airman's character or service reputation was being adversely affected
or how he appeared to be blameworthy.Page No. 79
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113. Thus, while Para 790 comes into play after materials are brought
on record adversely affecting the character or professional reputation
of a person subject to the Air Force Act, 1950, Rule 156(2) comes into
play, where the Court of Inquiry is aware of the fact, even before the
commencement of the proceedings of the Court of Inquiry, that the
materials, to be brought on record, would affect the character or
service reputation of a person subject to the Air Force Act, 1950, and, in
such a case, he must be afforded full opportunity of being present
throughout the proceedings of the Court of Inquiry, i.e., from the
commencement of the proceedings until the proceedings end.
114. In order to put it a little differently, Para 790 comes into effect
when, during the progress of the proceedings of the Court of Inquiry,
the character or service reputation of a person is found to be adversely
affected by the materials brought on record. As and when the person’s
identity surfaces, he has to be associated with the inquiry giving him
an opportunity to cross-examine all those witnesses, who might have
been examined before the person concerned was associated with the
proceedings of the Court of Inquiry; whereas Section 156(2) speaks of a
situation, wherein the Court of Inquiry has the identity of the person,
whose character or service reputation was under attack, and, in such a
situation, the person concerned, such as the petitioner, has to be
associated with the proceedings of the Court of Inquiry throughout,
i.e., from the beginning to the end.Page No. 80
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115. In the case at hand, it was already clear from a bare reading of
the anonymous letter, received on 07.03.2012, at the Headquarter,
Eastern Air Command, and which gave rise to the Court of Inquiry,
that allegations had been made against character or service reputation
of the petitioner and his character or service reputation was
substantially the subject of determination by the Court of Inquiry and
he ought to have been, therefore, associated with the proceedings of
the Court of Inquiry from its commencement. This was, however, not
done.
116. Concedes the respondents, at the time of hearing, that in the
factual background of the present case, the Court of Inquiry ought to
have associated the petitioner with the proceedings of the enquiry
from the commencement thereof and given him, thus, full opportunity
from the very inception of the proceedings to be present at the enquiry,
hear the witnesses’ statements and cross-examine them, but the same
had not been done.
117. To wriggle out of the situation, it has been submitted by Mr.
Subramaniam, learned ASG, that mere violation of Rule 156(2) would
not vitiate the proceedings of the Court of Inquiry unless prejudice is
shown to have been caused to the petitioner, because of his not being
associated with the proceedings of the Court of Inquiry from its very
inception. Page No. 81
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118. The question, therefore, is as to whether Rule 156(2) is
mandatory or not and, if Rule 156(2) is mandatory, whether its
violation would vitiate the entire proceedings of the Court of Inquiry if
no prejudice is shown to have been caused ?
119. While the petitioner wants this Court to answer the question so
posed in the affirmative, the respondents insist that the provisions,
embodied in Rule 156(2), are not mandatory and even if the provisions,
contained in Rule 156(2) are taken to be mandatory, violation thereof
would not vitiate the proceedings of the Court of Inquiry unless it is
shown that the violation has caused prejudice to the person concerned.
120. While, in support of his contention that Rule 156(2) is
mandatory, Mr. Choudhury, learned counsel, has placed reliance on
the decisions, in Lt. Gen. S.K. Dahiya Vs. Union of India and others,
reported in (2007) ILR 4 Delhi 189, and Maj. Gen. S.K. Sahni Vs.
Union of India and others, reported in 105 (2003) DLT 211, the learned
ASG refers to Haryana Financial Corporation vs. Kailash Chand,
reported in (2008) 9 SCC 31, as authority for his proposition that mere
violation of Rule 156(2) would not, in the absence of prejudice, vitiate
the proceedings of the Court of Inquiry.
121. While considering the question as to whether Rule 156(2) is or is
not mandatory, we notice that in De Smith’s Judicial Review, 6th
Edition, at para 7, the author has observed, ‘when a mandatory procedure
is set out in a statute, it must be followed.’Page No. 82
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122. It needs to be borne in mind that Rule 156(2) and Rule 180 of the
Army Rules, 1969, are pari mateia. The Courts have been consistent that
observance of the provisions of Rule 180 is not a matter of formality,
but mandatory requirement and that their compliance, in letter and
spirit, is necessary. Conversely, therefore, non-compliance of Rule 180
would prove fatal to subsequent disciplinary proceeding and
administrative action.
123. Reference made, on the above aspect of the case, by Mr. A.
Choudhury, learned counsel for the petitioner, to the case of Lt. Gen.
S.K. Dahiya (supra), is not misplaced, wherein the Court has held that
Rule 180 is mandatory in character.
124. For the conclusion, so reached, Delhi High Court, in Lt. Gen.
S.K. Dahiya (supra), has assigned two reasons. Firstly, because the use
of the expression "full opportunity must be afforded", appearing in Rule
180, are a clear enough indication that the rule making authority
intended the provision to be mandatory. The second, but equally
weighty reason why Rule 180 must be held to be mandatory is that
Rule 180 recognizes the need for the grant of an opportunity to an
officer to defend his character and reputation in any inquiry, where the
enquiry is likely to affect his reputation, because reputation and
character of an individual are his most valued possessions and
fundamental to his existence as a human being. The relevant Page No. 83
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observations, appearing in Lt. Gen. S.K. Dahiya (supra), read as
under:
“21. Applying the dual test of the object underlying the
provision and the language employed in the same, we are of the
opinion that Rule 180 (supra) is mandatory in character.
We say so for two distinct reasons. Firstly, because the
use of the words "full opportunity must be afforded"
appearing in Rule 180 are a clear enough indication that
the rule making authority intended the provision to be
mandatory. As observed in Lachmi Narain's case (supra), the
use of words like 'must' instead of 'shall' is by itself sufficient
for the court to declare that the provision is mandatory in nature
making pursuit of any further enquiry unnecessary. What puts
the matter beyond the pale of any doubt is the obligation which
the rule casts upon the presiding officer of the Court to take all
such steps as may be necessary to ensure that any person whose
character or military reputation is affected by the enquiry
receives notice of the enquiry and fully understands his rights
under the rule. It leaves no manner of doubt that the
requirement of affording an opportunity of being present in the
enquiry and of cross-examining the witnesses or giving evidence
in defense is mandatory, for otherwise neither the language of
the rule would have been what it is nor would the rule have
taken that extra care to ensure that those affected by the inquiry
not only get a notice, but fully understand their rights under the
Rule.
22. The second but an equally weighty reason why the rule
must be held to be mandatory is that the same recognizes
the need for the grant of an opportunity to an officer to Page No. 84
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defend his character and reputation in any inquiry where
the same is likely to be affected. Reputation and character
of an individual are his most valued possessions. They are
held in greater esteem than great riches for an injury to ones
reputation and character inflicts a greater suffering than is
inflicted by loss of property. Reputation of an individual was
recognized by the Supreme Court as a part of fundamental
right to life guaranteed under Article 21 of the
Constitution in State of Bihar v. Lal Krishna Advani and
Ors. The Court was in that case dealing with the findings
recorded by a Commission of Inquiry without notice to the
affected person. Even when the recommendations made by the
Commission did not ipso facto result in any punitive action
against those affected by the same, their Lordships held that just
because no proceedings had been initiated against the affected
party did not mean that the findings could not be questioned on
the ground of violation of the principles of natural justice. The
Court not only recognized the significance of reputation of an
individual as one of his most valued possessions, but declared
reputation to be a part of the right to life and observed:
Right to reputation is a facet of the right to life of a
citizen under Article 21 of the Constitution. In case any
authority, in discharge of its duties fastened upon it under
the law, traverses into the realm of personal reputation
adversely affecting him, it must provide a chance to him
to have his say in the matter. In such circumstances right of
an individual to have the safeguard of the principles of natural
justice before being adversely commented upon by a Commission
of Inquiry is statutorily recognized and violation of the same
will have to bear the scrutiny of judicial review.Page No. 85
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23. To the same effect is the decision of the Supreme Court
in Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and Kiran Bedi v. Committee of
Inquiry which approved the following passage from an
American decision in D.F. Marion v. Minnie Davis 55
American LR 171:
The right to enjoyment of a private reputation, unassailed by
malicious slander is of ancient origin, and is necessary to human
society. A good reputation is an element of personal security,
and is protected by the Constitution equally with the right to the
enjoyment of life, liberty and property.
24. There is in the light of the above, no gainsaying that what
the rule making authority intended to do was to ensure that no
prejudice is caused to a person whose character or military
reputation was likely to be affected by reason of the denial of an
opportunity to him to participate in the enquiry, cross-examine
the witnesses and to adduce evidence in his defense. It would
not, therefore, be unreasonable to say that having regard
to the significance attached to the reputation of an
individual whether military or otherwise and his
character, the right to participate in an enquiry to clear
his name by cross-examining the witnesses or adducing
evidence in his defense may be implicit in the nature of the
enquiry and its implications. So long as the Court of Inquiry
proceedings can be used for taking administrative action, as has
happened in the instant case, it would be hazardous to recognize
the legality of any such inquiry unless there is an inbuilt
mechanism ensuring a fair opportunity to the person affected by
the same to participate in the inquiry and to prove his innocence.
Such being the position, Rule 180 simply codifies the said Page No. 86
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requirement in explicit terms to avoid miscarriage of
justice and complications arising out of a denial of
opportunity to the affected person. We have, therefore, no
difficulty in holding that Rule 180 of the Army Rules is
mandatory in character.”
(Emphasis is added)
125. There is uniformity in the judicial opinion that whenever
reputation and character of a person, subject to the Army Act, is likely
to be affected, requirements of law, as embodied in Rule 180, must be
complied with and, to this extent, provisions of Rule 180 are
mandatory. The reference, made, in this regard, by Mr. Choudhury,
learned counsel for the petitioner, to the case of Lt. Gen. S.K. Sahni v.
Chief Of Army Staff & Ors., decided on 11.01.2007, is not misplaced,
wherein a Division Bench of Delhi High Court, while considering the
question of the scope and impact of Rule 180, observed, at paragraph
26 and 29, thus:
“26. Holding of a court of enquiry may not be essential
and would be at the discretion of the competent authority but
once the authority exercises its powers to hold such an enquiry
and where the enquiry affects or is likely to affect the character
or military reputation of a person subject to the Act, then
compliance to the requirements of Rule 180 would be
mandatory. The language of the Rule is certain and
unambiguous, capable of only one interpretation i.e. that
to afford a full opportunity in terms of this provision is
the responsibility of the competent authority. This
obligation and burden is incapable of being shifted at the Page No. 87
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initial stage. Once an opportunity is afforded at the initial
stage then it is for the concerned Officer whose character or
military reputation is being affected or is likely to be affected, to
exercise the option in regard to what evidence he wishes to give,
which witnesses he wishes to cross-examine and what defense, if
any, he wishes to lead.
XXX XXX XXX
29. To the same effect are the decision of the High Court of
Jammu & Kashmir in Vinayak Daultatrao Nalawade v. Core
Commander, Lt. Gen. G.O.C.H.Q. 15 Corps. 1987 Labour
Industrial Cases 860 and the Single bench decision of the High
Court of Punjab & Haryana in G.S. Sandhu v. UOI and
Ors. 2002 (2) SLR 120. There is, in the light of the above
authoritative pronouncements, no gainsaying that Rule 180
(supra) is mandatory in character and that violation of
the same would vitiate the Court of Inquiry.”
126. From the above observations made by the Supreme Court, in Lt.
Gen. S.K. Sahni (supra), what logically follows is that since the
character and reputation of a person are of immense importance to his
existence as a human being, Rule 180 aims at protecting this aspect of a
person’s life and, that is why, Rule 180 requires a person, whose
character or reputation is under stake, to be associated with the
proceedings of the Court of Inquiry from beginning to the end and, to
this extent, Rule 180 is mandatory and violation thereof has to be
treated to have caused prejudice to him unless it can be shown
otherwise by those, who violate the procedural safeguards, which Rule Page No. 88
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180 of the Army Rules, 1950,or Rule 156(2) of the Air Force Rules, 1969,
as the case may be, provides to a person, whose character or service
reputation is under attack.
127. When reputation of a person is so fundamental to his existence
that it has been recognized as a basic human right so as to enable him
live with dignity and it has also been recognized, in the light of the
decision in State of Bihar Vs. Lal Krishna Advani (AIR 2003 SC 3357),
as a part of the fundamental right guaranteed by Article 21 of our
Constitution, one cannot ignore the fact that except to the extent and in
the manner this right to reputation has been restricted, abridged or
abrogated by the Parliament by making law, in respect of a member of
armed forces, even a person, subject to the Army Act, 1950, and/or the
Air Force Act, 1950, cannot be denuded of his right to protect his
reputation from being damaged. See, in this regard, the cases of Lt. Col
Prithvi Pal Singh Bedi (supra) and Kiran Bedi v. Committee of
Inquiry & Anr., reported in (1989) 1 SCC 494, too.
128. In the case of Ranjit Thakur v. Union of India and Ors.,
reported in (1987) 4 SCC 611, while considering the procedural
safeguards, prescribed for a person subject to the Army Act, the
Supreme Court, in the context of Court Martial proceeding, observed
thus:
“11. The procedural safeguards contemplated in the Act
must be considered in the context of and corresponding to the Page No. 89
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plenitude of the summary jurisdiction of the court-martial and
the severity of the consequences that visit the person subject to
that jurisdiction. The procedural safeguards should be
commensurate with the sweep of the powers. The wider the
power, the greater the need for the restraint in its exercise and
correspondingly, more liberal the construction of the procedural
safeguards envisaged by the statute. The oft-quoted words of
Frankfurter, J. in Vitarelli v. Seaton are again worth
recalling:
“. . .if dismissal from employment is based on a defined
procedure, even though generous beyond the requirements that
bind such agency, that procedure must be scrupulously
observed…. This judicially evolved rule of administrative law is
now firmly established and, if I may add, rightly so. He that
takes the procedural sword shall perish with that sword.”
12. “The history of liberty” said the same learned
Judge “has largely been the history of observance of
procedural safeguards” (Emphasis added)
129. It has been contended by the learned ASG that a Court of
Inquiry is merely a fact finding body and, hence, non-compliance of
Rule 156(2) would not vitiate the proceedings. While considering this
aspect of the case, it needs to be noted that a Court of Inquiry is not
essential and depends on the discretion of the competent authority to
convene or not to convene. However, once the authority exercises its
power to hold such an enquiry and whenever the enquiry affects the
character or service reputation of a person subject to the Air Force Act, Page No. 90
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1950, then, compliance with the requirements of the provisions,
embodied in Rule 156(2), would be mandatory.
130. While considering the question of compliance with the
procedural safeguards, which Rule 156(2) seeks to provide to a person,
whose character or service reputation is under attack, it needs to be
pointed out that the procedure, which Rule 156(2) of the Air Force Act,
1969, prescribes, is same as the procedure laid down by Rule 180 of the
Army Rule, 1954. In substance and effect, both these Rules, in order to
safeguard a person’s character or service or military reputation, require
the procedure, prescribed therefor, to be scrupulously followed, for,
the reputation of a person is so fundamental to his existence that it
becomes a facet of his right to life to live with dignity guaranteed by
Article 21 and cannot be allowed to be violated. In such a case, one,
who convenes the Court of Inquiry, has to ensure scrupulous
compliance of Rule 156(2) or Rule 180, as the case may be; or else, the
convening order and the resultant inquiry must perish. To put it
pithily, in the words of Frankfurter, J, in Vitarelli vs. Seaton, reported
in 359 US 535, “. . .if dismissal from employment is based on a defined
procedure, ………….. that procedure must be scrupulously observed…….
This judicially evolved rule of administrative law is now firmly established
and, if I may add, rightly so. He that takes the procedural sword shall
perish with that sword. The history of liberty has largely been the history
of observance of procedural safeguards”Page No. 91
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(Emphasis is added)
131. In the context of the procedural safeguards, which have been
provided under Rule 156(2), one may also refer to the observations,
made by Douglas, J, in Joint Anti-Fascist Refugee Committee vs.
McGrath, reported in 341 US 123, which read as under:
“… It is procedure that spells much of the difference between
rule of law and rule of whim or caprice. Steadfast adherence to strict
procedural safeguards [are the main assurances] that there will be equal
justice under law.”
132. Because of the fact that Rule 156 (2) is meant to protect the
character and service reputation of a person, the principle, enunciated
in the case of Taylor v. Taylor, reported in [1875] 1 Ch D 426,and
followed in Nazir Ahmed v. King Emperor, LR 63 IA 372, shall be
applied in the sense, as observed by the Judicial Committee of the
Privy Council, “...Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all...”.
133. The above principle has been reiterated in several decisions of
the Supreme Court including State of U.P. vs. Singhara Singh (AIR
1964 SC 358), wherein the Supreme Court observed thus:
“8. The rule adopted in Taylor v. Taylor is well recognised
and is founded on sound principle. Its result is that if a statute
has conferred a power to do an act and has laid down the
method in which that power has to be exercised, it necessarily
prohibits the doing of the act in any other manner than that Page No. 92
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which has been prescribed. The principle behind the rule is that if
this were not so, the statutory provision might as well not have
been enacted. A Magistrate, therefore, cannot in the course of
investigation record a confession except in the manner laid down in
Section 164. The power to record the confession had obviously been
given so that the confession might be proved by the record of it made in
the manner laid down. If proof of the confession by other means was
permissible, the whole provision of Section 164 including the
safeguards contained in it for the protection of accused persons would
be rendered nugatory. The section, therefore, by conferring on
Magistrates the power to record statements or confessions, by necessary
implication, prohibited a Magistrate from giving oral evidence of the
statements or confessions made to him.”
(Emphasis added)
134. We may also point out that contrary to what the respondents
contend, Rule 156(2) is not restricted by Rule 156(7) inasmuch as the
provisions of these two Rules cover two different aspects and different
fields and, therefore, apply to two distinctly different spheres. While
Rule 156(2) comes into play the moment a Court of Inquiry commences
its proceeding, Rule 156(7) comes into operation, when the Court of
Inquiry concludes its proceedings.
135. It is in the above context that a Division Bench of Delhi High
Court, while considering the provisions of Rule 180 of the Army Rules,
observed, in Major R. K. Sareen vs. Union of India, reported in ILR
(2011) Delhi II 684, as under:Page No. 93
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“22. A bare reading of Rule 180 shows that the sine qua non for
application of Rule 180 in respect of a person in an inquiry is that the
inquiry must affect or likely to affect the character or military
reputation of that person. The necessary corollary thereof is that Rule
180 should be applied from the time when the inquiry affects or is likely
to affect the character or military reputation of a person. Where an
inquiry is directed against a specific person Rule 180 should be
applied in respect of said person from the very inception of the
inquiry for in such a case the character or military reputation of
the said person would be affected or likely to be affected from
the very inception of the inception of the inquiry. However where
an inquiry is a general inquiry and not directed against any individual
but affects or likely to affect character or military reputation of a person
Rule 180 should be applied in respect of such person from the time the
inquiry affects or is likely to affect his character or military reputation
for in such a case the character or military reputation of the said person
would be affected or likely to be affected only during the course of the
inquiry and not from the very inception of the inquiry. Similarly where
an inquiry is directed against a person but affects or is likely to affect
the character or military reputation of another person Rule 180 should
be applied in respect of such other person from the time the inquiry
affects or likely to affect his character or military reputation.”
(Emphasis is added)
136. Though Mr. Subramaniam has placed reliance on Haryana
Financial Corporation Vs. Kailash Chand, reported in (2008) 9 SCC
31, it is a case pertaining to departmental enquiry, where the charged
employee was not furnished with a copy of the inquiry report. It was,
in the light of the decision, in Union of India Vs. Md. Ramzan Khan, Page No. 94
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reported in (1991) 1 SCC 588, that the Court refused to interfere with
the penalty imposed on the petitioner, because non-supply of the
enquiry report to a delinquent employee would not ipso facto render
the proceeding null and void unless the delinquent employee pleads
and proves that non-supply of the report has caused prejudice and
miscarriage of justice. The decision, in Haryana Financial Corporation
(supra), is not applicable to the facts of the case at hand, where a
number of issues are intrinsically interlinked to each other and form
such a chain that the chain cannot be severed and one aspect of the
case cannot be considered extricated from, or independent of, the
other. More so, when Rule 156(2), as already discussed above, aims at
protecting the reputation of a person and when the reputation of a
person is concomitant to his right to life to live with dignity within the
meaning of Article 21.
137. Though the respondents have also relied on the decision in
Union of India Vs. G.S. Bajwa, reported in (2003) 9 SCC 630, it may be
noted that G.S. Bajwa (supra) was a case, wherein General Court
Martial had concluded and sentence of dismissal from service had
been challenged on the ground that he was deprived of his
fundamental right of not being permitted to be represented by a
counsel of his choice at State expense and, in the light of the provisions
of the Air Force Act, 1950, the Supreme Court held, in G.S. Bajwa
(supra), that provisions of the Air Force Act, 1950, cannot be Page No. 95
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challenged on the ground that it infringes the fundamental right
guaranteed under Article 21; more so, when G.S. Bajwa had failed to
establish as to how he was unable to engage the service of a counsel on
account of poverty or indigence. The observations of the Supreme
Court, made, in this regard, in G.S. Bajwa (supra), read, “the
provisions of the Act and the Rules were scrupulously followed in the
conduct of the Court Martial proceedings and the respondent chose to
defend himself without seeking the help of the defending officer or the
friend of the accused. It, therefore, does not lie in his mouth to
complain that he was prejudiced in his defence on account of the State
not providing him defence counsel at State expense. The finding
recorded by the High Court is, therefore, wholly unsustainable”.
(Emphasis is added)
138. In the present case, the petitioner’s grievance is not merely that
he has not been supplied the day-to-day proceedings of the Court of
Inquiry. Far from this, the petitioner’s grievance is with regard to not
supplying to him, at the time, when he was associated with the
enquiry, copies of those documents, which formed the basis of the
enquiry, so that the expression ‘full opportunity’, as envisaged by Rule
156 (2), is not rendered lifeless and facile.
139. We are, indeed, disturbed to note that two decisions, namely,
Union of India Vs. Himmat Singh Chahar, reported in (1999) 4 SCC
521, and Natwar Singh Vs. Director of Enforcement, reported in Page No. 96
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(2010) 13 SCC 255, and Major AR Malhotra Vs Union of India,
reported in Mil LJ 2005 J&K 184, were included in the compilation of
the respondents, but have not been cited by the respondents at the time
of hearing. Nonetheless, it may be noted that the decision, in Himmat
Singh Chahar (supra), does not apply to the facts of the present case.
140. Mr. Choudhury has rightly pointed out that the practice of filing
of judgments in compilation, but not citing, has been disapproved by
the Supreme Court, in Natwar Singh (supra), in the following words:
“Practice of inclusion of list of judgments in
compilations not cited at the Bar
53. Before parting with the judgment, we are constrained
to observe with some reluctance about the recent practice
and procedure of including list of authorities in the
compilation without the leave of the Court. In many a
case, even the Senior Counsel may not be aware of
inclusion of such authorities in the compilation. In our
considered opinion, this Court is not required to consider
such decisions which are included in the compilation
which were not cited at the Bar. In the present case,
number of judgments are included in the compilation
which were not cited at the Bar by any of the counsel. We
have not dealt with them as we are not required to do so.
At any rate, all those judgments deal with the procedural
aspects and concern the interpretation for various
provisions of the Code of Criminal Procedure applicable
to a criminal trial and they are totally irrelevant for the
purposes of deciding the issue that had arisen for our
consideration in the present case.”Page No. 97
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141. Be that as it may, Himmat Singh Chahar (supra) considers the
jurisdiction of the High Court under Article 226 over the findings of
the General Court Martial. The decision, in Himmat Singh Chahar
(supra), goes in favour of the petitioner inasmuch as it has been clearly
held by the Supreme Court, in Himmat Singh Chahar (supra), that if
there is an infraction of any mandatory provisions of the Act
prescribing the procedure, which has caused miscarriage of justice, or
that the authority, exercising the jurisdiction had not been vested with
jurisdiction under the Act, the High Court is entitled to exercise its
power of judicial review.
142. Similarly, Maj. AR Malhotra (supra) is one, where identity of
the person involved was not known, when the Court of Inquiry
commenced; whereas, in the case at hand, the person involved stood
identified and not a word could be submitted, on behalf of the
respondents, as to why even, on knowing that the petitioner was the
one against whom allegations of maintaining improper relationship
with the wives of his sub-ordinate officers had been made and the
same formed substantially the subject-matter of enquiry, the petitioner
was still kept away from being associated with the proceedings of the
enquiry until the time statements of six key witnesses were brought on
record. This apart, and as we would show, the Court of Inquiry has
used the statements of some witnesses recorded behind the back of the Page No. 98
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petitioner and, that too, without giving the petitioner any opportunity
whatsoever of cross-examining the witnesses.
143. We have pointed out above that respondent No.4, in the present
case, has become the Judge of his own cause violating thereby the
fundamental principle of natural justice, which stands incorporated in
the maxim ‘Nemo Debet Esse Judex in Propria Sua Causa’.
144. The inference, which we have drawn above, that the manner in
which ‘terms of reference’ have been set is not only discriminatory, but
also biased, prejudiced and mala fide is, primarily, because of the reason
that it could not be explained, on behalf of the respondents,
particularly, respondent No.4, as to why the ‘terms of reference’ did not
incorporate the requirement of determining the truthfulness and
veracity of the accusations, which had been made, in the set of 90
anonymous letters, against the respondent Nos. 4 and 5.
145. There is yet another aspect of the present case in the context of
Rule 156(2) of the Air Force Rules, 1969, which no court can, perhaps,
ignore.
146. Article 21 guarantees to every person, including a person subject
to the Air force Act, 1950, that he would not be deprived of his life
except in accordance with the procedure prescribed by law. The law
prescribed must, therefore, be, in the light of the decision, in Maneka
Gandhi vs. Union of India, reported in (1978) 1 SCC 248, just, fair and
reasonable. When the right to reputation is a concomitant to the right Page No. 99
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to life and this right is so important that it falls, in the light of the
decision, in Lal Krishna Advani (supra), within the ambit of Article
21, one cannot but hold that the right to reputation is another facet of
the right to life inasmuch as a person has the basic right to live with
dignity and if the right to reputation is not protected, it would amount
to denial of the right to a human being to live with dignity in a humane
society.
147. Whenever, therefore, an attack is made on the character or
reputation of a person, the law has always protected such an attack
except in the manner in which an attack, on the character or reputation
of a person, in the wisdom of the law maker, is made permissible. In
this context, when we carefully analyse Rule 156(2), we have no
hesitation in our mind that if a Court of Inquiry is not made to follow
the procedure prescribed by 156(2), whenever Rule 156(2) is applicable,
the proceedings of the Court of Inquiry have to be treated as unjust,
unfair and unreasonable. The findings, which may emerge from such
a strongly manipulated, continuously controlled, well crafted and
carefully guided Court of Inquiry, as in the present case, cannot be
allowed to become the basis of prosecution and has to be struck down;
or else, the prosecution would amount to persecution and would cease
to become a facet of administration of justice.
148. No wonder, therefore, that Rule 156(2), same as Rule 180,
requires that a person, whose character or service reputation is affected Page No. 100
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by the Court of Inquiry, must be associated with the proceedings of the
Court of Inquiry throughout, i.e., from the commencement of the
proceedings until the end of the proceedings.
149. In short, the violation of the right, which has been conferred on a
person by Rule 156(2), same as Rule 180, must be treated to have
vitiated the Court of Inquiry unless it is shown by the authority
concerned that notwithstanding the violation of the provisions of Rule
180 or Rule 156(2), no prejudice has been caused to the person, who
has been proceeded against. The violator of the provisions of Rule
156(2) cannot demand that prejudice be proved by the person, whose
rights have been violated. When the basic right of a person is violated
or infringed, it is the person, violating such a vital right, who has the
burden to show that notwithstanding such violation, no prejudice has
been caused.
150. In the backdrop of the above position of law, when we revert to
the case at hand, we notice that the petitioner made repeated requests
for furnishing him, inter alia, copies of the ‘terms of reference’ and copies
of anonymous letters, which formed the subject-matter of enquiry; but
none of these materials was furnished to him. Amazingly enough, the
respondents’ reply has been that there is no provision to furnish the
‘terms of reference’ and/or to supply copies of the anonymous letters,
which form the subject-matter of enquiry.Page No. 101
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151. While considering the above contention of the respondents, it
needs to be noted that complete and effective meaning would not be
possible to be given to the expression ‘full opportunity’, appearing in
Rule 156(2), unless the ‘terms of reference’, which really determines the
scope of enquiry, are furnished to the person, whose character or
service reputation is at stake or unless the materials, which become the
basis of enquiry, are furnished to the person, who is proceeded against.
In such a case, it cannot be said that the person, being proceeded
against, has been given full opportunity of defending himself.
152. It is no answer on such a vital issue that no specific provision has
been made in the Rules. When the Rule making authority has used the
expression full opportunity, it would, obviously, include that every such
material on which an enquiry is based and every such material, which
can make the person concerned know the scope of the enquiry to be
made, and every such evidence, which comes on record adversely
affecting the character or service reputation of the person concerned,
be furnished to the person concerned in such a manner that he can
prepare his defence and effectively cross-examine the witnesses so that
justice is secured.
153. It has been contended by the respondents that the petitioner was
allowed to take note of the contents of the materials, which he had
sought for. This answer, given by the respondents, is, to say the least,
unfortunate. A person’s reputation is very valuable to him; so valuable Page No. 102
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that it becomes fundamental to his existence. Such a basic right, which
every human being has, cannot be allowed to be violated merely by
saying that there is no provision for supplying materials, which the
petitioner had sought for. It needs to be remembered that a person,
whose character or service reputation is being enquired into by a Court
of Inquiry, must be presumed to be innocent and cannot be treated as a
condemned person deprived of his basic rights or else, the expression
‘full opportunity’, appearing in Section 156(2), would become
meaningless and be rendered otiose.
154. In the backdrop of the facts, as have already been discussed in
the preceding paragraphs of this judgement, it is not difficult to
conclude, in the light of the well-designed, thoughtfully crafted and
carefully worded ‘terms of reference’, that the impugned proceedings
smack of blatant discrimination, bias, prejudice and mala fide. This
apart, when the manner in which the Court of Inquiry, as we have
pointed out, proceeded, leave no room for doubt that the Court of
Inquiry, as contended on behalf of the petitioner, was constituted with
a pre-determined mind to nail the petitioner and it is for this reason
that despite knowing that the Court of Inquiry had been ordered
chiefly to enquire into the allegations made against the character or
service reputation of the petitioner, the petitioner had been kept away
from the proceedings of the Court of Inquiry, six witnesses were
examined in his absence and, then, he was called to cross-examine the Page No. 103
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witnesses, who were, as rightly contended on behalf of the petitioner,
bound to support their previous statements, which had already been
brought on record by the Court of Inquiry.
155. In the absence of any explanation as to why such a course of
action, despite the clear provisions of Rule 156(2), had been adopted by
the Court of Inquiry, there can be no escape from the conclusion, and
we are bound to conclude, and we do conclude, that the Court of
Inquiry has not been conducted impartially. Far from this, the Court of
Inquiry proceeded with a pre-determined mind to bring enough
materials against the petitioner to ensure that the petitioner’s career, as
apprehended by the petitioner, is ruined and the allegations of
corruption, which had been made against respondent Nos. 4 and 5,
never see the light of the day, are never inquired into and the veracity
thereof never determined and/or become known.
156. Situated thus, when the Court of Inquiry has manifestly acted
with bias and adopted steps, which were, undoubtedly, prejudicial to
the petitioner’s character and service reputation, one cannot help but
hold that the petitioner had been seriously prejudiced by the manner in
which the Court of Inquiry had been conducted. When the reputation
of a person is fundamental to his existence as his basic human right,
nobody can be allowed to trample, with impunity, over such a basic
right of a person, who is yet to be condemned, and make thereby suffer
the cause of justice. If this Court does not step forward and stop the Page No. 104
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actions, which the respondents have been taking in consequence of the
proceedings of the Court of Inquiry, there would be serious
miscarriage of justice and the loser would be not only the petitioner,
but also the administration of justice.
157. If a Court of Inquiry has to be meaningful, then, the authority
concerned must do everything to ensure that the person, proceeded
against, does not suffer from any burden in addition to the burden of
preparing his defence, effective cross-examination of the witnesses
produced, making of his own statement and examining witnesses, who
may be relevant to his defence.
158. In the case at hand, by means of his letter, dated 14.08.2012, the
petitioner had given a list of 42 defence witnesses to respondent No.6
as Presiding Officer of the Court of Inquiry, who, in turn, by letter,
dated 15.08.2012, required the petitioner to shorten and reduce the
number of his defence witnesses and, in this a situation, the petitioner
reduced the number of defence witness to a bare minimum of 13.
159. Coupled with the above, the petitioner also requested
respondent No.6 to examine Ms. ‘X’, as a witness, but this request, too,
was turned down; rather, the petitioner was asked to examine Ms. ‘X’
as a defence witness.
160. When the respondents had obtained the call records of mobile
phone of Ms. ‘X’, and brought the same on record so as to implicate the
petitioner, when they had recorded the statements of witnesses Page No. 105
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imputing improper relationship between the petitioner and Ms. ‘X’
and when the enquiry conducted was not only to affect adversely the
service reputation of the petitioner, but to equally damage the
reputation of Ms. ‘X’, we fail to comprehend as to why respondent No.
6 declined to call Ms. ‘X’ as a witness on behalf of the convening
authority. The respondents have not even realized that the manner in
which they have proceeded in the present case, they have already
condemned Ms. ‘X’ without hearing as to what she had to say in her
defence inasmuch as she was the best person to clarify as to how she
happened to make call, on the mobile number of the petitioner, or on
the mobile numbers of those persons, the use whereof is blamed on the
petitioner.
161. Had Ms. ‘X’, on being required to appear, refused to appear, the
matter would have, perhaps, been different. Such is, however, not the
case inasmuch as she was not called as a witness to the Court of
Inquiry.
162. We fail to understand as to why respondent No. 6 imposed the
liability of calling Ms. ‘X’ as a defence witness. There can be no
explanation except that this stand was taken by the respondent No.6 as
the Presiding Officer of the Court of Inquiry in order to ensure that if
Ms. ‘X’ appears in the Court of Inquiry, she will be subjected to crossexamination
by the representative of the authority, who had
constituted the Court of Inquiry.Page No. 106
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163. In order to explain as to why Ms. ‘X’ had not been called as a
witness, Mr. Subromoniom, learned ASG, drew, at the time of hearing,
our attention to a letter, whereby it is sought to be shown that the
husband of Ms. ‘X’ had requested not to call his wife as a witness in
the Court of Inquiry. In this regard, it is impossible to ignore the fact
that the husband of Ms. ‘X’ has clearly stated, in the Court of Inquiry,
that he had never made any complaint against the petitioner.
164. Hence, even if the husband of Ms. ‘X’ had requested not to call
his wife as a witness, this could not have been a valid reason for the
Court of Inquiry to restrain from calling Ms. ‘X’ as a witness, when she
was the central theme of the entire proceedings of the Court of Inquiry.
165. Moreover, if it was due to the letter of the husband of Ms. ‘X’
that she had not been called as a witness to the Court of Inquiry, why
this fact had not been disclosed to the petitioner, when he had
requested Ms. ‘X’ to be called as a witness by the Court of Inquiry. To
this uncomfortable question, too, there is, as usual, no answer from the
end of the respondents.
166. In the circumstances of the present case, there can be no doubt
that Ms. ‘X’ was the pivot around whom revolved the entire
proceedings of the Court of Inquiry and, therefore, she ought to have
been called as a witness by the Court of Inquiry itself so that she could
be examined and, then, if necessary, be cross-examined by the
petitioner.Page No. 107
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167. The expression, full opportunity, which appears in Rule 156(2),
conveys that if no opportunity is afforded or if opportunity provided is
not full, the same would not meet the requirement of Rule 156(2) and,
in such a case, Rule 156(2) has to be held as having been violated.
168. We are deeply disturbed by the manner in which the Court of
Inquiry chose to proceed and render its finding, when, to our utter
surprise, we notice that the statements of two witnesses, who had
never been brought before the Court of Inquiry, have been brought on
record and the same have been used with no opportunity having been
provided to the petitioner to cross-examine the witnesses concerned.
169. Similarly, the statements of two other witnesses, who are postal
employees, have also been brought on record without calling them
before the Court of Inquiry and without affording any opportunity
whatsoever to the petitioner to cross-examine them. These are not mere
procedural irregularities, but denial of fundamental principle of
natural justice, which has been held to be, in the light of the
discussions held above, as important as the right to live with dignity.
170. It is the petitioner’s contention that he is being persecuted in a
systematic, concerted and vindictive manner for having done his job
and duty as a Air Officer Commanding, particularly, when he
requested and, eventually, demanded a high level enquiry into the
sub-standard and slow work of construction by the contractor
concerned at one of the most strategically placed, airbase in the Page No. 108
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country, as the first line of Air defence in the Eastern Sector, which
inducted Sukhoi Su-30MKI Aircrafts. According to the petitioner, the
impugned proceedings against the petitioner are the result of the
petitioner’s complaints and his black-listing of the private contractor
inasmuch as the contractor has, according to the petitioner, nexus with
the Air Force establishment, Eastern Air Command, headed by
respondent No. 4, who convened the Court of Inquiry in concert with
other respondents, who, being either directly, or under the command
and influence of, respondent No. 4, had their own axes to grind against
the petitioner.
171. The mala fide origin of the whole Court of Inquiry and the
disciplinary proceedings is apparent from a cursory look at the timeline
inasmuch as it was after the petitioner’s complaints that the socalled
anonymous letters started materializing out of nowhere and in
March-April, 2012, discreet inquiries were initiated and after the
petitioner’s final complaint, in May, 2012, seeking enquiry into substandard
construction work at the Airbase, at Chabua, the petitioner
was posted to Jaipur in July and, within a week thereafter, the Court of
Inquiry was convened.
172. The charge-sheet, which has been served on the petitioner, is the
outcome of the proceedings of the Court of Inquiry and if the
proceedings of the Court of Inquiry are found not sustainable in law Page No. 109
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for having suffered from manipulation, bias, mala fide and
discrimination, the charge-sheet, which, as indicated hereinabove, being
the outcome of the Court of Inquiry, cannot be sustained.
173. We have, now, reached the stage, where we must not ignore the
fact that the charge-sheet, which has been served on the petitioner, is
logical extension of the Court of Inquiry or findings of the Court of
Inquiry. When we have already recorded, for the reasons, which we
have assigned above, that the findings of the Court of Inquiry, in the
light of the ‘terms of reference’, was mala fide, it deserves to be noted that
mala fide belongs to the genus of incurable illegalities. When an
investigation is actuated by mala fide, such an investigation cannot be
allowed to be proceeded inasmuch as a mala fide, manipulated,
controlled and unfair investigation cannot result in justice, but would
only be precursor to injustice.
174. The petitioner’s case is not based on procedural irregularities
alone or on denial of mandatory procedural safeguards, but the sheet
anchor of the petitioner’s case, as rightly contended by Mr.
Choudhury, is based on apparent mala fide on the part of the
respondents and manipulation of the Court of Inquiry, which, rightly
contends Mr. Choudhury, are sufficient to vitiate the entire
proceedings from the very moment of convening of the Court of
Inquiry until the time the charge-sheet was served on the petitioner and
the proceedings thereafter. Page No. 110
WP(C) 5606/2012
175. When the allegation of mala fide becomes apparent and manifest,
it becomes an incurable defect and the Court would not, in such a case,
enter into determination of the correctness, truthfulness or otherwise of
an accusation made against a person, for, truth, in such a case, would
always remain clouded and when investigation has been unfair, it
logically follows that an unfair investigation cannot result into a fair
trial. If further proceedings, in such a blatantly manipulated and
outrageously controlled Court of Inquiry are not stopped, justice
would be the casualty. Any reluctance, on the part of this Court, to
interfere with the impugned proceedings, would make the cause of
justice suffer.
176. It is, in the context of a case of present nature that it has been
clearly observed by the Supreme Court, in State of Haryana Vs.
Bhajan Lal, reported in (1992) Supp. 1 SCC 335, that where a criminal
proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due
to private and personal grudge, then, the whole proceedings are liable
to be quashed and no fresh proceedings can be initiated.
177. In the light of the decision, in Bhajanlal (supra), when we come
to the case of State of Orissa Vs. Ganesh Chandra Jew, reported in
(2004) 8 SCC 40, we notice that in Ganesh Chandra Jew (supra), the
complaint was, in brief, thus: The complainant is a reputed pharmacist Page No. 111
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and a man of means, police personnel entered into his clinic, arrested
him alleging that some elephant tusks had been recovered from his
possession and though he was a man of good reputation and standing
in the society, he was made to walk on the bazaar roads with handcuffs
and was made to sit under a tree with the intention to give an
impression to the general public that he was an illicit trader of elephant
tusks. An advocate requested the officials to allow the complainant to
take insulin as the complainant was a diabetic patient, but this request
was not heeded to. On the next day, the complainant was produced in
the Court of the SDJM, but before doing so, some elephant tusks were
put on the complainant’s shoulders and photographs were taken.
Appellant Nos.5 and 6 assaulted the complainant severely causing
serious injuries and when the complainant was produced before the
SDJM, the complainant was not in a proper state of mind. After having
been released on bail, the complainant got himself medically examined
and the complaint was, upon consulting lawyers, lodged.
178. The appellants, in Ganesh Chandra Jew (supra), with the help of
an application, made under Section 482 CrPC, questioned, in the High
Court, the legality of the proceedings inasmuch as they were,
according to the appellants, protected by Section 197 Cr.PC and that in
any event, the complaint was lodged with oblique motive and
intention as a retaliatory measure and that there was no material to
take cognizance of the case, particularly, when the seizure and arrest Page No. 112
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had been done, according to the appellants, pursuant to the discharge
of their official duties.
179. Since the High Court took the view that Section 197 was not
attracted to the facts of the case and dismissed the application made
under Section 482 CrPC, the appellants, aggrieved by the order of the
High Court, pointed out, in the Supreme Court, that the alleged
occurrence had taken place on 27.02.1991 and, on the next day, i.e., onCOURT OF INQUIRY AND SOE SET ASIDE BY HIGH COURT
28.02.1991, accused was produced before the Magistrate with prayer
for his remand to custody and, simultaneously, respondent moved a
bail application and, while hearing the bail application, the SDJM
specifically asked the complainant as to whether there was any illtreatment,
but the complainant made no complaint of any ill-treatment
and, later on, however, the complainant-respondent got himself
medically treated and filed the complaint.
180. Having analysed the facts of the case, the Court, in Ganesh
Chandra Jew (supra), observed that when background facts of the case
is considered, the question regarding applicability of Section 197 takes
the backseat and that the factual scenario go to show that on having
been produced before the Magistrate and, on being specifically asked if
he had been ill-treated, the respondent made no complaint of illtreatment
and this itself strikes at the credibility of the complaint.
Additionally, the Supreme Court pointed out that the doctor examined
the complainant, for the first time, on 12.03.191 and treated the Page No. 113
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complainant. The Court observed that though Section 482 can be
resorted to in very rare cases, the case at hand was one of such cases,
where the principles, indicated by the Supreme Court, in Bhajanlal’s
case (supra), that continuance of a proceeding by way of prosecution
would amount to abuse of the process of law if the same is manifestly
actuated by mala fide and the proceedings were accordingly quashed.
181. It is, thus, transparent that mala fide goes to the root of a
proceeding or investigation and vitiates thereby the whole of the
investigation or proceeding, because it is as grave as fraud. Similar as
fraud goes to the root of an investigation or proceeding and an
investigation or proceeding, which suffers from fraud, cannot be
sustained, an investigation or proceeding, which suffers from mala fide,
can also not be sustained, for, truth will not surface from such
investigation or proceeding and justice would elude us.
182. The mala fide and bias, which, in the present case, are apparent
on the face of the record and which surface from the impugned actions
of the respondents, go to the root of the matter rendering whole of the
actions of the respondents completely illegal, void and non est in law.
Our findings that the proceedings are biased and mala fide, which make
the whole of the proceedings incurable, force us to hold that such a
proceeding must not be allowed to continue.
183. The facts and circumstances, which we have taken note of
including the factum of non-compliance of Rule 156(2) and Page No. 114
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discrimination, coupled with the apparent mala fide, bias, both personal
and institutional, impel us to hold that the proceedings, which have
been impugned in this writ petition, cannot be sustained and must not
be allowed to proceed further.
184. The power and machinery of the Air Force have been clearly
abused and misused by the respondents, particularly, by the
respondent Nos.4, 5 and 8. When such are the manipulations, as we
have noticed above, conscience of the Court would not permit such
manipulated exercise of power, personal and institutional, to be
continued, for, any hesitation, on our part, to interfere, would make
one lose faith in the fairness of the system of administration of justice.
The question of truth, surfacing from such a scarred inquiry or
investigation, would never arise and justice would remain a distant
dream. Such a dreadful situation, we must not allow to reach and
make thereby justice a captive of manipulated, controlled, mutilated
and mala fide process of inquiry and investigation, or else, as we have
made it clear earlier, the cause of justice would suffer.
185. In the result and for the foregoing reasons, this writ petition is
allowed. The impugned ex-parte order, dated 13.03.2012, passed, in
Misc. Application No. 04/2013 (In OA No. 32/2012), by the learned
Armed Forces Tribunal, Regional Bench, Guwahati, is hereby set aside.
GHXWe further set aside the order, dated 20.11.2012, passed by the learned
Armed Forces Tribunal, Regional Bench, Guwahati, in O.A. No. 32 of Page No. 115
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2012, and, in consequence to the setting aside of the impugned order,
dated 20.11.2012, the impugned findings, dated 29.08.2012 and
06.09.2012, of the Courts of Inquiry, held against the writ petitioner, as
well as the charge-sheet, dated 26.10.2012, and all further proceedings
consequential thereto shall stand set aside and quashed.
186. With the above observations and directions, this writ petition
stands disposed of.
187. No order as to costs.
JUDGE JUDGE
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