UNION OF INDIA Vs. SANJAY JETHI

JUDGEMENT

(1.) The legal propriety of the judgment and order dated 12.12.2012 in TA No. 38 of 2011 passed by the Armed Forces Tribunal, Regional Bench at Mumbai (for short "the tribunal") setting aside the decision rendered by the Additional Court of Inquiry and consequential action taken or orders passed pursuant to the said order and directing to convene a fresh Court of Inquiry (COI) with a different Presiding Officer and other independent members, if decision is taken to proceed against the 1st Respondent, is called in question in the present appeal.

(2.) The factual score as depicted is that on 5.8.2009, a complaint was made by one of the officers alleging irregularity in the hiring of Civil Hired Transport (CHT), which were used for the purpose of supply of ordnance stores to units spread over the country, including remotest field and high altitude area by the Respondent No. 1 who holds the rank of Colonel in the Army. On the basis of a complaint, the General Officer Commanding-in-Chief, Pune initiated an action against the Respondent No. 1 by making his attachment with HQ Sub Area on 6.8.2009 and also convened a Board of Officers on 21.7.2009 for ascertaining the truthfulness of the allegations. On 22.7.2009 the said Board seized the entire records and submitted a report. On the premises of that report, a COI was convened against the Respondent No. 1 to investigate into the alleged irregularities.

(3.) The COI conducted an inquiry and on 8.3.2010 recommended for taking appropriate disciplinary action against the 1st Respondent and some other officers. On the basis of the said recommendation on 23.2.2010 the first Respondent was attached to the Head Quarters, Mumbai Sub Area till finalization of the disciplinary proceedings. At that juncture, Respondent No. 1 filed Original Application No. 283 of 2010 before the Principal Bench of the tribunal at New Delhi challenging the COI proceedings contending, inter alia, that he had been deprived of the right of cross-examination as stipulated Under Rule 180 of the Armed Forces Rules, 1954 (for short "the Rules"); and that there had been non-supply of documents which were annexed after conclusion of the proceedings before the COI. As the factual matrix would unveil, on 17.6.2010 the hearing of charges commenced and the Commanding Officer, Mumbai Sub Area, under Rule 22 directed for recording of Summary of Evidence Under Rule 23.