M K SANGA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petitioner in the above writ petitions is holding a Permanent Commission in the rank of Lt.Col Selection Grade in Indian Army. He was posted as Officer Commanding Military Farm, Bangalore between 18.03.1996 and 20.08.1999, and thereafter, he was posted as Deputy Director, Military Farm, Pune. During the time he worked in Bangalore in the above capacity, the Military Farm Employees Association, which according to the petitioner is an unrecognized Association, has made certain complaints about the petitioner. THE petitioner would state that since the charges were serious, an independent investigation was conducted by the Zonal Regional Officer on 17.05.1999, who found there was no substance in the said complaints. THEreafter, Departmental investigations were carried out on the instructions of Director General, Military Farm by the Director of Military Farm Headquarters, Southern Command.

(2.) IT is the further case of the petitioner that the complaint received by the Ministry of Defence on 15.05.1999 through Central Vigilance Commission was forwarded to the Deputy Director General of Military Farms, Army Headquarters, New Delhi to enquire and furnish report. According to the petitioner, a High Level Inquiry was again constituted, which recommended on 01.10.1999 that the case to be closed. The said High Level Inquiry is to be treated as Court of Inquiry and therefore, its finding dated 01.10.1999 has become final. IT was found that the petitioner was not in command of the unit during the conduit period/month of origination of alleged complaints. The conclusion of the Southern Command, Pune was forwarded to the Army Headquarters, New Delhi, who has also rejected the complaints on the basis that some forgery has been committed. 2(a). In spite of the fact that the matter has reached finality, the third respondent has ordered for Staff Court of Inquiry on 30.10.1999. In those circumstances the petitioner wanted to see the original Convening Order made by the third respondent along with other records. According to the petitioner, the third respondent has no authority to order for such Court of Inquiry and there cannot be successive Courts of Inquiry on the same allegations under the Army Rules and Instructions. Even in the Staff Court Inquiry which was conducted earlier, the petitioner has raised his objection and witnesses were examined, however, the copies were not furnished to the petitioner, apart from the finding of the Staff Court Inquiry. Therefore, according to the petitioner, the convening order itself has been passed by the third respondent without any complaint. 2(b). IT is also the case of the petitioner that before the Staff Court Inquiry which was conducted earlier and completed, the petitioner was shifted from Bangalore to Madras Engineering Group as per the order dated 11.08.2000 and in those circumstances, he filed W.P.No.14447 of 2001, for direction against the respondents, especially the third respondent to produce original convening order along with all its annexures, including the basic complaint against the petitioner containing 62 signatures and also to forbear the respondents from proceeding with the Court of Inquiry. 2(c). This Court while admitting the said writ petition, has also granted an order of interim stay of all proceedings of the third respondent initiated which has been continued. 2(d). The petitioner has also filed W.P.No.25334 of 2001, to forbear the third respondent from holding Staff Court of Inquiry or Unit Court of Inquiry or departmental Court of Inquiry or any other Inquiry or investigation/proceedings on the basis of the alleged complaints given by the unrecognized military farm employees association in the letters dated 20.01.1999, 19.02.1999 and 10.05.1999 and the said writ petition was admitted on 21.12.2001 and order of interim stay granted was made absolute on 15.09.2003. 2(e). That writ petition was filed due to the reason that on the basis of the information given by the Staff Court of Inquiry, Central Bureau of Investigation registered a First Information Report against the petitioner based on the complaints dated 19.02.1999 and 10.05.1999. In addition to that, against the said complaints and challenging the first information report, the petitioner has also filed Criminal Petition No.3696 of 2001, before the High Court of Karnataka at Bangalore. During the Court of Inquiry constituted for the second time, viz., as ordered on 30.10.1999, 18 charges were framed against the petitioner, and the petitioner was attached by the order of the third respondent dated 09.08.2000, directing him not to move out of the centre till finalisation of disciplinary cases against him, which was followed by the consequential orders of the 7th respondent dated 12.08.2000. Challenging the said orders, the petitioner has filed WP.No.42102 of 2002, which was admitted by this Court on 25.12.2002 and order of interim stay was granted.

(3.) MR. A.L. Somayaji, learned senior counsel appearing for the petitioner would submit that while it is not in dispute that the complaints alleged to have been received against the petitioner on 20.01.1999, 19.02.1999 and 10.05.1999 are all from an unrecognized Union and an investigation has been ordered by the competent authority regarding the complaints and when such complaints came to be closed on finding that there was no truth in such complaints, the formation of Court of Inquiry on the same complaints is not permissible in law. He would also submit that the jurisdictional issue is involved in this case, inasmuch as the attachment order passed by the 7th respondent is not legal, since he is not competent to pass the same. 5(a). MR. A.L. Somayaji, learned senior counsel has also relied upon the subsequent affidavit filed by MR.S.Abimanyu, son of the petitioner dated 27.02.2008 in this Court, in which it is stated that the petitioner has attained the age of superannuation on 30.11.2004 and was detained under Army Act. It is also stated in the affidavit that during the period of detention at Meerut from the month of November, 2004, the petitioner was treated at the Institute of Mental Health and Neuroscience, Meerut, which is a Government Hospital for depression, hypertension and psychiatry evaluation in the Neuro-psychiatry Department. Since the petitioner was not given membership under Ex-servicemen Health Scheme, the Military Hospital, Meerut has referred the petitioner to All India Institute of Medical Sciences (AIIMS), New Delhi during April, 2006, observing that the petitioner required continuous psychiatric treatment. 5(b). It is also stated that the order of detention passed under Section 123 of the Army Act, 1950 was set aside by the Allahabad High Court by order dated 28.07.2006 and thereafter, he was taken to Gurgaon, which is located 35 kms. away from New Delhi and the petitioner is being treated in the psychiatry OPD for chronic Dementia (Alzheimer's disease) and referred to Neurology Department and the said disease denotes loss of memory. In the affidavit it is also stated that the petitioner is taking treatment under Dr. Raman Girotra, who has issued necessary certificate that the petitioner is suffering from chronic depression, Alzheimer's disease and advised regular medication. Since the said disease relates to memory impairment, it is not possible for the petitioner to even participate in the enquiry at this mental stage. 5(c). It is also stated in the affidavit that even during enquiry before the Staff Court of Inquiry, Ex.58, the medical certificate issued by Bowring and Lady Curzon Hospital, Bangalore-1 was marked which confirmed that the petitioner was not in sound mind. The learned senior counsel has also produced various medical records and also various literature to speak about the consequences of dementia, viz., Alzheimer's disease " loss of memory by a person. 5(d). The learned senior counsel for the petitioner would submit that inasmuch as the All India Institute of Medical Sciences itself has given various certificates and the petitioner was unable to take treatment in the Military Hospital because he is not given membership under Ex-servicemen Health Scheme, there is no purpose in making the petitioner to undergo the ordeal of facing the inquiry at this stage and therefore, according to him, considering the fact that the petitioner has retired from service, the proceedings under the Army Act has to be put an end.