SURINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner by way of this petition under Articles 226 and 227 of the Constitution of India seeks quashing of the order dated 10.12.2012 (Annexure P-13) passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir (for short - " the Tribunal") (respondent No. 2) and the order dated 10.1.2013 (Annexure P-15) passed by the Armed Forces Tribunal, Principal Bench at New Delhi whereby the prayer of the petitioner for transfer of his case from the Bench of the Tribunal (respondent No. 2) of which Lt. General (Retd.) N.S. Brar is a Member has been declined. The petitioner was commissioned in the Indian Army on 15.3.1970. It is submitted that he always maintained the ascending career graph, was wounded twice in active operations/war and is a recipient of Wound Medal. He has a meritorious and distinguished Army service and has been awarded Sena Medal for Gallantry, Vashist Seva Medal, Wound Medals twice and Commendation Card by the Chief of Army Staff. During the course of his service, he was promoted as Brigadier on 18.6.1998 and was posted as Commander 121 (Independent) Infantry Brigade Group popularly known as 'Kargil Brigade'. After detailed analysis and appreciation of the area, it is claimed by the petitioner that he informed and briefed Senior Commanders including the Chief of the Army Staff about the vulnerability of the area and enhanced enemy threat in Kargil. He demanded additional resources, troops and sent proposal for the review of the priorities of existing defences. These included demands for additional resources and troops, besides, making available Air OP Helicopter at Kargil for Winter Air Surveillance at Kargil, Winter Mail Services and evacuation of casualties. These were, however, turned down by 3 Infantry Division. According to the petitioner, instead of paying serious attention to the reports (Annexures P-1 to P-4) sent by him on the enemies enhanced threat perception in the Kargil Sector and to prepare to meet the challenge, the Senior Commanders gave more importance to activities unconnected to the defensive role of the Army in Kargil Sector like the construction of Zoo at Leh. The fighting troops, it is submitted, were deployed for catching wild animals and birds. Besides, the defence resources were used for making cages for animals and birds and their transportation, feeding and maintenance. The Kargil War commenced in May 1999 and when the War was in operation, the petitioner was removed from the Command of the Brigade in June 1999 and was posted/attached to various formations. On 6.8.1999 a Court of Inquiry was convened to investigate the circumstances under which contents of communication dated 25.8.1998; "Brief Chief of Army Staff' originated by 121(I) Infantry Brigade group and any other classified documents were made available to unauthorized persons. It is submitted that Brig. (Retd.) Devinder Singh, Commander 70 Infantry Brigade who himself was guilty of leaking the contents of highly classified documents was one of the Member of the Court of Inquiry, which gave its report against the petitioner. The petitioner was removed from the Army with immediate effect with pension and gratuity by the Government of India on 29.5.2001. In the order of removal of the petitioner, besides, two other allegations, there were six allegations as are mentioned therein on the basis of the findings recorded by the Court of Inquiry of which Brig. (Retd.) Devinder Singh was a Member.

(2.) The petitioner filed Civil Writ Petition (i.e. CWP No. 4786 of 2002) in the Hon'ble Delhi High Court against the order of his removal from the Army service and for an independent inquiry into the role of Senior Commanders in the Kargil episode. The said writ petition was admitted and in the meanwhile, the Armed Forces Tribunal Act, 2007 (Act 55 of 2007) ("Act" - for short) was passed. In terms of Section 34 of the Act, all pending cases of the Army personnel were transferred to the Armed Forces Tribunal constituted under Section 4 thereof. The writ petition of the petitioner pending in the Hon'ble Delhi High Court was transferred to the Tribunal (respondent No. 2) and assigned TA No. 273 of 2010. The Tribunal (respondent No. 2), it is submitted, had two Benches sitting when the writ petition of the petitioner was transferred from Delhi High Court to the Tribunal (respondent No. 2) as there were two Judicial Members and four Administrative Members of the Tribunal (respondent No. 2). On transfer of the writ petition from Delhi as TA No. 273 of 2010, the case of the petitioner was fixed on 13.7.2010 before a Bench comprising of Hon'ble Mr. Justice N.P. Gupta (Retd.) as Judicial Member and Lt. General (Retd.) A.S. Bahia as Administrative Member. Thereafter, other Administrative Members have been sitting along with Hon'ble Mr. Justice N.P. Gupta on different dates till his transfer. After transfer of Hon'ble Mr. Justice N.P. Gupta, different Administrative Members have been sitting with Hon'ble Mr. Justice (Retd.) Rajesh Chandra who joined the Tribunal (respondent No. 2) in 2012. The details of the Benches where the case of the petitioner was fixed on various dates has been mentioned.

(3.) It is submitted that the petitioner did not know Lt. General (Retd.) N.S. Brar now Administrative Member of the Tribunal (respondent No. 2) till he met him at the marriage of the daughter of Brig. (Retd.) Devinder Singh. The petitioner was invited for the said marriage and Lt. Gen. (Retd.) N.S. Brar also attended the same. Brig. (Retd.) Devinder Singh introduced Lt. General (Retd.) N.S. Brar as his close friend. Lt. General (Retd.) N.S. Brar, it is submitted, did not deny his close friendship and rather emphasized the strong bonds of Regimental Association and added that both of them were from the same Regiment.