S C MANCHANDA (MAJOR) Vs. UNION OF INDIA

JUDGEMENT

(1.) APPREHENDING his trial by General Court Martial, the petitioner has preferred this writ petition in the court with the prayers to: quash the order of the respondent No.4 dated 24th Sept. 1987 posting the the petitioner from Commander HQ 754 BRTF to the Commander HQ 16 BRTF, directing the respondent No.4 & the Commander HQ 16 BRTF not to proceed with the intended trial by General Court Martial & a direction to the Headquarters Northern Command to post the petitioner to Commander HQ 754 BRTF for finalisation of the disciplinary case/action against him, if necessary and the petitioner dealt with by him. According to the petitioner the allegations of mis -appropriation levelled against him embezlement of twenty four thousand liters of S.K.O. from the fuel yard 501 ASCC Coy: were factually incorrect and fabricated as a result of the malafides. It is submitted that the court of inquiry conducted in the case was prejudicial and in contravention of the Army Rules. Elaborately dealing the facts & circum -stant&s under which the disciplinary proceedings were initiated against him, the petitioner has prayed for the reliefs mentioned hereinabove mainly on the grounds of the mandatory provisions of Army Rules applicable in the case. It is submitted that the petitioner was taken off from the charge of Commander HQ 15 BRTF & placed under the charge of the Commander 754 BRTF for completion of the inquiry. It is submitted that the HQ Northern Command had allegedly come to the conclusion that the investigation including the court of inquiry & summary of evidence recorded under the charge of Commander HQ 16 BRTF and the recommendations made by him could not be acted upon in justice and fairness. It is further submitted that the proceedings held at the instance of Lt. Col. S.D. Singh including the summary of evidence recorded during the said proceedings and the manner in which the same was allegedly managed by him, as also the recommendations of the said Lt. Col. are claimed to have been found to be initiated and consequently not acted upon because the petitioner submits that in proof to the same, he was placed under Commandant HQ 754 BRTF to the effect that holding of General Court Martial was not required in the case of the petitioner, the proceeding now initiated by the respondents were illegal being contrary to the provisions of law applicable. It is submitted that the action contemplated against the petitioner and the proceedings held were malafide in view of the allegations made in the writ petition. The charges recommended against the petitioner by the Commander HQ 16 BRTF are alleged to be ex -facie unsustainable which do not warrant the holding of any Court Martial. The summary of evidence is alleged to have been recorded in contravention of the provisions of Law.

(2.) IN the objections filed on behalf of the respondents, it is submitted that as the writ petition raises disputed questions of facts, it is liable to be dismissed. It is claimed that no fundamental, legal or statutory right of the petitioner is alleged to have been violated in the writ petition. The summary of evidence pertaining to the petitioner was recovered in his presence & he was afforded fair & reasonable opportunity tp defend himself. Copy of the Court of Inquiry was also supplied to the petitioner under the rules. It is submitted that the petitioner is involved in a serious offence of committing theft of government property worth Rs. 59,040/ - and accepting illegal gratification to the tune of Rs. 25,000/ -. The petitioner in the summary of evidence is alleged to have made a voluntary statement admitting therein: "I do admit during my short tenure of appx. two months surpluses of FOL were being disposed of by my staff certainly without my knowledge and since I had put my premature retirement papers within 48 hours of arrival on porting vide 501 ESS Coy letter No.20805/per/I SCM dated 7 November and were sent to Army HQ duly recommended through proper channel on grounds tenant problem, I request that the case against me may please be closed as any punishment upto Army Act, 84 is acceptable to me or else I shall have to fight my destiny till the time it is decided. "Tentative chargesheet was prepared against the petitioner, for the purposes of recording summary of evidence on 20th May 1986. The allegations of mal -practices attributed to the respondents have been denied as being fictitious. It is denied that the petitioner ever made any request to Lt. Col. Singh for providing an officer to look after the alleged short -comings in stores as claimed by him. According to the respondents the stock taking Board constituted for the purpose in its report reflected surpluses of S.K.O. and H.S.D. The involvement cf Capt. Pandey is denied. It is denied that surpluses were disposed of by Lt. Col. S.D. Singh as he did not have a nexus or direct concern in the administration of a small unit, i.e. 501 ESCO Coy. being a Commander of 16BRTF which is superior formation. The allegation npade against other officers have also been denied. The respondents have in their objections denied all the allegations of fact in the detailed objections filed by them. The petitioner is alleged to have accepted illegal gratification in the amount ofRs. 25,000/ - from Mr.S. Narbu contractor. A prima facie case is claimed to have been proved against the petitioner requiring the same to be tried by the General Court Martial. The petitioner sought his premature retirement and his application was forwarded to the concerned authorities without any further delay. The allegations levelled against Lt. Col. S.D. Singh were concocted and false. It is further submitted that the writ petition was liable to be dismissed because Major V.K. Sinha against whom serious allegations have been made by the petitioner has not been made a party respondent in the case. The petitioner was attached to HQ 754 BRTF under the normal course and on the basis of the precedents prevalent. The recommendations of Commander HQ 16 BRTF are claimed to be legal, valid and according to law which do not suffer from the alleged malafides. The writ petition is based upon the concocted figment of imagination of the petitioner. The charges recommended against the petitioner are alleged to be neither final nor binding on the superior authority to whom the case was referred under rule 24 of the Army Rules for the satisfaction and his decision. It is submitted that the superior authority will exercise his duty and discretion strictly in compliance of the Army Rule 37. The grounds upon which the writ petition is based have been denied and is submitted that the action shall be taken against the petitioner strictly in accordance with the provisions of law. We have heard the learned counsel for the patties and have perused the Jecord. Mr. D.P. Gupta the learned CGSC has also produced the record of the proceedings for our perusal. Chapter V of the Army Rules deals with the investigation of the charges and their trial by Court Martial. Rule 22 provides that every charge against a person subject to the Act other than an officer shall be heard in his presence & the accused shall have full liberty to crosS -examine any witness against him and to call any witness & to make any statement in his defence. The Coommanding Officer has a right to dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act had been committed, and he can do so, in his discretion if satisfied that the charge ought not to be proceeded with. At the conclusion of the hearing of the charge if the commanding Officer is of the opinion that the charge ought to be proceeded with, he is under an obligation to dispose of the case summarily under section 80 of the Army Act of refer the case to the proper superior authority or if the accused is below the rank of a warrant officer order his trial summary Court Martial. Rule 23 prescribes the procedure for taking down the summary of evidence and unddr rule 24 the Commanding Officer can consequently either remand the accused for trial by a Court Martial authority or re -hear the case or either dismiss the charge or dispose Rule 25 deslls with the procedure on charge against an officer & provides that where an officer is charged with an offence under the Army Act, the investigation shall, if he requires it, be held, and the evidence if he so requires be taken in his presence in writing in the same manner as nearly as circumstances admit, as is required by 22 and 23 in the case of other person subject to the Act. When an officer is remanded for summary office is remanded for summary disposal of a charge against him or is ordered to be tried by Court Martial without any such recording of evidence in his presence, an abstract of evidence to be adduced has to be delivered to him free of charges as provided in sub -rule 33. Rule 26 provides that the summary disposal of the charges against officers, Junior Commissioned or Waraant Officers. Charges has to framed rule30 of the Army Rules. Detailed procedure for conducting the proceedings and safeguarding the interests of the Army personnel has beenprovided in section 1 of Chapter v of the Army Rules. Section II of Chapter V provides and deals with the convening of court Martials by adequately safe guarding the interests of accused persons. Under rule 37 an officer befor convening a General or Distric Court were the offences within the meaning of the Army Act evidence collected justified a trial on those charges and if he was notsatisfied, he has to either release the accused or refer the case to the superior authority.

(3.) THE reference to different provisions as contained in Chapter S.I. and II would clearly show that sufficient safeguards have been provided for a person subject to the Army Act who is ultimately found to be liable to be tried by any Court Martial. The Commanding officer is in no way the final authority of holding or directing the holding of court Martial and the ceedings while recording the summary of evidence or folding the court inquiry are in fact the proceedings preparatory to the holding of a court Martial. Such proceedings in effect & essence amount to investigation the object to satisfy the concerned authority that no person subject the Army Act is unnecessary dragged to litigation by forcing him to face a court Martial. Such proceedings are not a substantive evidence against army personnel and cannot be made a basis for holding him guilty or other wise. The present writ petition apparently appears to have been filed with the object of forstalling the holding of a Court Martial against the petitioner on the basis of the charges levelled against him, which according to the respondents have been primafacie found to have been established against hit. The petitioner under the garb of this pre -emptive writ wants to prevent the holding of a regular trial against him on his figment of imagination and ha carved grounds not borne from the record. The respondents have categori cally stated that the investigation proceedings were held strictly in accordance with the rules as provided vide different rules forming part of section I Chapter V of the Army Rules.