Gujarat High Court
Union Of India (Uoi) And Ors. vs Maj. Virendrarai J. Kharod on 15 May, 1987
Equivalent citations: (1987)2GLR1020
JUDGMENT R.C. Mankad, J.
1. In this appeal directed against the judgment and order passed by the learned single Judge, mainly two questions arise for our consideration: (i) Whether the High Court had jurisdiction to entertain the respondent's petition under Article 226 of the Constitution of India; and (ii) whether a General Court-Martial was legally and validly convened. If both these questions are answered against the appellants, this appeal shall have to be dismissed. The aforesaid two questions arise in the backdrop of the following facts.
2. The respondent, who is a Civil Engineering graduate, joined the military service as a 2nd Lieutenant in the Corps of Engineers on December 11, 1962. He was directly promoted on an accelerated promotion from 2nd Lieutenant to Captain. He was thereafter promoted as Major. The respondent was posted as Garrison Engineer at Baroda on May 5, 1972. According to the respondent, while he was serving as Garrison Engineer at Baroda, he came in conflict with his superior officer Lt. Col. Sundaram, who was the Commander Works Engineer, as he declined to comply with unreasonable requests, which were contrary to the rules, made by the said superior officer. The respondent alleged that he was subjected to harassment due to unreasonable attitude adopted by Lt. Col. Sundaram in various matters. It is alleged that a vigilance check of the work done by the respondent was made at the instance of Lt. Col. Sundaram, but nothing objectionable was detected. However, Lt. Col. Sundaram appointed at Board of Officers on August 29, 1974 to investigate the circumstances in which excess provisioning in the divisional stock was ordered by the respondent's office and also to verify whether purchases of stores and works carried out through local Bazar agencies on supply orders during April to July 1974, were in accordance with the prescribed procedure. According to the respondent, the finding recorded by the Board of Officers were in his favour. However, the Commander Works Engineers disagreed with those findings and referred the matter to the Chief Engineer, West Coast, Bombay. The matter was then referred to the Headquarters B.S.A., which directed Station Headquarters, Baroda to hold a Staff Court of Enquiry to investigate into the case. Accordingly, Station Headquarters, Baroda, by its order dated December 20, 1974, appointed a Court of Enquiry. The proceedings before the Court of Enquiry were over on April 30, 1975, when the respondent was permitted to leave Baroda and join his parent unit, viz., 36 Unit Border Road Task Force. The report of the Court of Enquiry was submitted in June 1975. On the basis of the said report, the Commander, B.S.A., ordered that formal disciplinary action should be taken against the respondent. Thereafter, on or about February 23, 1976, the respondent was directed to report back to Baroda. For investigation of the charges, a summary of evidence was to be recorded. The evidence was recorded between May and August 1976. The Commanding Officer ('CO.' for short) after examining the evidence found that the charges levelled against the respondent were baseless and they were either disproved or not proved. He gave his opinion on August 31, 1976 Relevant part thereof reads as follows:
1. After going through the complete evidence I am convinced that the charges framed against the accused officer, IC-13851 L. Major V.J. Kharod are thoroughly baseless, are either 'disproved' as established beyond even any semblance or element of doubt and therefore, stand automatically dismissed.
2. I am like any other prudent man with reasonable understanding and normal common sense, convinced that the officer is not at all guilty of any of the charges framed against him and recommend, without even slightest hesitation, that the officer be exonerated and be reverted back to his corps duties with full honour, which he richly deserves.
3. ...that this officer in normal course, could have been recommended for a commendation in recognition of such high standard of integrity and loyalty displayed by him, instead of being condemned as is done due to possibly a wrong initiation of case from certain quarters.
4. From the evidence recorded, certain glaring peculiarities of the case have been noticed by me and I would like to highlight them since I, as much as any prudent man with reasonable knowledge and normal common sense, convinced that there appears to be something unusual about the manner in which the case was initiated and conducted....
x x x
8. It is thus proved beyond any doubt that no offence in respect of this charge was committed and as such Maj. V. J. Kharod, the accused is not guilty of any offence. Thus the charge is not proved.
x x x
10. Thus the second charge is disproved beyond any doubt as any prudent man with reasonable knowledge and normal common sense will be convinced in his mind and as such Maj. V.J. Kharod is not guilty of any offence.
x x x
12. Thus, this charge is disproved and Major V.J. Kharod is not guilty of any offence.
13. In view of above, I recommend that Major V.J. Kharod be exonerated of all the three charges and reverted back to his crops with full honour.
3. It would thus appear that the C.O. recorded a clear finding that the charges were disproved and the respondent was not guilty of any offence. He, therefore, recommended that the respondent be exonerated of all the three charges and reverted back to his corps with full honour. The respondent alleged hat although the charges levelled against him were dismissed a General Court-Martial was convened to try him for those charges. The respondent objected to the convening of a General Court-Martial and raised a plea-in-bar, but that plea was overruled. The General Court-Martial found the respondent guilty of ill the charges and ordered his dismissal from service subject to the confirmation by the higher authority. The Chief of Army Staff agreed with he findings recorded by the General Court-Martial and confirmed the punishment by his order dated May 9, 1978. The respondent thus came to be dismissed from service. The respondent preferred an appeal to appellant No. 1 Union of India, but this appeal was dismissed on January 2, 1980. As no reasons were communicated to the respondent for the dismissal of his appeal, he applied for the same. However, inspite of repeated requests and reminders made by the respondent, on reasons were supplied to him. The respondent, therefore, approached this Court by way of petition being Special Civil Application No. 497 of 1981 under Article 226 of the Constitution of India.
4. The appellants denied the allegations made by the respondent in his petition and contended inter alia (i) the High Court had no jurisdiction to entertain the petition made under Article 226 of the Constitution against the order passed by the General Court Martial; and (ii) the General Court Martial had not acted without jurisdiction in passing the order of dismissal against the respondent. It is not necessary to set out other contentions raised by the appellants since, the learned single Judge has allowed the petition filed by the respondent, holding that (i) the Court had jurisdiction to entertain the petition under Article 226 of the Constitution; and (ii) the convening of the Court-Martial being illegal, the order passed by it was illegal without jurisdiction. Being aggrieved by the order passed by the learned single Judge, the appellants have preferred this appeal. The appellants, have reiterated the above contentions raised before the learned single Judge and contended that the respondent is not entitled to any relief.
5. The first contention which is raised on behalf of the appellants is whether the learned single Judge was right in holding that this Court had jurisdiction to entertain the petition under Article 226 of the Constitution. Mr. S.R. Shah, learned Counsel for the appellants contended that under Clause (4) of Article 227 of the Constitution, the High Court does not have power of superintendence over any Court or Tribunal constituted by or under any law relating to Armed Forces. The General Court-Martial, which found the respondent guilty of the charges levelled against him was convened under Section 109 of the Army Act. The High Court, therefore, does not have power of superintendence over the Court-Martial under Clause (4) of Article 227 of the Constitution. It was submitted that since the jurisdiction of the High Court has been specifically excluded, the Court-Martial is not amenable to the jurisdiction of the High Court under Article 226 also. It was submitted that the High Court had no jurisdiction to issue any writ, order or direction under Article 226 of the Constitution to the Court-Martial. It was submitted that no writ of any kind, including writ of certiorari, can be issued by the High Court against the Court-Marital, and therefore, the learned single Judge was not right in entertaining the respondent's petition under Article 226 of the Constitution. The above contentions raised by the learned Counsel for the appellants have been elaborately discussed by us in our judgment in Major P.C. v. Union of India and Ors. Letters Patent Appeal No. 297 of 1983 delivered by us today. For the reasons recorded in our said judgment, we have held that this Court has jurisdiction to issue writs including writ of certiorari to the General Court-Martial. As pointed out by the appellants' learned Counsel, the High Court, in view of the provisions of Article 227(4) does not have power of superintendence over the Courts-Martial. Article 136 expressly excludes Courts to grant special leave to appeal. But there is no such exclusion in Articles 32 and 226. In our opinion, the Courts-Martial set up under the Army Act, Air Force Act and Navy Act are the Tribunals which would be amenable to the writs of mandamus, prohibition and certiorari under Article 226. Neither the Parliament nor the State Legislatures can take away the jurisdiction of the Supreme Court or High Court to issue writs mentioned in Articles 32 and 226. It is a settled position of law that in relation to persons, bodies or Tribunals, having legal authority to determine questions affecting rights of citizens and having a duty to act judicially, a writ of mandamus is appropriate to compel the Tribunal to exercise jurisdiction vested in it by law which it refuses to exercise. Prohibition is appropriate to restrain a tribunal which threatens to assume or assumes a jurisdiction not vested in it so long as there is something in the proceedings left to prohibit. Certiorari is appropriate to quash the decisions of a tribunal which has assumed a jurisdiction it does not possess or where the order contains an error of law apparent on the face of the record. Whereas mandamus is not restricted to persons charged with a judicial or quasi-judicial duty, prohibition and certiorari can issue only if the person, body or Tribunal is charged with judicial or quasi judicial duties. As held by us in our judgment in Major P.C. Suri's case (supra), General Court-Martial is amenable to the jurisdiction of this Court under Article 226 of the Constitution. It is not disputed by the appellants that the General Court-Martial, in passing the impugned order, exercised judicial or quasi-judicial functions. This is also evident from the relevant provisions of the Army Act, 1950 and Rules framed thereunder. This Court, therefore, has power to issue a writ of certiorari to quash the decision of the General Court-Martial, which has assumed jurisdiction, which it did not possess or where the order contains error of law apparent on the face of the record. We, therefore, reject the appellants' contention that this Court has no jurisdiction to entertain the respondents' petition under Article 226 of the Constitution.
6. This brings us to the second contention raised by the appellants, namely that the General Court-Martial had not acted without jurisdiction in passing the order of dismissal against the respondent. In order to appreciate this contention, it is necessary to read the relevant rules of the Rules known as Army Rules made by the Central Government in exercise of powers conferred by Section 191 of the Army Act, 1950. Relevant rules are Rules 22, 23, 24 and 25. They read as follows:
22. Hearing of charge:
(1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witness and make any statement in his defence.
(2) The commanding officer shall dismiss a charge brought before him if in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion he is satisfied that the charge ought not to be proceeded with.
(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall without unnecessary delay-
(a) dispose of the case summarily under Section 80 in accordance with the manner and form in Appendix III, or
(b) refer the case to the proper superior military authority; or
(c) adjourn the case for the purpose of having evidence reduced to writing; or
(d) if the accused is below the rank of warrant officer, order his trial by a summary Court-martiaL;
Provided that the commanding officer shall not order trial by a summary Court-martial without a reference to the officer empowered to convene a district Court-martial or an active service a summary general Court-martial for the trial of the alleged offender unless either-
(a) the offence is one which he can try by a summary Court-martial without any reference to that officer; or
(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.
23. Procedure for taking down the summary of evidence:
(1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.
(2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded.
(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses as to character;
(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.
(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him be read to the accused and included in the summary of evidence.
(6) Any witness who is not subject to military law may be summoned to attend by order under the head of the commanding officer of the accused. The summons shall be in the form provided in Appendix-III.
24. Remand of accused:
(1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the 'summary of evidence'), shall be considered by the commanding officer, who thereupon shall either-
(a) remand the accused for trial by a Court-martial; or
(b) refer the case to the proper superior military authority; or
(c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily.
(2) If the accused is remanded for trial by a Court-martial, the commanding officer shall without unnecessary delay either assemble a summary Court-material (after referring to the officer empowered to convene a district Court-martial or on active service a summary general Court-martial when such reference is necessary) or apply to the proper military authority to convene a Court-martial, as the case may require.
25. i (1) Where an officer is charged with an offence under the 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 Rules 22 and 23 in the case of other persons subject to the Act.
(2) When an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a Court-martial, without any such recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charge as provided in Sub-rule (7) of Rule 33.
7. Rules 22, 23 and 24 provide for investigation of a charge against a person subject to the Act but other than an officer. Rule 25 provides for investigation of a charge against an officer. In the case of a person other than an officer, initially oral enquiry is to be made. If as a result of such an oral enquiry, the C.O. is of the opinion that the evidence does not disclose that an offence under the Act has been committed, he has to dismiss the charge. Even in the case where the evidence discloses commission of an offence, the C.O. may in his discretion dismiss the charge, if he is satisfied that charge ought not to be proceeded with. However, if he is of the opinion that charge ought to be proceeded with, he has to adopt one of the three courses mentioned in Sub-rule (3) of Rule 22. In case he decides to proceed under Rule 22(3)(c), the procedure prescribed by Rule 23 is required to be followed for the purpose of recording evidence and the statement of the accused. Thereafter, the C.O. has to adopt one of the three courses mentioned in Rule 24. In the case of an officer, rule 25, provides for investigation of the charge in the manner prescribed by Rules 22 and 23 only if the officer so requires. Sub-rule (2) of Rule 25 provides that in case an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a Court-martial without recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charge. It is pertinent to note that Rule 25 makes no reference to Rule 24.
8. It is not disputed that in the instant case, evidence was recorded in writing in the manner prescribed by Rules 22 and 23 in the presence of the respondent. After evidence was recorded as aforesaid, the C.O. recorded the opinion, relevant portion of which is reproduced hereinabove. It is submitted on behalf of the appellants that the C.O. had not dismissed the charge against the respondent under Sub-rule (2) of Rule 22, but had decided to refer the respondent's case to the superior military authority for decision under Clause (b) of Sub-rule (1) of Rule 24. It is submitted that though Rule 25 does not refer to Rule 24, the C.O., had power to resort to any of the three courses open to him under Rule 24. It is submitted that Rule 25 has to be read along with Note-2 below the rule. This note, according to the appellants, forms part of Rule 25 and if this note is read along with Rule 25, it is clear that the C.O. had power to refer the respondent's case to his superior military authority. Note-2 to Rule 25 reads as under:
2. In the case of an officer, as in that of other persons, the charge must come before the C.O. in order that the latter may determine whether it shall be dismissed or the case referred to a superior authority for summary disposal under Army Act Sections 83 or 84 or for trial by Court-martial. Under this rule the C.O. can dispense with a formal and detailed investigation unless the accused officer demands one. It does not preclude the C.O. from calling the officer and investigating the case as he may deem necessary. The officer can only demand formal investigation of his case by the C.O. he has no right under this rule to demand a Court of inquiry.
9. Relying on this note, it was submitted that the C.O. could have referred the case to the superior military authority under Clause (b) of Rule 24(1). We have earlier pointed out that Rule 25 does not specifically refer to Rule 24. In absence of such reference, the question arises whether it was open to the C.O. to refer the reference, case to the superior military authority under Clause (b) of Rule 24(1). Now, even if we read Note-2 below Rule 25 along with the said rule, it would appear that three courses were open to the C.O. namely, (i) to dismiss the charge or case; (ii) to refer the case to a superior authority for summary disposal under Section 83 or 84 of the Army Act; or (iii) to refer the case for trial by Court-martial. Reference of the case to superior authority is confined to summary disposal under Section 83 or 84 of the Army Act. Section 83 provides for minor punishment of officers, junior commissioned officers and warrant officers by brigade commanders and others; while Section 84 provides for punishment of officers, junior commissioned officers and warrant officers by area commanders and others. Admittedly, the C.O. had not referred the case of the respondent to the superior authority for summary disposal under the said sections. Therefore, only two courses were open to the C.O. under Rule 25, which provides for procedure on charge against officer, namely, (i) to dismiss the charge; or (ii) to remand the respondent for trial by Court-martial. The C.O. did not remand the respondent for trial by Court-martial. Therefore, the only course open to him was to dismiss the charge. He could, not have referred the respondent's case to the superior military authority under Clause (b) of Rules 24(1).
10. Section 108 of the Army Act provides that there shall be four kinds of Court-martial, that is to say, - (a) General Court-martial; (b) District Court-martial; (c) Summary General Court-martial; and (d) Summary Court-martial. Section 109 lays down that a General Court-martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. Rule 37 provides for convening of General and District Court-martial. Sub-rule (1) of Rule 37 which is relevant for our purpose reads as under:
37. (1) An officer before convening a general or district Court-martial shall first satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.
It is, therefore, evident that unless the C.O. was satisfied that the charges to be tried by Court are offences within the meaning of the Army Act and evidence justifies a trial of those charges, he should not convene General Court-martial.
11. Clauses (a) and (c) of regulation 405 of the Army Regulations which deal with disposal by C.O. and sending before a Court-martial also throw light on the subject under discussion. These Clauses read as under:
(a) There is no offence which a commanding officer is compelled by law or by rules to send before a Court-martial and each case should be considered on its merits, but a commanding officer should not, of course, dispose of summarily a case which he is debarred by Army Act, Section 120(2) from trying by summary Court-martial without reference to a superior authority, or any other case which obviously deserves a more severe punishment than he is empowered to award summarily.
x x x
(c) Except when it is important that the guilt or innocence of the accused should be definitely decided, it is undesirable to send a case before Court-martial when it appears doubtful whether the evidence will lead to a conviction. In such a case the charges should ordinarily be dismissed under the provisions of the Army Rule 22(2).
12. Combined reading of Rules 22, 25 along with Note-2, Rule 37 and regulation 405 makes it clear that if in the opinion of the CO., evidence does not show that offence under the Army Act has been committed, he has to dismiss the charge brought before him. It is only, if he is satisfied that charges to be tried by Court-martial are for offences within the meaning of the Army Act and that the evidence justifies trial on those charges, that he could convene General Court-martial. However, if he is not so satisfied, he has to dismiss the charges and release the accused officer. He may, in such a case, refer the case to the superior authority, but that is not for the purpose of convening a Court-martial. No provision in the Army Act and the Rules and Regulations framed thereunder is pointed out to us which shows that in a case where the C.O. holds that no offence under the Army Act is committed and the accused officer is not guilty, the superior authority, to whom the case is referred, is empowered to convene Court-martial for the trial of the accused officer. Once the charges are held not proved, the C.O. has no option but to dismiss the charges.
13. We do not find any substance in the appellants' contention that charges against the respondent were not dismissed by the C.O. We have set out hereinbefore relevant portion of the opinion of the C.O. wherein it is clearly stated that the C.O. was convinced that the charges farmed against the respondent were thoroughly baseless and were either "disproved" or "not proved" as established beyond even any semblance or element of doubt and therefore, stand automatically dismissed, (underline supplied). The C.O. further went on to observe: "It is thus proved beyond any doubt that no offence in respect of this charge was committed and as such Major V.J. Kharod was not guilty of any offence. Thus the charge is held not proved". The C.O. also stated: "charge was disproved and the respondent was not guilty of any offence". In terms the C.O. recommended that the respondent "be exonerated off all the three charges and reverted back to his corps with full honour". Thus there is no doubt whatsoever that the C.O. had recorded a clear finding that charges against the respondent were not proved and that he was not guilty of any offence. Under the circumstances, under Rule 22 read with Rule 25, the C.O. was bound to dismiss the charge. In fact, as pointed out above, he has dismissed the charges when he says that the charges stand automatically dismissed. In the fact of this clear unambigous opinion expressed by the C.O. it is not open to the appellants to contend that the charges against the respondent were not dismissed. The C.O. could not have referred the case to the superior military authority under Rule 24(1)(b) even if that rule is held to be applicable. The superior military authority had no authority or jurisdiction to convene General Court-martial for the trial of the respondent. There is no question of the superior authority disagreeing with the recommendations made by the C.O. and direct trial of the respondent by General Court-martial.
14. No other point was canvassed before us. We, therefore, fully agree with the reasonings and conclusions reached by the learned single Judge and hold that the C.O. had dismissed the charges against the respondent. It is not disputed that once it is held that the C.O. had dismissed the charges against the respondent, General Court-martial could not have been convened to try the respondent. It must, therefore, be held that trial of the respondent by General Court-martial was illegal and without jurisdiction and consequently the decision rendered by the General Court-martial deserves to be quashed. We, therefore, confirm the order passed by the learned single Judge quashing and setting aside the impugned orders at Annexures 'R', 'S' and 'W' to the petition-Special Civil Application No. 497 of 1981. We also confirm the declaration given by him that the respondent continues in service without any break, and is entitled to all the consequential benefits as if the impugned orders were not passed at all. It is true that as a result of such a declaration, the respondent would not only be entitled to all the monetary benefits, such as pay and allowances, arrears of pay and allowances, revised pay scale if any, etc., but also to other benefits such as earned leave or encashment of leave, which he has not been able to enjoy and the benefits of leave travel concession, promotions etc. But once the dismissal order is held to be illegal and the respondent is reinstated in service, these are consequential benefits which flow his reinstatement in service. In other words, the respondent would be entitled to all the benefits as if dismissal order were not passed and he continues to be in service. So far as the back wages or salary is concerned, as held by the learned single Judge, he will not be entitled to such salary only to the extent it is established that he was gainfully employed. In other words, deduction from the back wages and other benefits due to him will be made only to the extent of the amount which he is proved to have earned by being gainfully employed. We thus confirm the reliefs granted by the learned single Judge.
15. In the result, this appeal fails and is dismissed with no order as to costs. Mr. S.R. Shah, learned Counsel for the appellants prays for a certificate for appeal to the Supreme Court under Article 134A of the Constitution of India. In our opinion, this case does not involve a substantial question of law of general importance which needs to be decided by the Supreme Court. We, therefore, reject the prayer of Mr. Shah.
16. Mr. Shah further prays that ad interim relief granted by this Court be continued for six weeks to enable the appellants to approach the Supreme Court. In view of the prayer made by Mr. Shah, we continue the ad interim relief granted by this Court for a period of six weeks from today subject to the directions which are already given by this Court in Civil Application No. 501 of 1986.