Madras High Court
Mr.John P.Mathew vs Union Of India on 28 April, 2025
W.P.No.26062 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 28.02.2025
Pronounced on 28.04.2025
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.26062 of 2018
Mr.John P.Mathew
... Petitioner
Vs.
1.Union of India,
Rep. by the Secretary to
Government of India,
Ministry of Defence,
New Delhi 110 011.
2.The Chief of Army Staff,
Army Head Quarters,
D.H.Q.P.O. New Delhi 110 011.
3.The General Officer Commanding,
HQ ATNKK & G Area,
Chennai 600 009.
4.Adjutant General,
Additional Directorate General
Discipline & Vigilance DV-3,
Adjutant Generals Branch,
Army Head Quarters,
DHQ P.O.New Delhi 110 011.
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W.P.No.26062 of 2018
5.Maj.Anil Jothwani,
Ex.Officer Commanding,
ATNKK & G Area, Signal Company,
Chennai 600 009. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned orders issued by the second respondent dated
04.09.2017 in No.C/09348/DV-3(B) and quash the same and
consequently, direct the second respondent to cancel the reversion of the
petitioner to the post of Signalman and restore him to the original post of
Havildar.
For Petitioner : Mr.R.Dhamodaran
For Respondents : Mr.K.S.Jeyaganeshan,
SPC for R1 to R3
No appearance for R4 & R5
ORDER
The petitioner has filed this Writ Petition to call for the records relating to the impugned order issued by the second respondent dated 04.09.2017 in No.C/09348/DV-3(B) and quash the same and consequently, direct the second respondent to cancel the reversion of the petitioner to the post of Signalman and restore him to the original post of Havildar.
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2. Heard Mr.R.Dhamodaran, learned counsel for the petitioner, Mr.K.S.Jeyaganeshan, learned Senior Panel Counsel for R1 to R3 and perused the materials available on record.
3. The brief facts of the case are as follows:
On 13.08.2002, the petitioner faced a summary trial before the Court Martial and was tried under Section 41(2) of the Army Act, 1950.
At the conclusion of the trial, he was imposed with the punishment of three months rigorous imprisonment and he was also demoted from the post of Havildar to Signalman. He filed an appeal on 05.04.2003 and the same was rejected on 26.08.2003. On 07.10.2003, the petitioner had filed a Second Appeal and that was also rejected on 28.11.2003.
3.1. The petitioner has filed a Writ Petition in W.P.C.No.20048 of 2004 before the Kerala High Court. In the said Writ Petition, a direction has been given to the respondents to reconsider the petitioner's appeal.
Thereafter, the appeal filed by the petitioner was rejected on 04.09.2017. The petitioner has filed a Writ Petition in the High Court of Kerala in Page No.3 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 W.P(C) No.13744 of 2018 and that was returned due to lack of jurisdiction. Hence, this Writ Petition has been filed seeking the above relief.
4. Mr.R.Dhamodaran, learned counsel for the petitioner submitted that the fifth respondent has developed a personal animosity due to a previous incident where he refused to sanction leave and created tension. On 07.08.2002, the petitioner was placed under observation, but in reality, he was held in close arrest with guards, handcuffs and restrictions on movements which violated military norms. He was physically tortured by the fifth respondent and he was not given treatment for his injuries. The charges were manipulated and the original charges under Section 39
(d) of the Army Act was replaced with Section 41(2) to ensure more punishment. The petitioner was not given with due opportunity to put forth his proper defence and the testimonies of witnesses were influenced by the fifth respondent. Despite, lack of strong evidence, the petitioner was convicted on 24.03.2003 and was sentenced to three months rigorous imprisonment and demotion from the post of Havildar to Signalman. Page No.4 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 4.1. The rejection order dated 04.09.2017 has been passed without considering the new contentions raised by the petitioner. Though the petitioner has already served 3 months rigorous imprisonment, he was given with an another punishment of demotion from the post of Havildar to Signalman without considering his earlier unblemished service records. The punishment imposed was against the principles of proportionality. The petitioner was forced to leave his post due to inhuman treatment and death threats given by the fifth respondent. The Court Martial failed to consider this crucial fact and hence this decision is unjust and unsustainable. Initially, the charge was framed under Section 39(d) of the Army Act and later replaced with Section 41(2) suggesting an intentional modification to secure conviction. The conviction order under Section 41(2) lacks evidentiary proof and it is legally unsustainable. The petitioner was not informed of his right to engage a defence assistant. Vital documents including the summary of evidence and confirmation order were not served on the petitioner. The order of Court Martial was cryptic and without any reasoning. Rules 22 Page No.5 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 and 23 of the Army Act were not followed. As per Rule 23, summary of evidence has to be taken within 24 hours, but the same was not followed.
5. Mr.K.S.Jeyaganeshan, learned Senior Panel Counsel for the respondents 1 to 3 submitted that as per Section 116 of the Army Act, the summary of Court Martial may be held by the Commanding Officer and the right procedure has been adopted by holding Rule 22 and 23. Rule 33(7) is applicable for general and District Court Martial. This Writ Petition is not maintainable in view of Section 3(o) of the Armed Forces Tribunal Act, 2007.
6. The petitioner is a non-commissioned officer. As per Section 3(o) of the Armed Forces Tribunal Act 2007 'service matters' under Army Act 1950, the Navy Act 1957 and the Air Force Act, 1950 would include on matters relating to the conditions of their services and the summary Court Martial where the punishment is not dismissal or imprisonment for more than three months.
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7. For a better clarity, Section 3(o) of the Armed Forces Tribunal Act, 2007 is extracted as below:
"3(o). "Service matters", in relation to the persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, mean all matters relating to the conditions of their service and shall include--
(i)xxxx
(ii)xxxx
(iii)xxxx
(iv) Summary Court-Martial except where the punishment is of dismissal or imprisonment for more than three months."
8. The petitioner was imposed with the punishment of reduction of rank and rigorous imprisonment for three months. As the petitioner has not been imposed with punishment of imprisonment for a period less than three months, the petitioner cannot seek his remedy before the Armed Forces Tribunal. Hence the preliminary objection as to maintainability due to want of jurisdiction is ruled out. Page No.7 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018
9. The petitioner has also raised contentions of violation of principles of natural justice on the allegation that he was not given with proper opportunity and that the proper procedure established by law was not followed during the Court Martial proceedings. The petitioner has been given with charges falling under Section 39(d) and 40(b) which are extracted hereunder:
"First Charge under Section 39(d) - Without sufficient cause failing to appear at the time fixed at the place appointed for duty.
Second Charge under Section 40(b) - Using threatening language to his superior officer.
Third Charge under Section 40(b) - Using threatening to his superior officer."
10. One of the grounds raised by the petitioner is that he was charged only because there was some previous motive between himself and the fifth respondent in an issue of sanctioning of leave. These factual aspects would be the defence of the petitioner during the enquiry. The petitioner was given with the opportunity to submit his explanation Page No.8 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 including the allegation that he was absented himself without leave.
11. Exhaustive procedure has been contemplated under Rule 22 and 23 for hearing the charges. The charges which have been framed against the petitioner were served to him. As per the Army Rule 22(3), if the proof of charges requires recording of evidence, the Commanding Officer at his discretion shall proceed to acquire further evidence by passing an order. The said provision is also seen to have been complied.
12. The petitioner did not deny the fact that summary of evidence was recorded and that was served on him. However, he has stated that there was a delay in furnishing the summary of evidence. It was not referred to any rules as to whether any time limit is furnished to submit the copy of evidence. Though unreasonable delay should be avoided in the interest of natural justice, without proving any prejudice caused due to the delay, the delay alone cannot be taken as a ground for quashing the impugned order.
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13. The evidence taken under the above rule, if discloses any other offence other than the offence for which investigation has been taken up, the Commanding Officer is empowered to frame additional charges basing on the evidence. So, there can be some difference in initial charges and the charges framed after the investigation.
14. It is the allegation of the respondents that the charge sheet and summary of evidence has been served on the petitioner on 10.03.2003 and he refused to receive. Thereafter the petitioner asked for a copy of the summary of evidence and a summary of Court Martial proceedings and that were furnished to him on 27.03.2003. Even though the petitioner wanted change of the Presiding Officer, the General Officer Commanding had considered that the Summary Court Martial who is handling the case himself is impartial and allowed the trial to be continued by him.
15. The petitioner has alleged that he was kept under close arrest and he was subjected to torture. However, the petitioner did not complain Page No.10 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 the same to the appropriate authority and he was seen to be attending Sainik Sammelan. In fact, it is submitted by the learned Senior Panel Counsel for the respondents that in the orders of the Court Martial and the Appellate Authority also, it has been stated that the petitioner did not complain about the allegations of torture to any of the officers at the relevant point of time. Having failed to make such allegations, the petitioner cannot make out a ground by adding more colour to his grounds.
16. It was the contention of the learned counsel for the petitioner that the petitioner was directly recruited as Havildar. But in reality, he was only promoted to the post of Havildar. It is clarified by the respondents that the petitioner was appointed as Signalman (sepoy) and thereafter, he was promoted to the rank of Havildar. It is further justified that the reduction to the rank is one of the punishment contemplated under the military law. In fact, it was one of the punishment enlisted under the Army Act. It is further submitted that the contention with regard to reduction of rank is not possible only in respect of the Warrant Page No.11 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 Officer and that is confirmed under Section 71(f) of the Act as well.
17. The petitioner has stated that he was not informed about his right to have a defence assistance during the summary Court Martial. However, it is stated that there is no proof under the Army Act for providing defence assistance for summary Court Marital cases while recording the evidence. It is not denied that the statement of witnesses were recorded in the presence of the petitioner and he had also availed the opportunity to cross examine the witnesses. Further, under Rule 129, the accused person can have a person to assist during the trial whether he is a legal advisor or any other person, but it is only at the option of the accused person. Had the petitioner needed such an assistance, he could have asked it at the first instance. So, the petitioner's contention that he was denied with the fair opportunity during the proceedings does not hold water.
18. On the whole, it is seen that the procedure for taking up summary of evidence on the trial before the Court Martial has been Page No.12 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 scrupulously followed without causing any detriment to the petitioner or without violating any procedure contemplated under law. The petitioner has raised some new grounds which he did not raise in the appeal filed before the Appellate Authority. One of the grounds now raised by the petitioner is that Rule 180 of the Army Rules was not followed. With regard to the scope of Rule 180 of the Army Rules, the High Court of Delhi has held in the case of Naib Subedar Manjeet Singh Vs. Union of India and Others, reported in ILR(2009) II Delhi 536 that Rule 180 of the Army Rule mandates that whenever it is proposed to take any action against the incumbent whose reputation and character is found to be in question on account of the evidence recorded during the Court of enquiry, it becomes necessary to follow the procedure as prescribed by the Rule in toto.
19. In the instant case, after a full fledged trial before the Court Martial and findings rendered, the petitioner has raised the contention with regard to non-compliance of Rule 180 for the first time. The effect of such contention on the findings of the Court Martial has been dealt by Page No.13 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 the Hon'ble Supreme Court in the case of Union of India and Others Vs. Ex.No.3192684 W.Sep.Virendra Kumar, reported in (2020) 2 SCC 714. In the said judgment, it is held that if the accused raised the ground of non-compliance of Rule 180 of the Army Rules during recording of summary of evidence, the authorities have to rectify the defect as compliance with the procedure prescribed under Rule 180 of the Army Rules.
20. The petitioner had not raised such an objection at the time of framing of charges or during the course of recording evidence. He has raised this point for the first time after the order has been passed by the Court Martial after concluding a full-fledged trial. So, it is not open to the petitioner to raise it at a belated stage and as a second thought. The essential part of the above judgment which has been rendered after referring and discussing various after judgments of the Hon'ble Supreme Court is given as under for further clarity.
"10. This Court in Major G.S. Sodhi v. Union of India rejected the challenge to the Court Martial proceedings while dismissing the Writ Page No.14 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 Petitions filed under Article 32 of the Constitution. The main grievance of the petitioners in that case was the violation of the procedure prescribed in Rules 22 and 23 of the Army Rules. While recording a finding that there has been substantial compliance of Rules 22 and 23, this Court has held that recording of evidence is only to find out whether there is a prima facie case to convene a court- martial. This Court was of the opinion that the object and effect of the Rules should be considered in the context bearing in mind the general principle whether such an incomplete compliance has caused any prejudice to the delinquent officer. However, it was held that if there is any violation of mandatory rules, the benefit of the same should be given to the delinquent officer. The conclusion in that case was that there was no violation of the Rules and in any event no prejudice was caused to the petitioners therein. In Union of India & Ors. v. Major A. Hussain (IC-14827), this Court while setting aside the judgment of the High Court of Andhra Pradesh upheld the order of conviction of the respondent by the Court Martial. While dealing with the submissions made on Rule 180, this Court relying upon Major General Inder Jit Kumar v. Union of India held that proceedings before a Court of Inquiry are not adversarial proceedings as the Court of Inquiry is in the nature of a fact-finding enquiry committee. This Court was of the view that it is unnecessary to examine if pre-trial investigation is adequate or not when there is sufficient evidence to sustain conviction by the Court Martial. It was further held that the requirement of proper and adequate investigation is not jurisdictional and any Page No.15 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 violation thereof does not invalidate the Court Martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. As Respondent therein participated in the recording of summary of evidence without raising any objection, the submission regarding violation of principles of natural justice at an earlier stage was rejected by this Court.
11. In Union of India & Ors. v. Sanjay Jethi & Anr. the question regarding the bias of members of the Court of Inquiry was decided in favour of the delinquent officer. The interpretation by this Court of Rule 180 is as follows:
“53. In a CoI participation of a delinquent officer whose character or military reputation is likely to be affected is a categorical imperative. The participation has to be meaningful, effective and he has to be afforded adequate opportunity. It needs no special emphasis to state that Rule 180 is framed under the Army Act and it has the statutory colour and flavour. It has the binding effect on CoI. The rule provides for procedural safeguards regard being had to the fact that a person whose character and military reputation is likely to be affected is in a position to offer his explanation and in the ultimate eventuate may not be required to face disciplinary action. Thus understood, the language employed in Rule 180 lays postulates of a fair, just and reasonable delineation. It is the duty of the authorities to ensure that there is proper notice to the person concerned and he is given opportunity to cross-examine the witnesses and, most importantly, nothing should take place behind his back. It is one thing to say that CoI may not always be essential or sine qua non for initiation of a court martial but another spectrum is that once the authority has exercised the power to hold such an inquiry and CoI has recommended for disciplinary action, then the recommendation of CoI is subject to judicial review. While exercising the power of judicial review it Page No.16 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 becomes obligatory to see whether there has been due compliance of the stipulates prescribed under the rule, for the language employed in the said rule is absolutely clear and unambiguous. We may not dwell upon the concept of “full opportunity” in detail. Suffice it to say that one cannot stretch the said concept at infinitum on the bedrock of grant of opportunity and fair play. It has to be tested on the touchstone of the factual matrix of each case.”
12. A close scrutiny of the above judgments would indicate that:
(a) The proceedings of a Court of Inquiry are in the nature of a fact- finding inquiry conducted at a pre-investigation stage;
(b) The accused is entitled to full opportunity as provided in Rule 180;
(c) As a final order of conviction is on the basis of a trial by the Court Martial, irregularities at the earlier stages cannot be the basis for setting aside the order passed by the Court Martial;
(d) If the accused raises a ground of non-compliance of Rule 180 during the framing of charge or during the recording of summary of evidence, the authorities have to rectify the defect as compliance of the procedure prescribed in Rule 180 is obligatory.
13. Though there is non-compliance of Rule 180 of the Army Rules in this case as the Respondent was not present during the recording of the statements of witnesses, it is clear from the record that the Respondent did not raise this ground either at the stage of framing of the charge, recording summary of evidence or during the Court Martial proceedings. After a final order was passed by the Page No.17 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 Court Martial on the basis of a full-fledged trial, it is not open to the Respondent to raise the ground of non- compliance of Rule 180 during the Court of Inquiry proceedings. Therefore, the Tribunal ought not to have remanded the matter back for a de novo inquiry from the stage of Court of Inquiry on the ground of infraction of Rule 180 of the Army Rules"
21. At every stage of the proceedings the right procedure has been followed. The petitioner has been given with due opportunity and the orders passed by the authorities also within the powers bestowed on them under the Act.
22. The petitioner has stated that he has already served the punishment of three months rigorous imprisonment imposed on him. The punishment of reduction of rank is also a permissible punishment and it is within the authority of the Court Martial as stated already.
23. The learned counsel for the petitioner has submitted that the quantum of punishment is disproportionate to the charges and that it has been imposed without making any reference to the past unblemished Page No.18 of 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/04/2025 04:57:44 pm ) W.P.No.26062 of 2018 service records. Such statement of the petitioner is not correct. Because the records would show that the petitioner has suffered previous punishment for the previous lapses on his part. The punishment inflicted on the petitioner has been listed out by the respondents in his counter and it has been observed by the General Chief of the Army Staff also in the impugned order dated 04.09.2017. In view of the below the mark record of the petitioner's past service, I feel that the punishment now imposed was reasonable.
24. As the petitioner has not made out any acceptable ground, I feel the petitioner does not deserve any further indulgence from this Court.
In the result, this Writ Petition is dismissed. No costs.
Index : Yes/No 28.04.2025
Speaking / Non-speaking
Neutral Citation : Yes / No
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W.P.No.26062 of 2018
R.N.MANJULA, J.
gsk
To
1.The Secretary to
Government of India,
Ministry of Defence,
New Delhi 110 011.
2.The Chief of Army Staff,
Army Head Quarters,
D.H.Q.P.O. New Delhi 110 011.
3.The General Officer Commanding,
HQ ATNKK & G Area,
Chennai 600 009.
W.P.No.26062 of 2018
4.Adjutant General,
Additional Directorate General
Discipline & Vigilance DV-3,
Adjutant Generals Branch,
Army Head Quarters,
DHQ P.O.New Delhi 110 011.
5.Maj.Anil Jothwani,
Ex.Officer Commanding,
ATNKK & G Area, Signal Company,
Chennai 600 009.
28.04.2025
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