Punjab-Haryana High Court
Union Of India (Uoi) And Anr. vs Ajaib Singh No. 1256394 Wex-Gunner ... on 11 August, 1997
Equivalent citations: (1997)117PLR819
JUDGMENT K.K. Srivastava, J.
1. This Letters Patent Appeal has been filed against the judgment of a learned Single Judge (J.L. Gupta, J.), of this Court delivered in Civil Writ Petition No. 1649 of 1988 (Ajaib Singh v. Union of India and Anr.). The facts giving rise to this appeal may, briefly be narrated as under:
2. The writ petitioner/Ajaib Singh was recruited as a Sepoy in the Indian Army on 28th August, 1971, during the Bangla Desh-Indo Pak War as a Gunner Operator in Artillery. On his joining the army, he was posted to 166 Mountain Regiment and was promoted as Lance Naik. During his service, Ajaib Singh was accused of having deserted the army on June 10, 1984 at 2100 hours. He was, however, apprehended the next day, i.e. June 11, 1984, at 0255 hours and was taken into custody.He was tried by the Court-martial and was found guilty of the charge of deserting the army and consequently he was sentenced to undergo rigorous imprisonment for seven months and was detailed in Military Prison, Golconda, Hyderabad. Feeling aggrieved against the order of his imprisonment and refusal to grant pension and retiral benefits, Ajaib Singh filed the civil Writ petition under Article 226 of the Constitution of India and sought the quashing of the impugned order. He has also prayed for issuance of a direction to the respondents to reinstate him in service with retrospective effect and for payment of his pay and allowances due to him. He further sought the issuance of a direction to the respondents to condone his nonqualifying service of 177 days, when he underwent sentence of imprisonment.
3. Ajaib Singh challenged the impugned order on the grounds, inter alia, that the Army Rules 22 and 23, which were mandatory in nature, were not complied with at the trial by the Summary Court-Martial inasmuch as he was not given copy of the charge-sheet and the charge sheet was not read over to him. He was not associated with the investigation of the case and the evidence of the witnesses was not recorded in his presence. He was not allowed an opportunity to defend himself and to cross-examine the witnesses examined in support of the charge. He was not allowed to lead his own evidence. He alleged the breach of Rules 180 and 184 of the Army Rules.
4. The appellants (respondents in the writ petition) filed the written statement, controverting the allegations of the, petitioner about the non-observance of army Rules 22 and 23 and about the breach of Rules 180 and 184. According to the respondents, Army Rules 22 and 23 were duly complied with. The signatures of the petitioner were obtained on March 20, 1985 on the record of proceedings, a copy of which is Annexure R1. The charge sheet was duly read over to the petitioner at the time of hearing of the charge as required by Army Rule 22. The 'proceedings took place in the presence of Ajaib Singh petitioner. The summary of evidence was also recorded in his presence and he was given full opportunity to cross examine the witnesses. The petitioner was given a copy of the charge-sheet. A copy of the receipt signed by the petitioner was annexed as Annexure R.2. The petitioner was provided with the services of his friend IC-174591J Major AC Sampath, as provided by Army Rule 129. This would appear from the copy of the convening order Annexure R4. It was stated in the written statement by the respondents that Army Rule 180 was not applicable in the case of the petitioner as it was a case of desertion of the army. The petitioner did not ask for copy of the court of enquiry and as such, it was not given to him. Regarding refusal to grant pensionary benefits, it was alleged that the condoning of the non-qualifying period itself did not entitle the petitioner to pensionary benefits on completion of 15 years of colour service. It was further contended by the appellants that as per provisions of Pension Regulation para 123(c)(t) the petitioner after his punishment Under Section 38(1) of the Army Act was required to serve minimum period of three years in an exemplary manner after completion of the punishment in order to become eligible for pensionary benefits. Since the petitioner did not serve for three years in the said manner after his conviction, he was not entitled to get pension and retiral benefits. According to the appellants, the case for grant of pension can only be considered on receipt of sanction of the competent authority for restoration of forfeited service and condonation of deficiency in service, which was being processed. The case forwarded through the Staff channel is still under consideration of the Army Headquarters. As the Government orders are required to waive off the provisions of Pension Regulation Para 123(c)(t), action to grant him service pension can only be initiated on receipt of the Government orders and condonation in deficiency in service.
5. Replication was filed by the writ petitioner/Ajaib Singh, controverting the allegations made by the appellants and reiterating the averments made by him in the writ petition.
6. The learned Single Judge held that the charge of desertion reflects on the character and military reputation of a person and as such the provisions of Army Rule 180 were clearly attracted in the instant case. The contention of the appellants that failure to comply with the provisions of Rule 180 could not be said to have prejudiced the interest of the petitioner was repelled. He held further that a valuable opportunity guaranteed by Army Rule 180 was denied to the petitioner. Taking the totality of the circumstances into consideration, the learned Single Judge was of the opinion, - "it was eminently a case where the authorities should have passed appropriate orders expeditiously. Since they failed to do so inspite of the fact that the petitioner had waited for almost two years before approaching this Court, I am constrained to hold that the petitioner's trial is vitiated on account of non-compliance with the provisions of Rule 180 and that the period of imprisonment cannot now be treated as not-qualifying for pension." Consequently the writ petition was allowed to the extent holding that the petitioner had completed 15 years of qualifying service and was entitled to the grant of pension.
7. We have heard the learned counsel for the appellants and learned counsel for the respondent and have carefully perused the judgment of the learned Single Judge.
8. While assailing the findings of learned Single Judge, Shri S.K. Pippat, learned Standing Counsel appearing for the appellants argued that at the investigation stage, i.e. the fact finding enquiry into the charge of desertion Under Section 38 of the Army Act, Rule 180 of the Army Rules was not applicable. He further submitted that rule 180 applies only in a case where the character or military reputation of a person subject to Army Act is under inquiry. The case of the respondent was not one of the said type and as such, Rule 180 aforesaid was not at all applicable. He further submitted that the learned Single Judge had not appreciated that any such procedural deviation, i.e. non-compliance of Rule 180 could not result in vitiating the proceedings inasmuch as no prejudice was thereby caused to the respondent, who had full opportunity to face a complete trial in the Court Martial proceedings. According to Shri Pippat, the respondent/writ petitioner was allowed full opportunity during the summary of evidence proceedings, which is a stage preceding the convening of the Court Martial. It is at that stage that the concerned delinquent is afforded a full opportunity to make a statement and produce defence witnesses and also cross examine the prosecution witnesses.
9. In order to properly adjudicate the controversy involved in this case, it would be useful to refer to the relevant Rules. Rule 180 of the Army Rules, 1954 provides: -
"180. Procedure when character of a person subject to the Act is involved.-
Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act full opportunity must be afforded to- such person of being present throughout the inquiry and of making any statement and of giving any evidence he may wish to make or give, and of cross-examining any witnesses whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule.
A perusal of Rule 180 aforesaid will clearly show that whenever any inquiry conducted against a person governed by the Army Acts/Rules, affects his character or military reputation, such person in that situation is to be afforded full opportunity of being present throughout the enquiry. He is to be afforded an opportunity to make a statement and give any evidence, which he desires to lead and is to be afforded an opportunity of cross-examining any witness whose evidence in his opinion is likely to affect his character or military reputation. The rule enables such person to lead evidence in defence of his character or military reputation. This rule further cautions the presiding officer of the court to take such steps which appear to be necessary for ensuring that such person so affected and not previously notified receives notice of and fully understands his rights under the rules. It is, thus, evidently clear that Rule 180 once held applicable to the case of the respondent, is of primary importance and it provides to the respondent value able rights to defend himself against a charge which affects his character or military reputation.
10. Now let us examine the accusation, which has been brought against the respondent, to see if his character or military reputation in the trial was at stake. It is not disputed that the respondent while serving the Army was accused of committing an offence of desertion punishable Under Section 38 of the Army Act. The learned Single Judge has, in our considered view, rightly held that" 'Desertion' depicts a totally complete unpatriotic attitude. It reflects adversely on the character and military reputation of a soldier. In my view, the charge of desertion does reflect on the character and military reputation of a person and accordingly the view taken by the authorities cannot be sustained. The provisions of Rule 180 were clearly attracted. " The charge of desertion brought against the respondent certainly adversely affected not only his character but also his military reputation. We are, thus, in complete ' agreement with the findings of learned Single Judge that Rule 180 was clearly applicable in the case of the respondent. Once Rule 180 is held to be applicable in the case of the respondent, then it is not disputed that the respondent was not afforded any such opportunities of making his statement, cross-examining the prosecution witnesses and to lead evidence of his witnesses in defence. The respondent in his writ petition categorically averred that no evidence was recorded in his presence and he was not called upon to make his statement or to produce his defence. These averments were made in para 7 of the writ petition. In reply to this para, the appellants/writ respondents averred, inter alia, as under:-
"A consolidated court of Inquiry in respect of the individual alongwith other similar personnel who deserted from service was held. There is no requirement of applying provisions of Army Rule 180 in the case of desertion. Since the petitioner did not ask for a copy of Court of Inquiry hence it was not given to him -- "
The petitioner was, thus, not associated with the Court of Inquiry Learned counsel for the appellants contended that the failure to comply with the provisions of Rule 180 cannot be held to have prejudiced the rights/interests of the writ petitioner. The provisions of Rule 180, which have been noticed above, leave no room for doubt that the rule is of utmost importance inasmuch as it enables the delinquent to know the nature of evidence that is to be led against him and he would have also had a chance to cross-examine the witnesses. The evidence of the prosecution witnesses recorded in the Court of Inquiry could be utilized by the delinquent to contradict them at the time of their examination in the Court Martial. Rule 182 of the Army Rules lays down, inter alia;-
"182 Proceedings of court of inquiry not admissible in evidence.' The proceedings of a court of inquiry or any confession, statement, or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respective the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court."
Since the court of inquiry is of the nature of investigation and during investigation the evidence of the witnesses which is recorded, is not admissible at the time of the court martial proceedings, but this evidence can certainly be used by the delinquent for the purpose of contradicting such witnesses at the court martial. This provision is somewhat similar to Section 162 of the Code of Criminal Procedure, which provides as under: -
"162. Statements to police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may be used in the re-examination of such witnesses, but for the purpose only of explaining any matter referred to in his cross-examination."
11. It cannot, thus, be held that non-compliance of Rule 180 aforesaid did not cause any prejudice to the interests of the respondent. In our considered view, the learned Single Judge has rightly held that a valuable opportunity guaranteed by Rule 180 of the Army Rules was denied to the respondent.
12. Rules 22 and 23 of the Army Rules which provide for hearing of charge and procedure for taking down the summary of evidence during investigation of charges and remand for trial, have been held to be mandatory in nature by the Apex Court in Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors., AIR 1982 Supreme Court 1413. The writ petitioner/respondent averred in the writ petition that these mandatory rules were not complied with in his case and their non-compliance has seriously prejudiced his interest. The Apex Court in the aforesaid case of Lt. Col. Prithi Pal Singh Bedi held that Rules 22 to 24 are mandatory in respect of every person subject to the Act other than an officer. It was further held that the opening words of Rule 22 clearly demonstrate the mandatory applicability of the provisions in Rules 22 and 23 in cases of persons subject to Act other than officers. The provisions of Rules 22 and 23 of the Army Rules may be referred to for proper appreciation of the submissions made by learned counsel for the writ petitioner/respondent:-
"22. Hearing of Charges: (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 witnesses and make any statement in his defence.
(2) The Commanding Officer shall dismiss a charge-brought before him 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 Sec. 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 the 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 on 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 can not 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 the evidence of the witnesses who were present and gave the 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, including, if he so desires, any 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 expenses and loss of time involved) the attendance of any witnesses 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 may 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 hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III."
13. A perusal of the written statement filed by the appellants will go to show that the appellants admitted about the mandatory nature of Rules 22 and 23. They, however, took the stand in para 5 of the written statement that the provisions of these rules have been complied with correctly. The writ petitioner/Ajaib Singh, however, made categorical averment regarding non-compliance of the said rules.
14. The writ petitioner/respondent further challenged the validity of the trial and consequential punishment on the ground of non-compliance of Section 130 of the Army Act because of the reason that the officer holding the summary court martial did not ask him (the writ petitioner) if he objected to be tried by the said officer holding the court martial trial. Learned counsel for the writ petitioner relied on the judgment of the Apex court in Ranjit Thakur v. Union of India, AIR 1987 S.C. 2386 wherein it was held that the non-compliance of the mandate of Section 130 of the Army Act is an infirmity, which goes to the root of the jurisdiction and without more, vitiates the proceedings. While controverting this averment of the writ petitioner, the appellant/Union of India contended that if bare perusal of Section 130 of the Army Act would go to show that it relates to all the trials by general, district or summary general court-martial and it omits the proceedings before the summary court-martial. Section 130 aforesaid provides, inter-alia, as under;-
"130. Challenges- (1) At all trials by general, district or summary general "court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, Who shall thereupon be asked whether he objects to being tried by any officer sitting on the court."
15. It is significant to note that there is no mention of the summary court-martial in Section 130(1) of the Army Act and, as such, there is merit in the contention of learn ' counsel for the appellant that the provisions of Section 130 are not applicate to the proceedings under trial before the office Conducting the summary court-martial. We find no merit in the submission of learned counsel for the respondent regarding non-compliance of the provisions of Section 130 of the Army Act.
16. Admittedly, the delinquent/writ-petitioner Ajaib Singh (who is respondent before us) has served and suffered the sentence of imprisonment awarded to him The challenge to the conduct of the summary court-martial has been made in order to derive the benefit of computing of the period of imprisonment, which has been treated as non-qualifying service period for the purpose of awarding pensionary benefits. The infirmities in the conduct of the summary court-martial, as noticed; above, become relevant to this context and it assumes significance because if the period of imprisonment, which the delinquent/writ petitioner has suffered, is taken into consideration for counting the period of 15 years for the purposes of grant of pensionary benefits, then the petitioner would be entitled to the pensionary benefits. In this context, the stand of the appellants taken in the written statement becomes quite relevant. The appellants have averred in paras '22' and 24 of the written state ment that the Case of the writ petitioner was forwarded through their staff channel for sanction of the competent authority for restoration of his forfeited service and condonation in deficiency in service. In reply to the prayer clause of the writ petition, the writ-respondents averred as under:-
The case of the individual for obtaining Govt. orders for restoration of forfeited former service and condonation in deficiency in service is already under consideration with Army HQ. Necessary action will be taken accordingly on receipt of Govt. orders."
The written statement was filed on 16th July, 1991: The learned Single Judge While considering the stand taken by the respondent held as under :-
"Even otherwise, at the time of discharge from the Army, the petitioner was informed vide letter dated May 1,1996 that "the period of 177 days non-qualifying service is being condoned by this office--".Even in the discharge-certificate, it was specifically mentioned that the petitioner was being transferred to pension establishment."
17. We are of the view that the' learned Single Judge has rightly held that the petitioner's trial was vitiated on account non-compliance of the mandatory provisions of the Army rules, and that the period imprisonment could not now be treated as non-qualifying for pension and in holding the petitioner having completed 15 years of qualifying, service and, entitled to the grant of pension. We find no merit in this appeal. The appeal is dismissed.