Calcutta High Court (Appellete Side)
Lieutenant Colonel Somnath ... vs Union Of India & Ors on 30 January, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 25294 (W) of 2007
With
W.P. No. 20978 (W) of 2006
With
C.A.N. No. 9854 of 2007
With
C.A.N. No. 9916 of 2007
Lieutenant Colonel Somnath Bhattacharya
Vs.
Union of India & Ors.
With
W.P. No. 23868 (W) of 2005
With
C.A.N. No. 8326(A) of 2006
Lieutenant Colonel Kamala Kanta Das
Vs.
Union of India & Ors.
For the Petitioner: Mr. Asit Kumar Banerjee,
Mr. Sibnarayan Chattopadhayay.
For the Union of India: Mr. N.C. Roychowdhury,
Mr. Saptangshu Basu,
Mr. Tapas Kumar Hazra,
Mr. S. Mukherjee,
Mr. Joydeep Sen.
Judgment on : 30.01.2009.
S.P. Talukdar, J.: In response to the submission made by learned Counsel for the
parties and having regard to the fact that identical points of fact and law are involved in the
cases under reference, those were taken up for hearing at a time.
Challenging the order dated 30th October, 2007, being Annexure- 'P-7' (at page-45)
of the W.P. No. 29294(W) of 2007, the petitioner approached this Court with an application
under Article 226 of the Constitution.
The facts are :-
The petitioner joined in the Army Medical CORPS (A.M.C) on 18th November,
1983. He was holding the rank of Lieutenant Colonel in AMC on and from 18th November,
1997 after rendering 14 years of service. He was posted at Military Hospital, Namkum,
Ranchi in 2003. On 5.2.2004, he applied for premature retirement from Army Medical
Corps due to personal reasons. There was a complaint against him in the letter dated 16th
August, 2004 over certain allegations covering the period from January, 2001 to May, 2003.
On 24th September, 2004, there had been an order of premature retirement from service.
On 15th October, 2004, on the complaint of colonel S.A. Cruze a convening order of
Court of Inquiry was made. Such Court of Inquiry was conducted during the period from
1.11.2004 to 14.12.2004. The petitioner invited attention of the convening authority to the
irregularities and illegalities committed by the Court of Inquiry by his letter dated 5th
January, 2005. On 14.2.2005, the respondent authorities convened a 2nd Court of Inquiry on
the same set of charges with the same composition of Presiding Officer, complainant and witnesses despite objection being raised. By a representation dated 21st June, 2005, the petitioner intimated higher authorities about irregularities and illegalities in convening the 2nd Court of Inquiry. By letter dated 15th July, 2005, the petitioner drew the attention of the convening authority as regards non-compliance of Army Rule, 180. The convening authority again passed an order for reconvening the Court of Inquiry on 31st August 2005 for the purpose of compliance of Army Rule, 180. By memo dated 20th August, 2006, the petitioner was attached to the Vehicle Department, Panagarh as a measure of punishment by the Court of Inquiry. On 19.9.2006, the petitioner moved a writ petition being W.P. No. 20978(W) of 2006 and the same is still pending. On 14.10.2006, hearing was made regarding charge without producing witnesses or documents as per charges. The evidence of P.W 4 and P.W 6 clearly proved that the petitioner is not guilty of the alleged charges. Some of the P.Ws adduced evidence under threat of colonel S.A. Cruze. By representations dated 3rd February, 2007 and 7th February, 2007, the petitioner invoked the provisions of Right to Information Act and requested the authorities to furnish the relevant documents. On 30th October, 2007, the authorities directed holding of trial against the petitioner by Court Martial even in absence of any prima facie material. The action taken report published by the administration on the reassembled Court of Inquiry did not transpire any complicity of the petitioner. Rule 180 of the Army Rule was not complied with as reflected from the report published on 14th October, 2006.
The present application was filed with the prayer for directing the authority concerned to rescind, revoke and withdraw the order No. 309/11/A3 dated 30.10.2007, being Annexure-'P-7' to the writ application as well as for issuance of a writ in the nature of prohibition thereby restraining the respondent authorities from proceeding further on the basis of the said order dated 30th October, 2007 or from taking any further action on the basis of the same.
The respondent authorities contested the case by filing Affidavit-in-Opposition wherein all the material allegations had been denied.
It had been stated that the writ petitioner filed an application under Article 226 of the Constitution earlier, being W.P. (S) 5509/2005 before the Hon'ble Jharkhand High Court at Ranchi praying for quashing the successive Court of Inquiries and restraining the respondents from reconvening the Third Court of Inquiry and also for recalling of all orders leading to initiation of fresh Court of Inquiry. With similar grievance, the petitioner filed another writ application being W.P. No. 20978 (W) of 2006 with the prayer for an order restraining the respondents from initiating any disciplinary proceeding against him. Though no interim order was passed in the said writ petition which is pending for final hearing, the petitioner filed the instant application before the Vacation Bench.
It was claimed that Rule 180 of the Army Rules has been adhered to in its letter and spirit in the instant case and in order to extend all possible opportunities to the writ petitioner to effectively defend himself. The petitioner having not suffered any prejudice whatsoever since no penalty has yet been imposed and the disciplinary proceeding initiated being still pending, the instant writ application was filed only to stall the anticipated convening of General Court Martial against him. It was claimed that the writ petitioner was given full opportunity to defend himself at pretrial stage i.e. Court of Inquiry, Hearing of Charge under Army Rule 22 and Summary of Evidence. The petitioner participated in the process. At the time of trial by Court Martial, he would be further afforded opportunity to defend himself and would also be at liberty to raise all the issues raised in the writ application before the Court Martial under Army Rules 49, 51 and 53. Without availing and exhausting the statutory/alternative remedy available under the Army Act and the Army Rules, the writ petitioner invoked writ jurisdiction of this Court in order to stall the disciplinary proceeding lawfully initiated on charges of grave misconduct. It was further claimed that disputed questions of facts having been raised, the writ Court may not deal with the same in exercise of its writ jurisdiction.
It had been stated that the order dated 24th September, 2004 approving the premature retirement of the petitioner was passed by the Office of Director General of medical Services as there was no pending disciplinary/vigilance case against him at that point of time. It was indicated that the petitioner be relieved from his duties as early as possible but not later than 19th December, 2004. Such order of retirement was kept in abeyance on 27th October, 2005 by the said Director General of Medical Services after being intimated that a Court of Inquiry had been ordered against the petitioner for his alleged involvement in private practice at Military Hospital, Panagarh. The said issue is pending before the Hon'ble High Court at Jharkhand.
On receipt of a complaint dated 16th August, 2004 made by Colonel S.A. Cruz, V.S.M. the then Commanding Officer of Military Hospital, Panagarh alleging private practice being carried by the writ petitioner at the Military Hospital, a Court of Inquiry was ordered on 15th October, 2004 in order to investigate the same. The Court of Inquiry being a fact finding body enquired into the matter within the terms of reference of the convening order. The petitioner cross-examined the witnesses extensively in the said Court of Inquiry and there could be no basis for alleging that he was denied the reasonable opportunity to defend himself. It was not just and proper, nor permissible, on the part of the petitioner to make allegations against the Colonel S.A. Cruz without impleading him as a party. It had been further claimed that there was only one Court of Inquiry ordered on 14th December, 2004, which was reconvened and not the third Court of Inquiry as contended by the petitioner. It was wrongfully claimed on behalf of the petitioner that a Court of Inquiry ends with an administrative action. The Court of Inquiry being a fact finding body, on the basis of the facts so found, a Court of Inquiry may decide to initiate administrative action or disciplinary action depending upon the nature, gravity, severity of the offence. In the present case, initially there was a direction for termination of the service of the petitioner administratively as per Section 19 of the Army Act and Rule 14 of the relevant rules, but thereafter by an order dated 3rd August, 2006, direction was given for initiating disciplinary action. The Court of Inquiry was finalized with such order dated 3rd August, 2006. The respondent authority, in such Affidavit-in-Opposition, denied all the material allegations made by the writ petitioner and sought for dismissal of the writ application.
For better appreciation of the controversy raised in the present application, it is, perhaps, necessary to refer to the following facts :-
The hearing of the charge was carried out by the Commanding Officer of the petitioner on 14th October, 2006. Such authority heard the prosecution witness, Brig. S.A. Cruz and the petitioner cross-examined him. The petitioner declined to make any statement in his defence or to call any witness in his favour. The Commanding Officer being satisfied that a prima facie case exists against the petitioner, proceeded to order for recording of Summary of Evidence. The entire Summary of Evidence was then recorded by the Officer as per Army Rule 23. Apart from cross-examining the prosecution witness, the petitioner called seven witnesses in his defence.
Respondent authority, thus, prayed for dismissal of the writ application. In the writ application being W.P. No. 20978(W) of 2006, the petitioner sought for issuance of a writ of mandamus commanding the respondent authority to withdraw the Memo No. C/06280/EC/324/AG/DV-2 dated 29th August, 2006. By that order the present petitioner was directed to be attached to the Vehicle Depot, Panagarh under the provisions of Army Instruction 30/86 with immediate effect till finalization of disciplinary case. It was further directed that 'the officer be moved on attachment forthwith'. It was alleged in the Affidavit-in-Reply filed by the writ petitioner that the Court reassembled with the purpose to fulfil the ulterior motive and not to give the writ petitioner an opportunity to call witness in his defence. It was alleged that by letter dated 27th January, 2005, he requested for attachment of the complainant to a different unit so as to keep the witnesses free from any command influence. Request was also made for production of five witnesses in his defence, but none of the request was fulfilled.
In the Affidavit-in-Opposition filed on behalf of the respondent Nos. 1 to 6, it had been claimed that on 16th August, 2004 Colonel S.A. Cruz, VSM, the then Commanding Officer of Military Hospital, Panagarh made a complaint alleging private practice being carried out by the writ petitioner at the Military Hospital, Panagarh. On 15th October, 2004, the Headquarter Bengal Area ordered a Court of Inquiry to investigate into the matter. On completion of the proceedings, the Court of Inquiry arrived at the finding that the writ petitioner carried out 171 operations at the Military Hospital, Panagarh during the period from January, 2001 to May, 2003 without obtaining any permission/sanction. He also carried out sterilization operations at the Family Welfare Centre under the Planned Parenthood Programme. He carried out certain major assorted surgeries as well as abdominal tubectomies along with other major abdominal surgeries. He did not maintain the records of the sterilization operation carried out by him. He also did not endorse these additional surgical docs in the discharge slip of the patient, thereby suppressing the fact that additional surgical procedure had been carried out on these patients. He also performed major abdominal surgeries like cholecystectomy on civilian non-entitled patient and forged the documents by changing the case sheets to show 'PPN Abdominal Tubectomy Done'. He performed as many as 57 other surgeries on civilian non-entitled personnel in the Military Hospital during January, 2001 to May, 2003.
The Presiding Officer after arriving at the aforesaid findings forwarded the Court of Inquiry proceeding to Headquarters Bengal Area on 13th December, 2004. On scrutiny it was found that the petitioner alleged non-compliance of Army Rule 180. The COI was returned to the Presiding Officer on 4.1.2005 for rectification of observations. The COI then reassembled and after giving opportunity to the writ petitioner to cross-examine the witnesses whom he wished to cross-examine and call witnesses in his defence, there was still some rectification required for compliance for Army Rule 180. The COI proceeding was resubmitted to Headquarters Eastern Command (DV) on 22.06.2005 along with the directions of the officiating General Officer, Commanding Headquarters Bengal Area dated 21.06.2005 thereby directing to initiate action for termination of the service of the Lieutenant Colonel, S.N. Bhattacharya in terms of Section 19 of the Army Act.
Accordingly, on 31st August, 2005, the Headquarters Bengal Area ordered to assemble the COI and it was reassembled on 24th September, 2005. Further statements of the witnesses were handed over to the petitioner who after going through the same refused to cross- examine and also declined to sign the certificate of compliance of Army Rule 180. The COI was received and was finalized by fresh directions from the General Officer, Commanding Headquarters Bengal Area on 7.12.2005 and it was forwarded to the competent military authorities for further necessary action. The GOC-in-C Eastern Command passed an order dated 3rd August, 2006 directing initiation of disciplinary action against the petitioner. Pursuant to the said order the petitioner was attached to Vehicle Depot, Panagarh by order dated 10th August, 2006. After the said attachment, hearing of charge under Army Rule 22 was made. CO ordered recording of Summary Evidence in terms of Army Rule 23. It was, thus, recorded and in terms of Defence Service Regulations Para 419 documents were forwarded to Headquarters Eastern Command for pre-trial advice. Thus, there had been no infirmity in the entire process and there could be no question of denial of an opportunity to cross-examine the prosecution witnesses.
The grievances ventilated on behalf of the petitioner were further resisted and it was claimed that this is a ploy to protract the proceedings and thereby frustrate the process of law. Since no penalty had yet been imposed upon the writ petitioner, he cannot be said to have suffered any prejudice whatsoever. It had been categorically stated that the petitioner is not justified in stating that COI ends with an administrative action. It being a fact finding body, the complainant authorities on the facts found in a COI may decide to initiate administrative or disciplinary action depending on the nature, gravity, severity of the offence. The COI in the instant case was finalized with direction upon the GOC, Headquarters Bengal Area on 7th December, 2005. Initially there was a direction for termination of the service administratively as per Section 19 of the Army Act and Rule 14 of the relevant Rules but thereafter by an order dated 30th August, 2006, the authority concerned directed initiation of disciplinary action. The Court of Inquiry was finalized with the said order dated 30th August, 2006. The respondent authority, thus, claimed that there was no 2nd Court of Inquiry and after denying all the materials allegations made by the writ petitioner, sought for dismissal of the writ application.
In other application being W.P. No. 23868 (W) of 2005, the writ petitioner, Lt. Col. Kamala Kanta Das, approached this Court under Article 226 of the Constitution praying for issuance of writ of mandamus commanding the respondent to rescind, revoke and/or cancel the proceeding of the Court of Inquiry conducted by Col. Vishu Sikka and the subsequent proceeding of the reconvened Court of Inquiry.
The grievances as ventilated in the said application are largely similar to those as made out on behalf of the writ petitioner, Lt. Col. Somnath Bhattacharya, as referred to earlier.
The respondent authority contested the case by filing Affidavit-in-Opposition. The allegation that the petitioner was not given reasonable opportunity to defend himself had been categorically denied. It was categorically claimed that steps had been taken to ensure just and proper inquiry in accordance with the Rules.
Dismissal of the said application was accordingly prayed for.
It was submitted by learned Counsel for the parties that all the three writ applications, as referred to earlier, are indistinguishably linked up and appreciation of the grievances would demand consideration of identical points of law. As such, in response to the submission made by learned Counsel for the parties and in the best interest of justice, all the said three applications were heard at a time.
What emerges from the materials available on record is that the entire controversy cropped up on the basis of the complaint dated 16.8.2004 made by Col. S.A. Cruz. This gave rise to convening order since private practice by a military doctor in Military Hospital, Namkum, is not permissible and is against Government order of Family Planning Operation. The written complaint as annexed to the writ application, W.P. No. 25294 (W) of 2007, being Annexure-'P-1' at page 49, essentially refers to private practice by Special Officers of MH, Panagarh. There is reference of anonymous letters against CO MH Panagarh and the investigation carried out by Deputy GOC on 22nd April, 2004. There is further reference of a subsequent anonymous complaint and reflects concern on the part of the complainant. There is further reflection of his anxiety for taking stringent measures to prevent private practice by Anses Lt. Col. K.K. Das and the Gynae Lt. Col. S.N. Bhattacharya. In it, the complainant informed that a case occurred wherein wife of Nayak Driver Chakraborty was referred for treatment to Dr. Goswamy Nursing Home, Panagarh. The anaesthesia for the surgery was given by Lt. Col. K. K. Das.
Attention of the Court was invited to the impugned order at page 45, being Annexure-'P-7'. Mr. Banerjee, appearing as learned Counsel for the writ petitioner, submitted that there had been consistent denial of opportunity of hearing. Referring to the order allowing premature retirement being Annexure-'P-2' at page 34, it was submitted that the decision on the part of the concerned authority to initiate inquiry and to proceed with the same was in utter defiance of the principles of natural justice and consciously ignoring the relevant provisions of the Army Act and Army Rule.
Referring to Section 122 of the Army Act, 1950, it was submitted by Mr. Banerjee that the initiation of proceeding did not take into consideration the period of limitation. Section 122(1) clearly lays down that except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence.
Sub-section (2) of Section 122 relates to the offence of desertion or fraudulent enrolment or for any of the offences mentioned in Section 37. Section 37 relates to mutiny.
Attention of the Court was then invited to the Army Rule, 177 and Army Rule 180. By convening order, being Annexure-'P-3', the authority concerned held that Court of Inquiry would assemble at a date, time and place to be fixed by the Presiding Officer to investigate the allegations. The allegations as contained therein are as follows:-
"The Court will examine and record the statement of all the relevant witnesses and bring out the facts of omission/commissions on part of the persons involved in the case and pin point culpability on the following allegations:-
(a) Private practice being carried out by Lt. Col. S.N. Bhattacharya, Gyne, of MH Panagarh presently posted to MH Namkur and Lt. Col. K.K. Das, Anses, MH Panagarh.
(b) Admission of non-entitled civ cases for PPH (Planned Parenthood) in MH Panagarh with connivance with other staff members.
(c) Lt. Col. K.K. Das, Anses of MH Panagarh while on lve, had given Anesthesia to the wife of No. 13975029A Nk/Dvr M.D. Chakraborty of MH Panagarh who was operated at private nursing home.
(d) Detailed analysis of admission and operations carried out in MH Panagarh in the year of 2001 to 2003.
(e) Any other related matters on the subject."
In such order, it was directed that the provisions of Army Rule, 180 would be strictly complied with whenever necessary. This takes one to Army Rule, 180 which deals with the procedure when character of a person subject to the Act is involved.
Referring to Army Rule, 22, it was submitted by Mr. Banerjee that where is the evidence to justify proceeding further. Rule 22 relates to hearing of charge and how the matter is required to be proceeded with. The manner in which the inquiry was initiated and subsequently conducted was, thus, under severe attack on the ground of alleged non- compliance of procedural formalities.
It was submitted that the charges are far too vague and the writ petitioner was not effectively informed about the same. On behalf of the petitioner, it was time and again submitted that there had been family welfare programmes and various projects in which civilians were beneficiaries. Thus, the disciplinary procedure as well as attachment order were seriously challenged by the writ petitioner in the two applications, as referred to earlier.
Mr. Banerjee submitted that so far allegation of Lieutenant Colonel, K.K. Das performing as an Anaestheologist in a private nursing home, is concerned, the same does not have anything to do with the petitioner Lt. Col. S. Bhattacharya. It was submitted that the evidence of Lt. Col. M. K. Dasgupta did not lend any support to the allegation that his wife attended many calls seeking permission for appointment with the writ petitioner. His wife was not cited as a witness either. Admittedly, the authority by order dated 24.9.2004 approved the prayer for allowing the writ petitioner, Lt. Col. S. Bhattacharya to have premature retirement but it was directed to take effect from December, 2004.
Mr. Banerjee contended that an order for premature retirement as made by the higher authority could not be annulled by an authority lower in rank. It was submitted that the petitioner was called upon to be present during the examination of only a few witnesses and out of a total number of 95 exhibits attached to the copies of the Court of Inquiry, he was only shown seven exhibits and this was in violation of Army Rule, 180. It was further submitted that the petitioner was handed over a tentative charge containing six charges. By letter dated 14th October, 2006, hearing of the charge was initiated and was completed without producing the witnesses and the documents as per charges. The complainant S.A. Cruze was only examined whereas nine other witnesses were not produced. On behalf of the petitioner, grievance was ventilated that the petitioner was denied proper and effective opportunity to examine the documents. It was further submitted that even the civilians are entitled to undergo family planning operation under DGAFMS memorandum. Mr. Banerjee sought to extensively analyze the evidence on record in support of the contention that there could be no material so as to justify bringing of charges against the writ petitioner. It was submitted that the petitioner was never given opportunity to cross- examine the witnesses during the hearing of charges in respect of nine witnesses. The Commanding Officer did not ask the petitioner to produce witness. Question of petitioners declining to cross-examine thus could never arise. It was further contended that hearing under Army Rule 22 was done in a perfunctory manner. In absence of any prima facie material, the Commanding Officer ought to have dismissed the charge under Army Rule 22(2). It was further submitted that significantly enough, some of the witnesses like P.W. 4, P.W. 6 stated that they deposed under duress and threats.
On behalf of the writ petitioner it was then submitted that under Army Rule 24 the Presiding Officer has three options i.e. to remand the accused for trial by a court martial, refer the case to the proper superior military authority or if he thinks it desirable, rehear the case and either dismiss the charge or dispose it summarily. According to Mr. Banerjee, the authority failed to appreciate that there is a statutory bar under Section 122 of the Army Act that no trial by a court martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years except as provided by sub-section (2).
On behalf of the respondent authority, the summary of evidence in the case of Lt. Col. S.N. Bhattacharya, as recorded by Lt. Col. Kurian Jacob V of Vehicle Depot, Panagarh, was produced. It contains the statements made by the prosecution witness Nos. 1 to 10, that of the charged officer as well as the statements made by defence witness Nos. 1 to 7. It seems to be the categorical stand of the respondent authority that the charged officer was cautioned under Army Rule 23(3) in English. He voluntarily made additional statement, which was recorded. It was read over and explained to him in presence of independent witness and he signed the same. Such summary of evidence was recorded by Lt. Col. Kurian Jacob V at Panagarh and the same commenced on 14th October, 2006. He certified that the summary of evidence consisting of 59 pages in original and five copies was taken down by him from 14th October, 2006 at Vehicle Depot, Panagarh. He further certified that the accused was afforded all guidance regarding rules, regulations and procedures as far as it relates to the summary of evidence.
Referring to the decision of the Apex Court in the case of Nand Kishore Prasad Vs. The State of Bihar & Ors., as reported in AIR 1978 SC 1277, Mr. Banerjee submitted that disciplinary proceedings before domestic tribunal are of a quasi-judicial character, therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries.
Mr. Banerjeee submitted that even the service regulations or rules are required to be tested by the touchstone of Article 14 of the Constitution and the procedure to be prescribed by rules or regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. The Apex Court while dealing with the Regulation 9(b) of Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations held that 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule. This was in the context of the case between Delhi Transport Corporation Vs D.T.C. Mazdoor Congress & Ors., as reported in 1991 Supp (1) SCC 600. No doubt, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally.
Mr. Banerjee, deriving inspiration from the decision in the case of Dr. Rash Lal Yadav Vs. State of Bihar & Ors., as reported in (1994) 5 SCC 267, submitted that the concept of natural justice is not a static one but is an ever expanding concept. It started with two elements, i.e. (i) no one shall be a judge in his own cause and (ii) no one shall be condemned unheard. To promote justice and prevent its miscarriage, a third element was introduced, namely, of procedural reasonableness. The Apex Court in the case held that if the statute confers drastic powers it goes without saying that powers must be exercised in a proper and fair manner. Where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair.
There is no dispute that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. In the case of Union of India Vs. B.C. Chaturvedi, as reported in (1995) 6 SCC 750, the Apex Court observed that power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. It was observed that the Court in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court may, however, interfere where the authority holds the proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence.
Attention of the Court was invited to the decision in the case of Major Radha Krishan Vs. Union of India & Ors., as reported in AIR 1996 SC 3091, in support of the contention that where trial by court martial is barred by limitation under Section 122 of the Army Act, the summary procedure cannot be followed.
It cannot be disputed that a fair trial mandatorily demands proper and effective compliance with the principles of natural justice. It is needless to add that a charged officer has a right to be present throughout an inquiry, i.e. evidence should be recorded in his presence unless he chooses to act otherwise. He has a right to make statement in defence and to cross-examine the witnesses. He also must have a right to produce evidence in support of his own case. In this context, reference was made to an unreported decision of the Division Bench of the Delhi Court in Civil Writ Petition No. 1990 of 1988.
In case No. W.P. 23868(W) of 2005 it was contended on behalf of the writ petitioner, Lt. Col. Kamala Kanta Das that the very Constitution of the Court of Inquiry was illegal as those were part of the same Court of Inquiry where all the illegalities were deliberately carried out. It was alleged that the Presiding Officer did not make any effort to explain the rights of the charged officer and placed a few uncertified and unsigned documents purportedly statements of the witnesses of the previous Court of Inquiry though no such witness was produced for examination or cross-examination. Since the earlier proceeding was rejected, it was wrong on the part of the authority to rely on the same. It was then submitted that no fresh witness was produced and though sought for, the witnesses were not reexamined except one produced in defence of Lt. Col. S.N. Bhattacharya. It was also submitted that there was nothing in the inquiry report against such petitioner, K.K. Das. The proceeding was sought to be assailed on the ground that it was vitiated with bias. It was submitted that the Court did not carry out detailed analysis of the admission and operation carried out in Military Hospital, Panagarh during 2001 to 2003.
Mr. Banerjee referred to many inherent infirmities in the statements made by the witnesses as well as in the findings of the Court of Inquiry. Allegations were also made that the entire thing was done in an irregular and improper manner at the instance of Lt. Col. S.A. Cruze who had personal score to settle.
On the other hand, Mr. Roy Chowdhury, as learned Senior Counsel for the respondent authority, submitted that this Court cannot be an investigating court as sought for by the petitioner. Referring to Section 122(1)(b) and (c), it was submitted by Mr. Roy Chowdhury that there could be no basis for raising the plea that the proceeding initiated is barred by limitation. Rule 53 was further referred to wherein it is laid down that the accused, at the time of his general plea of "Guilty" or "Not Guilty" to a charge for an offence, may offer a plea in bar of trial on the ground that the period of limitation for trial as laid down in Section 122 has expired. Such a plea if raised at all, it is for the Court to act in terms of Army Rule 53.
Mr. Roy Chowdhury emphatically submitted that the Army Act 1950 and the Rules thereto being exhaustive all legal principles had been duly accommodated. It was then contended that the petitioners were given ample opportunity at every stage and it was wrong to submit that opportunity for cross-examination was denied.
Mr. Saptangshu Basu, as learned Counsel for the respondent authority in W.P. No. 23868(W) of 2005, submitted that the anxiety and apprehension of the writ petitioner are rather premature. In response to the allegations that there had been violations of the principles of natural justice by the Court of Inquiry, it was submitted that such Court of Inquiry is rather a fact finding authority. It was then submitted that the petitioner could have had little justification in knocking the doors of the writ Court even at this pretrial stage.
In response to the stand taken by the writ petitioner, it was submitted on behalf of the respondent authority that question of limitation can hardly be raised in connection with a writ application. It was further submitted that there could be no such material so as to indicate that the initiation of the disciplinary proceeding was in violation of any prescribed period of limitation. Inviting attention of the Court to the decision of the Apex Court in the case of Delhi Special Police Establishment, New Delhi Vs. Lt. Col. S. K. Loraiya, as reported in AIR 1972 SC 2548, it was submitted that the court martial and not the ordinary criminal court has the jurisdiction to decide the issue of limitation. In the said case the Apex Court observed that as the court martial has initial jurisdiction to enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the accused in spite of sub-section (1) of Section 122. The issue of limitation is a part of the trial before it. If the court martial finds that the accused cannot be tried on account of the expiry of three years from the date of the commission of the offence, he cannot go scot free. It would be open to the Central Government to proceed against the accused after the court martial has recorded a finding that it cannot try him on account of the expiry of three years from the date of the commission of the offence.
In fact, on consideration of the grievance raised in the present writ application, I do not find any basis for raising the plea of limitation.
On behalf of the respondent authority it was submitted that the dominant purpose in construing a statute is to ascertain the intention of the legislature. One of the well recognized canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. Deriving inspiration from the decision of the Apex Court in the case of Lt. Col. Prithi Pal Singh Bedi Vs. Union of India & Ors., as reported in AIR 1982 Sc 1413, it was submitted that Rule 180 of the Army Rules 1954 makes it obligatory that whenever a court of inquiry is set up and in the course of inquiry by the court of inquiry character or military reputation of a person is likely to be affected then such a person must be given full opportunity to participate in the proceedings of court of inquiry. It was held that Rule 180 merely makes an enabling provision to ensure such participation. But it cannot be used to say that whenever in any other inquiry or an inquiry before a commanding officer under Rule 22 or a convening officer under Rule 37 of the trial by a court martial, character or military reputation of the officer concerned is likely to be affected a prior inquiry by the court of inquiry is a sine qua non.
Before proceeding further, it is, perhaps, necessary to ascertain what is exactly wrong in the proceedings under challenge, if any at all.
It cannot be said that the allegations against the petitioners in the cases under reference are vague, hollow or wild. At this stage, is it possible to hold that the entire thing was initiated out of enmity or vengeance? Can it be said that the allegations are not worth the paper on which those are written? Can the most disciplined force of the country afford to remain indifferent to the allegations made? Does not the complaint deserve probe?
This Court has no hesitation to hold that the inquiry, as initiated, must be allowed to come to its logical conclusion.
The materials on record clearly reveal that the charged officers had been given reasonable opportunity to defend themselves. They had not been denied opportunity to cross-examine the witnesses. And, till now entire thing is rather at the nascent stage. No doubt, the authority is under legal obligation to act fairly but is it necessary to quote 'chapter and verse' at this stage? Law does not necessarily demand dotting of every 'i' and cutting of every 't'.
To use the words of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation, [1948] 1 KB 223 :
"If the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the Court can interfere. Mere irregularity in form or a technical irregularity - may not justify judicial review - more so, when there is no miscarriage of justice."
Professor Wade stated in his treaties on Administrative Law:-
"The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law."
No doubt, if decisions are not in accordance with the terms of the prayers, those may be attacked in the Court by way of an application for judicial review.
The basic principles guiding a public authority are :-
1) the duty to inquire fairly and impartially, 2) the duty to decide in accordance with the law, 3) the duty to exercise a discretion reasonably, 4) the duty to come to a reasonable decision and 5) the duty to hold the balance fairly.
It is necessary to bear in mind, in the words of Lord Hailsham, that "not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no Court should seek to replace the individual's judgment with his own". (Ref: W (An Infant) [1971] AC 682).
In the words of Professor Wade, "within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ulter vires".
Mr. Roy Chowdhury, as learned Counsel for the respondent authority, in fact, found no basis for the petitioner rushing to this Court at this stage. According to him, the entire anxiety is premature and this Court is not expected to intervene and thereby frustrate the disciplinary proceeding, which has otherwise been initiated strictly in accordance with law. Mr. Saptangshu Basu, as learned Counsel for the respondent, has echoed the submission made by Mr. Roy Chowdhury.
While submitting that this Court is not expected to pre-empt decision of the disciplinary authority on facts, nor it will be justified to stay further proceedings or pass such order interfering in the disciplinary proceeding on a prima facie finding on the subject matter of inquiry when the authority itself is yet to make up its mind, reference was made to the decision in the case of Air India Ltd. Vs. M. Yogeshwar Raj, as reported in (2000) 5 SCC 467.
In the case of Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia & Ors., as reported in (2005) 7 SCC 764, the Apex Court extensively dealt with the principles of natural justice. The relevant observation is reproduced as follows:-
"The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than 'precedential'."
The Apex Court further held that "the maxim audi alteram partem cannot be invoked if import of such maxim would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency so demands. The principles of natural justice have no application when the authority is of the opinion that it would be inexpedient to hold an enquiry ..........."
To quote Justice P.N. Bhagwati :
"The principle of judicial review of administration action were summarized in 1985 by Lord Diplock in Council of Civil Service Vs. Minister of Civil Service ( [1985] AC 347) as illegality, procedural impropriety and irrationality". (Ref: Judicial Reflections of Justice Bhagwati).
Lord Diplock observed :
"Judicial review has, I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and third 'procedural impropriety'. That is not to say further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
In the backdrop of the facts and circumstances of the present case, it is found that so far nothing could be established to the satisfaction of the judicial conscience of the Court so as to hold that the authority concerned has acted with bias or there is absence of fair hearing or that the authority has taken into account irrelevant consideration or there is denial of an opportunity of fair hearing. True, it is prejudice to any man to be denied justice but it would be placing the cart before the horse to say so in connection with the cases under reference.
Accordingly, I find it difficult, if not impossible, to accept the grievances as ventilated in the cases. The present applications being W.P. No. 25294(W) of 2007, W.P. No. 20978 (W) of 2006 and W.P. No. 23868 (W) of 2005 fail and be dismissed.
It may be mentioned that the writ petitioners may very well raise all the points as taken in the three applications under Article 226 of the Constitution at the proper stage and before the appropriate forum.
Consequently, all the pending applications stand disposed.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)