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9. Insofar as the judgment heavily relied upon by Ms. Jyoti Singh in the case of Union of India v. Sanjay Jethi and others (supra) is concerned, in the said case, as is clear from paras 2 and 3 that on August 5, 2009 a complaint was made by one of the officers alleging irregularity in the hiring of Civil Hired Transport, which were used for the purpose of supply of ordinance stores to units spread over the country, including remotest field and high altitude area by the respondent No. 1 therein namely Sanjay Jethi, who held the rank of Colonel in the Army. On the basis of a complaint, the General Officer Commanding-in-Chief, Pune initiated an action against the respondent No. 1 by making his attachment with HQ Sub Area on August 6, 2009 and also convened a Board of Officers on July 21, 2009 for ascertaining the truthfulness of the allegations. On July 22, 2009 the said Board seized the entire record and submitted a report. On the premises of that report, a COI was convened against the respondent No. 1 to investigate into the alleged irregularities. The COI conducted an inquiry and on March 8, 2010 recommended for taking appropriate disciplinary action against the respondent No.1 and some other officers. On the basis of the said recommendation on February 23, 2010 the first Respondent was attached to the Head Quarters, Mumbai Sub Area till the finalization of the disciplinary proceedings. At that juncture, respondent No. 1 filed Original Application No. 283 of 2010 before the Principal Bench of the Tribunal at New Delhi challenging the COI proceedings as stipulated under Rule 180 of the Armed Forces Rules, 1954 (for short "the Rules"); and that there has been non- supply of documents which were annexed after conclusion of the proceedings before the COI. On June 17, 2010 the hearing of charges commenced and the Commanding Officer, Mumbai Sub Area, under Rule 22 directed for recording of Summary of Evidence under Rule 23. The Original Application was disposed of on October 8, 2010. While dealing with the grievance pertaining to violation of Rule 180, especially the deprivation of the right to cross-examine, the tribunal referred to the decision in Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. AIR 1982 SC 1413, and came to hold that as the first respondent had remained present throughout the course of COI and had been given opportunity to cross-examine the witnesses and, therefore, the grievance that he was not afforded full opportunity to cross-examine did not merit consideration. In fact, the Tribunal opined that in-depth cross-examination was allowed to the respondent No. 1 and the Presiding officer asking for written questions to be submitted, could be treated as fair and reasonable exercise of discretion and hence, there was no illegality or irregularity in the conduct of the COI.

10. A contention was raised before the Tribunal that after conclusion of the proceedings by the COI when the report was submitted, certain documents which were not made available to the said respondent were annexed to justify his culpability. The tribunal found force in the said submission and opined that it was the duty of the COI to find out the truth by holding suitable investigation about the documents that were annexed afterwards. This opinion was formed on scrutiny of the language employed in Rule 180 and also by placing reliance on the judgment of the Supreme Court in the case of Uma Nath Pandey and Ors. v. State of U.P. and Anr. AIR 2009 SC 2375. It was held that the enclosing of the documents along with the report by the COI amounted to violation of Rule 180 inasmuch as the said report was treated as the sole basis for initiating the disciplinary proceedings against the respondent No. 1. It was also held that it would be difficult for the authority concerned to proceed for hearing on the point of charge to take into account those documents which were subsequently annexed, and in all fairness, an Additional COI should be convened affording full opportunity to the parties, by examining or cross-examining any of the witnesses pertaining to those annexures. Accordingly, a direction in that regard was given by the Tribunal and an Additional COI reassembled and the respondent No. 1 was shown all the documents and he perused the same, as the proceedings would reveal, availing considerable length of time. At that stage, respondent No.1 made a request for grant of permission to cross-examine the Technical Members but the same was denied on the ground that as per Rule 180 he could only cross-examine the witnesses and not the Members. However, certain other witnesses were examined and cross-examined in the COI and, eventually, a report was sent by the Presiding Officer. Being grieved by the said order the respondent No. 1 preferred a fresh Original Application before the Armed Forces Tribunal. In the fresh proceedings, a plea was raised about holding of the Additional COI by Brig. N.S. Ahmed, who was the earlier Presiding Officer of the COI and continued to be the Presiding Officer of the Additional COI despite objections raised by the respondent No.1. An objection was also raised with regard to officers namely Lt. Col. Sandeep Sinha and Major Sanjeev Narula. The Tribunal relying upon the judgment in the case of Lt. Col. Prithi Pal Singh Bedi (supra), has held that convening the Additional COI with the same Members is contrary to fair play in action. The Tribunal concluded that the decision rendered by Additional COI was in violation of the provisions contained in Rule 180 and accordingly, set aside the same and all consequential actions taken on the basis of the said Additional COI. It granted liberty to the respondents therein to convene a fresh Additional COI with different Presiding Officer and other independent Members.

11. The issue, which arose before the Supreme Court was whether the Tribunal was justified in holding that the constitution of the COI, which consisted of two Technical Members and the Presiding Officer was vitiated as there was a possibility of their having an interest in the proceedings, as a consequence of which being biased or there could be a perception or likelihood of bias in the decision making process which would raise a doubt pertaining to the decision by a prudent or rational person. The question was also whether the Presiding Officer and the Technical Members should have been made available for cross-examination in a COI to meet the necessary command of Rule 180 and further regard being had to the earlier order passed in OA No. 283 of 2010; and whether there has been real violation of the principles of natural justice which ultimately vitiates the proceedings of the Additional COI. The Supreme Court referred to the Army Rules including Rule 177, which deals with constitution of the COI and its role, namely, to collect evidence and if so required to report with regard to any matter which may be referred to them. It also referred to Rule 179, which provides the procedure by which COI shall be guided. Then it noted the provisions of Rule 180 and Rule 182. According to the Supreme Court, Rule 182 stipulates that the proceeding of Courts of Inquiry or any confession statement or answer to a question made or given at a COI shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the Court be given against any such person except upon the trial or such person for willfully giving false evidence before that court. The Supreme Court also held that the proviso to the Rule states, nothing in the said Rules shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross- examining any witness. Rule 184 which has been substituted by S.R.O. 44, dated January 24, 1985 deals with right of certain persons to copies of statements and documents. The Supreme Court, thereafter, referred to its judgment in Lt. Col. Prithi Pal Singh Bedi (supra) including the judgment of Union of India and others vs. Manor A. Hussain (supra). The Supreme Court was of the view that the authorities, it referred to, are to the effect that when a COI is set up under Rule 177 and during the course of enquiry character or military reputation of a person is likely to be affected, he should be granted full opportunity to participate in the proceedings; that the COI in its very nature is likely to examine certain issues generally concerning a situation or persons; that his participation could not be avoided on a mercurial plea that no specific enquiry was directed against the person whose character or military reputation is involved; that the concerned person shall be afforded full opportunity so that nothing is done at his back and without opportunity of participation; that it is the command of the said provision to ensure such participation; that it is not a condition precedent to always hold a COI before proceeding in trial by Court martial where character or military reputation of the officer concerned is likely to be affected; that the COI is in the nature of a fact finding enquiry committee; that the participation in a COI is at a stage prior to the trial by Court martial; that the said rule gives adequate protection to the person affected at the stage of COI and there is no provision for supplying the accused with a copy of the report of the COI; and that the proceedings before a COI are not adversarial proceedings. The Supreme Court went on to decide the issue noted above also taking into consideration the fact situation and referring to various judgments. In para 47, it held as under:-

"47. Keeping in view the principles laid down in the aforesaid precedents and how this Court has understood and dealt with the plea of bias, the case at hand is to be appreciated in its factual backdrop whether there has been "really likelihood of bias". 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 the 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 the 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 the COI may not always be essential or sine qua non for initiation of a Court martial but the another spectrum is once the authority has exercised the power to hold such an inquiry and the COI has recommended for disciplinary action, then the recommendation of the COI is subject to judicial review. While exercising the power of judicial review it 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 factual matrix of each case."