1. The petitioner, who is a Major in the Army, was dismissed for service on 14-1-1975 and was struck off the strength of army on 18th January, 1975. In this writ petition he has challenged the validity of the said dismissal order.
2. Between November, 1968 and November, 1969 the petitioner was commanding 311. Mountain Brigade. A Court of Inquiry was ordered to investigate the allegation of the misuse of the official position by the petitioner. Relying on the report of the Court of Inquiry a show-cause notice was served on the petitioner on 2-1-1974 on the alleged misconduct and the satisfaction of the Chief of Army Staff that court martial was impractical but that his further retention is service was undesirable. The relevant portion of the show-cause notice reads as follows :
From the proceedings of the Court of Inquiry convened under the orders of Commander 311 Mountain Brigade, held on 15th May, 73 and subsequent days to inquire into certain allegation against you regarding the purchase of Rum direct from the manufacturers and illegal disposal of some bottles of rum, it has come to light that .... After considering the reports against you of these facts the Chief of the Army Staff is satisfied that your trial by Court martial is impractical but is of the opinion that your further retention is service is undesirable. He has directed that you shall be so informed that be called upon to submit in writing, your Explanationn and defense ..... A copy of the Court of Inquiry proceedings, referred to in para 1 above, is enclosed to enable you to prepare your defense.'
3. The petitioner submitted his reply to the show-cause notice. He denied the charge made in the show-cause notice. He submitted that the Court of Inquiry proceedings were held in violation of Rs. 179 and 180 inasmuch as he was not allowed to produce the defense witnesses, that the real witnesses in regard to the alleged transaction were not examined and no effort was made by the department to find the true nature of the transaction. He further submitted that the Court of Inquiry report cannot be relied upon and the prima facie finding of the said Court of Inquiry was vitiated. He also submitted that he should be tried by Court martial and that the authorities should not dispense with the holding of the Court martial. On merits he submitted that there was a well established unwritten practice in army to store and sell what is called non-CSD Rum. There is a further practice of direct purchase from the manufacturers of the non-CSD Rum. The profit earned from the sale of the non-CSD Rum to unit personnel goes into what is called O. C's Fund and separate books of accounts are maintained for this private fund. The purchase and sale of the non-CSD Rum, as alleged in the show-cause notice, made by him were duly reflected in the separate books of accounts and the O.C.'s Fund. By common practice the details of such sale and purchase were not reflected in the Regimental Fund Account of the company. He also submitted that when he went on leave the O.C.'s Fund and cash in hand as well as the ledgers were handed over to Capt. Kurup in presence of Amarijit Singh and Havaldar Syed Ubed Ali. He also stated that the documents relating to the O.C.'s private fund were seen and checked during annual administrative and technical inspections of the Union by the Brige. Commander and Dy. Chief Signal Officer. They were duly audited by the Board of Officers consisting of J.C.Os. and Sr. N.C.Os. of the company in addition to the officer who acted as the presiding officer. The defense witnesses were necessary to prove these facts because the prosecution had failed to summon the proper witnesses. He has further pointed out the discrepencies in the evidence of Capt. Kurup, who was also blamed by the Court of Inquiry for not maintaining proper records and accounts. It was then submitted that the Court of Inquiry overlooked the admissions of Capt. Kurup regarding the existence of private O.C. Fund and payments made in it and out of it. The representation to the show-cause notice was rejected and the petitioner was dismissed from service.
4. Several technical pleas and pleas on merits made in the said representation are repeated in the writ petition and advanced in the form of arguments by the counsel for the petitioner in this Court. An express plea has been raised in the present petition that the decision of the Chief of Army Staff to dispense with Court material under Rule 14 was without any material and was illegal. It was also reiterated that the petitioner was ready to stand trial before Court martial. It was also submitted that the procedure laid down in the Rules of Court of Inquiry was not followed and its report was vitiated. Since the show cause notice is founded on the report of the Court of Inquiry, the same was also vitiated. It is then complained that the petitioner was denied the opportunity of being heard before the Court of Inquiry and by rejecting his pleas for holding a court martial against him. The counsel further submitted that the findings of the Court of Inquiry were perverse. I do not propose to go other submissions of the petitioner in view of the fact that I conclude that the petition should succeed on the question of the breach of Rules 14, 179 and 180.
5. Rules 14, 177, 179 and 180 read as follows :
'14. Termination of service by the Central Government on grounds of misconduct. (1) When after considering the reports on an officer's misconduct, the Central Government is satisfied or the (Chief of the Army Staff) is of the opinion. That the trial of the officer by a Court martial is inexpedient or impracticable, but considers the further retention of the said officer in the service as undesirable, the (Chief of the Army Staff) shall communicate the views of the Central Government or his views, as the case may be, to the officer together with all reports adverse to him and he shall be called upon to submit his Explanationn and defense.
(2) In the event of Explanationn of the officer being considered unsatisfactory by the (Chief of the Army Staff), or when so directed by the Central Government, the case shall be submitted to the Central Government with the officer's defense and the recommendation of the (Chief of the Army Staff) as to whether the officer should be - (a) dismissed from the service; or (b) removed from the service; or (c) called upon to retire; or (d) called upon to resign.
(3) The Central Government, after due consideration of the reports, the officers defense if any, and the recommendation of the (Chief of the Army Staff) may dismiss or remove the Officer with or without pension or call upon his to retire or resign, and on his refusing to do so, the officer may be retired from or gazetted out of the service on pension or gratuity, if any, admissible to him.'
'177. Courts of Inquiry. - (1) A court of inquiry is an assembly of officers or of officers and junior commissioned officers or warrant officers or non-commissioned officers directed to collect evidence, and, if so required, to report with regard to any matter which may be referred to them.
(2) The court may consist of any number of officers of any rank, or of one or more officers together with one or more junior commissioned officers or warrant officers or non-commissioned officers. The members of the court may belong to any branch or department of the service, according to the nature of the investigation.
(3) A court of inquiry may be assembled by the officer in command of any body of troops, whether belonging to one or more corps.'
'179. Procedure. - (1) The court shall be guided by the written instructions of the authority who assembled the Court. The instructions shall be full and specific, and shall state the general character of the information required. They shall also state whether a report is required or not.
(2) The officer who assembled the court shall, when the court is held on a returned prisoner or war or on a prisoner of war who is still absent, direct the court to record its opinion whether the person concerned was taken prisoner through his own willful neglect of duty, or whether he served with or under, or aided the enemy; he shall also direct the Court to record its opinion in the case of a returned prisoner of war, whether he returned as soon as possible to the service, and in the case of a prisoner of war still absent whether he failed to return to the service when it was possible for him to do so. The officer who assembled the court shall also record his own opinion on these points.
(3) Previous notice should be given of the time and place of the meeting of a Court of inquiry, and of all adjournments of the court, to all persons concerned in the inquiry except a prisoner of war who is still absent.
(4) The court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth.
(5) The court may be re-assembled as often as the officer who assembled the Court may direct, for the purpose of examining additional witnesses, or further examining any witness, or recording further information.
(6) The whole of the proceedings of a court of inquiry shall be forwarded by the presiding officer to the officer who assembled the court.
'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 witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defense 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.'
6. There is no doubt that the discretion to dispense with holding of court martial under R.14 is justiciable. The existence of objective facts showing holding of Court material 'as inexpedient' or 'impracticable' is a condition precedent for the exercise of the said discretion. In Civil Writ Petition No. 553 of 1974 Kashmir Singh Shergill v. Union of India, pronounced on 6-11-1974, it was held by Prakash Narain, J, (as he then was) that the discretion under R.14 is justiciable. I am in respectful agreement with the learned Judge. In similar rules under different statutory Rules the Division Benches of four High Courts have held that the said power is justiciable. These judgments are : State of Orissa v. Krishnaswami Murty, : AIR1964Ori29 , Karam Singh v. Transport Commr., AIR 1965 J & K 53, and Madhusudan Pathak v. Security Officer, (1981) 2 Serv LR 451 : (1981) Lab IC 881 and Mohd. Tayum v. U.O.I. 1977 Lab IC 1590. In the last but one mentioned case the Full Bench of Allahabad High Court has relied upon the judgments of the Supreme Court in Barium Chemical Ltd v. Company Law Board, : 1SCR898 and Rohtas Industries Ltd. v. S. D. Agarwal, : 3SCR108 . The judgment has also referred to the Orissa and Jammu and Kashmir judgments referred to above and approved them. In the present case the show cause notice stated that it was 'impracticable' to hold court martial against the petitioner, No reasons were stated in the show cause notice as to why it was impracticable to do so, particularly when the petitioner had submitted that he should be tried by the court martial. The admitting bench called the original record of the Court of Inquiry but they were not produced. Thereafter the petition was admitted on 26-3-1976. At the time of the hearing, I directed the respondents to produce the original files relating to Court of inquiry and also the file showing the decision under R.14 to dispense with the court martial. All the files were accordingly produced before me including the file on which the defense Minister had taken the decision on behalf of the Government of India. I have seen the said files and the only reason that is stated on the files is that the Court martial had become barred by limitation under S. 122 of the Act. The said section provides that no trial by court martial of any person subject to the Army Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence. Admittedly, three years period had already expired. But the respondents could not show me any nothing on the files explaining the reasons and circumstances as to why no steps were taken to commence court martial proceedings within a period of three years. It is further disclosed on the files that the G.O.C.-in-C., Eastern Command, recommended that the court martial should be dispensed with. The same was accepted by N. S. Nair, Lt. General. In his note he has stated 'I have examined the case in consultation with the J.A.G. (Judge Advocate General). The course of action recommended by G.O.C.-in-C., Eastern Command will be legally in order. The Chief of Army Staff recommended dismissal of the petitioner. In the note prepared for the approval of the Minister it was stated that the Court of Inquiry came to conclusion that prima facie case was established against the petitioner and that the Chief of Army Staff had recommended dismissal. On 4-11-1974 the defense Minister made the following order :
'It is a clear case. It is unfortunate that Court martial being time barred, could not take place Dismissal approved'.
7. Rule 14 speaks of two conditions to be fulfillled before the court martial is dispensed with : (1) that it should be inexpedient or impracticable to hold the court martial & (2) decision that further retention of the Officer in the service is undesirable. Unless both the conditions are satisfied Court martial cannot be dispensed with. The second condition relates to the nature of the misbehavior, the gravity of the misbehavior, the effect of misbehavior on other members of the armed forces and general discipline of the army. But the first condition stands on a different footing. We are here concerned with one aspect of the said condition, namely, that it is impracticable to hold the court martial. This is what is stated in the show cause notice. In Madhusudan Pathak v. Security Officer, (1981) 2 SLR 451, the Full Bench of Allahabad High Court on a similar provision in sub-rule (ii) of R.14, Railway Servants (Discipline and Appeal) Rules, 1968, held : 'We have, thereforee, to examine what meaning should be given to the words 'reasonably practicable'. At the outset, it must be noted that here the words 'reasonably practicable' are used with respect to the holding of the enquiry. These words cannot be correlated to the merits of a charge. The authority has to see whether it is reasonably practicable to hold an enquiry.' I am in respectful agreement with the Division Bench of the Allahabad High Court. Whether the misbehavior of the petitioner was grave or what effect it will have on the service are questions which affect the merits. They are not relevant for deciding whether it was impracticable to hold the court martial. The word 'impracticable' connotes the same meaning as '(not ?) reasonably practicable', if not a more stringent requirement in this regard. In Stroud's Judicial Dictionary the words 'reasonably practicable' are explained as under :
'What is 'reasonably practicable depends upon a consideration whether the time, trouble and expense of the precautions which might be taken are disproportionate to the risk involved.'
In Karan Singh's case the Bench of Jammu and Kashmir High Court has held that it must be shown that it was not possible or feasible with due diligence to afford a reasonable opportunity. The Court further observed : 'Impracticability for not giving such an opportunity may arise out of various circumstances. For instance an employee may be at such a place that it would not be reasonably possible to ensure his attendance or such other similar cases. In the instant case, the only reason given by the authority concerned was that the petitioner was found guilty of having stolen defense stores. Such an eventuality, in our opinion, could not have been contemplated by the language used by the aforesaid proviso.' In Madhusudan Pathak's case the Allahabad High Court held : The mere 'inability' or 'inefficiency' of the investigating authority to obtain the evidence to prove the charge cannot be a reason for dispensing with the inquiry. The Allahabad High Court further held that the only ground for dispensing enquiry in that case was the collusion with the local P.P.F. staff. The court held that this circumstance relates to the merit of the charge and not to the practicability of holding an inquiry. The High Court has then given some illustrations or circumstances where it can be inferred that it was not practicable to hold an inquiry. The High Court held : 'There may be a case where the charged person may have absconded, or a case where in spite of the best efforts, the disciplinary authority may not have been able to serve the notice of the enquiry on the person charged or it may be a case where it is not possible for the person against whom the charge had been made to come and join, at the enquiry.'
8. In Mohomed Tayum v. Union of India, a Division Bench of the Bombay High Court was called upon to decide a petition for quashing the order dispensing the enquiry under R. 14(ii), Railway Servants (Disciplinary and Appeal) Rules, 1968. The charge against the petitioner was of accepting bribe, the reasons stated for dispensing with inquiry were that it was not possible to get the bribe giving passenger to give evidence, that no corroborating evidence was available, that insistence on corroboration would result in corrupt employee going free, that by examining Vigilance Inspector as a witness his effectiveness would be affected and modus operandi resorted to for arresting corruption would become ineffective. The Division Bench after holding that the discretion under R. 14(ii) was justiciable found that all the said grounds were misconceived and irrelevant. The Court observed : 'The modus operandi adopted thus is erosive of the security of the servants as also the rule of law. Rather than eradicate corruption, it may encourage it, and also the whispering campaign and then resultant sense of insecurity amongst the employees.' 'I respectfully follow the line of reasoning in the said Division Bench decisions of the said High Courts. The reason disclosed on the file, namely, that Court martial had become time barred under S. 122 of the Army Act is an irrelevant consideration for deciding whether it was impracticable to hold an inquiry unless it is shown that the attempt were made in due diligence to institute Court martial proceedings within time. Neither the counter - affidavit nor the relevant files disclose what attempt was made to prosecute the matter in time and whether due diligence and precaution was taken to see that the matter does not get barred by limitation. If the respondents are allowed to avail of said ground for dispensing with Court martial it would be encouraging the administration to violate mandatory statutory requirement of S. 122 of the Act. The word impracticable in R.14 cannot be interpreted so as to destroy the express provision of the principal Act under which the rules are framed. It may be worthwhile to note that the Hon'ble defense Minister had also found that it was unfortunate that the Court martial being time barred could not take place. Perhaps he was satisfied that his administration had not acted with due diligence which was an unfortunate thing. I thereforee, hold that Chief of Army Staff and the Central Government did not exercise discretion properly and legally as it was Based on irrelevant and misconceived grounds. The said decision of the Central Government and the Chief of Army Staff and the show cause notice are, thereforee, set aside.
9. But I would not have been inclined to set aside impugned order if it was satisfied that the petitioner had full opportunity of being heard and that the principles of natural justice are complied with, because under R.14 the petitioner was given an opportunity to give his Explanationn and defense. It may, however, be seen that the opportunity to give an Explanationn or defense under R.14 is merely by a written representation. As against this, court martial is a regular guasi-judicial trial with full right of cross-examination, production of defense witnesses, opportunity of representation through next friend or lawyer, etc. The petitioner had already made a complaint that even before Court of Inquiry he was not allowed to lead his evidence and other procedural requirements of full opportunity of being heard were denied to him. Considering the provisions of R.14 and the provisions of the rules laying down the procedure for Court martial I am convinced that the petitioner was not given full opportunity to prove his innocence.
10. This takes us to the second contention of the petitioner that the Court of Inquiry findings were vitiated as the procedure laid down in R.180 was not followed. The finding of the Court of enquiry is the only basis for the show-cause notice. It is so stated in the show-cause notice and the concerned files. A copy of the report of the Court of Inquiry was also supplied to the petitioner for filing his reply in defense to the show-cause notice.
11. Rules 177 to 184 of the Army Rules provide for Court of Inquiry. The procedure is laid down in Rs. 179 and 180. The object of Court of Inquiry is usually of fact finding. That is why R. 182 lays down that 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 respecting the proceedings of the Court be given against any such person except upon the trial of such person for willfully giving false evidence before that Court. However, a highly commendable provision is made in R.180 to give full opportunity of being heard even in this fact finding proceeding. When a Court of Inquiry affects the character of military reputation of a person he is given full opportunity (i) of being present throughout the inquiry, (ii) making any statement, (iii) giving of any evidence, (iv) cross-examining any witnesses and (v) producing any witnesses in defense of his character or military reputation. The Presiding Officer of the Court is obliged by the said roll to make the delinquent Officer 'fully understand his rights' under this rule. It is an admitted fact that although the petitioner had given list of ten witnesses in his defense, the permission was refused and thereforee, no witnesses could be examined by the petitioner in his defense. The petitioner wanted Brig R. N. Misra and Major C. K. Karumbaya to prove existence of proper accounts relating to the sale of CSD and non-CSD Rum and the Unit and the existence and maintains of proper accounts of the O.C.'s Fund checked during the annual inspection of the unit in 1969. He wanted Brig. K. D. Bhargava to be examined for the checking of the O.C.'s Fund done during the annual technical inspection of the unit in 1969. The evidence of Subedar Jagjit Singh was cited to prove the existence of proper records and documents for proper maintains of accounts of the O.C.'s Fund and for both categories of rum CSD (I) and non-CSD and the existence of two registers, namely, Unit Rum Ledger and the Unit Rum Register for both the categories of Rum. He wanted CHM Amarjit Singh to depose on the question of sale of rum from the disputed consignment to Unit Personnel and return of rum which had been taken from other units on loan. Havildar Harbhajan Singh, Hav. Som Dutt and CQMH. D. N. Singh were cited as witnesses by the petitioner to show that the two categories of rum including the disputed consignment of 350 cases were separately stored in the unit Rum store. Considering the defense of the petitioner the evidence of the said defense witnesses were vital for establishing the true state of affairs and whether any misbehavior was committed by the petitioner. This is particularly so because Capt. Kurup who is star witness against the petitioner had himself admitted in his evidence the payment in and out of the private O.C's Fund created out of the sale of non-CSD Rum. There is an allegation that Capt. Kurup's statement was first recorded on 16th May, 1973. But when it was found that he was involved in the case a separate statement was recorded on 19th May, 1973 wherein he denied his original version. The petitioner submits that this shows the serious impropriety and conclusively proves the bias of the Court of Inquiry. In reply it is stated in the counter-affidavit that Capt. Kurup was called before the Court on 16th May, 1973 and was asked to give his evidence. He denied any knowledge or the details of the demand and disposal of the consignment of Rum in question. Being second in command of the Unit and from the existence of correspondence between him and the petitioner, this appeared improbable to the Court. The Court, thereforee, warned him of the consequences of suppressing evidence and also brought it to the notice of the convening authority of the Court of Inquiry. Capt. Kurup was given time to think over, refresh his memory and give his statement at the nest sitting of the Court. Next day, he reported sick and was placed sick in quarter for two days. Accordingly, he was called on 19th May, 1973 and his statement was recorded in the presence of the petitioner who also cross-examined him. No statement of Capt. Kurup was recorded on 16th May, 1973, hence the question of substituting his statement does not arise. It is evident that Capt. Kurup was an accomplice to certain extent in this case as he failed to report this irregularity to the higher authorities and hence he was also to be blamed for his lapses.
12. It is clear from this statement in the counter affidavit that Capt. Kurup had in fact given evidence on 16th May, 1973. The proper course should have been to continue with his evidence on 16th May, 1973 without any warning of the consequences of the alleged suppression of evidence. He should have been then cross-examined by the authorities on the ground of being turned hostile. There is no doubt that the recording of the two statements of Capt. Kurup has prejudicially affected the petitioner. This is all the more so because Capt. Kurup. was the most crucial witness on behalf of the Department.
13. The next submission of the petitioner is that as a fact finding body the court of inquiry should have collected all the evidence concerning the transaction. Although certain JCOs and NCOs from his Unit were mentioned by him during the Court of Inquiry, such as Sub. Kanth Raj, Senior J.C.O., the Court of Inquiry did not call any witness from the Unit except Capt. Kurup who was treated by the Court of Inquiry as an accomplice. That was reason why he wanted them to cite as defense witnesses.
14. It is necessary to refer to the counter-affidavit of the respondents in this regard. It was stated in the counter-affidavit that during the Court of Inquiry the petitioner did not state of any existence of the O.C's Fund. So also there was nothing on record of show that he had requested for defense witnesses. So far as summoning Kanth Raj is concerned, it was stated that since he was discharged from service, his presence could not be secured and in any case he could not have brought out any facts other than those brought out by Capt. Kurup. These assertions in the counter-affidavit are not borne out by the findings of the Court of Inquiry. According to Capt. Kurup the petitioner had instructed Kanth Raj to hand over 350 cases to HQ State Range Assam Rifles, Silchur. It is not stated that the instructions were given in his presence. Kanth Raj's evidence was, thereforee, very vital to establish the fact. In para 9 and para 14 of the inquiry report it is clearly stated that Rs. 1,000 were paid as freight charges from private fund of the unit. In para 12 it is stated that the petitioner contended that the rum was taken on charge in the rum register. Capt. Kurup denies knowledge of any such register existing in the company. In para 15 of the report it is stated that Capt. Kurup was unable to produce any accounts giving details of the sale of 90-100 cases of Rum. He contends that Subedar Kanth Raj was maintaining some accounts. These statements in the inquiry report would show that the existence of private fund was before the Court of Inquiry and accepted as such. It is also clear that the petitioner had taken the plea of a separate register for the non CSD Rum. In the rejoined affidavit the petitioner has contended that he had sought to examine defense witnesses and the presiding officer of the Court of Inquiry directed him to approach Major D. S. Smaddar, Staff Officer at H.Q. 311, Mountain Brigade. This was done by the petitioner but without any avail. The petitioner had made an application the summoning the defense witnesses to the HQs. 311, Mountain Brigade but this application does not find the place in the records at this stage for reasons best known to army authorities. He further contends that on the one hand the Court failed to call all the concerned officers to find out true state of affairs and on the other hand denied him an opportunity to produce his own witnesses. Considering the various statements in the report of the Court of Inquiry it is difficult to believe the averments in the counter-affidavit.
15. I, thereforee, hold that the findings of guilt against the petitioner recorded by Court of Inquiry are vitiated by the facts that the relevant witnesses were not procured by the Court for ascertaining the existence of relevant facts and by denying the opportunity of citing defense witnesses to the petitioner. The evidence of other witnesses for prosecution was found sufficient by the Court of Inquiry for holding that the prosecution case was proved but the legal infirmity is that the defense evidence was not allowed and assessment was one-sided.
16. Since the findings of the Court of Inquiry are vitiated and since they form the basis of show cause notice, the show cause notice also stands vitiated for this reason.
17. In reply to show Cause notice as well as in the arguments before me the counsel for the petitioner has stated that even now the petitioner was ready to stand a court martial. The counsel for the respondent stated that even if the petitioner is ready to waive the objection of limitation, such course of action would not be permissible under S. 122 of the Act. The object of S. 122 is to ensure that the delinquent officer is not kept in suspense and uncertainty for more than three years. The period of limitation prescribed in the section is for the benefit of the accused. But if the delinquent officer is ready to undergo a trial by Court martial, I do not think that S. 122 will come in way Mandatory character of the Section suggested by use of words 'no trial by Court martial for any offence shall be commenced' is to be understood in the context of prejudice likely to be caused to officer. In other words, the said Section creates a vested right in a delinquent officer. But being only a statutory right the same can be waived by the charged officer. The respondents may, thereforee, proceed against the petitioner by way of regular court martial, if they are so advised.
18. For the reasons stated above, the writ petitioner is allowed with costs. The Rule is made absolute.