IMPORTANT POINT
Although the view taken by the High Court for quashing the court martial proceedings is not correct, yet keeping in view the totality of the circumstances of the case, certain directions are given by the Apex Court to meet the ends of justice to put an end to the chequered controversy between the parties.

Headnote:(i) Army Act, 1950-Section 122-Interpretation of period of 3 years limitation for trial by Court-martial-High Court holding that Court martial of respondent No.1 was barred by time-Time interdicted by High Courts interim order of stay was not excludable-Whether correct? (No)-Appeal against to Supreme Court by Union of India allowed on this aspect.
       Held : The Union of India has come up in appeal by special leave. We have heard the learned counsel for the parties at length. The position of law insofar as the interpretation of Section 122 of the Army Act, 1950 is concerned stands resolved and settled by a three-Judge Bench decision of this Court in Union of India & Ors. v. Harjeet Singh Sandhu - 2001(5) SCC 593 : (2001) 3 Supreme 370 wherein it has been held that the delinquent officer having himself created a situation withholding commencement of trial he would be estopped from pleading the bar of limitation and the trial commenced on vacating of the judicial order of restraint on court martial shall be a valid trial, relying on the principle that no man can take advantage of his own wrong. It has also been held that in spite of court martial proceedings having gone barred by time a disciplinary action based on the same set of facts and the same misconduct which formed subject-matter of charge before the court martial is not excluded. The Division Bench and the learned Single Judge of the High Court were therefore not right in taking the view which they did for the purpose of quashing the court martial proceedings. (Para 8)
       (ii) Army Act, 1950 and Army Rules 1954-Court martial proceedings of respondent 1 by respondent 2-Writ against-Allegations of malafide-Interim orders-Not obeyed-Contempt proceedings-Respondent No.1 finally referring-Proper course in such a case-Indicated-Appeal disposed off with appropriate directions in the interest of justice.
       Held : This case has a chequered history. For the third time this matter has travelled upto this Court. Admittedly, the respondent No. 1 has retired with effect from 31.8.1996. Upto the time when in the year 1989 the respondent No.1 came to be posted in Sri Lanka he had a brilliant service record. We have carefully looked into the allegations levelled against the respondent No.1 forming subject-matter of several Courts of Inquiry proceedings out of which 3 have been held to be invalid while one has been held to be valid. The allegation levelled against the respondent No.1 were not only denied but also defended by alleging malafides on the part of Brigadier Jaspal Singh, who according to respondent No.1 was guilty of financial irregularities himself and was interesting in blocking the respondent No.1, lest the respondent No.1, on being promoted, should initiate proceedings against him. Keeping in view the totality of the circumstances of the case, the nature of allegations and counter-allegations, the chequered history of multiple litigation and the fact that the respondent No. 1 has stood retired from the service we do not deem it proper to revive several legal proceedings pending against each other and in our opinion it will meet the ends of justice if this multi-pronged legal battle and the court proceedings are given a quietus so that the respondent No.1 can also live a peaceful life as a civilian while the appellants may feel happy with their relationship with the respondent No.1 having been severed with effect from 31.8.1996 whatever might have been the appellants earlier view of the respondent s conduct. While hearing the learned counsel for the parties additionally in the light of the law settled by this Court in the case of Harjeet Singh Sandhu (supra) we put across the suggestion to the learned counsel for both the parties and heard them thereon. In our opinion the following directions would, in the facts and circumstances of this case, meet the ends of justice :-
        (1) The general court martial proceedings initiated against the respondent No.1 shall stand dropped at the stage at which they are;
        (2) The respondent No.1 shall be deemed to have retired from the appellant s service with effect from 31.8.1996 in the rank of acting Brigadier. His retiral benefits shall be settled and released, if not already done;
        (3) All other proceedings initiated by the appellants against the respondent No.1 or by the respondent No.1 against the appellants or any of their officers, including the contempt of court proceedings shall also stand terminated at the stage at which they may be.
       The appeals stand disposed of accordingly. No order as to the costs. (Paras 10 & 11)

JUDGMENT

R.C. Lahoti, J.-Leave granted in SLP (C) No.15370/1997.

2. Rajbir Singh Khanna, respondent No.1 was commissioned in the Indian Army on 8.2.1964. In June 1989, when he was holding the rank of Colonel, he was posted as Deputy Commandant of 61 Infantry Brigade deployed in Sri Lanka. At that time Brigade Commander was Brigadier Jaspal Singh, respondent No. 2. On 22.1.1990, 7.2.1990 and 9.2.1990 respectively three Courts of Inquiries were ordered to investigate certain financial irregularities in the sale of VCPs belonging to HQ 61 Infantry Brigade and movement of 5 other ranks of HQ 61 Infantry on temporary duties from operational area to Jammu, the home place of respondent No.1. The irregularities were noticed by Brigadier Jaspal Singh. On 6.2.1990 Brigadier Jaspal Singh also issued warning letter to respondent No.1 putting him on adverse report under paras 80 and 81 of Special Army Order 3/S/89. Though the respondent No.1 replied to the warning letter dated 6.2.1990, Brigadier Jaspal Singh was not convinced and directed staff Court of Inquiry to be held for ascertaining the facts. On 14.3.1990 Brigadier Jaspal Singh endorsed an adverse report on the respondent No. 1 which stated inter alia - "there have been aberrations in his mandatory character qualities of integrity and moral courage which make his utility to the service doubtful. He has been found wanting in discipline towards managing personal finances and was thus embarrassed in this context. I do not recommend this officer for further promotion and would advise upon his change of appointment." The respondent No. 1 was due for promotion as Brigadier but the aforesaid adverse report was construed as drop in his performance and as his promotion was subject to continued satisfactory performance he was not physically promoted to the rank of Brigadier. On 23.2.1990 he was approved for promotion to the acting rank of Brigadier in the General Cadre.

3. A fourth Court of Inquiry was also ordered against the respondent No.1 to investigate into certain allegations, such as, (a) misuse of regimental fund, (b) misuse of regimental money, (c) issuing cheques which bounced, (d) over-drafting of Sri Lankan currency where the respondent No.1 was deployed, (e) sending Jawans on temporary duty to his home station at Jammu, and (f) making false declaration in his record of service. Based on the findings of the fourth Court of Inquiry, on 11.7.1990 disciplinary action was directed to be initiated against respondent No.1 and he was attached with the office of the Chief Engineer, Calcutta Zone so that the disciplinary action could proceed against him as per the rules.

4. Early in 1991 respondent No.1 filed a writ petition in the High Court of Jammu and Kashmir seeking quashing of all proceedings initiated against him as also a direction to the army authorities to promote him to the rank of Brigadier with effect from 23.2.1990, the date on which he was intimated of his having been approved for the rank of acting Brigadier. On 17.12.1991 a learned Single Judge, while directing rule nisi to issue, also made an interim order restraining any further action against the respondent No.1 on the basis of proceedings already held and not to deprive the respondent No.1 of promotion to the rank of Brigadier in case he has been held to be entitled for it. This interim order was continued by the High Court vide order dated 9.3.1992 to remain in operation in spite of objections filed on behalf of the appellants and the High Court having been informed by the appellants that because of drop in performance the respondent No.1 could not be promoted. Thereafter again, on behalf of the appellants, an application was filed before the High Court seeking vacation of the interim order dated 17.12.1991 so that the army authorities could proceed with the court martial but the learned Single Judge declined to vacate the interim order on the ground that the prayer could not be entertained until the interim order dat

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2001 Supreme(SC) 1165

Cases Referred (1)