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SUPREME COURT OF INDIA
Dr. B.S. Chauhan & Dipak Misra, JJ.
Union of India and others
Vs.
Sanjay Jethi and another
Civil Appeal No. 8914 of 2012, Application No. 38 of 2011
Decided On : 18 October, 2013
Armed Forces Tribunal Act, 2007 - Section 14 - Rule 180 - Factual score as depicted is that complaint was made by one of officers alleging irregularity in hiring of Civil Hired Transport which were used for purpose of supply ordnance stores to units spread over country including remotest field and high altitude area by respondent who hold rank of Colonel in Army – Complaint General Officer Commanding-in-Chief initiated an action against respondent by making his attachment with HQ Sub Area on 6.8. 2009 and also convened a Board of Officers on 21.7.2009 for ascertaining the truthfulness of allegations - Board seized entire records and submitted report - Premises of that report COI was convened against respondent to investigate into alleged irregularities – Held, Respondent had approached tribunal Section of Act - Statement of Objects and Reasons it has been spelt out for constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of verdicts of court martial to provide for quicker and less expensive justice to members of armed forces of Union - Preamble of Act provides for adjudication or trial by tribunal of justice and compliance in respect of many matter - Court find tribunal has been conferred powers to deal with cases in promptitude - Promptitude does not ostracize or drives away apposite exposition of facts and necessary ratiocination - Seemly depiction of factual score succinct analysis of facts and law pertinent and cogent reasoning in support of view expressed having due regard to rational methodology - in our considered opinion are imperative – Court have said so as court find that tribunal by impugned order has not adverted to necessitous facts – Court say so despite sustaining verdict – Appeal dismissed
Non-compliance with Army Rule 180, which mandates full opportunity for a person subject to the Act—whose character or military reputation is affected in a Court of Inquiry (COI)—to be present throughout the inquiry, make statements, give evidence, cross-examine witnesses affecting their character or reputation, and produce defense witnesses, results in the COI proceedings (or relevant portions thereof) being vitiated. (!) [1000540020013][1000540020024] (!) [1000540020045]
Such violation constitutes a breach of procedural safeguards and principles of natural justice, including the risk of real likelihood of bias or prejudice to the affected person, rendering the COI report unreliable as a basis for disciplinary action.[1000540020010][1000540020011] (!) [1000540020022][1000540020044][1000540020050][1000540020051]
Consequently, the COI decision and all actions taken pursuant to it (e.g., attachments or initiation of disciplinary proceedings) are set aside, with liberty granted to the authority to convene a fresh or additional COI limited to the affected aspects, comprising a different Presiding Officer and independent members not previously involved in expressing views on the matter, to afford proper opportunities for perusal of documents, examination, and cross-examination of pertinent witnesses.[1000540020005][1000540020013][1000540020025][1000540020053][1000540020054]
The proceedings before a COI are not adversarial but fact-finding in nature; however, non-compliance undermines their legitimacy and prevents their use as the sole foundation for further action.[1000540020020][1000540020022][1000540020045][1000540020053]
JUDGMENT
Dipak Misra, J.
1. The legal propriety of the judgment and order dated 12.12.2012 in TA No. 38 of 2011 passed by the Armed Forces Tribunal, Regional Bench at Mumbai (for short 'the tribunal') setting aside the decision rendered by the Additional Court of Inquiry and consequential action taken or orders passed pursuant to the said order and directing to convene a fresh Court of Inquiry (COI) with a different Presiding Officer and other independent members, if decision is taken to proceed against the 1st respondent, is called in question in the present appeal.
2. The factual score as depicted is that on 5.8.2009, a complaint was made by one of the officers alleging irregularity in the hiring of Civil Hired Transport (CHT), which were used for the purpose of supply of ordnance stores to units spread over the country, including remotest field and high altitude area by the respondent No. 1 who holds 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 6.8. 2009 and also convened a Board of Officers on 21.7.2009 for ascertaining the truthfulness of the allegations. On 22.7.2009 the said Board seized the entire records 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.
3. The COI conducted an inquiry and on 8.3.2010 recommended for taking appropriate disciplinary action against the 1st respondent and some other officers. On the basis of the said recommendation on 23.2.2010 the first respondent was attached to the Head Quarters, Mumbai Sub Area till 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 contending, inter alia, that he had been deprived of the right of cross-examination as stipulated under Rule 180 of the Armed Forces Rules, 1954 (for short 'the Rules'); and that there had been non-supply of documents which were annexed after conclusion of the proceedings before the COI. As the factual matrix would unveil, on 17.6.2010 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.
4. The Original Application filed before the tribunal was disposed of on 8.10.2010. 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 others [AIR 1982 SC 1413], certain passages from Administrative Law by De Smith and applicability of the principles of natural justice and came to hold that as the 1st 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.
5. A contention was advanced 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 placing reliance on the dictum in Uma Nath Pandey and
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