1. Disciplinary proceedings against an army officer for financial impropriety and misappropriation — Challenge to the process based on non-disclosure of a preliminary investigation report. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 )
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2019 Supreme(SC) 1383
SUPREME COURT OF INDIA
L.NAGESWARA RAO, AJAY RASTOGI, JJ.
Brigadier L.I. Singh YSM – Appellant
Versus
Union of India & Ors. – Respondent
Civil Appeal Nos. 9223-9224 of 2019
Decided On : 17-12-2019
Important Points
IMPORTANT POINT
Disciplinary Action – Enquiry report must be furnished to Appellant.
Disciplinary Action – Enquiry report must be furnished to Appellant.
Subject
Military Law - Disciplinary Proceedings
Act Referred
Headnote
Service Law – Disciplinary Action – Allegation of violation of Rule 180 of Army Rules made by Appellant was not accepted by Tribunal – Tribunal took note of fact that disciplinary proceedings were stalled due to cases pending in courts – While directing that one man inquiry report shall be handed over to Appellant, Tribunal directed Respondents to complete process of disciplinary proceedings – Basis for convening of Court of Inquiry is one-man inquiry report – One man inquiry report was not furnished to Appellant – Direction given by Tribunal requires modification – Without report of one man inquiry, Appellant was certainly disabled from effectively defending himself in Court of Inquiry -Appellant is entitled to opportunity to cross examine witnesses against him after examining one-man inquiry report – Court of Inquiry has to be conducted afresh – Judgment of Tribunal affirmed with modification. [Section 30 and 31 of Armed Forces Tribunal Act, 2008; Rule 180 of Army Rules, 1950] (Paras 10, 13 and 14)
Facts of the case:
Refusal of Armed Forces Tribunal, Principal Bench, New Delhi to interfere with disciplinary action initiated against Appellant is the subject matter of these Appeals.
Findings of Court:
Appellant is entitled to an opportunity to cross examine witnesses against him after examining the one-man inquiry report. Further, Appellant raised the issue of the one-man inquiry report not being provided to him at the earliest possible time. Therefore, directions issued by Tribunal that disciplinary proceedings be conducted afresh requires to be modified.
Result : Appeals disposed of.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant(s) :Sudhanshu S. Pandey, Gaichangpou Gangmei, Abhishek R.Shukla, Arjun D. Singh, Advocates
For the Respondent(s):R. Balasubramanian, Om Prakash Shukla, Arvind Kumar Sharma, Advocates
For the Appellant(s) :Sudhanshu S. Pandey, Gaichangpou Gangmei, Abhishek R.Shukla, Arjun D. Singh, Advocates
For the Respondent(s):R. Balasubramanian, Om Prakash Shukla, Arvind Kumar Sharma, Advocates
Table of Contents
2. Allegations of mala fides, violation of Rule 180 of Army Rules, and denial of a preliminary inquiry report affecting the right to an effective defense. (Para 10 , 11 , 12 )
3. Non-furnishing of a preliminary investigation report, which formed the basis for a Court of Inquiry, disables the accused from effectively defending themselves. (Para 13 )
4. Where a preliminary inquiry report forms the basis for a Court of Inquiry, its non-disclosure necessitates a de novo inquiry to ensure a fair defense. (Para 13 )
5. Tribunal judgment affirmed with modification — Court of Inquiry to be conducted afresh, allowing the accused to cross-examine witnesses after reviewing the preliminary report. (Para 14 , 15 )
6. Does the non-disclosure of a preliminary investigation report that forms the basis of a Court of Inquiry affect the accused's defense?
Yes. If the preliminary investigation report is the basis for convening the Court of Inquiry, its non-disclosure disables the accused from effectively defending themselves, entitling them to a fresh inquiry and the opportunity to cross-examine witnesses after reviewing the report. (Para 13 )
7. Can disciplinary proceedings continue against an army officer after their retirement from service?
Yes, disciplinary proceedings can be continued against a retired officer through the invocation of Section 123 of the Army Act. (Para 9 )
8. What is the appropriate legal remedy when a foundational preliminary report is withheld during a Court of Inquiry?
The appropriate remedy is to conduct the Court of Inquiry afresh, ensuring the accused is provided the report and given the opportunity to cross-examine witnesses and produce evidence in their favor. (Para 13 , 14 )
JUDGMENT :
L. NAGESWARA RAO, J.
1. The refusal of the Armed Forces Tribunal, Principal Bench, New Delhi (for short “the Tribunal”) to interfere with the disciplinary action initiated against the Appellant is the subject matter of these Appeals.
2. The Appellant was commissioned in the Jammu & Kashmir Light Infantry, Indian Army on 17.12.1983. He was the Commander of 164 Mountain Brigade from 01.12.2012 to 29.03.2012. Brigadier R.K. Jha took over as the Commander of 164 Mountain Brigade on 30.03.2012. After taking over, Brigadier R.K. Jha was informed that the property of the Flag Staff House was not properly accounted for and certain items were missing as they were taken away by the Appellant. Brigadier R.K. Jha made inquiries with Major Amit Slathia and Havildar Yongendra Bahadur Gurung. On being satisfied that certain items were missing, Brigadier R.K. Jha directed Colonel S.S. Sidhu, the then Deputy Commander to undertake a physical check of the Flag Staff House property. According to the inquiry conducted by Major Siddharth Virmani and Havildar Yogendra Bahadur Gurung. Two Heat Pillars, three carpets and two flower pots were taken away by the Appellant along with his luggage by being treated as unserviceable.
3. When Brigadier R.K. Jha visited unit 4/1 GR along with Major Ishani Maitra, Education Officer of 164 Mountain Brigade, he was informed by her that Mrs. Nirmala Singh, wife of the Appellant had borrowed money which was subsequently not returned. Having learnt about the excess commission and omission by the Appellant, the General Officer Commanding 17 Mountain Division directed a discrete investigation against the Appellant. After an investigation, Brigadier R.K. Jha found the following acts and omissions on the part of the Appellant :
“(i) It was reported by the then Deputy Commander, Colonel (Now Brigadier) S.S. Sidhu that Mrs. Sidhu had got a call from Mrs. L.I. Singh requesting for some money which as per the Officer, was politely declined.
(ii) It was reported by Major Amit Slathia, SC that he was under severe duress to obtain money for the Appellant from Civil Hired Transport contractors. As reported by the Officer, since he could not withstand the pressure and humiliation, he gave Rs.20,000/- (Rupees twenty thousand only) out of his own pocket to the Appellant, by withdrawing money from an ATM at Pedong.
(iii) Major Akhil Mendhe, Second-in- Command of 6 RAJ RIF who happened to be in the Brigade Headquarters on a particular day when Brigadier R.K. Jha was interacting with the officers, informed Brigadier R.K. Jha that a loan of Rs.1.00.000/- (Rupees one lakh only) was arranged for Brigadier L.I. Singh, YSM from his Unit Wet Canteen Contractor.
(iv) Colonel M. Ravi Shanker, Commanding Officer 4/1 GR informed Brigadier R.K. Jha that when the Appellant was the Commander, a loan of Rs.2,00,000/- (Rupees two lakhs only) was arranged from his Unit Wet Canteen Contractor for the Appellant, which was subsequently returned.
(v) Lieutenant Colonel V.S. Parmar, Admn Comdt of Station Headquarters, Pedong reported that the Appellant had taken some favours from the vendors dealing with the Station Headquarters, Pedong.”
4. Brigadier R.K. Jha reported accordingly to the General Officer Commanding 17 Mountain Division who in return reported to the GOC 33 Corps. Before ordering an investigation, it was decided that a preliminary investigation/ one man inquiry should be held. With a view to find out the correctness of the allegations against the Appellant, the General Officer Commanding 27 Mountain Division was asked to carry out the preliminary investigation.
5. On the basis of the report submitted in the preliminary investigation (One Man Inquiry) and the verbal complaints made by officers and noncommissioned officers to Brigadier R.K. Jha, a Court of Inquiry was convened on 09.06.2012. The terms of reference given to the Court of Inquiry are as follows:
“(i) Borrowing of money from the wet canteen contractors of units under his comma
