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1998 Supreme(Del) 967
High Court Of Delhi
S.N.THAKUR - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 11/20/1998
The Court of Inquiry proceedings are preliminary in nature, and the rules of natural justice are not applicable during these proceedings. The accused is entitled to a fair hearing and the opportunity to defend themselves during the hearing of charges, as per Rule 22 of the Army Rules.
Headnote:
ARMY ACT - SECTIONS 63, 64, 65 - ARMY RULES, 1954 - RULES 22, 180, 182 - COURT OF INQUIRY - HEARING OF CHARGES - CROSS-EXAMINATION OF WITNESSES - OPPORTUNITY TO DEFEND - NATURAL JUSTICE - PRELIMINARY INQUIRY - ADMISSIBILITY OF PROCEEDINGS - SUMMARY OF EVIDENCE - DISMISSAL OF PETITIONS.
Fact of the Case:
Petitioners, Junior Commissioned Officers, faced disciplinary proceedings under Army Act Sections 63, 64, and 65. They alleged violations of Army Rules and Regulations, including the denial of a copy of the charge sheet and the opportunity to cross-examine witnesses during the Court of Inquiry proceedings.
Finding of the Court:
The Court found that the Commanding Officer erred in dispensing with the requirement of Rule 22(1) of the Army Rules, which mandates the presence of the accused during the hearing of charges and the opportunity to cross-examine witnesses. However, the Court held that the petitioners were not entitled to be present during the Court of Inquiry proceedings, as it was convened to investigate allegations against their superior officer and not against them.
Issues: 1. Whether the Commanding Officer erred in dispensing with the requirement of Rule 22(1) of the Army Rules, which mandates the presence of the accused during the hearing of charges and the opportunity to cross-examine witnesses? 2. Whether the petitioners were entitled to be present during the Court of Inquiry proceedings, which were convened to investigate allegations against their superior officer and not against them?
Ratio Decidendi: 1. The Court held that the Commanding Officer erred in dispensing with the requirement of Rule 22(1) of the Army Rules, as it is a mandatory provision that ensures the accused's right to a fair hearing and the opportunity to defend themselves. 2. The Court held that the petitioners were not entitled to be present during the Court of Inquiry proceedings, as they were not the subject of the investigation and the proceedings were not convened against them.
Final Decision: The Court dismissed the petitions, holding that the petitioners were not denied their statutory rights and that the Commanding Officer would comply with Rule 22 during the hearing of charges, providing the petitioners with the opportunity to cross-examine witnesses and present their defense.
( 1 ) THE petitioners are Junior Commissioned Officers and are presently posted in Detachment Base Workshop Group EME No. 16 (Inspection) at Delhi Cantt. Their case is that between February, 1998 to October, 1998 there were two inquiries held in the Unit, based on their complaint made against their immediate superior (respondent No. 7 ). They were called as witnesses and during this period were attached to another Unit within Delhi. On 7. 11. 1998 some proceedings under Army Rule 22 were initiated against them by respondent No. 6, who framed charge sheet against them under Sections 63,64 and 65 of the Army Act. They were neither supplied with the copy of the charge sheet nor other connected documents. They were made to sign some papers. The matter was thereafter adjourned to 9. 11. 1998 for purposes of recording summary of evidence under Army Rule 23. Four applications were submitted by the petitioners on 8. 11. 1998. The petitioners claimed that as the proceedings against them were being held in violation of Army Act, Army Rules and Regulations, they had no option but to approach this Court for appropriate directions. The petitions were filed on 8. 11. 1998 and came up before the Court on 10. 11. 1998 when notice was directed to be issued to the respondents. Relevant record was directed to be kept ready in Court. Learned Counsel for the parties were heard on 18. 11. 1998.
( 2 ) GOC-IN-C, Delhi Area passed an order for convening of Court of Inquiry against Lt-Col. (T. S) N. I. Singh to investigate the allegations made by some Junior Commissioned Officers and Other Ranks (JCO s/or s) of Detachment No. 16, Technical Group EME,delhi Cantt. which they had directly sent to the Defence Minister. Record further reveals that the petitioners were amongst the other signatories in the complaint and they were examined as witness Nos. 1 and 7during Court of Inquiry Proceedings conducted against the said Lt. Col. (TS) N. I. Singh. Report of the Court of Inquiry was placed before GOC-in-C, Delhi Area, who, on 29. 8. 1998 forwarded the same to GOC-in-C, Western Command with his directions/ recommendations. On 16. 9. 1998 after perusing of record and report of the Court of inquiry proceedings along with the the recommendations/directions of the GOC-in-CDelhi Area concurred with the directions/recommendations and directed that disciplinary action be taken against the petitioners for the following lapses:
" (A) Inciting JCOs and men for collective in-subordination. (b) Levelling false charges against JC-31942 X Lt. Col (TS) N. I. Singh. (e) Violating the laid down channel while seeking redressal of their grievances. "
( 3 ) PURSUANT to the aforementioned directions / recommendations of GOC-in-C, Western Command, it appears that the Commanding Officer on and from 7. 11. 1998 proceeded with the hearing of the charge as per the procedure laid down inchapter V of Army Rules, 1954. The Commanding Officer appears to have dispensed with the procedure laid down in Sub-rule (1) of Rule 22 of hearing of the charge in the presence of the accused and of examining the witnesses in his presence. He straightaway proceeded to direct that the summary of evidence be recorded. Rule 22 of the Army Rules, 1954, as amended by Amendment Rules, 1993 reads:
"22. Hearing of charge.- (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross examine any witness against him, and to call such witness and make such statement as may be necessary for his defence: Provided that where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub-rule (1 ). (2) The Commanding Officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an
