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1992 Supreme(HP) 74
High Court Of Himachal Pradesh
BHAWANI SINGH,D.P.SOOD
BRIGADIER S.P.S.BASWANI - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ Petition No. 63 of 1989
Decided On : 06/30/1992
For the petitioner: :M/s. R. S. Randhawa, R. S. Bajaj and K. D. Sood, Advocates. For the respondent(s):Shri P. L. Sood, Advocate,
The Commanding Officer has the authority to dispose of a case under Army Rule 22 and his decision is final. Once a case has been closed by the Commanding Officer, it cannot be reopened by a superior authority.
Headnote:
ARMY ACT - SECTION 121 - ARMY RULES - RULE 22, 25, 53 - REGULATIONS FOR THE ARMY - PARA 327 - COURT MARTIAL - JURISDICTION - REPROOF - PRELIMINARY INVESTIGATION - SUMMARY OF EVIDENCE - LEAVE TRAVEL CONCESSION CLAIM - PERMANENT DUTY MOVE CLAIM - DISPOSAL OF CASE - REOPENING OF CASE - CENSURE - CONDONATION OF OFFENCE - CHIEF OF THE ARMY STAFF APPROVAL - FABRICATION OF EVIDENCE - WRIT PETITION - JUDICIAL VERDICT - PLEA-IN-BAR - RANK AND PRECEDENCE - FORFEITURE OF PAST SERVICE - SEVERE REPRIMAND - STAY OF SENTENCE - QUASHING OF ARMY INSTRUCTIONS - ARBITRARY AND UNCONSTITUTIONAL ORDERS - COURT MARTIAL PROCEEDINGS AND SENTENCE - QUASHING - JURISDICTION OF COURT MARTIAL - SIGNING OF CHARGE-SHEET BY COMMANDING OFFICER - ATTACHMENT OF ACCUSED - REVERSION TO SUBSTANTIVE RANK - MAINTENANCE OF RANK - ACTIVE DUTY - PUNISHMENT - OPERATION OF SENTENCE STAYED.
Fact of the Case:
The petitioner, a Brigadier in the Indian Army, was accused of submitting incorrect claims for permanent duty move and Leave Travel Concession. He was initially given a written and verbal warning by his Commanding Officer, Lt. General G. S. Kler, AVSM, who considered the matter closed. However, the Headquarters, Southern Command, later reopened the case and initiated disciplinary proceedings against the petitioner. The petitioner challenged the reopening of the case and the subsequent court martial proceedings through writ petitions. The Division Bench of the High Court dismissed the writ petition, leaving it open to the petitioner to challenge any adverse orders passed against him in the disciplinary proceedings.
Finding of the Court:
The Court held that the reopening of the case against the petitioner for the Leave Travel Concession claim was illegal and without jurisdiction. The Court found that Lt. General G. S. Kler, AVSM, as the Commanding Officer, had the authority to dispose of the case and that his decision to administer a warning to the petitioner was final. The Court also held that the summary of evidence ordered against the petitioner was not in accordance with Army Rule 22, as the Commanding Officer had not conducted a preliminary investigation and had not heard the charge. The Court further held that the court martial lacked jurisdiction to decide the case as the charge-sheet had not been signed by the Commanding Officer of the accused. The Court also found that the punishment imposed on the petitioner was harsh and excessive.
Issues: 1. Whether the reopening of the case against the petitioner for the Leave Travel Concession claim was illegal and without jurisdiction? 2. Whether Lt. General G. S. Kler, AVSM, as the Commanding Officer, had the authority to dispose of the case and whether his decision to administer a warning to the petitioner was final? 3. Whether the summary of evidence ordered against the petitioner was not in accordance with Army Rule 22? 4. Whether the court martial lacked jurisdiction to decide the case as the charge-sheet had not been signed by the Commanding Officer of the accused? 5. Whether the punishment imposed on the petitioner was harsh and excessive?
Ratio Decidendi: 1. The Court held that the reopening of the case against the petitioner for the Leave Travel Concession claim was illegal and without jurisdiction because: (a) Lt. General G. S. Kler, AVSM, as the Commanding Officer, had the authority to dispose of the case and his decision to administer a warning to the petitioner was final; (b) the Headquarters, Southern Command, had no authority to reopen the case once it had been closed by the Commanding Officer; (c) the petitioner had not been given a proper opportunity to defend himself against the charges; and (d) the reopening of the case was an abuse of process. 2. The Court held that Lt. General G. S. Kler, AVSM, as the Commanding Officer, had the authority to dispose of the case and that his decision to administer a warning to the petitioner was final because: (a) Army Rule 22 gives the Commanding Officer the power to dismiss a charge if he considers that the evidence is doubtful or the case is trivial; (b) Lt. General G. S. Kler, AVSM, had conducted a preliminary investigation and had heard the petitioner's explanation; and (c) Lt. General G. S. Kler, AVSM, had issued a written warning to the petitioner, which was a final decision. 3. The Court held that the summary of evidence ordered against the petitioner was not in accordance with Army Rule 22 because: (a) the Commanding Officer had not conducted a preliminary investigation; (b) the Commanding Officer had not heard the charge; and (c) the petitioner had not been given a proper opportunity to defend himself against the charges. 4. The Court held that the court martial lacked jurisdiction to decide the case because the charge-sheet had not been signed by the Commanding Officer of the accused. 5. The Court held that the punishment imposed on the petitioner was harsh and excessive because: (a) the petitioner had already been punished by Lt. General G. S. Kler, AVSM; (b) the petitioner had a good service record; and (c) the punishment was disproportionate to the offence.
Final Decision: The Court quashed the court martial proceedings and the sentence imposed on the petitioner. The Court also directed the respondents to quash Army Instructions No. SAI-l/S/74, as amended by corrigenda AI 31/86 as well as orders of 2-9-1987 and 6-6-1988.
Bhawani Singh, J.—The petitioner joined National Defence Academy in July, 1957 and completed the course at the Indian Military Academy on 17th December, 1961 whereupon he was commissioned as a Second Lieutenant in the Armoured Corps of the Indian Army in the Regiment known as the 20 Lancers’. After serving in various capacities from time to time, he is holding the rank of a Brigadier. In 1986, he was transferred from Babina to the Armoured Corps Centre and School in Ahmednagar. On 8th December, 1986, two money claims were submitted by him to the Controller of Defence Accounts (Officers) Pune. Through one, he claimed reimbursement of the expenses incurred by him for his transfer from Babina to Ahmednagar and the second claim related to the expenses of an air journey undertaken by him and his family members under the Leave Travel Concession facility during 1986. Through letter of December 17, 1986, the Controller of Defence Accounts (Officers) Pune, asked the petitioner to furnish appropriate documentary proof by way of railway receipts or air tickets or a certificate from the Airlines in support of these claims (Annexure P-l). Accordingly, the petitioner resubmitted the claims to the Controller of Defence Accounts (Officers) Pune, on 4th January, 1986. Certain irregularities were found by the Controller of Defence Accounts (Officers) Pune, while processing the permanent duty move claim preferred by the petitioner. By a letter of 22-1-1987, the Controller of Defence Accounts requested the Vigilance Branch of the Headquarters, Southern Command, Pune, to investigate the matter (Annexure P-2) Through communication of 28-1-1987. Headquarters Southern Command, Pune. requested the Commandant of Armoured Corps Centre and School, Ahmednagar, under whom the petitioner was serving and who was then the Commanding Officer of the petitioner and as such the only authority to investigate the matter, to carry out investigation and give his comments and recommendations by 23th February, 1987 (Annexure P-3).
2. At the relevant time, Lt. General G. S. Kler, AVSM, was the Commandant of the Armoured Corps Centre and School He conducted the preliminary investigations into the matter on 29-1-1987 by calling the petitioner and asking him to tender his explanation. The petitioner gave oral as well as written explanation. He substantially admitted that the claims submitted by him were incorrect (Annexure P-4). The petitioner was given a written and verbal warning on 29-1-1987 by the Commanding Officer. By a letter of dated 29-1-1987, Lt General Kler, AVSM, informed the petitioner that his claims in respect of permanent duty move and the Leave Travel Concession had been incorrectly prepared and preferred. The petitioner was warned that such an action on the part of a senior officer was likely to have severe repercussions and may dilute discipline (Annexure P-5).
3. The petitioner further submits that since he had been administered warning—oral as well as written—by the Commanding Officer, the matter stood concluded under Para 327 (d) of the Army Regulations, 1962, hence under this regulation, it was not open to any superior authority to reopen the case against the petitioner either by instituting disciplinary proceedings or otherwise. Para 327 of the Army Regulations, 1962 says: "327. Reproof.—(a) Reproof may be verbal or in writing or both. (b) In no circumstances should reproof take the form of insult or abuse It may be strong but should be directed to the actual fault committed and the language used should not be intemperate or offensive A reproof should not be administered in the presence of subordinates unless, for the purpose of making an example, it is necessary that reproof be public. (c) Warning, a minor censure may take the form of reproof and be administered verbally or in writing to service personnel by the Officer Commanding or by an authority superior in command to the Officer Commanding. A warning will not be recorded in the service d
