Ex. Lt. Colonel A.C. Tewari vs Union of India and Others

Surya Kant, J.—The petitioner impugns the order dated 30.01.2014 passed by the Armed Forces Tribunal, Chandigarh Regional Bench whereby his challenge to the findings and sentence awarded by Summary General Court Martial, has been rejected. The petitioner at the relevant time was in the rank of Lieutenant Colonel when allegations of dishonest misappropriation of various items of 14 Wireless Experimental Unit were leveled and Summary General Court Martial was convened. The petitioner was held guilty and was sentenced by way of dismissal from service as well as stoppage of pay and allowances until he would make good the sum of Rs. 69,000/-. The order was passed on 29.11.1999. The petitioner filed a petition under Section 164(2) of the Army Act, 1950 (in short, ''the Act'') which was rejected and the sentence awarded to him was substantially confirmed vide order dated 17.10.2000 (Annexure P3).

The aforesaid order was challenged by the petitioner in the High Court of Jammu & Kashmir but on constitution of the Armed Forces Tribunal, the case was transferred to the Regional Bench at Chandigarh who vide the impugned order has dismissed the petitioner''s TA.

There were two issues for consideration before the Tribunal: firstly whether or not the principles laid down by the Supreme Court in Union of India and Another Vs. Charanjit S. Gill and Others, read with the later decision in Ex. Lt. Col. Sunil Issar Vs. Presiding Officer, Court of Inquiry, Major General D.P. Segal and Others, are attracted in the instant case and resultantly the Summary General Court Martial proceedings are vitiated on account of the fact that the Judge Advocate nominated as a Member was lower in rank than the petitioner? Secondly, whether the petitioner was subjected to fair trial and the evidence led before the Summary General Court Martial was sufficient to bring home his guilt?

The Tribunal has answered the first issue against the petitioner primarily on the ground that Charanjit S. Gill applies prospectively and is inapplicable in the instant case as the Summary General Court Martial came to be concluded before announcement of the said decision.

As regards the second issue, the Tribunal firstly observed that "the petitioner did not advance any argument or challenge related to the evidence leading to the findings..." and then made a brief reference to some of the findings arrived at by the Summary General Court Martial, to conclude that "nothing substantial in the arguments of the petitioner in so far as the evidence related to the charges is concerned".

We have heard learned counsel for the parties and gone through the cited case law as well as the impugned order.

So far as the first issue is concerned, we are of the considered view that the reasoning assigned by the Tribunal for not applying the principles laid down in the Charanjit S. Gill''s case (supra) may not be the correct statement of law, if seen in the light of later decision in Sunil Issar''s case. It is undeniable that the post-confirmation petition under Section 164(2) of the Act filed by the petitioner was decided on 17.10.2000 while the judgment in Charanjit S. Gill''s case came on 24.04.2000. Unless there is any other valid reason, the principle laid down in Charanjit S. Gill would be attracted to the facts of the instant case also.

Equally forceful appears to be the contention now raised on behalf of the respondents which was not the subject-matter of consideration before the Tribunal, namely, that the composition of Summary General Court Martial is altogether distinct and different from that of General Court Martial under the Act read with Army Rules, 1954 framed thereunder. A pointed reference is made to Sections 113, 115 & 129 of the Act read with Rules 40, 102, & 164 of the 1954 Rules to urge that in view of Rule 164 only Rule 102 is applicable and not Rule 40 of the 1954 Rules, which was the foundation stone of the judgment in Charanjit S. Gill''s case. Reliance is also placed upon yet another decision of the Supreme Court in Union of India (UOI) Vs. S.P.S. Rajkumar and Others, .

Adverting to the second issue, namely, the petitioner''s effort to seek exoneration on merits, its important to notice that the Tribunal is the first appellate forum against the proceedings of Summary General Court Martial. The appellate forum is under an onerous duty to re-appraise and re-consider the entire evidence on record, its evidentiary value, admissibility and other attending circumstances to determine whether or not the petitioner is guilty of the charges leveled against him.

The Court Martial or any other Tribunal while conducting criminal or quasi-criminal proceedings, is obligated to apply the finest principles of natural justice and fair play, to the extent the law permits, and consider varied aspects minutely to see that no injustice is done to a party, especially the one not represented by a legally-trained mind.

The order under appeal, in our considered view, falls short of satisfying these parameters.

Having held so with respect to issue No. 2, it appears to us that the first issue along with pointed reference made by learned counsel for respondents to various provisions of the Act and the Rules coupled with the decision relied upon by the parties, can also be gone into by the Tribunal afresh.

For the reasons afore-stated, the writ petition is allowed to the extent that the order dated 30.01.2014 is set aside and the matter is remitted to the Tribunal for fresh adjudication in the light of the observations made hereinabove.

Parties are directed to appear before the Tribunal on 31.10.2014. Disposed of. Dasti.