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Judgment
Nirmal Yadav, J.—This special appeal is preferred against the judgment dated 26.11.2009 passed by learned Single Judge of this Court whereby the petition filed by the appellant / petitioner is partly allowed. Petitioner''s prayers to reinstate him in service with consequential benefits, to grant him promotion to the post of Naik with effect from 01.12.2006 and to quash the punishment order dated 19.12.2006 have been rejected while his prayer for refund of amount of ` 28562/- has been allowed.
The most accepted methodology of governmental working ought always to be fair and in the event of its absence, law courts would be within their jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on this. It is this concept of fairness, which Mr. Lalit Kumar, learned Counsel for the appellant very strongly contended, is totally absent in the present case. According to him, no opportunity was granted to the petitioner / appellant to defend himself either at the stage of court of enquiry or during the proceedings of hearing of charge. Thus, the authorities have completely violated the principle of natural justice. It has been vehemently contended that the learned Single Judge has failed to appreciate that the punishment of ''reduction in rank'' could be awarded only by court martial u/s 71 of the Army Act and not by the Commanding Officer in exercise of summary powers u/s 80 of the Army Act, 1950. Learned Single Judge did not appreciate the argument raised by learned Counsel for the petitioner / appellant that there was no evidence against the appellant in support of the charge nor there is any evidence that the appellant had pleaded himself to be ''guilty'' as there was no occasion for him to make any such statement.
The factual matrix of the present case is that petitioner was enrolled in Army Medical Corps of the regular Army as Sepoy in the trade of Cook on 14.10.1986. He was promoted to the rank of Lance Naik in the year 2003. In the same year, he opted for the conversion of his reserve liability into colour service by virtue of which he became entitled to serve till 31.10.2009, as per the provision of regulation 134 of the Regulation of Army by which petitioner was governed. Consequently, the appellant was entitled for 20 years of service in colour and three years in reserve or alternatively for the whole period of 23 years in colour, or till attainment of 48 years of age, whichever was earlier.
In January, 2004 the petitioner/appellant was posted to 22 Establishment at Chakrata in District Dehradun where he was required to join his duties by 05.02.2004. His place of posting was located in field area where families were not permitted to live therefore, petitioner applied for hiring a civil accommodation at Chennai in Tamil Nadu, his home State, for the stay of his family during his posting at the non family station. For the said accommodation, he could claim Compensation in Lieu of Quarter (hereinafter to be referred to as CILQ), as per relevant Rules and Regulation. The house sponsored by the appellant at Chennai for his family had been inspected by the Station Board and as per the procedure the station Headquarter Chennai vide its order dated 18.08.2004 permitted the appellant to claim CILQ at the prescribed rate which was ` 1800/- per month with effect from 05.02.2004 (Annexure No. 3). Few days thereafter, the petitioner/appellant approached Head Clerk namely Subedar B. K. Das for publication of CILQ. It is alleged by the petitioner that Subedar B. K. Das demanded ` 2000/- as consideration for timely publication of CILQ for the entire period of three years during which appellant was expected to remain posted at 22 Establishment, Chakrata.
Sometimes in March, 2005 appellant was informed by his wife that his son was not studying properly due to lack of supervision by the father. Accordingly, he shifted his son from Chennai to Dehradun in April, 2005 and admitted him in Kendriya Vidyalaya, Clement Town, Dehradun. He made arrangement for the stay of his son with one of his friends, who was in Army and posted at Clement Town. Subedar B. K. Das, who was in knowledge of the fact that petitioner/ appellant had moved his son to Dehradun, allegedly demanded sum of ` 500/- per month out of Rs. 1800/- per month which appellant was getting as CILQ. He threatened the appellant/ petitioner that in case, he did not pay the demanded amount regularly he would treat the appellant as having shifted his family to Dehradun and would stop his claim of CILQ. This demand of Subedar B. K. Das was not acceptable to the appellant/petitioner, he approached the Station Headquarter, Chennai in August 2006 with a request to verify the fact that his wife and old father continued to stay at Chennai at the approved civil accommodation and validate the CILQ by furnishing necessary certificates. The Station Headquarter, Chennai issued certificate dated 05.09.2006 (Annexure 5) validating the CILQ but despite the receipt of the above certificate from the Station Headquarter, Subedar B. K. Das was not publishing the CILQ. Accordingly appellant reported the matter to his Company Commander Major N.D. Prabhu. However, court of enquiry was held to investigate the circumstances under which the appellant levelled allegation against Subedar B. K. Das accepted bribe for publishing Part II order to authorize CILQ. During the court of enquiry, the statement of petitioner / appellant was recorded as complainant. The statement of Subedar B. K. Das and other witnesses also appears to have been recorded, however, the appellant was neither given a chance to remain present during recording of statement of Subedar B. K. Das or other witnesses nor he was allowed to cross examine the witnesses to prove his allegation against Subedar B. K. Das. The appellant/petitioner never came to know what were the contents of the statements of Subedar B. K. Das and other witnesses before court of enquiry. The authorities totally ignored the provisions of Rule 180 of Army Rules 1954. At the same time, petitioner was charged of making false allegations against Subedar B. K. Das for demanding bribe for publication of CILQ before Company Commander Major N.D. Prabhu. The appellant had never pleaded guilty to the said charge and reiterated his allegations against Subedar B. K. Das. However, in the performa used for the summary trial u/s 80 of the Army Act 1950, the respondent authority recorded that appellant had pleaded ''guilty'' on his own. The said performa admittedly does not bear the signatures of the appellant nor there is any other documents signed by the appellant where he had pleaded ''guilty'' of the charge. It is further pleaded that respondent authority did not even summon the necessary witnesses nor he was given an opportunity to cross-examine Subedar B. K. Das and other witnesses while such proceedings should have been conducted as per the provision of Rule 22 of the Army Rule 1954. Thus, the mandatory provisions of Rule 22 have been given a complete go-bye and the appellant has been awarded punishment of ''reduction in rank'' in utter violation of statutory provisions of the Army Act and Army Rules. As a result of the punishment awarded to the appellant, a ''red ink entry'' was entailed into appellant''s service record thereby arbitrarily degraded and declared him ineligible for promotion to the rank of Naik for which he had already been approved on the basis of unblemished past record w.e.f. 01.12.2006 vide order dated 20.11.2006. The punishment also resulted into denial of opportunity to the appellant for extension of his service by another two years whereby he would have retired on 31.10.2011. The appellant has been illegally discharged from service w.e.f. 01.07.2007 vide order dated 30.01.2007 (Annexure 8). The authorities had also deducted ` 28562/- from the petitioner''s dues on account of false claim of CILQ w.e.f. 05.02.2004 to 30.06.2006.
The petitioner''s claim was rebutted by the respondents by filing counter affidavit. It is pleaded that court of enquiry was conducted investigating the circumstances under which the appellant levelled allegation that Subedar B. K. Das demanded and accepted bribe for publication Part II order to authorize CILQ. It is not disputed that in the court of enquiry witnesses were examined and enquiry was finalized and in the inquiry, prima facie case was found against the appellant that he raised false allegation Subedar B. K. Das, though he was himself was at fault for claiming CILQ wrongly while his family was staying at Dehradun, therefore, disciplinary action was initiated but his Commanding Officer under Army Rule 22 holding summary trial and awarded sentenced to ''reduction in rank''.
It is not disputed by the respondents that appellant had received his promotion order vide letter dated 20.11.2006 for the rank of Naik, however, he was not entitled to promotion as in the meanwhile, disciplinary action was taken against him and punishment was awarded. Resultantly, he exceeded date of his superannuation and completed his term of service in the rank of Lance Naik. He was issued show cause notice dated 14.04.2007 on account of his red ink entry and was discharged from service. The extension was subject to the eligibility, selection and specific grant of sanction of competent authority. Appellant was not granted promotion owing to his ineligibility having been involved in disciplinary proceedings for claiming false CILQ and raising false allegation against his superior officer.
After hearing both the parties, learned Single Judge came to the conclusion that since the appellant himself had pleaded ''guilty'' before the Commanding Officer of the unit during the proceedings under Army Rule 22 and he also could not prove the charge of bribery against Subedar B. K. Das. It has been observed in the counter affidavit that the charge against appellant was read over to him and he was given to liberty to cross examine the witness but he declined to do so, thus, learned Single Judge did not accept the plea of the appellant that principles of natural justice had been violated, as he had himself pleaded guilty thus, compliance of Army Rule 180 became irrelevant. However, learned Single Judge accepted the plea of the appellant that respondent had illegally recovered the amount of ` 28562/- from him. It has been specifically observed by the learned Single Judge that it is not the case of the respondent that petitioner had shifted his entire family to Dehradun, he had shifted his son only for studies to Dehradun and there was nothing on record to show that the appellant/ petitioner had shifted his family to Dehradun and wrongly claimed ''CILQ'' for civil accommodation at Chennai. It has further been observed that from the record it is clear that Station Headquarter order dated 18.08.2004 was issued by Commanding Officer 3, VIKAS permitting the petitioner to live outside the unit line and drawing CILQ. Commanding Officer certified that conditions laid down for grant of CILQ in Rule of Pay and Allowances Regulations and Government of India, Ministry of Defence letter No. P4(i)74/D(Pay/Services) dated 08th July and 1(6)/Pay Services were fulfilled and appellant was entitled to draw CILQ at A1 city at Chennai. Learned Single Judge thus held that the order regarding recovery of ` 28562/- was patently illegal.
Since aggrieved appellant filed present appeal, however, respondents have not preferred any appeal against the finding of the learned Single Judge wherein it has been held that the appellant has not claimed any false CILQ warranting any punishment.
Learned Counsel for the appellant argued that learned Single Judge has not appreciated the fact that authorities by holding court of enquiry have totally ignored the principle of natural justice and have also violated the provisions of Rule 180 and 22 of the Army Rules. For reference Rule 22 and 180 of the Army Rules, 1954 are reproduced below:
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 employed 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 offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:
Provided that the commanding officer shall not dismiss a charge, which he is debarred, to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein.
(3) After compliance of Sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time-
(a) Dispose of the case u/s 80 in accordance with the manner and form in Appendix III; or
(b) Refer the case to the proper superior military authority; or
(c) Adjourn the case for the purpose of having the evidence reduced to writing; or
(d) If the accused is below the rank of warrant officer, order his trial by a summary court-martial:
Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court- martial or on active service a summary general court-martial for the trial of the alleged offender unless-
(a) The offence is one which he can try by a summary court-martial without any reference to that officer; or
(b) He considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.
(4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as well as the investigation of the original charge.
180 Procedure when character of a person subject to the Act is involved. -Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule.
After going through the documents on record, we find that Station Headquarter, Chennai had issued certificate after verifying the fact that the appellant''s wife was residing at Chennai and the civil accommodation was approved for CILQ vide letter dated 18.08.2004 on the request of the appellant. This fact was again verified by the Station Headquarter Chennai on 05.09.2006, which confirms that family of the appellant was residing at civil accommodation at Chennai at the given address and thus, there appears to be no illegal or false claim having been made by the appellant. As per Annexure 6, it is apparent that the court of enquiry was conducted to investigate under which circumstance appellant Lance Naik S. Sekar had levelled allegation against Subedar B. K. Das accepting bribe for publication of CILQ. (A bare reading of statement of Subedar B. K. Das against whom allegation was made, shows that in reply to a question a question put to Subedar B. K. Das, he has explained stated the procedure for publication of CILQ i.e. an individual has to produce the station order of the concerned city only then it can be published. It is not disputed that the appellant has not produced certificate of station headquarter, Chennai which was also verified and validated on 05.09.2006. There is nothing on record to prove or to show that family of the appellant had shifted from Chennai to Dehradun rather respondents have themselves admitted that appellant had shifted his son to Dehradun and admitted him in Kendriya Vidyalaya so that he could supervise him at Chakrata from Dehradun. Appellant categorically stated that he proceeded to meet his son on weekend. Since son of the appellant was in Dehradun it was quite natural and possible that he might be going to meet him on weekends. Thus, the charge that the appellant had claimed false CILQ is not proved at all. Similarly, the charge of making false allegation against Subedar B. K. Das is not proved from any cogent evidence on record. Simple denial by Subedar B. K. Das that he had not demanded any money for publication of CILQ would not prove the charge against the appellant. The charge is not proved. In reply to a question put to Subedar B. K. Das, he replied that he had told the appellant on 03.11.2006 that he could not produce the Station Order, appears to be baseless as authority certificate dated 05.09.2006 had already been produced by the appellant, however, the complaint was made by him when demand was persisted and insisted by Subedar B. K. Das. It is quite surprising that whistle-blower has been made to suffer because he made complaint against his superior with regard to demand of bribe. A perusal of Annexure 6 and Annexure 7 clearly show that no opportunity was given to the appellant to cross examine the witnesses nor copies of the statement of Subedar B. K. Das and other witnesses examined by the authorities were provided to him.
The plea that appellant himself pleaded ''guilty'' and declined to cross examine the witness is not at all proved on record, as documents relied by respondents that the appellant had pleaded ''guilty'' to the charge of making false allegation against Subedar B. K. Das and that he had denied to cross examine the witness, does not bear his signatures. It appears that enquiry officer himself entered the ''plea of guilty'' and that appellant has declined to cross examine the witness on their own in the printed performa.
Learned Counsel for the respondents argued that there is no provision that delinquent officer would be given opportunity to sign the above referred documents. This argument is totally devoid of merit. Rule 180 clearly provides that any person who is affected by any enquiry shall have full opportunity of being present through out the enquiry and producing any evidence, he may wish to produce and cross examine any witness whose evidence in his opinion affects his character in his defence. The Presiding Officer of the court of enquiry has to take steps to ensure that any such person so affected fully understands his right under this Rule. But there is nothing on record to show that the Presiding Officer had followed the Rule at all what to say in letter and spirit. Proceeding dated 19.12.2006 (Annexure 7) shows that appellant had signed below the note that calling and hearing of witnesses in terms of Army Rule 22 (1) had been dispensed with since provisions of Army Rule 180 have been complied with at the court of enquiry. However, in the column which is below this note wherein it is mentioned that whether accused cross examined the witness or declined to cross examine the witness, the word declined has been mentioned but it does not bear the signature of the appellant.
From the above it is clear that respondent authorities have committed grave violation of Rule 180 as well as sub rule (1) of Rule 22 of the Army Rules and totally ignored the principle of natural justice.
In view of the above discussion and facts referred to above, the appeal is liable to be allowed. The order dated 19.12.2006 passed by commander SFF Academy, 22 Establishment, is hereby quashed. Appellant is entitled to all the consequential benefits. Respondents are directed to grant all the consequential benefits to the appellant / petitioner forthwith.
Accordingly, the appeal is allowed and the findings recorded by the learned Single Judge, are set aside except the finding regarding refund of amount of Rs. 28,562/-.