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Judgment
D.N. Baruah, J.—In this Civil Rule the Petitioner has challenged Annexure-19 Charge-Sheet dated 7.11.94 issued by the 5th Respondent and the action and instructions given by Respondent Nos. 3 and 4 of getting summary of evidence recorded and getting the same recorded by cancelling the earlier summary of evidence recorded on 4.7.95 to 13.8.95 and also prayed for issuance of an appropriate writ or direction.
The case of the Petitioner is that he was commissioned in 7th Battalion Rajputana Rifles (Infantry) in November, 1971. Thereafter, he took active part in Indo-Pak War in December, 1971. Because of his distinguished services, devotion and dedication to duties he was awarded medals. In February, 1992 the Petitioner was promoted to the rank of Lt. Col. Selection Grade and posted to 222 ABOD. The Petitioner contends that in the early part of 1993 that is, from January to April, the 4th Respondent wanted to get registered some Delhi based dealers of his choice with 222 ABOD; but the Petitioner and the then Commandant Col. V.A. Sastry did not agree to that. Thereafter in the month of August, 1993 the 2nd Respondent came to 222 ABOD on leave and stayed in Officers'' Mess. On 17.9.93 the 2nd Respondent shifted from Officers'' Mess. Thereafter he took over the command of 222 ABOD from Col. V.A. Sastry. In the month of September, 1993 handing over/taking over of charge was complete. The 2nd Respondent thus became the Commandant of die said 222 ABOD. The Petitioner was attached under Para 93 of the Regulations by the 2nd and 3rd Respondents to Station Headquarters, Guwahati till 21.5.94. On 22.5.94 the Petitioner was brought back to his place of posting, that is, 222 ABOD for one day. Again on the next day the Petitioner was attached to Station Headquarters, Guwahati under Para-93 of the Defence Service Regulations (for short, ''the Regulations'') till 11.9.94. Again in September, 1994 the Petitioner was brought back to 222 ABOD for one day. On the next day the Petitioner was attached on the Disciplinary Grounds to 658 Engineer Bridge Company (Type B) near Borjhar Airport. In October, 1994 the Petitioner was admitted to 151 Base Hospital for medical treatment as he met with an accident and he remained there for about ten days. Thereafter he was shifted on attachment to 313 Coy ASC (Supply) Type ''F'', In November, 1994 the Petitioner submitted a letter praying for removal of the 2nd Respondent from 222 ABOD to avoid manipulation and tempering of important documents by him. Charge-sheet was submitted against the Petitioner levelling charges relating to lack of supervision and control in the matter of disposal of stores. The charge-sheet was issued and served on the Petitioner on 7.11.94. Petitioner pleaded not guilty. Thereafter Petitioner was posted out of the Advance Base Ordinance Depot under Regulation 93 of the Regulations. Summary of evidence under Rule 23 commenced on and from 29.11.94. At that time the Commanding Officer of the Petitioner was Col. D.K. Kapoor and Maj. N.S. Singh was the Recording Officer. Recording of evidence was closed on 20.3.95. Thereafter in the months of July and August additional summary of evidence was recorded. Meanwhile, Col. D.K. Kapoor was transferred and Lt. Col. S.C. Sethi became the Commanding Officer of the Unit to which the Petitioner was attached. Lt. Col. S.S. Sethi submitted a detailed recommendation on 10.5.95 based on summary of evidence recorded in support of the charges. He on the basis of the summary of evidence came to the conclusion that the charges were not tenable and recommended the same to be dropped. This, according to the Petitioner, was done in exercise of his power by Lt. Col. S.C. Sethi as the Commanding Officer under Rule 24(1)(c) and, as such, it amounted to dismissal of the charges. The further case of the Petitioner is that under the Army Act and the Rules, the Respondents had no authority to proceed with the matter afresh after the dismissal of the charges. But the Respondents brought him back to H.Q. 51 Sub Area under Respondent No. 3 for further recording of summary of evidence. Meanwhile the Petitioner was due for promotion to the rank of Colonel and the medical authorities recommended him for such promotion. Though the Respondent No. 3 was required to submit the recommendation of the Initiating Officer and the Reviewing Officer along with medical documents to the M.S. Branch, Delhi for consideration of the case of the Petitioner by No. 3 Special Medical Board, he unreasonably delayed sending of documents. Petitioner was thus illegally denied his right to be considered for promotion. Hence the present petition.
Heard both sides.
Mr. A. Roy, learned Counsel appearing on behalf of the Petitioner submitted that Lt. Col. S.S. Sethi, the Commanding Officer within the meaning of Rules 22, 23 and 24 of the Army Rules, 1954 dismissed the charge against the Petitioner on the basis of the summary of evidence and other materials on record. Therefore, the Respondents had no authority to proceed further in the matter and the Petitioner was entitled to be exonerated of the charges by dropping the proceeding. Learned Counsel further submitted that Rules 22, 23 and 24 of the Army Rules formed a complete scheme for investigation of charges prior to the Court Martial and when the Commanding Officer in exercise of his power under Rule 24(1)(c) had dismissed the charges, there was no further scope to record additional summary of evidence and the proceeding had to be closed by exonerating the Petitioner. According to the learned Counsel there was no provision in the Act and the Rules authorising the Army authorities to proceed with the investigation of charges after the Commanding Officer had dismissed the charges either under Rule 22 or 24. Any action on the part of the Army authorities to proceed further in the matter, would be without any authority of law and thus illegal and without jurisdiction. According to the learned Counsel, the instant case was not one under Rule 24(1)(b) inasmuch as such a course was open only when the Commanding Officer was of the opinion that the charges deserved to be proceeded with and not other-wise. In the instant ease, the learned Counsel emphasised that the Commanding Officer, on consideration of evidence, had clearly held that the charges were not tenable and accordingly he had recommended for dropping of the same. The learned Counsel further submitted that though the Commanding Officer had not recorded specifically that he had dismissed the charges, but reading of the order clearly indicates that it was a case of dismissal. The learned Counsel also submitted that. Rules 22, 23 and 24 providing the scheme of investigation into charges were statutory Rules relating to remedy and procedure, and, therefore, those should receive a liberal construction in order to promote justice, The intention of the Legislature, according to him, was clear and, therefore, even if the Commanding Officer did not dismiss the charges by clearly mentioning the same, his recommendation would only mean that it was a case of dismissal, Rules 22, 23 and 24 having specifically provided die procedure for investigation into the charges at the pre Court Martial stage, the authorities were bound to follow the said procedure strictly and any departure therefrom would invalidate the entire proceeding.
Mr. K.N. Choudhury, learned Senior Central Government Standing counsel, on the other hand, supported the action of the Respondents. While making his submission Mr. Choudhury totally refuted the claim of the Petitioner. According to him, proceedings under Army Rules 22 to 24 were only a preliminary inquiry and it was meant for the purpose of satisfaction of the Commanding Officer as to the existence of prima facie case against the Petitioner. The evidence gathered in the said preliminary inquiry was required only for the satisfaction of the competent authority to see whether the evidence so recorded justified a trial by Court Martial or not. At the trial stage it could be used for corroboration/contradiction in accordance with the provisions of the Evidence Act. The learned Counsel further submitted that Lt. Col. S.S. Sethi had submitted his recommendation for dropping of charges under Army Rule 24(i)(b) to Brig. A.K. Vasudev after perusal of summary of evidence. Neither he had re-heard nor dismissed the charges but merely recommended that the charges be dropped and, therefore, his recommendation fell within the purview of Army Rule 24(i)(b) Brig. Vasudev - 3rd Respondent who was superior to Lt. Col. S.S. Sethi - 5th Respondent had not ordered cancellation of the additional summary of evidence and other proceedings as had been recommended by Lt. Col. S.S. Sethi merely because he had recommended dropping of the charges. The said proceedings had been cancelled on account of the fact that Lt. Col. Sethi was junior to the Petitioner. Lt. Col. S.S. Sethi who took over charge from Col. D.K. Kapoor as Commanding Officer was junior in service to the Petitioner. As per the norms of service a junior officer could not exercise command over an officer superior to him. For the said reason action initiated by Lt. Col. S.S. Sethi was without jurisdiction and void ab initio. In fact such action initiated by Lt. Col, S.S. Sethi along with his recommendation was non est. Had that proceeding been allowed to remain, the entire proceeding would have been vitiated for lack of jurisdiction and only because of this the proceeding conducted by Lt. Col. Sethi had been cancelled and the additional summary of evidence was initiated afresh on the orders of Col. S.P. Khanna, the new Commanding Officer to correct the illegality in the procedure. For initiation of a disciplinary proceeding, according to the learned Counsel, presence of Commanding Officer was sine qua non and he should also be superior to the person against whom a disciplinary proceeding had been initiated. The learned Counsel further submitted that Rule 53 of the Army Rules dealt with the constitutional provision of the "double jeopardy". The said Rule also provided that a plea in bar of trial could be raised on the ground that a charge in respect of the offence had been dismissed as per Army Rule 22(2). According to the learned Counsel, only dismissal of charge by the Commanding Officer even at the stage of Army Rule 24 had to be resorted under the provisions of Army Rule 22(2). The Petitioner had neither suffered any injuries nor any prejudice was caused to him for recording additional summary of evidence afresh on the order of the new Commanding Officer. The proceeding and the recommendation having teen cancelled on the ground of lack of jurisdiction, there should be no bar in the trial by a Court Martial where the Petitioner would have all the procedural safeguards to defend himself in accordance with law.
On the rival contentions of the parties it is to be seen whether the authorities had jurisdiction to cancel the proceeding conducted under Rules 22 to 24 by Lt. Col. S.S. Sethi and to order for fresh enquiry.
Rule 22 to 24 of the Army Rules envisage recording of evidence by the Commanding Officer to find out whether prima facie case exists to go into trial. These Rules aim that each and every case should not go for trial. By way of preliminary examination the evidence is to be recorded and, thereafter, the Commanding Officer has to examine the same to see whether there exists a case to go into trial. If the Commanding Officer is of the opinion that no useful purpose would be served by sending the case for trial, the case would be dropped, but if after going through evidence the Commanding Officer finds that there arc materials to frame charge and to go into trial, only then the Commanding Officer takes steps for trial.
Therefore, the aforesaid Rules envisage that no unnecessary matter should be sent for trial. This is to save an officer from facing unnecessary trial. Recording of evidence in preliminary examination can in no way be equated with regular trial.
In the present case, one Commanding Officer after recording the evidence found that there was no material for sending the case for trial. But that does not mean that the next officer will have no power to take up evidence afresh and consider the same. Besides, in the present case the earlier Commanding Officer was junior to the Petitioner and, therefore, it was not proper on his part to initiate a proceeding or drop it. Considering all this if the next Commanding Officer decides to record evidence afresh, I find that no illegality had been committed.
Under the Rules, in my opinion, recording of evidence afresh will not amount to double jeopardy. In the present case the trial has not yet commenced. In view of the above, I find no merit in the petition. Accordingly, the petition is dismissed. However, recording of evidence and initiation of proceeding thereafter are to be done within a time bound period as per Rules. Because of the stay order granted by this Court the authorities could not take up the matter. Therefore, the authorities are directed to lake up the matter and complete die same within a period of two months from the date of receipt of this judgment.
In the facts and circumstances of the case I make no order as to costs.