Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14300/2006
NB SUBEDAR AHIBARAN SINGH ..... Petitioner
Through Mr. C.M. Khanna, Adv.
versus
UNION OF INDIA & ORS. ..... Respondent
Through Mr. Darpan Wadhwa, Adv.
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE S.L.BHAYANA
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported in Yes
the Digest?
O R D E R
% 27.08.2007
The Petitioner prays for the issuance of an appropriate writ
quashing the Order dated 25.7.2006 by which the Respondents had
decided to ignore the legal notice dated 27.4.2006 issued on his behalf.
The contention raised therein was that the Army Act, 1950 does not
postulate the holding of fresh proceedings/retrial especially where only
the punishment had been cancelled; that such proceedings would be
hit by the principles of res judicata. Perhaps what was intended to be
stated was that fresh proceedings would amount to double jeopardy.
The legal notice also states that the punishment of “Severe Displeasure
(recordable)” was prima facie illegal and without jurisdiction. In the
Writ Petition it has been prayed that the Order of Severe Displeasure
WP(C)14300/2006 Page 1 of 6
(recordable) dated 23.12.2005 should be quashed and that the
Petitioner should be granted all consequential benefits including
promotion to the rank of Subedar.
We have heard learned counsel for the Petitioner in great detail.
In this case the Petitioner had in the context of the Summary Trial
Proceedings by the Commanding Officer of the Petitioner been
“relieved of all consequences arising out of the Summary Trial” in
terms of the Orders dated 20.4.2004 of the Brigade Commander who
had cancelled the punishment of “Severe Reprimand” awarded on
11.10.2003. This was followed by letter dated 2.5.2004 informing the
Petitioner that he had been attached with 213 Rkt Regt. with effect
from 3.5.2004 and that disciplinary proceedings will be initiated
against him.
In Reply to Show Cause Notice No.2702/401 dated 9.10.2005
(Annexure P-8 to the Petition) the Petitioner has stated in writing that
“The act of indiscipline was on account of my monetary weakness for
which I will always regret and feel sorry. ..... This being my first
offence, I beg your pardon and request you to give one chance to
improve and come upto the expectation and prove my worth”.
The impugned Order dated 23.12.2005 passed subsequently is
reproduced below:-
CONFIDENTIAL
Case File No. :2702/401 Bde A/3
CENSURE ORDER OF GENERAL OFFICER
COMMANDING 16 CORPS TO BE CONVEYED TO JC-
WP(C)14300/2006 Page 2 of 6
263148X NAIB SUBEDAR (AIG) AHIBARAN SINGH OF
891 MEDIUM REGIMENT
1. I have considered the reply to the show cause notice
submitted by JC-263148X Nb Sub (AIG) Ahibaran Singh of
891 Med Regt vide his letter No 263148X/Pers dated 08 Nov
2005.
2. I find the JCO prima facie blameworthy, wherein he
ordered No 14367609N Havildar (DS) Roshan Lal to dispatch
one jerrican of petrol 87 MT to rear location Janglote with
No14376765K Naik (DMT) Lal Chand for his personal vehicle.
3. I, therefore, direct that my 'Severe Displeasure'
(Recordable) be conveyed to JC-263148X Nb Sub Ahibaran
Singh of 891 Medium Regiment.
Station : Field (Sudhir Sharma)
Dated : 23 Dec 05 Lt Gen
GOC
The first contention of learned counsel for the Petitioner is that
the imposition of the punishment of Censure amounts to being tried for
the same offence twice. The submission is ill-founded for the reason
that two proceedings are possible in respect of the same offence;
firstly, criminal proceedings and secondly administrative proceedings.
What has happened in the present case is that the criminal
proceedings, that is, Summary Trial Proceedings by the Commanding
Officer have been brought to an end on technical grounds despite the
fact that the Petitioner has admitted his guilt. We must appreciate that
despite the confession the Respondents have been objective enough to
WP(C)14300/2006 Page 3 of 6
look into the procedural and legal propriety of Summary Trial
Proceedings. Having found them not to be in order the punishment has
been set aside by the Brigade Commander, and in doing so the
Respondents have demonstrated a fairness which is expected of Armed
Forces. The distinction between the two proceedings appears to have
been lost on the Petitioner. Learned Counsel has sought to rely on the
decision in Chief of the Army Staff -vs- Major Dharam Pal Kukrety , AIR
1985 SC 703. Reliance has been placed on the enunciation of the law
by their Lordships to the effect that “if the finding of a Court-martial
even on revision is perverse or against the weight of evidence on
record and the finding is not confirmed a fresh trial by another Court-
martial is not permissible. ...” However, learned counsel has chosen to
gloss over the remaining part of the Judgment which clarifies that
“there is no provision in the Army Act or in Rule 14 or any of the other
rules of the Army Rules which prohibits the Central Government or the
Chief of the Army Staff from resorting in such a case to Rule 14. ..... In
such circumstances, to order a fresh trial by a Court-martial could
certainly be said to be both inexpedient and impracticable and the only
expedient and practicable course, therefore, open to the Chief of the
Army Staff would be to take action against the Respondent under Rule
14, which he did. The action of the Chief of the Army Staff in issuing
the impugned notice was, therefore, neither without jurisdiction nor
unwarranted in law”. This case, in fact, supports the action taken by
the Respondents.
WP(C)14300/2006 Page 4 of 6
Learned counsel for the Respondents has rightly drawn our
attention to the Judgment of a Single Bench of this Court in R.K.
Gogna -vs- Union of India, 2001(60) DRJ 505 where Kukrety was
applied. We affirm the findings in Gogna to the effect that, as held by
the Supreme Court in Brig. J.S. Sivia's case, the scheme of the Army
Act, Rules and Regulations is that the Award of Censure is a part of the
Army Customs enjoying binding force. Administrative action predicated
on Army Rule 14 is permissible where the Court-martial is
inconclusively decided on technical grounds. It will be also worthwhile
to reiterate that the Petitioner has, in fact, pleaded guilty to the
offence for which he was charged, and that nevertheless the
punishment of Severe Reprimand awarded by the Summary Trial
Proceedings was set aside for technical reasons. By letter dated
27.6.2005 the Deputy Judge Advocate General has reported as follows:-
3. In view, however, of a serious offence/impropriety having
been committed by the JCO and his summary trial having
been cancelled by the superior auth on technical grounds, it
may be appropriate to take suitable adm action against him in
terms of Army HQ letter No 32906/AG/DV-I(P) dated 16 Oct
2000.
The second argument of learned counsel for the Petitioner is
that a decision had already been taken to promote the Petitioner on
10.10.2005 (wrongly mentioned as 1.10.2005). It has been pleaded that
the Departmental Promotion Board for the year 2006 was held on
8-9.9.2005 and the promotion of the Petitioner was ordered vide Order
WP(C)14300/2006 Page 5 of 6
dated 10.10.2005. However, on the previous day, that is, 9.10.2005,
the Show Cause Notice had already been issued to the Petitioner.
Reliance on paragraph 23 of the AHQ Policy letter dated 16.10.2000 is,
therefore, of no avail to the Petitioner. The Promotion Orders dated
10.10.2005 would be subject to the outcome of proceedings already put
into motion by the Show Cause Notice dated 9.10.2005. In the event,
the Petitioner was punished with the impugned Censure, on the
administrative side.
It is evident that confusion has been created because the
Summary Trial Proceedings as well as the Administrative proceedings
have awarded a Severe Reprimand (Recordable). Merely because the
Trial have been set aside does not detract from the power of the
Respondents to impose appropriate punishment in exercise of their
administrative powers. Since the Show Cause Notice had already been
issued at the time when the Promotion Orders had been passed, the
latter would indubitably be subject to the former.
We, therefore, find no merit in the Petition. Dismissed.
VIKRAMAJIT SEN, J
S.L.BHAYANA, J
AUGUST 27, 2007
tp
WP(C)14300/2006 Page 6 of 6
+ W.P.(C) 14300/2006
NB SUBEDAR AHIBARAN SINGH ..... Petitioner
Through Mr. C.M. Khanna, Adv.
versus
UNION OF INDIA & ORS. ..... Respondent
Through Mr. Darpan Wadhwa, Adv.
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE S.L.BHAYANA
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported in Yes
the Digest?
O R D E R
% 27.08.2007
The Petitioner prays for the issuance of an appropriate writ
quashing the Order dated 25.7.2006 by which the Respondents had
decided to ignore the legal notice dated 27.4.2006 issued on his behalf.
The contention raised therein was that the Army Act, 1950 does not
postulate the holding of fresh proceedings/retrial especially where only
the punishment had been cancelled; that such proceedings would be
hit by the principles of res judicata. Perhaps what was intended to be
stated was that fresh proceedings would amount to double jeopardy.
The legal notice also states that the punishment of “Severe Displeasure
(recordable)” was prima facie illegal and without jurisdiction. In the
Writ Petition it has been prayed that the Order of Severe Displeasure
WP(C)14300/2006 Page 1 of 6
(recordable) dated 23.12.2005 should be quashed and that the
Petitioner should be granted all consequential benefits including
promotion to the rank of Subedar.
We have heard learned counsel for the Petitioner in great detail.
In this case the Petitioner had in the context of the Summary Trial
Proceedings by the Commanding Officer of the Petitioner been
“relieved of all consequences arising out of the Summary Trial” in
terms of the Orders dated 20.4.2004 of the Brigade Commander who
had cancelled the punishment of “Severe Reprimand” awarded on
11.10.2003. This was followed by letter dated 2.5.2004 informing the
Petitioner that he had been attached with 213 Rkt Regt. with effect
from 3.5.2004 and that disciplinary proceedings will be initiated
against him.
In Reply to Show Cause Notice No.2702/401 dated 9.10.2005
(Annexure P-8 to the Petition) the Petitioner has stated in writing that
“The act of indiscipline was on account of my monetary weakness for
which I will always regret and feel sorry. ..... This being my first
offence, I beg your pardon and request you to give one chance to
improve and come upto the expectation and prove my worth”.
The impugned Order dated 23.12.2005 passed subsequently is
reproduced below:-
CONFIDENTIAL
Case File No. :2702/401 Bde A/3
CENSURE ORDER OF GENERAL OFFICER
COMMANDING 16 CORPS TO BE CONVEYED TO JC-
WP(C)14300/2006 Page 2 of 6
263148X NAIB SUBEDAR (AIG) AHIBARAN SINGH OF
891 MEDIUM REGIMENT
1. I have considered the reply to the show cause notice
submitted by JC-263148X Nb Sub (AIG) Ahibaran Singh of
891 Med Regt vide his letter No 263148X/Pers dated 08 Nov
2005.
2. I find the JCO prima facie blameworthy, wherein he
ordered No 14367609N Havildar (DS) Roshan Lal to dispatch
one jerrican of petrol 87 MT to rear location Janglote with
No14376765K Naik (DMT) Lal Chand for his personal vehicle.
3. I, therefore, direct that my 'Severe Displeasure'
(Recordable) be conveyed to JC-263148X Nb Sub Ahibaran
Singh of 891 Medium Regiment.
Station : Field (Sudhir Sharma)
Dated : 23 Dec 05 Lt Gen
GOC
The first contention of learned counsel for the Petitioner is that
the imposition of the punishment of Censure amounts to being tried for
the same offence twice. The submission is ill-founded for the reason
that two proceedings are possible in respect of the same offence;
firstly, criminal proceedings and secondly administrative proceedings.
What has happened in the present case is that the criminal
proceedings, that is, Summary Trial Proceedings by the Commanding
Officer have been brought to an end on technical grounds despite the
fact that the Petitioner has admitted his guilt. We must appreciate that
despite the confession the Respondents have been objective enough to
WP(C)14300/2006 Page 3 of 6
look into the procedural and legal propriety of Summary Trial
Proceedings. Having found them not to be in order the punishment has
been set aside by the Brigade Commander, and in doing so the
Respondents have demonstrated a fairness which is expected of Armed
Forces. The distinction between the two proceedings appears to have
been lost on the Petitioner. Learned Counsel has sought to rely on the
decision in Chief of the Army Staff -vs- Major Dharam Pal Kukrety , AIR
1985 SC 703. Reliance has been placed on the enunciation of the law
by their Lordships to the effect that “if the finding of a Court-martial
even on revision is perverse or against the weight of evidence on
record and the finding is not confirmed a fresh trial by another Court-
martial is not permissible. ...” However, learned counsel has chosen to
gloss over the remaining part of the Judgment which clarifies that
“there is no provision in the Army Act or in Rule 14 or any of the other
rules of the Army Rules which prohibits the Central Government or the
Chief of the Army Staff from resorting in such a case to Rule 14. ..... In
such circumstances, to order a fresh trial by a Court-martial could
certainly be said to be both inexpedient and impracticable and the only
expedient and practicable course, therefore, open to the Chief of the
Army Staff would be to take action against the Respondent under Rule
14, which he did. The action of the Chief of the Army Staff in issuing
the impugned notice was, therefore, neither without jurisdiction nor
unwarranted in law”. This case, in fact, supports the action taken by
the Respondents.
WP(C)14300/2006 Page 4 of 6
Learned counsel for the Respondents has rightly drawn our
attention to the Judgment of a Single Bench of this Court in R.K.
Gogna -vs- Union of India, 2001(60) DRJ 505 where Kukrety was
applied. We affirm the findings in Gogna to the effect that, as held by
the Supreme Court in Brig. J.S. Sivia's case, the scheme of the Army
Act, Rules and Regulations is that the Award of Censure is a part of the
Army Customs enjoying binding force. Administrative action predicated
on Army Rule 14 is permissible where the Court-martial is
inconclusively decided on technical grounds. It will be also worthwhile
to reiterate that the Petitioner has, in fact, pleaded guilty to the
offence for which he was charged, and that nevertheless the
punishment of Severe Reprimand awarded by the Summary Trial
Proceedings was set aside for technical reasons. By letter dated
27.6.2005 the Deputy Judge Advocate General has reported as follows:-
3. In view, however, of a serious offence/impropriety having
been committed by the JCO and his summary trial having
been cancelled by the superior auth on technical grounds, it
may be appropriate to take suitable adm action against him in
terms of Army HQ letter No 32906/AG/DV-I(P) dated 16 Oct
2000.
The second argument of learned counsel for the Petitioner is
that a decision had already been taken to promote the Petitioner on
10.10.2005 (wrongly mentioned as 1.10.2005). It has been pleaded that
the Departmental Promotion Board for the year 2006 was held on
8-9.9.2005 and the promotion of the Petitioner was ordered vide Order
WP(C)14300/2006 Page 5 of 6
dated 10.10.2005. However, on the previous day, that is, 9.10.2005,
the Show Cause Notice had already been issued to the Petitioner.
Reliance on paragraph 23 of the AHQ Policy letter dated 16.10.2000 is,
therefore, of no avail to the Petitioner. The Promotion Orders dated
10.10.2005 would be subject to the outcome of proceedings already put
into motion by the Show Cause Notice dated 9.10.2005. In the event,
the Petitioner was punished with the impugned Censure, on the
administrative side.
It is evident that confusion has been created because the
Summary Trial Proceedings as well as the Administrative proceedings
have awarded a Severe Reprimand (Recordable). Merely because the
Trial have been set aside does not detract from the power of the
Respondents to impose appropriate punishment in exercise of their
administrative powers. Since the Show Cause Notice had already been
issued at the time when the Promotion Orders had been passed, the
latter would indubitably be subject to the former.
We, therefore, find no merit in the Petition. Dismissed.
VIKRAMAJIT SEN, J
S.L.BHAYANA, J
AUGUST 27, 2007
tp
WP(C)14300/2006 Page 6 of 6