U.O.I. and Ors. Vs. Rajbir Singh Khanna and Anr.
EmailAppeal: Civil Appeal No. 4450 of 1997
With
Civil Appeal No. 5665 of 2001
(Arising out of SLP (C) No. 15370/1997)
(From the Judgment and Order dated 25.3.97 of the Jammu and Kashmir High Court in L.P.A. (S.W.P.) No. 62 of 1994)
With
Civil Appeal No. 5665 of 2001
(Arising out of SLP (C) No. 15370/1997)
(From the Judgment and Order dated 25.3.97 of the Jammu and Kashmir High Court in L.P.A. (S.W.P.) No. 62 of 1994)
Petitioner: U.O.I. and Ors.
Respondent: Rajbir Singh Khanna and Anr.
Apeal: Civil Appeal No. 4450 of 1997
With
Civil Appeal No. 5665 of 2001
(Arising out of SLP (C) No. 15370/1997)
(From the Judgment and Order dated 25.3.97 of the Jammu and Kashmir High Court in L.P.A. (S.W.P.) No. 62 of 1994)
With
Civil Appeal No. 5665 of 2001
(Arising out of SLP (C) No. 15370/1997)
(From the Judgment and Order dated 25.3.97 of the Jammu and Kashmir High Court in L.P.A. (S.W.P.) No. 62 of 1994)
Judges: S. RAJENDRA BABU & R.C. LAHOTI, JJ.
Date of Judgment: Aug 24, 2001
Appearances:
Mr. Mukul Rohtagi, Additional Solicitor General, Mr. Ajay Sharma, Mr. C. Radhakrishna, Ms. Anil Katiyar, Mr. A.K. Srivastava, Mr. B.K.Prasad, Advocates with him for the Appellants.
Mr. Gopal Subramanium, Senior Advocate, Mr. Monica Arora, Ms. Indu Malhotra, Mr. Raj Shekhar Rao, Mr. Shyel Trehan, Advocates with him for the Respondents.
Head Note:
SERVICE LAWS
Army Act, 1950
Section 122 – Interpretation – Ratio in UOI v. Harjeet Singh – Court of Inquiry ordered – In 1991 writ filed – Interim orders passed restraining further orders, not to deprive the petitioner of promotion and no further action – Objection filed – Orders not vacated – High Court informed that due to drop in performance, he cannot be promoted, but High Court insisting for implementation of interim orders – LPA dismissed – Direction to promote carried out under threat of contempt and before admission of SLP – Disci-plinary proceedings allowed by Supreme Court – Leave granted to approach High Court to frame charges, which become time barred due to Court proceedings – Original petition allowed on 31.12.93 – Court martial proceedings quashed being barred by time irres-pective of interdict of Court orders – If justified. Held that High Court was not right in taking the said view and to quash the proceedings.
Held:
The position of law insofar as the interpretation of Section 122 of the Army Act, 1950 is concerned stands resolved and settled by a three Judge Bench decision of his Court in Union of India & Ors. v. Harjeet Singh Sandhu (JT 2001 (4) SC 597) wherein it has been held that the delinquent officer having himself created a situa-tion withholding commencement of trial he could be estopped from pleading the bar of limitation and the trial commenced on vacat-ing of the judicial order of restraint on court martial shall be a valid trial, relying on the principles that no man can take advantage of his own wrong. It has also been held that in spite of court martial proceedings having gone barred by time a disci-plinary action based on the same set of acts and the same miscon-duct which formed subject matter of charge before the court martial is not excluded. (Para 8)
Ed: Since the writ petitioner/respondent no. 1 stood retired on 31.8.96, directions issued to give quietus to litigation. (See Para 10)
Cases Reffered:
1. Union of India & Ors. v. Harjeet Singh Sandhu (JT 2001 (4) SC 597) (Para 8)
JUDGEMENT:
R.C. LAHOTI, J.
1. Leave granted in SLP (C) No. 15370/1997.
2. Rajbir Singh Khanna, respondent no. 1 was commissioned in the Indian Army on 8.2.1964. In June 1989, when he was holding the rank of Colonel, he was posted as Deputy Commandant of 61 Infan-try Brigade deployed in Sri Lanka. At that time Brigade Commander was Brigadier Jaspal Singh, respondent no. 2. On 22.1.1990, 7.2.1990 and 9.2.1990 respectively three Courts of Inquiries were ordered to investigate certain financial irregularities in the sale of VCPs belonging to HQ 61 Infantry Brigade and movement of 5 other ranks of HQ 61 Infantry on temporary duties from opera-tional area to Jammu, the home place of respondent no. 1. The irregularities were noticed by Brigadier Jaspal Singh. On 6.2.1990 Brigadier Jaspal Singh also issued warning letter to respondent no. 1 putting him on adverse report under paras 80 and 81 of Special Army Order 3/S/89. Though the respondent no. 1 replied to the warning letter dated 6.2.1990, Brigadier Jaspal Singh was not convinced and directed staff Court of Inquiry to be held for ascertaining the facts. On 14.3.1990 Brigadier Jaspal Singh endorsed an adverse report on the respondent no. 1 which stated inter alia – “there have been aberrations in his mandatory character qualities of integrity and moral courage which make his utility to the service doubtful. He has been found wanting in discipline towards managing personal finances and was thus embar-rassed in this context. I do not recommend this officer for further promotion and would advise upon his change of appoint-ment.” The respondent no. 1 was due for promotion as Brigadier but the aforesaid adverse report was construed as drop in his performance and as his promotion was subject to continued satis-factory performance he was not physically promoted to the rank of Brigadier.On 23.2.1990 he was approved for promotion to the acting rank of Brigadier in the General Cadre.
3. A fourth Court of Inquiry was also ordered against the re-spondent no. 1 to investigate into certain allegations, such as, (a) misuse of regimental fund, (b) misuse of regimental money, (c) issuing cheques which bounced, (d) over-drafting of Sri Lankan currency where the respondent no. 1 was deployed, (e) sending Jawans on temporary duty to his home station at Jammu, and (f) making false declaration in his record of service. Based on the findings of the fourth Court of Inquiry, on 11.7.1990 disciplinary action was directed to be initiated against respond-ent no.1 and he was attached with the office of the Chief En-gineer, Calcutta Zone so that the disciplinary action could proceed against him as per the rules.
4. Early in 1991 respondent no. 1 filed a writ petition in the High Court of Jammu and Kashmir seeking quashing of all proceed-ings initiated against him as also a direction to the army au-thorities to promote him to the rank of Brigadier with effect from 23.2.1990, the date on which he was intimated of his having been approved for the rank of acting Brigadier. On 17.12.1991 a learned Single Judge, while directing rule nisi to issue, also made an interim order restraining any further action against the respondent no. 1 on the basis of proceedings already held and not to deprive the respondent no. 1 of promotion to the rank of Brigadier in case he has been held to be entitled for it. This interim order was continued by the High Court vide order dated 9.3.1992 to remain in operation in spite of objections filed on behalf of the appellants and the High Court having been informed by the appellants that because of drop in performance the respondent no. 1 could not be promoted. Thereafter again, on behalf of the appellants, an application was filed before the High Court seeking vacation of the interim order dated 17.12.1991 so that the army authorities could proceed with the court martial but the learned Single Judge declined to vacate the interim order on the ground that the prayer could not be entertained until the interim order dated 17.12.1991 was first implemented, that is, the re-spondent no. 1 was promoted. The appellants unsuccessfully filed LPA against the order of learned Single Judge and then came up to this Court by filing a SLP putting in issue the interim orders of the learned Single Judge as also the order of Division Bench dismissing the LPA.
5. On 29.6.1992 and 28.9.1992 the High Court had directed its order dated 17.12.1991 to “be implemented in letter and spirit” without regard to alleged drop in performance of respondent no. 1. The respondent no. 1 had to be promoted by the appellants and given acting rank of Brigadier under threat of contempt proceed-ings. Such promotion had taken place after the filing of the SLP and before it could be listed for hearing. On 25.11.1992 this Court disposed of the SLP directing the disciplinary proceedings against the respondent no. 1 to be proceeded ahead. This Court also noted that the respondent no. 1 was already promoted. Liber-ty was allowed to the appellants to approach the High Court seeking its leave for the framing of the charges which were alleged to have become barred by time on account of court pro-ceedings.
6. On 31.12.1993 a learned Single Judge of the High Court allowed the writ petition filed by the respondent no. 1. Proceedings of all the four Courts of Inquiry were adjudged to be illegal. The respondent (sic appellant ) no. 1 was directed to consider the respondent no. 1 for promotion to the rank of Brigadier along with the consequen-tial benefits attaching with such promotion. The court martial proceedings were directed to be quashed as being barred by time under Section 122 of the Army Act overruling the plea of the appellants that the delay in court martial proceedings was at-tributable to the interim orders passed by the High Court. In the opinion of the High Court even if the delay was attributable to the interim orders of the High Court that did not make any dif-ference to the applicability of Section 122 of the Army Act.
7. The appellants filed Letters Patent Appeal. By an interim order dated 3.3.1994 the Division Bench gave liberty to the appellants to proceed with the court martial but directed no final order to be passed therein. On 21.4.1994 general court martial proceedings commenced and were concluded on 10.8.1994. The GCM found the respondent no. 1 guilty of 9 charges framed against him. The respondent no. 1 was sentenced to rigorous imprisonment for one year, to be cashiered from service and 15 years past service to be forfeited for the purpose of pension. The findings recorded by the GCM and the sentence passed on respondent no. 1 could not be confirmed in view of the order of the Division Bench dated 3.3.1994. Under Section 153 of the Army Act the finding and sentence of the court martial are not valid unless confirmed. After hearing both the parties, vide the judg-ment dated 25.3.1997 the Division Bench dismissed the LPA with a slight modification. Briefly stated the Division Bench held that the first and the second Court of Inquiry were conducted behind the back of the respondent and therefore stood vitiated in view of Rule 180 of the Army Rules. It was also held that the first three Courts of Inquiry were presided over by an officer of the rank of Lieutenant Colonel and Major and the respondent no. 1 could not be made to appear before an officer lower in rank in view of Regulation 518 of the Defence Services Regulations. However, the fourth Court of Inquiry was held to be valid. Nevertheless, the adverse report recording drop in performance of the respond-ent no. 1 which was based on the first three Courts of Inquiry was also held liable to be set aside. The Division Bench agreed with the learned Single Judge in holding that the court martial proceedings were barred by time under Section 122 of the Army Act and it was immaterial if the court martial proceedings were interdicted by a judicial order.
8. The Union of India has come up in appeal by special leave.We have heard the learned Counsel for the parties at length. The position of law insofar as the interpretation of Section 122 of the Army Act, 1950 is concerned stands resolved and settled by a three Judge Bench decision of this Court in Union of India & Ors. v. Harjeet Singh Sandhu (JT 2001 (4) SC 597 = 2001 (5) SCC 593) wherein it has been held that the delinquent officer having himself created a situa-tion withholding commencement of trial he would be estopped from pleading the bar of limitation and the trial commenced on vacat-ing of the judicial order of restraint on court martial shall be a valid trial, relying on the principles that no man can take advantage of his own wrong. It has also been held that in spite of court martial proceedings having gone barred by time a disci-plinary action based on the same set of facts and the same miscon-duct which formed subject matter of charge before the court martial is not excluded. The Division Bench and the learned Single Judge of the High Court were therefore not right in taking the view which they did for the purpose of quashing the court martial proceedings.
9. It is also brought to our notice that certain contempt of court proceedings were initiated at the instance of the respond-ent no. 1 complaining of the appellants having violated the interim orders of the Court.
10. This case has a chequered history. For the third time this matter has travelled upto this Court. Admittedly, the respondent no.1 has retired with effect from 31.8.1996. Upto the time when in the year 1989 the respondent no. 1 came to be posted in Sri Lanka he had a brilliant service record. We have carefully looked into the allegations levelled against the respondent no. 1 form-ing subject matter of several courts of inquiry proceedings out of which 3 have been held to be invalid while one has been held to be valid. The allegation levelled against the respondent no. 1 were not only denied but also defended by alleging mala fides on the part of Brigadier Jaspal Singh, who according to respondent no. 1 was guilty of financial irregularities himself and was interested in blocking the respondent no. 1, lest the respondent no.1,on being promoted, should initiate proceedings against him. Keeping in view the totality of the circumstances of the case, the nature of allegations and counter allegations, the chequered history of multiple litigation and the fact that the respondent no. 1 has stood retired from the service we do not deem it proper to revive several legal proceedings pending against each other and in our opinion it will meet the ends of justice if this multi-pronged legal battle and the court proceedings are given a quie-tus so that the respondent no. 1 can also live a peaceful life as a civilian while the appellants may feel happy with their rela-tionship with the respondent no. 1 having been severed with effect from 31.8.1996 whatever might have been the appellants, earlier view of the respondent’s conduct. While hearing the learned Counsel for the parties additionally in the light of the law settled by this Court in the case of Harjeet Singh Sandhu (supra) we put across the suggestion to the learned Counsel for both the parties and heard them thereon. in our opinion the following directions would, in the facts and circumstances of this case, meet the ends of justice:
1) The general court martial proceedings initiated against the respondent no. 1 shall stand dropped at the stage at which they are;
2) The respondent no.1 shall be deemed to have retired from the appellant’s service with effect from 31.8.1996 in the rank of acting Brigadier. His retiral benefits shall be settled and released, if not already done;
3) All other proceedings initiated by the appellants against the respondent no. 1 or by the respondent no. 1 against the appell-ants or any of their officers, including the contempt of court proceedings shall also stand terminated at the stage at which they may be.
11. The appeals stand disposed of accordingly. No order as to the costs.
1. Leave granted in SLP (C) No. 15370/1997.
2. Rajbir Singh Khanna, respondent no. 1 was commissioned in the Indian Army on 8.2.1964. In June 1989, when he was holding the rank of Colonel, he was posted as Deputy Commandant of 61 Infan-try Brigade deployed in Sri Lanka. At that time Brigade Commander was Brigadier Jaspal Singh, respondent no. 2. On 22.1.1990, 7.2.1990 and 9.2.1990 respectively three Courts of Inquiries were ordered to investigate certain financial irregularities in the sale of VCPs belonging to HQ 61 Infantry Brigade and movement of 5 other ranks of HQ 61 Infantry on temporary duties from opera-tional area to Jammu, the home place of respondent no. 1. The irregularities were noticed by Brigadier Jaspal Singh. On 6.2.1990 Brigadier Jaspal Singh also issued warning letter to respondent no. 1 putting him on adverse report under paras 80 and 81 of Special Army Order 3/S/89. Though the respondent no. 1 replied to the warning letter dated 6.2.1990, Brigadier Jaspal Singh was not convinced and directed staff Court of Inquiry to be held for ascertaining the facts. On 14.3.1990 Brigadier Jaspal Singh endorsed an adverse report on the respondent no. 1 which stated inter alia – “there have been aberrations in his mandatory character qualities of integrity and moral courage which make his utility to the service doubtful. He has been found wanting in discipline towards managing personal finances and was thus embar-rassed in this context. I do not recommend this officer for further promotion and would advise upon his change of appoint-ment.” The respondent no. 1 was due for promotion as Brigadier but the aforesaid adverse report was construed as drop in his performance and as his promotion was subject to continued satis-factory performance he was not physically promoted to the rank of Brigadier.On 23.2.1990 he was approved for promotion to the acting rank of Brigadier in the General Cadre.
3. A fourth Court of Inquiry was also ordered against the re-spondent no. 1 to investigate into certain allegations, such as, (a) misuse of regimental fund, (b) misuse of regimental money, (c) issuing cheques which bounced, (d) over-drafting of Sri Lankan currency where the respondent no. 1 was deployed, (e) sending Jawans on temporary duty to his home station at Jammu, and (f) making false declaration in his record of service. Based on the findings of the fourth Court of Inquiry, on 11.7.1990 disciplinary action was directed to be initiated against respond-ent no.1 and he was attached with the office of the Chief En-gineer, Calcutta Zone so that the disciplinary action could proceed against him as per the rules.
4. Early in 1991 respondent no. 1 filed a writ petition in the High Court of Jammu and Kashmir seeking quashing of all proceed-ings initiated against him as also a direction to the army au-thorities to promote him to the rank of Brigadier with effect from 23.2.1990, the date on which he was intimated of his having been approved for the rank of acting Brigadier. On 17.12.1991 a learned Single Judge, while directing rule nisi to issue, also made an interim order restraining any further action against the respondent no. 1 on the basis of proceedings already held and not to deprive the respondent no. 1 of promotion to the rank of Brigadier in case he has been held to be entitled for it. This interim order was continued by the High Court vide order dated 9.3.1992 to remain in operation in spite of objections filed on behalf of the appellants and the High Court having been informed by the appellants that because of drop in performance the respondent no. 1 could not be promoted. Thereafter again, on behalf of the appellants, an application was filed before the High Court seeking vacation of the interim order dated 17.12.1991 so that the army authorities could proceed with the court martial but the learned Single Judge declined to vacate the interim order on the ground that the prayer could not be entertained until the interim order dated 17.12.1991 was first implemented, that is, the re-spondent no. 1 was promoted. The appellants unsuccessfully filed LPA against the order of learned Single Judge and then came up to this Court by filing a SLP putting in issue the interim orders of the learned Single Judge as also the order of Division Bench dismissing the LPA.
5. On 29.6.1992 and 28.9.1992 the High Court had directed its order dated 17.12.1991 to “be implemented in letter and spirit” without regard to alleged drop in performance of respondent no. 1. The respondent no. 1 had to be promoted by the appellants and given acting rank of Brigadier under threat of contempt proceed-ings. Such promotion had taken place after the filing of the SLP and before it could be listed for hearing. On 25.11.1992 this Court disposed of the SLP directing the disciplinary proceedings against the respondent no. 1 to be proceeded ahead. This Court also noted that the respondent no. 1 was already promoted. Liber-ty was allowed to the appellants to approach the High Court seeking its leave for the framing of the charges which were alleged to have become barred by time on account of court pro-ceedings.
6. On 31.12.1993 a learned Single Judge of the High Court allowed the writ petition filed by the respondent no. 1. Proceedings of all the four Courts of Inquiry were adjudged to be illegal. The respondent (sic appellant ) no. 1 was directed to consider the respondent no. 1 for promotion to the rank of Brigadier along with the consequen-tial benefits attaching with such promotion. The court martial proceedings were directed to be quashed as being barred by time under Section 122 of the Army Act overruling the plea of the appellants that the delay in court martial proceedings was at-tributable to the interim orders passed by the High Court. In the opinion of the High Court even if the delay was attributable to the interim orders of the High Court that did not make any dif-ference to the applicability of Section 122 of the Army Act.
7. The appellants filed Letters Patent Appeal. By an interim order dated 3.3.1994 the Division Bench gave liberty to the appellants to proceed with the court martial but directed no final order to be passed therein. On 21.4.1994 general court martial proceedings commenced and were concluded on 10.8.1994. The GCM found the respondent no. 1 guilty of 9 charges framed against him. The respondent no. 1 was sentenced to rigorous imprisonment for one year, to be cashiered from service and 15 years past service to be forfeited for the purpose of pension. The findings recorded by the GCM and the sentence passed on respondent no. 1 could not be confirmed in view of the order of the Division Bench dated 3.3.1994. Under Section 153 of the Army Act the finding and sentence of the court martial are not valid unless confirmed. After hearing both the parties, vide the judg-ment dated 25.3.1997 the Division Bench dismissed the LPA with a slight modification. Briefly stated the Division Bench held that the first and the second Court of Inquiry were conducted behind the back of the respondent and therefore stood vitiated in view of Rule 180 of the Army Rules. It was also held that the first three Courts of Inquiry were presided over by an officer of the rank of Lieutenant Colonel and Major and the respondent no. 1 could not be made to appear before an officer lower in rank in view of Regulation 518 of the Defence Services Regulations. However, the fourth Court of Inquiry was held to be valid. Nevertheless, the adverse report recording drop in performance of the respond-ent no. 1 which was based on the first three Courts of Inquiry was also held liable to be set aside. The Division Bench agreed with the learned Single Judge in holding that the court martial proceedings were barred by time under Section 122 of the Army Act and it was immaterial if the court martial proceedings were interdicted by a judicial order.
8. The Union of India has come up in appeal by special leave.We have heard the learned Counsel for the parties at length. The position of law insofar as the interpretation of Section 122 of the Army Act, 1950 is concerned stands resolved and settled by a three Judge Bench decision of this Court in Union of India & Ors. v. Harjeet Singh Sandhu (JT 2001 (4) SC 597 = 2001 (5) SCC 593) wherein it has been held that the delinquent officer having himself created a situa-tion withholding commencement of trial he would be estopped from pleading the bar of limitation and the trial commenced on vacat-ing of the judicial order of restraint on court martial shall be a valid trial, relying on the principles that no man can take advantage of his own wrong. It has also been held that in spite of court martial proceedings having gone barred by time a disci-plinary action based on the same set of facts and the same miscon-duct which formed subject matter of charge before the court martial is not excluded. The Division Bench and the learned Single Judge of the High Court were therefore not right in taking the view which they did for the purpose of quashing the court martial proceedings.
9. It is also brought to our notice that certain contempt of court proceedings were initiated at the instance of the respond-ent no. 1 complaining of the appellants having violated the interim orders of the Court.
10. This case has a chequered history. For the third time this matter has travelled upto this Court. Admittedly, the respondent no.1 has retired with effect from 31.8.1996. Upto the time when in the year 1989 the respondent no. 1 came to be posted in Sri Lanka he had a brilliant service record. We have carefully looked into the allegations levelled against the respondent no. 1 form-ing subject matter of several courts of inquiry proceedings out of which 3 have been held to be invalid while one has been held to be valid. The allegation levelled against the respondent no. 1 were not only denied but also defended by alleging mala fides on the part of Brigadier Jaspal Singh, who according to respondent no. 1 was guilty of financial irregularities himself and was interested in blocking the respondent no. 1, lest the respondent no.1,on being promoted, should initiate proceedings against him. Keeping in view the totality of the circumstances of the case, the nature of allegations and counter allegations, the chequered history of multiple litigation and the fact that the respondent no. 1 has stood retired from the service we do not deem it proper to revive several legal proceedings pending against each other and in our opinion it will meet the ends of justice if this multi-pronged legal battle and the court proceedings are given a quie-tus so that the respondent no. 1 can also live a peaceful life as a civilian while the appellants may feel happy with their rela-tionship with the respondent no. 1 having been severed with effect from 31.8.1996 whatever might have been the appellants, earlier view of the respondent’s conduct. While hearing the learned Counsel for the parties additionally in the light of the law settled by this Court in the case of Harjeet Singh Sandhu (supra) we put across the suggestion to the learned Counsel for both the parties and heard them thereon. in our opinion the following directions would, in the facts and circumstances of this case, meet the ends of justice:
1) The general court martial proceedings initiated against the respondent no. 1 shall stand dropped at the stage at which they are;
2) The respondent no.1 shall be deemed to have retired from the appellant’s service with effect from 31.8.1996 in the rank of acting Brigadier. His retiral benefits shall be settled and released, if not already done;
3) All other proceedings initiated by the appellants against the respondent no. 1 or by the respondent no. 1 against the appell-ants or any of their officers, including the contempt of court proceedings shall also stand terminated at the stage at which they may be.
11. The appeals stand disposed of accordingly. No order as to the costs.
