* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 6th January, 2011
Judgment Delivered On: 17th February, 2011
+ LPA 603/2002
MAJ.R.K.SAREEN ..... Petitioner
Through: Ms.Rekha Palli, Advocate
versus
UOI & ORS. ..... Respondents
Through: Ms.Jyoti Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. By May 1992 the appellant had earned promotion as a
Major in the Indian Army and was appointed as Presiding
Officer of a Board of Officers constituted to take over the
possession of buildings constructed by contractors for the
Army Aviation Corps at Jhansi.
2. In June 1992 the Initiating Officer of the appellant
initiated the recording of the Annual Confidential Report
(hereinafter referred to as the “ACR”) of the appellant for the
year 1991-1992 and graded the appellant „Above Average
Officer‟. The problem started for the appellant when
LPA 603/2002 Page 1 of 23
Brig.R.Gopal, respondent No.5, the Senior Reviewing Officer of
the appellant, downgraded the appellant to „High Average
Officer‟ and recorded following adverse remarks in the ACR:-
“Inflated report by the IO and RO. Sareen is an high
average officer. He is excessively obese and must
reduce his over weight.”
3. Aggrieved by the downgrading of his ACR grading and
recording of adverse remarks in the ACR, the appellant made a
non-statutory representation before the competent authority,
which was rejected by the General Officer Commanding-in-
Chief, Central Command by the order dated 20.03.1993.
4. In June 1993 Colonel M.Madhubani, respondent No.6, the
Reviewing Officer of the appellant initiated the recording of the
ACR of the appellant for the year 1992-1993 and graded the
appellant as a „High Average Officer‟. Aggrieved by the
grading given to him by respondent No.6, the appellant made
a statutory petition dated 23.09.1993 against the respondent
No.6 before the competent authority inter-alia primarily
alleging that the respondent No.6 had taken bribe from the
contractors who had constructed the buildings in question and
wanted the appellant not to report the deficiencies in the
construction of the said buildings and that upon the refusal of
the appellant to do so, out of vengeance the respondent No.6
gave low grading to the appellant in the ACR for the year
1992-1993 as also influenced respondent No.5 to give low
grading to the appellant in the ACR for the year 1991-1992.
Furthermore, the appellant demanded the initiation of an
inquiry against respondent No.6.
LPA 603/2002 Page 2 of 23
5. On 25.05.1994 the appellant wrote a letter to the
Secretary, Ministry of Defence, inter-alia, leveling the same
allegations against respondent No.6 as contained in the afore-
noted statutory complaint dated 23.09.1993 and demanding
the initiation of an inquiry against respondent No.6.
6. On the basis of the afore-noted complaint dated
23.09.1993 made by the appellant against respondent No.6
and the letter dated 25.05.1994 written by the appellant to the
Secretary, Ministry of Defence, the competent authority
convened a Court of Inquiry to investigate into the allegations
leveled by the appellant against respondent No.6.
7. The Court of Inquiry assembled for first time on
20.10.1994, on which date the appellant was examined as
witness No.1. Thereafter the witnesses No.2 to 6 were
examined before the Court of Inquiry on various dates.
8. On 27.10.1994 the appellant wrote a letter to the
Presiding Officer of the Court of Inquiry, the relevant portion
whereof reads as under:-
“With due respect the witness requests to the Court
that his reputation in the Army has been drastically
affected due to the acts of Col M Madhubani and
hence he be allowed to read his statement and then
cross-examine him as per AR 180. Similarly the
same procedure may please by allowed for other
witnesses whose statements might lead to
miscarriage of Justice.
…..”
LPA 603/2002 Page 3 of 23
9. In response thereto, the Presiding Officer of the Court of
Inquiry wrote a letter dated 28.10.1994 to the appellant,
relevant portion whereof reads as under:-
“….You have already been informed that provisions
of AR 180 will be applied whenever applicable.
Same has been done where essential.
….”
10. On 21.01.1995 the Court of Inquiry invoked Rule 180 of
the Army Rules, 1954. On the said date i.e. 21.01.1995, the
Court of Inquiry handed over a copy of the statement of
respondent No.6 who was examined as witness No.3 to the
appellant and allowed the appellant to cross-examine
respondent No.6. Thereafter the statements of witnesses
Nos.7 and 8 were recorded in the presence of the appellant
who was allowed to cross-examine the said witnesses.
11. After considering the statements of the witnesses as also
other facts and circumstances of the case, the Court of Inquiry
came to the conclusion that there is no substance in the
allegations leveled by the appellant against respondent No.6.
12. Vide Office Order No.36501/510/Arty/93/MS Compl/42/D
(MS) dated 04.01.1995, Ministry of Defence, Government of
India rejected the statutory complaint dated 23.03.1993 made
by the appellant however it expunged the assessment made
by respondent No.6 in the ACR of the appellant for the year
1992-1993 on the ground that the same was based on the
subjectivity of respondent No.6.
LPA 603/2002 Page 4 of 23
13. On 28.04.1995 the GOC, Army Headquarters issued a
show cause notice to the appellant and the same reads as
under:-
“SHOW CAUSE NOTICE
1. A staff C of I was ordered vide this HQ investigate
into the allegations leveled by you against IC-
19622W Col M Madhubani ex Co of 664 R & O Sqn
in your statutory complaint dated 23 Set. 93 and
complaint to Secy Boot of India (Min. of Def.)
forwarded vide 4 Fd Regt letter
th
No.27350/RKS/SC/22 dated 20 May 94.
2. The proceedings of the staff C of I were placed
before GOC 1 Corps, who after having perused the
same and after due consideration found you
blameworthy of having leveled the following false
allegation against your then CO, Col M. Madhubani:-
a) Pressurized you, as Presiding Officer of bd of
offrs, to take over buildings of Army Avn Base,
Jhansi with no obsn.
b) The CO having taken undue favors from the civ
contractors.
c) The CO having denied you annual/casual/ lve to
look after your handicapped mother.
d) On 29 Oct 92, out of vengeance CO raised an
incident report in violation of paras 19 and 21 of
SAO4/S/87.
e) CO is anti national, above the law and that he
has falsified documents.
3. You have also leveled following unfounded
allegations:-
a) letters with your forged signatures have been
sent to various places, to defame you.
b) Laid down procedures to process statutory
complaint were flouted.
LPA 603/2002 Page 5 of 23
c) That you were not ex for comd criterion report.
4. Accordingly, in pursuance with the directions
of GOC 1 Corps, you are asked to show cause as to
why administrative action by way of award of an
appropriate censure by him, should not be taken
against you for the aforesaid lapses, on your part.
5. Your reply, to this show cause notice, should
this HQ within 30 days of receipt of this letter,
failing which it shall be presumed that you have
nothing to urge in your defence against the
proposed actions an ex-parte decision will be taken.
6. A copy of the ibid C of I proceedings less
findings, recommendations and directions is
forwarded herewith for your perusal. The same may
please be returned to this HQ along with your reply.
7. Please acknowledge receipt.” (Emphasis
Supplied)
14. In response thereto, the appellant submitted his reply.
Vide Office Order 22500/16/A1 (PC) dated 25.08.1995 the GOC
rejected the reply of the appellant and awarded the
punishment of „severe displeasure (recordable)‟ upon the
appellant. The Office Order dated 25.08.1995 reads as under:-
“CENSURE
I have considered the reply to show cause notice
submitted by you vide your letter NO
37350/RKS/SC/29 dated 11 Jun 95. You have merely
confined your reply to tech aspects of the C of I and
have apparently preferred yourself to the lapses
mentioned in the show cause notice, despite the
opportunity having been provided to you.
2. Being dissatisfied about the substantial
compliance of AR 180 and other technical aspects
of the C of I, I find you blameworthy for the lapses
as mentioned in the show cause notice.
LPA 603/2002 Page 6 of 23
3. I, therefore, hereby convey to you my “Severe
Displeasure (To be recorded”) for the same.”
(Emphasis Supplied)
15. After the penalty was levied, at three consecutive
selection boards, where the ACRs of the petitioner were
considered and the penalty inflicted was taken note of,
appellant could not earn a promotion to the next higher rank
of Lt.Colonel.
16. Aggrieved by the action of the Selection Board of not
promoting him to the rank of Lt. Colonel, the appellant filed a
writ petition which was registered as W.P.(C)No.463/1998,
inter-alia praying that: – (i) the appellant be promoted to the
rank of Lt.Colonel from a retrospective date; (ii) the order
dated 25.08.1995 awarding punishment of severe displeasure
upon the appellant be quashed or not looked into by the
Selection Board while considering the appellant for promotion
to the rank of Lt.Colonel; and (iii) ACRs of the appellant for the
years 1991-1992 and 1992-1993 be quashed or not looked
into by the Selection Board while considering the appellant for
promotion to the rank of Lt.Colonel.
17. A perusal of the impugned judgment passed by the
learned Single Judge evidences that three grounds were
advanced on behalf of the appellant before the learned Single
Judge:- (i) The grading awarded in the ACRs to the appellant
being below benchmark were required to be communicated to
the appellant and being not communicated could not be
considered by the Selection Boards; (ii) the findings and
directions of the Court of Inquiry is illegal for the reason the
LPA 603/2002 Page 7 of 23
proceedings of the Court of Inquiry were held in violation of
Rule 180 of Army Rules 1954 which mandatorily requires that
whenever any inquiry affects the character or military
reputation of an officer, full opportunity must be given to such
officer of being present throughout the inquiry and of cross-
examining any witness whose evidence affects his character
and military reputation; while in the instant case the
statements of the witnesses Nos.2 to 6 were recorded by the
Court of Inquiry in the absence of the appellant and that the
Court of Inquiry did not give an opportunity to the appellant to
cross-examine witnesses Nos.2,3,4 and 6 and as consequence
thereof the show cause notice dated 28.04.1995 issued to the
appellant as also the order dated 25.08.1995 awarding the
punishment of severe displeasure upon the appellant is also
illegal inasmuch as the findings and directions of the Court of
Inquiry formed the very basis of the said show cause notice
and the order; (iii) while issuing the show cause notice dated
28.04.1995 it was incumbent upon GOC to have supplied the
findings and directions of the Court of Inquiry to the appellant
as the said documents formed the very basis of the case set
up against the appellant; that the non-supply of said
documents to the appellant has resulted in violation of rules of
natural justice and thus the order dated 25.08.1995 awarding
punishment of severe displeasure by way of censure to the
appellant is liable to be quashed.
18. Vide judgment dated 15.02.2002 the learned Single
Judge dismissed the petition filed by the appellant. With
respect to ground (i), it was held by the Single Judge that in
LPA 603/2002 Page 8 of 23
view of the fact that the department allowed the statutory
complaint dated 23.09.1993 made by the appellant to a
limited extent and expunged the adverse remarks contained in
the ACR of the appellant for the year 1992-1993 the question
of communication of adverse remarks contained in the ACR to
the appellant does not arise at all in the present case. With
respect to ground (ii), it was held by the Single Judge that the
Court of Inquiry was held to inquire into the conduct of
respondent No.6 and not the appellant and thus it was not
necessary to give an opportunity to the appellant to remain
present throughout the inquiry or to cross-examine all the
witnesses examined before the Court of Inquiry. However
when the witnesses made statements which had a tendency to
affect the character or military reputation of the appellant it
was obligatory on the part of the Court of Inquiry to give an
opportunity to the appellant to cross-examine the said
witnesses, which opportunity was given and availed by the
appellant. In such circumstances, it cannot be held that the
proceedings of the Court of Inquiry were held in violation of
Rule 180 of Army Rules 1954. With respect to ground (iii), it
was held by the Single Judge that Rule 184 of Army Rules 1954
when read in light of dictum of law laid down by Supreme
Court in the decision reported as Major General Inder Jit Kumar
v Union of India (1997) 9 SCC 1 shows that the appellant was
not entitled to be supplied with the findings, recommendations
and directions of the Court of Inquiry along with the show
cause notice dated 28.04.1995 and thus there is no violation of
the rules of natural justice. In any case, the order dated
25.08.1995 awarding punishment of severe displeasure upon
LPA 603/2002 Page 9 of 23
the appellant was not “merely” based on the findings of the
Court of Inquiry; the appellant was given a full opportunity to
defend himself and put forward his case before the competent
authority and the order dated 25.08.1995 was passed by the
competent authority after due consideration of the reply
submitted by the appellant in response to the show cause
notice dated 28.04.1995.
19. Aggrieved by the judgment dated 15.02.2002 passed by
the Single Judge the appellant has filed the present appeal.
20. During the hearing of the appeal, learned counsel
appearing for the appellant challenged before us the decision
of the Single Judge with respect to grounds nos. (ii) and (iii). As
regards ground (i) leaned counsel conceded that as regards
members of the Armed Forces the law laid down by the
Supreme Court is that below benchmark ACR gradings have
not be conveyed to the officer concerned. With respect to
ground (ii), it was urged by learned counsel for the appellant
that the Single Judge failed to appreciate that since the Inquiry
in question was conducted to investigate into the allegations
leveled by the appellant against respondent No.6, in was
implicit that if the allegation was held to be without any basis
the effect thereof would have been affecting the military
reputation of the appellant, wherefrom adverse consequences
could flow; and indeed subsequent events have shown that
adverse consequences did flow and thus counsel urged that
qua the appellant Rule 180 of the Army Rules 1954 was liable
to be fully complied with. In support of the said plea,
particular emphasis was placed by the learned counsel on the
LPA 603/2002 Page 10 of 23
decision dated 3.9.2007 of a Division Bench of this Court in
W.P.(C) No.4393/2007 „Major General B.P.S. Mander v Union of
India & Ors‟. With respect to ground (iii), learned counsel for
the appellant urged that the learned Single Judge has not
correctly appreciated the tenor of Rule 184 of Army Rules
1954 and the dictum of law laid down by Supreme Court in
Major General Inder Jit Kumar‟s case (supra) and has wrongly
come to the conclusion that the petitioner was not entitled to
be supplied with the findings, recommendations and directions
of the Court of Inquiry along with the show cause notice dated
28.04.1995.
Ground No. (ii)
21. As evident from the foregoing paras, the ground (ii)
advanced by the learned counsel for the appellant is
predicated upon Rule 180 of the Army Rules, 1954, which
reads as under:-
“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 directions, 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
LPA 603/2002 Page 11 of 23
receives notice of and fully understands his rights,
under this rule.”
22. A bare reading of Rule 180 shows that the sine qua non
for application of Rule 180 in respect of a person in an inquiry
is that the inquiry must affect or likely to affect the character
or military reputation of that person. The necessary corollary
thereof is that Rule 180 should be applied from the time when
the inquiry affects or is likely to affect the character or military
reputation of a person. Where an inquiry is directed against a
specific person Rule 180 should be applied in respect of said
person from the very inception of the inquiry for in such a case
the character or military reputation of the said person would
be affected or likely to be affected from the very inception of
the inception of the inquiry. However where an inquiry is a
general inquiry and not directed against any individual but
affects or likely to affect character or military reputation of a
person Rule 180 should be applied in respect of such person
from the time the inquiry affects or is likely to affect his
character or military reputation for in such a case the
character or military reputation of the said person would be
affected or likely to be affected only during the course of the
inquiry and not from the very inception of the inquiry. Similarly
where an inquiry is directed against a person but affects or is
likely to affect the character or military reputation of another
person Rule 180 should be applied in respect of such other
person from the time the inquiry affects or likely to affect his
character or military reputation.
LPA 603/2002 Page 12 of 23
23. In W.P.(C) No.11839/2006 „Lt.Gen.Surender Kumar Sahni
v Chief of Army Staff & Ors‟ decided on 11.01.2007 a general
Court of Inquiry was convened to investigate into the
irregularities committed in the procurement of rations for the
army. The petitioner who was working as Director General of
Supply and Transport Service of Army Corps was summoned
as a witness in the said inquiry. The Court of Inquiry
recommended the initiation of the disciplinary proceedings
against the petitioner. The petitioner filed a petition under
Articles 226 and 227 of Constitution of India before a Division
Bench of this Court challenging the recommendations of the
Court of Inquiry primarily on the ground that the Court of
Inquiry did not apply Rule 180 qua the petitioner. It was held
by the Division Bench that the Court of Inquiry committed an
illegality in not applying Rule 180 in respect of the petitioner
during the inquiry even though the inquiry in question affected
the character and military reputation of the petitioner. While
interpreting Rule 180, the Division Bench observed as under:-
“26. Holding of a court of enquiry may not be
essential and would be at the discretion of the
competent authority but once the authority
exercises its powers to hold such an enquiry and
where the enquiry affects or is likely to affect the
character or military reputation of a person subject
to the Act, then compliance to the requirements of
Rule 180 would be mandatory. The language of the
Rule is certain and unambiguous, capable of only
one interpretation i.e. that to afford a full
opportunity in terms of this provision is the
responsibility of the competent authority. This
obligation and burden is incapable of being shifted
at the initial stage. Once an opportunity is afforded
at the initial stage then it is for the concerned
LPA 603/2002 Page 13 of 23
Officer whose character or military reputation is
being affected or is likely to be affected, to exercise
the option in regard to what evidence he wishes to
give, which witnesses he wishes to cross-examine
and what defense, if any, he wishes to lead. These
are the matters which squarely fall for decision
within the domain of the concerned person subject
to the Act. The arguments advanced on behalf of
the respondents that the obligation and onus lies
upon the delinquent to ask for the protection or
opportunity in terms of the provisions is ex facie
contrary to the spirit of the provision. Neither the
Rule does attempt such an interpretation nor does
it suggest such a course of action. Even in normal
course such an approach is incapable of being
implemented in actual practice. Initiation of an
enquiry as contemplated under Rule 180 lies in the
discretion of the competent authority and there
would be no occasion for an Officer to ask for a
protection or rights available to him under this rule,
without notice. Thus, to notify the officer concerned
of initiation of such proceedings or the likelihood of
his reputation or character being affected in the
process of the enquiry would undoubtedly be the
duty of the competent authority.
27. The language used by the framers of the Rule in
no way supports the contention raised on behalf of
the respondents that on its correct dissection, the
Rule places a mandatory obligation upon the person
subject to the Army Act to ask for the grant of
protection specified in the Rule. The Rule enjoins
upon the concerned authorities an unequivocal duty
to give notice and provide full opportunity to the
person whose character or military reputation is
likely to be affected by the enquiry in terms of Rule
180. Of course, it also places a burden upon such
an officer as to what extent and how he wishes to
exercise the opportunity provided to him. The
option to cross-examine the witnesses produced,
which witnesses he wishes to examine and what
evidence he wishes to lead as defense, are the
basic features in relation to which he has to
LPA 603/2002 Page 14 of 23
exercise his choice and to that extent the Rule does
place an obligation upon the delinquent person.
This burden no way displaces or reduces the
significance of the duties of the authorities and
protections available to the Officer. The one in no
way destroys or diminishes the obligatory value of
the other. Whatever be the stage of the
proceedings and whenever the enquiry is likely to
affect or affects the character or military reputation
of a person, at that very moment, it is required of
the authority to sincerely and objectively comply
with the requirements of the Rule.” (Emphasis
Supplied)
24. The aforesaid decision, particularly the observations
emphasized by us, brings out that Rule 180 is to be applied in
respect of a person in an inquiry only from the time such
inquiry affects or is likely to affect the character of military
reputation of said person.
25. In the backdrop of aforesaid anvil of law, we proceed to
examine that whether the Court of Inquiry was required to
apply Rule 180 qua the appellant throughout the inquiry?
26. In the instant case, the Court of Inquiry was convened to
investigate into the allegations leveled by the appellant
against the respondent No.6. The main allegation leveled by
the appellant against the respondent No.6 was that the
respondent No.6 had taken bribe from the contractors who had
constructed the buildings for the defence personnel and
wanted the appellant to not to report the deficiencies in the
construction of the said buildings and that upon the appellant
refusal to do so out of vengeance the respondent No.6 gave
low grading to the appellant in his ACR for the year 1992-1993
LPA 603/2002 Page 15 of 23
as also influenced the respondent No.5 to give low grading to
the appellant in his ACR for the period for the year 1991-1992.
Thus, the primary task of the Court of Inquiry was to probe
whether the respondent No.6 had indulged in corrupt practices
by taking bribe from the contractors. While probing the same,
some material came to the knowledge of the Court of Inquiry
pointing towards the fact that the appellant had leveled false
allegations against the respondent No.6 with an ulterior motive
and to harass the respondent No.6. In that view of the matter,
the inquiry conducted by the Court of Inquiry can be divided
into two distinct periods. During the first period, the Court of
Inquiry was probing into the allegations of acceptance of
bribery leveled against the respondent No.6. During that
period, the inquiry only affected the character and military
reputation of the respondent No.6 and in no way whatsoever,
whether directly or indirectly, affected or was likely to affect
the character or military reputation of the appellant and thus
the Court of Inquiry was not required to apply Rule 180 qua
the appellant. During the second period, the inquiry invariably
was likely to affect the character or military reputation of the
appellant thus the Court of Inquiry was duty bound to apply
Rule 180 qua the appellant during that period of the inquiry
and the needful was done by the Court of Inquiry.
27. In view of the above discussion, we find no merit in the
ground No. (ii) advanced by the learned counsel for the
appellant.
Ground No. (iii)
LPA 603/2002 Page 16 of 23
28. Whether the non-supply of the findings,
recommendations and directions of the Court of Inquiry to the
petitioner along with the show cause notice dated 28.04.1995
has resulted in the violation of rules of natural justice and
vitiated the said show cause notice?
29. The punishment of censure by way of severe displeasure
has not been prescribed as a punishment in the Army Act. The
source of punishment of censure by way of severe displeasure
is to be found in the instructions contained in the letter
No.32908/AG/DV-1 dated 05.01.1989 issued by the Adjunct
General, the relevant portion whereof reads as under:-
“2. The award of censure to an Officer or JCO is an
administrative action, in accordance with the
customs of the service. It takes form of “Severe
Displeasure (either recordable or otherwise) or
“Displeasure” of the officer awarding the censure,
as specified in the succeeding paragraphs.
….
5. Censure is awardable where the act, conduct
or commission is of minor nature, both in nature
and gravity. An offence of serious nature under the
Army Act will not be disposed of by award of
censure but will be dealt with by initiating a
disciplinary action. Attention, in particular, is invited
to para 432 of the Regulations for the Army, 1962,
which stipulates that persons committing offences
involving moral turpitude, fraud, theft, dishonesty
and culpable negligence involving financial loss to
public or regimental property must be tried by a
court martial or prosecuted in a Civil court. Such
cases will not be disposed summarily or by
administrative action. In view of the foregoing,
there should be no occasion for offences involving
moral turpitude, misappropriation, financial or otherLPA 603/2002 Page 17 of 23
offences of serious nature being dealt with by
award of censure when disciplinary action is
feasible/possible. If for some reason, a case of this
nature does come across, where trial is inexpedient
or impracticable, administrative action for
termination of service of the delinquent person
should be initiated.
6. Cases which are not of minor nature and
which do not involve moral turpitude, fraud, theft
and dishonest and where trial by GCM is either not
practicable either being time-barred or is not
expedient due to other reasons may in appropriate
cases at the discretion of the GOC-in-C be
forwarded to Army Headquarters for consideration
to award of censure by the COAS, so as to avoid
resorting to the extreme step of action under the
provisions of Army Act Section 19 read with Army
Rule 14.” (Emphasis Supplied)
30. The validity of the afore-noted letter dated 05.01.1989
came up for consideration before a Division Bench of Himachal
Pradesh High Court in the decision reported as Brigadier J.S.
Sivia v Union of India & Ors (1994) 1 LLJ 906 HP wherein it was
held that the aforesaid letter has no legal sanction and thus
Chief of Army Staff or other senior officers has no power to
award punishment of censure to any officer or Junior
Commissioned Officer.
31. The correctness of the afore-noted decision of Himachal
Pradesh High Court came up for consideration before Supreme
Court in the decision reported as Union of India & Ors v
Brigadier J.S. Sivia 1996 MLJ SC 3. After examining various
provisions of Army Act, 1950 and Army Rules, 1954, it was
held by the Court that the view taken by the Himachal Pradash
High Court that the aforesaid letter dated 05.01.1989 issued
LPA 603/2002 Page 18 of 23
by Adjunct General is incorrect. The relevant observations of
Supreme Court are being noted herein under for a ready
reference:-
“8. It is obvious from various documents mentioned
above that the award of censure is being regulated
by „Customs of the service.” The Army Order dated
January 24, 1942 takes us to August 26, 1927 and
as such there is reasonable basis to assume that
the award of censure is being governed by the
“Customs of the service” right from the inception of
the Indian Army. That being the position the award
of censure is the binding rule of the army service.
Section 3(v) of the Act and Regulations 9 of the
Regulations recognize the existence of “customs of
the service”. The definition of “Commanding
Officer” clearly says that in the discharge of his
duties as a Commanding Officer, he has to abide by
the “customs of the service”. Similarly Regulation 9
which lays down the duties of the Commanding
Officer, specifically says that the Commanding
Officer has to discharge his functions keeping in
view the regulations and the „customs of the
service‟. From the scheme of the Act, Rules,
Regulations and the various Army orders issued
from time to time, it is clearly beyond doubt that
the award of censure is a part of the custom of the
Army and has the binding force.” (Emphasis
Supplied)
32. From the aforesaid, it is clear beyond doubt that the
award of punishment of censure by way of severe displeasure
to an officer or Junior Commissioned Officer is an
administrative action.
33. Rules of “natural justice” are not embodied rules. The
phrase “natural justice” is also not capable of a precise
definition. The underlying principle of natural justice evolved
LPA 603/2002 Page 19 of 23
under the common law, is to check arbitrary exercise of power
by the State and its functionaries. Therefore, the rules of
natural justice imply a duty to act fairly i.e. fair play in action.
Initially, it was the general view that the rules of natural justice
would apply to judicial or quasi-judicial proceedings and not to
an administrative action. However, in the decision reported as
State of Orissa v Dr. Binapani Dei AIR 1967 SC 1267 the
distinction between quasi-judicial and administrative decisions
was perceptively mitigated and it was held that even an
administrative order or decision in the matters involving civil
consequences, has to be made consistent with rules of natural
justice. Since then the concept of natural justice has made
great strides and is invariably read into administrative actions,
involving civil consequences.
34. Rules of natural justice require that an
adjudicating/administrative authority should afford a
reasonable opportunity of being heard to a party. The
expression “reasonable opportunity of being heard” implies
that the authority should: – (i) give all information as to the
nature of the case which the party has to meet; (ii) supply all
information, evidence or material which the authority wishes
to use against the party; (iii) receive all relevant materials
which the party wishes to produce in support of its case and
(iv) give an opportunity to the party to rebut adverse
information, evidence or material appearing against such
party.
35. In the instant case, in view of the fact that the award of
punishment is an administrative action it was incumbent upon
LPA 603/2002 Page 20 of 23
the GOC to observe the rules of natural justice while awarding
said punishment to the appellant. A bare reading of the show
cause notice dated 28.04.1995 and the order dated
25.08.1995, extracted in foregoing paras, shows that the
findings, directions and recommendation of the Court of
Inquiry weighed heavily with the GOC in awarding punishment
of censure to the appellant. In such circumstances, the rules of
natural justice require that the GOC ought to have supplied the
findings, directions and recommendations of the Court of
Inquiry to the appellant along with the show cause notice
dated 28.04.1995. The non-supply of the said documents to
the appellant implies that the appellant has not been granted
a reasonable opportunity of being heard and has resulted in
violation of rules of natural justice.
36. Before proceeding further, let us analyze Rule 184 of
Army Rules relied upon by the Single Judge to justify non-
supply of the findings, recommendations and directions of the
Court of Inquiry to the appellant. Rule 184 of the Army Rules
reads as under:-
“184. Right of certain persons to copies of
statements and documents – (1) Any person
subject to the Act who is tried by a court-martial
shall be entitled to copies of such statements and
documents contained in the proceedings of a court
of inquiry, as are relevant to his prosecution or
defence at his trial.
(2) Any person subject to the Act whose character or
military reputation is affected by the evidence
before a court of inquiry shall be entitled to copies of
such statements and documents as have a bearing
on his character or military reputation as aforesaid
LPA 603/2002 Page 21 of 23
unless the Chief of Army Staff for reasons recorded
by him in writing, orders otherwise.” (Emphasis
Supplied)
37. As noted in foregoing paras, clause (1) of Rule 184 was
read by the Single Judge to mean that a person is not entitled
to receive the findings/recommendations of the Court of
Inquiry. In this regards, suffice would it be to state that the
learned Single Judge failed to note that Rule 184 is applicable
in cases where a person is tried by the Court Martial, which
was not the position in the instant case.
38. The sum and substance of the above discussion is that
the order dated 25.08.1995 passed by the GOC awarding
punishment of censure by way of severe displeasure to the
appellant is liable to be quashed as the same is violative of
rules of natural justice. Ordered accordingly.
39. It would be open to the respondents to take corrective
action by supplying to the appellant the findings,
recommendations and directions of the Court of Inquiry
including the evidence recorded during the Court of Inquiry
and thereafter permit the appellant to file a response to the
show cause notice issued to him and in light of the response
filed to pass a fresh order.
40. Should the respondents choose to proceed ahead as
aforesaid, depending upon the final order passed further
action would be taken. If the final order inflicts an
administrative punishment upon the appellant, that would be
the end of the matter as regards the respondents. But, should
the respondent choose not to proceed ahead or after
LPA 603/2002 Page 22 of 23
proceeding ahead inflict no administrative punishment upon
the appellant, Review Selection Board be constituted to
consider the candidature of the appellant for promotion to the
rank of Lt.Colonel and needless to state the Review Selection
Board would not consider the penalty imposed upon the
appellant.
41. The appeal is allowed in terms of paras 38 to 40 above.
42. There shall be no order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
FEBRUARY 17, 2011
mm
LPA 603/2002 Page 23 of 23