{"id":112049,"date":"2007-08-24T00:00:00","date_gmt":"2007-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lt-general-s-k-dahiya-vs-union-of-india-uoi-and-ors-on-24-august-2007"},"modified":"2016-02-29T23:28:02","modified_gmt":"2016-02-29T17:58:02","slug":"lt-general-s-k-dahiya-vs-union-of-india-uoi-and-ors-on-24-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lt-general-s-k-dahiya-vs-union-of-india-uoi-and-ors-on-24-august-2007","title":{"rendered":"Lt. General S.K. Dahiya vs Union Of India (Uoi) And Ors. on 24 August, 2007"},"content":{"rendered":"
Delhi High Court<\/div>\n
Lt. General S.K. Dahiya vs Union Of India (Uoi) And Ors. on 24 August, 2007<\/div>\n
Author: T Thakur<\/div>\n
Bench: T Thakur, S Aggarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
T.S. Thakur, J.<\/p>\n
1. In this petition for a writ of certiorari, the petitioner calls in question the legality of a Court of Inquiry proceeding and the severe displeasure (recordable) awarded to him in consequence thereof. An order dated 3rd May, 2007 by which the respondents have declined to appoint the petitioner as Director General Supply and Transport (DGST) has also been assailed with a prayer for a mandamus directing the respondents to forthwith appoint him as DGST. The controversy arises in the following circumstances:\n<\/p>\n
2. The petitioner is serving as a Lt. General in the Indian Army and is presently posted as Commandant Army Service Corps (ASC) Centre and College at Bangalore. His immediate senior Lt. General S.K. Sahni took over as DGST with effect from 1st February, 2005 at the Supply and Transport Directorate at Delhi. It is not in dispute that the petitioner was at that time next in line for appointment as DGST after the retirement of Lt. General Sahni in September, 2006. It is also common ground that, as a matter of practice, the post of DGST is held by the senior most Lt. General of the ASC. The petitioner claims that after Lt. General Sahni’s retirement, he is the only person eligible to be appointed as DGST not only because he is the senior most Lt. General of the ASC but also because there is no other Lt. General eligible for such an appointment in the said Corps.\n<\/p>\n
3. The petitioner’s case as set out in the writ petition is that immediately after Lt. General Sahni assumed charge of the post of DGST, he started gathering information and material to somehow implicate the petitioner in a false case. He is said to have eventually initiated a complaint in the form of a D.O. letter dated 18th March, 2005 addressed to General Officer Commanding-in-Chief (GOC-in-C), Northern Command, respondent no. 3 in this petition, pointing out certain irregularities that were allegedly committed in relation to the frozen meat contract for the period June, 2003 to January, 2005. On receipt of the said complaint, the GOC-in-C, Northern Command ordered a preliminary investigation by a Major General who conducted an inquiry and ruled out any undue gain for the contractor or any mala fide intention on the part of any functionary administering the contract. The findings of the one man inquiry notwithstanding Lt. General Sahni is alleged to have taken advantage of his proximity with some members of the Parliament and politicized the issue. He is alleged to have got letters initiated by two members of the Parliament to the defense Minister implicating the petitioner. The petitioner’s version is that these letters contained nothing but a summary of the complaint which Lt. General Sahni had made under his D.O. letter dated 18th March, 2005.\n<\/p>\n
4. It was on the basis of the above complaints, allegedly inspired and engineered by Lt. General Sahni, that a Staff Court of Inquiry was ordered by the GOC-in-C, Northern Command with Lt. General P.K. Grover, Chief of Staff, Western Command as its Presiding Officer and Lt. General G.D. Singh and Lt. General Mandhatta Singh as its members. Major General G.S. Dhillon, Western Command was detailed to assist the Court of Inquiry as a Technical Advisor. The Convening order was subsequently amended in terms of order dated 6th October, 2005.\n<\/p>\n
5. The Court of Inquiry assembled on 13th October, 2005 by which time the petitioner had already approached the GOC-in-C, Southern Command in terms of his letter dated 5th October, 2005 inter alia alleging that Lt. General Sahni had got the letters initiated by the Members of Parliament only to get the petitioner implicated in a false case. The petitioner also expressed an apprehension of a possible misuse of authority by Lt. General Sahni to influence and pressurize witnesses, who may be examined by the Court of inquiry. The letter inter alia prayed for career protection of the witnesses and a communication to be sent to them as also to the technical advisor before the proceedings commenced. Following two passages appearing in the letter are in this regard relevant.\n<\/p>\n
5. The ibid enquiry is a sequel to his DO letter to the GOC-in-C. Since he has professional rivalry and vindictiveness against me for various unjustifiable reasons, I have genuine apprehension of his misusing his authority as DGST to influence\/pressurize the witnesses and the technical advisor to the court of inquiry in the ibid investigation as he endorses their ACRs as also initiates their posting proposals, which will not be in the interest of fair play and natural justice.\n<\/p>\n
6. In view of the above and since my military reputation may be affected by his influence on witnesses, I earnestly request that adequate steps should be taken to ensure career protection of the witnesses and technical advisor and Lt Gen SK Sahni should not endorse on the ACRs of the witnesses and technical advisor so that he does not influence them. The same may be communicated to the witnesses and technical advisor before the investigations commence, in the interest of fair play and natural justice.\n<\/p>\n
 Thanking you,<\/p>\n
 Yours Faithfully,
\n Sd\/-\n<\/p>\n
 (SK Dahiya)
\n Lt Gen.<\/p>\n
6. A similar request was made to GOC-in-C, Northern Command in terms of a letter dated 13th October, 2005 and to the Presiding Officer of the Court of Inquiry by letter dated 2nd November, 2005.\n<\/p>\n
7. Apprehending that those affected by the Court of Inquiry can approach the Court for redress against the holding of such an inquiry, a Caveat was filed by the respondents in the High Court of Jammu and Kashmir naming among others, the petitioner Lt. General Dahiya as a person likely to file a writ petition to block the Court of Inquiry. By his letter dated 2nd November, 2005, the petitioner raised an objection and wrote to the Presiding Officer of the Court of Inquiry that the naming of persons including the petitioner in the caveat was indicative of the fact that the authorities had pre-judged the issues arising in the inquiry and assumed that the persons named were guilty of the alleged irregularities. We shall revert back to that aspect a little later but before we do so, we may complete the factual narrative for a clearer understanding of the issues raised in this petition.\n<\/p>\n
8. The petitioner alleges that despite his request for career protection of the witnesses and the technical advisor, no orders regarding career protection for them were issued till 17th November, 2005 when the Military Secretary issued instructions in terms of a letter dated 17th November, 2005 debarring Lt. General Sahni from endorsing the CRs of four officers mentioned in the said letter. By that time the statements of the said officers had already been recorded which according to the petitioner rendered the career protection meaningless.\n<\/p>\n
9. The petitioner’s further case is that the members of the Court of Inquiry were closely associated and socially thick with the complainant Lt. General Sahni. The petitioner alleges that even when Lt. General Sahni was the prime mover of the case against the petitioner, he had invited Lt. General G.D. Singh member and later Presiding Officer of the Court of Inquiry to dinner which the later had attended on 24th January, 2006 at the residence of Lt. General Sahni. It is also alleged that respondent No. 5, Lt. General G.D. Singh, had, in the course of the inquiry proceedings, admitted having attended not one but a number of parties at the residence of Lt. General Sahni. This, according to the petitioner, clearly implied that the complainant in the case had close association and links with the Presiding Officer and members of the Court of Inquiry and that they were socially interacting with each other thereby making it impossible for the Court of Inquiry to take an unbiased and objective view on the issues that arose for consideration during the Inquiry proceedings.\n<\/p>\n
10. The third and perhaps a more serious challenge to the validity of the Court of Inquiry proceedings and the findings recorded by it is based on the violation of the provisions of Army Rule 180. The petitioner has a two fold grievance in that regard. Firstly, it is alleged that the petitioner was denied copies of important documents essential for the defense of his character and military reputation. Secondly, it is asserted that the petitioner was denied an opportunity to examine witnesses in defense. He has, in that regard, placed reliance among others upon four letters dated 24th January, 2006, 1st February, 2006, 6th February, 2006 and 18th February, 2006 in which the petitioner had demanded copies of three documents mentioned in the said letters and expressed his desire to examine Major General G.S. Dhillon, Brig. Vir Suresh Nair and Lt. Col. R.S. Rawat as witnesses in defense. According to the petitioner since the Court of Inquiry had not responded to the request made to it in connection with the above, he had written to the General Officer Commanding-in-Chief in response to which he was informed that the matter will be decided by the Presiding Officer and members of the Court of Inquiry. The request for examining witnesses in defense was eventually turned down by letter dated 16th March, 2005 on the ground that the petitioner had already cross-examined 18 witnesses and that further cross-examination of witnesses would serve no purpose other than delaying the Court of Inquiry proceedings. As regards the request for providing copies of the documents, the Court of Inquiry did not deal with the issue nor were copies of the documents provided to the petitioner.\n<\/p>\n
11. Appearing for the petitioner Mr. K. K. Sud, Sr. Counsel argued that the convening of the Court of Inquiry was, in the facts and circumstances of the case, whollhy unjustified especially when the one man inquiry conducted into the alleged irregularities had given to the petitioner a clean chit and clearly held that there was no loss to the exchequer nor any undue gain or advantage to the contractor. He submitted that the D.O. letter addressed by Lt. General Sahni followed by the letters which Lt. General Sahni had got issued through two of the members of Parliament known to him, was on account of professional jealousy between the two officers and therefore malafide in nature. Such letters could not, according to Mr. Sud, provide a reasonable basis for the convening Authority to direct an inquiry into the alleged irregularities.\n<\/p>\n
12. Mr. Sud further contended that the conduct of the Court of Inquiry proceedings itself was improper and vitiated not only on account of violation of the provisions of Rule 180 and 184 (2) but also on account of the bias of the officers holding the Court of Inquiry. He laid great emphasis on the dinner meets which the complainant, Lt. General Sahni and the Presiding Officer of the Court of Inquiry were having during the period the Court of Inquiry proceedings were going on. It was, according to Mr. Sud, impossible to assume that the petitioner’s role, as perceived by Lt. General Sahni, was not discussed by him with the officers comprising the Court of Inquiry.\n<\/p>\n
13. It was lastly contended by Mr. Sud that the demand for career protection of witnesses was a legitimate request which was never considered by the Court of Inquiry or by any superior authority till after the recording of the depositions of the witnesses. The protection that eventually came in the form of Military Secretary letter dated 17th January, 2005 proved meaningless having regard to the fact that the protection was meant to re-assure the witnesses that they would not be victimized or adversely commented upon by the officers against whose declared position they may make a statement in the course of the inquiry. The fact that the protection was eventually granted, signified that the same was needed but was not available when required. The result was that the witnesses remained under the influence of the complainant, Lt. General Sahni not because they were telling the truth but they had no option but to tow the line which Lt. General Sahni had taken. The inquiry proceedings were, in any event, vitiated, contended Mr. Sud, by reason of the violation of Rule 180 inasmuch as the Court of Inquiry had neither allowed the petitioner access to the documents which were essential for his defense nor was he allowed to adduce evidence in defense.\n<\/p>\n
14. On behalf of the respondents, it was, on the other hand, contended by Mr. Tikku that the D.O. letters addressed by Lt. General Sahni to the General Officer Commanding-in-Chief, Northern Command and the members of the Parliament to the defense Minister were inputs on the basis whereof the General Officer Commanding-in-Chief could direct a court of inquiry to be held. It was the satisfaction of the convening Authority regarding the need for holding an inquiry that was important and not the bona fides or the intentions of the persons who had furnished information leading to such an inquiry. It was further argued that the allegations of malafides leveled against the officers of the Court of Inquiry were insufficient to establish a case of bias against them. Merely because in a large establishment, like the Indian Army, some officers are meeting each other on social occasions would not, argued Mr. Tikku, render illegal an order that may otherwise be legal. Insofar as the career protection to the witnesses and the technical advisers were concerned, Mr. Tikku’s contentions was that the same was granted by the Military Secretary and so long as the officers who were examined as witnesses were protected against any adverse comment by the superiors with whom they may have differed in their perceptions on any subject, the purpose of granting protection was served. It was lastly argued by Mr. Tikku that anyone complaining of violation of Rule 180 of the Army rules had to show that he had been prejudiced on account of such a violation. No such prejudice had, according to Mr. Tikku, been claimed by the petitioner or proved in the facts and circumstances of the case.\n<\/p>\n
15. We have given our careful consideration to the submissions made at the bar and perused the record. In the light of the view that we are taking on the question of the violation of the Rule 180 of the Army Rules, we consider it unnecessary to go into the alternative grounds urged by Mr. Sud in support of the writ petition. We would, therefore, confine our discussion to the validity of the proceedings by reference to the alleged violation of Rule 180 of the Army Rules. Rule 180 is as under:\n<\/p>\n
 180. Procedure when character of a person subject to the Act is involved.-Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defense 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 received notice of and fully understands his rights, under this rule.\n<\/p>\n
16. A plain reading of the above would show that the same is intended to give to any person subject to the provisions of the Act full opportunity to defend himself, in any inquiry that my affect his character or military reputation. The opportunity has to be in regard to the following:\n<\/p>\n
1) To be present throughout the inquiry.\n<\/p>\n
2) to make any statement in the inquiry.\n<\/p>\n
3) to give any evidence he may wish to make or give at the inquiry.\n<\/p>\n
4) to cross-examine any witness whose evidence in his opinion affects his character or military reputation.\n<\/p>\n
5) to produce any evidence in defense of his character or military reputation.\n<\/p>\n
17. In order to ensure that no one is deprived of the opportunity granted under Rule 180, the Presiding Officer of the Court of Inquiry has to take such steps as may be necessary to ensure that the person affected and not previously notified receives notice of and fully understands his rights under the Rules. A question that is often asked in any action challenging the Court of Inquiry proceedings is whether Rule 180 supra is mandatory or directory in nature. Courts have examined and answered that question. But before we refer to some of those pronouncements we may briefly deal with the principles that govern interpretation of such statutory provisions.\n<\/p>\n
18. Crawford has in his treatise on statutory interpretation underlined the test applicable for determining the nature of a statute in the following words:\n<\/p>\n
 …the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other….\n<\/p>\n
19. The above passage was quoted by the Supreme Court with approval in State of Uttar Pradesh v. Manbodhan Lal Srivastava<\/a>  where their Lordships were examining the question whether Article 320 of the Constitution of India was mandatory or directory in nature.\n<\/p>\n
20. In Lachmi Narain v. Union of India<\/a> , the apex Court reiterated the tests that are relevant for determining whether a provision is mandatory or directory in nature. The Court observed that if legislative intent is expressed clearly and strongly and in imperative words such as the use of ‘must’ instead of ‘shall’, then the same would in itself be sufficient to hold that the provision is mandatory making it unnecessary for the Court to pursue the enquiry any further. The following passage from that decision is apposite:\n<\/p>\n
 The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of ‘must’ instead of ‘shall’, that will itself be sufficient to hold the provision to be mandatory, and it will not hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of pre-emptory language in a negative form is per se indicative of the intent that the provision is to be mandatory : (Crawford, the Construction of Statutes, pp. 523-524).\n<\/p>\n
21. Applying the dual test of the object underlying the provision and the language employed in the same, we are of the opinion that Rule 180 (supra) is mandatory in character. We say so for two distinct reasons. Firstly, because the use of the words “full opportunity must be afforded” appearing in Rule 180 are a clear enough indication that the rule making authority intended the provision to be mandatory. As observed in Lachmi Narain’s case (supra), the use of words like ‘must’ instead of ‘shall’ is by itself sufficient for the court to declare that the provision is mandatory in nature making pursuit of any further enquiry unnecessary. What puts the matter beyond the pale of any doubt is the obligation which the rule casts upon the presiding officer of the Court to take all such steps as may be necessary to ensure that any person whose character or military reputation is affected by the enquiry receives notice of the enquiry and fully understands his rights under the rule. It leaves no manner of doubt that the requirement of affording an opportunity of being present in the enquiry and of cross-examining the witnesses or giving evidence in defense is mandatory, for otherwise neither the language of the rule would have been what it is nor would the rule have taken that extra care to ensure that those affected by the inquiry not only get a notice, but fully understand their rights under the Rule.\n<\/p>\n
22. The second but an equally weighty reason why the rule must be held to be mandatory is that the same recognizes the need for the grant of an opportunity to an officer to defend his character and reputation in any inquiry where the same is likely to be affected. Reputation and character of an individual are his most valued possessions. They are held in greater esteem than great riches for an injury to ones reputation and character inflicts a greater suffering than is inflicted by loss of property. Reputation of an individual was recognized by the Supreme Court as a part of fundamental right to life guaranteed under Article 21 of the Constitution in State of Bihar v. Lal Krishna Advani and Ors.<\/a> . The Court was in that case dealing with the findings recorded by a Commission of Inquiry without notice to the affected person. Even when the recommendations made by the Commission did not ipso facto result in any punitive action against those affected by the same, their Lordships held that just because no proceedings had been initiated against the affected party did not mean that the findings could not be questioned on the ground of violation of the principles of natural justice. The Court not only recognized the significance of reputation of an individual as one of his most valued possessions, but declared reputation to be a part of the right to life and observed:\n<\/p>\n
 Right to reputation is a facet of the right to life of a citizen under Article 21 of the Constitution. In case any authority, in discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say int eh matter. In such circumstances right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon by a Commission of Inquiry is statutorily recognized and violation of the same will have to bear the scrutiny of judicial review.\n<\/p>\n
23. To the same effect is the decision of the Supreme Court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni  and Kiran Bedi<\/a> v. Committee of Inquiry  which approved the following passage from an American decision in D.F. Marion v. Minnie Davis 55 American LR 171:\n<\/p>\n
 The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.\n<\/p>\n
24. There is in the light of the above, no gainsaying that what the rule making authority intended to do was to ensure that no prejudice is caused to a person whose character or military reputation was likely to be affected by reason of the denial of an opportunity to him to participate in the enquiry, cross-examine the witnesses and to adduce evidence in his defense. It would not, therefore, be unreasonable to say that having regard to the significance attached to the reputation of an individual whether military or otherwise and his character, the right to participate in an enquiry to clear his name by cross-examining the witnesses or adducing evidence in his defense may be implicit in the nature of the enquiry and its implications. So long as the Court of Inquiry proceedings can be used for taking administrative action, as has happened in the instant case, it would be hazardous to recognize the legality of any such inquiry unless there is an inbuilt mechanism ensuring a fair opportunity to the person affected by the same to participate in the inquiry and to prove his innocence. Such being the position, Rule 180 simply codifies the said requirement in explicit terms to avoid miscarriage of justice and complications arising out of a denial of opportunity to the affected person. We have, therefore, no difficulty in holding that Rule 180 of the Army Rules is mandatory in character. We may now briefly refer to the judicial pronouncements on the subject. In Lt. Col. Prithi Pal Singh and Ors. v. UOI and Ors. , one of the questions that fell for consideration of the apex Court was whether convening of a Court of Inquiry was necessary in every case before convening a court martial. The argument advanced on behalf of the petitioner was that whenever the character of a person subject to the Act is involved in an inquiry, a Court of Inquiry must be set up. The Supreme Court repelled that contention and held that it was not necessary to order a Court of Inquiry whenever or wherever the character or military reputation of any person subject to the Army Act was likely to be affected. Having said so, the Court declared that in cases where a Court of Inquiry is ordered, compliance with the provisions of Rule 180 was mandatory and grant of opportunity to everyone likely to be affected in terms of injury to his character or military reputation necessary. The Court observed:\n<\/p>\n
 Mr. Sanghi, however, urged that on a correct interpretation of Rule 180, it would appear that whenever the character of a person subject to the Act is involved in any inquiry, a court of inquiry must be set up. Rule 180 does not bear out the submission. It sets up a stage in the procedure prescribed for the courts of inquiry, Rule 180 cannot be construed to mean that whenever or wherever in any inquiry in respect of any person Subject to the Act his character or military reputation is likely to be affected setting up of a Court of inquiry is a sine qua non. Rule 180 merely makes it obligatory that whenever a court of inquiry is set up and in the course of inquiry by the court of inquiry character or military reputation of a person is likely to be effected then such a person must be given a full opportunity to participate in the proceedings of court of inquiry. Court of inquiry by its very nature is likely to examine certain issue generally concerning a situation or persons. Where collective fine is desired to be imposed, a court of inquiry may generally examine the shortfall to ascertain how many persons are responsible. In the course of such an inquiry there may be a distinct possibility of character or military reputation of a person subject to the Act likely to be affected. His participation cannot be avoided on the specious plea that no specific inquiry was directed against the person whose character or military reputation is involved. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the court of inquiry should be afforded full opportunity so that nothing is done at his back and without opportunity of participation, Rule 180 merely makes an enabling provision to ensure such participation.\n<\/p>\n
25. In Maj. Gen. Inderjit Kumar v. UOI and Ors. , the Supreme Court reiterated that Army Rule 180 gave adequate protection to the person affected even at the stage of Court of Inquiry. A division bench of this Court in Lt. Gen. Surender Kumar Sahni v. Chief of Army Staff and Ors. W.P.<\/a>(C) No. 11839\/2006 decided on 11th January, 2007 examined the nature of Rule 180 of the Army Rules and held the same to be mandatory in character. The Court observed:\n<\/p>\n
None of the cases relied upon by the respondents even remotely suggest that provisions of Rule 180 are not mandatory and are directory. The view taken by all the High Courts and the Hon’ble Supreme Court of India is that wherever reputation and character of a person, subject to Army Act is likely to be affected, the requirements of law is compliance to Rule 180 and to that extent the provisions of Rule 180 are mandatory. Wherever, there is a lapse or default prejudicially affecting the right or protection given to a person in terms of said Rule, the proceedings would be vitiated.\n<\/p>\n
  xxxx
\n xxxx<\/p>\n
 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 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.\n<\/p>\n
  xxxx
\n xxxx<\/p>\n
Another argument advanced on behalf of the respondents is that the provisions of this Rule are not mandatory and even minimum compliance to the requirements of the Rule would achieve the object, as the proceedings contemplated under Rule 22 are in the nature of fresh proceedings where full and complete opportunity in all respects should be provided to the Officer. In other words, the provisions of Rule 22 are a complete safeguard even where there is no complete compliance to the provisions of Rule 180. This argument needs to be noticed only to be rejected. Such an interpretation would entirely defeat the concept of the basic rule of law where the Legislature in its wisdom has opted ‘to grant full opportunity in all respects and complete participation by an Officer whose military reputation or character is affected or is likely to be affected’. It will be impermissible to read such a provision as ‘directory or optional’ at the discretion of the authority.\n<\/p>\n
26. To the same effect are the decision of the High Court of Jammu & Kashmir in Vinayak Daultatrao Nalawade v. Core Commander, Lt. Gen. G.O.C.H.Q. 15 Corps. 1987 Labour Industrial Cases 860 and the Single bench decision of the High Court of Punjab & Haryana in G.S. Sandhu v. UOI and Ors. 2002 (2) SLR 120. There is, in the light of the above authoritative pronouncements, no gainsaying that Rule 180 (supra) is mandatory in character and that violation of the same would vitiate the Court of Inquiry.\n<\/p>\n
27. That brings us to the question whether there was any violation of Rule 180 in the instant case. The petitioner has a two fold grievance in that regard. Firstly it is alleged that documents relevant to the inquiry were not supplied to him despite demand. Secondly it is contended that the petitioner was not allowed to adduce evidence in defense of his character and military reputation. Since a feeble attempt was made on behalf of the respondents to urge that the request for documents and for examination of witnesses was made after the findings had been recorded by the Court of Inquiry, we had summoned for our perusal the relevant official record from which it is evident that findings of the inquiry qua the petitioner were recorded on 17th March, 2006. While, according to the petitioner, the Court of Inquiry had been re-assembled in June, 2006 and eventually concluded in July, 2006, according to the respondents, the entire inquiry so far as the petitioner was concerned stood concluded and the findings recorded on 17th March, 2006. Re-assembling of the Court of Inquiry in June, 2006 was, according to the respondents, only with a view to ensuring compliance with the provisions of Rule 180 qua other officers in which connection the petitioner had no doubt been summoned but only as a witness and for cross-examination by officers about whom he had made a statement.\n<\/p>\n
28. The controversy regarding the date on which the Court of Inquiry proceedings concluded is, in our opinion, academic in the peculiar facts and circumstances of the present case. It is unnecessary for us to determine whether the Court of Inquiry concluded qua the petitioner on 17th March, 2006 as alleged by the respondents or in July, 2000, as alleged by the petitioner. We say so, because even if the court of Inquiry is deemed to have concluded qua the petitioner in March, 2006, the request for copies of the documents was made by the petitioner earlier than the said date. So also permission to examine some witnesses in defense had been sought by the petitioner before the recording of the findings by the Court of Inquiry. That being so, even assuming the date of conclusion of the Court of Inquiry to be March, 2006, the request for copies of the documents and for permission to examine the witnesses could not be said to be belated as argued by Mr. Tikku. This is evident from the documents placed on record as also the pleadings of the parties to which we may briefly refer before proceeding further.\n<\/p>\n
29. The request for examining a witness in defense was made by the petitioner for the first time on 23rd November, 2005. It was then followed by another request made on 24th January, 2006 when the petitioner named Major General G.S. Dhillon as a witness in his defense. This was followed by another letter dated 1st February, 2006 in which the petitioner pointed out that since Lt. Col. R.S. Rawat whom he had earlier wished to examine as a defense witness was not for some reason available, he would examine Brig. V. Suresh Nair as a witness in his defense. A letter dated 18th February, 2006 addressed to the General Officer Commanding-in-Chief, Northern Command reiterated the request for examining Major General G.S. Dhillon and Brig V. Suresh Nair as witnesses in his defense and sought intervention of the Army Commandor to ensure that the witnesses are made available to the petitioner. In response, the petitioner was informed by the Headquarter, Northern Command that the issue regarding summoning of witnesses in defense had to be decided by the Presiding Officer and members of the Court of Inquiry. This was followed by another letter dated 16th March, 2006 received by the petitioner from the Presiding Officer of the Court of Inquiry declining the permission to examine Major General G. S. Dhillon and Brig. V. Suresh Nair on the ground that the petitioner had already cross-examined 18 witnesses under Army Rule 180 and that further cross-examination of witnesses shall serve no purpose  other than delaying the Court of Inquiry proceedings.  This letter may be extracted for ready reference:<\/p>\n
\n  \n\nDCOAS (P&s) Sectt \nRoom No. 261, South Block \nArmy Headquarters \nNew Delhi-110011\n 00059\/DCOAS (P&S) Sectt.                                                16 Mar 06\n \n\nLt Gen SK Dahiya \nASC Centre and College \nPIN - 900493 \nC\/o 56 APO\n \n\nCOURT OF INQUIRY : MEAT FROZEN CONTRACT\n  \n\n1. Please ref your letter No 19407\/SKD dt 24 Jan 06 and letter No 19406\/SKD\/Pers dt 01 Feb 06 requesting for Maj Gen GS Dhillon and Brig V Suresh Nair, SM, VSM to depose as witnesses.\n \n\n2. The issue has been deliberated upon by the Court. The Court is of the opinion that you have already cross examined 18 witnesses under AR 180, therefore, further cross examination of witnesses shall serve no purpose other than delaying the C of I proceedings. Hence, your request is not agreed to.\n \n\n Sd\/- \n (GD Singh) \nLt Gen \nPresiding Offr\n \n\n<\/pre>\n
30. A palpable infraction of Rule 180 is evident from the above communication. The petitioner’s request to examine witnesses in defense of his character and military reputation could not be disallowed so long as such witnesses were in his opinion necessary. The reason given by the court in inquiry for denying to the petitioner, the opportunity to examine the witnesses is, in our view, wholly irrelevant and therefore legally unsustainable. Just because the petitioner had already cross-examined 18 witnesses under Army rule 180 was no reason for the Court of Inquiry to decline permission to him to produce any witness in defense of his character or military reputation. The court of inquiry remained oblivious of the distinction between the right to cross-examine a witness which is distinctly different from the right to adduce evidence in defense. The number of witnesses cross-examined had nothing to do with the right of the petitioner to vindicate his position on the basis of evidence adduced in defense. The Court of Inquiry thus fell in a palpable error in denying to the petitioner the opportunity to examine the two witnesses cited by him.\n<\/p>\n
31. Coming then to the second limb of the challenge urged by the petitioner, we find that the petitioner had made a request for supply of the following three documents.\n<\/p>\n
a) DO letter dt 18 Mar 05 from Lt Gen SK Sahni, AVSM, DGST to GOC-in-C Northern Comd, based on its contents AR 180 was applied to me.\n<\/p>\n
b) HQ Northern Comd letter No 22001\/1123\/DV dt 16 Aug 05 addsd to ADG DV, Army HQ.\n<\/p>\n
c) HQ Northern Comd convening order No 22001\/1123\/DV-3 dt 06 Oct 05.\n<\/p>\n
32. The above letters had been, it appears admitted in evidence before the Court of Inquiry and formed part of its record but copies of the same had not been supplied. The petitioner’s request made in terms of letter dated 1st February, 2006, 6th February 2006 and 18th February, 2006 was that copies of the above documents be provided to him to enable him to defend his interest in the Inquiry adequately. Letter dated 6th February, 2006 in which the documents have been demanded from the Presiding Officer of the Court of Inquiry reads as under:\n<\/p>\n
IC-19407-L                                                     ASC Centre and College\nLt. Gen. S.K. Dahiya                                           PIN-900493\n                                                               C\/O 56 APO\n19407\/SKD\/Pers (FMC)                                           06 Feb 2006\nLt. Gen. G.D. Singh, PVSM, AVSM\nPresiding Officer\n \n\nCOURT OF INQUIRY: MEAT FROZEN CONTRACT\n \n\nSir,\n \n\n1. Please ref AR 184 duly amended vide SRO 44\/85 dt 24 Jan 1985 (extract att for read ref).\n \n\n2. You are requested to provide me a copy each of the following letters:\n  \n\na) DO letter dt 18 Mar 05 from Lt Gen SK Sahni, AVSM, DGST to GOC-in-C Northern Comd, based on its contents AR 180 was applied to me.\n \n\nb) HQ Northern Comd letter No 22001\/1123\/DV dt 16 Aug 05 addsd to ADG DV, Army HQ.\n \n\nc) HQ Northern Comd convening order No 22001\/1123\/DV-3 dt 06 Oct 05.\n \n\n3. These letters have been admitted in evidence before the Court of Inquiry and form part of its record. In order to enable me to defend my interest in the Inquiry adequately, I need to refer to the said documents. I, therefore, request you to make a copy each of the said documents available to me at the earliest and in any case before the closing of the Inquiry.\n \n\n Thanking you, \n Yours Faithfully \nSd\/- \nSK Dahiya\n \n\n<\/pre>\n
33. It is not in dispute that copies of the documents demanded by the petitioner were never supplied to him. The petitioner has made a specific assertion to that effect in paras 31-A, D, E of the writ petition. The respondents have in the counter affidavits filed by them admitted that the documents were not furnished. This is evident from the following passage appearing in the counter affidavit filed by them:\n<\/p>\n
The contention of the petitioner that in terms of AR-184 (2) he has been denied copies of relevant documents particularly, convening order and the DO letter containing allegations against him is incorrect as already stated above, the said documents were read out in his presence and thus he was fully aware of its contents
\n xxxxxxxxxxx
\nxxxxxxxxxxx<\/p>\n
The petitioner was not entitled to the recommendations of one man inquiry as held prior to the C of I and was therefore rightly not provided with the same. However, letter No 22001\/1123\/DV-3 dated 15 Oct 05 was duly produced as an exhibit in the Court of Inquiry in the presence of the petitioner as exhibit 23.\n<\/p>\n
34. It is manifest from the above that the documents demanded by the petitioner were not furnished to him even when the said documents formed a part of the proceedings of the Court of Inquiry, which clearly meant that they were considered to be relevant to the issues being examined by the Court of Inquiry. The respondents all the same argued that the documents having been read over in the presence of the petitioner, there was no prejudice caused to him and that the recommendations of the one man inquiry which the petitioner had demanded were not provided to him as he was not entitled to the same. There is in our opinion no merit in that contention. Rule 180 envisage “Full Opportunity” to be afforded to the person whose character or military reputation is likely to be affected in the inquiry. The expression “Full Opportunity” appearing in Rule 180 leaves no manner of doubt that if no opportunity is afforded or if the opportunity is not full, the same would not meet the requirements of Rule 180. Reading out the documents especially when some of them run in scores of pages is no substitute for providing to the officer concerned a copy of such documents. If the documents were relevant to the inquiry as indeed was the position in the instant case and if the Court of Inquiry had considered it necessary or fair to read the same over to the petitioner, there was no earthly reason why copies of the documents could not be furnished especially when the same would enable the petitioner to formulate his response in defense to the charge of irregularities. There is also no gain saying that the right of making a statement, of giving any evidence and of cross-examining any witness or producing any witness in defense of his character or military reputation would include the right to receive from proper custody the documents that are relevant for that purpose. The right of cross-examination or the right to make a statement or adduce defense evidence would be rendered illusory if the Court of inquiry who has exclusive custody over the documents that are relevant to the controversy deprives the officer of an opportunity to look into those documents or to use the same for establishing his defense. We, therefore, have no hesitation in holding that the provisions of Rule 180 of the Army Rules were violated not only in regard to the petitioner’s right to adduce evidence in his defense but also in regard to his right to demand copies of documents forming part of the inquiry.\n<\/p>\n
35. The award of severe displeasure (recordable) is, in the present case, referable to and based entirely on the findings recorded by the court of inquiry. It was fairly conceded by Mr. Tikku, learned Counsel for the respondents that in case the court of inquiry proceedings were held to be vitiated on account of violation of Rule 180, the consequential order awarding a severe displeasure must also be held to be bad. That being the position, the illegality attached court of inquiry would render even the punishment awarded to the petitioner as illegal.\n<\/p>\n
36. The next question then is whether the petitioner is entitled to a mandamus directing the respondents to appoint him as Director General (Supply & Transport). On behalf of the petitioner, it was argued by Mr. Sud that since the refusal of the Government to appoint the petitioner as Director General (Supply & Transport) was based entirely on the severe displeasure awarded to the petitioner and since the said punishment is rendered illegal on account of violation of Rule 180 of the Army Rules, there is no reason why the petitioner should be denied an appointment which marks the logical culmination of his career. He argued that the post of Director General (Supply & Transport) was vacant since 1st October, 2006 after the retirement of Lt. Gen. Sanghi and that even when the Army Headquarter had twice recommended the appointment of the petitioner as Director General (Supply & Transport), the said proposal was turned down not because the petitioner was not eligible for the same but because a severe displeasure (recordable) had been awarded to him on the basis of the court of inquiry proceedings. He urged that if the court of inquiry proceedings and the severe displeasure (recordable) were quashed, there is nothing which the respondents can possibly hold against the petitioner to prevent his appointment as Director General (Supply & Transport). Relying upon S.K. Ghosh v. C. Utkal University , Nalini v. District Magistrate (1950) 55 CWN 297, State of Bombay v. K.P. Krishnan  and Kumaon Mandal Vikas Nigam Ltd.<\/a> v. Girja Shankar Pandit and Ors. (2001) 1 SCC 182, Mr. Sud argued that this Court could issue a mandamus to the respondents to appoint the petitioner as DGST.\n<\/p>\n
37. On behalf of the respondents, it was on the other hand argued by Mr. Tikku that even when the court strikes down the court of inquiry proceedings and the punishment awarded to the petitioner on the basis thereof, the petitioner does not have any vested or enforceable legal right to seek appointment as Director General (Supply & Transport). He urged that the petitioner could at best seek consideration of his claim for such an appointment which was more in the nature of giving him a posting rather than any monetary or other benefit in the form of a higher rank. He submitted that it was for the Government to fill up the post of Director General (Supply & Transport) and in case it decided not to do so, an eligible candidate had no fundamental or other right to demand his appointment against the same even when he may be, like the petitioner in the instant case, the only candidate eligible for such an appointment.\n<\/p>\n
38. We have given our careful consideration to the submissions made at the bar. It is evident from the record which was produced before us by the respondents that the petitioner’s appointment as Director General (Supply & Transport) was twice proposed by the Army Headquarters but turned down by the Government. The only reason which the Government recorded in support of that decision was that the petitioner had been awarded a severe displeasure (recordable) on the basis of a court of inquiry and that an appointment which put him at the head of the organization so soon after such a punishment would send wrong signals to the public especially when the matter was already appearing in the media. That reason in our view no longer remains available to the Government. As noticed earlier, the court of inquiry proceedings have been found to be vitiated by reason of the violation of Rule 180 of the Army Rules. As a consequence of that finding, even the order of punishment awarding severe displeasure (recordable) shall have to go since the same was founded entirely on the findings recorded by the court of inquiry. The result would then be that the Government can no longer cite the findings recorded by the Court of Inquiry or the punishment awarded to the petitioner in support of its decision to deny to the petitioner appointment as Director General (Supply & Transport). The quashing of the court of inquiry proceedings and the order of punishment would, in that context, emerge as a subsequent development that would in turn call for a fresh look on the proposal mooted by the Army Headquarters for the appointment of the petitioner as Director General (Supply & Transport). Although according to the petitioner, a mandamus can be issued to the Government straight way to appoint the petitioner as Director General (Supply & Transport), we are of the view that we need not necessarily follow that course. Interest of justice would, in our opinion be sufficiently served if we direct the Government to reconsider the proposals made to it by the Army Headquarters for appointment of the petitioner as Director General (Supply & Transport), in the light of the changed scenario in which the reasons earlier given by the Government for not appointing the petitioner are no longer available. We are also of the view that while considering the petitioner’s case for such an appointment, the Government shall not hold the reduced residual service of the petitioner against him. That is so because of the solemn assurance given by the Government before this Court that in case the petitioner eventually succeeds, he shall not be deprived of an appointment against the post of Director General (Supply & Transport) only because of his residual service being less than one year must be made good by it. That assurance was recorded by us in our order dated 8th March, 2007 in the following words:\n<\/p>\n
 Mr. Sood, senior counsel appearing for the petitioner submits that the matter has been under consideration of the government for a long time and that any further delay in taking a decision is likely to create difficulties in the petitioner’s posting as according to the standing instructions issued by the government from time to time, any person to be posted as Director General Supply and Transport must have a residual service of at least one year from the date of his appointment. In case a decision is not taken earlier and the matter disposed of by passing appropriate directions, the petitioner may fall on the wrong side of those instructions and be denied a posting for no fault of his and only because the Government had delayed its decision or the matter remained pending in this Court for adjudication. Mr. Tikku has, however, no objection to this Court clarifying that in case there is any delay in a decision being taken by the government at the appropriate level or in the adjudication of this matter by this Court, this Court would be free to issue appropriate directions even in the teeth of the circulars and standing orders stipulating a tenure for the post in question. That submission is recorded and the petition adjourned to be posted again on 20.03.2007<\/p>\n
39. In the result, we allow this petition; quash the court of inquiry proceedings in so far as the same relates to the petitioner and the consequential order awarding a severe displeasure (recordable) by way of punishment. As a consequence, we quash the government decision communicated to the petitioner in terms of communication dated 3rd May, 2007 declining to appoint the petitioner as Director General (Supply & Transport) and direct the Government to consider the petitioner for appointment as Director General (Supply & Transport) afresh without taking into consideration the findings of the court of inquiry or the punishment awarded to the petitioner which we have hereby quashed. The needful shall be done by the respondents expeditiously but not later than four weeks from today. The petitioner shall also be entitled to costs of Rs.5000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Lt. General S.K. Dahiya vs Union Of India (Uoi) And Ors. on 24 August, 2007 Author: T Thakur Bench: T Thakur, S Aggarwal JUDGMENT T.S. Thakur, J. 1. In this petition for a writ of certiorari, the petitioner calls in question the legality of a Court of Inquiry proceeding and the severe […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-112049","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nLt. General S.K. Dahiya vs Union Of India (Uoi) And Ors. on 24 August, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lt-general-s-k-dahiya-vs-union-of-india-uoi-and-ors-on-24-august-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lt. General S.K. 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