Order Convening General Court Martial Can Be Challenged Before AFT: SC

                                       In an interesting and significant development, the Supreme Court in Union Of India & Ors. Vs. P.S. Gill in Criminal Appeal No. 404 of 2013 decided on November 27, 2019 has held clearly and convincingly that an order convening a General Court Martial (GCM) can be challenged before an Armed Forces Tribunal (AFT). While differing with an order of the AFT, the Union of India had approached the top court claiming that an order by which the GCM was convened cannot be the subject matter of an appeal before the Tribunal. It was also contended that the jurisdiction of the Tribunal is only for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the Court Martial.  But it got no relief on this and the top court made the picture clear by holding clearly and convincingly what has been stated above. It merits no reiteration that this should now certainly put to rest all speculations on this important topic.

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice L Nageswara Rao for himself and Justice Hemant Gupta wherein it is observed that, “The Union of India is in Appeal against the judgment of the Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter, ‘the Tribunal’) quashing the order dated 23.02.2010 by which General Court Martial was convened against the Respondent.”

                                To recapitulate, it is then pointed out in para 2 that, “In the year 2005, the Chief of the Army Staff directed an investigation by the Court of Inquiry into the allegations pertaining to irregularities in procurement of ration, as a result of which the quality of supplies for the troops was compromised. A Court of Inquiry was convened on 10.10.2005 by the General Officer Commanding-in-Chief (GOC-in-C) Western Command to identify the Army personnel responsible for the aforementioned irregularities. Twenty-three witnesses were examined by the Court of Inquiry. The Court of Inquiry identified Twelve Army personnel who were prima facie responsible for the said improprieties. The Respondent who was working as the Chief Director of Purchase (CDP), Army Purchase Organisation, Ministry of Defence was one out of the twelve persons against whom a prima facie case was found. Disciplinary action was also initiated against the Respondent by the GOC-in-C, Western Command on 14.06.2006 which was challenged by the Respondent by filing a Writ Petition in the High Court of Delhi. By an order dated 11.01.2007, the High Court quashed the Court of Inquiry on the ground that Rule 180 of the Army Rules, 1954 (hereinafter, ‘the Army Rules’) was violated. However, an option was given to the Appellants to either hold a fresh Court of Inquiry after complying with Rule 180 of the Army Rules or to proceed directly under Rule 22 by hearing the charge without relying on the Court of Inquiry. The Court of Inquiry was re-constituted pursuant to the option given by the High Court. Later, the Appellants sought a modification of the order dated 29.07.2008 and informed the High Court that proceedings would be initiated under Rule 22 of the Army Rules since most of the officers involved had already retired and that it would be difficult to re-constitute a Court of Inquiry. The High Court permitted the Appellants to proceed under Rule 22 with the condition that no reliance can be placed on the old Court of Inquiry. The order of the Chief of the Army Staff by which cognizance was taken of the offences and the attachment order issued on 26.09.2008 were the subject matter of another Writ Petition filed by the Respondent in the High Court of Delhi which was dismissed on 03.10.2008.”

                                   While elaborating further, it is then enumerated in para 3 stating that, “A hearing of the charge under Rule 22 against the Respondent was convened on 08.12.2008 and recording of summary of evidence under Rule 23 of the Army Rules was ordered against the Respondent on 24.12.2008. The Commanding Officer of the Respondent i.e. General Officer Commanding (GOC), 15 Infantry Division found that no offence was prima facie made out against the Respondent. The said view was approved by the GOC, 15 Corps on 28.04.2009. In the meanwhile, the Respondent retired on attaining the age of superannuation on 31.05.2009. However, Section 123 of the Army Act, 1950 was invoked by the Appellants to continue the proceedings against the Respondent. The GOC-in-C, Western Command examined the matter and the recommendations made by the GOC, 15 Infantry Division and GOC, 15 Corps and arrived at a conclusion that a prima facie case was made out against the Respondent. An attempt was made by the Respondent to challenge the findings of the GOC-in-C, Western Command, but in vain. The General Court Martial was convened by a letter dated 23.02.2010. The Respondent filed O.A. No. 147 of 2010, assailing the validity of the order convening the General Court Martial. He also sought for quashing the proceedings of the Court of Inquiry, summary of evidence and the conclusion of the GOC-in-C, Western Command holding him prima facie guilty. He further questioned the invocation of Section 123 of the Army Act against him to continue the proceedings even after his retirement. He also sought promotion to the rank of Major General along with his batchmates.”

                                         As it turned out, para 4 then holds that, “The Tribunal held that a prima facie case to proceed against the Respondent by a General Court Martial was not made out. The Tribunal was of the opinion that even if the entirety of evidence of the prosecution is taken to be true, no offence was made out against the Respondent. The Appellants made an attempt to obtain leave to Appeal under Section 31 of the Armed Forces Tribunal Act, 2007 (hereinafter, ‘the Act’) to approach this Court, which was not entertained. Aggrieved by the judgment of the Tribunal, the above Appeal is filed.”

                                   Be it noted, para 13 points out that, “At the outset, it is relevant to note that the O.A. was filed both under Sections 14 and 15 of the Act. Section 15 confers jurisdiction and power on the Tribunal to entertain appeal against any order, decision, finding or sentence passed by a Court Martial.”

                                   To put things in perspective, it is then pointed in para 14 that, “Section 15 (2) of the Act provides for an appeal which can be filed by the person aggrieved by an order, decision, finding or sentence passed by a Court Martial. The order challenged in the OA in this case is a proceeding by which the General Court Martial was convened. As there was no order, decision, finding or sentence by the Court Martial, an appeal under Section 15 per se is not maintainable.”

                                          While explaining the purpose of Section 14, it is then made clear in para 15 that, “Section 14 enables a person aggrieved to make an application to the Tribunal in any service matter. ‘Service matters’ are defined in Section 3 (o) to mean all matters relating to the conditions of their service, which shall include termination of service, inter alia. There are some matters which are excluded from the purview of the definition of ‘service matters’. There is no dispute in this case that the said exclusions do not come into play.”

                                      Of course, it is then also made clear in para 16 that, “Any matter relating to the conditions of service falls within the definition of ‘service matters’ under Section 3 (o) of the Act and can be the subject matter of an application filed before the Tribunal. ‘Conditions of service’ mean those conditions which regulate the holding of a post by any person right from the time of his appointment till his retirement and even after his retirement including pension etc. Therefore, conditions of service also include dismissal from service [State of Maharashtra v. Marwanjee Desai, (2002) 2 SCC 318].”

                                        To put it succinctly, the foregoing discussion leads the Bench to hold in para 18 that, “It is clear from the above that any proceeding which leads to an order of termination would fall within the expression ‘relating to conditions of service’. In any event, the proceedings initiated against the Respondent cannot be said to be not related to his service. A final order to be passed by the General Court Martial, apart from the imposition of other penalties, might have led to the termination of the service of the Respondent.”

                                      More importantly, the Bench then very rightly holds in para 19 that, “We have no doubt in our mind that Section 14 of the Act which confers jurisdiction over service matters of the Army personnel should receive wide construction. This Court had held that an interpretation which confers jurisdiction should be preferred over an interpretation which takes away jurisdiction. [Mantri Techozone v. Forward Foundation, 2019 SCC Online SC 322 (3JB).”

                                 Most importantly, it is then observed in para 20 that, “We are also conscious that the object with which the Act was made is to provide adjudication of complaints and disputes regarding service matters and not only appeals against the verdicts of the Court Martial. It is trite law that statement of objects and reasons can be used as a tool for interpretation. [S.S. Bola v. B.D. Sharma (1997) 2 SCC 522, State of Maharashtra v. Marwanjee F. Desai, (2002) 2 SCC 318]. The sequitur of the above discussion is that the impugned judgment of the Tribunal does not suffer from lack of jurisdiction.”

                                   Going ahead, it is then held in para 21 that, “Regarding the charges sought to be framed against the Respondent, we do not find any error in the approach of the Tribunal. The material on record was perused by the Tribunal to come to a conclusion that no prima facie case is made out against the Respondent. We do not see any reason to interfere with the said findings.” Finally, it is then held in the last para 22 that, “Accordingly, the Appeal is dismissed.”

                                      To summarise, we see that the Apex Court Bench in this latest, landmark and extremely laudable judgment very rightly upholds the AFT order. It has been very rightly held that an order convening a GCM can be challenged before an AFT. It was also rightly submitted by Mr K Ramesh that jurisdiction of the Tribunal cannot be curtailed on pedantic grounds and the order by which General Court Martial was convened was rightly set aside by the Tribunal. No wonder that the Apex Court Bench comprising of Justice L Nageswara Rao and Justice Hemant Gupta very rightly upheld the bona fide submission of the learned counsel Mr K Ramesh and emphatically ruled in his client’s favour while rejecting the submissions made by Ms. Diksha Rai who was the learned counsel appearing for the Appellant who contended that the judgment of the Tribunal is vitiated due to a jurisdictional error! There can be no denying or disputing it!

Sanjeev Sirohi

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