2020 Judgments On Military Law

JUDGMENTS ON MILITARY LAW : 2020
INDEX
1. Balakrishna Ram v. UoI, 2020 (2) SCC 442 2

2. Cdr N. Rajesh Kumar v. Uol, AFT PB, 2020 SCC 14
Online AFT 1086
3. Gnr Virendra Prasad v. Uol, 2020 SCC Online SC 339 50
4. Manish Kumar Mishra v. Uol, Alld HC FB-2020 SCC 53
Online All 535
5. Pravin Kumar v. Uol, 2020 (9) SCC 471 107
6. Ravi Sankar Singh v. Uol, AFT RB Lko, 2020 SCC 120
Online AFT 2558
7. Sanjay Maruti Rao Patil v. Uol, SC 24 Jan 2020 122
8. Uol v Chandra Bhushan Vadav, 2020 (2) SCC 747 131
9. Uol v Virendra Kumar, 2020 (2) SCC 714 140
10. Uol v. Lt Col SS Bedi, 2020 (8) SCC 700 149
11. Uol v. R Karthik-2020 (2) SCC 782 154
12. Secy MoD v. Babita Puniya, 2020 (7) SCC 469 159
13. Uol v. Lt Cdr Annie Nagaraja, 2020 SCC Online SC 199
326
14. Uol v. Brig Balbir Singh, 2020 SCC Online SC 40 229
15. Nalin Kumar Bhatia v. Uol, 2020 (4) SCC 78 232
16. Surg Lt Cdr Trisha Taralkar v. DG MAP-Bom HC, 2020 240
SCC Online Born 154
17. Lt Col PK Choudhary v. Uol, Del HC, 2020 SCC Online 244
Del 915
18. Col Amit Kumar v. Uol, Del HC, 20 Oct 2020 255
19. Rachana Kumari v. Uol, AFT PB, 2020 SCC Online 267
AFT 1684
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442 SUPREME COURT CASES (2020) 2 sec

(2020) 2 Supreme Court Cases 442
2020 (BEFORE DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ .)
Jan. 9 a
BALKRISHNA RAM Appellant;
Versus
2-Judge UNION OF INDIA AND ANOTHER Respondents.
Bench Civil Appeal No. 131 of 202ot, decided on January 9, 2020
A. Constitution of India - Arts. 226 and 32 - Maintainability of writ
petition - Alternative remedy/Exhaustion of remedies - Held, principle b
that High Court should not exercise its extraordinary writ jurisdiction when
efficacious alternative remedy is available is a rule of prudence and not rule
of law - Existence of such remedy does not mean that jurisdiction of High
Court is ousted - Rule of alternative remedy is a rule of discretion and not
rule of jurisdiction - Merely because court may not exercise its jurisdiction
is no ground to hold that it has no jurisdiction - In relation to orders C
passed by Armed Forces Tribunal (AFT), High Court would be justified in
exercising its writ jurisdiction because of some glaring illegality committed
by AFT - Besides, alternative remedy must also be efficacious - To expect
a Non-Commissioned Officer (NCO) or Junior Commissioned Officer (JCO)
to approach Supreme Court in every case may not be justified because it
is extremely difficult and beyond monetary reach of ordinary litigant to
d
approach Supreme Court - Thus, exercise of writ jurisdiction against orders
of AFT is within discretion of High Court and there cannot be blanket ban on
exercise of such jurisdiction
- Armed Forces - Armed Forces Tribunal Act, 2007 - Ss. 14, 15 and
34 - Recourse to writ jurisdiction of High Court against orders of AFT -
When available (Paras 8 to 17)
e
B. Armed Forces -Armed Forces Tribunal Act, 2007 - Ss. 14, 15 and
34 - Jurisdiction, powers and authority of Armed Forces Tribunal (AFT) -
Writ jurisdiction of High Court - Extent to which affected by 2007 Act -
Principle of exhaustion of efficacious alternative statutory remedy re exercise
of writ jurisdiction, held, is merely a rule of prudence and discretion and not
a rule of law (see in detail Shortnote A)
f
- Transfer of pending cases - Appeal against order of Single Judge
deciding a case related to an Armed Forces personnel pending in High Court,
further held, cannot be transferred to Armed Forces Tribunal (AFT), as other
than intra-court appeals provided for under letters patent or any other statute,
order of High Court can be challenged only in Supreme Court (see in detail
Shortnote C)
g
- Held, S. 14(1) clearly provides that AFT would exercise powers of all
courts except powers of Supreme Court or High Court exercising jurisdiction
under Arts. 226 and 227 of the Constitution - Thus, AFT is not vested with
jurisdiction of High Court under Art. 226 of the Constitution - High Court
t Arising out of SLP (C) No. 6999 of 2017. Arising from the Judgment and Order in Union of India h
v. Balkrishna Ram, 2016 SCC OnLine All 3554 (Allahabad High Court, Special Appeal No. 740
of 2008, dt. 20-12-2016)
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BALKRISHNA RAM v. UNION OF INDIA 443

can exercise its writ jurisdiction even in respect of orders passed by AFT
- Further held, since appeal lies to Supreme Court against order of AFT,
a High Court may not exercise its extraordinary writ jurisdiction because there
is an efficacious alternative remedy but that does not mean that High Court
is denuded of its writ jurisdiction - High Court in given circumstances may
and can exercise its extraordinary writ jurisdiction even against orders of AFT
- Moreover, power of judicial review vested in High Court and Supreme
Court which is part of basic structure of Constitution cannot be taken away
b and can be exercised with regard to orders passed by AFT - Further, fact
that proceedings on original side even in exercise of writ jurisdiction are to be
transferred to Tribunal because original jurisdiction now vests in AFT does not
mean that AFT can exercise all powers of High Court - Constitution of India
- Arts. 226, 227, 214, 215, 323-A and 323-B - Principle of exhaustion of
efficacious alternative statutory remedy re exercise of writ jurisdiction, held, is
merely a rule of prudence and discretion and not a rule oflaw (Paras 8 to 17)
C
C. Constitution of India - Arts. 214, 215, 226 and 227 - High Courts
- Jurisdiction and Powers - Forum competent to entertain challenge to
order of High Court - Held, High Court is a constitutional court constituted
under Art. 214 of the Constitution and is a court of record within meaning of
Art. 215 - Order of High Court can be challenged only in Supreme Court
- Provision of intra-court appeal whether by way of letters patent or special
d appeal provides for correction of judgments within High Courts and does not
lie in all cases but must be provided for either under letters patent or any other
special enactment
- Courts, Tribunals and Judiciary - High Courts - Jurisdiction and
Powers - Generally (Para 17)
e Held:
The principle that the High Court should not exercise its extraordinary writ
jurisdiction when an efficacious alternative remedy is available, is a rule of
prudence and not a rule of law. The writ courts normally refrain from exercising
their extraordinary power if the petitioner has an alternative efficacious remedy.
The existence of such remedy however does not mean that the jurisdiction of the
High Court is ousted. At the same time, it is a well settled principle that such
f
jurisdiction should not be exercised when there is an alternative remedy available.
The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction.
Merely because the Court may not exercise its discretion, is not a ground to
hold that it has no jurisdiction. There may be cases where the High Court would
be justified in exercising its writ jurisdiction because of some glaring illegality
committed by AFT. One must also remember that the alternative remedy must
g be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior
Commissioned Officer (JCO); to expect such a person to approach the Supreme
Court in every case may not be justified. It is extremely difficult and beyond the
monetary reach of an ordinary litigant to approach the Supreme Court. Therefore,
it will be for the High Court to decide in the peculiar facts and circumstances of
each case whether it should exercise its extraordinary writ jurisdiction or not. There
cannot be a blanket ban on the exercise of such jurisdiction because that would
h
effectively mean that the writ court is denuded of its jurisdiction to entertain such
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writ petitions which is not the law laid down in L. Chandra Kumar, (1997) 3 SCC
261. (Para 14)
The High Court is a constitutional court constituted under Article 214 of the a
Constitution and are courts of record within the meaning of Article 215. It is
obvious that the order of the High Court cannot be challenged before any other
forum except the Supreme Court. The provision of intra-court appeal whether by
way of letters patents or special enactment is a system that provides for correction
of judgments within the High Courts where a judgment rendered by a Single Judge
may be subject to challenge before a Division Bench. This appeal to the Division
Bench does not lie in all cases and must be provided for either under the letters b
patent or any other special enactment. Even where such appeal lies the appeal is
heard by two or more Judges of the High Court. A situation where an appeal against
the order of a sitting Judge of the High Court is heard by a Tribunal comprising
of one retired Judge and one retired Armed Forces official cannot be envisaged.
Therefore, the contention that an intra-court appeal from the judgment of a Single
Judge of the High Court to a Division Bench pending in the High Court is required C
to be transferred to AFT under Section 34 of the Act, is rejected. (Para 17)
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577; Union of
India v. T.R. Varma, AIR 1957 SC 882; Rojer Mathew v. South Indian Bank Ltd., 2019 SCC
OnLine SC 1456, relied on
Union of India v. Balkrishna Ram, 2016 SCC OnLine All 3554, affinned
Nand Kishore Sahoo v. Chief ofAnny Staff, 2012 SCC OnLine All 3559, approved
d
Union of India v. Shri Kant Shanna, (2015) 6 SCC 773 : (2015) 2 SCC (L&S) 386, clarified
and held, partly per incuriam
Union of India v. Ram Baran, 2010 SCC OnLine All 3387, overruled
Nand Kishore Sahoo v. Chief ofArmy Staff, 2011 SCC OnLine All 2853, referred to
R.K. Jain v. Union of India, (1993) 4 sec 119 : 1993 sec (L&S) 1128, cited
D. Armed Forces - Discharge/Dismissal - Appellant failing aptitude
e
test - Contention that, nevertheless, he should have been considered for
alternative service but discharge order did not indicate that such exercise was
undertaken - Held, not necessary to indicate in discharge order whether
said exercise was undertaken - However, on facts held, appellant was
considered for two categories but unfortunately could not meet height criteria
for appointment to either posts (Para 19)
Appeal dismissed P-D/63529/CL f
Advocates who appeared in this case :

Ms Preetika Dwivedi, Advocate, for the Appellant.
Chronological list of cases cited on page(s)

1. 2019 SCC OnLine SC 1456, Rojer Mathew v. South Indian Bank Ltd. 452e-f
2. 2016 SCC OnLine All 3554, Union of India v. Balkrishna Ram 446e g
3. (2015) 6 sec 773: (2015) 2 sec (L&S) 386, Union
of India v. Shri Kant Shanna (held, partly per
incuriam) 446e-f, 451a, 451b, 45le-f,
452d
4. 2012 SCC OnLine All 3559, Nand Kishore Sahoo v. Chief of Army Staff 446c-d
5. 2011 SCC OnLine All 2853, Nand Kishore Sahoo v. Chief of Army Staff 446c
6. 2010 SCC OnLine All 3387, Union of India v. Ram h
Baran (overruled) 446a, 446b-c, 446d-e
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BALKRISHNA RAM v. UNION OF INDIA (Deepak Gupta, J.) 445

7. (1997) 3 SCC 261 : 1997 SCC (L&S) 577, L. Chandra Kumar v.
Union of India 447b-c, 448c-d, 448d-e,
451a-b, 452c-d
a 8. (1993) 4 sec 119 : 1993 sec (L&S) 1128, R.K. Jain v. Union of India 449d-e
9. AIR 1957 SC 882, Union of India v. T.R. Vanna 452a
The Judgment of the Court was delivered by

DEEPAK GUPTA, J.-Leave granted. One of the issues raised in this appeal
is whether an appeal against an order of a Single Judge of a High Court deciding
b
a case related to an Armed Forces personnel pending before the High Court is
required to be transferred to the Armed Forces Tribunal or should be heard by
the High Court.
2. The Armed Forces Tribunal (AFT, for short) was constituted under the
Armed Forces Tribunal Act, 2007 (hereinafter referred to as "the Act"), enacted
C with the purpose of constituting an AFT to adjudicate disputes and complaints
of personnel belonging to the Armed Forces. Chapter III of the Act deals with
the jurisdiction, power and authority of the Tribunal. Section 14(1) of the Act
which is relevant reads as follows:
"14. Jurisdiction, powers and authority in service matters.-(1) Save as
otherwise expressly provided in this Act, the Tribunal shall exercise, on and
d
from the appointed day, all the jurisdiction, powers and authority, exercisable
immediately before that day by all courts (except the Supreme Court or a High
Court exercising jurisdiction under Articles 226 and 227 of the Constitution)
in relation to all service matters."
3. Section 15 provides that the Tribunal shall exercise jurisdiction, power
e and authority in relation to an appeal against any order, decision, finding or
sentence passed by a court martial.
4. Section 34 of the Act reads as follows:
"34. Transfer of pending cases.-(1) Every suit, or other proceeding
pending before any court including a High Court or other authority
immediately before the date of establishment of the Tribunal under this Act,
f
being a suit or proceeding the cause of action whereon it is based, is such that
it would have been within the jurisdiction of the Tribunal, if it had arisen after
such establishment within the jurisdiction of such Tribunal, stand transferred
on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court
including a High Court or other authority to the Tribunal under sub-section
g (1),-
(a) the court or other authority shall, as soon as may be, after such
transfer, forward the records of such suit, or other proceeding to the
Tribunal;
(b) the Tribunal may, on receipt of such records, proceed to deal with
h such suit, or other proceeding, so far as may be, in the same manner as in
the case of an application made under sub-section (2) of Section 14, from
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the stage which was reached before such transfer or from any earlier stage
or de nova as the Tribunal may deem fit."
5. A Division Bench of the Allahabad High Court in Union of India v. Ram a
Baran 1 held that the phrase "other proceedings" in Section 34 of the Act would
include all appeals including letters patent appeals (hereinafter referred to as
LPAs). It was held that since the Tribunal is a substitute of the High Court, the
Tribunal could decide an appeal against the order of a Single Judge which was
required to be transferred to the Tribunal.
6. We may point out that after the enactment of the Uttar Pradesh High b
Court (Abolition of Letters Patent Appeals) Act, 1962, letters patents are no
longer applicable to the High Court of Allahabad. However, special appeals
are provided against the judgment of a Single Judge to a Division Bench. The
High Court held 1 that the term "other proceedings" include all such intra-court
appeals.
C
7. This view was doubted by another Division Bench of the Allahabad High
Court in Nand Kishore Sahoo v. Chief of Army Stajf2. Thereafter, the matter
was referred to a Full Bench in the said case and the Full Bench by a majority
held 3 as follows: (Nand Kishore Sahoo case 3 , SCC OnLine All)
"In view of the foregoing discussions, we are of the considered opinion
that the special appeal filed under Chapter VIII Rule 5 of the Allahabad d
High Court Rules, 1952 against the judgment and order of the learned
Single Judge pending adjudication immediately prior to the constitution of
the Armed Forces Tribunal is not liable to be transferred to the Tribunal
and the decision rendered by the Division Bench in Ram Baran 1 does not
lay down the correct law."
e
8. Ms Preetika Dwivedi, learned counsel for the appellant submits that the
view 4 of the Allahabad High Court is incorrect. She contends that it has been
held by this Court in a number of decisions including Union of India v. Shri
Kant Sharma 5 that AFT exercises all the powers of the High Court. She submits
that it virtually substitutes the High Court insofar as matters governed by the
Act are concerned, and as such an LPA or special appeal against the judgment f
of a Single Judge is also required to be transferred to AFT.
9. We are not at all in agreement with this submission. Section 14(1) of the
Act quoted hereinabove clearly provides that AFT will exercise powers of all
courts except the Supreme Court or the High Court exercising jurisdiction under
Articles 226 and 227 of the Constitution of India. Section 34 is very carefully
worded. It states that "every suit", or "other proceedings" pending before any g
court including a High Court immediately before the establishment of the
Tribunal shall stand transferred on that day to the Tribunal. The legislature has
1 2010 SCC OnLine All 3387

2 2011 SCC OnLine All 2853
3 Nand Kishore Sahoo v. Chief ofArmy Staff, 2012 SCC OnLine All 3559
h
4 Union of India v. Balkrishna Ram, 2016 SCC OnLine All 3554
5 c2015) 6 sec 773: c2015) 2 sec (L&S) 386
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clearly not vested AFT with the power and jurisdiction of the High Court to
be exercised under Article 226 of the Constitution. We are not going into the
a question as to whether the Tribunal is amenable to the supervisory jurisdiction
of a High Court under Article 227 of the Constitution but there can be no
manner of doubt that the High Court can exercise its writ jurisdiction even
in respect of orders passed by AFT. True it is, that since an appeal lies to
the Supreme Court against an order of AFT, the High Court may not exercise
their extraordinary writ jurisdiction because there is an efficacious alternative
b remedy available but that does not mean that the jurisdiction of the High Court
is taken away. In a given circumstance, the High Court may and can exercise
its extraordinary writ jurisdiction even against the orders of the High Court.
10. While holding so, we place reliance upon a judgment of a Constitution
Bench of this Court in L. Chandra Kumar v. Union of lndia 6 • This Court clearly
held that judicial review is a part of the basic structure of the Constitution and
c the power of judicial review vested in the High Courts and the Supreme Court
cannot be taken away. The relevant portion of the judgment reads as follows:
(SCC pp. 301-302, paras 78-79)
"78 . ... An analysis of the manner in which the Framers of our
Constitution incorporated provisions relating to the judiciary would
d indicate that they were very greatly concerned with securing the
independence of the judiciary.* These attempts were directed at ensuring
that the judiciary would be capable of effectively discharging its wide
powers of judicial review. While the Constitution confers the power to
strike down laws upon the High Courts and the Supreme Court, it also
contains elaborate provisions dealing with the tenure, salaries, allowances,
e retirement age of Judges as well as the mechanism for selecting Judges
to the superior courts. The inclusion of such elaborate provisions appears
to have been occasioned by the belief that, armed by such provisions,
the superior courts would be insulated from any executive or legislative
attempts to interfere with the making of their decisions. The Judges of
the superior courts have been entrusted with the task of upholding the
f
Constitution and to this end, have been conferred the power to interpret
it. It is they who have to ensure that the balance of power envisaged by
the Constitution is maintained and that the legislature and the executive do
not, in the discharge of their functions, transgress constitutional limitations.
It is equally their duty to oversee that the judicial decisions rendered
g by those who man the subordinate courts and tribunals do not fall foul
of strict standards of legal correctness and judicial independence. The
constitutional safeguards which ensure the independence of the Judges of
6 (1997) 3 sec 261 : 1997 sec (L&S) 577

* See Chapter VII, "The Judiciary and the Social Revolution" in Granville Austin,
The Indian Constitution: Cornerstone of a Nation, Oxford University Press, 1972;
h the chapter includes exhaustive references to the relevant preparatory works and
debates in the Constituent Assembly.
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the superior judiciary, are not available to the Judges of the subordinate
judiciary or to those who man tribunals created by ordinary legislations.
Consequently, Judges of the latter category can never be considered full and a
effective substitutes for the superior judiciary in discharging the function of
constitutional interpretation. We, therefore, hold that the power of judicial
review over legislative action vested in the High Courts under Article 226
and in this Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court b
to test the constitutional validity of legislations can never be ousted or
excluded.
79. We also hold that the power vested in the High Courts to exercise
judicial superintendence over the decisions of all courts and tribunals
within their respective jurisdictions is also part of the basic structure of c
the Constitution. This is because a situation where the High Courts are
divested of all other judicial functions apart from that of constitutional
interpretation, is equally to be avoided."
The aforesaid observations in L. Chandra Kumar6 leave no manner of doubt
that the power of judicial review vests with the High Court even with regard
d
to orders passed by AFT and this power is part of the basic structure of the
Constitution.
11. In L. Chandra Kumar6 this Court while dealing with the issue of
exclusion of the power of judicial review held that such power cannot be
excluded by legislation or constitutional amendment. The relevant portion of
the judgment reads as follows: (SCC pp. 307-309 & 311, paras 90-91, 93 & 99) e
"90. We may first address the issue of exclusion of the power of judicial
review of the High Courts. We have already held that in respect of the
power of judicial review, the jurisdiction of the High Courts under Articles
226/227 cannot wholly be excluded. It has been contended before us that
the Tribunals should not be allowed to adjudicate upon matters where the f
vires of legislations are questioned, and that they should restrict themselves
to handling matters where constitutional issues are not raised. We cannot
bring ourselves to agree to this proposition as that may result in splitting
up proceedings and may cause avoidable delay. If such a view were to be
adopted, it would be open for litigants to raise constitutional issues, many of
which may be quite frivolous, to directly approach the High Courts and thus g
subvert the jurisdiction of the Tribunals. Moreover, even in these special
branches of law, some areas do involve the consideration of constitutional
questions on a regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14, 15 and 16 of the
Constitution. To hold that the Tribunals have no power to handle matters
h
6 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577
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involving constitutional issues would not serve the purpose for which they
were constituted. On the other hand, to hold that all such decisions will
a be subject to the jurisdiction of the High Courts under Articles 226/227 of
the Constitution before a Division Bench of the High Court within whose
territorial jurisdiction the Tribunal concerned falls will serve two purposes.
While saving the power of judicial review of legislative action vested in the
High Courts under Articles 226/227 of the Constitution, it will ensure that
frivolous claims are filtered out through the process of adjudication in the
b Tribunal. The High Court will also have the benefit of a reasoned decision
on merits which will be of use to it in finally deciding the matter.
91. It has also been contended before us that even in dealing with
cases which are properly before the Tribunals, the manner in which justice
is dispensed by them leaves much to be desired. Moreover, the remedy
C provided in the parent statutes, by way of an appeal by special leave under
Article 136 of the Constitution, is too costly and inaccessible for it to be real
and effective. Furthermore, the result of providing such a remedy is that the
docket of the Supreme Court is crowded with decisions of Tribunals that
are challenged on relatively trivial grounds and it is forced to perform the
role of a first appellate court. We have already emphasised the necessity for
d ensuring that the High Courts are able to exercise judicial superintendence
over the decisions of the Tribunals under Article 227 of the Constitution.
In R.K. Jain case 7, after taking note of these facts, it was suggested that
the possibility of an appeal from the Tribunal on questions of law to a
Division Bench of a High Court within whose territorial jurisdiction the
Tribunal falls, be pursued. It appears that no follow-up action has been
e
taken pursuant to the suggestion. Such a measure would have improved
matters considerably. Having regard to both the aforestated contentions,
we hold that all decisions of Tribunals, whether created pursuant to Article
323-A or Article 323-B of the Constitution, will be subject to the High
Court's writ jurisdiction under Articles 226/227 of the Constitution, before
f a Division Bench of the High Court within whose territorial jurisdiction
the particular Tribunal falls.
* * *
93. Before moving on to other aspects, we may summarise our
conclusions on the jurisdictional powers of these Tribunals. The Tribunals
are competent to hear matters where the vires of statutory provisions are
g
questioned. However, in discharging this duty, they cannot act as substitutes
for the High Courts and the Supreme Court which have, under our
constitutional set-up, been specifically entrusted with such an obligation.
Their function in this respect is only supplementary and all such decisions
of the Tribunals will be subject to scrutiny before a Division Bench of
h the respective High Courts. The Tribunals will consequently also have the
7 R.K. Jain v. Union of India, (1993) 4 SCC 119 : 1993 SCC (L&S) 1128
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power to test the vires of subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important exception. The
Tribunals shall not entertain any question regarding the vires of their parent a
statutes following the settled principle that a Tribunal which is a creature
of an Act cannot declare that very Act to be unconstitutional. In such cases
alone, the High Court concerned may be approached directly. All other
decisions of these Tribunals, rendered in cases that they are specifically
empowered to adjudicate upon by virtue of their parent statutes, will also be
subject to scrutiny before a Division Bench of their respective High Courts. b
We may add that the Tribunals will, however, continue to act as the only
courts of first instance in respect of the areas of law for which they have
been constituted. By this, we mean that it will not be open for litigants to
directly approach the High Courts even in cases where they question the
vires of statutory legislations (except, as mentioned, where the legislation
C
which creates the particular Tribunal is challenged) by overlooking the
jurisdiction of the Tribunal concerned.
* * *
99. In view of the reasoning adopted by us, we hold that clause 2(d) of
Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude
the jurisdiction of the High Courts and the Supreme Court under Articles d
226/227 and 32 of the Constitution, are unconstitutional. Section 28 of
the Act and the "exclusion of jurisdiction" clauses in all other legislations
enacted under the aegis of Articles 323-A and 323-B would, to the same
extent, be unconstitutional. The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the Supreme Court under Article
e
32 of the Constitution is a part of the inviolable basic structure of our
Constitution. While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the Constitution. The Tribunals
created under Article 323-A and Article 323-B of the Constitution are
possessed of the competence to test the constitutional validity of statutory f
provisions and rules. All decisions of these Tribunals will, however, be
subject to scrutiny before a Division Bench of the High Court within whose
jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless,
continue to act like courts of first instance in respect of the areas of law for
which they have been constituted. It will not, therefore, be open for litigants
to directly approach the High Courts even in cases where they question the g
vires of statutory legislations (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the jurisdiction of the
Tribunal concerned. Section 5( 6) of the Act is valid and constitutional and
is to be interpreted in the manner we have indicated."
h
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BALKRISHNARAMv. UNION OF INDIA (DeepakGupta, J.) 451

12. Reliance placed by Ms Dwivedi on the judgment of this Court in Shri
Kant Sharma 5 is entirely misplaced. The issue before this Court in this case
a was whether the High Court was justified in entertaining writ petitions against
the orders of AFT. This is a judgment by two Judges and obviously it cannot
overrule the judgment of the Constitution Bench in L. Chandra Kumar6 . The
Division Bench, after referring to various judgments including the judgment in
L. Chandra Kumar6 , summarised its findings in para 36 as follows: (Shri Kant
Sharma case 5 , SCC pp. 804-805)
b
"36. The aforesaid decisions rendered by this Court can be summarised
as follows:
(i) The power of judicial review vested in the High Court under
Article 226 is one of the basic essential features of the Constitution and
any legislation including the Armed Forces Tribunal Act, 2007 cannot
C override or curtail jurisdiction of the High Court under Article 226 of
the Constitution of India....
(ii) The jurisdiction of the High Court under Article 226 and
this Court under Article 32 though cannot be circumscribed by the
provisions of any enactment, they will certainly have due regard to the
d legislative intent evidenced by the provisions of the Acts and would
exercise their jurisdiction consistent with the provisions of the Act. ...
(iii) When a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the
statutory dispensation ....
(iv) The High Court will not entertain a petition under Article 226
e of the Constitution if an effective alternative remedy is available to the
aggrieved person or the statute under which the action complained of
has been taken itself contains a mechanism for redressal of grievance."
13. What this Court in Shri Kant Sharma case 5 held was that though the
power of the High Court under Article 226 of the Constitution is a basic
f essential feature of the Constitution which cannot be taken away, the High
Court should not entertain a petition under Article 226 of the Constitution if
any other effective alternative remedy is available to the aggrieved person or
the statute, under which the action complained of has been taken, itself contains
a maxim for redressal of grievance. We have our doubt, with regard to the
correctness of Directions (iii) and (iv) of the judgment, since in our opinion it
g runs counter to the judgment rendered by the Constitution Bench.
14. It would be pertinent to add that the principle that the High Court should
not exercise its extraordinary writ jurisdiction when an efficacious alternative
remedy is available, is a rule of prudence and not a rule of law. The writ courts
normally refrain from exercising their extraordinary power if the petitioner has
h
5 Union of India v. Shri Kant Shanna, (2015) 6 SCC 773: (2015) 2 SCC (L&S) 386
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an alternative efficacious remedy. The existence of such remedy however does
not mean that the jurisdiction of the High Court is ousted. At the same time, it
is a well settled principle that such jurisdiction should not be exercised when a
there is an alternative remedy available 8 . The rule of alternative remedy is a rule
of discretion and not a rule of jurisdiction. Merely because the Court may not
exercise its discretion, is not a ground to hold that it has no jurisdiction. There
may be cases where the High Court would be justified in exercising its writ
jurisdiction because of some glaring illegality committed by AFT. One must
also remember that the alternative remedy must be efficacious and in case of a b
Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO);
to expect such a person to approach the Supreme Court in every case may not be
justified. It is extremely difficult and beyond the monetary reach of an ordinary
litigant to approach the Supreme Court. Therefore, it will be for the High Court
to decide in the peculiar facts and circumstances of each case whether it should
exercise its extraordinary writ jurisdiction or not. There cannot be a blanket C
ban on the exercise of such jurisdiction because that would effectively mean
that the writ court is denuded of its jurisdiction to entertain such writ petitions
which is not the law laid down in L. Chandra Kumar6 .
15. Ms Dwivedi placed reliance on the observations made in Shri Kant
Sharma 5 that, "jurisdiction of the Tribunal constituted under the Armed Forces
Tribunal Act is in substitution of the jurisdiction of the civil court and the High d
Court so far as it relates to suit relating to conditions of service of the persons",
subject to the provisions of the Act. It is clear that the intention of the Court
was not to hold that the Tribunal is a substitute of the High Court insofar as
its writ jurisdiction is concerned because that is specifically excluded under
Section 14(1) of the Act. We cannot read this one sentence out of context. It is
true that proceedings on the original side even in exercise of writ jurisdiction e
are to be transferred to the Tribunal for decision by AFT because the original
jurisdiction now vests with AFT. This however, does not mean that AFT can
exercise all the powers of the High Court.
16. In Rojer Mathew v. South Indian Bank Ltd. 9 the Constitution Bench of
this Court, of which one of us (Deepak Gupta, J. was a member), clearly held
f
that though these tribunals may be manned by retired Judges of the High Courts
and the Supreme Court, including those established under Articles 323-A and
323-B of the Constitution, they cannot seek equivalence with the High Court
or the Supreme Court. The following observations are relevant: (SCC OnLine
SC para 204)
"204. Furthermore, that even though manned by retired Judges of the g
High Courts and the Supreme Court, such Tribunals established under
Articles 323-A and 323-B of the Constitution cannot seek equivalence with
the High Court or the Supreme Court. Once a Judge of a High Court or
8 Union of India v. T.R. Vanna, AIR 1957 SC 882

h
5 Union of India v. Shri Kant Shanna, (2015) 6 SCC 773: (2015) 2 SCC (L&S) 386
9 2019 SCC OnLine SC 1456: (2019) 15 Scale 615
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Supreme Court has retired and he/she no longer enjoys the constitutional
status, the statutory position occupied by him/her cannot be equated with
a the previous position as a High Court or a Supreme Court Judge. The rank,
dignity and position of constitutional Judges is hence sui generis and arise
not merely by their position in the Warrant of Precedence or the salary and
perquisites they draw, but as a result of the constitutional trust accorded
in them. Indiscriminate accordance of status of such constitutional Judges
on Tribunal members and Presiding Officers will do violence to the very
b constitutional scheme."
17. The contention of the learned counsel for the appellant, if accepted,
would strike at the very root of judicial independence and make the High Court
subordinate to AFT. This can never be the intention of the legislature. The High
Court is a constitutional court constituted under Article 214 of the Constitution
and are courts of record within the meaning of Article 215. It is obvious that the
C order of the High Court cannot be challenged before any other forum except
the Supreme Court. The provision of intra-court appeal whether by way of
letters patents or special enactment is a system that provides for correction
of judgments within the High Courts where a judgment rendered by a Single
Judge may be subject to challenge before a Division Bench. This appeal to
the Division Bench does not lie in all cases and must be provided for either
d under the letters patent or any other special enactment. Even where such appeal
lies, the appeal is heard by two or more Judges of the High Court. We cannot
envisage a situation where an appeal against the order of a sitting Judge of
the High Court is heard by a tribunal comprising of one retired Judge and
one retired Armed Forces official. Therefore, we reject the contention that an
intra-court appeal from the judgment of a Single Judge of the High Court to a
e Division Bench pending in the High Court is required to be transferred under
Section 34 of the Act.
18. As far as the merits of the case are concerned, the undisputed fact
is that the appellant could not clear the aptitude test. It has been urged that
even if he could not clear the aptitude test, he should have been considered
for appointment in some other post before being discharged from service. It is
f also urged that in the order of discharge it is not indicated that the case of the
appellant was considered for such alternative service.
19. In our view, it is not necessary to indicate in the order of discharge
whether such consideration took place or not. From the records of the case, we
find that before discharge, the name of the appellant was considered for two
categories but unfortunately the appellant could not meet the height criteria for
g
appointment to either of the posts. Thus, this clearly shows that his case was
considered as per the extant policy but he was not fit for appointment. In this
view of the matter, we find no merit in the appeal, and hence it is dismissed.
Pending application(s) if any, stand(s) disposed of.
h
SCC® SCC Online Web Edition, Copyright © 2021
ltld■H■# SCC Online Web Edition: http://www.scconline.com
Tire surest Wt11f to kgal resea,rJ, /"
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2020 SCC OnLine AFT 1086
In the Armed Forces Tribunal†

(BEFORE SUNITA GUPTA, MEMBER (JUDICIAL) AND PHILIP CAMPOSE, MEMBER (ACCOUNTANT))
OA 22/2012 with MA 30/2012

Commander N. Rajesh Kumar … Applicant;
Versus
Union of India and Others … Respondents.
And
OA 79/2012
Commander N. Rajesh Kumar … Applicant;
Versus
OA 22/2012, MA 30/2012 and OA 79/2012
Decided on July 2, 2020
Mr. Sukhjinder Singh, Advocate, for the Applicant;
Mr. Anil Gautam, Advocate, for the Respondents.
Mr. Meet Malhotra, Sr. Advocate with Mr. Sukhjinder Singh, Advocate, for the
Appellant;
Mr. Anil Kumar Gautam and Mr. R.S. Chhillar Advocates, for the Respondents.
ORDER
1. File has been taken up today on oral request made by counsel for the applicant
seeking grant of leave to appeal to Hon'ble Supreme Court of India.
2. As required under Section 31 of the Armed Forces Tribunal Act, 2007, we do not
find any substantial question of law much less any point of law of general public
importance involved in the order rendered by the Tribunal, therefore, oral prayer for
grant of leave to appeal stands dismissed.
JUDGMENT
3. Aggrieved by the decision of the Court Martial (CM) dated 06.12.2011, whereby,
against the total 31 charges under the various provisions of the Navy Act, 1957
(hereinafter referred to as ‘the Act’, for brevity), the appellant was found guilty of six
charges viz. Charge Nos. 1, 11, 13, 14, 15 and 17 and sentenced to undergo rigorous
imprisonment for two years, to be dismissed from service and to pay a fine of Rs.
4,19,055/- with a default sentence of rigorous imprisonment for an additional period of
one year, the appellant, who was an officer in the rank of Commander in the Indian
Navy at that time, initially filed O.A. No. 22 of 2012 under section 15 of the Armed
Forces Tribunal Act, 2007 (hereinafter referred to as “The Act”), inter-alia, for seeking
interim relief, by way of stay order against the respondent for executing the order of
sentence dated 06.12.2011 passed by the court martial sentencing him to undergo 2
years imprisonment, dismissal from the Naval Service and fine. The application was
filed in terms of Order II Rule 2 of the Code of Civil Procedure with the leave of the
Tribunal to file substantive and comprehensive application consequent upon receipt of
the court martial proceedings as envisaged vide Section 129 of the Navy Act, 1957
and Regulation 192 made thereunder. Thereafter, the appellant filed O.A. No. 79 of
2012 under Section 15 of the Act with a prayer that the findings and sentence of the
aforesaid CM be set aside and the appellant be reinstated in service with effect from
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06.12.2011 and granted all consequential benefits. The Hon'ble Delhi High Court, vide
order dated 13.12.2011 in W.P. (C) No. 8267 of 2011, stayed the order passed by the
CM, suspended the sentence of two years' rigorous imprisonment awarded to the
appellant and released him on bail. Subsequently, the Hon'ble Supreme Court, vide
order dated 25.05.2015 in C.A. (Diary) No. 13947 of 2015 (C.A. No. 4866 of 2015)
has affirmed the stay ordered by the Delhi High Court on the sentence awarded by the
CM dated 06.12.2011, however, without staying the order of dismissal passed.
Therefore, the O.A. was adjourned sine die, awaiting the outcome of C.A. No. 4866 of
2015. Finally, on 05.09.2019, the Hon'ble Supreme Court issued an order directing the
Tribunal to hear the instant O.A. filed by the appellant within a period of eight weeks
from the date of the order and to list the matter thereafter. Hence the matter is before
us.
4. Let us first recapitulate the facts, which led to the passing of the impugned order
dated 06.12.2011 by the CM. The appellant was an officer of the Indian Navy who at
the relevant time was serving in the rank of Commander at Naval HQs and other naval
establishments and was the head of the Indian Naval Sky Diving Team (INSDT). He
participated in a number of sky diving training capsules and competition events within
the country and abroad. On 22.10.2008, the sixth respondent (Lt Cdr S.K.
Karthikeyan) made a complaint to his superior officer (Commodore S.C. Joshi,
erstwhile Principal Director, Adventure, Physical Fitness and Sports Activities
(PDAPSA), Naval HQs) about purported financial irregularities in expenditures carried
out by INSDT, including allegations against the appellant. Having found substance in
the allegation, it was decided to investigate the alleged misconduct of the appellant in
terms of Regulation 148(1)(e) of the Regulations for the Navy (Part II) (Statutory)
(the Regulations, in short) by convening a Board of Inquiry. Finally, the appellant was
charged sheeted and tried by a CM, where 37 witnesses appeared from the side of
prosecution, 4 from the side of defence and 2 witnesses from Court side. CM having
tried him for 31 charges, found him guilty of six charges viz. Charge Nos. 1, 11, 13,
14, 15 and 17 and sentenced him as above. The CM was conducted by (i) Commodore
Atul Kumar Kokanathankar as President and (ii) Capt P. Nagraj Shenoy; (iii) Capt
Vinay Kumar; (iv) Capt Krishna Mohan Pisapatti; and (v) Capt Mukesh Kumar as
Members. The details of the charges, in which the appellant was found guilty, are
reproduced below:
CHARGE SHEET
The accused Cdr N Rajesh (41740-N) Indian Navy, belonging to Indian Ship
India, being a person subject to Naval Law, is charged for that he:
(1) Did between 01 February 2007 and 30 November 2007 whilst performing
duty of Deputy Director of Adventure, Physical Fitness and Sports Activities (Aero
Adventure) Integrated Headquarters Ministry of Defence (Navy), being a public
servant, committed criminal breach of trust in respect of movable property
namely a sum of Rs. 2,19,055/- (Rupees Two Lakh Nineteen Thousand and Fifty-
Five only) from Naval Headquarters Adventure Activities (Public Fund) belonging
to the Government of India, in that he, being entrusted with a sum of Rs.
4,19,055/-(Rupees Four Lakh Nineteen Thousand and Fifty-Five only) towards
hiring of Aircraft charges, for the skydiving camp held at Hissar, actually paid a
sum of Rs. 2,00,000/- only (Rupees Two Lakhs only) to M/s. Aviation India
towards the hiring charges, thereby committed an offence punishable under
Section 409 of the Penal Code, 1860 read in conjunction with Section 77(2) of
the Navy Act, 1957
(11) Did on 24 August 2007 cheat Indian Naval Sports Control Board for Rs.
22,500/- (Rupees Twenty Two Thousand Five Hundred only) by dishonestly
inducing the said Indian Naval Sports Control Board and as Team Leader received
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the above said amount on behalf of Lt Cdr S Karthikeyan (42140-Y), S Borah,
LME, 122495-Z and GM Rao, LME, 116106-B respectively towards ex-gratia
payment for participating in USPA @ Rs. 7500 each, which he did not disburse,
thereby committed an offence punishable under Section 420 of the Penal Code,
1860 read in conjunction with Section 77(2) of the Navy Act, 1957.
(13) Did on 03 August 2007 knowingly make fraudulent TA/DA Claim to be
used for official purposes vide Claim for Move on Temporary Duty - Directorate of
Adventure, Physical Fitness and Sports Activities Reference number (File
number) TR/1630/DAPSA/TYDUTY dated 03 August 2007 in that he claimed taxi
fares paid as per the following details:
(a) Ty duty claim towards Taxi fare paid from Los Angeles Airport, United
States of America to Pern's Valley and back on 12 March 2007 and 30
March 2007 respectively amounting to Rs. 24,808 (Rupees Twenty Four
Thousand, Eight Hundred and Eight only)
(b) Ty duty claim towards Taxi fare paid from Pern's Valley, United States of
America to Eloy, United States of America and back on 20 March 2007 and
26 March 2007 respectively, amounting to Rs. 34,554 (Rupees Thirty Four
Thousand Five Hundred and Fifty Four only)
Whereas, the claims in respect of above said journey were settled by Principal
Director of Adventure, Physical Fitness and Sports Activities based on Team Leaders
Statement of Expenditure towards incidental expenditure duly countersigned by
Embassy of India, United States of America, thereby committed an offence
punishable under Section 60(A) of the Navy Act, 1957.
(14) Did on 26 September 2007 knowingly make fraudulent TA/DA Claim to be
used for official purposes vide Claim for Move on Temporary Duty-Directorate of
Adventure, Physical Fitness and Sports activities Reference number (File number)
TR/1630/DAPSA/TYDUTY dated 26 September 2007 in that he claimed Taxi fares
paid as per the following details:
(a) Ty Duty claim towards Taxi fare paid from Los Angeles Airport, United States
of America to Pern's Valley and back on 14 July 2007 and 08 August 2007
respectively, amounting to Rs. 23,809 (Rupees Twenty Three Thousand Eight
Hundred and Nine only)
(b) Ty duty claim towards Taxi fare paid from Perris Valley, United States of
America to Eloy, United States of America and back on 23 July 2007 and 29
July 2007 respectively, amounting to Rs. 31,198 (Rupees Thirty One Thousand
One Hundred and Ninety Eight only)
Whereas the claims in respect of above said journeys were already settled by
punishable under Section 60(A) of the Navy Act, 1957.
(15) Did on 26 September 2007 knowingly make fraudulent TA/DA Claim to be
used for official purposes vide Claim for Move on Temporary Duty - Directorate of
Adventure, Physical Fitness and Sports Activities Reference number (File number)
TR/1630/DAPSA/TYDUTY dated 27 December 2006 in that he claimed Taxi fares
paid as per the following details:
(a) Ty Duty claim towards Taxi fare paid from Los Angeles Airport, United States
of America to Perris Valley and hack on 25 August 2007 and 03 September
2007 respectively, amounting to Rs. 23,519/- (Rupees Twenty Three
Thousand Five Hundred and Nineteen only)
(b) Ty Duty claim towards Taxi fare paid from Pern's Valley, United States of
America to Eloy, United States of America and back on 04 September 2007
and 21 September 2007 respectively, amounting to Rs. 30,818/-(Rupees
Thirty Thousand Eight Hundred and Eighteen only)
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Whereas the claims in respect of above said journeys were already settled by
punishable under Section 60(A) of the Navy Act, 1957
(17) Did between 25 March 2008 and 31 March 2008 whilst performing the duty
of Deputy Director of Adventure, Physical Fitness and Sports Activities (Aero
Adventure) and as Team Leader of the Indian Navy Sky Team Basic Skydiving camp
at Karnal, Haryana forge documents namely quotations and invoice of M/s. Amber
Aviation which were unnumbered and undated, in that he claimed an extra amount
of Rs. 2,00,000/- (Rupees Two Lakh only) by submitting false documents to Naval
Headquarters Adventure Activities (Public Fund) purporting to show that a sum of
Rs. 3,51,750/- (Rupees Three Lakh Fifty One Thousand Seven Hundred and Fifty
only) was paid to M/s Amber Aviation whereas the actual consideration was only Rs.
1,51,750/- (Rupees One Lakh Fifty One Thousand Seven Hundred and Fifty only),
thereby committed an offence punishable under Section 465 of the Penal Code,
1860 read in conjunction with Section 77(2) of the Navy Act, 1957
Arguments by Counsel for the Appellant on Maintainability of CM:
5. The first and foremost contention put forth by Mr. Malhotra, learned senior
counsel appearing for the appellant was that the entire CM proceedings were void ab
initio, reason being that the very constitution of the CM was violative of Section 97(10)
of the Navy Act, 1957 (the Act, for brevity) and the statutory rules and the regulations
made thereunder. According to him, in the CM in the case of the appellant, the
majority of Members were not from the Executive Branch of the Navy. Section 97(10)
makes it clear that out of the five officers comprising such a CM, majority i.e. at least
three Members must be from the Executive Branch, whereas, as per his contention,
only one Member, i.e. the President, was from the Executive Branch. Learned counsel
contended that this aberration was fatal to the composition of the CM and vitiated the
entire proceedings, therefore, on this ground alone, the entire CM proceedings needed
to be set aside.
6. Learned senior counsel for the appellant further stated that the objection as to
constitution and composition of the CM was to be dealt with as provided under
Sections 102 and 103 of the Act. Section 102 of the Act deals with ‘objections raised
by either prosecutor or defence as to the ability of any member of the CM to act
impartially and the manner in which such objection, if taken, is to be dealt with’.
Section 103 of the Act deals with ‘any other objections’ to the composition of the CM,
which also provided that if an objection is taken on grounds other than on impartiality,
the decision thereon has to be rendered by the full court (and not the Trial Judge
Advocate (TJA) alone). Learned counsel contended that, despite written objection to
the legality of the composition of the CM, the Trial Judge Advocate (TJA) dismissed the
same stating that (i) the objection raised by the defence counsel was at a belated
stage; and (ii) in any event, the objection had no merit as, going by the Navy List
2009, not one but three members were from the Executive Branch and, therefore, the
requirement of the proviso to Section 97(10) was met. Sub-sections (6) to (10) of
Section 97 of the Act, which are relevant, are reproduced below:
xx xx xx xx xx xx
xx xx xx xx xx xx
(6) A court-martial shall consist of not less than five nor more than nine officers.
(7) No officer shall be qualified to sit as a member of a court-martial unless—
(a) He is subject to naval law,
(b) He is an officer of the Indian Navy of the rank of lieutenant or higher rank,
and
(c) He is of or over twenty-one years of age,
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(8) A prosecutor shall not be qualified to sit on the court-martial for the trial of
the person he prosecutes.
(9) The officer ordering the court-martial, the officer who was the commanding
officer of the ship to which the accused belonged at the time of the commission of
the alleged offence and the officer investigating the offence shall not be qualified to
sit on a court-martial for the trial of such accused.
(10) Subject to the provisions of sub-sections (7) to (9), officers of the Indian
Navy shall be eligible to sit as members of a court-martial irrespective of the branch
of the naval service to which they belong:
Provided that—
(a) the majority of the members of the court-martial, including the president,
shall be officers of the executive branch of the naval service, and
(b) at trials for offences against sections 34, 35, 55, 55A, 55c and 56, officers
other than officers of the executive branch of the naval service shall not be
eligible to sit.
xx xx xx xx xx xx
xx xx xx xx xx xx
7. Further, Sections 102 and 103 of the Act, which deal with the objections, are
reproduced below:
102. Objections to members.— The following provisions shall apply to the
disposal of objections raised by the prosecutor as well as the accused:—
(a) any member may be objected to on a ground which affects his competency to
act as an impartial judge; and the trial judge advocate may reject summarily
without reference to the members of the court any objection not made on
such grounds;
(b) objections to members shall be decided separately, those to the officer
lowest in rank being taken first: provided that if the objection is to the
president, such objection shall be decided first and all the other members
whether objected to or not shall vote as to the disposal of the objection;
(c) on an objection being allowed by one-half or more of the Officers entitled to
decide the objection, the member objected to shall at once retire and his place
shall be filled up before an objection against another member is taken up;
(d) should the president be objected to and the objection be allowed, the court
shall adjourn until a new president has been appointed by the convening
authority or by the officer empowered in his behalf by the convening
authority; and
(e) should a member be objected to on the ground of being summoned as a
witness, and should it be found that the objection has been made in good
faith and that the officer is to give evidence as to facts and not merely as to
character, the objection shall be allowed.
103. Further objections.—(1) The trial judge advocate shall then ask the
accused whether he has any further objections to make respecting the constitution
of the court; and should the accused raise any such objection, it shall then be
decided by the court, which decision shall be final and the constitution of the court-
martial shall not be afterwards impeached and it shall be deemed in all respects to
have been duly constituted.
(2) If the accused should have no further objection to make to the constitution of
the court or if any objection is disallowed, the members and the trial judge
advocate shall then make an oath or affirmation in the form set out in section 104.
8. The second limb of the argument made by the learned senior counsel was that
the TJA acted illegally in rejecting the objection raised by the appellant with regard to
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the competence or composition of the members of the CM. According to him, the
ruling of the TJA is flawed, for the following reasons:
(i) The TJA could not have rendered the decision by himself as the decision was to
be rendered by the entire Court and not the TJA alone;
(ii) The TJA holding that three members of the five-member CM belonged to the
Executive Branch was itself incorrect on facts because only one Member was from
the Executive Branch and not three as held by the TJA.
9. It was contended that the TJA wrongly stated that, as per the Navy List 2009,
three members belonged to the Executive Branch viz. Commodore Atul Kumar
Kokanathankar, Capt Krishna Mohan Pisapatti and Capt Vinay Kumar. This, according
to learned senior counsel, was factually incorrect. Senior counsel contended that only
Commodore Atul Kumar Kokanathankar belonged to the Executive Branch, whereas
the other Members belonged to different Branches i.e. Capt P. Nagraj Shenoy
(Electrical Branch), Capt Vinay Kumar (Logistics (Supply and Secretariat)), Capt
Krishna Mohan Pisapatti (Logistics (Supply and Secretariat) and Capt Mukesh Kumar
(Electrical Branch). Learned senior counsel further pointed out that the Navy List is
only a publication by a competent authority and cannot override the statutory
provisions; therefore, the opinion of the TJA was not in accordance with the settled
legal principles. The entire CM proceedings, therefore, had been vitiated. In order to
strengthen his stance, the learned senior counsel relied upon the decisions in Union of
India v. Shivendra Bikram Singh ((2003) 6 SCC 359 : AIR 2003 SC 2481), wherein at
Paragraph 32, the Hon'ble Supreme Court held as under:
……. If the very constitution of the Court Martial was not in accordance with law,
then any proceedings taken before such an improper Court Martial was a nullity as
far as the trial is concerned.…..
10. We decided, in view of the importance of this point of law, to hear the response
of the respondents to these questions on maintainability of the CM before taking up
the issue of the merits of the main case. Accordingly, the respondents were asked to
present their initial arguments on this specific legal issue.
Arguments by Counsel for the Respondents on Maintainability of CM:
11. Mr. Anil Gautam, learned counsel appearing for the respondents, vehemently
objected to the arguments raised by the learned senior counsel for the appellant on
the legal validity of the CM proceedings, relying upon Section 97(10) of the Act,
Statutes and the Regulations. He stated that as per Regulation 205 of the Regulations
for the Navy 1991, which is relevant so far as the case of the appellant is concerned,
there is no illegality in the composition of the CM. Learned counsel submits that the
‘Supply and Secretariat’ Branch and the term ‘Supply Officers’ was removed from the
Navy vide an amendment to the Regulations of the Navy dated 17.02.1981 and
instead, ‘Logistics Officers’ were introduced, who became part of the Executive Branch.
This was done with a view to enhance administrative convenience in the Navy, though
Logistics Officers, Naval Architecture and Legal Officers would still not be allowed
command functions. This fact is evident in the amended Para 205(1) in the Navy
Regulations of 1991 and the Navy List, which is prepared annually e.g. Navy List 2009.
The objection of the appellant in this regard was rightly rejected by the TJA, as the
objection was only regarding the competence of those Members to sit in the CM and
was not about their impartiality. It is stated that as per the convening authority's
order, the CM was supposed to commence from 12.07.2008 but on repeated requests
of the appellant that his defence counsel is not available, matter was adjourned from
time to time. Ultimately on 19.09.2011, CM's proceedings commenced and “DA” read
out the composition of the court and it was inquired whether there was any objection
to the same. Both appellant and his defence counsel who later appeared on the same
day, stated that they had no objection as per section 102 and 103. It was only
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thereafter that TJA proceeded as per section 105 of the Navy Act. It was only after the
examination of about 27 witnesses, the appellant thought of making an objection for
the first time, on the competence of the Members. Nonetheless, the learned counsel
has contended that the Supply & Secretariat Branch, mentioned at Regulation 205(2)
of the Navy Regulations, 1965 was deleted and the Branch was merged with the
Executive Branch in 1981 and the Navy Regulations were amended accordingly, as
reflected in Para 2 of the Navy Regulations, 1991. As a consequence, the Logistics
Officers of the Navy became part of the Executive Branch. Para 2411 of the Navy
Regulations 1991 substantiates this, wherein it is mentioned as under:
2411. Specialist Courses. (1) The subjects in which the officers of the
Executive Branch may specialise are gunnery, anti-submarine warfare,
communication, navigation and direction, clearance/deep sea diving, Naval
armament inspection, Hydrographic survey, Logistics and Management, Nuclear
Biological Chemical Damage Control, Provost, Electronic Data Processing and as
promulgated from time to time.
(2) Selection of officers for specialisation will normally be made from amongst
Lieutenants.
(3) of the officers who have qualified as specialists, a limited number may be
selected from time to time for advanced courses.
(4) Executive officers, forming part of the Aviation and Submarine cadres, may
from time to time, undergo specialisation courses peculiar to their cadres.
12. Thus, counsel asserted that Capt. Krishna Mohan Pisapatti and Capt Vinay
Kumar were Executive Branch officers, which fact has been clearly reflected in the
Navy List and thus there was no infirmity in constitution of the CM.
13. As to the role of the TJA in overruling the objection raised by the appellant,
learned counsel contended that the objection regarding constitution of the CM, which
did not attack the impartiality of the Members, were not required to be put to vote of
the CM for the simple reason that the purpose of putting such an objection to vote was
to provide an opportunity to the members of the CM to themselves decide whether
they would like to remain as part of the CM or not in view of the objection so raised.
Learned counsel for the respondents also relied on the decision in Shivendra Bikram
Singh (supra), which has been relied on by the learned senior counsel for the
appellant also, and contended that the Hon'ble Supreme Court had considered the
distinction with respect to an objection about the competence and impartiality in its
judgment. The relevant portion of Para 7 of the aforesaid judgment in this regard is
reproduced hereunder:
The objection to any member of the Court regarding his competency to act as an
impartial judge, must be referred to the members of the Court and disposed of in
accordance with the procedure laid down in that section. At that stage any other
objection, which did not relate to the capacity of the member to act as an impartial
Judge had to be rejected by the trial Judge Advocate……..
14. Without entering into the merits of the case, the learned counsel for the
respondents has summed up that there was no violation of any Statute or the
Regulations framed thereunder in constituting the CM or even otherwise. He also
defended the role of the TJA in responding to the legal challenge as per Sections 97
(10), 102 and 103 of the Act, which, he stated, was in accordance with the role
assigned to the TJA and in conformity with the provisions of the Act and the
Regulations made thereunder.
Consideration by the Tribunal on the Maintainability of CM:
15. Having heard the learned counsel for the parties, before entering into any
finding on the maintainability of the O.A. on merits, the following questions were
required to be answered:
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(i) Whether there was any violation of either of the provisions of the Act or the
Rules and the Regulations made thereunder by the Navy authorities while
convening the CM and constituting the same?
(ii) Whether the TJA had acted illegally in rejecting the objections made by the
appellant with regard to the competence of the Members to sit as Members of the
CM?
16. No doubt, the consideration of the merits of the instant O.A. depended upon
the decision on the two questions framed herein above.
17. We found that the CM comprised of the following five officers of the Indian Navy
as Members:
(i) Commodore Atul Kumar Kokanathankar
(ii) Capt P. Nagraj Shenoy
(iii) Capt Vinay Kumar
(iv) Capt Krishna Mohan Pisapatti, and
(v) Capt Mukesh Kumar
18. According to learned senior counsel for the appellant, out of the Members
constituting the CM, only Commodore Atul Kumar Kokanathankar, the President,
belonged to the Executive Branch as contemplated under Section 97(10) of the Navy
Act, 1957 (the Act, for brevity). Learned counsel contended that Capt P. Nagraj
Shenoy, Member and Capt. Mukesh Kumar, Member, belonged to Electrical Branch,
whereas Capt Vinay Kumar belonged to Logistics Branch and Capt Krishna Mohan
Pisapatti belonged to Logistics Branch, after transfer from Education Branch. Therefore,
the constitution of the CM was in contravention to the mandate of Section 97(10) of
the Act.
19. Learned senior counsel for the appellant next drew our attention to Regulations
122 to 128, 166, 205 to 208, 225 to 241 and 249 read with Appendix IV of the
Regulations, which defines as to who are Executive Officers, and Regulation 135 of the
Regulations, which gives out officers of each branch, to canvass the contention that
the entire CM proceedings failed as it sullied the provisions of Section 97(10) of the
Act.
20. We found that, there was no dispute that so far as convening of the CM is
concerned, Section 97 of the Act empowers the competent authority to appoint the
Presiding Officer and he was required to appoint certain officers eligible to sit in the
CM. In the present case, the main objection raised by learned senior counsel was that
the majority of the members of the CM were not from the Executive Branch of the
naval service.
21. All along, the consistent stand taken by learned senior counsel for the appellant
was that the composition of the CM, as was determined by the convening order was
bad in law because only Commodore Atul Kumar Kokanathankar belonged to the
Executive Branch and the other Members belonged to different Branches like Electrical
Branch and Logistics (Supply and Secretariat). In order to substantiate the aforesaid
stand, learned senior counsel drew our attention to the Navy List of 2009. This ground
of challenge is based on the following grounds:
(a) The Navy Regulations 1965 only mentions ‘Supply and Secretariat Branch’, thus
implying that Logistics Branch officers were not part of the Executive Branch;
(b) Capt Krishna Mohan Pisapatti and Capt Vinay Kumar were Logistics Branch
officers and thus could not be counted as Executive Branch officers;
(c) Consequently, only one officer viz. the President of the CM was a member of the
Executive Branch and not three (out of five) as required vide Section 97(10) of
the Navy Act, 1957.
22. Therefore, according to learned senior counsel, the convening of the CM was
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illegal and, therefore, the proceedings of the CM on that ground were void ab initio.
23. To the contrary, learned counsel for the respondents vehemently opposed the
contention of the learned counsel for the appellant and contended that so far as the
composition of members of the CM is concerned, the learned counsel for the appellant
was trying to mislead the Tribunal by wrongly quoting the Navy List of 2009, which
had no relevance at this stage. Instead, according to learned counsel for the
respondents, the Navy List of 2010 corrected upto 01.10.2010 held the field. As
regards the contention of the learned counsel for the appellant that, as per Section 97
(10) of the Navy Act, the constitution of the CM was wrong, it would be appropriate
that we referred to some of the Regulations, which negate the argument made by him
in this regard. Regulation 205 of the Regulations for the Navy Part III (Statutory) was
amended by the competent authority vide S.R.O. No. 50 of 1981, wherein ‘Supply and
Secretariat’ has been deleted. The relevant portion of the said S.R.O. is reproduced as
under:
S.R.O. 50.—In exercise of the powers conferred by section 184 of the Navy Act,
1957 (62 of 1957), the Central Government hereby makes the following regulations
further to amend the Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations, 1964, published with the notification of the Government of India in the
Ministry of Defence SRO No. 22E, dated the 19th February, 1964, namely:—
xx xx xx xx xx xx
2. In the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations,
1964.—
(a) In regulation 117, in sub-regulation (1) for the words “Executive,
Engineering, Electrical and Supply and Secretariat Branches”, the words
“Executive, Engineering and Electrical Branches” shall be substituted:
(b) In regulation 118, for the words “Executive, Engineering, Electrical and
Supply and Secretariat Branches”, the words “Executive, Engineering and
Electrical Branches” shall be substituted;
(c) xx xx xx xx xx xx
(d) xx xx xx xx xx xx
(f) In regulation 200,—
(i) in sub-regulation (2),—
(A) under the heading “Executive Branch” the following entries shall be added at
the end, namely:—
xx xx xx xx xx xx
(ii) in sub-regulation (5), for the words “Engineering, Electrical and Supply”, the
words “Engineering and Electrical” shall be substituted;
(g) in regulation 205, in sub-regulation (2), paragraph “(d) Supply and
Secretariat” shall be deleted;
(g) in Appendix IV,—
(h) in column relating to EXECUTIVE OFFICERS—,
XX XX XX XX XX XX
24. Thus, branches of the Navy now are: Executive, Engineering, Electrical,
Education, Medical and Shipwright. Further, Regulations for the Navy Part I (Non-
Statutory) also stipulates general provisions on administrative charter of Indian Navy.
Chapter 24, Section II deals with officers of Executive Branch. Regulation 2410(1)
stipulates that on promotion to the rank of Lieutenant, all officers of the Executive
Branch are required to state in order of preference the subjects in which they wish to
specialize. Regulation 2411(1) gives the subjects of specialisation, which includes
“Logistics and Management” as one of the options. The Navy List 2009, which is Indian
Naval Book of Reference 176/2009, clearly mentioned the names of Capt Vinay Kumar
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and Capt Krishna Mohan Pisapati as officers of Executive Branch. Further, both the
Navy List 2009 and the abridged Navy List 2010 have marked specialisation in
brackets against name of each Executive Officer thus, the majority of members of the
CM being from Executive Branch, the composition was correct.
25. After considering the aforesaid aspects, we were of the considered opinion that
there was no illegality or irregularity in the composition of the CM. Therefore, the
contention raised by learned counsel for the appellant as regards the maintainability of
the composition of the CM did not stand.
Arguments by Counsel for the Appellant on merits:
26. On the merits of the case, at the outset, Mr. Sukhjinder Singh, learned counsel
appearing for the appellant, contended that there is no evidence to substantiate
charges against the appellant, therefore, the conviction and sentence awarded by the
CM cannot be sustained. The learned counsel also contended that the CM proceedings
were vitiated on account of the constitution of the CM. It was enough for the appellant
to plead mere apprehension of bias and there was ample material on record to indicate
that the appellant was justified in entertaining apprehension of bias on the part of the
President of the CM.
27. As regards the merits of the case, the learned counsel for the appellant
submitted that the offences, for which the appellant was tried by the CM, were civil
offences triable by ordinary criminal courts, and, therefore, the CM proceedings in
respect of the said offences are totally without authority of law. Further, the basic
ingredients of the offence have not been established for there is no legal evidence in
that behalf and in its absence, the charges allegedly proved against the appellant
must necessarily fail. According to the learned counsel, the entire evidence has been
concocted and, if the same is discarded, then there is no legal basis to convict the
appellant of the alleged offences.
28. Further, according to the learned counsel appearing for the appellant,
throughout the conduct of the disciplinary and Col proceedings, the appellant was not
provided copy of the deposition of witnesses though the same were available, and
despite the request of the appellant to allow him to interview the prosecution
witnesses in terms of Regulation 172 of the Regulations, he was not allowed to do so
by the Commanding Officer. That apart, the appellant was not even provided copies of
the charge sheet, exhibits and the statements of witnesses, on the basis of which
rough charge sheet was read over to him by the Commanding Officer, violating the
provisions of Regulation 151 of the Regulations. Instead, the Commanding Officer
forwarded the same to the convening authority to put the appellant to trial by CM.
Charge No. 1:
29. As regards Charge No. 1, the main thrust of the arguments addressed by the
learned counsel for the appellant was that the CM grossly erred, both factually and
legally, in convicting the appellant under Charge No. 1. He contends that the evidence
of PW 27 Lt Cdr Karthikeyan, the complainant, should have been treated as unreliable
evidence and the CM ought not to have placed undue reliance on his statement, while
finding the appellant guilty of Charge No. 1, as PW 27 was an interested witness, who
unjustifiably and maliciously harboured ill will towards the appellant.
30. Learned counsel for the appellant submitted that the appellant had no dealing
with Amber Aviation, which fact has not been taken into account by the CM. Further,
the documents produced by the representatives of Amber Aviation did not have the
signatures of the Accounts Manager, Chief Flying Instructor or the Chief Engineer
appointed by the DGCA. Also, there were no seal of authentication from any of the
above named persons. The tenders were opened by a nominated individual by the
Board nominated for that purpose, which is clear from Question Nos. 1149 - 1152 at
page 264. The comparative statement (CST) was processed with the approval of the
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competent authority viz. PDAPSA and COP. The cash was physically collected and
disbursed to the service provider by the Administrative Officer Lt Cdr. Karthikeyan (Q
Nos. 3207 to 3212 at page 680). That apart, there were no allegations/complaints on
any of the activities from any quarter till PW 27 Lt Cdr Karthikeyan and PW 4 LME A.
Borah were removed from the team by PDAPSA after alleged molestation of a French
woman by PW 4 LME A Borah in France. Subsequent to their removal, PW 27 Lt Cdr
Karthikeyan made a complaint alleging financial impropriety on the part of the Oi/C of
the team, the appellant. There was no complaint or report of any nature either from
Amber Aviation or Aviation India even at the Board of Inquiry stage. Amber Aviation,
in collusion with Aviation India, at the behest of Capt G.S. Dhillon played a fraud by
bringing false receipts, payment slips, etc and by adducing false evidence through
their representatives viz. PW 7 Mr. Sudharshan Vashist and CW 2 Mr. Awdesh Kumar,
who had no knowledge of the alleged transactions. Learned counsel for the appellant
contended that approval of air field charges for 50 hours @ Rs. 13,230/- per hour and
Rs. 3,500/- per day was accorded from COP. DAPSA file noting at Exhibit D-41 shows
that a total amount of Rs. 4,19,055/- was paid as final settlement to the service
provider. The aircraft journey book and the authorisation book tallies with regard to
the number of hours utilised. As per the quotation received from PW 8 Mr. Sandeep
Sharaf, the cost of aircraft charges per hour was Rs. 13,230/- and at no point of time,
it was intimated that the cost per hour was lesser than that. It came out only in the
deposition before the CM as a conjecture by Amber Aviation and Aviation India
representatives that the cost could have been approximately Rs. 7,500/-. Learned
counsel submitted that nothing in writing from either of the companies has been
brought on record to show that invoicing was done for 25 hours only that too @ Rs.
8,000/-. Therefore, the learned counsel brought out that the CM failed to analyse the
evidence available on record in this regard.
31. Learned counsel for the appellant vehemently contended that the CM failed to
take into consideration the important fact that all along the appellant's case was that
neither the amount was entrusted to him nor did he have any control over it. The
appellant was the DDAPSA during the relevant period and quotations were invited for
the conduct of Skydiving Camp, Delhi Area. Aviation India operated by PW 8 Mr.
Sandeep Sharaf supplied four quotations, including that of Amber Aviation admittedly
in a sealed envelope, which is clear from Q. Nos. 1149 to 1151. No doubt, the
appellant was a part of the three Member Board nominated to open the tender
document and to make a comparative statement. If one goes through the evidence,
according to learned counsel for the appellant, it could be seen that the quotations
were in a sealed envelope and there was no deviation from the standard practice. The
CST document was approved by the PDAPSA PW 28 Capt Virk and the competent
authority viz. COP on 14.02.2007, prior to placing a supply order. No audit objection,
whatsoever, was raised in regard to the approval.
32. Learned counsel for the appellant also pointed out that the proposal in the NHQ
Adventure Activity, Non Public Fund (NPF) for an advance of Rs. 2,00,000/- was
initiated on 15.02.2007 and upon approval by the CFA i.e. PDAPSA on 21.02.2007, a
bearer cheque was collected by PW 27 Lt Cdr. Karthikeyan, Administrative Officer,
which he admittedly encashed on 21.02.2007. Another proposal was mooted in the
INSCB NPF proposal register (Exhibit P50) and approved by the CFA on 21.02.2007
and a bearer cheque was collected by PW 27 Lt Cdr. Karthikeyan, which he,
admittedly, encashed on 21.02.2007. PW 27 Lt Cdr Karthikeyan, ex post facto,
converted this proposal from INSCB as a proposal from Adventure Activity (NPF) vide
Ext. P41 (SI. No. 276 dated 28.03.2007). SI. No. 276 corresponds only to the proposal
dated 28.03.2007). He states that this would prove that PW 27 Lt Cdr Karthikeyan also
operated the financial documents in DAPSA. If, at that time, PW 27 Lt Cdr Karthikeyan
knew that the transaction was false, he should not have ex post facto regularised the
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same at a later date. Learned counsel for the appellant also contended that PW 27 Lt
Cdr. Karthikeyan had played a dominant role in the sanction of Rs. 4,00,000/- for the
above camp, he being the Administrative Officer. He clearly deposed that the Aircraft
Company was paid the amount in cash (Q. Nos. 3207, 3208, 3209 and 3210).
33. Learned counsel for the appellant also tried to contend that PW 27 Lt Cdr.
Karthikeyan was the Administrative Officer and as proved by the evidence of PW 37
Roger Bannister, DW 3 Karan Singh, PW 32 Lt Anand Revi, PW 36 Senthil Kumar and
PW 38 Ashish Ray, he was dealing with payments and accounting. He also pointed out
that both the bearer cheques were encashed by PW 27 Lt Cdr. Karthikeyan and he
carried the cash to Hissar on 21.02.2007 for disbursement to the vendor
company/representative. It was the same person who, under the instruction of PW 8
Sandeep Sharaf, supplied the quotation Exhibit P22(i), had received the money from
PW 27 Lt Cdr. Karthikeyan on 21.02.2007 and gave Exhibit P36 receipt on 21.02.2007.
The signature on Exhibit P36 receipt and the signature on Exhibit P22(i) quotation is of
the same person. Therefore, according to learned counsel for the appellant, the
appellant, at no stage, had handled the amount of Rs. 4,00,000/-.
34. Learned counsel for the appellant further contended that Amber Aviation was a
student training Academy, which did not have a service tax number. This itself shows
that Exhibit D55 and Exhibit C1 were fake documents and the transactions related to
some other activities between those two companies. The prosecution conveniently
omitted to refer to these documents, which proves that the case against the appellant
is a story created only to harass the appellant. However, these important factual
aspects were not taken into account by the CM, while finding the appellant guilty of
Charge No. 1.
35. It is also the contention of learned counsel for the appellant that the
prosecution was not able to produce the Form 16A to show that TDS was deducted,
which is clear from the evidence of CW 2 Mr. Avdesh Kumar, though the same could
have been easily produced by them either from the office of Aviation India or the
Amber Aviation. The prosecution also did not produce the 26AS form, which also would
have contained details of the TDS.
36. Mr. Sukhjinder Singh, learned counsel for the appellant further argued that
giving cash advance in adventure activity is a normal practice and such cash advance
is paid through NPF of various sections and once the activity is completed, the cash is
reimbursed to the respective NPFs. In support of this contention, learned counsel
relied on the evidence of PW 29 Capt V.G. Iyer and PW 9 Cdr. Chikkara.
37. Based on these contentions, learned counsel for the appellant concluded his
arguments on Charge No. 1 and contended that there is no material to find the
appellant guilty of Charge No. 1 and the findings of the CM, so far as this charge is
concerned, are based on the prosecution evidence, which are full of contradictions and
are not sufficient to find the appellant guilty.
38. After finishing his arguments on Charge No. 1, learned counsel then drew our
attention to Charge No. 17, which is similar to Charge No. 1, and developed his
arguments on Charge No. 17.
Charge No. 17:
39. As regards Charge No. 17, Mr. Sukhjinder Singh, learned counsel for the
appellant pointed out that this charge is defective since during the relevant period
from 25.03.2008 to 31.03.2008, the appellant was neither the DDAPSA nor the team
leader as he was posted on-board INS Sindhuraj (submarine) as its Engineer Officer
(HoD) and on this reason alone, the charge fails.
40. Learned counsel for the appellant pointed out that the appellant was DDAPSA
only till 21.01.2008 and it was during this period that he invited quotations from
certain aviation companies for the conduct of a Skydiving Camp as per the approval of
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the APSO viz. CPS/NHQ, as is evident from Exhibit D-41. The tenders were opened as
part of tender opening by the Board and as per the laid down procedure and the CST
was made, which was approved by the Board and the PDAPSA. Thereafter, the
appellant issued a letter seeking discount to the L1 firm. Subsequently, on
21.01.2008, he handed over his duties to DW 1 Lt Cdr M.V. Birajdar.
41. It was also argued by learned counsel for the appellant that as per the PDAPSA
memo, a Board of Officers was nominated to open the tender and make a CST, in
which the appellant was one of the Board members along with PW 6 A. Panchal and
PW 29 Capt V.G. Iyer. Learned counsel further added that, though during chief
examination both PW 6 Panchal and PW 29 Capt Iyer had deposed that the quotations
were brought to them in an open condition, however, subsequently, during cross
examination, they admitted that the quotations were brought to them in sealed covers
and were opened by the Board only. He also argued that the quotation of Amber
Aviation (Ext. P27) was disowned both by PW 35 Mr. Jasbir Singh and PW 7 Mr.
Sudarshan Vashist. Interestingly, no witness suggested that the appellant had
doctored or manipulated Exhibit P27. Furthermore, it was his contention that the
appellant had no role in the documentation subsequent to 21.01.2008 as he was
posted out to an operational Submarine until called upon as Chief Instructor (not as
Oi/C or DDAPSA) to conduct a Skydiving Camp as per Exhibit P24. All the documents,
including the offer of discount from Amber Aviation, receipts and invoices were
received by DW 1 Lt Cdr M.V. Birajdar, who succeeded the appellant, through PW 27 Lt
Cdr Karthikeyan.
42. Learned counsel for the appellant has also brought out that PW 37 Roger
Bannister, who assisted PW 27 Lt Cdr Karthikeyan, had seen PW 27 making payments
to pilot, engineer and staff of Amber Aviation. It has further come out from his
evidence that there was only one aircraft and that there were no student trainee pilots
(Q. Nos. 4152, 4153, 4155, 4156, 4158, 4159, 4165, 4167, 4170, 4174, 4205 and
4201 at pages 873, 875, 876, 881, 940 and 957). The learned counsel also placed
reliance on the deposition of PW 27 Lt Cdr Karthikeyan, which stated that the
appellant was handed over a self/bearer cheque by the PDAPSA, the controlling officer,
to carry cash advance to the Skydiving Camp, which was handed over to PW 27 Lt Cdr
Karthikeyan for disbursing and accounting. Furthermore, the evidence of DW 1 Lt Cdr
Birajdar established that PW 27 had made payments and had handed him over the
details of the flying hours, number of jumps undertaken, etc. along with other
documents and bills/invoices and receipts at the end of the camp.
43. According to learned counsel for the appellant, all these evidence prove, beyond
doubt, that the allegation made in Charge No. 17 is nothing but an attempt that was
made only to harass the appellant and to tarnish his character and professional
reputation. He also stated that the prosecution miserably failed to prove that the
appellant had committed the offence under Charge No. 17.
44. Concluding his arguments on Charge No. 17, learned counsel for the appellant
contended that the CM has failed to take note of material contradictions and major
discrepancies in statements of the prosecution witnesses, especially PW 27 Lt Cdr.
Karthikeyan. He further contended that the prosecution had purposely abstained from
producing a number of important witnesses who were neither cited as witnesses nor
examined in the CM, for which adverse inference against prosecution should be taken.
Also, that independent witnesses cited and examined by prosecution have not
supported the case of prosecution, which renders doubtful on the veracity of official
witnesses. He submitted that the CM, despite raising specific contention on aforesaid
points, the respondents have not satisfactorily answered the same. As such, the
findings of the CM on Charge No. 17 cannot be sustained and the appellant should be
acquitted of Charge No. 17 also.
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45. After finishing his arguments on Charge No. 17, the learned counsel proceeded
to argue on Charge No. 11.
Charge No. 11:
46. Learned counsel for the appellant, as regards this charge, emphasised that ex-
gratia grants are generally claimed by participants from the Indian Naval Sports
Control Board (INSCB) for participation in a National/International level competition,
which is evident from the evidence of PW 10 Cdr D.S. Dahiya, who is the Secretary of
INSCB. The role of INSCB has come out from his evidence, according to which, INSCB
is to exercise overall control over sports of the Navy, among other charters. Learned
counsel submitted that the proposal was initiated by PW 10 Cdr Dahiya similar to the
procedure for Regimental Funds in the Army, under the directives of the President,
INSCB, who also happened to be the PDAPSA. A bearer cheque was handed over to
the appellant who was the Oi/C of the Skydiving Team towards seven team members
@ Rs. 7,500/- each. Learned counsel contends that, the ex-gratia money was neither
sought nor contemplated nor a proposal for the same initiated by the appellant at any
stage and, therefore, there was no intent to draw any such amount of cash. Learned
counsel contends that, simultaneously, a proposal from members of the Skydiving
Team was discussed to make a team documentary film and purchase a few souvenirs
and T-shirts for support staff and was agreed by all to contribute the ex-gratia money
for the same. Even the PDAPSA was aware of this and was kept in the picture. Since
the cash was from the NPF, a collective team decision was taken. Admittedly, a
documentary was made by PW 27 Lt Cdr Karthikeyan, paying Rs. 15,000/- from the
collected pool and T-shirt was designed by him and ordered through M/s. Shiv Naresh
as per MO-1 (T-Shirt red in colour of Shiv Naresh, size 36 in back, logo of SKYDIVE),
which was not procured from any other fund. Learned counsel submitted that, out of
seven, five team members had confirmed this fact in the BOI. This was within the
knowledge of PW 38 Ashish Ray and DW 1 Lt Cdr M.V. Birajdar. Furthermore, it has
come out from the evidence of DW 1 Lt Cdr Birajdar that ex-gratia amount was used to
make souvenirs, videos, mementoes and T-shirts, which was clearly a team decision.
However, the prosecution failed to put any question in this regard to these witnesses
and purposely omitted to examine certain other material witnesses as well. The
learned counsel contended that, the prosecution heavily relied upon the evidence of
PW 27 Karthikeyan and PW 4 LME A. Borah, who are interested witnesses and deposed
regarding non-receipt of ex-gratia. Learned counsel also stated that it is on record that
PW 4 and PW 27 were expelled from the IN Skydiving team after the alleged
attempted molestation by the latter of a French housekeeping lady during the team's
visit to France World Championship in July-August 2008, which led to debarring of the
team from that competition. PW 27 Lt Cdr Karthikeyan was found to have committed
lapses in dealing with the incident. Both PW 4 LME Borah and PW 27 Lt Cdr
Karthikeyan were removed from the skydiving team by DW 1 Lt Cdr Birajdar, the then
DDAPSA, under the instructions of PDAPSA. Learned counsel for the appellant also
tried to justify his contentions by stating that neither PW 4 LME Borah nor PW 27 Lt
Cdr Karthikeyan had made any complaint about the non-receipt of the ex-gratia
amount at any stage and that was because they were part of the collective decision to
use the money for the common purpose of making a promotion video and purchasing
souvenirs for the skydiving team.
47. As regards the evidence of PWs 4 and 27, learned counsel appearing for the
appellant urged that they being interested witnesses, their evidence having no
credibility, the CM should not have relied upon their evidence to find the appellant
guilty of Charge No. 11. He also submitted that from the evidence of PWs 4 and 27 it
is clear that they had some interest in having the appellant, somehow or other,
convicted for some animus or other. Clearly, the appellant was not guilty of any
wrongdoing in the act of having a video made for promotion of skydiving as an
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adventure activity in the Navy and for procuring souvenirs for the same purpose, after
having taken the contribution from all the members of the team.
48. Learned counsel for the appellant then invited our attention to Charge Nos. 13
to 15 and proceeded to canvass his arguments on Charge Nos. 13 to 15.
Charge No. 13 to 15:
49. Mr. Sukhjinder Singh, learned counsel for the appellant submitted that the
appellant had not signed any of the claim documents pertaining to Charge Nos. 13 to
15. When the original claim documents were produced before the BOI, the appellant
had indicated that the signatures on the documents were not his, that the claims
seemed to be inflated and that they were not the documents he, like other team
members, had handed over to PW 27 Lt Cdr Karthikeyan for submission. Learned
counsel submitted that, after coming to know about these false documents, the
appellant wrote an official letter to his Commanding Officer seeking permission for
withdrawal of the inflated claim filed on his behalf, without his knowledge, by PW 27 Lt
Cdr Karthikeyan. Again, after his attachment to INS India, he wrote to the
Commanding Officer, INS India making the same request, but no action was taken. In
this regard, the learned counsel alleged that some of the witnesses, who were ready to
depose in favour of the appellant, were threatened by the prosecution of dire
consequences if they did not give evidence against the appellant. Furthermore, it was
alleged that the original documents pertaining to these claims, which were supposed
to be preserved as per Para 53 of Navy Order (Special) 02/2002, were destroyed by
the respondents, hence it was the photo copies of these documents, secondary
evidence, that were subjected to scrutiny by the handwriting expert. DW 2 Pandit
Ashok Kashyap, handwriting expert, categorically deposed that the signatures were
not of the appellant. In this regard, learned counsel relied upon the decision of the
Bombay High Court in Ramkrishna Girishchandra Dode v. Anand Govind Kelkar (AIR
1999 Bom 89) and contended that in the event of slightest doubt; leave the matter to
the wisdom of the expert.
50. As regards Charge No. 13, learned counsel for the appellant submitted that the
appellant had not signed this claim and his signature contained therein was forged.
Further, it is obvious that as on 03.08.2007 or earlier, a false claim was submitted. PW
21 Mr. Rakesh Kumar, Assistant Accounts Officer deposed that it could have been
submitted to him only after 20.11.2007, after receipt of Exhibit D12 detention
certificate. Learned counsel further submitted that it was PW 27 Lt Cdr Karthikeyan
who had prepared false claims (Exhibits D17 to 31) for the entire team and signed
himself on their behalf when team members were not there and got the same passed
within a short span of 05-10 days. Further, DW 2 Pandit Ashok Kashyap deposed that
the suspected signatures marked as Q1 to Q6 were forged and not written by author of
admitted signature marked as A1 to A5. All these evidence would show that the claims
under Charge No. 13 did not bear the signature of the appellant, therefore, the
allegation in Charge No. 13 would not stand.
51. As regards Charge No. 14, learned counsel for the appellant argued that there
is no evidence on record to show that the appellant had signed the claims. In this
regard, he relied on the evidence of PW 18 C.K. Anurag, POME, who deposed to have
been deputed to USA from 13.07.2007 to 07.08.2007 and all documents pertaining to
his deputation, like tickets, boarding passes, receipt for money were taken by PW 27
Lt Cdr Karthikeyan when he had gone to Vizag and he got Rs. 60,000/- as claim,
which he had neither filled nor signed. According to him, all finances were handled by
PW 27 Lt Cdr Karthikeyan and similar documents were given to other members of the
team. He also deposed that PW 27 Lt Cdr Karthikeyan told him to pay Rs. 27,500/- to
PW 14 B.B. Naidu, LME in lieu of his claim, which he gave being the claim money.
52. As against Charge No. 15, it is contended by learned senior counsel that this
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charge contained allegation of taxi charges for travelling to Eloy (USA), whereas the
claim showed taxi fare to Chicago and back on 04.09.2007 and 21.09.2007. The
charge states “it did on 26 Sep 07”, whereas the claim is dated 01 Nov. According to
the learned counsel, the charge is full of errors; therefore, the same would not stand.
PW 21 Mr. Rakesh Kumar, AAO, in his evidence before the CM, stated that the claims
at Exhibits D27 to D31 in respect of DW 1 Lt Cdr Birajdar, PW 27 Lt Cdr Karthikeyan,
PW 4 LME A. Borah, B.R. Kumar and G.M. Rao were passed on 30.11.2007 on
production of Exhibit D13 viz. detention certificate dated 26.11.2007. He also testified
that it was possible that the aforesaid claims were received in bunch after 26.11.2007
and passed in short span between 26.11.2007 and 30.11.2007. It has also come out
from his evidence that he had not examined the Govt of India letter which stated that
for internal travel in USA the travel expenditure was to be borne by the Embassy of
India at Washington DC. He further stated that these claims must have been
forwarded to CDA (Navy) on 26.11.2007.
53. As regards all these charges viz. Charge Nos. 13, 14 and 15, learned counsel
also relied upon the evidence of PW 18 C.K. Anurag. The witness deposed that he got
money within 20 days and handed over the aforesaid documents to PW 27. He also
deposed that he never filled any claim and he did not submit any claim, whatsoever,
in person, for which he got the money. The money was credited by CDA (Navy) for the
claims for USA deputation, which was prepared by PW 27 Lt Cdr Karthikeyan.
However, to cover up the misdeeds of PW 27 Lt Cdr Karthikeyan, PW 4 A. Borah, LME
too supported PW 27. Furthermore, it is clear from the BOI findings that the three
deputation claims amongst others are the only ones which were defective and that all
seven members of the team had been cited for false claims for these three deputations
and it has further come out from the BOI findings that PW 27 Lt Cdr Karthikeyan had
additionally filled up few more false claims, which clearly brings out the mala fide
intention of PW 27 Lt Cdr Karthikeyan, who was the Administrative Officer entrusted
with several financial and accounting responsibilities. That apart, the original ink
signed exhibits were destroyed by the respondents and what the respondents supplied
to the appellant to defend his case were concocted copies of such documents. It is also
in evidence that PW 27 Lt Cdr Karthikeyan had signed only his claims and none of the
other members signed their claims. Further, it has come out from the evidence of PW
18 C.K. Anurag and DW 1 Lt Cdr Birajdar that they also did not sign their respective
claim documents, which were not questioned by the prosecution. DW 1 Lt Cdr Birajdar
specifically deposed before the CM that he had brought this matter before the BOI and
wrote letters to his Commanding Officer.
54. According to learned counsel for the appellant, the claims were submitted by
PW 27 Lt Cdr Karthikeyan to CDA in November 2007, the BOI commenced in
November 2008, where original documents were made available for scrutiny of the BOI
and investigation commenced in August/September, well within three years and it is
for the respondents to comment why they destroyed the original documents in
violation of NO (Spl) No. 02/2002.
55. Concluding his arguments on Charge Nos. 13 to 15, learned senior counsel for
the appellant submitted that there is no substance in the allegations levelled,
therefore, the findings of CM on these charges also do not stand. The learned counsel,
therefore, contended that the prosecution has not proved the guilt alleged against the
appellant and the appellant deserves acquittal on these charges too.
Arguments by Counsel for the Respondents:
56. On the other hand, Mr. Anil Gautam, learned counsel for the respondents, at the
outset, supporting the findings of the CM, submitted that none of the contentions
raised by the learned senior counsel on behalf of the appellant relating to the
constitution of the CM, in conformity with the mandatory provisions, or even in respect
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of the manner of deciding the objection alleging impartiality or bias of the CM, merits
interference. The CM was competent to adjudicate the matter relating to the offences
alleged against the appellant. As regards the non-adherence of the mandatory
provisions, learned counsel for the respondents submitted that the record would
clearly indicate that ample opportunity was provided to the appellant to mount his
defence. He had cross examined each witness at length and the evidence that has
come on record has been duly analysed and considered by the CM before recording the
findings of guilt on these six charges.
Charge No. 1:
57. As regards Charge No. 1 viz. misappropriation of public funds amounting to Rs.
2,19,055/-, Mr. Gautam, learned counsel for the respondents submitted that as per
the evidence adduced at the CM, the appellant had prepared the tender enquiry dated
05.02.2007 and obtained undated quotations from companies on their letterheads.
Further, he had prepared a forged and undated quotation (Exhibit P22(i)) in the name
of M/s. Amber Aviation and fraudulently prepared a CST, wherein L1 was M/s. Amber
Aviation. The appellant thereafter put up the CST and forged quotations for the
signatures of the board members PW 13 Cdr A.P. Singh and PW 10 Cdr D.S. Dahiya.
After obtaining the signatures on CST, the appellant proceeded with creating a false
letter to Amber Aviation asking them for discount. However, the letter could not have
reached Amber Aviation since it was a fictitious address, which was confirmed by PW
35 Mr. Jasveer Singh. The appellant thereafter moved a file for obtaining approval of
the competent authority for the skydiving camp at Hissar for 50 hrs. of air effort @ Rs.
13,230/- per hour and airfield charges @ Rs. 3,500/- per hour amounting to a total
proposal of Rs. 7,06,500/-. As per the proposal on the file, the hiring of aircraft was to
be done from public fund. The approval was accorded by the competent authority on
14.02.2007. The appellant then generated a false supply order dated 14.02.2007. PW
35 Mr. Jasveer Singh deposed that the said document reflected a wrong address of
their company and their company had not received this supply order.
58. Learned counsel contended that, to generate cash in hand in AA NPF, two
actions were taken by the appellant. Firstly, a loan of Rs. 2,00,000/- was taken from
INSCB and received in cash. This was preceded by the appellant taking up a proposal
for an amount of Rs. 2,00,000/-. This proposal was taken up and signed by the
appellant and approved by PW 28 Capt Virk. After PW 28 Capt Virk perused the cash
book, it was brought out that a total amount of Rs. 4,19,055/- was drawn by the
appellant in cash for hiring aircraft for conduct of sky diving camp at Hissar in
February 2007, which is clearly proved by the cash account book initialled by the
appellant himself. The appellant thereafter generated a false cash receipt of Rs.
4,00,000/- from M/s. Amber Aviation purportedly from Amber Aviation India Private
Ltd dated 21.02.2007 showing that a cash of Rs. 4,00,000/- was received by M/s.
Amber Aviation. This was the covering voucher for the cash withdrawn by the
appellant himself.
59. Mr. Gautam, learned counsel for the respondents further brought out that
having withdrawn a sum of Rs. 4,19,055/- from the AA. NPF, the appellant had to get
the amount reimbursed from AA Public Fund, for which he generated a false summary
of expenditure for an amount of Rs. 4,19,055/- and submitted it to Cdr. Chikkara (PW
9). The proposal was made on the Adventure Activities (Public Fund) account towards
settlement of bills as per payment vouchers of Adventure Activity (Non Public Fund)
for skydiving camp Hissar. The payment was confirmed to have been made to
Adventures Activities (NPF) by PW 9 Cdr. Chikkara through the public fund cash
account book.
60. Learned counsel for the respondents submitted that the CM has rightly
convicted the appellant for having misappropriated public fund amounting to Rs.
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2,19,055/- and there is no basis in the contention of the appellant that it was not the
public fund from where the entrustment was made. With reference to the variation in
the date of receipt of money (in cash) by M/s. Aviation India from the appellant,
learned counsel for the respondents submitted that all the transactions between
Aviation India and Indian Navy were admittedly carried out by the appellant,
therefore, all the documents were made with the knowledge of the appellant and the
firm. The appellant was found guilty for criminal breach of trust, which is corroborated
by both oral and documentary evidence.
Charge No. 17:
61. Learned counsel for the respondents supported the impugned findings for
reasons based by the CM for conviction of the appellant. He submitted that the
contradictions and discrepancies pointed out by learned counsel for appellant are
insignificant in nature and are not having any material effect on genesis of the
prosecution case as there is sufficient material, proved on record, to hold the appellant
guilty. It is settled law that evidence of official witnesses is not to be disbelieved or
discarded merely for the reason that they are official witnesses. Presumption is that
every witness is impartial and independent, unless proved contrary. There is no
presumption for doubting the credibility of official witnesses in principle and
consequently, the statements of official witnesses can be the basis for conviction of an
accused. However, before basing conviction on evidence of official witnesses, strict
scrutiny with care and caution is required. In case evidence of official witnesses is
found cogent, reliable and credible, conviction can be based on evidence of official
witnesses only.
62. Against the contention of learned counsel for the appellant that certain
important witnesses were not examined by the prosecution, learned counsel for the
respondents pointed out that it is the quality of evidence not quantity, which matters
for proving a case. It is not necessary for each and every witness to be examined.
Therefore, non-examination of certain witnesses will not have any adverse effect on
the prosecution case unless the statements of witnesses examined are not found to be
cogent and reliable or prejudice caused to accused for non-examination of such
witnesses is established and also the accused is found incapable to examine such
witnesses in defence for reasons beyond his control.
63. It is the case of the prosecution that the appellant, based on the ‘in principle
approval’ given by the competent authority on 20.12.2008, processed the file relating
to skydiving camp for officers, sailors and dependents in Delhi area and obtained three
quotations, Exhibit P27 from Amber Aviation India Pvt Ltd, Exhibit P28 from Bhatia
Aerospace and Exhibit P29 from Summit Aviation (I) Pvt Ltd. Thereafter CST was
prepared and put up to the Board for signing (Exhibit P31). The Board for CST was
constituted through PDAPSA by Exhibit P 34 memo dated 17.01.2008. PW 29 Capt
V.G. Iyer, PW 6 Lt Cdr Panchal and the appellant were the board members. After the
CST was signed, the appellant allegedly sent a letter seeking discount to the L1 firm,
Amber Aviation India Pvt Ltd (Exhibit P33), which was signed by the appellant himself
on 21.01.2008 being DDAPSA (Aero Adventure). Learned counsel for the respondents
contended that this action of the appellant trying to negotiate with the L1 firm without
the PNC is illegal, since it is not in accordance with CVC guidelines and Defence
Procurement procedures. In this regard, learned counsel for the respondents placed
reliance on Exhibits P18 to 20 and P27 to P35, which the prosecution tried to prove
through PW 6 Lt Cdr A.K. Panchal, to show that two cheques were issued to Amber
Aviation for Rs. 1,51,750/- and to INSA (NPF) for Rs. 2,00,000/-, letter by the
appellant to Amber Aviation asking for discount over the quoted price, letter from
Amber Aviation offering discount over the quoted price, etc. He also placed reliance on
Ext. P58 to show that it was the appellant who had withdrawn the amount of Rs.
2,00,000/- and he also stated that the cheque dated 25.03.2008 contained the
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signature of the appellant in proof of having withdrawn the amount of Rs. 2,00,000/-.
He further relied upon the evidence of PW 5 Royer to prove Exhibit 11B receipt for Rs.
2,00,000/- shown to have been provided to Amber Aviation for conduct of skydiving
camp at Karnal in March 2008 and Exhibit P11A dated 17.06.2008 for Rs. 2,00,000/-
paid to INSA (NPF) being reimbursement of advance drawn for expenditure incurred
for conduct of skydiving camp at Karnal in March 2008. Learned counsel for the
respondents also contended that the fact that the Exhibit P58 cheque was actually
withdrawn by the appellant was corroborated by PW 23 Mr. Mahendra Kumar Bhargava
of State Bank of India and his signatures were proved by DW 2 Pandit Ashok Kashyap,
a handwriting expert. This, according to the learned counsel, shows that though the
appellant was transferred to Vizag, the evidence of DW 3 confirmed that the appellant
still had control over the activities in DAPSA and that was why PW 29 Capt Iyer had
given the self-cheque Exhibit P58 to the appellant and not the incumbent DDAPSA.
Charge No. 11:
64. As regards Charge Nos. 11 i.e. dishonestly inducing the Indian Naval Sports
Control Board and receiving amount on behalf of three officers towards ex-gratia
payment for participating in USPA @ Rs. 7,500/-, which the appellant did not disburse
to them thereby committing an offence under Section 420 of the Penal Code read with
Section 77(2) of the Navy Act, learned counsel for the respondents submitted that the
CM has not committed any error in convicting the appellant and as such, no
interference with the same by this Tribunal is necessary. According to the learned
counsel, the evidence of PW4 Borah, PW 10 Cdr Dahiya, PW 27 Lt Cdr Karthikeyan and
PW 28 Capt Virk supported the prosecution case. Further, the documentary evidence
also proved that the appellant had committed the offence under Charge No. 11.
Charge Nos. 13, 14 and 15:
65. As regards Charge Nos. 13 to 15, regarding the fraudulent TA/DA claim
submitted to CDA (0) and money received thereto, learned counsel for the
respondents stated that the evidence of PW 16 Cdr Aby Mathew, PW 21 Mr. Rakesh
Kumar, PW 28 Capt Virk and PW 34 R Adm P. Murugesan and the documentary
evidence adduced by the prosecution had been corroborated in material particulars by
the prosecution, therefore, the CM had rightly convicted the appellant for the aforesaid
charges.
66. Mr. Gautam, learned counsel contended that PW 21 Mr. Rakesh Kumar had
confirmed that Exhibits P60 to P62 claims were passed and sent to the appellant's
Individual Pay Account (IPA). If the unexplained case of the appellant is accepted, the
onus of proving that there was no increase in his claimed dues is on the appellant.
Furthermore, these claims had been passed only on furnishing the air ticket and the
boarding pass, which were also required for submitting the TA/DA claims and would
have been only in possession of the appellant. The appellant had not produced his air
ticket and the boarding pass to prove his claim that the TA/DA claims were
fraudulently made by some other person. In its absence, the CM was justified in
finding the appellant guilty of these charges. Moreover, the appellant had not been
able to prove the motive behind any other person producing his original air ticket and
the boarding pass for attaching to his claim. He further submitted that the destruction
of old documents by CDA (0) was in accordance with the regulation in force, which
stipulated that the claims were to be retained by the CDA for a maximum period of
three years and before carrying out the destruction of the documents, approval was
taken. In this regard, learned counsel placed reliance on the evidence of PW 21 Mr.
Rakesh Kumar and Exhibits P64(a) to (d). Further, PW 27 Lt Cdr Karthikeyan had
specifically stated in his evidence that the claims were prepared, signed and left by
him with the appellant for attaching the detention certificates on receipt from the Eol.
By signing false claim forms, the appellant committed the offence charged against
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him. The learned counsel further submitted that there was a systematic attempt on
the part of the appellant to siphon away funds of the Government by making false
TA/DA claims and that there is voluminous evidence on record to suggest that it was
the appellant who fraudulently made and signed the TA/DA claims.
67. According to Mr. Gautam, learned counsel for the respondents, there is ample
evidence to show that the appellant had knowingly made fraudulent claims in respect
of the journeys, the claims of which were already settled by the PDAPSA based on
team leader's statement of expenditure towards incidental expenditure duly counter-
signed by the Embassy of India, USA. As regards the doubt raised by the learned
counsel for the appellant regarding the differences between the list forwarded by the
appellant and that was counter-signed by the Naval Attache, Mr. Gautam placed
reliance on the evidence of PW 34 R Adm Murugesan, who had proved Exhibit P79 and
clearly stated in his evidence that as per Exhibit P80(b), counter-signed statement of
expenditure forwarded to PDAPSA, the Eol had authorised a payment of US $ 400/- for
taxi charges from LAX airport to Perris Valley, US $ 322.06 towards fuel charges during
the road journey from Perris to Eloy, AZ and US $ 375/- for taxi charges from Perris
Valley to LAX airport as claimed by the team leader in his fax dated 26.03.2007 at
Exhibits P80(m) and (n). Furthermore, PW 28 Capt Virk clearly stated in his evidence
that all the Gol deputation letters during his tenure were drafted by the appellant as
DDAPSA (Aero Adventure) and the appellant was well aware of the fact that the travel
charges were supposed to be settled by the Embassy. He recognised the signatures on
the TA/DA claim (Exhibit P59) to be that of the appellant and he confirmed having
counter-signed the claim. Therefore, there is nothing wrong in the CM finding the
appellant guilty of Charge No. 13.
68. So far as Charge No. 14 is concerned, learned counsel for the respondents
contended that the appellant had once again put up false and fraudulent TA/DA claim.
Relying on the evidence of PW 34 R Adm Murugesan and PW 28 Capt Virk, it was
contended by the learned counsel that the appellant had betrayed the good faith and
confidence reposed in him by the Government and thus withdrew huge amounts on
the basis of forged documents. PW 34 R Adm Murugesan, the Naval Attache at
Washington, who proved Exhibit P76, stated that he received Exhibit P76(b), a fax
message dated 19.07.2007 from the appellant, who was the team leader, requesting
payment towards accommodation and transportation of team members and
parachutes and accessories at Perris and to Arizona and back. The team leader had
sent Exhibit P76(c) invoice purportedly of Perris Valley Skydiving claiming an amount
of US $ 14,160/-, which included an amount of US $ 15000/- for transportation
to/from Arizona. PW 34 then made Exhibit P76(a) note for payment of the amount of
US $ 14,160/- to the personal bank account of the appellant and the same was wire
transferred to his account by the Chancery. Thereafter on 06.08.2007, PW 34 deposed
to have received Exhibit P76(c) fax message from the appellant requesting for
payment of incidental and miscellaneous charges amounting to US $ 5,669/- as per
Exhibit P78(d) list attached therewith, wherein he had claimed an amount of US $
530/- towards taxi charges of 02 cabs from Los Angeles Airport to Perris Valley and an
amount of US $ 425/- towards taxi charges from Perris Valley to Los Angeles Airport
and US $ 360/- towards fuel charges. The learned counsel also stated that it has come
out from the evidence of PW 28 Capt Virk that all the deputation Government of India
letters during his tenure were drafted by the appellant as DDAPSA (Aero Adventure)
and the appellant was well aware of the fact that travel charges were supposed to be
settled by the Embassy. Thus it is clear that the appellant had knowingly made
fraudulent TA/DA claim, based on which the CM found the appellant guilty of Charge
No. 14 and the finding of the CM does not warrant any interference.
69. As far as Charge No. 15 is concerned, learned counsel for the respondents then
canvassed that the TA/DA claim of the appellant was made fraudulently, knowing well
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that his claim in respect of this TA/DA claim had already been settled by the Embassy
of India, USA. According to the learned counsel, PW 28 Capt Virk had clearly brought
out that all the Government of India letters in respect of deputation were drafted by
the appellant as DDAPSA (Aero Adventure) and that the appellant was well aware of
the fact that the travel charges were supposed to be settled by the Embassy.
Furthermore, PW 34 R Adm Murugesan, through whom Exhibit P88 was proved, stated
in his evidence that he had received Exhibit P88(c) fax message on 29.10.2007 from
the appellant requesting for payment of incidental and miscellaneous charges
amounting to US $ 8,243.91 as per Exhibit P88(d) list attached thereto. In the said
list, the appellant had claimed an amount of US $ 485 towards taxi charges of two
taxis from LAX Airport to Perris Valley for seven persons, US $ 440 towards taxi
charges of two taxis from Perris Valley to LAX Airport for seven personnel, US $ 565/-
towards taxi charges of two taxis from O'Hare Airport to Skydive Drop Zone to O'Hare
Airport for seven personnel. It has also come out from his evidence that since the
payment could not be made in USA as the appellant (team leader) was already in
India, PW 34 R Adm Murugesan made Exhibit P88(a) letter based on the team leader's
fax and addressed it to PDAPSA for payment of the incidental charges in India. Along
with the letter, he attached a fresh statement of expenditure after auditing the bills
forwarded by the appellant, wherein he had corrected certain expenditures projected
by the appellant and authorised US $ 8,248.29 for payment to the appellant. This
fresh statement of expenditure was duly counter-signed by PW 34 so that the team
leader could later append his signature on the same page before claiming the amount
in India and the same was made by the appellant, as is evident from Exhibit P88(b).
70. Based on the aforesaid evidence of PW 28 Capt Virk and PW 34 R Adm
Murugesan, the learned counsel for the respondents stated that the evidence on record
admittedly discloses that the appellant had made the fraudulent TA/DA claim and as
such, the evidence on record is sufficient to arrive at the conclusion that the appellant
had committed the offence under Charge No. 15 and so far as this charge is
concerned, the defence has not been able to place any reliable evidence to prove that
the appellant had not made the TA/DA claim fraudulently. Therefore, according to the
learned counsel for the respondents, no interference is warranted so far as Charge No.
15 is concerned.
Charge No. 17:
71. In support of the prosecution case regarding Charge No. 17 viz. forging
documents of M/s. Amber Aviation, Mr. Gautam, learned counsel for the respondents
relied on the evidence of PW 5 Mr. R.S. Royer, PW 6 Lt Cdr A.K. Panchal, PW 7 Mr.
Sudhershan Vashist, PW 9 Cdr Chikkara, PW 23 Mr. M.K. Bhargwa, PW 24 Mr.
Gopinath, PW 28 Capt S.S. Virk, PW 29 Capt V.G. Iyer and PW 35 Mr. Jasveer Singh.
On the basis of their evidence, the learned counsel contended that the CM correctly
found that the appellant had committed forgery and, therefore, the sentence awarded
is proportionate to the gravity of offence committed by the appellant and no
interference by this Tribunal is called for.
72. The learned counsel for the respondents submitted that the appellant had
committed forgery for receiving Rs. 2,00,000/- by submitting false documents to
Naval HQs Adventure Activities (Public Fund) in order to show that a sum of Rs.
3,51,750/- was paid to M/s. Amber Aviation, though the actual consideration was only
Rs. 1,51,750/-, which is clear from the evidence of the prosecution witnesses.
According to him, PW 6 Lt Cdr Panchal has admitted this by proving Exhibits P18 to
P20 and Exhibits P27 to P35. PW 6 has also proved Exhibit P43 payment voucher of
INSA for a sum of Rs. 2,00,000/- paid to DDAPSA (Aero Adv) towards advance for
hiring of aircraft for conduct of skydiving camp at Karnal in March 2008. Furthermore,
PW 5 proved Exhibit 11B, receipt for payment of Rs. 2,00,000/- provided by M/s.
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Amber Aviation for conduct of skydiving camp at Karnal in March 2008. It was
thereafter, the appellant took up the proposal for a loan of Rs. 2,00,000/- by way of
self-cheque (Exhibit P58), which bore the signature of the appellant as having
withdrawn the cash amount of Rs. 2,00,000/-. PW 29 Capt Iyer also confirmed that
the two signatures on the reverse of Exhibit P58, a self-cheque, one in his capacity as
Oi/C of the fund and the other was that of the appellant. The withdrawal of this
amount by the appellant was further corroborated by Mr. Mahendra Kumar Bhargava
from State Bank of India. He also confirmed that Exhibit P58 was a self-cheque which
was withdrawn from bank by the appellant, whose signatures were appended at the
reverse of the cheque along with the I Card No. 613984 of the appellant. That apart,
DW 2 Pandit Ashok Kashyap, the handwriting expert, opined that the signature on
Exhibit P58 was that of the appellant.
73. Learned counsel for the respondents submitted that the supporting documents
for payment from NHQ Adventure Activities (Public Fund) generated by the appellant
were false, which is supported by the evidence of PW 7 Sudarshan Vashist. He
deposed that Exhibit P27 was not generated by his company. Furthermore, the
document did not belong to his company since it was not on his company's letterhead.
Additionally, PW 35 Mr. Jasveer Singh deposed that the document had fake signatures
of Mr. Sudarshan, who was the QCM and that there was a service tax number on the
document, whereas the company did not have a service tax number at all. Mr. Gautam
stated that the evidence of these witnesses (PWs 7 and 35) clearly prove that Exhibit
P27 quotation from Amber Aviation, Exhibit P30 letter of discount from Amber Aviation
were all fake documents. Thus, learned counsel for the respondents submitted that the
evidence on record, no doubt, pointed towards the guilt of the appellant and as such,
the findings arrived at by the CM were correct and do not call for any interference.
Consideration by the Court:
74. Having heard the learned counsel appearing for both the sides, the question
that needs to be considered in this case is, whether the prosecution has proved,
beyond reasonable doubt, that the appellant committed the offences under Charge
Nos. 1, 11, 12, 13, 14 and 17. To start with, we shall consider the contentions of the
parties charge wise.
Charge Nos. 1 and 17:
75. First of all, we shall deal with Charge No. 1, which states that, between
01.02.2007 and 30.11.2007, the appellant was entrusted with a sum of Rs. 4,19,055/-
towards hiring of aircraft charges for the skydiving camp held at Hissar and he
committed a criminal breach of trust by paying only a sum of Rs. 2,00,000/- to M/s.
Aviation India as against Rs. 4,19,055/- that was entrusted to him for the purpose.
Accordingly, for undertaking the skydiving camp for Navy personnel and dependents,
the appellant prepared tender enquiry dated 05.02.2007 Exhibit P22(b) and obtained
three undated quotes from registered companies on their letter heads viz. Exhibit P22
(K) quotation from Aviation India, Exhibit P22(1) quotation from Agni Aviation
Consultants and Exhibit P22(J) quotation from Dhillon Aviation India Pvt Ltd. He
thereafter is alleged to have prepared a forged and undated quotation Exhibit P22(I)
purported to be belonging to M/s. Amber Aviation but, in a hurry, it is alleged that, he
erroneously printed the name of the company as “Amber Avijiation” and the quotation
sheet was without the company's logo. He also prepared a CST Exhibit P22(F) with the
said quotation. To prove this charge, the prosecution relied upon the evidence of PW 6
Lt Cdr A.K. Panchal, PW 8 Mr. Sandeep Sharaf, PW 9 Cdr Chikkara, PW 10 Cdr D.S.
Dahiya, PW 13 Lt Commander A.P. Singh, PW 24 Gopinath, PW 28 Capt S.S. Virk and
PW 35 Mr. Jasveer Singh, MD, Amber Aviation as well as documents Exhibits P22(b),
(e), (f), (k), (I), (j), (i), P36, P40, P41, P44, D-55(a), D-55(b), D56 and P65.
76. Learned counsel for the respondents contended that the fact that the quotations
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of M/s. Amber Aviation were forged was corroborated by the evidence of PW 7 Mr.
Sudarshan Vashist of Amber Aviation and PW 35 Mr. Jasveer Singh. When PW 7 was
shown Exhibit P22(i), he deposed that Exhibit x P22(i) was not from his company as
the name was written as “Amber Avijiation”. He also stated that the address shown in
Exhibit P22(i) was not of his office. Furthermore, the appellant put up the CST and the
forged quotations for the signature of the Board Members, wherein PW 13 Cdr A.P.
Singh and PW 10 Cdr D.S. Dahiya and the appellant were Members. PW 13 Lt Cdr. A.P.
Singh also corroborated the fact that CST and the quotations were brought to him
either by the appellant, who was the officer in-charge of skydiving team or one of the
sailors working in the skydiving team. PW 13 stated that at the time when he received
the quotations, the appellant had already signed the quotations. PW 10 also clarified
that as per the existing procedures in DAPSA, it was the responsibility of the
concerned Section Officer to put up the quotations to the Board and in this case, being
the officer in charge of skydiving cell, it was the responsibility of the appellant to put
up the quotations. Learned counsel for the respondents pointed out the abnormal
speed at which the entire process was done highlighted that, after sending tender
enquiry Exhibit P22(b) on 05.02.2007, the consequent actions of receiving of quotes,
opening of tenders and preparation of CST, everything was got done within just eight
days, flouting DPM guidelines. The CST was signed on 13.02.2007 and on the same
day, the letter asking for discount was signed by the appellant. The approval was
accorded by the competent authority on 14.02.2007. The appellant moved a file for
obtaining approval of the competent authority for the camp at Hissar for 50 hours of
air effort @ Rs. 13,230/- per hour and airfield charges @ Rs. 3,500/- per hour,
amounting to a total proposal of Rs. 7,06,500/-. As per the proposal on file, the hiring
of aircraft was to be done from Public Fund MH 800(g).
77. Learned counsel for the respondents further contended that, to generate
enough cash in hand in AA NPF, initially a loan of Rs. 2,00,000/- was taken from
INSCB and received in cash. He then relied on Exhibits P5 and R3 of Exhibit P40 (cash
book) to show the entry for drawing this amount from the bank by a self-cheque and
contra entry for crediting to the cash in hand. PW 28 Capt Virk verified Exhibit P40
cash account book and brought out that a total amount of Rs. 4,19,055/- was drawn
by the appellant in cash for hiring aircraft for conduct of skydiving camp at Hissar in
February 2007, as per which, (i) a sum of Rs. 2,00,000/- was withdrawn in cash by
the appellant as payment for hiring of civil aircraft; (ii) a sum of Rs. 2,00,000/- was
withdrawn in cash by the appellant being payment for hiring of civil aircraft; and (iii) a
sum of Rs. 19,055/- was withdrawn in cash towards final payment of air effort and
airfield charges to M/s. Amber Aviation. Stating so, learned counsel for the
respondents contended that it was the appellant who had withdrawn a sum of Rs.
4,19,055/- in cash from Exhibit P40 AA NPF Cash Account Book, which show that the
appellant was entrusted with the said sum of Rs. 4,19,055/- while he was carrying out
the duties of Deputy Director of Adventure (DDA) Physical Fitness and Sports Activities
(Aero Adventure) towards hiring of aircraft for Hissar Camp in February 2007. It was
thereafter that the appellant generated a false receipt of Rs. 4,00,000/- (Exhibit P36)
purportedly from “Amber Avajiaition India Private Limited” to show that an amount of
Rs. 4,00,000/- was received by M/s. Amber Aviation. Having withdrawn a sum of Rs.
4,19,055/- from the AA NPF, the appellant had to get the amount reimbursed from the
AA Public Fund and accordingly generated a false summary of expenditure (Exhibit
P22(m» and submitted it to PW 9 Cdr Chikkara. Therefore, according to learned
counsel, it was the appellant who signed Exhibit P22(m) and not PW 27 Lt Cdr
Karthikeyan. PW 9 Cdr Chikkara claimed to have made the payment to the appellant
vide Cheque No. 484517 dated 07.11.2007. Therefore, learned counsel for the
respondents contended that it is established, beyond doubt, that the entire amount of
Rs. 4,19,055/-, which was withdrawn from NPF for hiring of aircraft at Hissar, was
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reimbursed from NHQ Adventure Activity (Public Fund).
78. Mr. Gautam, learned counsel for the respondents further contended that as per
the proposal, the Skydiving Camp at Hissar was to commence on 16.02.2007 and after
obtaining approval of the competent authority, he paid a sum of Rs. 2,00,000/- as
advance payment to Aviation India on 14.02.2011, which is clear from the evidence of
PW 8 Mr. Sandeep Sharaf, who stated that the appellant contacted Aviation India in
2007 telephonically with regard to the Hissar camp and thereafter came to the office
to discuss about the matter. In this regard, PW 8 Mr. Sandeep Sharaf stated that the
responsibility for providing aircraft was given by the Navy to Aviation India and
accordingly Aviation India had further contacted Amber Aviation for providing the
aircraft at Hissar. For this camp, a sum of Rs. 2,00,000/- was received by him from
the Navy in cash and a receipt was given to the appellant and was also accounted for
in Aviation India's bank account. This was corroborated by Exhibit D55(a) receipt
proved through CW 2 Awdesh Sharma. The amount of Rs. 2,00,000/- received as
advance was paid by Aviation India to Amber Aviation through a cheque, after
deducting TDS. This fact is supported by PW 8 Mr. Sandeep Sharaf and PW 35 Mr.
Jasveer Singh, who stated that his company did not provide any quotations to the
Navy. He also stated in his evidence that Exhibit P22(i) is a forged document. The
learned counsel also drew our attention to the statement of CW 2 Mr. Avdesh Kumar
Sharma, who authenticated Exhibit D55(a), the receipt for Rs. 2,00,000/- paid by
Navy to Aviation India, which proved the statement of PW 8 about receipt of fund from
the Navy. Concluding his arguments on Charge No. 1, learned counsel for the
respondents submitted that the appellant had drawn a sum of Rs. 4,19,055/- in cash
and the evidence thereto has proved, beyond doubt, that he had paid only Rs.
2,00,000/- to the agency/vendor concerned and misappropriated the remaining
amount of Rs. 2,19,055/- for his personal use, thus the finding of guilt arrived at by
the CM is to be upheld.
79. On Charge No. 1, as against the submissions on behalf of the respondents,
learned senior counsel for the appellant submitted that the entire allegation is based
upon the document Exhibit P22(i) quotation and Exhibit P36 cash receipt, which were
disowned by PW 35 Mr. Jasveer Singh and the defence of the appellant is that he had
no dealing with Amber Aviation and that neither the amount was entrusted to him nor
did he have any control over it. The appellant was the DDAPSA during the period.
Quotations were invited for the conduct of Sky Diving Camp, Delhi Area. PW 8 Mr.
Sandeep Sharaf is a witness discredited by the Board of Inquiry, which had
recommended debarring of his company. He supplied four quotations, including that of
Amber Aviation in a sealed envelope, which is clear from Question Nos. 1149, 1150
and 1151 at page 264 of the CM proceedings. The appellant was also part of the three
members Board nominated to open the tender document and to make a comparative
statement (CST) along with the Presiding Officer PW 10 Cdr R.S. Dahiya and PW 13
Cdr A.P. Singh. PWs 10 and 13 admitted in their evidence during cross examination, in
contradiction to what they had deposed during chief examination, that the quotations
were in sealed envelope and there was no deviation from the standard practice, which
is evident from the answers to Question Nos. 1558, 1563, 1564, 1565 and 1566 at
page 331 and Question Nos. 1283 to 1296 at page 293 of the C.M. proceedings. The
CST document was approved by PW 28 Capt Virk (PDAPSA) on 14.02.2007 prior to
placing the supply order for an approximately 50 hours of flying @ 13,230 per hour,
air plane rental charges and allied air field charge @ Rs. 3,500/- for the 12 days usage
totalling to Rs. 7,06,500/-, which is clear from the file noting in Exhibit D41. It is
clearly evident from the answers to Question Nos. 4851 to 4853 regarding the tender
process that no one in the entire process, from calling for quotations up to approving
the expenditure, had any observation or doubt on the documentation or the process it
was executed. Further, the CDA (Navy), Mumbai, which audited the document, had
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not raised any objections either on dates and numbers, probably it had the invoice and
receipt, in the document set supplied by Cdr Chikkara, however, the important part of
which was being withheld by the prosecution (Question No. 1196 at page 277). The
witness also clarified that Exhibit P22(d) was faxed to the number shown in Exhibit
P22(d) from the originator of the quotation to Mr. Sharaf's office and further handed
over to DAPSA/NHQ.
80. Learned counsel for the appellant claimed that the service providers were arm-
twisted by the prosecution to indulge in false deposition, otherwise they would have
been reported against for fraudulently carrying out commercial activities when they
were not authorised to do so, leading to closure of their academy. It is for this reason
that Amber Aviation, through Aviation India, gave quotations on documents with
flawed/spurious letterheads, so that in case of any investigation, the documents' origin
could be denied. Learned counsel contended that Amber Aviation unauthorisedly
indulged in commercial activities with the Navy though it was running only a student
training academy which was purportedly meant only for ‘educational’ purposes. As per
Government policy, they were not authorised to put in commercial activities. PW 35
Mr. Jasveer Singh admitted that Col S.P. Khanna, who wrote the letter dated
14.02.2007 to DGCA, is their adviser (see Question No. 3939 at page 833). Learned
counsel further submitted that, accordingly, a proposal in the NHQ Adventure Activity,
Non Public Fund (NPF) for an advance amount of Rs. 2,00,000/- was initiated on
15.02.2007. Upon approval by the Competent Financial Authority (CFA) on
21.02.2007, in this case PDAPSA, a bearer cheque was issued which PW 27 Cdr S.
Karthikeyan (Administrative Officer of the Camp) admittedly collected and encashed
on 21.02.2007. This proposal, evidenced by Exhibit P50, was converted ex post facto
as a proposal from Adventure Activity (NPF) by PW 27 Lt. Cdr. Karthikeyan vide entry
in the register at Serial No. 276 dated 28.03.2007, evidenced by Exhibit P41. Further,
DW 3 Karan Singh, a Logistics Department Sailor (Question Nos. 4893, 4894, 4888
and 4860). To a pointed question (Q. No. 4860), “How was accounting done in DAPSA
with reference to sky diving team and who used to prepare summary of expenditure?
the answer was “Normally Lt Cdr Kartikeyan, who was looking after administrative
work. Normally Lt Cdr Kartikeyan used to come before the team and he used to go
later and used to do all the pending work and formalities”. Another contention of the
learned counsel for the appellant is that the answer given to the specific question,
“You said that Lt Cdr Kartikeyan used to draw advance. Have you personally seen him
draw advance? The answer given by the witness was that “Yes, I don't remember
when”. When the CM asked, “You have mentioned that Lt Cdr Kartikeyan used to draw
advance by writing his initial followed by Cdr Rajesh making proposal in proposal
register?”, the answer given by the witness was, “He made initial in the proposal
register, and sometime I made initial in proposal register.” (Q. No. 4893). Again, when
the CM asked another question showing Exhibit P41, “Where did you put initial when
you were in DAPSA?’, the witness answered that, “Initial is not there, however, Lt Cdr
Kartikeyan has made proposal number 276 dated 28.11.06, but not in my
presence.” (Q. No. 4894). Learned counsel contends that all these would make it clear
that PW 27 Lt Cdr Karthikeyan (being the Administrative Officer) had played the
predominant role towards sanction of Rs. 4,00,000/- for the above camp and he also
operated the financial documents in DAPSA. Furthermore, if PW 27 Lt Cdr. Kartikeyan
knew that this transaction was on a fraudulent document, the question that arises is,
why would heex post facto haveregularised the same at a later date. If Question Nos.
3207, 3208, 3209 and 3210 of the CM proceedings are referred to, it would bring out
that PW 27 Lt Cdr. Karthikeyan also agreed that the Aircraft Company was paid cash.
It would be relevant if we quote Question Nos. 3207 to 3210 and the answers given
thereto. They are:
Q. 3207 Am I correct that in February 2007, the Aircraft firm was paid money in
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cash?
A. I do not remember.
Q. 3208 I show you your deposition in Question-Answer 113(b), you have stated
in February 2007 amount was paid in cash, am I correct?
A. I have stated so in SOI.
Q. 3209 How much was the amount?
A. I am not sure around Rs. 2,00,000/-
Q. 3210 I put it to you that it was Rs. 4,00,000/- and drawn by you?
A. I have stated that I have drawn the money of Rs. 4,00,000/-.
81. Learned counsel contends that, on examination of the aforesaid questions and
answers, it would be clear that PW 27 Lt Cdr. Karthikeyan was the first person who
knew that cash advance was provided to the airplane operator, as he was the one who
took money from the bank on 21.02.2007 and handed it over to the representative of
the operator.
82. Furthermore, learned counsel avers that it is crystal clear from the evidence of
PW 32 (Lt Anand Revi), PW 36 (Senthil Kumar), PW 37 (Roger Bannister), PW 38
(Ashish Ray) and DW 3 (Karan Singh) that PW 27 Lt Cdr. Karthikeyan, being the
Administrative officer, dealt with payments and accounting and encashed both the
bearer cheques and carried cash to Hissar on 21.02.2007 for disbursement to the
vendor company/representative. It is further clear from Exhibit P36 that the same
person, under the instruction of PW 8 Mr. Sandeep Sharaf supplied the quotation
Exhibit P22(i), received money from PW 27 Lt Cdr. Karthikeyan and gave receipt
Exhibit P36 on 21.02.2007.
83. Further, learned counsel has contended that if Exhibit D52, vide which money
was paid to Amber Aviation by Aviation India on 20.02.2007, is referred to, it would
clearly indicate that the camp was nowhere near completion on 20.02.2007 when the
exact invoice amount was paid by Aviation India to Amber Aviation, as the camp
continued till 03.03.2007. Also, PW 27 Lt Cdr Karthikeyan admittedly collected the
money on 21.02.2007 for an activity which culminated on 03.03.2007, for which
Exhibit D52 was raised on 03.04.2007. Going through the evidence of PW 28 Capt
Virk, it is evident that PW 27 Lt Cdr S. Karthikeyan was nominated by him as Admin
Officer and hence the bearer cheques were handed over to him by his office, he being
the controlling officer of the funds (Q 3286 page 695).
84. Learned counsel has averred that PW 7 Sudharshan Vashist, a representative of
Amber Aviation, has deposed that his company did not deal directly with the Navy. PW
35 Mr. Jasveer Singh, QCM Manager also deposed that the company had never
undertaken charter flights (Q. No. 1056 to 1058 at page 253 of CM proceedings). He
also stated that the company could not undertake commercial activities as Pilot
Training Academies were debarred to do so, lest their licence could be
cancelled/forfeited. Clearly, it is for this reason that Amber Aviation did not have a non
-scheduled operator's permit and it did not possess service tax number. Further, their
commercial department in Dehradun prepared tenders and PW 7 had nothing to do
with the tenders (Q Nos. 1012, 1014, 1018, 1019 and 1020 page 247/248). He further
deposed that he was not even consulted for the same since it was the Accounts
Department which received the payments, receipts, etc. We find no one from the
Commercial/Accounts Department has deposed on this issue.
85. Learned counsel highlights that, all along, the stand taken by the appellant is
that he was not the custodian of public funds and that the custodian of the public fund
was PW 9 Cdr Chikara and that the amount of Rs. 4,00,000/- was withdrawn by PW 27
Lt Cdr. Karthikeyan. It is that fund which was withdrawn and part of which was alleged
to have been misappropriated by the appellant. Further, the amount of Rs. 4,19,055/-
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was reimbursed on the basis of receipts/invoices and other documents. It is also his
case that it was only PW 27 Lt Cdr. Karthikeyan who had withdrawn the amount and
the onus of proving otherwise lies on him only. Further, there is no proof that the
appellant had misused this money or used it for his personal needs. On going through
the evidence, we find that vital aspects regarding clearing of funds after the approval
of PDAPSA, which are available in the summary of evidence, seem to have been
withheld by the prosecution. One of such aspects, which tantamount to withholding of
vital evidence by the prosecution, is the evidence of PW 9 Cdr Chikkara, the Accounts
Officer of the Public Fund, who reimbursed money from the public fund to the
respective non-public funds on receipt of complete set of documents in original. He
has said that he, in turn, had sent the papers to CDA (Navy), Mumbai for audit. He
had confirmed receipt in original of Amber Aviation D/15/12108, based on which he
cleared the funds after the approval of PDAPSA.
86. On going through the evidence of PW 29 Capt V.G. Iyer, it is evident that
paying cash advance in adventure activities was a well-practised norm by the Navy's
adventure cell and that cash advance was paid through NPF of various sections. Once
the activity was completed, the cash was reimbursed to the respective NPFs.
87. The charge against the appellant is that of committing offence of criminal
breach of trust. In order to constitute this offence, it is incumbent upon the
prosecution to prove that:
i) The appellant was entrusted with or having dominion over Rs. 4,19,055/-.
ii) He dishonestly misappropriated or converted this amount to his own use.
88. As per the prosecution case, a sanction of Rs. 4,19,055/- was accorded by the
competent authority after processing the documents from the respective firms and the
same was put up for the perusal and approval of Competent Financial Authority (CFA)
which was granted on 14.02.2007. Post approval, a proposal was initiated on the non-
public fund proposal register Ex. P-41 on 15.02.2007 for a sum of Rs. 2,00,000/-.
Admittedly, PW 27 Lt. Cdr. Karthikeyan had withdrawn an amount of Rs. 4,00,000/-
from non-public funds of PDAPSA i.e. Rs. 2,00,000/- from INSCB non-public fund and
Rs. 2,00,000/- from Adventure Activity Fund (non-public) on 21.02.2007. He was
issued bearer cheques which he encashed at Delhi on 21.02.2007 and went to Hissar.
Although he claimed to have handed over the total amount of Rs. 4,00,000/- to
appellant at Hissar Camp in his cabin but the CM failed to take note of the evidence of
DW 1 Lt Cdr Birajdar, who shared his cabin with Lt Cdr. Karthikeyan, that he did not
see PW 27 Lt Cdr Karthikeyan paying any amount to the appellant in his cabin, as per
the latter's testimony. It has not come out from the evidence of PW 27 Lt Cdr
Karthikeyan that the appellant had misappropriated the money which he claims to
have handed over to him. We also find substance in the contention of learned counsel
for the appellant that if there was any malpractice on the part of the appellant, PW 27
should have informed his superior officers immediately, but “he slept like Rip Van
Winkle and got up from slumber at his own leisure after two years”, which makes it
difficult to take his evidence at face value.
89. PW 7 Sandeep Sharaf agreed that he had submitted the quotations and that his
company used the aircraft of Amber Aviation for skydiving camp at Hissar. His
company contacted Amber Aviation and it was he who had contacted Amber Aviation,
which makes it clear that the assignment to provide aircraft was given to Amber
Aviation and his company had paid a sum of Rs. 1,96,000/- by cheque after deducting
TDS to Amber Aviation. He further admitted in Exhibit P22 based on fax number
printed by the fax machine and deposed that on top some other company number is
written. He agreed that Gp Capt Sajal Datt Verma had worked with him and that it
could be his printed number on fax.
90. PW 7 Sudarshan Vashist, representative of Amber Aviation admitted that his
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company hired the aircraft to Navy through Sandeep Sharaf of Aviation India and
there was no written contract. Although he disowned receipt Ex. P22 of Rs. 2,00,000/-
in cash by stating that it did not contain his signatures, however, he admitted that his
company received a sum of Rs. 1,90,000/- after TDS deduction.
91. CW 2 Mr. Avdhesh Kumar, on perusal of Ex. D-55 i.e. receipt of Rs. 2,00,000/-
from the Navy, deposed that the receipt is dated 14.02.2007 as made in his system
but the amount of Rs. 2,00,000/- received by his company could be before 14.02.2007
also. Further cheque Ex. D-56 for Rs. 1,95,512/- dated 20.02.2007 was deposited in
the bank on 20.02.2007 and as per Ex. D-55(b) the amount was debited from the
account of Aviation India on 22.02.2007. He further stated that Ex. C-1 payment
voucher dated 20.02. 2007 after deducting Rs. 4,488/- a sum of Rs. 1,95,512/-
towards TDS had been credited to Amber Aviation through a cheque Ex. D-56 of ICICI
Bank on 20.02.2007. Admittedly, PW-27 Karthikeyan had withdrawn Rs. 4,00,000/-
from two non-public funds of Rs. 2,00,000/- each on 21.02.2007. On same day,
according to him, he came from Delhi to Hissar in a taxi. If the amount was withdrawn
by him only on 21.02.2007, how could Aviation India receive Rs. 2,00,000/- from
Navy on or before 14.02.2007. That being so, genuineness of receipt Ex. D-55 issued
by Aviation India to Navy for receiving cash on 14.02.2007 by Sandeep Sharaf, cheque
Ex. D-56 of Aviation India and HDFC deposit slip becomes doubtful. For reasons best
known to prosecution, copy of cheques from NHQ Adventure Advertising nonpublic
fund and that of INSCB non-public fund for the sum of Rs. 2,00,000/- each issued to
PW-27 Karthikeyan, payment vouchers, extracts of cash account book of INSCB has
not been filed.
92. For the same reason, Ex. D-52 invoice dated 03.04.2007 of Amber Aviation
raised on Aviation India raises suspicion as in normal course of business, first invoice
is raised on completion of activity and based on the same, payment is made.
Skydiving camp concluded only on 03.03.2007 and invoice could have been raised
only after 04.03.2007, but the payment has been purportedly made by Aviation India
to Amber Aviation prior to this date.
93. Further, Form 26AS (Ex C2) towards tax deduction also does not help the
prosecution because Amber Aviation did not have a service tax number. Even
otherwise, according to Sandeep Sharaf payment of Rs. 2,00,000/- was received by
him in cash from Navy which he handed over to his accounts department and then
paid the amount to Amber Aviation by cheque after deducting TDS. However, Form
16A was never produced before the CM.
94. PW 28 Captain S.S. Virk, PDAPSA testified that vide entry No. 247 in proposal
register Ex. P-41 he approved Rs. 2,00,000/- on 15.02.2007 to be paid to Amber
Aviation. He also approved final payment of Rs. 4,19,055/- for hiring of aircraft vide
proposal entry No. 25 dated 09.03.2007. In cross examination he further stated that
self-cheques for both the proposals for Rs. 2,00,000/- from two different non-public
funds were to be made for the service provider as advance or they were to be paid in
cash. He further testified that he had no doubt about payment of Rs. 4,19,055/- to
service provider as he had full faith in his officers. On perusal of Ex. P-40, cash
account book of Adventure activities non-public fund, he testified that vide entry No.
6, a sum of Rs. 2,00,000/- was charged off as payment for hiring of the aircraft.
Entries No. 6 to 7 dated 21.02.2007 for Rs. 2,00,000/- each and entry No. 3 dated
18.12.2007 shows a total amount of Rs. 4,19,055/-. According to this witness, fullest
details would be available in Branch Memorandum File (BM file). However, same was
not produced by prosecution by stating that the same was missing.
95. Furthermore, PW 9 Cdr Chikkara stated that a payment of Rs. 4,19,055/- was
made from his public fund to NPF for adventure activity against Receipt
No.D/15/12108 dated 02.03.2007. This receipt, however, was withheld by the
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prosecution. He also stated in his evidence that approval in principle was granted and
the payment was collected by Oi/c or 2IC or one of the sailors and complete set of
financial documents were put up to Oi/c Public Fund. It has also come out during cross
examination that, for any adventure activity, be it sky diving or some other activity,
advance is required to be paid for mobilisation of concerned firm company/service
provider, booking of site, etc. and the aircraft in adventure activity this amount is
required for that purpose. Further, where the advance is required to be paid, it is
sanctioned from one of the NPFs available with the Directorate and later refunded by
the public fund to the said NPF. Referring to Exhibit P22 payment voucher dated
07.11.2007, the witness deposed that he had paid the amount only when the
competent authority proved the same vide Exhibit P42 proposal register. It was duly
proved by PDAPSA and confirmed even charge of the amount of Rs. 4,19,055/- from
his cash account book Exhibit P44 after the approval of the competent authority.
96. In our opinion, whereas clear and unimpeachable evidence is necessary to
convict a person, however, going by the evidence adduced by the prosecution, such
evidence is lacking in this case. The prosecution evidence is inconsistent and there are
material discrepancies in the evidence of the prosecution witnesses. Therefore, the
appellant is entitled to the benefit of doubt. He is, accordingly, acquitted of this
charge.
Charge No. 17:
97. Let us now consider Charge No. 17. The allegation against the appellant in this
charge is that, between 25.03.2008 and 31.03.2008, while performing the duty of
Deputy Director of Adventure, Physical Fitness and Sports Activities (Aero Adventure)
and as team leader of the Skydiving Camp at Karnal, he claimed an extra amount of
Rs. 2,00,000/- by submitting forged documents to show that a sum of Rs. 3,51,750/-
was paid to Amber Aviation when the actual consideration was only Rs. 1,51,750/-.
The CM found the appellant guilty of Charge No. 17 mainly relying upon the evidence
of PW 5 R.S. Royer, PW6 Lt Cdr A.K. Panchal, PW 7 Sudhershan Vashist of Amber
Aviation, PW 9 Cdr Chikkara, PW 23 Mahendra Kumar Bhargawa, PW 24 Mr. Gopinath,
PW 28 Capt S.S. Virk, PW 29 Capt V.G. Iyer and PW 35 Mr. Jasveer Singh, Amber
Aviation as well as the documentary evidence, Exhibits P11A, P11B, P18, P19, P20,
P26, P27, P28, P29, P30, P31, P32, P33, P34, P35, P43 and P58.
98. Mr. Sukhjinder Singh, learned counsel has vehemently contended before us
that Section 464 IPC clearly states that a person is said to make a false document
when it is done with dishonest and fraudulent intention, when a part of document is
made with the intention of causing It to be believed that such a document was made,
signed, sealed, executed, transmitted or affixed by or by the authority of a person
whom or by whose authority, the maker knows that it was not made, signed, sealed,
executed or affixed by the said authority. Moreover, if the maker, without a lawful
authority, cancelled or otherwise altered the said document after the document was
made. Only under these circumstances it is said a document is made falsely.
Furthermore, if two views are possible and one of them gives rise to suspicion only, as
distinguished from grave suspicion, the CM will be empowered to discharge the
appellant and at this stage, it is not necessary to see whether the trial will end in
conviction or acquittal. According to the learned counsel, it is not the case of the
prosecution that the appellant had altered any part of the document nor is it the case
of the prosecution that the signatures on the document purported to be of an authority
knowing that it was not made, signed, sealed, executed or affixed by the said
authority. Hence the prosecution has failed to make out a case that the appellant had
made a false document. Since there is no evidence to show that the appellant had
made a false document, it cannot be said that the appellant had committed the
offence of forgery under Section 463 IPC. It is in this background that we have to
approach the charge levelled against the appellant.
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99. Going by the records, we find that during the relevant period i.e. from
25.03.2008 to 31.03.2008, the appellant was neither the DDAPSA nor the team leader
as he was appointed on-board INS Sindhuraj (submarine) as its Engineer Officer
(HoD). He was DDAPSA only till 21.01.2008 and it was during that period, he had
invited quotations from certain aviation companies for the conduct of a Skydiving
Camp as per the approval of the APSO viz. CPS/NHQ, as is evident from Exhibit D-41.
The tenders were opened as part of tender opening by the Board and as per the laid
down procedure and the CST was made, which was approved by the Board and the
PDAPSA. Thereafter, the appellant issued a letter seeking discount to the L1 firm.
Subsequently, on 21.01.2008, he handed over his duties to DW 1 Lt Cdr M.V. Birajdar.
Furthermore, as per the PDAPSA memo, a Board of Officers was nominated to open the
tender and make a CST, in which the appellant was one of the Board members along
with PW 6A. Panchal and PW 29 Capt V.G. Iyer. During examination in chief, both
these witnesses had deposed that the quotations were brought to them in an open
condition, subsequently, during cross examination, they admitted having brought the
quotations to them in sealed covers and were opened by the Board only. Although,
Exhibit P27 quotation was disowned both by PW 35 Mr. Jasbir Singh and PW 7 Mr.
Sudarshan Vashist, however, no witness suggested that the appellant had doctored or
manipulated this document. Furthermore, the appellant had no role in the
documentation subsequent to 21.01.2008 as he was posted out to an operational
Submarine until called upon as Chief Instructor (not as Oi/C or DDAPSA) to conduct a
Skydiving Camp as per Exhibit P24. All the documents, including the offer of discount
from Amber Aviation, receipts and invoices were submitted through PW 27 Lt Cdr.
Karthikeyan to DW 1 Lt Cdr M.V. Birajdar, who succeeded the appellant.
100. Viewed thus, we are of the opinion that the allegation made in Charge No. 17
has not been proved beyond doubt. We find that the prosecution failed to prove that
the appellant had committed the offence under Charge No. 17.
Charge No. 11:
101. In this, the appellant has been charged with the offence under Section 420 of
the Penal Code read with Section 77(2) of the Navy Act. The CM found the appellant
guilty of having misappropriated an amount of Rs. 22,500/- by dishonestly inducing
the Indian Naval Sports Control Board and as Team Leader, received the said amount
on behalf of Lt Cdr S. Karthikeyan, S. Borah and G.M. Rao, which he did not disburse.
102. The evidence of PW 10 shows that based on Proposal No. 51 on Ex. P50 INSCB
proposal register a sum of Rs. 52,500/- was paid to the appellant towards ex-gratia
payment of Rs. 7,500/- each for the following personnel of INSDT:
(i) Lt Cdr N. Rajesh
(ii) Lt Cdr M.R. Birajdar
(iii) Lt Cdr S. Karthikeyan
(iv) B.R. Kumar, POWTR
(v) G.M. Rao, LME
(vi) A. Borah, LME
(vii) A.K. Ray, LRO.
103. He further stated that the payment of Rs. 52,500/- was made to the appellant
through the self-cheque bearing the number 440201 dated 24.08.2007. The self-
cheque was personally collected by the appellant who signed the receipt of the same
on Ext. 51. The fact that the money was actually debited from the INSCB was
substantiated by Ext. 44 INSCB cash account book introduced by PW 9 vide Item No.
22 dated 24.08.2007 where a payment has been made towards ex-gratia to the
skydiving team of seven persons of an amount of Rs. 52,500/-. PW 28 testified that he
had approved the proposal for paying an ex-gratia amount of Rs. 7,500/- from INSCB
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to each of the above-mentioned participant of INSDT for participating in skydiving
championship at Chicago, USA.
104. The crucial question, however, is whether there was any dishonest intention
on the part of the appellant for inducing the Indian Naval Sports Control Board in
receiving the money on behalf of participants of skydiving championship and not
disbursing the same to the other members of the team. It is pertinent to note that
although the amount was received on behalf of seven persons, including the appellant,
but the charge is qua only three persons viz. (i) Lt. Cdr. Karthikeyan, (ii) S. Borah and
(iii) G.M. Rao. The obvious inference is that the other three persons have not made
any claim for their amounts, which substantiates the fact that there was an agreement
among the seven members of the team to utilise the entire ex-gratia amount of Rs.
7,500/- per person for promotions/publicising Sky Diving Team activities, through
preparation of promotional video and arranging for souvenirs.
105. One of the participants Lt. Cdr. Mahesh Birajdar appeared as a defence
witness (DW1) and deposed that the promotional video documentation for the INSDT
was made through Lt. Cdr. Karthikeyan. The expenditure towards this promotional
video was paid out of the ex-gratia amount sanctioned to the team @ Rs. 7,500/-. All
the team members felt the need to make T-shirt for the support staff and they all
consented for making documentary video for skydiving activities and T-shirts out of ex
-gratia amount. The ex-gratia amount was the source of fund for making the said
documentary, T-shirts and some tie pins and other mementoes. During cross
examination, he testified that all the team members had consented for the same. To a
suggestion that when the Government funds were available why the same were not
used for this purpose, he deposed that getting the funds from the Government is a
long drawn affair hence all the team members voluntarily agreed to the above proposal
inasmuch as Lt Cdr Karthikeyan (PW-27), who also handled the funds of the team, got
the video documentary made and designed the T-shirt to be manufactured by a
private company.
106. Lt Cdr Karthikeyan (PW-27) deposed that the team was granted ex-gratia
amount which he did not receive. However, in cross examination, he admitted that a
promotional video was made by him under private arrangement, payment of which
was made by the appellant. He admitted that he did not make any complaint/report to
any authority, whatsoever, on return from USA about non-receipt of the ex-gratia
amount.
107. Surprisingly, PW 4 A. Borah deposed that only during the Bol, did he come to
know that he was entitled to ex-gratia amount of Rs. 7,500/- which he did not get. He
admitted that he did not confront appellant either during the Bol or during the CM
about his ex-gratia amount by stating that he had no occasion to meet the appellant
in the last 3 years or communicate with him. He further deposed that he did not follow
up or made any complaint through his Commanding Officer. The testimony of both
these witnesses Lt Cdr Karthikeyan and A. Borah have to be scrutinized with much
caution, keeping in view the fact that both of them were reportedly expelled from the
sky diving team with regard to a disciplinary incident in France, when the team had
gone there in August 2008 for World Parachuting Championship 2008. The other two
witnesses G.M. Rao POME and B.R. Kumar, POWTR were not examined by the
prosecution.
108. Viewed thus, we are unable to uphold the argument of the learned counsel for
the respondents that the appellant had intention to cause financial loss to the
Government or the Indian Navy. In the circumstances, the CM went wrong in finding
the appellant guilty of Charge No. 11. We see no reason to uphold the findings of the
CM in regard to this charge and the appellant deserves acquittal. We hold so.
Charge Nos. 13 to 15:
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109. Charge No. 13 relates to fraudulent TA/DA claim, in that the appellant claimed
(i) taxi fare paid from Los Angeles Airport, USA to Perris Valley and back on
12.03.2007 and 30.03.2007 respectively amounting to Rs. 24,808/- and (ii) taxi fare
paid from Perris Valley, USA to Eloy, USA and back on 20.03.2007 and 26.03.2007
respectively amounting to Rs. 34,554/-, when the claims in respect of the aforesaid
journey were settled by Principal Director of Adventure, Physical Fitness and Sports
Activities based on Team Leader's statement of expenditure towards incidental
expenditure duly countersigned by Embassy of India, USA, thereby committed an
offence punishable under Section 60(A) of the Navy Act, 1957.
110. Charge No. 14 relates to fraudulent TA/DA claim, in that the appellant claimed
(i) taxi fares paid from Los Angeles Airport, USA to Perris Valley and back on
14.07.2007 and 08.08.2007 respectively amounting to Rs. 23,809/-; and (ii) taxi fare
journey were already settled by the Embassy of India, USA, thereby committed an
111. Charge No. 15 is regarding the fraudulent TA/DA claim, in that the appellant
claimed (i) taxi fares paid from Los Angeles Airport, USA to Perris Valley and back on
25.08.2007 and 03.09.2007 respectively amounting to Rs. 23,519/-; and (ii) taxi fare
journey were already settled by the Embassy of India, USA thereby committed an
112. So far as these three charges are concerned, the common ground taken by
learned counsel for the appellant is that these claims were not raised by the appellant
and that his signatures were forged, which is proved by the report of the handwriting
expert Pt. Ashok Kashyap and further that the claims did not contain his signatures
and they got passed by PW 27 Lt Cdr Karthikeyan.
113. The submission of learned counsel for the appellant that these claims were not
made by him is mainly based on the opinion of DW-2 Pt. Ashok Kashyap, a
handwriting expert. It is well settled that science of handwriting is not a perfect
science. Therefore, the evidence of a handwriting expert is required to be received with
great caution. In Banarsi Store v. President of the Union of India (AIR 1953 All 318),
the Court held:
The testimony of an expert is usually considered to be of light value. Since, they
are proverbially biased in favour of the side which calls them. So evidence of an
expert should be approached with considerable caution specially where much
depends upon this evidence. The opinion of experts are not binding upon the judge.
The weights due to their testimony is a matter to be determined by the judge and it
will be proportionate to the soundness of the reasons. A Tribunal should not accept
the mere untested opinions of experts in preference to direct and positive evidence
as to facts. Evidence given by the handwriting expert can never be conclusive
because it is after all opinion evidence.
114. Again, In Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC
529), it was observed by the Hon'ble Supreme Court thus:
Expert evidence as to handwriting is an opinion evidence and it can rarely, if ever
take the place of substantive evidence. Before acting on such evidence it is usual to
see if it is corroborated either by clear, direct evidence or by circumstantial
evidence. If the probabilities are against the expert opinion it is of no value.
115. There are umpteen decisions to the same effect that what a handwriting
expert can give is only his opinion and, therefore, since the expert has been procured
by the defence, his testimony requires to be scrutinized with care and requires
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corporation.
116. DW2 clearly stated in his report that it is not possible to conclude with
absolute confidence that these signatures are not appended by the accused as the
document have not been produced in original and only photocopies have been
compared. Moreover, the specimen signatures provided for comparison were chosen by
the appellant and thus their veracity itself is not well established.
117. As regards the reliance placed by learned counsel for the appellant on Para 53
of Navy Order (Special) 02/2002, which provides “security and maintenance of
document of evidence, service and civilian personnel are not to alter, damage, destroy
or modify any charts, books, documents, stores, equipments machinery or such other
things which may be required prior to or during or after BOI”, as per Ex. P64 (a)-(d)
produced by PW 21 Mr. Rakesh Kumar destruction was carried out as per regulation in
force, where in all claims have to be retained by the CDA for a maximum period of 3
years and before carrying out destruction of the documents, approval was taken.
118. It has come in the statement of Naval Attache, PW 34 R. Adm. Murugesan
that he received Ex. P79(b), a fax message dated 17.03.2007 from the appellant who
was the team leader, requesting payment towards' accommodation at Perris and
Arizona and Transportation of team members, parachutes and accessories, at both
places and to Arizona and back. The team leader had enfaxed Ex. P79(c), an invoice
purportedly of Perris valley skydiving, claiming an amount of US $ 11640/- which
included an amount of US $ 1500/- for transportation to/from Arizona. Based on this
fax, he made a note Ex. P79(a) for payment of the amount of US $ 11640/- to the
account of PVAS and the same was wire transferred to PVAS by the chancery.
119. PW 34 further stated that he received a fax message dated 26.03.2007 Ex.
P80(m) from the appellant requesting payment of incidental and miscellaneous
charges amounting to US $ 3231.92/- as per a list attached at P 80(n). In the list, the
appellant had claimed an amount of US $ 400 for taxi charges from LAX airport to
Perris Valley, US $ 375 for taxi charges from Perris Valley to LAX airport and US $
332.06 for fuel charges.
120. As stated by PW-34, due to paucity of time to make the payment in USA, he
generated a letter Ex. P80(a) based on team leaders fax and addressed it to PDAPSA
for payment of the incidental charges in India. Along with the letter, he attached a
fresh statement of expenditure after auditing the bills forwarded by the appellant
wherein he had listed down the same expenditure projected by the team leader, but
individual bill wise, to avoid any confusion he also amplified that the taxi charges
claimed was for 6 personnel so as to substantiate the large sum of US $ 400/- claimed
and to prevent any duplication of claims for the same travel. He allowed the amount
claimed by the appellant for the return taxi fare from Perris to LAX Airport but stated
that the receipts of the expenditure were to be submitted by the team leader on
completion of the journey. He also mentioned that the fuel charges of US $ 332.06/-
was for road journey from Perris to Eloy, AZ as the transport charges of the team were
already being paid by the EOI as per Ex. P79 (c). Total amount paid for the teams
travel was US $ 1822.06/- which included US $ 1500/- paid as per Ex. P79 (c) and US
$ 332.06/- as per P80(b).
121. He further stated that as per Exhibit P80(b), countersigned statement of
expenditure forwarded to PDAPSA, the Eol had authorised a payment of US $ 400/- for
taxi charges from Los Angeles Airport to Perris Valley, US $ 322.06 towards fuel
charges during the road journey from Perris to Eloy, AZ and US $ 375/- for taxi
charges from Perris Valley to Los Angeles Airport as claimed by the team leader in his
fax dated 26.03.2007 at Exhibits P80(m) and (n).
122. PW 34 R Adm Murugesan has categorically stated in his evidence that he
received Exhibit P76(b) fax message dated 19.07.2007 from the appellant requesting
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payment towards accommodation and transportation of team members and
parachutes and accessories at Perris and to Arizona and back. The appellant had sent
Exhibit P76(c) invoice purportedly of Perris Valley Skydiving claiming an amount of US
$ 14,160/-, which included an amount of US $ 15,000/- for transportation to/from
Arizona. PW 34 then made Exhibit P76(a) note for payment of the amount of US $
14,160/- to the personal bank account of the appellant and the same was wire
transferred to his account by the Chancery. Thereafter on 06.08.2007, it was deposed
by PW 34 that he had received Exhibit P76(c) fax message from the appellant
requesting for payment of incidental and miscellaneous charges amounting to US $
5,669/- as per Exhibit P78(d) list attached therewith, wherein he had claimed an
amount of US $ 530/- towards taxi charges of 02 cabs from LAX airport to Perris Valley
and an amount of US $ 425/- towards taxi charges from Perris Valley to LAX Airport
and US $ 360/- towards fuel charges. After auditing the bills forwarded by the
appellant, he made a note Ex. 78(a) and (b) for payment of the amount of US $ 5664/
- to the personal bank account of the appellant and the same was wire transferred to
his account by chancery. The fact that payment of incidental expenditure incurred by
the team leader was made by the Embassy of India at USA stands corroborated from
detention certificate Ex. D-11.
123. PW 34 R Adm Murugesan further stated that he had received a fax message,
Exhibit P88(c), on 29.10.2007 from the appellant requesting for payment of incidental
and miscellaneous charges amounting to US $ 8,243.91 as per Exhibit P88(d) list
attached thereto. In the said list, the appellant had claimed an amount of US $ 485
towards taxi charges of two taxis from LAX Airport to Perris Valley for seven persons,
US $ 440 towards taxi charges of two taxis from Perris Valley to Los Angeles Airport for
seven personnel, US $ 565/- towards taxi charges of two taxis from Chicago O'Hare
Airport to Skydive Drop Zone to O'Hare Airport for seven personnel. It has also come
out from his evidence that since the payment could not be made in USA as the
appellant (team leader) was in India, he made Exhibit P88(a) letter based on the team
leader's fax and addressed it to PDAPSA for payment of the incidental charges in
India. Along with the letter, he attached a fresh statement of expenditure after
auditing the bills forwarded by the appellant, wherein he had corrected certain
expenditures projected by the appellant and authorised US $ 8,248.29 for payment to
the appellant. This fresh statement of expenditure was duly counter-signed by PW 34
so that the team leader could later append his signature on the same page before
claiming the amount in India and the same was made by the appellant, as is evident
from Exhibit P88(b).
124. The fact that the claim for TA/DA as per charge 13 was made stand proved by
PW21 Rakesh Kumar AAO of CDA (N) R.K. Puram who stated that claim Ex. P60 was
received at CDA (N) R.K. Puram and was passed for crediting the amount into the
individual pay account of the accused at Naval Pay Office. Similarly, for charge Nos. 14
and 15, claims Ex. 61 and 62 respectively were received and passed for crediting the
amount into the individual pay account of the accused at Naval Pay Office.
125. Further, PW 27 Lt Cdr Karthikeyan had specifically stated in his evidence that
the claims were prepared, signed and left by him with the appellant for attaching the
air travel boarding pass as well as detention certificates on receipt from the Eol. PW 28
Capt Virk also stated in his evidence that all the deputation Government of India
letters during his tenure were drafted by the appellant as DDAPSA (Aero Adventure)
and that the appellant was well aware of the fact that the travel charges were
supposed to be settled by the Embassy. To a specific question as to who had signed
the deputation TA/DA claim Ex. P60, 61 and 62 he confirmed that the signatures are
of the accused and he countersigned the claim.
126. Moreover, none of these claims could have been made without the appellant
giving his airline tickets and boarding passes which are essential supporting
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documents of the TA/DA claim. It is not even his case that his airline tickets and the
boarding passes were forged. If he wanted to rebut this accusation, he could have
produced his boarding passes and other travel documents, which he and he alone
could have given for claims.
127. Last but not the least, what could have been the motive for any of the team
members including Lt Cdr Karthikeyan in filling up the claim for the appellant when
the claimed amount was to go into his account alone and he (Lt Cdr Karthikeyan) was
not to be benefited by the same. By signing false claim forms, the appellant
committed the offence charged against him.
128. We are thus of the view that there is ample evidence to show that the
appellant had knowingly made fraudulent claims in respect of the journeys, the claims
of which were already settled by the PDAPSA based on team leader's statement of
expenditure towards incidental expenditure duly counter-signed by the Embassy of
India, USA. As such, we do find any justification to interfere with the findings of the
CM. We thus uphold the findings of the CM so far as these charges (Charge Nos. 13,
14 and 15) are concerned.
129. We see no substance in the contention of the learned counsel for the appellant
that the appellant was not afforded the opportunity to examine the defence witnesses
and to cross examine the prosecution witnesses. This is factually incorrect. The records
reveal that the appellant was given sufficient opportunity to examine and cross
examine the witnesses.
Conclusion:
130. In sum, we find that, so far as Charge Nos. 1 and 17 are concerned, the CM
was not able to conclusively prove the guilt of the appellant in terms of committing
criminal breach of trust by misappropriating public funds granted for conduct of
adventure camps by the Indian Navy at Hissar in 2007 and Karnal in 2008
respectively. Similarly, we find that, with regard to Charge No. 11, the prosecution
could not conclusively prove that the appellant had cheated PW 27 Lt Cdr Karthikeyan
and PW 4 LME S. Borah of a sum of Rs. 7,500/- each, the ex-gratia payments the
appellant had collected on their behalf. In these cases, we go by the principle that if
any reasonable doubt is created, the benefit of doubt shall go to the accused by
holding that the charge has not been established beyond doubt. Thus, we are of the
opinion that the appellant cannot be held guilty of these charges.
131. However, with regard to Charge No. 13, 14 and 15, wherein the appellant is
charged with making false travel claims in terms of claiming taxi charges during
various official trips to the United States for adventure training activity well knowing
that these amounts had already been claimed by the Embassy of India, we find that
the CM was able to prove conclusively that the appellant was guilty of these charges.
We did not find merit in the defence of the appellant that he did not make the claim
and that someone other than him had signed the travel claim, considering that the
appellant submitted his original air tickets, boarding pass and detention certificates
with the claim and had, on each occasion, received and accepted the amounts falsely
claimed by him.
132. In the result, the O.As stand partly allowed, modifying the sentence awarded
to the appellant by the CM by restricting it to ‘dismissal from service’, on account of
being found guilty of Charge Nos. 13, 14 and 15. The punishment of two years'
rigorous imprisonment and fine are hereby quashed.
133. Miscellaneous applications pending, if any, also stand disposed of.
134. Pronounced in open Court on this the 01st day of July 2020.
———
† Principal Bench at New Delhi
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Criminal Appeal No. 2035 of 2012
Virender Prasad v. Union of India
2020 SCC OnLine SC 339
In the Supreme Court of India

(BEFORE S.A. BOBDE, C.J. AND B.R. GAVAI AND SURYA KANT, JJ.)
Ex-Gunner Virender Prasad … Appellant(s);

Versus
Union of India and Another … Respondent(s).
Criminal Appeal No. 2035 of 2012
Decided on March 18, 2020
JUDGMENT
1. The present appeal takes an exception to the Judgment and Order passed by the
Armed Forces Tribunal (hereinafter referred to as “AFT”) in T.A. No. 284 of 2011
whereby, the appeal of the present appellant against the order of Court Martial dated
21.08.2004 was dismissed.
2. The brief facts of the present matter are as follows:
The present appellant was enrolled in Signals Corps and was posted to HQ &
Radar Battery of 20 Surveillance and target acquisition regiment since 01.10.2002.
The appellant was deployed at Peer Badeshwar Radar Post and reported to the post
on 12.05.2003. The deceased Gunner-Sushil Kumar was of the same unit i.e. 20
Surveillance and target acquisition regiment and was working as Radar Operator
and was stated to be on good terms with the appellant. On the date of incident i.e.
30.06.2003, the present appellant shot the deceased Gunner-Sushil Kumar, while,
in a state of sleep.
The appellant contended that he shot the deceased in a delusion of a militant
attack, wherein he was firing in retaliation. According to the appellant, he had no
control over his senses. In the said incident, the appellant fired a complete
magazine of rifle ammunition, which resultantly caused the death of the deceased.
The appellant thereafter, came out of his tent and surrendered himself to his Senior
Authorities and confessed his guilt. Thereafter, investigation was carried out and
police registered the case and submitted a challan before the Chief Judicial
Magistrate, Rajouri. However, on the request of the Army Authorities, the challan
and the appellant along with all the seized items was handed over to Army
Authorities for trial. The appellant was charged under Section 69 of the Army Act for
committing a civil offence of murder, contrary to Section 302 of the Ranbir Penal
Code. A Court Martial was conducted and in all 15 witnesses including a Psychiatrist
was examined. In the Summary General Court Martial, the appellant was found to
be guilty of murder and was sentenced to life imprisonment and was dismissed
from service.
Thereafter, the appellant challenged the said Judgment and Order of conviction
passed by the Court Martial, before the Ministry of Defence and the Chief of Army
Staff by filing petition under Sections 164(2) and 165 of Army Act. The same was
dismissed by the Union of India vide order dated 22.05.2007. Thereafter, the
appellant preferred a writ petition in Delhi High Court, which was subsequently
transferred to the AFT on its formation. The AFT, dismissed the said appeal filed by
the present appellant vide the impugned order. Hence, the present appeal.
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3. We have heard Mr. B.K. Pal, Ld. Counsel for the appellant and Mr. Vikramjit
Banerjee, Ld. Additional Solicitor General, for Union of India.
4. We have perused the material placed on record. Upon perusal of the judgment
and order of conviction passed by the Court Martial and confirmed by the AFT, we find
no reason to interfere with the findings of fact recorded by the Court Martial as
confirmed by the AFT thereby, holding, that the appellant was liable to be convicted
for the offence punishable under Section 69 of the Army Act for committing a civil
offence of murder.
5. However, insofar as the sentence is concerned, we find, that the case of the
appellant deserves to be considered.
6. This Court in the case of Santa Singh v. The State of Punjab1 has observed thus:
“The reason is that a proper sentence is the amalgam of many factors such as
the nature of the offence, the circumstances — extenuating or aggravating — of the
offence, the prior criminal record, if any, of the offender, the age of the offender,
the record of the offender as to employment, the background of the offender with
reference to education, home life, sobriety and social adjustment, the emotional
and mental condition of the offender, the prospects for the rehabilitation of the
offender, the possibility of return of the offender to a normal life in the community,
the possibility of treatment or training of the offender, the possibility that the
sentence may serve as a deterrent to crime by the offender or by others and the
current community need, if any, for such a deterrent in respect to the particular
type of offence. These are factors which have to be taken into account by the court
in deciding upon the appropriate sentence….”
7. The same view has been consistently followed in various judgments of this Court.
The recent one being, Gopal Singh v. State of Uttarakhand2 . No doubt, that this Court
in the case of Union of India v. Sadha Singh3 has held, that Section 433-A of the Code
of Criminal Procedure, 1973 (“Cr.P.C.” for short) would also be applicable to a case
tried for offence under Section 69 of the Army Act, 1950 and a person who has been
imposed with a life sentence cannot be released unless he has actually served 14
years' of imprisonment, without taking into consideration the remissions earned by
him in jail. In other words, if a person is convicted for life, unless he has actually
served 14 years' sentence, he will not be entitled to be considered for release by
giving him benefit of remissions earned by him.
8. Taking into consideration the various factors, that are taken into consideration by
this Court in Santa Singh (supra), we find, that the case of the present appellant
deserves to be considered favourably.
9. Undisputedly, the appellant was posted in Kashmir area, at a time when the
State was undergoing the threat of terrorism at its peak. The appellant, after the
incident, immediately came out of the tent, surrendered himself, and gave an
explanation that he had fired the rifle under a delusion that there was a terrorist
attack. The conduct and behaviour of the appellant in the jail, as could be seen from
the Certificate issued by the Superintendent, District Jail, Dehradun, has been
excellent. The appellant has actually served the sentence of 16 years and 6 months as
on 6.1.2020. If the benefit of remission is given to him, the period would come to 20
years and 5 months. As such, he has served the sentence for a period of more than 14
years and as such, the bar of Section 433-A Cr.P.C. would also not be applicable.
10. In the peculiar facts and circumstances of the case, we are of the view, that the
sentence already served by the appellant is much more than proportionate to the
offence proved against him.
11. In that view of the matter, while dismissing the appeal we direct that the
appellant be forthwith released from custody.
———
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1 (1976) 4 SCC 190

2
(2013) 7 SCC 545
3 (1999) 8 SCC 375
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2020 SCC OnLine All 535 : AIR 2020 All 97 : (2020) 3 All LJ 307 (FB) : (2020)
143 ALR 127
In the High Court of Allahabad

(BEFORE SUNITA AGARWAL, ANJANI KUMAR MISHRA AND DR. YOGENDRA KUMAR SRIVASTAVA,
JJ.)
Writ - A No. 2071 of 2017

Manish Kumar Mishra … Petitioner;
Versus
Union of India and Others … Respondent.
With
Writ - A No. 2073 of 2017
Amarjeet Yadav … Petitioner;
Versus
With
Writ - A No. 2074 of 2017
Rabesh Singh … Petitioner;
Versus
With
Writ - A No. 2075 of 2017
Santosh Kumar … Petitioner;
Versus
With
Writ - A No. 5634 of 2011
Jitendra Kumar Nagar … Petitioner;
Versus
Union of India through Secretary Department of Home Affairs and
Others … Respondent.
With
Special Appeal No. 22 of 2019
Chandra Pal Singh … Petitioner;
Versus
And
Special Appeal No. 23 of 2019
Sikandar Yadav … Petitioner;
Versus
Writ - A No. 2071 of 2017, Writ - A No. 2073 of 2017, Writ - A No. 2074 of 2017,
Writ - A No. 2075 of 2017, Writ - A No. 5634 of 2011, Special Appeal No. 22 of
2019 and Special Appeal No. 23 of 2019
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Decided on May 1, 2020
Counsel for Petitioner:- Vijay Gautam, Vinod Kumar Mishra
Counsel for Respondent:- A.S.G.I., A.K. Mehrotra U.O.I., Purnendu Kumar Singh,
Satish Kumar Rai
Counsel for Petitioner:- Vijay Gautam,Vinod Kumar Mishra
Counsel for Respondent:- A.S.G.I.,Nand.Lal U.O.I.,Satish Kumar Rai
Counsel for Petitioner:- Vijay Gautam, Mohammad Fahad
Counsel for Respondent:- A.S.G.I., J.J. Munir, U.O.I.
Counsel for Petitioner:- Vijay Gautam, Mohammad Fahad
Counsel for Respondent:- A.S.G.I., Raghuraj Kishore Mishra, U.O.I.
Counsel for Petitioner:- Vijay Gautam, Harendran Singh Bhati, Navin Kumar, Ram
Surat Saroj
Counsel for Respondent:- A. S. G. I., S.C., S.K. Om
Counsel for Appellant:- Dileep Kumar Mishra
Counsel for Respondent:- A.S.G.I., Krishna Mohan Misra, Naresh Chandra Nishad,
Rajesh Tripathi
Counsel for Appellant:- Shesh Kumar Srivastava, Rajjan Singh
Counsel for Respondent:- A.S.G.I., Manoj Kumar Singh, Manoj Kumar Singh
DR. YOGENDRA KUMAR SRIVASTAVA, J.:— I have the benefit of going through the
judgment of my esteemed sister Hon'ble Mrs. Sunita Agarwal,J., and I am in
respectful agreement with the same. However, in view of the wide expanse and scope
of the issue under consideration and the varying interpretations arising therefrom, I
am giving a separate concurring judgment, as follows.
2. The reference before this Larger Bench has been occasioned consequent to an
order dated 25.01.2017, of a learned Single Judge, expressing a view that there was a
conflict of opinion between the views expressed by the Full Bench judgment of this
Court in the case of Rajendra Kumar Mishra v. Union of India1 as also the judgment
rendered by a Division Bench of this Court in The Director General, CRPF, New Delhi v.
Constable No. 850774845, Lalji Pandey2 on one hand and the orders passed by the
two Division Benches of this Court in Bibhuti Narain Singh v. Food Corporation of
India3 and the Har Govind Singh v. Union of India4 in the light of the judgment of the
Supreme Court in the case of Nawal Kishore Sharma v. Union of India5 .
3. The learned Judge has made the reference in the following terms:—
“Having considered the judgments and orders referred to above, I am of the view
that there is a conflict of opinion between the Full Bench judgment of this Court in
the case of Rajendra Kumar Mishra (supra) and Constable Lalji Pandey (supra) on
one hand and the orders passed by the two Division Benches of this Court in the
case of Bibhuti Narain Singh (supra) and Har Govind Singh (supra) in the light of
the judgment of the Supreme Court in the case of Nawal Kishore Sharma (supra)
and this dispute, therefore, needs to be resolved by a larger Bench on the question
with regard as to whether the observations of the Supreme Court in the case of
Nawal Kishore Sharma (supra) in paragraph 17 can be said to be a binding
precedent on this Court to entertain the above writ petitions or whether the
observations of paragraph 17 were in the peculiar facts and circumstances of the
case of Nawal Kishore Sharma (supra) in view of paragraphs 18 and 19 of the said
judgment.
OR
In the alternative whether the judgment of the Full Bench in Rajendra Kumar
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Mishra (supra) and Constable Lalji Pandey (supra) can be said to still lay down the
correct law in view of the judgment of the Supreme Court in Nawal Kishore Sharma
(supra).
Therefore, in my opinion this controversy needs to be resolved by a larger Bench
of this Court. Let the records of these cases be placed before the Hon'ble Chief
Justice for constitution of a larger Bench to resolve the above conflict in the several
decisions of this Court.”
4. In order to appreciate the background of the reference, the judgments and the
orders on the basis of which the conflict of opinion has been noticed by the learned
Single Judge and the reference has been made, may be adverted to.
5. The question which was considered in the case of Rajendra Kumar Mishra (supra)
was as to whether this Court had jurisdiction to decide the petition in question and
taking into consideration the facts of the case that the petitioner while serving in the
Indian Army and on duty at Kanchanpara at Calcutta in West Bengal was given a
charge-sheet and thereafter tried by the Summary Court Martial where he was found
guilty and awarded punishments, the Full Bench expressed its view that the writ
petition challenging the order passed in the Court Martial proceedings was not
maintainable before this Court as no part of the cause of action had arisen in the State
of U.P.
6. In coming to the aforesaid conclusion the Full Bench took note of the fact that
the misconduct was committed at Calcutta and Summary Court Martial was also held
at Calcutta therefore the entire cause of action had arisen at Calcutta and merely for
the reason that the petitioner was thereafter residing at Ballia (in the State of U.P.)
would not give jurisdiction to the Court. Reliance in this regard was placed upon the
Constitution Bench judgments rendered by the Supreme Court in Lt. Col. Khajoor
Singh v. Union of India6 , K.S. Rashid and Son v. Income Tax Investigation
Commission7 , and Election Commission, India v. Saka Venkata Subba Rao8 , for the
proposition that the jurisdiction conferred on the High Court by Article 226 does not
depend upon the residence or location of the person applying to it for relief and that a
writ cannot be issued beyond the territorial jurisdiction of the High Court.
7. The Full Bench also referred to the judgments in Board of Trustees for the Port of
Calcutta v. Bombay Flour Mills Pvt. Ltd.9 , Aligarh Muslim University v. Vinay
Engineering Enterprises (P) Ltd.10 and Oil and Natural Gas Commission v. Utpal Kumar
Basu11 on the point that the question as to whether the cause of action had arisen
within the territory of the particular Court would have to be determined in each case
on its own facts in the context of the subject mater of the litigation and the relief
claimed and while determining the objection of lack of territorial jurisdiction the Court
must take all the facts pleaded in support of the cause of action into consideration
although without embarking upon an enquiry as to the correctness or otherwise of the
said facts.
8. The contention sought to be raised by the petitioner, referring to the judgment of
the Supreme Court in Dinesh Chandra Gahtori v. Chief of Army Staff12 , that the Chief
of Army Staff may be sued anywhere in the country, was repelled by placing reliance
on the Constitution Bench decisions in K.S. Rashid and Son v. Income Tax
Investigation Commission7 and Election Commission v. Saka Venkata Subba Rao.
9. In order to fully appreciate the import of the Full Bench judgment in the case of
Rajendra Kumar Mishra, the question which was taken up for consideration and the
opinion expressed by the Larger Bench, are being extracted below:—
“2. The short question in this case is whether this Court has jurisdiction to decide
this petition.”
x x x
“40. For the reasons given above we are of the opinion that the Chief of Army
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Staff can only be sued either at Delhi where he is located or at a place where the
cause of action, wholly or in part, arises.
41. We may mention that a “cause of action” is the bundle of facts which, taken
with the law applicable, gives the plaintiff a right to relief against the defendant.
However, it must include some act done by the defendant, since in the absence of
an act, no cause of action can possibly occur. (Vide Radhakrishnamurithy v.
Chandrasekhara Rao, AIR 1966 A.P. 334; Ram Awalamb v. Jata Shankar, AIR 1969
All 526 (FB), and Salik Ram Adya Prasad v. Ram Lakhan, AIR 1973 All. 107).
42. In the present case no part of the cause of action has arisen in U.P. Hence in
our opinion the writ petition is not maintainable in this Court. It is accordingly
dismissed. The decision of the Division Bench in Kailash Nath Tiwari v. Union of
India, (2002) 1 UPLBEC 468 in our opinion does not lay down the correct law and is
overruled.”
10. In the aforesaid manner the question considered by the Full Bench was whether
the Court had jurisdiction to decide the petition at hand and it expressed its view that
since no part of the cause of action in the case had arisen in the State of Uttar Pradesh
the writ petition was not maintainable before the Court.
11. In The Director General, CRPF, New Delhi v. Constable No. 850774845, Lalji
Pandey2 , the respondent, who was a constable in the Central Reserve Police Force
posted at Hyderabad, had absented himself without leave, and therefore the
departmental proceedings were conducted against him and an order of dismissal was
passed. The appeal and revision filed thereagainst were also rejected. The orders of
the dismissal as well as the appellate and revisional orders were passed outside the
territorial jurisdiction of this Court. It was in the light of the aforesaid facts that the
Division Bench following the judgment of the Full Bench in the case of Rajendra Kumar
Mishra held that mere communication of the orders at the residential address of the
respondent in district Bhadohi (in the State of U.P.) would not confer territorial
jurisdiction to this Court.
12. The contra views noticed in the referring order are the judgment in the case of
Bibhuti Narain Singh and the order passed in the case of Har Govind Singh (supra).
13. In the case of Bibhuti Narain Singh, the departmental proceedings were
undertaken at a place beyond the territorial jurisdiction of this Court but the order of
penalty was served upon the petitioner at Faizabad (in the State of U.P.) where he was
posted and in view thereof the Division Bench was of the view that since the
punishment order was given effect to at Faizabad by withholding increments from his
salary to be drawn at Faizabad, the order of imposition of penalty had infringed the
right of the appellant to get full salary at Faizabad, therefore, he had every legal right
to espouse his cause before the Court within whose jurisdiction his place of posting
was covered and in this regard, the judgment of the Apex Court in the case of Nawal
Kishore Sharma (supra) was followed.
14. The facts of the case of Har Govind Singh v. Union of India4 were that the
appellant had been dismissed at Hyderabad and after his dismissal he came back to
his native place in Uttar Pradesh and preferred an appeal to the statutory authority
which was rejected and the order of rejection was communicated to him within the
State of U.P., and in view of this, the Division Bench which was hearing the special
appeal against the decision of the learned Single Judge dismissing the writ petition on
the ground that no fraction of the cause of action had arisen in the State of U.P. so as
to maintain the petition, expressed its view that in the facts of the case a fraction of
the transaction had taken place in the State of U.P., therefore the petitioner had a
cause of action to maintain the petition, and even otherwise after twelve years of filing
of the petition in the year 2004, the same could not have been dismissed on the
ground of want of territorial jurisdiction. The Division Bench entertained the special
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appeal following the judgment of the Supreme Court in Nawal Kishore Sharma (supra)
and directed the appeal to be listed for admission/disposal by order dated 27.04.2016,
which has been taken note of by the learned Single Judge while making the reference.
15. It has been pointed out that the aforementioned special appeal in the case of
Har Govind Singh has been finally decided in terms of the judgment dated 26.11.2019
whereby the special appeal has been allowed following the judgment in the case of
Nawal Kishore Sharma (supra).
16. The judgment in the case of Nawal Kishore Sharma, which has been followed in
the two contra opinions, noticed in the referring order was rendered in a case where
the appellant who was on off-shore duty with the Shipping Corporation of India was
sent for medical treatment ashore at Adani, Mundra Port and thereafter he was
considered permanently unfit for sea-service and an order was passed cancelling the
registration of the appellant as a seaman. Copy of the letter was sent to the appellant
at his native place in Bihar where he was staying after he was found medically unfit.
The appellant is said to have sent a representation from his home in the state of Bihar
to the respondent authorities claiming disability compensation which was rejected and
the order was sent to him at his home address at Gaya, Bihar. In the facts of the case
where the appellant upon being declared permanently unfit forcing him to stay at his
native place in Bihar wherefrom he had submitted representations with regard to
disability compensation which were entertained by the respondent and disability
thereafter was communicated to him at his home address in Bihar, the Hon'ble Court
held that considering all the facts together, a part or fraction of cause of action arose
within the jurisdiction of the High Court where he received the letter of refusal
disentitling him from disability compensation.
17. Notice was also taken of the fact that after the writ petition was filed at the
Patna High Court the same was entertained and a notice was issued. The respondents
appeared and participated in the proceedings before the High Court and after hearing
counsel appearing for both the parties an interim order was passed directing the
respondent authorities to pay an amount which was to be subject to the result of the
writ petition and pursuant to the said interim order the respondent authorities
remitted the amount less deduction of the TDS to the bank account of the appellant.
However, when the writ petition was taken up for hearing, the High Court took the
view that no cause of action not even a fraction of cause of action had arisen within its
territorial jurisdiction.
18. Considering the aforementioned facts that when the writ petition was heard for
the purposes of grant of interim relief no objections were raised by the respondents
with regard to the territorial jurisdiction, the order passed by the High Court
dismissing the writ petition on the ground that not even a fraction of cause of action
had arisen within its territorial jurisdiction, was held to be unsustainable.
19. After discussing the legal position on the point, the Supreme Court in the case
of Nawal Kishore Sharma, held as follows:—
“16. Regard being had to the discussion made hereinabove, there cannot be any
doubt that the question whether or not cause of action wholly or in part for filing a
writ petition has arisen within the territorial limit of any High Court has to be
decided in the light of the nature and character of the proceedings under Article
226 of the Constitution. In order to maintain a writ petition, the petitioner has to
establish that a legal right claimed by him has been infringed by the respondents
within the territorial limit of the Court's jurisdiction.
17. We have perused the facts pleaded in the writ petition and the documents
relied upon by the appellant. Indisputably, the appellant reported sickness on
account of various ailments including difficulty in breathing. He was referred to
hospital. Consequently, he was signed off for further medical treatment. Finally, the
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respondent permanently declared the appellant unfit for sea service due to dilated
cardiomyopathy (heart muscles disease). As a result, the Shipping Department of
the Government of India issued an order on 12.4.2011 cancelling the registration of
the appellant as a seaman. A copy of the letter was sent to the appellant at his
native place in Bihar where he was staying after he was found medically unfit. It
further appears that the appellant sent a representation from his home in the State
of Bihar to the respondent claiming disability compensation. The said representation
was replied by the respondent, which was addressed to him on his home address in
Gaya, Bihar rejecting his claim for disability compensation. It is further evident that
when the appellant was signed off and declared medically unfit, he returned back to
his home in the District of Gaya, Bihar and, thereafter, he made all claims and filed
representation from his home address at Gaya and those letters and representations
were entertained by the respondents and replied and a decision on those
representations were communicated to him on his home address in Bihar.
Admittedly, the appellant was suffering from serious heart muscles disease (Dilated
Cardiomyopathy) and breathing problem which forced him to stay in native place,
wherefrom he had been making all correspondence with regard to his disability
compensation. Prima facie, therefore, considering all the facts together, a part or
fraction of cause of action arose within the jurisdiction of the Patna High Court
where he received a letter of refusal disentitling him from disability compensation.
18. Apart from that, from the counter affidavit of the respondents and the
documents annexed therewith, it reveals that after the writ petition was filed in the
Patna High Court, the same was entertained and notices were issued. Pursuant to
the said notice, the respondents appeared and participated in the proceedings in
the High Court. It further reveals that after hearing the counsel appearing for both
the parties, the High Court passed an interim order on 18.9.2012 directing the
authorities of Shipping Corporation of India to pay at least a sum of Rs. 2.75 lakhs,
which shall be subject to the result of the writ petition. Pursuant to the interim
order, the respondent Shipping Corporation of India remitted Rs. 2,67,270/- (after
deduction of income tax) to the bank account of the appellant. However, when the
writ petition was taken up for hearing, the High Court took the view that no cause
of action, not even a fraction of cause of action, has arisen within its territorial
jurisdiction.
19. Considering the entire facts of the case narrated hereinbefore including the
interim order passed by the High Court, in our considered opinion, the writ petition
ought not to have been dismissed for want of territorial jurisdiction. As noticed
above, at the time when the writ petition was heard for the purpose of grant of
interim relief, the respondents instead of raising any objection with regard to
territorial jurisdiction opposed the prayer on the ground that the appellate-writ
petitioner was offered an amount of Rs. 2.75 lakhs, but he refused to accept the
same and challenged the order granting severance compensation by filing the writ
petition. The impugned order, therefore, cannot be sustained in the peculiar facts
and circumstances of this case.
20. In the aforesaid, the appeal is allowed and the impugned order passed by
the High Court is set aside and the matter is remitted to the High Court for deciding
the writ petition on merits.”
20. As noticed earlier the question considered by the Full Bench in the case of
Rajendra Kumar Mishra was as to whether this Court had jurisdiction to decide the
said petition and taking into consideration the facts of the case at hand the said
question was answered by stating that since in the said case no part of the cause of
action had arisen in the State of Uttar Pradesh therefore the writ petition was not
maintainable before this Court and the same was accordingly dismissed.
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21. The judgment in the case of Constable Lalji Pandey rendered by a Division
Bench of this Court was also based on the facts of the case and taking in view that the
order of dismissal and the revisional order had been passed outside the territorial
limits of the State of U.P. it was held that mere communication of the orders at the
residence of the petitioner would not confer any jurisdiction on this Court.
22. The Larger Bench in the case of Rajendra Kumar Mishra after referring to the
case law on the point had held that the question as to whether the cause of action had
arisen within the territory of the particular Court would have to be determined in each
case on its own facts in the context of the subject matter of the litigation and the relief
claimed.
23. The Supreme Court in the case of Nawal Kishore Sharma reiterated the
parameters for invocation of the jurisdiction of the High Court under Article 226
against an authority/person residing outside the territorial jurisdiction of the High
Court by holding that cause of action if wholly or in part arose within territorial
jurisdiction of High Court or not is to be determined in the light of nature and
character of proceedings and that the High Court can issue a writ if cause of action
wholly or partially arises within its territorial jurisdiction even if person or authority
against whom writ is issued is located outside the territorial jurisdiction. It was,
however, also stated that in order to maintain a petition the petitioner had to establish
that his legal right had been infringed by the respondents within territorial limit of the
High Court's jurisdiction.
24. On the facts of the case, where the appellant upon being declared permanently
unfit for sea-service due to dilated cardiomyopathy which forced him to stay in his
native place in Bihar wherefrom he had been making all correspondence with regard to
his disability compensation stated to be due from the respondent-employer and all
replies including rejection of the claim for disability pension having been addressed to
him at his address in Bihar and further the respondents having participated in the writ
proceedings without raising objection as to territorial jurisdiction, it was held that part
or fraction of cause of action did arise within the jurisdiction of the High Court where
the appellant received a letter of refusal disentitling him from the disability pension.
25. There does not seem to be any apparent conflict of opinion between the
judgment rendered by the Full Bench of this Court in the case of Rajendra Kumar
Mishra and that of the Supreme Court in the case of Nawal Kishore Sharma. In both
the judgments it has been held that the question as to whether cause of action wholly
or in part had arisen within the territorial jurisdiction of a High Court would have to be
determined in each case on its own facts and in the light of the nature and character
of proceedings under Article 226.
26. Having said so, since the question of territorial jurisdiction is coming up before
this Court in a fairly large number of matters, as has been pointed out by the counsel
for the parties, it would be worthwhile to clarify the position and restate the law on the
point.
27. Article 226 confers extraordinary jurisdiction on the High Court to issue
prerogative writs for enforcement of fundamental rights or for any other purpose. The
jurisdiction, though is to be based on discretion and equitable considerations, is wide
and expansive with no fetters having been placed on the exercise of this extraordinary
jurisdiction. The provision as it originally stood, reads as under:—
“226. Power of High Courts to issue certain writs.-(1) Notwithstanding anything
in Article 32, every High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them or the enforcement of any of
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the rights conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in derogation
of the power conferred on the Supreme Court by clause (2) of Article 32.”
28. The object of the makers of our Constitution in adopting Article 226 was to
confer wide powers on the High Courts in issuing directions or writs for the
enforcement of fundamental rights and power to issue directions for any other
purpose. The observations made in the case of Election Commission, India v. Saka
Venkata Subba Rao8 , may be referred to in this regard:—
“6. …In that situation, the makers of the Constitution, having decided to provide
for certain basic safeguards for the people in the new set up, which they called
fundamental rights, evidently thought it necessary to provide also a quick and
inexpensive remedy for the enforcement of such rights and, finding that the
prerogative writs, which the Courts in England had developed and used whenever
urgent necessity demanded immediate and decisive interposition, were peculiarly
suited for the purpose, they conferred, in the States’ sphere, new and wide powers
on the High Courts of issuing directions, orders, or writs primarily for the
enforcement of fundamental rights, the power to issue such directions, etc. “for any
other purpose” being also included with a view apparently to place all the High
Courts in this country in somewhat the same position as the Court of King's Bench
in England…”
29. The amplitude of the powers under Article 226 which enables the High Court to
reach injustice wherever it is found has been explained in Dwarka Nath v. Income Tax
Officer, Special Circle D-Ward, Kanpur13 , as under:—
“4. …This article is couched in comprehensive phraseology and it ex facie confers
a wide power on the High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in describing the nature of the power,
the purpose for which and the person or authority against whom it can be
exercised. It can issue writs in the nature of prerogative writs as understood in
England; but the scope of those writs also is widened by the use of the expression
“nature”, for the said expression does not equate the writs that can be issued in
India with those in England, but only draws an analogy from them. That apart, High
Courts can also issue directions, orders or writs other than the prerogative writs.
It enables the High Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. Any attempt to equate the scope of the
power of the High Court under Art. 226 of the Constitution with that of the English
Courts to issue prerogative writs is to introduce the unnecessary procedural
restrictions grown over the years in a comparatively small country like England with
a unitary form of Government to a vast country like India functioning under a
federal structure. Such a construction defeats the purpose of the article itself. To
say this is not to say that the High Courts can function arbitrarily under this Article.
Some limitations are implicit in the article and others may be evolved to direct the
article through defined channels…”
30. The jurisdiction conferred on the High Courts under Article 226, as it originally
stood from its very inception, was very wide with only two limitations placed upon the
exercise of these powers: (i) that the power is to be exercised throughout the
territories in relation to which it exercises jurisdiction, i.e., the writs issued by the
Court cannot run beyond the territories subject to its jurisdiction; (ii) that the person
or authority to whom the High Court is empowered to issue the writs must be within
those territories, and as an implication they must be amenable to the jurisdiction of
the Court either by residence or location within those territories.
31. The aforesaid provision and the power of the High Court to issue writs in the
context of its territorial jurisdiction came up before a Constitution Bench of the
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Supreme Court in the case of Saka Venkata Subba Rao (supra) where an appeal had
been filed from an order passed by the High Court of Madras issuing a writ of
prohibition restraining the Election Commission, a statutory authority constituted by
the President having its offices permanently located at New Delhi, from enquiring into
the alleged disqualification of the respondent for membership of the Madras Legislative
Assembly. Reversing the decision of the High Court of Madras, the Supreme Court
repelled the proposition that the location of the subject matter or the cause of action
or the parties within the territorial limits of the High Court's jurisdiction was sufficient
to vest the High Court with the substance of jurisdiction to issue prerogative writs to
an authority even though such authority was located outside its jurisdiction. Patanjali
Sastri, C.J., speaking for the Court, made the following observations:—
“6. Turning now to the question as to the powers of a High Court under article
226, it will be noticed that article 225 continues to the existing High Courts the
same jurisdiction and powers as they possessed immediately before the
commencement of the Constitution. Though there had been some conflict of judicial
opinion on the point, it was authoritatively decided by the Privy Council in the
Parlakimedi case (70 I.A. 129), that the High Court of Madras - the High Courts of
Bombay and Calcutta were in the same position - had no power to issue what were
known as high prerogative writs beyond the local limits of its original civil
jurisdiction, and the power to issue such writs within those limits was derived by
the Court as successor of the Supreme Court which had been exercising jurisdiction
over the Presidency Town of Madras and was replaced by the High Court established
in pursuance of the Charter Act of 1861. The other High Courts in India had no
power to issue such writs at all…”
32. Referring to the origin of the writs, as pointed out by Prof. Holdsworth in History
of English Law14, the Constitution Bench held that such limitation was a logical
consequence of the origin and development of the power to issue prerogative writs as
a special remedy. The observations made in this regard are as follows:—
“7. Such limitation is indeed a logical consequence of the origin and development
of the power to issue prerogative writs as a special remedy in England. Such power
formed no part of the original or the appellate jurisdiction of the Court of King's
Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. I, p. 212 et
seq) these writs had their origin in the exercise of the King's prerogative power of
superintendence over the due observance of the law by his officials and tribunals,
and were issued by the Court of King's Bench -- habeas corpus, that the King may
know whether his subjects were lawfully imprisoned or not; certiorari, that he may
know whether any proceedings commenced against them are conformable to the
law; mandamus, to ensure that his officials did such acts as they were bound to do
under the law, and prohibition, to oblige the inferior tribunals in his realm to
function within the limits of their respective jurisdiction. See also the introductory
remarks in the judgment in the Parlakimedi case, 70 I.A. 129. These writs were
thus specifically directed to the persons or authorities against whom redress was
sought and were made returnable in the court issuing them and, in case of
disobedience, were enforceable by attachment for contempt. These characteristics
of the special form of remedy rendered it necessary for its effective use that the
persons or authorities to whom the Court was asked to issue these writs should be
within the limits of its territorial jurisdiction. We are unable to agree with the
learned Judge below that if a tribunal or authority permanently located and
normally carrying on its activities elsewhere exercises jurisdiction within those
territorial limits so as to affect the rights of parties therein, such tribunal or
authority must be regarded as “functioning” within the territorial limits of the High
Court and being therefore amenable to its jurisdiction under article 226.”
33. Regarding the “cause of action” in the context of the power to issue writs under
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Article 226, it was stated thus:—

“8. …The rule that cause of action attracts jurisdiction in suits is based on
statutory enactment and cannot apply to writs issuable under article 226 which
makes no reference to any cause of action or where it arises but insists on the
presence of the person or authority “within the territories” in relation to which the
High Court exercises jurisdiction…”
34. Taking a similar view another Constitution Bench in K.S. Rashid and Son v.
Income Tax Investigation Commission7 held that a writ Court cannot exercise its power
under Article 226 beyond its territorial jurisdiction.
35. The question with regard to territorial jurisdiction again arose in Lt. Col. Khajoor
Singh v. Union of India6 , which was a case where the petitioner, who was serving in
the Jammu & Kashmir State Forces, was served with an order passed by the
Government of India prematurely retiring him from service and the said order was
challenged before the High Court of Jammu and Kashmir. A preliminary objection
being raised by the Union of India that since the authority against which the writ was
sought was outside the territorial jurisdiction of the High Court the petition was not
maintainable, the High Court dismissed the petition relying upon the earlier
Constitution Bench judgments in the cases of Saka Venkata Subba Rao and K.S.
Rashid. The High Court, however, granted certificate under Article 132 of the
Constitution whereupon the matter came up for hearing before a Bench of five Judges
of the Supreme Court and during the course of hearing the appellant not only tried to
distinguish the previous judgments of the Supreme Court but also tried to question
their correctness and in view thereof the matter was placed before a Larger Bench of
seven Judges.
36. The majority judgment in the case of Khajoor Singh rendered by B.P.
Sinha,C.J., reaffirmed and approved the earlier view taken by the Constitution Bench
judgments in Saka Venkata Subba Rao and K.S. Rashid (supra) and it was held that
the petition filed at the High Court of Jammu and Kashmir was not maintainable. The
two questions considered in the majority judgment, are as follows:—
“11. The two main questions which arise, therefore, are : (i) whether the
Government of India as such can be said to have a location in a particular place,
viz., New Delhi, irrespective of the fact that its authority extends over all the States
and its officers function throughout India, and (ii) whether there is any scope for
introducing the concept of cause of action as the basis of exercise of jurisdiction
under Art. 226. Before, however, we deal with these two main questions, we would
like to clear the ground with respect to two subsidiary matters which have been
urged on behalf of the appellant.”
37. The majority judgment thereafter proceeded to observe as follows:—
“12. The first argument is that the word “authority” used in Art. 226 cannot and
does not include Government. We are not impressed by this argument. In
interpreting the word “authority” we must have regard to the clause immediately
following it. Art. 226 provides for “the issue to any person or authority including in
appropriate cases any Government” within those territories. It is clear that the
clause “including inappropriate cases any Government” goes with the preceding
word “authority”, and on a plain and reasonable construction it means that the word
“authority” in the context may include any Government in an appropriate case. The
suggestion that the said clause is intended to confer discretion on the High Courts
in the matter of issuing a writ or direction on any Government seems to us clearly
unsustainable. To connect this clause with the issuance of a writ or order and to
suggest that in dealing with cases against Government the High Court has to decide
whether the case is appropriate for the issue of the order is plainly not justified by
the rules of grammar. We have no hesitation in holding that the said clause goes
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with the word “authority” and that its effect is that the authority against whom
jurisdiction is conferred on the High Court to issue a writ or appropriate order may
in certain cases include a Government. Appropriate cases in the context means
cases in which orders passed by a Government or their subordinates are challenged,
and the clause therefore means that where such orders are challenged the High
Court may issue a writ against the Government. The position, therefore, is that
under Art. 226 power is conferred on the High Court to issue to any person or
authority or in a given case to any Government, writs or orders there specified for
enforcement of any of the rights conferred by Part III and for any other purpose.
Having thus dealt with the two subsidiary points raised before us, we may now
proceed to consider the two main contentions which arise for our decision in the
present appeal.”
38. In respect of the first question, it was stated thus:—
“13. This brings us to the first question, namely, whether the Government of
India as such can be said to be located at one place, namely, New Delhi. The main
argument in this connection is that the Government of India is all-pervasive and is
functioning throughout the territory of India and therefore every High Court has
power to issue a writ against it, as it must be presumed to be located within the
territorial jurisdiction of all State High Courts. This argument in our opinion
confuses the concept of location of a Government with the concept of its
functioning. A Government may be functioning all over a State or all over India; but
it certainly is not located all over the State or all over India. It is true that the
Constitution has not provided that the seat of the Government of India will be at
New Delhi. That, however, does not mean that the Government of India as such has
no seat where it is located. It is common knowledge that the seat of the
Government of India is in New Delhi and the Government as such is located in New
Delhi. The absence of a provision in the Constitution can make no difference to this
fact. What we have to see, therefore, is whether the words of Art. 226 mean that
the person or authority to whom a writ is to be issued has to be resident in or
located within the territories of the High Court issuing the writ? The relevant words
of Art. 226 are these—
“Every High Court shall have power… to issue to any person or authority…
within those territories…”
So far as a natural person is concerned, there can be no doubt that he can be
within those territories only if he resides therein either permanently or temporarily.
So far as an authority is concerned, there can be no doubt that if its office is located
therein it must be within the territory. But do these words mean with respect to an
authority that even though its office is not located within those territories it will be
within those territories because its order may affect persons living in those
territories? Now it is clear that the jurisdiction conferred on the High Court by Art.
226 does not depend upon the residence or location of the person applying to it for
relief; it depends only on the person or authority against whom a writ is sought
being within those territories. It seems to us therefore that it is not permissible to
read in Art. 226 the residence or location of the person affected by the order passed
in order to determine the jurisdiction of the High Court. That jurisdiction depends
on the person or authority passing the order being within those territories and the
residence or location of the person affected can have no relevance on the question
of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for
example, is aggrieved by an order passed by an authority located, say, in Calcutta,
the forum in which he has to seek relief is not the Bombay High Court though the
order may affect him in Bombay but the Calcutta High Court where the authority
passing the order is located. It would, therefore, in our opinion be wrong to
introduce in Art. 226 the concept of the place where the order passed has effect in
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order to determine the jurisdiction of the High Court which can give relief under Art.
226. The introduction of such a concept may give rise to confusion and conflict of
jurisdictions. Take, for example, the case of an order passed by an authority in
Calcutta, which affects six brothers living, say, in Bombay, Madras, Allahabad,
Jabalpur, Jodhpur and Chandigarh. The order passed by the authority in Calcutta
has thus affected persons in six States. Can it be said that Art. 226 contemplates
that all the six High Courts have jurisdiction in the matter of giving relief under it?
The answer must obviously be ‘No’, if one is to avoid confusion and conflict of
jurisdiction. As we read the relevant words of Art. 226 (quoted above) there can be
no doubt that the jurisdiction conferred by that Article on a High Court is with
respect to the location or residence of the person or authority passing the order and
there can be no question of introducing the concept of the place where the order is
to have effect in order to determine which High Court can give relief under it. It is
true that this Court will give such meaning to the words used in the Constitution as
would help towards its working smoothly. If we were to introduce in Art. 226 the
concept of the place where the order is to have effect we would not be advancing
the purposes for which Art. 226 has been enacted. On the other hand, we would be
producing conflict of jurisdiction between various High Courts as already shown by
the illustration given above. Therefore, the effect of an order by whomsoever it is
passed can have no relevance in determining the jurisdiction of the High Court
which can take action under Art. 226. Now, functioning of a Government is really
nothing other than giving effect to the orders passed by it. Therefore it would not
be right to introduce in Art. 226 the concept of the functioning of Government when
determining the meaning of the words “any person or authority within those
territories”. By introducing the concept of functioning in these words we shall be
creating the same conflict which would arise if the concept of the place where the
order is to have effect is introduced in Art. 226. There can, therefore, be no escape
from the conclusion that these words in Art. 226 refer not to the place where the
Government may be functioning but only to the place where the person or authority
is either resident or is located. So far therefore as a natural person is concerned, he
is within those territories if he resides there permanently or temporarily. So far as
an authority (other than a Government) is concerned, it is within the territories if its
office is located there. So far as a Government is concerned it is within the
territories only if its seat is within those territories.”
39. The first question was answered by the Supreme Court in the following manner:
—
“14. The seat of a Government is sometimes mentioned in the Constitutions of
various countries but many a time the seat is not so mentioned. But whether the
seat of a Government is mentioned in the Constitution or not, there is undoubtedly
a seat from which the Government as such functions as a fact. What Art. 226
requires is residence or location as a fact and if therefore there is a seat from which
the Government functions as a fact even though that seat is not mentioned in the
Constitution the High Court within whose territories that seat is located will be the
High Court having jurisdiction under Art. 226 so far as the orders of the
Government as such are concerned. Therefore, the view taken in Election
Commission, India v. Saka Venkata Subba Rao (AIR 1953 SC 210) and K.S. Rashid
and Son v. The Income Tax Investigation Commission (AIR 1954 SC 207 ) that
there is twofold limitation on the power of the High Court to issue writs etc. under
Art. 226, namely, (i) the power is to be exercised ‘throughout the territories in
relation to which it exercises jurisdiction’, that is to say, the writs issued by the
Court cannot run beyond the territories subject to its jurisdiction, and (ii) the
person or authority to whom the High Court is empowered to issue such writs must
be “within those territories” which clearly implies that they must be amenable to its
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jurisdiction either by residence or location within those territories, is the correct

one.”
40. In respect of the second question which was with regard to the cause of action,
it was observed as follows:—
“15. This brings us to the second point, namely, whether it is possible to
introduce the concept of cause of action in Art. 226 so that the High Court in whose
jurisdiction the cause of action arose would be the proper one to pass an order
thereunder. Reliance in this connection has been placed on the judgment of the
Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi (70 Ind App 129 :
AIR 1943 PC 164). In that case the Privy Council held that even though the
impugned order was passed by the Board of Revenue which was located in Madras
the High Court would have no jurisdiction to issue a writ quashing that order, as it
had no jurisdiction to issue a writ beyond the limits of the city of Madras except in
certain cases, and that particular matter was not within the exceptions. This
decision of the Privy Council does apparently introduce an element of the place
where the cause of action arose in considering the jurisdiction of the High Court, to
issue a writ. The basis of that decision, however, was the peculiar history of the
issue of writs by the three Presidency High Courts as successors of the Supreme
Courts, though on the literal construction of clause 8 of the Charter of 1800
conferring jurisdiction on the Supreme Court of Madras, there could be little doubt
that the Supreme Court would have the same jurisdiction as the Justices of the
Court of King's Bench Division in England for the territories which then were or
thereafter might be subject to or depend upon the Government of Madras. It will
therefore not be correct to put too much stress on the decision in that case. The
question whether the concept of cause of action could be introduced in Art. 226 was
also considered in Saka Venkata Subba Rao's case, 1953 SCR 1144 and was
repelled in these words:—
“The rule that cause of action attracts jurisdiction in suits is based on
statutory enactment and cannot apply to writs issuable under Art. 226 which
makes no reference to any cause of action or where it arises but insists on the
presence of the person or authority ‘within the territories’ in relation to which the
High Court exercises jurisdiction.”
16. Article 226 as it stands does not refer anywhere to the accrual of cause of
action and to the jurisdiction of the High Court depending on the place where the
cause of action accrues being within its territorial jurisdiction. Proceedings under
Art. 226 are not suits; they provide for extraordinary remedies by a special
procedure and give powers of correction to the High Court over persons and
authorities and these special powers have to be exercised within the limits set for
them. These two limitations have already been indicated by us above and one of
them is that the person or authority concerned must be within the territories over
which the High Court exercises jurisdiction. Is it possible then to overlook this
constitutional limitation and say that the High Court can issue a writ against a
person or authority even though it may not be within its territories simply because
the cause of action has arisen within those territories? It seems to us that it would
be going in the face of the express provision in Art. 226 and doing away with an
express limitation contained therein if the concept of cause of action were to be
introduced in it. Nor do we think that it is right to say that because Art. 300
specifically provides for suits by and against the Government of India, the
proceedings under Art. 226 are also covered by Art. 300. It seems to us that Art.
300 which is on the same line as section 176 of the Government of India Act, 1935,
dealt with suits as such and proceedings analogous to or consequent upon suits and
has no reference to the extraordinary remedies provided by Art. 226 of the
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Constitution. The concept of cause of action cannot in our opinion be introduced in
Art. 226, for by doing so we shall be doing away with the express provision
contained therein which requires that the person or authority to whom the writ is to
be issued should be resident in or located within the territories over which the High
Court has jurisdiction. It is true that this may result in some inconvenience to
person residing far away from New Delhi who are aggrieved by some order of the
Government of India as such, and that may be a reason for making a suitable
constitutional amendment in Art. 226. But the argument of inconvenience, in our
opinion, cannot affect the plain language of Art. 226, nor can the concept of the
place of cause of action be introduced into it for that would do away with the two
limitations on the powers of the High Court contained in it.
17. We have given our earnest consideration to the language of Art. 226 and the
two decisions of this Court referred to above. We are of opinion that unless there
are clear and compelling reasons, which cannot be denied, we should not depart
from the interpretation given in these two cases and indeed from any interpretation
given in an earlier judgment of this Court, unless there is a fair amount of
unanimity that the earlier decisions are manifestly wrong. This Court should not,
except when it is demonstrated beyond all reasonable doubt that its previous
ruling, given after due deliberation and full hearing, was erroneous, go back upon
its previous ruling, particularly on a constitutional issue. In this case our
reconsideration of the matter has confirmed the view that there is no place for the
introduction of the concept of the place where the impugned order has effect or of
the concept of functioning of a Government, apart from the location of its office
concerned with the case, or even of the concept of the place where the cause of
action arises in Art. 226 and that the language of that Article is plain enough to
lead to the conclusion at which the two cases of this Court referred to above arrived.
If any inconvenience is felt on account of this interpretation of Art. 226 the remedy
seems to be a constitutional amendment. There is no scope for avoiding the
inconvenience by an interpretation which we cannot reasonably, on the language of
the Article, adopt and which the language of the Article does not bear.”
41. Expressing his inability to agree with the majority view, K. Subba Rao, J. (as he
then was), construing the words “in appropriate cases” took the view that the petition
in the High Court of Jammu and Kashmir was maintainable and summarised his view
by stating the following propositions:—
“40. …(1) The power of the High Court under Art. 226 of the Constitution is of
the widest amplitude and it is not confined only to issuing of writs in the nature of
habeas corpus, etc., for it can also issue directions or orders against any person or
authority, including in appropriate cases any Government. (2) The intention of the
framers of the Constitution is clear, and they used in the Article words “any
Government” which in their ordinary significance must include the Union
Government. (3) The High Court can issue a writ to run throughout the territories in
relation to which it exercises jurisdiction and to the person or authority or
Government within the said territories. (4) The Union Government has no
constitutional situs in a particular place, but it exercise its executive powers in
respect of matters to which Parliament has power to make laws and the power in
this regard is exercisable throughout India; the Union Government must, therefore,
be deemed in law to have functional existence throughout India. (5) When by
exercise of its powers the Union Government makes an order infringing the legal
right or interest of a person residing within the territories in relation to which a
particular High Court exercises jurisdiction, that High Court can issue a writ to the
Union Government, for in law it must be deemed to be “within” that State also. (6)
The High Court by issuing a writ against the Union Government is not travelling
beyond its territorial jurisdiction, as the order is issued against the said Government
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“within” the State. (7) The fact that for the sake of convenience a particular officer
of the said Government issuing an order stays outside the territorial limits of the
High Court is not of any relevance, for it is the Union Government that will have to
produce the record or carry out the order, as the case may be. (8) The orders issued
by the High Court can certainly be enforced against the Union Government, as it is
amenable to its jurisdiction, and if they are disobeyed it will be liable to contempt.
(5) Even if the Officers physically reside outside its territorial jurisdiction, the
High Court can always reach them under the Contempt of Courts Act, if they choose
to disobey the orders validly passed against the Union Government which cannot
easily be visualized or ordinarily be expected. (10) The difficulties in communicating
the orders pertain to the rules of procedure and adequate and appropriate rules can
be made for communicating the same to the Central Government or its officers.”
42. A point on the doctrine of merger arose in Collector of Customs, Calcutta v. East
India Commercial Company Limited, Calcutta15 . In this case a writ petition under
Article 226 was filed before the High Court of Calcutta against an order of confiscation
passed by the Collector of Customs, Calcutta which had been confirmed by the Central
Board of Revenue. Upon a preliminary objection being raised by the Department
placing reliance upon the decision in the case of Saka Venkata Subba Rao to the effect
that since the Central Board of Revenue was not within the territorial jurisdiction of the
High Court, no writ could be issued against it, the matter was referred to a Full Bench
of the High Court wherein the following questions were considered:—
“(i) Whether any writ could issue against the Central Board of Revenue which
was a party to the writ petition and which was permanently located outside the
jurisdiction of the High Court; and (ii) Whether if no writ could issue against the
Central Board of Revenue any writ could be issued against the Collector of Customs
(Original Authority) when the Central Board of Revenue (Appellate Authority) had
merely dismissed the appeal.”
43. On the first question, it was held that the High Court had no jurisdiction to
issue a writ against the Central Board of Revenue in view of the decision in Saka
Venkata Subba Rao. However, on the second question, the Full Bench took a view that
since the Central Board of Revenue had only dismissed the appeal against the order of
Collector of the Customs, Calcutta, the order of the Original Authority was operating
and since the said authority was situate within the jurisdiction of the High Court,
therefore, it had jurisdiction to entertain the petition.
44. The question as to whether the High Court would have jurisdiction to issue a
writ against the original order in spite of the fact that the same had been taken in
appeal to the Central Board of Revenue against which the High Court could not issue a
writ, was considered before the Supreme Court upon an appeal filed against the
judgment of the High Court. Speaking for the Bench, K.N. Wanchoo,J. (as he then
was) observed as follows:—
“4. The question therefore turns on whether the order of the original authority
becomes merged in the order of the Appellate Authority even where the Appellate
Authority merely dismisses the appeal without any modification of the order of the
original authority. It is obvious that when an appeal is made, the Appellate
Authority can do one of three things, namely, (i) it may reverse the order under
appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and
thus confirm the order without any modification. It is not disputed that in the first
two cases where the order of the original authority is either reversed or modified it
is the order of the Appellate Authority which is the operative order and if the High
Court has no jurisdiction to issue a writ to the Appellate Authority it cannot issue a
writ to the original authority. The question therefore is whether there is any
difference between these two cases and the third case where the Appellate
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Authority dismisses the appeal and thus confirms the order of the original authority.
It seems to us that on principle it is difficult to draw a distinction between the first
two kinds of orders passed by the Appellate Authority and the third kind of order
passed by it. In all these three cases after the Appellate Authority has disposed of
the appeal, the operative order is the order of the Appellate Authority whether it
has reversed the original order or modified it or confirmed it. In law, the appellate
order of confirmation is quite as efficacious as an operative order as an appellate
order of reversal or modification. Therefore, if the Appellate Authority is beyond the
territorial jurisdiction of the High Court it seems difficult to hold even in a case
where the Appellate Authority has confirmed the order of the original authority that
the High Court can issue a writ to the original authority which may even have the
effect of setting aside the order of the original authority when it cannot issue a writ
to the Appellate Authority which has confirmed the order of the original authority.”
45. A similar view had been taken earlier in Burhanpur National Textile Workers’
Union, Burhanpur v. Labour Appellate Tribunal of India at Bombay16 , wherein it was
stated as follows:—
“26. …The power to compel an inferior tribunal so to certify its record must of
necessity be territorial in extent and has been rendered more so by the manner in
which Article 226 has been framed in the Constitution. If we cannot make our writ
run to the Appellate Tribunal at Bombay so as to compel it to certify its record to us
or to bind it with our consequent order; we have no jurisdiction to interfere with its
decision at all. To interfere with the order of the Industrial Court in such
circumstances would be improper. I regret I have to refer to my decision given
when sitting with Choudhuri, J. in -- “Ramkrishna v. Daoosingh”, AIR 1953 Nag 357
(E), that the Court does not do indirectly what it cannot do directly and this Court
should be loath to quash an intermediate order so as to get rid of a subsequent
order by implication. Further, our action in quashing the order of the Industrial
Court would place that Court and the Registrar on the horns of a dilemma. Under
the Act they would be bound by the order of the Appellate Tribunal, and equally
bound to give effect to our order. If we do not quash the order of the Appellate
Tribunal and leave it operative, we indirectly compel the Industrial Court to disobey
that order. The Industrial Court and the Registrar are thus exposed to a
commitment for contempt at the instance of the Appellate Tribunal and equally at
our instance, if they disobey our writ. Such a situation cannot be allowed to arise
and is against the practice of Courts.”
46. The aforementioned decisions were on the principle that once an order of an
original authority is taken in appeal to the appellate authority, which is located beyond
the territorial jurisdiction of the High Court, it is the order of the appellate authority
which is the effective order after the appeal is disposed of, and as the High Court
cannot issue a writ against the appellate authority for want of territorial jurisdiction, it
would not be open to the High Court to issue a writ to the original authority though
the same may be within its territorial jurisdiction. In other words, once the appeal is
disposed of, though the appellate authority may have merely confirmed the order of
the appellate authority and dismissed the appeal, the High Court could not issue a writ
to the original authority, which was within its territorial jurisdiction, since it would
have the effect of setting aside the order of the appellate authority which was located
beyond the jurisdiction of the High Court. The effect of the decisions was thus to hold
that even if the cause of action originally arose within the territorial jurisdiction of a
High Court, if the appeal lay to an authority beyond its territorial jurisdiction, the order
of the appellate authority could not be subjected to challenge before that High Court
within whose jurisdiction the original cause of action arose.
47. Another effect of the above decisions was that the only High Court, at that point
of time, which could exercise jurisdiction to issue any direction, order or writ to the
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Union of India, was the Punjab High Court.

48. The resulting inconvenience to persons residing far away from New Delhi who
were aggrieved by some order of the Government of India was noticed by the
Constitution Bench in the case of Khajoor Singh and it was stated that the argument
of inconvenience may be a reason for making a suitable constitutional amendment in
Article 226, but the same could not affect the plain language of the said provision. The
observations made in the judgment are as follows:—
“16. …The concept of cause of action cannot in our opinion be introduced in Art.
226, for by doing so we shall be doing away with the express provision contained
therein which requires that the person or authority to whom the writ is to be issued
should be resident in or located within the territories over which the High Court has
jurisdiction. It is true that this may result in some inconvenience to person residing
far away from New Delhi who are aggrieved by some order of the Government of
India as such, and that may be a reason for making a suitable constitutional
amendment in Art. 226. But the argument of inconvenience, in our opinion, cannot
affect the plain language of Art. 226, nor can the concept of the place of cause of
action be introduced into it for that would do away with the two limitations on the
powers of the High Court contained in it.”
49. The Supreme Court in the Constitution Bench judgment referred to above held
that “cause of action” was not at all relevant for the purpose of conferring jurisdiction
on High Courts under Article 226, as it originally stood, and the attempt to import the
said concept was repelled.
50. In order to overcome the hardship faced by the litigants from distant places in
regard to invoking writ jurisdiction against the Central Government, the Constitution
(Fifteenth) Amendment Act, 1963, was brought in, in terms whereof, after clause (1),
clause (1-A) was inserted in Article 226 (renumbered as clause (2) by the Constitution
(Forty-second) Amendment Act, 1976).
51. The amended provision now reads as under:—
“226. Power of the High Courts to issue certain writs.—(1) Notwithstanding
anything in article 32, every High Court shall have power, throughout the territories
in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any
of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence of such person is not within
those territories.”
52. The statement of objects and reasons giving the underlying object of the
amendment was stated in the following words:—
“Under the existing Article 226 of the Constitution, the only High Court which has
jurisdiction with respect to the Central Government is the Punjab High Court. This
involves considerable hardship to litigants from distant places. It is, therefore,
proposed to amend Article 226 so that when any relief is sought against any
Government, authority or person for any action taken, the High Court within whose
jurisdiction the cause of action arises may also have jurisdiction to issue appropriate
directions, orders or writs.”
53. With the coming into force of the Constitution (Fifteenth) Amendment, on
October 5, 1963, and the insertion of clause (1-A), subsequently renumbered as
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clause (2), the jurisdiction of the High Court could now be invoked if the cause of
action arose wholly or in part within the territorial jurisdiction of that High Court.
54. It is thus seen that the Constitution (Fifteenth) Amendment introduced the
concept of cause of action, which the Supreme Court, in its majority judgment in the
case of Khajoor Singh, had held to be not included in the language of Article 226.
55. In view of Section 141 CPC, the procedure provided under the Code of Civil
Procedure, may not be held to be applicable to writ proceedings, however, the concept
of cause of action having been introduced by virtue of the Constitution (Fifteenth)
Amendment, the phraseology used in Section 20(c) and Article 226(2) of the
Constitution being pari materia, the meaning assigned to the expression “cause of
action” in the context of its use under Section 20(c), may be adverted to. This is more
so, for the reason that the expression “cause of action” has not been defined in the
Constitution.
56. Section 20 of the Code of Civil Procedure recognises the territorial jurisdiction of
Courts, inter alia, wherever the cause of action wholly or in part arises.
57. The judicially settled meaning which the expression “cause of action” has
acquired, has been summarised in Mulla's Code of Civil Procedure17, in the following
words:—
“In the restricted sense, ‘cause of action’, means the circumstances forming the
infraction of the right or the immediate occasion for the action. In the wider sense it
means the necessary conditions for the maintenance of the suit, including not only
the infraction of the right, but the infraction coupled with the right itself.
Compendiously the expression means every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment of the
court. Every fact which is necessary to be proved, as distinguished from every piece
of evidence which is necessary to prove each fact, comprises ‘cause of action’. It
has to be left to be determined in each individual case as to where the cause of
action arises. The cause of action means the circumstances forming infraction of the
right or immediate occasion for action. It is left to be determined in each individual
case as to where the cause of action arises. The cause of action in suit/petition has
no reference to the defence taken in the suit nor is it related to the evidence by
which the cause of action is established.
A suit is always based on a cause of action. There can be no suit without a cause
of action and such cause of action having accrued to the plaintiff, the jurisdiction of
the court in a matter of contract will depend on the situs of the contract and the
cause of action arising through connecting factors. A cause of action is a bundle of
facts which taken with the law applicable, gives the plaintiff a right to relief against
the defendant. It must include some act done by the defendant since in the
absence of an act no cause of action can possibly accrue. It is not limited to actual
infringement of right sued on, but includes all the material facts on which it is
founded. It does not comprise evidence necessary to prove such facts, but every
fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything
which if not proved would give the defendant a right to immediate judgment must
be part of the cause of action; but it has no relation whatever to the defence which
may be set up by the defendant nor does it depend upon the character of the relief
prayed for by the plaintiff. ‘A cause of action’ means every fact, which, if traversed,
it would be necessary for the plaintiff to prove in order to support his right to a
judgment of the court. It is a media upon which the plaintiff asks the court to arrive
at a conclusion in his favour. In legal parlance the expression ‘cause of action’ is
generally understood to mean a situation or a state of facts that entitle a party to
maintain an action in a court or a tribunal; a group of operative facts giving rise to
one or more bases for suing; a factual situation that entitles one person to obtain a
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remedy in court from another person.”
58. The classical definition of the expression “cause of action”, referred to in Mulla's
Code of Civil Procedure, is found in the case of Cooke v. Gill18 where in the words of
Lord Brett it was stated thus:—
“‘Cause of action’ means every fact which it would be necessary for the plaintiff
to prove, if traversed, in order to support his right to the judgment of the court.”
59. The expression “cause of action” has been defined in Halsbury's Laws of
England19, as follows:—
“20. Cause of action. “Cause of action” has been defined as meaning simply a
factual situation, the existence of which entitles one person to obtain from the court
a remedy against another person. The phrase has been held from earliest time to
include every fact which is material to be proved to entitle the plaintiff to succeed,
and every fact which a defendant would have a right to traverse. “Cause of action”
has also been taken to mean that a particular act on the part of the defendant
which gives the plaintiff his cause of complaint, or the subject-matter of grievance
founding the action, not merely the technical cause of action.
The same facts or the same transaction or event may give rise to more than one
effective cause of action.
A cause of action arises wholly or in part within a certain local area where all or
some of the material facts which the plaintiff has to prove in order to succeed arise
within that area.”
60. In A.B.C. Laminart Private Limited v. A.P. Agencies, Salem20 , the meaning of
the expression “cause of action” was explained thus:—
“12. A cause of action means every fact, which if traversed, it would be
necessary for the plaintiff to prove in order to support his right to a judgment of the
court. In other words, it is a bundle of facts which taken with the law applicable to
them gives the plaintiff a right to relief against the defendant. It must include some
act done by the defendant since in the absence of such an act no cause of action
can possibly accrue. It is not limited to the actual infringement of the right sued on
but includes all the material facts on which it is founded. It does not comprise
evidence necessary to prove such facts, but every fact necessary for the plaintiff to
prove to enable him to obtain a decree. Everything which if not proved would give
the defendant a right to immediate judgment must be part of the cause of action.
But it has no relation whatever to the defence which may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the
plaintiff.”
61. The aforementioned position has been reiterated in South East Asia Shipping
Company Limited v. Nav Bharat Enterprises Private Limited21 , wherein it has been
observed as follows:—
“3. It is settled law that cause of action consists of bundle of facts which give
cause to enforce the legal injury for redress in a court of law. The cause of action
means, therefore, every fact, which if traversed, it would be necessary for the
plaintiff to prove in order to support his right to a judgment of the court. In other
words, it is a bundle of facts, which taken with the law applicable to them, gives the
plaintiff a right to claim relief against the defendant. It must include some act done
by the defendant since in the absence of such an act no cause of action would
possibly accrue or would arise…”
62. The meaning of the expression “cause of action”, as understood in English Law,
had been summarised in Paragon Finances v. DB Thakerar and Company22 , wherein
referring to the earlier decisions in Letang v. Cooper23 , approved in Steamship Mutual
Underwriting Association Limited v. Trollope & Colls Limited24 , the expression “cause of
action” has been held to mean every fact which is material to be proved to entitle
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plaintiff to succeed - every fact which the defendant would have a right to traverse.
The observations made, in this regard, by Millet LJ, are as follows:—
“The classic definition of a cause of action was given by Brett J in Cooke v. Gill
[L.R.] 8 CP 107 at p. 116:
“Cause of action” has been held from the earliest times to mean every fact which
is material to be proved to entitle the plaintiff to succeed,--every fact which the
defendant would have a right to traverse.”
In the Thakerar case Chadwick J cited the more recent definition offered by Diplock
LJ in Letang v. Cooper, (1965) 1 QB 232 CA at pp. 242-243, and approved in
Steamship Mutual Underwriting Association v. Trollop & Colls Ltd., (1986) 6
ConLR 11 at p. 30:
“A cause of action is simply a factual situation the existence of which entitles one
person to obtain from the court a remedy against another person.”
I do not think that Diplock LJ was intending a different definition from that of
Brett J. However it is formulated, only those facts which are material to be proved
are to be taken into account. The pleading of unnecessary allegations or the
addition of further instances or better particulars do not amount to a distinct cause
of action. The selection of the material facts to define the cause of action must be
made at the highest level of abstraction.”
63. In Rajasthan High Court Advocates' Association v. Union of India25 , the
meaning of the expression “cause of action” was compendiously held to include every
fact which it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the Court, as distinguished from every piece of
evidence which is necessary to prove each fact. As to where the cause of action arises
would have to be left to be determined in each individual case. It was stated thus:—
“17. The expression “cause of action” has acquired a judicially-settled meaning.
In the restricted sense cause of action means the circumstances forming the
infraction of the right or the immediate occasion for the action. In the wider sense,
it means the necessary conditions for the maintenance of the suit, including not
only the infraction of the right, but the infraction coupled with the right itself.
Compendiously the expression means every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment of the
Court. Every fact which is necessary to be proved, as distinguished from every piece
of evidence which is necessary to prove each fact, comprises in “cause of action”. It
has to be left to be determined in each individual case as to where the cause of
action arises…”
64. While considering the meaning of the expression “cause of action” in Ambica
Industries v. Commissioner of Central Excise26 , it was held that although in view of
Section 141 CPC, the provisions thereof would not apply to writ proceedings, the
phraseology used in Section 20(c) CPC, and Article 226(2), being in pari materia, the
decisions of the Supreme Court rendered on interpretation of Section 20(c) shall apply
to writ proceedings also keeping in view the expression “cause of action” used in
Article 226(2), it was stated, that indisputably even if a small fraction thereof accrues
within the jurisdiction of the Court, the Court would have jurisdiction in the matter
though the doctrine of forum conveniens may also have to be considered. The
observations made in this regard are as follows:—
“40. Although in view of Section 141 of the Code of Civil Procedure the provisions
thereof would not apply to writ proceedings, the phraseology used in Section 20(c)
of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia,
the decisions of this Court rendered on interpretation of Section 20(c) CPC shall
apply to the writ proceedings also. Before proceeding to discuss the matter further
it may be pointed out that the entire bundle of facts pleaded need not constitute a
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cause of action, as what is necessary to be proved, before the petitioner can obtain
a decree, is material facts. The expression material facts is also known as integral
facts.
41. Keeping in view the expression “cause of action” used in Clause (2) of Article
226 of the Constitution of India, indisputably even if a small fraction thereof
accrues within the jurisdiction of the Court, the Court will have jurisdiction in the
matter though the doctrine of forum conveniens may also have to be considered.”
65. As we have already taken note of, the expression “cause of action” having not
been defined in the Constitution, the meaning envisaged under Section 20(c) CPC,
may be adverted to for the purpose of understanding the meaning of the expression
“cause of action”.
66. The meaning of “cause of action” in the context of territorial jurisdiction of a
High Court was subject matter of consideration in Navinchandra N. Majithia v. State of
Maharashtra27 , and it was held that a High Court will have jurisdiction if any part of
cause of action arises within the territorial limits of its jurisdiction even though the
seat of a Government or authority or residence of person against whom direction, order
or writ is sought to be issued is not within the said territory. In the facts of the case,
where a writ petition had been filed before the Bombay High Court for quashing of a
criminal complaint filed at Shillong on the ground that it was false and had been filed
with mala fide intention of causing harassment and putting pressure on the petitioner
to reverse the transaction relating to transfer of company shares, which had entirely
taken place at Mumbai, and alternatively, making a prayer for issuance of writ of
mandamus to State of Meghalaya for transfer of investigation to Mumbai Police, it was
held, that the Bombay High Court erred in dismissing the writ petition on ground that
it had no jurisdiction to quash the complaint filed at Shillong as prayed for. It was held
that the relief sought by the writ petitioner, though is one of the relevant criteria for
consideration, but not the sole consideration in the matter. Drawing inference from the
provision under clause (2) of Article 226, it was stated that maintainability or
otherwise of a writ petition in a High Court depends on whether the cause of action for
filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
67. Referring to the meaning of the expression “cause of action” as given in Black's
Law Dictionary28, Stroud's Judicial Dictionary of Words and Phrases29 and also the
definition as per Lord Esher, M.R., in Read v. Brown30 , it was stated that in legal
parlance the expression “cause of action” is generally understood to mean a situation
or state of facts that entitles a party to maintain an action in a Court or a Tribunal; a
group of operative facts giving rise to one or more bases for suing; a factual situation
that entitles one person to obtain the remedy in Court from another person. The
observations made in the judgment are extracted below:—
“17. From the provision in clause (2) of Article 226 it is clear that the
maintainability or otherwise of the writ petition in the High Court depends on
whether the cause of action for filing the same arose, wholly or in part, within the
territorial jurisdiction of that Court.
18. In legal parlance the expression “cause of action” is generally understood to
mean a situation or state of facts that entitles a party to maintain an action in a
court or a tribunal; a group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a remedy in court from
another person. (Black's Law Dictionary)
19. In Stroud's Judicial Dictionary a “cause of action” is stated to be the entire
set of facts that gives rise to an enforceable claim; the phrase comprises every fact,
which, if traversed, the plaintiff must prove in order to obtain judgment.
20. In “Words and Phrases” (4th Edn.) the meaning attributed to the phrase
“cause of action” in common legal parlance is existence of those facts which give a
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party a right to judicial interference on his behalf.
x x x
34. When the Constitution was framed, Article 226, as it originally stood therein
provided that
“every High Court shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or authority, including in
appropriate cases any Government, within those territories directions, orders or
writs…”. Some of the decisions rendered by different High Courts during the
earlier years of the post-Constitution period have given a wider perspective
regarding the jurisdiction of the High Court and pointed out that a High Court
can exercise powers under Article 226 even in respect of tribunals or authorities
situated outside the territorial limits of its jurisdiction if such tribunal or authority
exercises powers in such a manner as to affect the fundamental rights of persons
residing or carrying on business within the jurisdiction of such High Court [vide
K.S. Rashid Ahmed v. Income Tax Investigation Commission (AIR 1951 Punj 74),
M.K. Ranganathan v. Madras Electric Tramways (1904) Ltd. (AIR 1952 Mad 659),
Aswini Kumar Sinha v. Dy. Collector of Central Excise and Land Customs (AIR
1952 Ass 91). It was Subba Rao, J. (as the learned Chief Justice then was) who
observed in M.K. Ranganathan case that:
“If a tribunal or authority exercises jurisdiction within the territories affecting
such rights it may reasonably be construed that the authority or the tribunal
functioned within the territorial jurisdiction of the High Court and, therefore, is
amenable to its jurisdiction.”
35. But a Constitution Bench of this Court has held in Election Commission, India
v. Saka Venkata Subba Rao (AIR 1953 SC 210) thus:
“[T]he power of the High Court to issue writs under Article 226 of the
Constitution is subject to the two-fold limitation that such writs cannot run
beyond the territories subject to its jurisdiction and the person or authority to
whom the High Court is empowered to issue such writs must be amenable to the
jurisdiction of the High Court either by residence or location within the territories
subject to its jurisdiction.”
36. It was the said decision of the Constitution Bench which necessitated
Parliament to bring the Fifteenth Amendment to the Constitution by which clause (1
-A) was added to Article 226. That clause was subsequently renumbered as clause
(2) by the Constitution Forty-Second Amendment. Now clause (2) of Article 226
reads thus:
“226(2). The power conferred by clause (1) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the residence of such person is
not within those territories.”
37. The object of the amendment by inserting clause (2) in the article was to
supersede the decision of the Supreme Court in Election Commission v. Saka
Venkata Subba Rao and to restore the view held by the High Courts in the decisions
cited above. Thus the power conferred on the High Courts under Article 226 could
as well be exercised by any High Court exercising jurisdiction in relation to the
territories within which “the cause of action, wholly or in part, arises” and it is no
matter that the seat of the authority concerned is outside the territorial limits of the
jurisdiction of that High Court. The amendment is thus aimed at widening the width
of the area for reaching the writs issued by different High Courts.
38. “Cause of action” is a phenomenon well understood in legal parlance.
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Mohapatra, J. has well delineated the import of the said expression by referring to
the celebrated lexicographies. The collocation of the words “cause of action, wholly
or in part, arises” seems to have been lifted from Section 20 of the Code of Civil
Procedure, which section also deals with the jurisdictional aspect of the courts. As
per that section the suit could be instituted in a court within the legal limits of
whose jurisdiction the “cause of action wholly or in part arises”. Judicial
pronouncements have accorded almost a uniform interpretation to the said
compendious expression even prior to the Fifteenth Amendment of the Constitution
as to mean “the bundle of facts which would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment of the court”.
39. In Read v. Brown, (1888) 22 QBD 128, Lord Esher, M.R., adopted the
definition for the phrase “cause of action” that it meant
“every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court. It does not comprise
every piece of evidence which is necessary to prove each fact, but every fact
which is necessary to be proved”.
40. The Privy Council has noted in Mohd. Khalil Khan v. Mahbub Ali Mian (AIR
1949 PC 78) that the aforesaid definition adopted by Lord Esher M.R. had been
followed in India. Even thereafter the courts in India have consistently followed the
said interpretation without exception for understanding the scope of the expression
“cause of action”.”
68. Cause of action, in legal parlance, has been understood as a situation or “state
of facts” which entitles a party to maintain an action before a Court or Tribunal. It
would refer to the existence of those facts set forth in the plaint upon which the party
seeks a right to judicial interference on his behalf. Facts which would have no bearing
on the lis or the dispute involved in the case, would, therefore, not give rise to a cause
of action so as to confer territorial jurisdiction on the Court.
69. It may be necessary at this stage to take notice of the distinction between the
terms “right of action” and “cause of action”.
70. The distinction between the two terms has been referred to in American
Jurisprudence31, wherein it has been stated as follows:—
“Although the courts sometimes confuse the term ‘cause of action’ and ‘right of
action’ and state that right of action at law arises from the existence of a primary
right in the plaintiff and the invasion of that right by some delict on the part of the
defendant, in a legal sense, these terms are not synonymous or interchangeable. A
right of action is the right to presently enforce a cause of action - a remedial right
affording redress for the infringement of legal right belonging to some definite
person, a cause of action is the operative facts which give rise to such right of
action. Right of action does not arise until the performance of conditions precedent
to the action and may be taken away by the running of the statute of limitation,
through an estoppel, or by other circumstances which do not affect the cause of
action. There may be several rights of action and one cause of action and rights
may accrue at different times from the same cause.”
71. The aforementioned distinction, was also recognised in Code Pleading by
Phillips32, which has been referred to in an article by Oliver L. McCaskill33, “The
Elusive Cause of Action”, and it was stated thus:—
“It should be borne in mind that a right of action is a remedial right belonging to
some person, and that a cause of action is a formal statement of the operative facts
that give rise to such remedial right. The one is matter of right, and depends upon
the substantive law; the other is matter of statement, and is governed by the law of
procedure. The terms, ‘right of action’ and ‘cause of action,’ are therefore not
equivalent terms, and should not be used interchangeably.”
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72. We may also gainfully refer to Code Remedies by Pomeroy34, wherein it has
been stated as follows:- “Every judicial action must therefore involve the following
elements: a primary right possessed by the plaintiff, and a corresponding primary
duty devolving upon the defendant; a delict or wrong done by the defendant which
consisted in a breach of such primary right and duty ; a remedial right in favor of the
plaintiff, and a remedial duty resting on the defendant springing from this delict, and
finally the remedy or relief itself. Every action, however complicated or however
simple, must contain these essential elements. Of these elements, the primary right
and duty and the delict or wrong combined constitute the cause of action in the legal
sense of the term, and as used in the codes of the several States. They are the legal
cause or foundation whence the right of action springs, this right of action being
identical with the ‘remedial right’ as designated in my analysis. In accordance with the
principles of pleading adopted in the new American system, the existence of a legal
right in an abstract form is never alleged by the plaintiff; but, instead thereof, the
facts from which that right arises are set forth, and the right itself is inferred
therefrom. The cause of action, as it appears in the complaint when properly pleaded,
will therefore always be the facts from which the plaintiff's primary right and the
defendant's corresponding primary duty have arisen, together with the facts which
constitute the defendant's delict or act of wrong From one cause of action, that is,
from one primary right and one delict being a breach thereof, it is possible, and not at
all uncommon, that two or more remedial rights may arise, and therefore two or more
different kinds of relief answering to these separate remedial rights. This is especially
so when one remedial right and corresponding relief are legal, and the other equitable;
but it is not confined to such cases If the facts alleged show one primary right of the
plaintiff, and one wrong done by the defendant which involves that right, the plaintiff
has stated but a single cause of action, no matter how many forms and kinds of relief
he may claim that he is entitled to, and may ask to recover; the relief is no part of the
cause of action.”
73. The relation between “right of action” and “cause of action” has been further
analysed in the article “Actions and Causes of Action” by O.L. McCaskill35, wherein
referring to the observations made by Phillips in Code Pleading36, it has been stated
thus:—
“Judge Phillips describes the cause of action in this fashion:
“The question to be determined at the threshold of every action is, whether
there is occasion for the state to interfere. Therefore, when a suitor asks that the
public force be exerted in his behalf, he must show that there is, prima facie,
occasion for the state to act in his behalf. That is, he must show a right in
himself, recognized by law, and a wrongful invasion thereof, actual or
threatened. And since both rights and delicts arise from operative facts, he must
affirm of himself such investitive fact or group of facts as will show a consequent
legal right in him, and he must affirm of the adversary party such culpatory fact
or facts as will show his delict with reference to the right so asserted. The formal
statement of operative facts showing such right and such delict shows a cause
for action on the part of the state and in behalf of the complainant, and is called
in legal phraseology, a cause of action.”
“From the foregoing definitions of right of action and cause of action, it will be
seen that the former is a remedial right belonging to some person, and that the
latter is a formal statement of the operative facts that give rise to such remedial
right. The one is matter of right, and depends upon the substantive law; the other
is matter of statement, and is governed by the law of procedure.”
“It will appear, without further analysis, that a statement of facts, to constitute a
cause of action, must show a right of action; that to show a right of action, it must
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state facts to show (I) a primary right and its corresponding duty, and (2) the
infringement of this right by the party owing this duty. From the one set of facts
the law raises the primary right and duty, and to the other set of facts the law
attaches a remedial right, or right of action….”
74. The distinction between “cause of action” and “right of action” was noticed by a
Full Bench of this Court in Sardar Balbir Singh v. Atma Ram Srivastava37 , in the
context of Order II of the CPC, and referring to the decisions in Whitfield v. Aetna38 ,
Emory v. Hazard Powder Company39 , Weldon v. Neal40 , Cooke v. Gill18 , Robinson v.
Unicos Property Corporation Limited41 , Dorman v. J.W. Ellis and Company Limited42 ,
Sidramappa v. Rajashetty43 and Gurbux Singh v. Bhooralal44 , it was observed as
follows:—
“48. What does the expression ‘cause of action’ as used in Order II of the Code of
Civil Procedure connote? An all embracing definition of the term ‘cause of action’ is
not to be easily found. It may mean one thing for one purpose and something
different for another depending, for example, on the question whether the principle
of res judicata applies or whether an amendment of pleading is permissible or
whether a pleading is good upon demurrer and so on. Cause of action has sometime
been defined as being the fact or facts which establish or give rise to a right of
action, the existence of which affords a party a right to judicial relief. The facts
which comprise the cause of action are those which, if traversed, the plaintiff is
obliged to prove in order to obtain a judgment, or those facts which the defendant
would have the right to traverse, or as observed in Whitfield v. Aetna, (1906) 205
US 489 “a cause of action is the reverse of a defence, which is defined as whatever
tends to diminish the plaintiff's cause of action or to defeat recovery in whole or in
part”; or as laid down in Emory v. Hazard Powder Co., (22 SC 476) “a cause of
action arises where there has been an invasion of a legal right without justification
or sufficient cause”; or that a cause of action is that single group of facts which is
claimed to have brought about an unlawful injury to the plaintiff and which entitles
him to relief. It consists of a right belonging to one person and some wrongful act
or omission by another by which that right has been violated. It has been variously
stated that a cause of action cannot exist without the concurrence of a right, a duty,
and the default and is the subject of an action. It has also been defined as the
subject of an action, or the wrong for which the law prescribes a remedy. While
dealing with an application for amendment of plaint the Supreme Court observed in
A.K. Gupta and Sons v. Damodar Valley Corporation, (AIR 1967 SC 96):
“The general rule, no doubt, is that a party is not allowed by amendment to
set up a new case or a new cause of action particularly when a suit on new case
or cause of action is barred: Weldon v. Neal, (1887) 19 QBD 394. But it is also
well recognised that where the amendment does not constitute the addition of a
new cause of action or raise a different case, but amounts to no more than a
different or additional approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period of limitation.”
Then dealing with the connotation of the term ‘cause of action’ in the context of
an application for amendment of pleading the Supreme Court observed:
“The expression ‘cause of action’ in the present context does not mean ‘every
fact which it is material to be proved to entitle the plaintiff to succeed’ as was said
in Cooke v. Gil, (1873) 8 CP 107 (116), in a different context for if it were so, no
material fact could ever be amended or added and, of course, no one would want to
change or add an immaterial allegation by amendment. That expression for the
present purpose only means a new claim made on a new basis constituted by new
facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd., (1962) 2
All ER 24, and it seems to us to be the only possible view to take. Any other view
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would make the rule futile. The words ‘new case’ have been understood to mean
‘new set of ideas’ Dorman v. J.W. Ellis and Co. Ltd., 1962-1 All ER 303. This also
seems to us to be a reasonable view to take. No amendment will be allowed to
introduce a new set of ideas to the prejudice of any right acquired by any party by
lapse of time.”
The term ‘cause of action’, however, for the purpose of Order II means ‘cause of
action’ which gives occasion for and forms the foundation of the suit. (See AIR 1970
SC 1059 (Sidramappa v. Rajashetty), and AIR 1964 SC 1810, Gurbax Singh v.
Bhooralal).
There is, however, a ‘distinction’ between ‘cause of action’ and the ‘right of
action’. These terms are not synonymous and interchangeable. A right of action is a
right to presently enforce a cause of action a remedial right affording redress for the
infringement of a legal right belonging to some definite person; a cause of action is
the operative facts which give rise to such right of action. The right of action does
not arise until the performance of all conditions precedent to the action, and may be
taken away by the running of the statute of limitations, through an estoppel, or by
other circumstances which do not affect the cause of action. There may be several
rights of action and one cause of action and rights may accrue at different times
from the same cause.
49. Cause of action should also be distinguished from ‘remedy’ which is the
means or method whereby the cause of action or corresponding obligation is
effectuated and by which a wrong is redressed and relief obtained. The one
precedes and gives rise to the other, but they are separate and distinct from each
other and are governed by different rules and principles. The cause of action is the
obligation from which springs the “action”, defined as the right to enforce an
obligation, A cause of action arises when that which ought to have been done is not
done or that which ought not to have been done is done. The essential elements of
a cause of action are thus the existence of a legal right in the plaintiff with a
corresponding legal duty in the defendant, and a violation or breach of that “right or
duty” with consequential injury or damage to the plaintiff for which he may
maintain an action for appropriate relief or reliefs. The right to maintain an action
depends upon the existence of a cause of action which involves a combination of a
right on the part of the plaintiff and the violation of such right by the defendant.
The duty on the part of the defendant may arise from a contract or may be imposed
by positive law independent of contract, it may arise of contractus or ex delicto. A
cause of action arises from the invasion of the plaintiff's right by violation of some
duty imposed upon the defendant in favour of the plaintiff either by voluntary
contract or by positive law.”
75. The meaning of the two expressions was again considered by a Division Bench
of this Court in Daya Shankar Bhardwaj v. Chief of the Air Staff, New Delhi45, and it
was reiterated that the two are neither synonymous nor interchangeable. The meaning
of the term “right of action” as provided in American Jurisprudence Vol. 146 was
considered and it was stated as follows:—
“13. …A right of action arises as soon as there is an invasion of right. But ‘‘cause
of action’ and ‘‘right of action’ are not synonymous or interchangeable. A right of
action is the right to enforce a cause of action (American Jurisprudence 2nd Edition
vol. 1.) A person residing anywhere in the country being aggrieved by an order of
government Central or State or authority or person may have a right of action at
law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that
High Court only within whose territorial limits the cause of action wholly or in part
arises. The cause of action arises by action of the government or authority and not
by residence of the person aggrieved.”
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76. The expression “cause of action” has been held to have no relation whatever to
the defence which may be set up by the defendant nor does it refer to the character of
the relief prayed for by the plaintiff, and it would be referable entirely to the grounds
set forth in the plaint. The observations made by Lord Watson in the Privy Council
judgment of Chand Kaur v. Partab Singh47 would be apposite in this regard:—
“The cause of action has no relation whatever to the defence which may be set
up by the defendant, nor does it depend upon the character of the relief prayed for
by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of
action, or, in other words, to the media upon which the Plaintiff asks the Court to
arrive at a conclusion in his favour.”
77. The meaning of the expression “cause of action”, in the context of the territorial
jurisdiction of a High Court under Article 226(2), was considered in State of Rajasthan
v. Swaika Properties48 , and it was observed that in order to invest the High Court with
jurisdiction to entertain the petition the transaction in question must be an integral
part of the cause of action. In the facts of the case it was held that the service of
notice on the respondent at its registered office at Calcutta within the territorial limits
of the State of West Bengal, in respect of acquisition proceedings initiated by
Rajasthan State Government regarding land situate in Jaipur, could not give rise to a
cause of action within the territorial jurisdiction of the Calcutta High Court unless the
service of such notice was an integral part of the cause of action. The observations
made in the judgment are as follows:—
“8. The expression “cause of action” is tersely defined in Mulla's Code of Civil
Procedure:
The ‘‘cause of action’ means every fact which, if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a judgment of the court.
In other words, it is a bundle of facts which taken with the law applicable to
them gives the plaintiff a right to relief against the defendant. The mere service of
notice under Section 52(2) of the Act on the respondents at their registered office
at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of
West Bengal, could not give rise to a cause of action within that territory unless the
service of such notice was an integral part of the cause of action. The entire cause
of action culminating in the acquisition of the land under Section 52(1) of the Act
arose within the State of Rajasthan i.e. within the territorial jurisdiction of the
Rajasthan High Court at the Jaipur Bench. The answer to the question whether
service of notice is an integral part of the cause of action within the meaning of
Article 226(2) of the Constitution must depend upon the nature of the impugned
order giving rise to a cause of action. The notification dated February 8, 1984 issued
by the State Government under Section 52(1) of the Act became effective the
moment it was published in the official Gazette as thereupon the notified land
became vested in the State Government free from all encumbrances. It was not
necessary for the respondents to plead the service of notice on them by the Special
Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an
appropriate writ, direction or order under Article 226 of the Constitution for
quashing the notification issued by the State Government under Section 52(1) of
the Act. If the respondents felt aggrieved by the acquisition of their lands situate at
Jaipur and wanted to challenge the validity of the notification issued by the State
Government of Rajasthan under Section 52(1) of the Act by a petition under Article
226 of the Constitution, the remedy of the respondents for the grant of such relief
had to be sought by filing such a petition before the Rajasthan High Court, Jaipur
Bench, where the cause of action wholly or in part arose.”
78. The question of territorial jurisdiction of the High Court under Article 226(2)
again came up for consideration in Oil and Natural Gas Commission v. Utpal Kumar
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Basu11 , and it was held that territories within which the cause of action, wholly or in
part, arises, is to be decided on facts pleaded in the petition, disregarding the truth or
otherwise thereof.
79. In the facts of the case, the mere fact that the petitioner company, having its
registered office at Calcutta, had responded to an advertisement published in a
Calcutta newspaper, inviting tenders at Delhi, for the works to be executed in Gujarat,
had sent its tender to the Delhi address from Calcutta and also made representations
from Calcutta against non-consideration of its offer, held, did not disclose that even a
part of cause of action arose within the territorial jurisdiction of Calcutta High Court,
and it had no jurisdiction to entertain the writ petition. The observations made in the
judgment are as follows:—
“5. Clause (1) of Article 226 begins with a non obstante clause --
notwithstanding anything in Article 32 -- and provides that every High Court shall
have power “throughout the territories in relation to which it exercises jurisdiction”,
to issue to any person or authority, including in appropriate cases, any Government,
“within those territories” directions, orders or writs, for the enforcement of any of
the rights conferred by Part III or for any other purpose. Under clause (2) of Article
226 the High Court may exercise its power conferred by clause (1) if the cause of
action, wholly or in part, had arisen within the territory over which it exercises
jurisdiction, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories. On a plain reading of the
aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High
Court can exercise the power to issue directions, orders or writs for the enforcement
of any of the fundamental rights conferred by Part III of the Constitution or for any
other purpose if the cause of action, wholly or in part, had arisen within the
territories in relation to which it exercises jurisdiction, notwithstanding that the seat
of the Government or authority or the residence of the person against whom the
direction, order or writ is issued is not within the said territories. In order to confer
jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of
the cause of action had arisen within the territorial jurisdiction of that Court.
That is at best its case in the writ petition.
6. It is well settled that the expression “cause of action” means that bundle of
facts which the petitioner must prove, if traversed, to entitle him to a judgment in
his favour by the Court. In Chand Kour v. Partab Singh, ILR (1889) 16 Cal 98, Lord
Watson said:
“… the cause of action has no relation whatever to the defence which may be set
by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of
action, or, in other words, to the media upon which the plaintiff asks the Court to
Therefore, in determining the objection of lack of territorial jurisdiction the court
must take all the facts pleaded in support of the cause of action into consideration
albeit without embarking upon an enquiry as to the correctness or otherwise of the
said facts. In other words the question whether a High Court has territorial
jurisdiction to entertain a writ petition must be answered on the basis of the
averments made in the petition, the truth or otherwise whereof being immaterial.
To put it differently, the question of territorial jurisdiction must be decided on the
facts pleaded in the petition. Therefore, the question whether in the instant case
the Calcutta High Court had jurisdiction to entertain and decide the writ petition in
question even on the facts alleged must depend upon whether the averments made
in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of
the cause of action had arisen within the jurisdiction of the Calcutta High Court.”
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80. The question as to whether location of head office of a company within the
territorial jurisdiction of a High Court would automatically give it jurisdiction was
subject matter of consideration in Eastern Coalfields Limited v. Kalyan Banerjee49 . In
the facts of the case, a challenge to termination of service of an employee was raised
where the company was having its head office in West Bengal. The services of the
employee were terminated at a place in Jharkhand State by his appointing authority
whose office was also located at the same place. The termination order was not subject
to sanction of the head office. In such circumstances, no part of the cause of action
having arisen in West Bengal, it was held, that mere location of the head office of the
company in West Bengal would not confer jurisdiction upon Calcutta High Court to
entertain such a petition. It was reiterated that “cause of action” for the purpose of
Article 226(2), must be assigned the same meaning as under Section 20(c) CPC. It
would mean a bundle of facts which are required to be proved; however, the entire
bundle of facts pleaded, need not constitute a cause of action as what is necessary to
be proved is material facts whereupon a writ petition can be allowed.
81. A question as to whether order of Supreme Court could confer territorial
jurisdiction on a High Court in matters in which High Court is lacking the same was
considered in Satya Prakash v. State of U.P.50 . In this case reliance was placed upon
prior order of the Supreme Court dismissing the appellant's petition under Article 32
with liberty to move the appropriate Court including the High Court of Delhi, if so
advised. The offence having been committed within the jurisdiction of Allahabad High
Court, it was held that the Supreme Court's order could not be construed to confer any
territorial jurisdiction on Delhi High Court when it does not possess such jurisdiction.
82. The nature of facts which give rise to “part of cause of action” within the
territorial jurisdiction of a High Court in the context of clause (2) of Article 226 came
up for consideration in the case of Union of India v. Adani Exports Ltd.51 and it was
held that in order to confer jurisdiction on the High Court to entertain a writ petition,
the Court must be satisfied from the entire facts pleaded in support of the cause of
action that those facts do constitute a cause so as to empower the Court to decide a
dispute which has, at least in part, arisen within its jurisdiction. Each and every fact
pleaded in the application may not ipso facto lead to the conclusion that those facts
give rise to a cause of action within the Court's territorial jurisdiction unless those
facts are such which have a nexus or relevance with the lis that is involved in the case.
Facts which have no bearing with the lis or the dispute involved in the case, were held,
to be not giving rise to a cause of action so as to confer territorial jurisdiction on the
Court concerned. The observations made in the judgment are being extracted below:—
“15. Article 226(2) of the Constitution of India which speaks of the territorial
jurisdiction of the High Court reads:
16. It is clear from the above constitutional provision that a High Court can
exercise the jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises. This provision in the Constitution has come up for
consideration in a number of cases before this Court. In this regard, it would suffice
for us to refer to the observations of this Court in the case of Oil and Natural Gas
Commission v. Utpal Kumar Basu, (1994) 4 SCC 711 wherein it was held: “Under
Article 226 a High Court can exercise the power to issue directions, orders or writs
for the enforcement of any of the fundamental rights conferred by Part III of the
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Constitution or for any other purpose if the cause of action, wholly or in part, had
arisen within the territories in relation to which it exercises jurisdiction,
notwithstanding that the seat of the Government or authority or the residence of
the person against whom the direction, order or writ is issued is not within the said
territories. The expression ‘‘cause of action’ means that bundle of facts which the
petitioner must prove, if traversed, to entitle him to a judgment in his favour by the
court. Therefore, in determining the objection of lack of territorial jurisdiction the
court must take all the facts pleaded in support of the cause of action into
consideration albeit without embarking upon an enquiry as to the correctness or
otherwise of the said facts. Thus the question of territorial jurisdiction must be
decided on the facts pleaded in the petition, the truth or otherwise of the averments
made in the petition being immaterial.”
17. It is seen from the above that in order to confer jurisdiction on a High Court
to entertain a writ petition or a special civil application as in this case, the High
Court must be satisfied from the entire facts pleaded in support of the cause of
action that those facts do constitute a cause so as to empower the court to decide a
dispute which has, at least in part, arisen within its jurisdiction. It is clear from the
above judgment that each and every fact pleaded by the respondents in their
application does not ipso facto lead to the conclusion that those facts give rise to a
cause of action within the court's territorial jurisdiction unless those facts pleaded
are such which have a nexus or relevance with the lis that is involved in the case.
Facts which have no bearing with the lis or the dispute involved in the case, do not
give rise to a cause of action so as to confer territorial jurisdiction on the court
concerned. If we apply this principle then we see that none of the facts pleaded in
para 16 of the petition, in our opinion, falls into the category of bundle of facts
which would constitute a cause of action giving rise to a dispute which could confer
territorial jurisdiction on the courts at Ahmedabad.”
83. The meaning of the expression “cause of action” was discussed in National
Textile Corporation Limited v. Haribox Swalram52 , while considering the facts giving
rise to the Court's territorial jurisdiction, in the context of Article 226(2), and it was
held that only those facts give rise to a cause of action within a Court's territorial
jurisdiction which have a nexus or relevance with the lis that is involved in that case,
and not otherwise. It was stated thus:—
“10. Under clause (2) of Article 226 of the Constitution, the High Court is
empowered to issue writs, orders or directions to any Government, authority or
person exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding that
the seat of such Government or authority or the residence of such person is not
within those territories. Cause of action as understood in the civil proceedings
means every fact which, if traversed, would be necessary for the plaintiff to prove in
order to support his right to a judgment of the court. To put it in a different way, it
is the bundle of facts which taken with the law applicable to them, gives the
plaintiff a right to relief against the defendant. In Union of India v. Adani Exports
Ltd., (2002) 1 SCC 567 in the context of clause (2) of Article 226 of the
Constitution, it has been explained that each and every fact pleaded in the writ
petition does not ipso facto lead to the conclusion that those facts give rise to a
cause of action within the court's territorial jurisdiction unless those facts pleaded
are such which have a nexus or relevance with the lis that is involved in the case.
Facts which have no bearing with the lis or dispute involved in the case, do not give
rise to a cause of action so as to confer territorial jurisdiction on the court
concerned. A similar question was examined in State of Rajasthan v. Swaika
Properties. (1985) 3 SCC 217. Here certain properties belonging to a company
which had its registered office in Calcutta were sought to be acquired in Jaipur and
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a notice under Section 52 of the Rajasthan Urban Improvement Act was served
upon the company at Calcutta. The question which arose for consideration was
whether the service of notice at the head office of the company at Calcutta could
give rise to a cause of action within the State of West Bengal to enable the Calcutta
High Court to exercise jurisdiction in a matter where challenge to acquisition
proceedings conducted in Jaipur was made. It was held that the entire cause of
action culminating in the acquisition of the land under Section 152 of the Rajasthan
Act arose within the territorial jurisdiction of the Rajasthan High Court and it was
not necessary for the company to plead the service of notice upon them at Calcutta
for grant of appropriate writ, order or direction under Article 226 of the Constitution
for quashing the notice issued by the Rajasthan Government under Section 52 of
the Act.
It was thus held that the Calcutta High Court had no jurisdiction to entertain the
writ petition.”
84. The territorial scope of an order of a High Court under Article 226 and the
meaning of the expression “cause of action” in the context of clause (2) of Article 226
was subject matter of consideration in Kusum Ingots & Alloys Ltd. v. Union of India53
Taking into consideration that the phraseology used in Section 20(c) of the Code of
Civil Procedure, 190854 and clause (2) of Article 226 are in pari materia, the decisions
of the Supreme Court rendered on interpretation of Section 20(c) CPC were held to be
applicable to writ proceedings also and it was held that even if a small fraction of
cause of action accrues within the jurisdiction of the Court, the Court will have
jurisdiction in the matter. The observations made in the judgment in this regard are as
follows:—
“6. Cause of action implies a right to sue. The material facts which are imperative
for the suitor to allege and prove constitute the cause of action. Cause of action is
not defined in any statute. It has, however, been judicially interpreted inter alia to
mean that every fact which would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the Court. Negatively
put, it would mean that everything which, if not proved, gives the defendant an
immediate right to judgment, would be part of cause of action. Its importance is
beyond any doubt. For every action, there has to be a cause of action, if not, the
plaint or the writ petition, as the case may be, shall be rejected summarily.
7. Clause (2) of Article 226 of the Constitution of India reads thus:
8. Section 20(c) of the Code of Civil Procedure reads as under:
“20. Other suits to be instituted where defendants reside or cause of action
arises.--Subject to the limitations aforesaid, every suit shall be instituted in a
court within the local limits of whose jurisdiction—
(a)-(b) x x
(a) the cause of action, wholly or in part, arises.”
9. Although in view of Section 141 of the Code of Civil Procedure the provisions
thereof would not apply to writ proceedings, the phraseology used in Section 20(c)
of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia,
the decisions of this Court rendered on interpretation of Section 20(c) CPC shall
apply to the writ proceedings also. Before proceeding to discuss the matter further
it may be pointed out that the entire bundle of facts pleaded need not constitute a
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cause of action as what is necessary to be proved before the petitioner can obtain a
decree is the material facts. The expression material facts is also known as integral
facts.
10. Keeping in view the expressions used in clause (2) of Article 226 of the
Constitution of India, indisputably even if a small fraction of cause of action accrues
within the jurisdiction of the Court, the Court will have jurisdiction in the matter.”
85. The principle that the question of territorial jurisdiction to entertain a writ
petition must be arrived at solely on the basis of averments made in the petition, the
truth or otherwise thereof being immaterial was reiterated placing reliance upon the
judgments in Chand Kaur v. Partab Singh47 , Oil and Natural Gas Commission v. Utpal
Kumar Basu11 , State of Rajasthan v. Swaika Properties48 , Aligarh Muslim University v.
Vinay Engineering Enterprises (P) Ltd.10 , Union of India v. Adani Exports Ltd. and
National Textile Corporation Ltd. v. Haribox Swalram52 , and it was stated thus:—
“11. In Chand Kour v. Partab Singh (1887-88) 15 IA 156 it was held: (IA pp.
157-58)
“The cause of action has no relation whatever to the defence which may be set
by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause
of action, or, in other words, to the media upon which the plaintiff asks the court to
12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu, (1994) 4
SCC 711 held that the question as to whether the Court has a territorial jurisdiction
to entertain a writ petition, must be arrived at on the basis of averments made in
the petition, the truth or otherwise thereof being immaterial.
13. This Court in Oil and Natural Gas Commission case held that all necessary
facts must form an integral part of the cause of action. It was observed: (SCC p.
719, para 8)
“So also the mere fact that it sent fax messages from Calcutta and received a
reply thereto at Calcutta would not constitute an integral part of the cause of
action.”
14. In State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 this Court
opined that mere service of a notice would not give rise to any cause of action
unless service of notice was an integral part of the cause of action. The said decision
has also been noticed in Oil and Natural Gas Commission. This Court held: (SCC p.
223, para 8)
“The answer to the question whether service of notice is an integral part of the
cause of action within the meaning of Article 226(2) of the Constitution must
depend upon the nature of the impugned order giving rise to a cause of action.”
15. In Aligarh Muslim University v. Vinay Engg. Enterprises (P) Ltd., (1994) 4
SCC 710 this Court lamented: (SCC p. 711, para 2)
“2. We are surprised, not a little, that the High Court of Calcutta should have
exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts
in question were executed at Aligarh, the construction work was to be carried out at
Aligarh, even the contracts provided that in the event of dispute the Aligarh court
alone will have jurisdiction. The arbitrator was from Aligarh and was to function
there. Merely because the respondent was a Calcutta-based firm, the High Court of
Calcutta seems to have exercised jurisdiction where it had none by adopting a
queer line of reasoning. We are constrained to say that this is a case of abuse of
jurisdiction and we feel that the respondent deliberately moved the Calcutta High
Court ignoring the fact that no part of the cause of action had arisen within the
jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta
High Court was thoroughly unsustainable.”
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16. In Union of India v. Adani Exports Ltd., (2002) 1 SCC 567 it was held that in
order to confer jurisdiction on a High Court to entertain a writ petition it must
disclose that the integral facts pleaded in support of the cause of action do
constitute a cause so as to empower the Court to decide the dispute and the entire
or a part of it arose within its jurisdiction.
17. Recently, in National Textile Corpn. Ltd. v. Haribox Swalram, (2004) 9 SCC
786 a Division Bench of this Court held:
(SCC p. 797, para 12.1)
“12.1. As discussed earlier, the mere fact that the writ petitioner carries on
business at Calcutta or that the reply to the correspondence made by it was
received at Calcutta is not an integral part of the cause of action and, therefore, the
Calcutta High Court had no jurisdiction to entertain the writ petition and the view to
the contrary taken by the Division Bench cannot be sustained. In view of the above
finding, the writ petition is liable to be dismissed.”
18. The facts pleaded in the writ petition must have a nexus on the basis
whereof a prayer can be granted. Those facts which have nothing to do with the
prayer made therein cannot be said to give rise to a cause of action which would
confer jurisdiction on the Court.”
86. The situs of the office of the respondents was held to be not relevant for the
purposes of territorial jurisdiction and it was held in the context of clause (2) of Article
226 that a place where appellate/revisional order is passed may give rise to a part of
the cause of action although the original order was made at a place outside the said
area, and when a part of an action arises within one or the other High Court it would
be for the litigant who is the dominus litis to have his forum conveniens that is to
choose his forum. The observations made in the judgment in this regard are as
follows:- “23. A writ petition, however, questioning the constitutionality of a
parliamentary Act shall not be maintainable in the High Court of Delhi only because
the seat of the Union of India is in Delhi. (See Abdul Kafi Khan v. Union of India, AIR
1979 Cal 354).
1. Learned counsel for the appellant in support of his argument would contend that
the situs of framing law or rule would give jurisdiction to the Delhi High Court
and in support of the said contention relied upon the decisions of this Court in
Nasiruddin v. STAT, (1975) 2 SCC 671 and U.P. Rashtriya Chini Mill Adhikari
Parishad v. State of U.P., (1995) 4 SCC 738. So far as the decision of this Court
in Nasiruddin v. STAT is concerned, it is not an authority for the proposition that
the situs of legislature of a State or the authority in power to make subordinate
legislation or issue a notification would confer power or jurisdiction on the High
Court or a Bench of the High Court to entertain a petition under Article 226 of the
Constitution. In fact this Court while construing the provisions of the United
Provinces High Courts (Amalgamation) Order, 1948 stated the law thus: (SCC p.
683, para 37)
“37. The conclusion as well as the reasoning of the High Court is incorrect. It
is unsound because the expression ‘‘cause of action’ in an application under
Article 226 would be as the expression is understood and if the cause of action
arose because of the appellate order or the revisional order which came to be
passed at Lucknow then Lucknow would have jurisdiction though the original
order was passed at a place outside the areas in Oudh. It may be that the
original order was in favour of the person applying for a writ. In such case an
adverse appellate order might be the cause of action.
The expression ‘‘cause of action’ is well known. If the cause of action arises
wholly or in part at a place within the specified Oudh areas, the Lucknow Bench
will have jurisdiction. If the cause of action arises wholly within the specified
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Oudh areas, it is indisputable that the Lucknow Bench would have exclusive
jurisdiction in such a matter. If the cause of action arises in part within the
specified areas in Oudh it would be open to the litigant who is the dominus litis
to have his forum conveniens. The litigant has the right to go to a court where
part of his cause of action arises. In such cases, it is incorrect to say that the
litigant chooses any particular court. The choice is by reason of the jurisdiction of
the court being attracted by part of cause of action arising within the jurisdiction
of the court. Similarly, if the cause of action can be said to have arisen part
within specified areas in Oudh and part outside the specified Oudh areas, the
litigant will have the choice to institute proceedings either at Allahabad or
Lucknow. The court will find out in each case whether the jurisdiction of the court
is rightly attracted by the alleged cause of action.”
2. The said decision is an authority for the proposition that the place from where an
appellate order or a revisional order is passed may give rise to a part of cause of
action although the original order was at a place outside the said area. When a
part of the cause of action arises within one or the other High Court, it will be for
the petitioner to choose his forum.
3. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad,
(1995) 4 SCC 738 that the situs of issue of an order or notification by the
Government would come within the meaning of the expression “cases arising” in
clause 14 of the (Amalgamation) Order is not a correct view of law for the reason
hereafter stated and to that extent the said decision is overruled. In fact, a
legislation, it is trite, is not confined to a statute enacted by Parliament or the
legislature of a State, which would include delegated legislation and subordinate
legislation or an executive order made by the Union of India, State or any other
statutory authority. In a case where the field is not covered by any statutory
rule, executive instructions issued in this behalf shall also come within the
purview thereof. Situs of office of Parliament, legislature of a State or authorities
empowered to make subordinate legislation would not by itself constitute any
cause of action or cases arising. In other words, framing of a statute, statutory
rule or issue of an executive order or instruction would not confer jurisdiction
upon a court only because of the situs of the office of the maker thereof.
4. When an order, however, is passed by a court or tribunal or an executive
authority whether under provisions of a statute or otherwise, a part of cause of
action arises at that place. Even in a given case, when the original authority is
constituted at one place and the appellate authority is constituted at another, a
writ petition would be maintainable at both the places. In other words, as order
of the appellate authority constitutes a part of cause of action, a writ petition
would be maintainable in the High Court within whose jurisdiction it is situate
having regard to the fact that the order of the appellate authority is also required
to be set aside and as the order of the original authority merges with that of the
appellate authority.”
87. It was also held that if a small fraction of cause of action accrues within the
jurisdiction of the Court, the Court would have jurisdiction in the matter; however, the
same by itself may not be considered to be a determinative factor compelling the High
Court to decide the matter on merits and in appropriate cases the Court may refuse to
exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
Reference in this regard was made to the judgments in the cases of Bhagat Singh
Bugga v. Dewan Jagbir Sawhney55 , Madanlal Jalan v. Madanlal56 , Bharat Coking Coal
Ltd. v. Jharia Talkies & Cold Storage (P) Ltd.57 , S.S. Jain & Co. v. Union of India58 and
New Horizons Ltd. v. Union of India59 .
88. The principle with regard to the doctrine of forum conveniens was stated by
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Lord Kinnear in Sim v. Robinow60 in the following manner, which is being extracted
below:—
“The general rule was stated by the late Lord President in Clements v. Macaulay,
4 Macph. 593, in the following terms:
‘In cases in which jurisdiction is competently founded, a court has no
discretion whether it shall exercise its jurisdiction or not, but is bound to award
the justice which a suiter comes to ask. Judex tenetur impertiri judicium suum;
and the plea under consideration must not be stretched so as to interfere with
the general principle of jurisprudence.’ And therefore the plea can never be
sustained unless the court is satisfied that there is some other tribunal, having
competent jurisdiction, in which the case may be tried more suitably for the
interests of all the parties and for the ends of justice… In all these cases there
was one indispensable element present when the court gave effect to the plea of
forum non conveniens, namely, that the court was satisfied that there was
another court in which the action ought to be tried as being more convenient for
all the parties, and more suitable for the ends of justice.”
89. The principle has been further explained in the judgment of House of Lords in
Tehrani v. Secretary of State for the Home Department (Scotland)61 and it has been
stated thus:—
“25. The existence of jurisdiction is one matter, the exercise of the jurisdiction is
another… A court will decline to exercise jurisdiction if there is available an
alternative forum more appropriate for deciding the dispute in question.”
90. The doctrine of forum non conveniens was also considered by the U.S. Supreme
Court in Gulf Oil Corporation v. Gilbert62 and it was held that the doctrine can never
apply in a case where there is absence of jurisdiction. The observations made in the
judgment in this regard are as follows:—
“The principle of forum non conveniens is simply that a court may resist
imposition upon its jurisdiction even where jurisdiction is authorised by the letter of
a general venue statute. These statutes are drawn with a necessary generality and
usually give a plaintiff a choice of courts, so that he may be quite sure of some
place in which to pursue his remedy. But the open door may admit those who seek
not simply justice but perhaps justice blended with some harassment. A plaintiff
sometimes is under temptation to resort to a strategy of forcing the trial at a most
inconvenient place for an adversary, even at some inconvenience to himself.”
91. The invocation of the jurisdiction of a High Court under Article 226 in a case
where cause of action wholly or in part had arisen within its territorial limits even
though the seat of the Government or authority or residence of a person against whom
the direction, order or writ was sought was not within the said territory was considered
in Om Prakash Srivastava v. Union of India63 and the order of the High Court refusing
to consider the writ petition merely by observing that though it may have jurisdiction
but another High Court may deal with the matter more effectively, was held to be not
a correct way to deal with the petition and the appeal was disposed of remitting the
matter to the High Court for fresh hearing on merits.
92. The expression “cause of action” in the context of clause (2) of Article 226 was
explained referring to Black's Law Dictionary, Stroud's Judicial Dictionary and
Halsbury's Laws of England (4th Edn.). Reference was also made to the decisions in Oil
and Natural Gas Commission v. Utpal Kumar Basu11 , Bloom Dekor Ltd. v. Subhash
Himatlal Desai64 , Sadanandan Bhadran v. Madhavan Sunil Kumar65 , South East Asia
Shipping Company Limited v. Nav Bharat Enterprises (P) Ltd.21 , Rajasthan High Court
Advocates’ Association v. Union of India25 , Gurdit Singh v. Munsha Singh66 ,
Navinchandra N. Majithia v. State of Maharashtra27 . The observations made in the case
of Om Prakash Srivastava (supra) in this regard are as follows:—
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“7. The question whether or not cause of action wholly or in part for filing a writ
petition has arisen within the territorial limits of any High Court has to be decided
in the light of the nature and character of the proceedings under Article 226 of the
Constitution. In order to maintain a writ petition, a writ petitioner has to establish
that a legal right claimed by him has prima facie either been infringed or is
threatened to be infringed by the respondent within the territorial limits of the
Court's jurisdiction and such infringement may take place by causing him actual
injury or threat thereof.
8. Two clauses of Article 226 of the Constitution on plain reading give clear
indication that the High Court can exercise power to issue direction, order or writs
for the enforcement of any of the fundamental rights conferred by Part III of the
Constitution or for any other purpose if the cause of action wholly or in part had
arisen within the territories in relation to which it exercises jurisdiction
notwithstanding that the seat of the Government or authority or the residence of
the person against whom the direction, order or writ is issued is not within the said
territories. (See ONGC v. Utpal Kumar Basu, 1994) 4 SCC 711).
9. By “cause of action” it is meant every fact, which, if traversed, it would be
Court. In other words, a bundle of facts, which it is necessary for the plaintiff to
prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal
Desai, (1994) 6 SCC 322).
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code,
1908) “cause of action” means every fact, which it is necessary to establish to
support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil
Kumar, (1998) 6 SCC 514 : 1998 SCC (Cri) 1471).
11. It is settled law that “cause of action” consists of a bundle of facts, which
give cause to enforce the legal inquiry for redress in a court of law. In other words,
it is a bundle of facts, which taken with the law applicable to them, gives the
plaintiff a right to claim relief against the defendant. It must include some act done
by the defendant since in the absence of such an act no cause of action would
possibly accrue or would arise. [See South East Asia Shipping Co. Ltd. v. Nav
Bharat Enterprises (P) Ltd., (1996) 3 SCC 443).
12. The expression “cause of action” has acquired a judicially settled meaning. In
the restricted sense “cause of action” means the circumstances forming the
infraction of the right or the immediate occasion for the reaction. In the wider
sense, it means the necessary conditions for the maintenance of the suit, including
not only the infraction of the right, but also the infraction coupled with the right
itself. Compendiously, as noted above, the expression means every fact, which it
would be necessary for the plaintiff to prove, if traversed, in order to support his
right to the judgment of the court. Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is necessary to prove each fact,
comprises in “cause of action”. (See Rajasthan High Court Advocates’ Assn. v.
Union of India, (2001) 2 SCC 294).
13. The expression “cause of action” has sometimes been employed to convey
the restricted idea of facts or circumstances which constitute either the
infringement or the basis of a right and no more. In a wider and more
comprehensive sense, it has been used to denote the whole bundle of material
facts, which a plaintiff must prove in order to succeed. These are all those essential
facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh
v. Munsha Singh, (1977) 1 SCC 791).
14. The expression “cause of action” is generally understood to mean a situation
or state of facts that entitles a party to maintain an action in a court or a tribunal; a
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group of operative facts giving rise to one or more bases of suing; a factual
situation that entitles one person to obtain a remedy in court from another person
(see Black's Law Dictionary). In Stroud's Judicial Dictionary a “cause of action” is
stated to be the entire set of facts that gives rise to an enforceable claim; the
phrase comprises every fact, which if traversed, the plaintiff must prove in order to
obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the
phrase “cause of action” in common legal parlance is existence of those facts, which
give a party a right to judicial interference on his behalf. (See Navinchandra N.
Majithia v. State of Maharashtra [(2000) 7 SCC 640 : 2001 SCC (Cri) 215).
15. In Halsbury's Laws of England (4th Edn.) it has been stated as follows:
“‘‘Cause of action’ has been defined as meaning simply a factual situation, the
existence of which entitles one person to obtain from the court a remedy against
another person. The phrase has been held from earliest time to include every fact
which is material to be proved to entitle the plaintiff to succeed, and every fact
which a defendant would have a right to traverse. ‘‘Cause of action’ has also
been taken to mean that a particular act on the part of the defendant which
gives the plaintiff his cause of complaint, or the subject-matter of grievance
founding the action, not merely the technical cause of action.”
93. The Supreme Court in the aforementioned case of Om Prakash Srivastava while
remitting the matter to the High Court made the following observations:—
“18. In the instant case the High Court has not dealt with the question as to
whether it had jurisdiction to deal with the writ petition. It only observed that the
Delhi High Court may have jurisdiction, but the issues relating to conditions of
prisoners in the State of U.P. can be more effectively dealt with by the Allahabad
High Court. As noted supra, there were two grievances by the appellant. But only
one of them i.e. the alleged lack of medical facilities has been referred to by the
High Court. It was open to the Delhi High Court to say that no part of the cause of
action arose within the territorial jurisdiction of the Delhi High Court. The High
Court in the impugned order does not say so. On the contrary, it says that
jurisdiction may be there, but the Allahabad High Court can deal with the matter
more effectively. That is not certainly a correct way to deal with the writ petition.
Accordingly, we set aside the impugned order of the High Court and remit the
matter to it for fresh hearing on merits…”
94. The law with regard to determination of the territorial jurisdiction of a High
Court again came to be analysed in Alchemist Limited v. State Bank of Sikkim67 , and
taking note of the amendment of Article 226 in the year 1963, wherein accrual of
cause of action had been made an additional ground to confer jurisdiction on the High
Court under Article 226, it was held, that after 1963, cause of action is relevant and
germane for determination of the jurisdiction of a High Court under Article 226 and
that a writ petition could now be instituted in the High Court within territorial
jurisdiction of which, cause of action, in whole or in part, arises.
95. Explaining the meaning of “cause of action”, it was further held, that, in a
particular case, whether facts averred by the writ petitioner constitute a part of cause
of action, has to be determined, on the basis of question whether such facts constitute
a material, essential or integral part of the cause of action, and in determining the said
question, the substance of the matter and not the form thereof has to be considered.
The observations made in the judgment are as follows:- “16. It may be stated that by
the Constitution (Forty-second Amendment) Act, 1976, Clause (1-A) was renumbered
as Clause (2). The underlying object of amendment was expressed in the following
words:
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The effect of the amendment was that the accrual of cause of action was made
an additional ground to confer jurisdiction on a High Court under Article 226 of the
Constitution.
17. As Joint Committee observed:
“This clause would enable the High Court within whose jurisdiction the cause of
action arises to issue directions, orders or writs to any Government, authority or
person, notwithstanding that the seat of such Government or authority or the
residence of such person is outside the territorial jurisdiction of the High Court. The
Committee feels that the High Court within whose jurisdiction the cause of action
arises in part only should also be vested with such jurisdiction.”
18. The legislative history of the constitutional provisions, therefore, makes it
clear that after 1963, cause of action is relevant and germane and a writ petition
can be instituted in a High Court within the territorial jurisdiction of which cause of
action in whole or in part arises.
19. The question for our consideration is as to whether the assertion of the
appellant is well founded that a part of cause of action can be said to have arisen
within the territorial jurisdiction of the High Court of Punjab and Haryana. Whereas,
the appellant Company submits that a part of cause of action had arisen within the
territorial jurisdiction of that Court, the respondents contend otherwise.
20. It may be stated that the expression “cause of action” has neither been
defined in the Constitution nor in the Code of Civil Procedure, 1908. It may,
however, be described as a bundle of essential facts necessary for the plaintiff to
prove before he can succeed. Failure to prove such facts would give the defendant a
right to judgment in his favour. Cause of action thus gives occasion for and forms
the foundation of the suit.
21. The classic definition of the expression “cause of action” is found in Cooke v.
Gill, (1873) 8 CP 107 wherein Lord Brett observed:
“‘‘Cause of action’ means every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment of
the court.”
22. For every action, there has to be a cause of action. If there is no cause of
action, the plaint or petition has to be dismissed.
23. Mr. Soli J. Sorabjee, Senior Advocate appearing for the appellant Company
placed strong reliance on A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC
163 and submitted that the High Court had committed an error of law and of
jurisdiction in holding that no part of cause of action could be said to have arisen
within the territorial jurisdiction of the High Court of Punjab and Haryana. He
particularly referred to the following observations: (SCC p. 170, para 12)
“12. A cause of action means every fact, which if traversed, it would be
court. In other words, it is a bundle of facts which taken with the law applicable to
them gives the plaintiff a right to relief against the defendant. It must include some
act done by the defendant since in the absence of such an act no cause of action
can possibly accrue. It is not limited to the actual infringement of the right sued on
but includes all the material facts on which it is founded. It does not comprise
evidence necessary to prove such facts, but every fact necessary for the plaintiff to
prove to enable him to obtain a decree. Everything which if not proved would give
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the defendant a right to immediate judgment must be part of the cause of action.
But it has no relation whatever to the defence which may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the
plaintiff.”
24. In our opinion, the High Court was wholly justified in upholding the
preliminary objection raised by the respondents and in dismissing the petition on
the ground of want of territorial jurisdiction.
25. The learned counsel for the respondents referred to several decisions of this
Court and submitted that whether a particular fact constitutes a cause of action or
not must be decided on the basis of the facts and circumstances of each case. In
our judgment, the test is whether a particular fact(s) is (are) of substance and can
be said to be material, integral or essential part of the lis between the parties. If it
is, it forms a part of cause of action. If it is not, it does not form a part of cause of
action. It is also well settled that in determining the question, the substance of the
matter and not the form thereof has to be considered.
26. In Union of India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646 the
registered office of the Company was situated at Ludhiana, but a petition was filed
in the High Court of Calcutta on the ground that the Company had its branch office
there. The order was challenged by the Union of India. And this Court held that
since the registered office of the Company was at Ludhiana and the principal
respondents against whom primary relief was sought were at New Delhi, one would
have expected the writ petitioner to approach either the High Court of Punjab and
Haryana or the High Court of Delhi. The forum chosen by the writ petitioners could
not be said to be in accordance with law and the High Court of Calcutta could not
have entertained the writ petition.
27. In State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 the Company
whose registered office was at Calcutta filed a petition in the High Court of Calcutta
challenging the notice issued by the Special Town Planning Officer, Jaipur for
acquisition of immovable property situated in Jaipur. Observing that the entire
cause of action arose within the territorial jurisdiction of the High Court of Rajasthan
at Jaipur Bench, the Supreme Court held that the High Court of Calcutta had no
territorial jurisdiction to entertain the writ petition.
28. This Court held that mere service of notice on the petitioner at Calcutta
under the Rajasthan Urban Improvement Act, 1959 could not give rise to a cause of
action unless such notice was “an integral part of the cause of action”.
29. In ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711 this Court held that when
the Head Office of ONGC was not located at Calcutta, nor the execution of contract
work was to be carried out in West Bengal, territorial jurisdiction cannot be
conferred on the High Court of Calcutta on the ground that an advertisement had
appeared in a daily (The Times of India), published from Calcutta, or the petitioner
submitted his bid from Calcutta, or subsequent representations were made from
Calcutta, or fax message as to the final decision taken by ONGC was received at
Calcutta inasmuch as neither of them would constitute an “integral part” of the
cause of action so as to confer territorial jurisdiction on the High Court of Calcutta
under Article 226(2) of the Constitution.
30. In CBI, Anti-Corruption Branch v. Narayan Diwakar, (1999) 4 SCC 656, A was
posted in Arunachal Pradesh. On receiving a wireless message through Chief
Secretary of the State asking him to appear before CBI Inspector in Bombay, A
moved the High Court of Guwahati for quashing FIR filed against him by CBI. An
objection was raised by the department that the High Court of Guwahati had no
territorial jurisdiction to entertain the writ petition. But it was turned down. The
Supreme Court, however, upheld the objection that Gauhati High Court could not
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have entertained the petition.
31. In Union of India v. Adani Exports Ltd., (2002) 1 SCC 567 a question of
territorial jurisdiction came up for consideration. A filed a petition under Article 226
of the Constitution in the High Court of Gujarat claiming benefit of the Passport
Scheme under the EXIM policy. Passport was issued by Chennai Office. Entries in
the passport were made by the authorities at Chennai. None of the respondents was
stationed within the State of Gujarat. It was, therefore, contended that the Gujarat
High Court had no territorial jurisdiction to entertain the petition. The contention,
however, was negatived and the petition was allowed. The respondents approached
the Supreme Court.
32. The judgment of the High Court was sought to be supported inter alia on the
grounds that (i) A was carrying on business at Ahmedabad; (ii) orders were
placed from and executed at Ahmedabad; (iii) documents were sent and
payment was made at Ahmedabad; (iv) credit of duty was claimed for export
handled from Ahmedabad; (v) denial of benefit adversely affected the petitioner
at Ahmedabad; (vi) A had furnished bank guarantee and executed a bond at
Ahmedabad, etc.
33. Allowing the appeal and setting aside the order of the High Court, the
Supreme Court held that none of the facts pleaded by A constituted a cause of
action.
“Facts which have no bearing with the lis or the dispute involved in the case,
do not give rise to a cause of action so as to confer territorial jurisdiction on the
court concerned.” (Adani Exports Ltd. case, (2002) 1 SCC 567, SCC pp. 573-74,
para 17.)
34. In Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 the
appellant was a Company registered under the Companies Act having its head office
at Mumbai. It obtained a loan from the Bhopal Branch of State Bank of India. The
Bank issued a notice for repayment of loan from Bhopal under the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002. The appellant Company filed a writ petition in the High Court of Delhi which
was dismissed on the ground of lack of territorial jurisdiction. The Company
approached this Court and contended that as the constitutionality of a
parliamentary legislation was questioned, the High Court of Delhi had the requisite
jurisdiction to entertain the writ petition.
35. Negativing the contention and upholding the order passed by the High Court,
this Court ruled that passing of a legislation by itself does not confer any such right
to file a writ petition in any court unless a cause of action arises therefor. The Court
stated: (Kusum Ingots case, (2004) 6 SCC 254, SCC p. 261, para 20)
“20. A distinction between a legislation and executive action should be borne
in mind while determining the said question.” Referring to ONGC, (1994) 4 SCC
711, it was held that all necessary facts must form an “integral part” of the cause
of action. The fact which is neither material nor essential nor integral part of the
cause of action would not constitute a part of cause of action within the meaning
of Clause (2) of Article 226 of the Constitution.
36. In National Textile Corpn. Ltd. v. Haribox Swalram, (2004) 9 SCC 786
referring to earlier cases, this Court stated that: (SCC p. 797, para 12.1)
“12.1. …the mere fact that the writ petitioner carries on business at Calcutta
or that the reply to the correspondence made by it was received at Calcutta is
not an integral part of the cause of action and, therefore, the Calcutta High Court
had no jurisdiction to entertain the writ petition and the view to the contrary
taken by the Division Bench cannot be sustained.”
37. From the aforesaid discussion and keeping in view the ratio laid down in a
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catena of decisions by this Court, it is clear that for the purpose of deciding whether
facts averred by the appellant-petitioner would or would not constitute a part of
cause of action, one has to consider whether such fact constitutes a material,
essential, or integral part of the cause of action. It is no doubt true that even if a
small fraction of the cause of action arises within the jurisdiction of the court, the
court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it
must be a “part of cause of action”, nothing less than that.”
96. An interesting question with regard to the territorial jurisdiction of the High
Court arose in Ambica Industries v. Commissioner of Central Excise26 , which was a
case where the appellant carried on business at Lucknow and was assessed at that
place whereafter the matter came up before the Customs Excise and Service Tax
Appellate Tribunal (CESTAT), New Delhi, which had been exercising territorial
jurisdiction over U.P., N.C.T. of Delhi and Maharashtra. An appeal came to be filed
subsequently under Section 35-G of the Central Excise Act, 1944, before the Delhi
High Court, which was turned down on the ground of territorial jurisdiction. In appeal,
before the Supreme Court, it was contended that the order of the first appellate court
being a decree, a second appeal would lie before the High Court to which it was
subordinate, and in view thereof the High Court had erred in arriving at the conclusion
that it had no territorial jurisdiction in the matter. On behalf of the Revenue, it was
urged that the situs of the assessing officer and not situs of the Tribunal would be the
determinative factor in that regard.
97. Dismissing the appeals, it was held, that CESTAT, New Delhi, was exercising
jurisdiction over three states. In all the three states, there are High Courts and in the
event the aggrieved person is treated to be the dominus litis, as a result whereof, he
elects to file the appeal before one or the other High Court, the decision of the High
Court shall be binding only on the authorities which are within its jurisdiction, and it
would only be of persuasive value on the authorities functioning under a different
jurisdiction, which may lead to a sort of judicial anarchy.
98. It was noted that in a particular case, an assessee, may invoke the jurisdiction
of a High Court of his choice to take advantage of the law laid down by it which might
suit him.
99. Furthermore, it was also taken note of that when an appeal is provided under a
statute, Parliament must have thought of one High Court. It is a different matter that
by way of necessity a Tribunal may have to exercise jurisdiction of over several States
but it does not appeal to any reason that Parliament intended, despite providing for an
appeal before the High Court, that appeals may be filed before different High Courts at
the sweet will of the party aggrieved by the decision of the Tribunal. It was therefore
held that in a case of this nature the “cause of action” doctrine may not be invoked.
100. In terms of Article 226(2), a High Court would have the power to issue a writ
of certiorari in respect of orders passed by subordinate courts within its territorial
jurisdiction or if any cause of action had arisen therewithin but the same tests could
not be applied when the appellate court exercises a jurisdiction over a tribunal
situated in more than one State. In such a situation, the High Court in the State where
the first court is located should be considered to be the appropriate appellate
authority.
101. The Hon'ble Bench held that doctrine of dominus litis and doctrine of situs of
the appellate tribunal do not go together inasmuch as dominus litis indicates that the
suitor has more than one option, whereas the situs of an appellate tribunal refers to
only one High Court wherein the appeal could be preferred. It was noticed that the
situs of a Tribunal may vary from time to time and the question whether its
jurisdiction would be extending to three States or more or less would depend upon the
executive order which may be issued. In such circumstances, determination of the
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jurisdiction of a High Court should be considered only on the basis of the statutory
provisions and not anything else. In case the cause of action doctrine was given effect
to, invariably more than one High Court may have jurisdiction, which would not be
contemplated.
102. The scope of Article 226(2) was again considered in Rajendran Chingaravelu v.
R.K. Mishra, Additional Commissioner of Income Tax68 and it was held that as per
clause (2) of Article 226 even if a small fraction of cause of action i.e. the bundle of
facts which gives the petitioner a right to sue accrued within the territories of the
State, the High Court of that State would have jurisdiction. The observations made in
the judgment are as follows:—
“9. The first question that arises for consideration is whether the Andhra Pradesh
High Court was justified in holding that as the seizure took place at Chennai (Tamil
Nadu), the appellant could not maintain the writ petition before it. The High Court
did not examine whether any part of cause of action arose in Andhra Pradesh.
Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in
relation to the territories within which the cause of action arises wholly or in part,
will have jurisdiction. This would mean that even if a small fraction of the cause of
action (that bundle of facts which gives a petitioner, a right to sue) accrued within
the territories of Andhra Pradesh, the High Court of that State will have jurisdiction.
In this case, the genesis for the entire episode of search, seizure and detention was
the action of the security/ intelligence officials at Hyderabad Airport (in Andhra
Pradesh) who having inspected the cash carried by him, alerted their counterparts
at the Chennai Airport that appellant was carrying a huge sum of money, and
required to be intercepted and questioned. A part of the cause of action therefore
clearly arose in Hyderabad. It is also to be noticed that the consequential income
tax proceedings against him, which he challenged in the writ petition, were also
initiated at Hyderabad. Therefore, his writ petition ought not to have been rejected
on the ground of want of jurisdiction.”
103. The parameters for invocation of jurisdiction of High Court under Article 226
against an authority or person residing outside its territorial jurisdiction in a case
where a cause of action wholly or partly arises within the territorial jurisdiction of a
High Court was considered in the case of Nawal Kishore Sharma v. Union of India5 and
referring to the provisions of clause (2) the Court held that it was clear that the High
Court can issue a writ where a person or authority against whom the writ is issued is
located outside its territorial jurisdiction, if the cause of action wholly or partially arises
within the Court's territorial jurisdiction.
104. The expression “cause of action” for the purpose of Article 226(2), for all
intents and purposes, was held to have the same meaning as envisaged under Section
20(c) CPC. The observations made in the judgment in the case of Nawal Kishore
Sharma are as follows:—
“9. …On a plain reading of the amended provisions in clause (2), it is clear that
now the High Court can issue a writ when the person or the authority against whom
the writ is issued is located outside its territorial jurisdiction, if the cause of action
wholly or partially arises within the court's territorial jurisdiction. Cause of action for
the purpose of Article 226(2) of the Constitution, for all intent and purpose must be
assigned the same meaning as envisaged under Section 20(c) of the Code of Civil
Procedure. The expression cause of action has not been defined either in the Code
of Civil Procedure or the Constitution. Cause of action is bundle of facts which is
necessary for the plaintiff to prove in the suit before he can succeed. The term
“cause of action” as appearing in clause (2) came up for consideration time and
again before this Court.
10. In State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217, the fact was
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that the respondent Company having its registered office in Calcutta owned certain
land on the outskirts of Jaipur City, was served with notice for acquisition of land
under the Rajasthan Urban Improvement Act, 1959. Notice was duly served on the
Company at its registered office in Calcutta. The Company, first appeared before the
Special Court and finally the Calcutta High Court by filing a writ petition challenging
the notification of acquisition. The matter ultimately came before this Court to
answer a question as to whether the service of notice under Section 52(2) of the
Act at the registered office of the respondent in Calcutta was an integral part of
cause of action and was it sufficient to invest the Calcutta High Court with a
jurisdiction to entertain the petition challenging the impugned notification.
Answering the question this Court held: (Swaika Properties case, SCC pp. 222-23,
paras 7-8)
“7. Upon these facts, we are satisfied that the cause of action neither wholly
nor in part arose within the territorial limits of the Calcutta High Court and
therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the
petition filed by the respondents under Article 226 of the Constitution or to make
the ad interim ex parte prohibitory order restraining the appellants from taking
any steps to take possession of the land acquired. Under sub-section (5) of
Section 52 of the Act the appellants were entitled to require the respondents to
surrender or deliver possession of the lands acquired forthwith and upon their
failure to do so, take immediate steps to secure such possession under sub-
section (6) thereof.
8. The expression ‘‘cause of action’ is tersely defined in Mulla's Code of Civil
Procedure:
‘‘The “cause of action” means every fact which, if traversed, it would be
necessary for the plaintiff to prove in order to support his right to a judgment of
the court.’
In other words, it is a bundle of facts which taken with the law applicable to
them gives the plaintiff a right to relief against the defendant. The mere service of
notice under Section 52(2) of the Act on the respondents at their registered office
at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of
West Bengal, could not give rise to a cause of action within that territory unless the
service of such notice was an integral part of the cause of action. The entire cause
of action culminating in the acquisition of the land under Section 52(1) of the Act
arose within the State of Rajasthan i.e. within the territorial jurisdiction of the
Rajasthan High Court at the Jaipur Bench. The answer to the question whether
service of notice is an integral part of the cause of action within the meaning of
Article 226(2) of the Constitution must depend upon the nature of the impugned
order giving rise to a cause of action. The Notification dated 8-2-1984 issued by the
State Government under Section 52(1) of the Act became effective the moment it
was published in the Official Gazette as thereupon the notified land became vested
in the State Government free from all encumbrances. It was not necessary for the
respondents to plead the service of notice on them by the Special Officer, Town
Planning Department, Jaipur under Section 52(2) for the grant of an appropriate
writ, direction or order under Article 226 of the Constitution for quashing the
notification issued by the State Government under Section 52(1) of the Act. If the
respondents felt aggrieved by the acquisition of their lands situate at Jaipur and
wanted to challenge the validity of the notification issued by the State Government
of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the
Constitution, the remedy of the respondents for the grant of such relief had to be
sought by filing such a petition before the Rajasthan High Court, Jaipur Bench,
where the cause of action wholly or in part arose.”
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11. This provision was again considered by this Court in Oil and Natural Gas
Commission v. Utpal Kumar Basu, (1994) 4 SCC 711. In this case the petitioner Oil
and Natural Gas Commission (ONGC) through its consultant Engineers India Limited
(EIL) issued an advertisement in the newspaper inviting tenders for setting up of
Kerosene Recovery Processing Unit in Gujarat mentioning that the tenders
containing offers were to be communicated to EIL, New Delhi. After the final
decision was taken by the Steering Committee at New Delhi, the respondent Nicco
moved the Calcutta High Court praying that ONGC be restrained from awarding the
contract to any other party. It was pleaded in the petition that Nicco came to know
of the tender from the publication in the Times of India within the jurisdiction of the
Calcutta High Court. This Court by setting aside the order passed by the Calcutta
High Court came to the following conclusion: (Utpal Kumar Basu case, SCC p. 717,
para 6)
“6. Therefore, in determining the objection of lack of territorial jurisdiction the
court must take all the facts pleaded in support of the cause of action into
consideration albeit without embarking upon an enquiry as to the correctness or
otherwise of the said facts. In other words the question whether a High Court has
territorial jurisdiction to entertain a writ petition must be answered on the basis of
the averments made in the petition, the truth or otherwise whereof being
immaterial. To put it differently, the question of territorial jurisdiction must be
decided on the facts pleaded in the petition. Therefore, the question whether in the
instant case the Calcutta High Court had jurisdiction to entertain and decide the
writ petition in question even on the facts alleged must depend upon whether the
averments made in paras 5, 7, 18, 22, 26 and 43 are sufficient in law to establish
that a part of the cause of action had arisen within the jurisdiction of the Calcutta
High Court.”
105. Referring to the judgment in the case of Kusum Ingots, Adani Exports Ltd.,
Om Prakash Srivastava and Rajendran Chingravelu (supra) the Court held that there
cannot be any doubt that a question whether or not cause of action wholly or in part
for filing a writ petition has arisen within the territorial limits of any High Court has to
be decided in the light of the nature and character of the proceedings under Article
226 of the Constitution.
106. Having regard to the foregoing discussion we may proceed to restate the
position of law with regard to the scope of territorial jurisdiction of High Courts under
Article 226, as interpreted in terms of judicial precedents.
107. Article 226, as we have already noticed, from its inception, clearly reflected
the object of makers of the Constitution to confer wide powers on the High Courts in
issuing directions or writs for the enforcement of fundamental rights and also the
power to issue directions for any other purpose. Having decided to provide certain
basic safeguards for the people under the new set up post the enforcement of the
Constitution, it was thought necessary to provide a quick and inexpensive remedy for
the enforcement of such rights, and, finding that prerogative writs, which the Courts in
England had developed and used whenever urgent necessity demanded immediate
and decisive interposition, were suited for the purpose, the High Courts, were
conferred with wide powers of issuing directions, orders or writs primarily for the
enforcement of fundamental rights. In addition, the power to issue such directions “for
any other purpose” was also included.
108. Article 226 confers extraordinary jurisdiction on the High Court to issue
prerogative writs for enforcement of fundamental rights or for any other purpose. The
jurisdiction, though is to be based on discretion and equitable considerations, is wide
and expansive with no fetters having been placed on the exercise of this extraordinary
jurisdiction.
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109. The language of Article 226 is couched in a comprehensive phraseology and it
ex facie confers a wide power on the High Courts to reach injustice wherever it is
found.
110. The nature of the power, its purpose and the person or authorities against
whom it can be exercised, has been described in a language which gives to the High
Court wide amplitude of powers.
111. The powers conferred on a High Court to issue prerogative writs, as
understood in England, has been widened by using the expression “in the nature of”,
which indicates that the writs that can be issued by our High Courts, only draw
analogy from the kind in England but the powers in this regard have a wider expanse.
112. Article 226(1) grants to the High Courts powers to issue directions, orders,
writs, which would include writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari. This clearly shows that the powers of the High
Courts to issue directions, orders or writs, would be inclusive of writs in the nature of
prerogative writs, as understood in England. The conferment of the powers upon the
High Courts to issue writs may thus be seen to be drawing an analogy from the powers
as in England but the use of the phraseology including writs “in the nature of” does
not stop at merely equating the powers with those in England but goes beyond giving
it a wider expanse. This is clearly with a view to enable the High Courts to mould the
reliefs to meet the complex ground realities of our country.
113. The jurisdiction conferred on the High Courts under Article 226, as it originally
stood, was very wide with only two limitations placed upon the exercise of these
powers : (i) that the power is to be exercised throughout the territories in relation to
which it exercises jurisdiction, i.e., the writs issued by the Court cannot run beyond
the territories subject to its jurisdiction; (ii) that the person or authority to whom the
High Court is empowered to issue the writs must be within those territories, and as an
implication they must be amenable to the jurisdiction of the Court either by residence
or location within those territories.
114. The concept of cause of action as a basis for exercise of jurisdiction was not
provided for under Article 226, as it originally stood, as it did not contain any reference
to the accrual of cause of action or to the jurisdiction of the High Court depending on
the place where the cause of action accrues being within its territorial jurisdiction. The
concept of cause of action being not included in the express provision contained under
Article 226 which requires that the person or authority to whom the writ is to be
issued should be resident in or located within the territories over which the High Court
had jurisdiction the possibilities of the resultant inconvenience to persons residing far
away from New Delhi who could be aggrieved by some order of the Government of
India was judicially noticed keeping in view the wide amplitude of power conferred
upon a High Court under Article 226 which is not confined only to issuing of writs in
the nature of prerogative writs but also including within its ambit the powers to issue
directions or orders against any person or authority including in appropriate cases any
Government.
115. The use of the words “any Government” indicated the intent of framers of the
Constitution to include the Union Government also. The Union Government having no
situs in a particular place is deemed to have functional existence throughout the
country and when in exercise of its power the Union Government passes an order
infringing the legal right or interest of a person residing within the territories in
relation to which a particular High Court exercises jurisdiction, it would reasonably be
expected of the High Court to issue a writ to the Union Government, for in law, it must
be deemed to be within that State also.
116. The hardship faced by the litigants from distant places in regard to invoking
writ jurisdiction against the Central Government, resulted in amendment of the
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provision by the Constitution (Fifteenth) Amendment Act, 1963, in terms whereof,
after clause (1), clause (1-A) was inserted in Article 226 (renumbered as clause (2) by
the Constitution (Forty- second) Amendment Act, 1976).
117. The Constitution (Fifteenth) Amendment came into force on October 5, 1963
with the effect that it made the accrual of cause of action an additional ground to
confer jurisdiction to a High Court under Article 226. The amended clause now enabled
the High Court within whose jurisdiction the cause of action arises to issue directions,
orders or writs to any Government, authority or person, notwithstanding that the seat
of such government or authority or the residence of such person is outside the
territorial jurisdiction of the High Court.
118. The legal position after insertion of clause (1-A), subsequently renumbered as
clause (2), is that a writ can be issued by a High Court against a person, Government
or authority residing within the jurisdiction of that High Court, or within whose
jurisdiction the cause of action in whole or in part arises.
119. The amended clause did not confer any new jurisdiction on High Court but
provides an additional ground which extends its jurisdiction beyond the boundaries of
the State if the cause of action arises within its territory. The amendment is thus
procedural without affecting any substantive rights of the parties.
120. Consequent to the (Fifteenth) Amendment to the Constitution, the power
conferred on the High Courts under Article 226 can as well be exercised by any High
Court having jurisdiction in relation to the territories within which “the cause of action,
wholly or in part, arises” and it would not matter that the seat of the authority
concerned is outside the territorial limits of the jurisdiction of the High Court. The aim
of the Amendment is clearly to widen the width of the reach of the writs issued by the
High Courts.
121. The only difference made by the Constitution (Fifteenth) Amendment is that
the location of the seat of Government or authority or residence of a person to whom
the writ is to be issued is not to be the sole criteria for conferring jurisdiction and writs
may also issue to Governments, authorities or persons outside the territory of a High
Court provided the cause of action, in whole or in part, arises within the limits of its
territorial jurisdiction.
122. The change consequent to the amendment is that location is not the sole
criteria and place of cause of action may also confer jurisdiction. It cannot, however,
be construed that place of cause of action alone would confer territorial jurisdiction. If
it were to be so, it would lead to an inference that Article 226(2) is not in extension of
powers under Article 226(1) but in annihilation thereof, which certainly was not the
intent of the Constitutional Amendment.
123. We may at this juncture again refer to the Statement of Objects and Reasons
of the Constitution (Fifteenth) Amendment, which reads as follows:—
(emphasis supplied)
124. The use of the words “only” and “may also” shows that the object was not to
take away the jurisdiction of the High Courts which they had prior to the (Fifteenth)
Amendment but to enable other High Courts to also have jurisdiction provided the
cause of action, in whole or in part, arose within their territorial jurisdiction. Article
226(2) is to be seen as an extension of or in addition to the jurisdiction conferred
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under Article 226(1).
125. We are fortified in taking this view by the observations made in the treatise
Constitutional Law of India by H.M. Seervai69, wherein the effect of the (Fifteenth)
Amendment has been stated in the following words:—
“16.251. The newly-added sub-Art. (1A) to Art. 226 introduces an additional
basis of jurisdiction, namely, the whole or in part of a cause of action arising within
the jurisdiction of a court. This is clear from the use of the words, “The power
conferred by Clause (1) … may also be exercised…” Therefore jurisdiction to issue
writs can be exercised (i) by a court within whose jurisdiction a person or authority
(including, in appropriate cases, any Govt.) resides or is located, and (ii) also by a
court within whose jurisdiction the cause of action wholly or in part arises,
notwithstanding that the seat of such Govt. or authority or the residence of such
person is not within those territories.”
126. Although in view of Section 141 CPC the provisions under the Code thereof
would not apply to the writ proceedings, the phraseology used in Section 20(c) CPC
and clause (2) of Article 226, being in pari materia, the principles with regard to
interpretation of Section 20(c) CPC shall apply to writ proceedings also, and keeping in
view the use of the expression “cause of action” in Article 226(2), even if a fraction of
the cause of action accrues within the jurisdiction of the Court, the Court would have
jurisdiction in the matter though the doctrine of forum conveniens may also have to be
considered.
127. We may, however, take notice that in contra distinction to the provisions in
Sections 16 to 20 of CPC, under Article 226(2) the invocation of the territorial
jurisdiction is restricted to the existence of a “cause of action”, which expression would
include part or entire cause of action. The cause of action, or any part thereof, even in
its minutest form, is therefore necessary for invocation of the jurisdiction under Article
226. If the element of the cause of action, or any part thereof is absent, the Court may
not have territorial jurisdiction, solely on the basis of the residence of the party. In
terms of Section 20 CPC, a suit could be instituted in a Court within the local limits of
whose jurisdiction, the defendant, or each of the defendants, actually and voluntarily
resides, or where the cause of action, wholly or in part arises. The two factors i.e., the
place of residence of the defendant(s) and the place where the cause of action, wholly
or in part arises, therefore, independently, give a right to the party to institute a suit
in the Court of competent jurisdiction.
128. The provisions of CpC do not strictly apply to writ proceedings and only the
principles therein may be held to be applicable. Section 20 of CPC which specifies
different contingencies whereunder jurisdiction is vested in the Court would, therefore,
stricto sensu not be applicable for the purposes of invocation of the territorial
jurisdiction under Article 226.
129. Article 226 confers upon the High Court power to issue writs to any person or
authority or any Government, within its territorial jurisdiction, and with the insertion of
clause (1-A) subsequently renumbered as clause (2), the said power may also be
exercised in relation to the territories within which the cause of action, wholly or in
part has arisen, notwithstanding that seat of such Government or authority or
residence of such person is not within those territories. The use of non-obstante clause
under clause (2) clearly manifests that residence of the party is not a relevant
consideration for determining the territorial jurisdiction under Article 226.
130. The relief sought by the writ petitioner, though would be one of the relevant
criteria for consideration, but not the sole consideration in this regard. The
maintainability, or otherwise, of a writ petition in a High Court would depend on
whether the cause of action for filing the same arose, wholly or in part, within the
territorial jurisdiction of that Court. The High Court would have jurisdiction if any part
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of cause of action arises within the territorial limits of its jurisdiction even though the
seat of the Government or authority or residence of person against whom direction,
order or writ is sought to be issued is not within the said territory.
131. The expression “cause of action” has been understood to be a bundle of facts
which are required to be proved. The entire bundle of facts pleaded, however, need not
constitute a cause of action as what would be necessary to be proved would be the
material facts on the basis of which a writ petition can be allowed. It may also be
considered as a bundle of essential facts, which it is necessary for the plaintiff to prove
before he can succeed. The Court would be required to take into consideration all the
facts pleaded in support of the cause of action without embarking upon an enquiry as
to the correctness or otherwise of the said facts. The facts as pleaded in the petition
may be considered, truth or otherwise whereof being immaterial.
132. In legal parlance the expression “cause of action” is generally understood to
mean a situation or state of facts that entitles a party to maintain an action in a Court
or a Tribunal; a group of operative facts giving rise to one or more bases for suing; a
factual situation that entitles one person to obtain the remedy in Court from another
person.
133. The meaning of the expression “cause of action” as distinct from “right of
action”, as evolved in terms of the precedents, would go to show that a right of action
is a remedial right affording a redress for the infringement of a legal right and a right
of action arises as soon as there is an invasion of rights whereas a cause of action
would refer to the set of operative facts giving rise to such right of action. A person
residing anywhere in the country being aggrieved by an order of the Government
(Central or State), or authority or person may have a right of action at law but the
same can be enforced by invoking the jurisdiction under Article 226 of only that High
Court, within whose territorial limits the cause of action wholly or in part arises.
134. The “right of action” being the right to commence and maintain an action is
therefore distinguishable from “cause of action” in that the former is a remedial right
while the latter would comprise the operative facts giving rise to such remedial right.
The former would be a matter of right and would depend upon the substantive law
whereas the latter would be governed by the law of procedure.
135. It is, therefore, seen that a “cause of action” is the fact or corroboration of
facts which affords a party right to judicial interference on his behalf. The “cause of
action” would be seen to comprise: (i) the plaintiff's primary right and the defendant's
corresponding primary duty; and (ii) the delict or wrongful act or omission of the
defendant, by which the primary right and duty have been violated. The term “right of
action” is the right to commence and maintain action or in other words the right to
enforce a cause of action. In the law of pleadings, “right of action” can be
distinguished from “cause of action” in that the former is a remedial right while the
latter would comprise the operative facts giving rise to such remedial right. The former
would be a matter of right and depend on the substantive law while the latter would
refer to the bundle of operative facts and would be governed by the law of procedure.
136. A right of action, may therefore, be said to have arisen upon the invasion of
primary rights of the person residing anywhere in the country being aggrieved by an
act or omission of the Government or authority or a person, but in order to enforce the
same, the jurisdiction under Article 226 of the Constitution of only that High Court can
be invoked, within whose territorial jurisdiction, on the basis of the bundle of facts, the
cause of action can be said to have arisen wholly or in part.
137. The question as to whether any particular facts constitute a cause of action or
not has thus to be determined with reference to the facts of each case taking into
consideration the substance of the matter rather than the form of action. The cause of
action must be antecedent to the institution of the proceedings and before a petition
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can be entertained the petitioner would be required to demonstrate that one of the
essential facts giving rise to the petition has arisen within the territorial jurisdiction of
the High Court.
138. The powers to issue directions, orders or writs to any government, authority or
person, may be exercised, as per terms of clause (2) of Article 226, by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
“wholly or in part”, arises. This exercise of power, may be made notwithstanding that
the seat of such government or authority or residence of such person is not within
those territories.
139. In determining the objection of lack of territorial jurisdiction, the Court must,
therefore, take all the facts pleaded in support of the cause of action into consideration
without embarking upon an enquiry as to the correctness or otherwise of the said
facts. The question of territorial jurisdiction thus must be decided on the facts pleaded
in the petition, the truth or otherwise, whereof being immaterial.
140. It may, however, be added as a caveat that if from the averments of the
petition, as they are, no part of cause of action can be held to have arisen within the
jurisdiction of a High Court, that High Court cannot assume territorial jurisdiction on
the ground of residence of the petitioner or the like.
141. The expression “in part” has been held to be comprehensive and includes
within its ambit even an infinitesimal fraction of cause of action. The expression
“wholly or in part” used under clause (2) of Article 226 would therefore be referable
entirely to the facts stated and the grounds set forth in the petition as the cause of
action has no relation to the defence set up or the objection raised by the opposite
party.
142. In order to invest the High Court with jurisdiction to entertain a petition under
Article 226, the transaction in question must be an integral part of the cause of action
which must arise within its territorial jurisdiction, and would depend upon the facts of
the case and the nature of the order impugned giving rise to the cause of action.
143. Notice may also be had to the fact that Article 226(1) begins with a non-
obstante clause and in terms thereof every High Court shall have power “throughout
the territories in relation to which it exercises jurisdiction”, to issue to any person or
authority, including in appropriate cases, any Government, “within those territories”
directions, orders or writs, for the enforcement of any other rights conferred by Part III
or for any other purpose. In terms of clause (2) of Article 226 the power conferred by
clause (1) may be exercised by the High Court if the cause of action, wholly or in part,
had arisen within the territory over which it exercises jurisdiction, notwithstanding
that the seat of such Government or authority or the residence of such person is not
within those territories.
144. A plain reading of the two clauses of Article 226 makes it clear that a High
Court can exercise the power to issue directions, orders or writs for the enforcement of
any of the fundamental rights conferred by Part III of the Constitution or for any other
purpose if the cause of action, wholly or in part, had arisen within the territories in
relation to which it exercises jurisdiction, notwithstanding that the seat of the
Government or authority or the residence of the person against whom the direction,
order or writ is issued is not within the said territories.
145. Article 226(1) states that every High Court shall have power, throughout the
territorial jurisdiction in relation to which it exercises jurisdiction, to issue directions,
orders or writs to any person or authority, including in appropriate cases, any
Government, within those territories. The powers so conferred under Article 226(1)
have been further amplified with the insertion of clause (1-A), subsequently
renumbered as clause (2), which provides that the powers conferred under clause (1)
may also be exercised by the High Court exercising jurisdiction in relation to the
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territories within which the cause of action, wholly or in part, arises for the exercise of
such powers, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories. It provides an expansion to the
normal rule of the respondent being sued at his place of residence by providing for
exercise of jurisdiction “notwithstanding that the seat of such Government or authority
or the residence of such person is not within those territories”. The non-obstante
clause appearing under clause (2) thus enlarges the scope of jurisdiction which is
primarily founded on the ground of cause of action.
146. We may therefore observe that Article 226(1) provides the source of power of
the High Court as well as its territorial jurisdiction, whereas Article 226(2) amplifies
the jurisdiction in relation to a cause of action by providing that the territorial
jurisdiction would be exercisable in relation to the territories within which the cause of
action, arises, wholly or in part. The cause of action would include material and
integral facts and accrual of even a fraction of cause of action within the jurisdiction of
the Court would provide territorial jurisdiction for entertaining the petition.
147. The territorial jurisdiction is to be decided on the facts pleaded in the petition
and in determining the objection of lack of territorial jurisdiction the Court would be
required to take into consideration all the facts pleaded in support of the cause of
action without embarking upon an enquiry as to the correctness or otherwise of the
said facts. The question whether a High Court has territorial jurisdiction to entertain a
writ petition is to be answered on the basis of the averments made in the petition, the
truth or otherwise, whereof being immaterial. The expression “cause of action”, for the
purpose of Article 226(2), is to be assigned the same meaning as under Section 20(c)
CPC, and would mean a bundle of facts which are required to be proved. However, the
entire bundle of facts pleaded, need not constitute a cause of action as what is
necessary to be proved are material facts on the basis of which a writ petition can be
allowed.
148. In order to confer jurisdiction on the High Court to entertain a writ petition,
the Court must be satisfied from the entire facts pleaded in support of the cause of
action that those facts constitute a cause so as to empower the Court to decide a
dispute which has, at least in part, arisen within its jurisdiction. Each and every fact
pleaded in the application may not ipso facto lead to the conclusion that those facts
give rise to a cause of action within the Court's territorial jurisdiction unless those
facts are such which have a nexus or relevance with the lis that is involved in the case.
Facts, which have no bearing with the lis or the dispute involved in the case would not
give rise to a “cause of action” so as to confer territorial jurisdiction on the Court
concerned, and only those facts which give rise to a cause of action within a Court's
territorial jurisdiction which have a nexus or relevance with the lis that is involved in
that case, would be relevant for the purpose of invoking the Court's territorial
jurisdiction, in the context of clause (2) of Article 226.
149. The situs of the office of the respondent would not be relevant for the
purposes of territorial jurisdiction in the context of Article 226(2), and a place where
appellate or revisional order is passed may give rise to a part of the cause of action
although the original order was made at a place outside the said area, and a writ
petition would be maintainable in the High Court within whose jurisdiction it is situate,
having regard to the fact that the order of the appellate authority may also be required
to be set aside since the order of the original authority has merged with that of the
appellate authority. In such cases, where a part of a cause of action arises within one
or the other High Court, it would be for the litigant who is the dominus litis to have his
forum conveniens. In such cases, it would not be wholly correct to say that the litigant
chooses a particular Court; the choice, would be by reason of the jurisdiction of the
Court being attracted by part of cause of action arising within the jurisdiction of that
Court, and it would ultimately be upon the Court to find out in each case whether the
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jurisdiction of the Court is rightly attracted by the alleged cause of action.

150. The doctrine of forum conveniens can be invoked only where the Court having
jurisdiction decides not to exercise jurisdiction by invoking the doctrine forum
conveniens. The invocation of doctrine of forum conveniens or forum non conveniens
pre-supposes that the Court refusing to entertain a case on the basis of this doctrine,
otherwise has jurisdiction. The argument of forum non conveniens cannot be raised in
conjunction with the argument of lack of jurisdiction or forum non competens. The
doctrine would be available only in a case where although the Court has jurisdiction
but an adequate alternative forum is also available.
151. It may also be added that where a small fraction of cause of action accrues
within the jurisdiction of a Court, although it may have jurisdiction in the matter, but
the same by itself may not be considered to be a determinative factor compelling the
Court to decide the matter on merits and in appropriate cases the Court may refuse to
exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
152. The question whether or not cause of action, wholly or in part, has arisen
within the territorial limits of any High Court is to be decided in the light of the nature
and character of the proceedings and in order to maintain the writ petition, the
petitioner would be required to establish that the legal right claimed by him has prima
facie either been infringed or is threatened to be infringed by the respondent within
the territorial limits of the Court's jurisdiction causing him actual injury or threat
thereof.
153. The accrual of cause of action having been made an additional ground to
confer jurisdiction on the High Court after the Constitution (Fifteenth) Amendment,
cause of action would be a relevant and germane factor for determination of the
jurisdiction of a High Court under Article 226 and a writ petition can be instituted in a
High Court, within territorial jurisdiction of which, cause of action, in whole or in part,
arises.
154. As to whether the facts averred by the writ petitioner, in a particular case,
constitute a part of cause of action, has to be determined, on the basis of the test
whether such facts constitute a material, essential or integral part of the lis between
the parties; if it is, it forms a part of cause of action and if it is not, it does not form a
part of cause of action. In determining the said question the substance of the matter
and not the form thereof has to be considered, and even if a small fraction of cause of
action arises within the jurisdiction of the Court, it would have territorial jurisdiction to
entertain the petition.
155. In dealing with the cases relating to forces operating under special statutes,
as is the case from which the present reference has arisen which pertains to the
C.R.P.F. Act, we may take notice of the fact that these special statutes have an inbuilt
provision for filing statutory appeals/revisions and representations. In the event the
statutory appellate/revisional authority is located beyond the territorial jurisdiction of
the Court and the petitioner has availed such remedies, the jurisdiction of the Court
cannot be invoked on the ground that the head office of the department is located
within the jurisdiction of the Court. From a practical stand point also, this would be a
more acceptable view for the reason that records of all the authorities whose
jurisdiction might have been invoked during the pendency of departmental
proceedings would be available at the offices of the authorities, which would be
beyond the territorial limits of the Court.
156. The intent of the Parliament to grant territorial jurisdiction to the High Court
within whose jurisdiction the entire or part of cause of action has arisen may be seen
to have a nexus to the expeditious disposal of the proceedings. The exercise of
jurisdiction under Article 226 would, in our view, take within its ambit remedies which
are effective and efficacious.
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157. Keeping in mind the objective of expeditious disposal of the proceedings and
the need to balance the convenience between the parties to the lis it may be
appropriate for the Courts to determine the question of jurisdiction at the very
threshold. The doctrine of forum conveniens may be considered while determining the
issue of jurisdiction. The petitioner no doubt is the dominus litis but the rights in this
regard would be subject to the law of jurisdiction. In a case where the necessary
ingredients of the territorial jurisdiction are not satisfied the Court may not assume
jurisdiction merely on the ground of the residence. The doctrine of forum conveniens
and forum non conveniens would be a relevant factor for the Court to examine whether
the claim should or should not be entertained for the reason that there is another
forum which is more appropriate. This doctrine would, however, not be the
determinative factor and in a case where no fraction or even an infinitesimal part of
the cause of action as arisen within its territorial limits the jurisdiction of the Court
may not be invoked.
158. The aforementioned propositions broadly set out the contours with regard to
the position of law in respect of the territorial jurisdiction of the High Courts under
Article 226 of the Constitution of India. We may add that though an attempt has been
made to cover the expanse of the precedents which are available, the discussion in the
preceding paragraphs, is by no means exhaustive, in view of wide expanse of the
scope and the varying interpretations rendered by the Courts keeping in view the
complexities which arise in the interpretation of the scope of the writ jurisdiction of the
High Courts.
159. We may now come back to the question referred to this Bench, which is in the
following terms:—
“whether the observations of the Supreme Court in the case of Nawal Kishore
Sharma (supra) in paragraph 17 can be said to be a binding precedent on this
Court to entertain the above writ petitions or whether the observations of paragraph
17 were in the peculiar facts and circumstances of the case of Nawal Kishore
Sharma (supra) in view of paragraphs 18 and 19 of the said judgment?
OR
In the alternative whether the judgment of the Full Bench in Rajendra Kumar
Mishra (supra) and Constable Lalji Pandey (supra) can be said to still lay down the
correct law in view of the judgment of the Supreme Court in Nawal Kishore Sharma
(supra)?”
160. Insofar as the question regarding the observations made in paragraph 17 of
the judgment in the case of Nawal Kishore Sharma, we may state that a judgment is
required to be read in its entirety in order to understand the facts on which the
decision was given and to appreciate the ratio of the judgment and the law laid down.
161. In the case of Nawal Kishore Sharma, the question which had fallen for
consideration before the Supreme Court was as to whether in the facts of the case, the
High Court was correct in taking the view that it had no jurisdiction to entertain the
writ petition.
162. While considering the aforesaid question, the Court noticed the provisions
under clause (1-A) inserted in Article 226 by the Constitution (Fifteenth) Amendment
Act, 1963, subsequently renumbered as clause (2) by the Constitution (Forty- second)
Amendment Act, 1976, and held that on a plain reading of the amended provisions in
clause (2), it was clear that the High Court could now issue a writ when the person or
the authority against whom the writ is issued is located outside its territorial
jurisdiction, if the cause of action wholly or partially arises within the Court's territorial
jurisdiction. It was stated that cause of action for the purpose of Article 226(2), for all
intent and purpose must be assigned the same meaning as envisaged under Section
20(c) of the CPC. It was also taken note of that the expression “cause of action”
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having not been defined either in the Code of Civil Procedure or the Constitution, the
same would be referable to a bundle of facts which is necessary for the plaintiff to
prove in the suit before he can succeed.
163. Referring to the decisions on the point it was observed that in order to confer
jurisdiction on a High Court to entertain a writ petition it must disclose that the
integral facts pleaded in support of the cause of action do constitute a cause so as to
empower the Court to decide the dispute and the entire or part of it arose within its
jurisdiction. It was also taken note of that each and every fact pleaded by the
respondents in their application does not ipso facto lead to the conclusion that those
facts give rise to a cause of action within the Court's territorial jurisdiction unless
those facts are such which have a nexus or relevance with the lis involved in the case.
164. The Supreme Court in the judgment of Nawal Kishore Sharma, upon an
extensive discussion based on the earlier precedents, held that there could not be any
doubt that the question whether or not cause of action wholly or in part for filing the
writ petition has arisen within the territorial limit of any High Court has to be decided
in the light of the nature and character of the proceedings under Article 226 of the
Constitution, and in order to maintain a writ petition the petitioner has to establish
that a legal right claimed by him has been infringed by the respondents within the
territorial limit of the Court's jurisdiction. It was thereafter that the judgment, in
paragraph 17, refers to the facts of the case, and records its conclusion that upon a
consideration of all the facts together, a part of fraction of cause of action had arisen
within the jurisdiction of the High Court in question.
165. It is therefore seen that though the observations made in the judgment in the
case of Nawal Kishore Sharma, in paragraph 17, were on the facts of the case, the
ratio of the judgment and the law laid down, is to be culled out upon reading the
judgment in its entirety, and the observations made in its paragraphs, which we have
referred to above.
166. As regards the alternative question posed in the referring order as to whether
the judgment of the Full Bench in Rajendra Kumar Mishra and the judgment in the
Constable Lalji Pandey can be said to still lay down the correct law in view of the
judgment of the Supreme Court in Nawal Kishore Sharma, we may take notice of the
fact that the question considered by the Full Bench was as to whether the Court had
jurisdiction to decide the petition at hand, and based on the facts of the case, it had
expressed a view that since no part of the cause of action in the case had arisen in
State of Uttar Pradesh the writ petition was not maintainable before the Court.
167. As we have noticed earlier, the judgment in the case of Constable Lalji Pandey
was in respect of a Constable in the Central Reserve Police Force posted at Hyderabad,
had absented himself without leave, and therefore the departmental proceedings were
conducted against him and an order of dismissal was passed. The appeal and revision
filed thereagainst were also rejected. The orders of the dismissal as well as the
appellate and revisional orders were passed outside the territorial jurisdiction of this
Court. It was in the light of the aforesaid facts that the Division Bench following the
judgment of the Full Bench in the case of Rajendra Kumar Mishra (supra) held that
mere communication of the orders at the residential address of the respondent at
district Bhadohi would not confer territorial jurisdiction to this Court. It would
therefore be seen that the decision in the case of Constable Lalji Pandey was based on
its own facts.
168. It may be taken note of that while considering the question with regard to
jurisdiction of the Court to decide the petition at hand, the Full Bench in Rajendra
Kumar Mishra, after referring to earlier judgments on the point made an observation
that in determining the objection of lack of territorial jurisdiction the Court must take
all the facts pleaded in support of the cause of action into consideration although
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without embarking upon an enquiry as to the correctness or otherwise of the said
facts. The Full Bench further reiterated that a ‘cause of action’ is bundle of facts, which
taken with the law applicable, gives the plaintiff right to relief against the defendant.
169. We may therefore observe that in both the Full Bench judgment of this Court
in the case of Rajendra Kumar Mishra and the judgment of the Supreme Court in the
case of Nawal Kishore Sharma, it has been held that the question as to whether cause
of action, wholly or in part, had arisen within the territorial jurisdiction of a High Court,
would have to be determined in each case on its own facts and in the light of the
nature and character of the proceedings under Article 226.
170. Thus there does not seem to be any apparent conflict of opinion in the two
views. However, the broad propositions which we have attempted to cull out from the
precedents which are available, may be taken as reference points while deciding the
question of territorial jurisdiction under Article 226 of the Constitution of India, which
are stated to be coming up in a fairly large number of matters.
171. The reference is accordingly answered in the manner as aforesaid.
172. The papers relating to individual cases may now be placed before the
appropriate Bench having jurisdiction in the matter.
———
~cccc®
IONLINEf
True Prinf
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PRAVIN KUMAR v. UNION OF INDIA 471

3-Judge
(2020) 9 Supreme Court Cases 471 Bench
2020
(BEFORE N.V. RAMANA, S. ABDUL NAZEER AND SURYA KANT, JJ.)
a Sep. 10
PRAVIN KUMAR Appellant;
Versus
UNION OF INDIA AND OTHERS Respondents.
Civil Appeal No. 6270 of 2012t, decided on September 10, 2020
b
A. Service Law - Departmental Enquiry - Judicial review/Validity -
Scope - Principles summarised - Power of judicial review in distinct from
appellate power exercised by departmental appellate authority - Further
held, judicial review is evaluation of decision-making process and not merits
of decision itself which is to ensure fairness in treatment and not fairness
of conclusion - Judicial review ought to be used to correct manifest errors
of law or procedure which might result in significant injustice or violation
C of principles of natural justice - Moreover, where appellate or reviewing
authority comes to a different conclusion, ordinarily decision under appeal
ought not to be disturbed insofar as it is plausible and not perverse
- On facts held, High Court was justified in being concerned more about
competency of enquiry officer and adherence to natural justice rather than
d verifying appellant's guilt through evidence on record though it did not restrict
scope of judicial review but rather adopted liberal approach independently
finding appellant guilty - Armed Forces - Central Industrial Security Force
Rules, 1969, R. 34 (Paras 25 to 30)
B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749: 1996 SCC (L&S) 80; State of T.N. v.
S. Subramaniam, (1996) 7 SCC 509 : 1996 SCC (L&S) 627, relied on
e State ofA.P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373: 2006 SCC (L&S) 316; Lalit Popli
v. Canara Bank, (2003) 3 SCC 583 : 2003 SCC (L&S) 353; H.P. SEB v. Mahesh Dahiya,
(2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297; Pravin Kumar v. Union of India, 2009 SCC
OnLine Born 691 : (2009) 4 Mah LJ 812, affimzed
Union of India v. H.C. Goel, (1964) 4 SCR 718: AIR 1964 SC 364, cited
B. Service Law - Departmental Enquiry - Enquiry officer -
f Examination and cross-examination of witnesses by enquiry officer -
Contention that it amounts to making prosecutor the Judge in violation of
principles of natural justice, rejected, unless a case of malice or bias can
be established in the facts of the case concerned - Held, under S. 165
of the Evidence Act, 1872 Judges have power to ask any question to any
witness or party about any fact in order to discover proof of relevant facts
- Further held, while strict rules of evidence are inapplicable to disciplinary
g
proceedings, enquiry officer often questions witnesses to unravel truth
- On facts held, except for making bald allegations that enquiry officer
had questioned witnesses, appellant failed to point any question showing that
enquiry officer exceeded his jurisdiction - Besides, no specific malice or
bias was alleged against him and even during enquiry no request for his
h
t Arising from the Judgment and Order in Pravin Kumar v. Union of India, 2009 SCC OnLine Born
691 : (2009) 4 Mah LJ 812 (Bombay High Court, WP No. 1001 of 2001, dt. 5-5-2009)
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replacement was sought - Rather it was found that appellant received fair trial
since he was granted opportunity to seek assistance of other officers, right of
representation before each authority was accorded and multiple opportunities a
were granted to lead evidence, cross-examine witnesses and raise objections
- Hence, contention rejected - Natural justice - Administrative Law -
Natural Justice - Bias/Nemo Debet Esse Judex In Propria Sua Causa -
Generally- Meaning, Nature, Applicability and Scope (Paras 31 and 32)
Union of India v. T.R. Varma, 1958 SCR 499 : AIR 1957 SC 882, relied on
C. Service Law - Departmental Enquiry - Departmental Enquiry b
vis-a-vis Criminal proceedings - Standard and burden of proof- Non-filing
of charge-sheet by investigating agency (CBI) - Effect of, on disciplinary
proceedings
- Reiterated that criminal proceedings are distinct from civil proceedings
- Possible and common in disciplinary proceedings to establish charges
C
against delinquent officer by preponderance of probabilities - However,
same set of evidence may not suffice in criminal law - Distinction between
standards of proof between civil and criminal litigation is deliberate, given
differences in stakes, power imbalance between parties and social costs of
erroneous decision - Thus, in disciplinary enquiry, strict rules of evidence
and procedure of criminal trial inapplicable - Appellant's contention that he
d
should be exonerated in instant proceedings since no charge-sheet was filed by
CBI after enquiry, liable to be rejected
- Employer always retains right to conduct independent disciplinary
proceedings irrespective of outcome of criminal proceedings - Besides, CBI
in its report dt. 7-3-2000 had recommended major disciplinary action against
appellant - Armed Forces - Central Industrial Security Force Rules, 1969 e
- R. 34 - Public Accountability, Vigilance and Prevention of Corruption -
Prevention of Corruption Act, 1988 - S . 13(1)(c) r/w S. 13(2)- Penal Code,
1860, S. 167 (Paras 33 to 35)
Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764: 2005 SCC (L&S) 1020, relied on
Karnataka SRTC V. M.G. Vittal Rao, (2012) 1 sec 442: (2012) 1 sec (L&S) 171; BHEL V.
M. Mani, (2018) 1 sec 285 : (2018) 1 sec (L&S) 178, affirmed f
Shashi Bhushan Prasad v. CISF, (2019) 7 SCC 797: (2019) 3 SCC (Cri) 474: (2019) 2 SCC
(L&S) 527, referred to
D. Service Law - Penalty/Punishment - Proportionality/Quantum of
punishment - Determination of - Factors to be considered - Principles
summarised - Dismissal - Sustainability - Appellant paramilitary officer
found guilty of corruption and extra constitutional conduct - Held, dismissal g
in present case was justified
- Held, disciplinary authority has wide discretion in imposing
punishment for proved delinquency subject to principles of proportionality
and fair play which requirements emanate from Art. 14 of the Constitution
prohibiting State authorities from treating varying degrees of misdeeds with
h
same broad stroke - Determination of proportionality is function of not
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PRAVIN KUMAR v. UNION OF INDIA 473

only action or intention of delinquent, but must also factor financial effect
and societal implication for such misconduct - Unlike in criminal cases,
a in disciplinary matters courts interfere with punishment awarded only on
ground of proportionality - Offences such as corruption, misappropriation
and gross indiscipline are grave offence justifying imposition of major penalty
like dismissal, removal or reduction in rank
- Appellant paramilitary Officer charged with corruption and extra
constitutional conduct inasmuch as he had ordered false GD entry, passed
b unlawful orders compelling his subordinate to give false statement to
substantiate said entry, and indulged in corruption by collecting bribes from
contractors of BPCL through his subordinates
- In instant case punishment of dismissal was justified - Besides,
appellant's actions were most likely to have caused huge consequential losses
to BPCL and lowered reputation of CISF amongst members of public - Given
C
paramilitary nature of appellant's force, integrity, commitment, discipline and
camaraderie paramount - Furthermore, expectation is only heightened in case
of appellant who was specifically tasked with weeding out corruption and
conducting surprise raids - Armed Forces - Central Industrial Security Force
Rules, 1969, R. 29(a) r/w R. 3l(a) & Sch. II and R. 34 (Paras 36 to 38)
Jameel v. State of U.P., (2010) 12 SCC 532: (2011) 1 SCC (Cri) 582; Chandra Kumar Chopra
d
v. Union of India, (2012) 6 SCC 369 : (2012) 2 SCC (L&S) 152, affirmed
Appeal dismissed P-D/65590/CL
1. (2019) 7 sec 797 : (2019) 3 sec (Cri) 474: (2019) 2 sec (L&S)
527, Shashi Bhushan Prasad v. CISF 479c-d
e 2. (2018) 1 sec 285 : (2018) 1 sec (L&S) 178, BHEL V. M. Mani 482g-h
3. (2017) 1 sec 768 : (2017) 1 sec (L&S) 297, H.P. SEB v. Mahesh Dahiya 481a-b
4. (2012) 6 sec 369 : (2012) 2 sec (L&S) 152, Chandra Kumar
Chopra v. Union of India 483f
5. (2012) 1 sec 442: (2012) 1 sec (L&S) 171, Kamataka SRTC v.
M. G. Vitt al Rao 482f-g
6. (2010) 12 sec 532 : (2011) 1 sec (Cri) 582, Jameel v. State of U.P. 483c
f 7. 2009 SCC OnLine Born 691 : (2009) 4 Mah LJ 812, Pravin Kumar v.
Union of India 474a-b, 478d-e,
479a
8. (2006) 2 SCC 373 : 2006 SCC (L&S) 316, State ofA.P. v. Mohd.
Nasrullah Khan 479d, 480a
9. (2005) 7 sec 764 : 2005 sec (L&S) 1020, Ajit Kumar Nag v.
g Indian Oil Corpn. Ltd. 482g
10. (2003) 3 SCC 583 : 2003 SCC (L&S) 353, Lalit Popli v. Canara Bank 481a
11. (1996) 7 SCC 509: 1996 SCC (L&S) 627, State ofT.N. v. S. Subramaniam 481a
12. (1995) 6 sec 749 : 1996 sec (L&S) 80, B.C. Chaturvedi v. Union
of India 480a
13. (1964) 4 SCR 718: AIR 1964 SC 364, Union of India v. H.C. Goel 480f-g
14. 1958 SCR 499 : AIR 1957 SC 882, Union of India v. T.R. Varma 482b
h
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SURYA KANT, J.- The present civil appeal, which has been heard over
videoconferencing, is directed against the order dated 5-5-2009 passed by a a
Division Bench of the High Court of Bombay in Pravin Kumar v. Union of
India 1, whereby the appellant's plea for quashing disciplinary proceedings and
setting aside a dismissal order on charges of corruption and extra-constitutional
conduct while employed as a paramilitary officer, was rejected.
Factual matrix
2. The appellant joined the Central Industrial Security Force ("CISF") b
in January 1995 as a Sub-Inspector. After completing requisite training in
Hyderabad, he was allocated to Mumbai office of the Western Zone and posted
at the local unit of Bharat Petroleum Corporation Ltd. ("BPCL") in March
1996. Although he was initially deputed to perform shift duty, but since July
1997 he was deployed in the Crime and Intelligence Wing. As evidenced
by an office order dated 8-5-1998, the appellant was specifically entrusted C
with conducting surprise searches of personnel and taking strict action against
anyone indulging in corruption.
3. On 28-2-1999 at around 6 p.m., Constable Ram Avtar Sharma (CW 1,
hereinafter "Sharma") was commuting in a CISF bus near the BPCL compound
when Inspector Hiralal Chaudhary (PW 1, hereinafter, "Chaudhary") noticed
a large bundle of high denomination notes in Sharma' s pocket. Suspicious, d
Chaudhary got the bus turned back towards the BPCL compound, and forcibly
made Sharma deboard near the North gate. Amidst witnesses, Chaudhary
searched Sharma's person, during which a total sum of Rs 10,780 in the form
of 100 notes of Rs 100 and the rest in smaller denominations was recovered.
No explanation for the large sum of unaccounted cash was forthcoming from
Sharma, except for a plea for mercy, post which the amount was seized and e
the incident recorded in the general diary ("GD") kept at the North gate of the
BPCL compound.
4. Later, it was found that a conflicting GD entry had been made at the
main gate of the BPCL compound a little earlier at around 6.05 p.m., noting
how an amount of Rs 9000 had been handed over by dog-handler Constable
K.K. Sharma (PW 2) on behalf of another official, as personal loan to Sharma
f
(CW 1 ). It was discovered over the course of investigation that this entry was
false and had been registered at the instance of the present appellant who made
numerous phone calls between 6.30 and 7 p.m. to ASI Surjan Singh (PW 5)
who was stationed at the main gate and was in charge of the other GD register.
5. The following morning, K.K. Sharma (PW 2), who was projected to
have delivered the cash to Sharma, was pressurised by the appellant to falsely
g
support his alternate "loan" theory by deposing that he indeed had delivered
the impounded sum of money.
6. An FIR was thus registered by the respondent authorities with the
regional Anti-Corruption Branch of the Central Bureau of Investigation
("CBI") on 6-3-1999 under various provisions of the Penal Code, 1860 and the
Prevention of Corruption Act, 1988. Simultaneously, an enquiry under Rule 34
h
1 2009 SCC OnLine Born 691 : (2009) 4 Mah LJ 812
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PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 475

of the CISF Rules, 1969, with Assistant Commandant P.B. Patil as the enquiry
officer, was also initiated and the appellant was placed under suspension vide
a order dated 31-5-1999.
(a) Charge-sheet
7. The charge-sheet contained three charges against the appellant, first,
gross misconduct and indiscipline by virtue of ordering of a false GD entry
(No. 257, on 6.05 p.m. at 28-2-1999); second, becoming an extra-constitutional
authority by issuing unlawful orders to Constable K.K. Sharma to give
b false statement to substantiate the aforementioned fake GD entry; and third,
corruption for illegally collecting bribes from contractors of BPCL through his
subordinates. All these charges were contested by the appellant, who sought
and was provided a detailed list of evidence and documents.
(b) Investigation and enquiry report
C
8. The enquiry officer submitted a self-speaking report on 17-9-1999,
which contained written statements and depositions of six witnesses who were
substantiating the charges, as well as evidence led by the appellant in the form
of five defence witnesses. Inspector Hiralal Chaudhary (PW 1) testified to the
search of Sharma, the seizure of a sum of Rs 10,780 from his person, and the
lack of any explanation by him on the spot regarding source of the suspicious
sum. Head Constable K.K. Sharma (PW 2), who as per the appellant's defence
d had handed over the seized amount as loan amount to Sharma, negated this
alternate version and instead implicated the appellant by mentioning that not
only did he not give any money to anyone, but that he had instead been
threatened by the appellant into giving a false statement. Head Constable R.K.
Sharma (PW 3) claimed to have witnessed the search and seizure, and denied
any talk of a loan during such event. ASI Karan Singh (PW 4) deposed that two
e empty garbage trucks had entered the BPCL premises earlier in the afternoon.
ASI Surjan Singh (PW 5) testified that at around 6.30 p.m. when he was on duty
at the BPCL main gate, he received a call from the appellant intimidating him
into registering a false GD entry with earlier time of 6.05 p.m. to substantiate
a :fictitious loan transaction with the stated objective of protecting Sharma
(CW 1).
f 9. Additionally, the enquiry officer examined Constable Ram Avtar Sharma
(CW 1) who testified that at around 2 p.m. on 28-2-1999 he received a bundle of
notes totalling Rs 10,000 on behalf of the appellant from one D.K. Parmar, who
was contracted by BPCL for the job of lifting garbage/waste. These notes were
in his possession, in addition to his personal cash ofRs 780, when he was caught
around 6.15 p.m. by Chaudhary (PW 1) while he was travelling in the CISF
g bus. He admitted that he had falsely claimed that the money had been given to
him by K.K. Sharma (PW 2), and in response to a question disclosed that bribes
were illegally collected from BPCL's contractors@ Rs 20 per vehicle entering
the plant and Rs 5 per vehicle exiting. The seized sum of money, particularly,
was to be handed over to the appellant for facilitating theft of "iron scrap"
and "brass" which was smuggled out of the compound in the middle of the
garbage. CW 1, later on though, retracted and claimed that the record reflected
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something other than what he had stated, and that his signatures ought not to
be relied upon as he had not read the document.
10. The appellant in his defence evidence examined Constable M.N. a
Dhanwat (DW 1), who deposed that although he was posted at North gate
on the date of the incident, he had left for personal work during duty hours
with the permission of the appellant. Constable Jaimal Singh (DW 2) testified
that he had witnessed the search of Sharma and recording of the GD entry by
Chaudhary when he reached the North gate at around 6.40 p.m. Further, he
claimed that Sharma was repeatedly trying to get in touch with the appellant,
b
but could only get through at around 7 p.m. and then informed him that he was
caught carrying his own money. ASI S.P. Mishra (DW 3) who was on duty at
the CISF control room in Vashi stated that in his presence no message had been
conveyed to the appellant regarding the incident. P.K. N ashkar (DW 4) states
that during his duty at the "Quarter Guard" in the Vashi complex at 7 p.m., he
was directed by ASI S .P. Mishra (DW 3) to convey a message to the appellant
that there was a phone call for him from Jaimal Singh (DW 2). Finally, Pravin C
Dhanji Parmar (DW 5), who had been performing housekeeping work at the
BPCL refinery for the past twenty years on behalf of contractor DK Parmar
& Co., stated that he did not hand over any money to Sharma. In addition, the
enquiry officer perused the relevant GD entries and other documents on record.
11. Based on these numerous evidences and after according the appellant
an opportunity to cross-examine all the witnesses as well as leading his own d
substantive arguments, the enquiry officer through report dated 17-9-1999 held
the appellant guilty under each of the three charges. The enquiry officer found
as a matter of fact that GD No. 257, entered at 6 .05 p.m. on 28-2-1999 , was a
false entry made at the instance of the appellant by Surjan Singh (PW 5), so that
an alternate version could be crafted in which Sharma (CW 1) had allegedly
received the seized money as loan. Qua the second charge, it stood established e
from the version ofK.K. Sharma (PW 2) that he had not advanced any loan and
that he was approached by the appellant to give a false statement to substantiate
GD No. 257. Finally, upon a holistic interpretation of all evidence, that is,
falsification of GD, threatening of K.K. Sharma (PW 2), as well as indications
of wrongdoing from the statements of other witnesses like DW 1 the enquiry
officer concluded that illegal sums were being collected by the appellant from f
BPCL' s contractors through his subordinate officers and therefore, the third
charge of corruption too had been proved.
(c) Proceedings before the disciplinary authority
12. This voluminous enquiry report was placed before the disciplinary
authority, which gave the appellant both a copy of the report as well as an
opportunity to respond to it. Detailed rebuttals put forth by the appellant g
through his written submission dated 14-10-1999 were examined at length by
the disciplinary authority. Preliminary objections of the enquiry officer being
biased and of being predisposed to convict the appellant, were rejected by
the disciplinary authority with cogent reasons. It was noted that not only had
proper opportunity of cross-examining witnesses and of availing assistance
been accorded to the appellant, but that sufficient opportunities of seeking h
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explanations, clarifications and records of testimonies and documents had in
fact also been availed of by him.
a 13. The disciplinary authority noted that no material contradictions could
be pointed out in the witnesses' testimonies, and no compelling alternate
evidence had been produced. Keeping in mind the nature of the allegations
which entailed surreptitious corruption amongst members of the paramilitary,
the disciplinary authority observed that it was unlikely that there would be
independent witnesses to many incidents like the charge of intimidating K.K.
Sharma (PW 2) to give false testimony, or of collecting bribe from BPCL' s
b
contractors.
14. The disciplinary authority noticed that it was an undisputed fact that
a sum of Rs 10,780 had been recovered from Sharma (CW 1), which was
far in excess of the maximum permissible amount of Rs 10. The testimonies
of different officials revealed the appellant's modus operandi of collecting
illegal monies through a network of subordinate officers; and more crucially,
C
his attempts at supressing witnesses and fabricating evidence when caught. The
disciplinary authority noted that the enquiry officer had followed the prescribed
procedure and no challenge had been made earlier to his impartiality and no
request to change the enquiry officer was ever made. Therefore, no malice
or bias could even be suggested at this stage of the disciplinary proceedings.
Similarly, the appellant's attempt to implicate other officials was held to be
d irrelevant, as the present enquiry was limited only to the appellant's conduct.
15. Thus, considering the serious nature of the misconduct and the rank and
duty bestowed upon the appellant, and the multiplicity of the charges which
called into question both the personal integrity of the delinquent officer and
the collective image of the force , the disciplinary authority passed the order
dated 20-11-1999, imposing exemplary punishment of dismissal from service
e under Rule 29(a) read with Rule 3l(a), Schedule II of the CISF Rules, 1969.
(d) Decision of the appellate authority
16. The appellant preferred departmental appeal against the order of his
dismissal from service before the Deputy Inspector General of the CISF
Western Zone. In addition to highlighting contradictions in testimonies and re-
interpreting the evidence on record, the appellant also raised a new defence that
f
the entire proceedings were at the behest of a particular superior officer.
17. The appellate authority went into each and every contention of the
appellant and after reappreciating the evidence on record, it dismissed the
appeal vide order dated 12-7-2000, concluding that:
"Further I find that there is no material irregularity or miscarriage
g of justice in the departmental enquiry proceedings. After considering the
gravity of proven misconduct, the petitioner is not found fit for retention
in an armed force of the Union of India like CISF. The contentions made
in his appeal petitions are totally devoid of merits both in fact and in law.
The punishment imposed by the disciplinary authority is not excessive in
view of proven misconduct. As such I do not find any reason to interfere
with the orders passed by the disciplinary authority and do hereby reject
h
the appeal petition being devoid of merits."
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(e) Writ before the High Court
18. A further challenge was laid to the orders passed by the disciplinary
and appellate authorities by way of a writ petition under Article 226 before the a
High Court of Bombay. The appellant sought in sum and substance, reappraisal
of the evidence on record, claiming that it was qualitatively insufficient to hold
him guilty of the charges levelled against him. Additionally, the appellant raised
a new ground of non-compliance with Rule 34(10)(ii)(b) of the CISF Rules,
1969 which specified serving of a second show-cause notice and opportunity of
hearing regarding the proposed penalty. The appellant fairly submitted before b
the High Court that it was not his case that the penalty imposed against him
was disproportionate, if the charges against him were held to be proved.
19. The High Court, through the order under challenge, conducted a
detailed re-examination of the facts and material-on-record, expanding the
scope of judicial review under Article 226 and concluded that there existed
ample evidence to establish the appellant's involvement in the organised C
collection of illegal monies from BPCL' s contractors and his role in fabricating
official records and intimidating subordinate officers to falsely testify to support
his alternate version.
20. The High Court categorically held that the domestic enquiry followed
all procedures and was in conformity with principles of natural justice and
the appellant had been accorded numerous opportunities of putting forth his d
version of events. The CISF Rule sought to be relied upon by the appellant,
was found to have been amended in 1981, therefore, leaving no requirement
for a separate show-cause notice at the stage of penalty. The writ petition was
accordingly dismissed on 5-5-2009 1.
Contentions of parties e
21. The instant appeal being the last resort, the learned Senior Counsel for
the appellant, once more, took us through the enquiry record and highlighted
how the main witness ( CW 1) had retracted his statement, and how there was no
corroboration between witnesses and documents. The conduct of the enquiry
officer was called into question, contending that his decision to put questions
to witnesses was unfair. Acting as both the judge and prosecutor, the enquiry f
officer was alleged to have vitiated the entirety of the proceedings. Till the
last minute, the appellant vehemently stuck to his alternate version that the
recovered sum of Rs 10,780 was nothing but a loan extended between two
officials in a private capacity, and that the false charges were levelled on him
with oblique motives at the instance of certain superiors. Finally, the appellant
g
sought leniency and urged that given another 21 years of remaining service,
imposition of the severest punishment of dismissal from service was highly
disproportionate which ought to shock the conscience of this Court.
h
1 Pravin Kuma r v. Union of India, 2009 SCC OnLine Born 691 : (2009) 4 Mah LJ 812
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22. These contentions have dexterously been countered by the learned
counsel for the respondents, who highlights through specific reference to the
a impugned order 1 that retraction of CW l' s statement had been noted by all prior
authorities and that no significant reliance had been placed on it while holding
the appellant guilty. Adequate opportunities were granted and had been availed
by him. Attention was drawn to the fact that the present proceedings constituted
the fifth venue where the appellant was pleading his case, with the first four
and the CBI having found his guilt concurrently.
b 23. The deliberate and planned manner of the falsifications, and the blatant
threats made to subordinate officials were highlighted by the respondents,
and the loan theory propounded by the appellant was shown as having been
recurrently agitated and discarded by all the previous forums. Given the
concurrent findings of the enquiry officer, disciplinary authority, appellate
authority and the High Court, as well as the detailed evaluation and reasoned
C order passed by each, it was submitted that there remained little scope of
reappreciation or further adjudication. The ratio of Shashi Bhushan Prasad v.
CISF2 was distilled to drive home the argument that departmental enquiries
do not stand on the same pedestal as criminal proceedings. Acquittal in one
would not pre-judge the other owing to a difference in standards of proof. It
was claimed that there could be no reappreciation of evidence as per State
d of A.P. v. Mohd. Nasrullah Khan 3 , and that constitutional courts ought not
to act as appellate authorities against disciplinary proceedings of government
employees. Finally, given the delicate nature of employment in paramilitary
forces and breach of the high trust reposed in him by society, the strict
punishment of dismissal of the appellant from service was justified.
Analysis
e 24. At the outset, it may be noted that the appellant has chosen to raise some
new grounds before this Court, despite those issues involving questions of fact.
Nevertheless, a few pertinent questions of service jurisprudence do arise in this
appeal, which we deem appropriate to answer.
I. Scope of judicial review in service matters
f 25. The learned counsel for the appellant spent considerable time taking
us through the various evidence on record with the intention of highlighting
lacunae and contradictions. We feel that such an exercise was in vain, as the
threshold of interference in the present proceedings is quite high. The power
of judicial review discharged by constitutional courts under Article 226 or
32, or when sitting in appeal under Article 136, is distinct from the appellate
g power exercised by a departmental appellate authority. It would be gainsaid
that judicial review is an evaluation of the decision-making process, and not the
merits of the decision itself. Judicial review seeks to ensure fairness in treatment
and not fairness of conclusion. It ought to be used to correct manifest errors of
h l Pravin Kumar v. Union of India , 2009 SCC OnLine Born 691 : (2009) 4 Mah LJ 812
2 (2019) 7 sec 797: (2019) 3 sec (Cri) 474: (2019) 2 sec (L&S) 527
3 c2006) 2 sec 373 : 2006 sec (L&S) 316
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law or procedure, which might result in significant injustice; or in case of bias
or gross unreasonableness of outcome. 4
26. These principles are succinctly elucidated by a three-Judge Bench of a
this Court in B. C. Chaturvedi v. Union of India 5 in the following extract: (SCC
pp. 759-60, paras 12-13)
"12. Judicial review is not an appeal from a decision but a review of the
manner in which the decision is made. Power of judicial review is meant
to ensure that the individual receives fair treatment and not to ensure that
the conclusion which the authority reaches is necessarily correct in the b
eye of the court. When an inquiry is conducted on charges of misconduct
by a public servant, the Court/Tribunal concerned is to determine whether
the inquiry was held by a competent officer or whether rules of natural
justice are complied with. Whether the findings or conclusions are based on
some evidence, the authority entrusted with the power to hold inquiry has
jurisdiction, power and authority to reach a finding of fact or conclusion. C
But that finding must be based on some evidence. Neither the technical
rules of the Evidence Act nor of proof of fact or evidence as defined therein,
apply to disciplinary proceeding. When the authority accepts that evidence
and conclusion receives support therefrom, the disciplinary authority is
entitled to hold that the delinquent officer is guilty of the charge. The Court/
Tribunal in its power of judicial review does not act as appellate authority d
to reappreciate the evidence and to arrive at its own independent findings
on the evidence. The Court/Tribunal may interfere where the authority held
the proceedings against the delinquent officer in a manner inconsistent with
the rules of natural justice or in violation of statutory rules prescribing
the mode of inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the conclusion or finding e
be such as no reasonable person would have ever reached, the Court/
Tribunal may interfere with the conclusion or the finding, and mould the
relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal
is presented, the appellate authority has coextensive power to reappreciate f
the evidence or the nature of punishment. In a disciplinary inquiry, the
strict proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be
canvassed before the Court/Tribunal. In Union of India v. H. C. Goel 6 this
Court held at SCR pp. 728-29 that if the conclusion, upon consideration
of the evidence reached by the disciplinary authority, is perverse or suffers g
from patent error on the face of the record or based on no evidence at all,
a writ of certiorari could be issued."
4 State ofA.P. v. Mohd. Nasrullah Khan , (2006) 2 SCC 373, para 11 : 2006 SCC (L&S) 316 h
5 (1995) 6 sec 749, para 12: 1996 sec (L&S) 80
6 (1964) 4 SCR 718: AIR 1964 SC 364
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27. These parameters have been consistently reiterated by this Court in a
catena of decisions, including:
a (i) State of T.N. v. S. Subramaniam 7 •
(ii) Lalit Popli v. Canara Bank8 .
(iii) H.P. SEB v. Mahesh Dahiya 9 .
28. It is thus well settled that the constitutional courts while exercising
their powers of judicial review would not assume the role of an appellate
b authority. Their jurisdiction is circumscribed by limits of correcting errors of
law, procedural errors leading to manifest injustice or violation of principles
of natural justice. Put differently, judicial review is not analogous to venturing
into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the competence
of the enquiry officer and adherence to natural justice, rather than verifying
C the appellant's guilt through documents and statements. It clearly noted that
evidence was led, cross-examination was conducted and opportunities of
addressing arguments, raising objections, and filing appeal were granted. The
conclusion obtained was based upon these very evidence and was detailed and
well-reasoned. Furthermore, the High Court did not restrict the scope of judicial
review, rather adopted a liberal approach, and delved further to come to its own
d independent conclusion of guilt. Similarly, we have no doubt in our minds that
the appellate authority had carefully dealt with each plea raised by the appellant
in his appeal and had given detailed responses to all the contentions to satisfy
the appellant's mind. The disciplinary authority too was impeccable and no
infirmity can be found in the report of the enquiry officer either.
30. Even in general parlance, where an appellate or reviewing court/
e authority comes to a different conclusion, ordinarily the decision under appeal
ought not to be disturbed insofar as it remains plausible or is not found ailing
with perversity. The present case is neither one where there is no evidence, nor
is it one where we can arrive at a different conclusion than the disciplinary
authority, especially for the reasons stated hereunder.
II. Appropriateness of procedure and PNJ
f 31. Significant emphasis has been placed by the appellant on the fact
that the enquiry officer put his own questions to the prosecution witness and
that he cross-examined the witnesses brought forth by the defence. This, it
is claimed, amounts to making the prosecutor the Judge, in violation of the
natural justice principle of "nemo judex in sua causa". However, such a plea
is misplaced. It must be recognised that, under Section 165, Evidence Act,
g Judges have the power to ask any question to any witness or party about any
fact, in order to discover or to obtain proper proof of relevant facts. While strict
rules of evidence are inapplicable to disciplinary proceedings, enquiry officers
often put questions to witnesses in such proceedings in order to discover the
truth. Indeed, it may be necessary to do such direct questioning in certain
h 7 (1996) 7 sec 509: 1996 sec (L&S) 627

8 c2003) 3 sec 583 : 2003 sec (L&S) 353
9 c2017) 1 sec 768 : (2017) 1 sec (L&S) 297
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circumstances. Further, the learned counsel for the appellant, except for making
a bald allegation that the enquiry officer has questioned the witnesses, did not
point to any specific question put by the officer that would indicate that he had a
exceeded his jurisdiction. No specific malice or bias has been alleged against
the enquiry officer, and even during the enquiry no request had been made to
seek a replacement, thus, evidencing how these objections are nothing but an
afterthought.
32. Rather it appears that the delinquent person received a fair trial,
which can illustratively be determined by analysing whether he received an
b
opportunity of adducing evidence, cross-examining witnesses and whether
depositions were recorded in his presence. 10 The record clearly elucidates
that all these essentials had been duly observed in the present proceedings.
Opportunity to seek assistance of another officer was accorded, right of making
representation was granted before each authority, multiple opportunities were
granted to lead evidence, cross-examine witnesses, and raise objections. The
C
appellant exercised most of these options, though some were given up despite
reminders. Minor delays on part of the appellant were ignored and each concern
of his had been addressed through detailed reasons.
III. Effect of criminal enquiry on disciplinary proceedings
33. The incident of 28-2-1999 raised serious questions of criminality
under the Penal Code and the Prevention of Corruption Act, as well as of d
violation of Service Regulations and administrative misconduct. Thus, in
addition to appointment of enquiry officer, the authorities also registered a
criminal complaint with the CBI. After investigation, the CBI though did not
find adequate material to launch criminal prosecution against the appellant but
through its self-speaking report dated 7-3-2000, the CBI recommended major
disciplinary action against the appellant and a few others. e
34. It is beyond debate that criminal proceedings are distinct from civil
proceedings. It is both possible and common in disciplinary matters to establish
charges against a delinquent official by preponderance of probabilities and
consequently terminate his services. But the same set of evidence may not
be sufficient to take away his liberty under our criminal law jurisprudence. 11
Such distinction between standards of proof amongst civil and criminal f
litigation is deliberate, given the differences in stakes, the power imbalance
between the parties and the social costs of an erroneous decision. Thus, in a
disciplinary enquiry, strict rules of evidence and procedure of a criminal trial
are inapplicable, like say, statements made before enquiry officers can be relied
upon in certain instances. 12
35. Thus, the appellant's contention that he should be exonerated in the g
present proceedings as no criminal charge-sheet was filed by the CBI after
enquiry, is liable to be discarded. 13 The employer always retains the right to
conduct an independent disciplinary proceeding, irrespective of the outcome
10 Union of India v. T.R. Vanna, 1958 SCR 499 : AIR 1957 SC 882, para 10
11 Kamataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442, para 11 : (2012) 1 SCC (L&S) 171 h
12 Ajit Kumar Nag v. Indian Oil C01pn. Ltd., (2005) 7 SCC 764, para 11 : 2005 SCC (L&S) 1020
13 BHEL v. M. Mani, (2018) 1 SCC 285, paras 20-22, 33: (2018) 1 SCC (L&S) 178
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of a criminal proceeding. Furthermore, the CBI report dated 7-3-2000 does
recommend major disciplinary action against the appellant. The said report also
a buttresses the respondent's case.
IV. Punishment and plea of leniency
36. In our considered opinion, the appellant's contention that the
punishment of dismissal was disproportionate to the allegation of corruption,
is without merit. It is a settled legal proposition that the disciplinary authority
has wide discretion in imposing punishment for a proved delinquency, subject
b of course to principles of proportionality and fair play. Such requirements
emanate from Article 14 itself, which prohibits State authorities from treating
varying degrees of misdeeds with the same broad stroke. Determination of
such proportionality is a function of not only the action or intention of the
delinquent, but must also factor the financial effect and societal implication
of such misconduct. 14 But unlike in criminal cases, in matters of disciplinary
C proceedings courts only interfere on grounds of proportionality when they
find that the punishment awarded is inordinate to a high degree, or if the
conscience of the court itself is shocked. Thus, whereas imposition of major
penalty (like dismissal, removal, or reduction in rank) would be discriminatory
and impermissible for trivial misdeeds; but for grave offences there is a
need to send a clear message of deterrence to the society. Charges such as
d corruption, misappropriation and gross indiscipline are prime examples of the
latter category, and ought to be dealt with strictly.
37. Applying these guidelines to the facts of the case in hand, it is clear that
the punishment of dismissal from service is far from disproportionate to the
charges of corruption, fabrication and intimidation which have unanimously
been proven against the appellant. Taking any other view would be an anathema
e to service jurisprudence. If we were to hold that systematic corruption and
its blatant cover-up are inadequate to attract dismissal from service, then the
purpose behind having such major penalties, which are explicitly provided for
under Article 311 of the Constitution, would be obliterated.
38. Still further, the appellant's actions would most probably have
caused huge consequential losses to BPCL and lowered the reputation of
the CISF amongst members of the public. Given the paramilitary nature
f
of the appellant's force, a sense of integrity, commitment, discipline, and
camaraderie is paramount. 15 This expectation is only heightened in the case of
the appellant given how he was specifically tasked with weeding out corruption
and conducting surprise raids. Once shattered through acts of intimidation,
forgery, and corruption; only the severest penalty ought to be imposed.
g Conclusion
39. In light of the above discussion, we do not find any merit in this appeal
which is accordingly dismissed.
h
14 Jameel v. State of U.P., (2010) 12 SCC 532, paras 14-16: (2011) 1 SCC (Cri) 582
15 Chandra Kumar Chopra v. Union of India, (2012) 6 SCC 369, para40: (2012) 2 SCC (L&S) 152
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(BEFORE UMESH CHANDRA SRIVASTAVA, MEMBER (JUDICIAL) AND ABHAY RAGHUNATH KARVE,
MEMBER (ADMINISTRATIVE))
Ravi Shankar Singh … Applicant;

Versus
O.A. (A) No. 191 of 2014
Decided on October 5, 2020
By Legal Practitioner for the Applicant;
By Legal Practitioner for Respondents.
ORDERS OF THE TRIBUNAL
1. Heard Shri K.K.S. Bisht, Ld. Counsel for the appellant and Shri Asheesh
Agnihotri, Ld. Counsel for the respondents, assisted by Maj Sini Thomas, Departmental
Representative.
2. This appeal has been filed against the order dated 05.01.2012 of Summary Court
- Martial by which appellant has been reduced to rank from Naik to Sepoy.
3. Shri Asheesh Agnihotri, learned counsel for the respondents has raised a
preliminary question regarding maintainability of appeal saying punishment being
awarded to appellant in Summary Court - Martial being not dismissal from service or
imprisonment for more than three months, as provided in proviso (iv) to Section 3(o)
of the Armed Forces Tribunal Act, 2007, (In Short “2007 Act”), the appeal is not
maintainable.
4. Submission of learned respondents' counsel is that it is specifically provided in
proviso (iv) to Section 3(o) of the 2007 Act that only those matters of Summary Court
- Martial, where the punishment is of dismissal from service or more than three
months imprisonment, are included in “service matters”, and, in respect of which,
appeal may be filed. His further submission is that if the punishment passed in
Summary Court - Martial is less than dismissal from service, or less than three months
imprisonment, the same cannot be challenged in AFT invoking the provisions of
Section 15 of 2007 Act. His further submission is that the order challenged in instant
appeal is neither dismissal from service nor imprisonment for more than three months,
but being a punishment of reduction in rank, the same cannot be challenged in appeal
under Section 15 of the 2007 Act. Therefore, his submission is that instant appeal
being filed against the punishment of reduction in rank, and not against the
punishment of dismissal or imprisonment for more than three months in Court-Martial,
the same is not maintainable and is liable to be dismissed as such.
5. Per contra, Shri KKS Bisht, learned counsel for the applicant submits that
present appeal being filed under Section 15 of the 2007 Act, definition of “service
matters” as given in Section 3(o) of the 2007 Act, has not to be read in isolation, but
needs to be read together with sub-section (2) of Section 15 of the 2007 Act, which
reads that any person aggrieved by an order, decision, finding or sentence passed by a
Court - Martial may prefer an appeal in such form, manner and within such time as
may be prescribed.
6. His further submission is that no where it is provided in sub-section (2) of
Section 15 of 2007 Act that in only those matters concerning dismissal from service or
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imprisonment for more than three months in Summary Court - Martial, an appeal may
be filed. His further submission is that “Court-Martial used in sub-section (2) of
Section 15 of 2007 Act does include Summary Court-Martial also. His further
submission is that order passed in Court-Martial being appealable under Section 15 of
the 2007 Act and scope of appeal being not restricted to Court-Martial only but
Summary Court-Martial being also covered therein, appeal against an order passed in
Summary Court-Martial is maintainable. Thus, his submission is that instant appeal
being filed against the punishment of reduction in rank passed in Summary Court-
Martial is maintainable.
7. Having heard the submissions of learned counsel of both sides and having gone
through Sections 3, and 15 of the 2007 Act, we are of the considered view that in
order to see the maintainability of an appeal filed against an order passed in Summary
Court - Martial, we can not only bank upon Section 3(o) of the 2007 Act, but have to
read this Section together with Section 15(2) of the 2007 Act. On joint reading of
these Sections, it appears that not only those matters of punishment concerning
dismissal from service or imprisonment for more than three months in Summary Court
- Martial can be challenged under Section 15 of the 2007 Act, by way of appeal, but
any order, decision, finding or sentence passed in Summary Court - Martial can be
appealed in AFT. We are also of the view that scope of appeal, as provided in Section
15 of 2007 Act, is not limited to Court-Martial Verdicts only, it includes Summary
Court - Martial verdicts also.
8. With this view of matter, we reject the plea regarding maintainability of appeal,
raised by the respondents' learned counsel and hold that instant appeal is
maintainable in Tribunal under Section 15 of the 2007 Act.
9. Accordingly, appeal is admitted for hearing.
10. Respondents may file counter affidavit within four weeks. Thereafter, rejoinder
affidavit, if any, may be filed within two weeks.
11. List on 15.12.2020 before the Registrar Court for exchange of pleadings.
———
† Regional Bench, Lucknow
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Civil Appeal No. 2448 of 2010
Sanjay Marutirao Patil v. Union of India

(BEFORE L. NAGESWARA RAO AND M.R. SHAH, JJ.)
Sanjay Marutirao Patil .…. Appellant;

v.
Union of India and Others .…. Respondents.
Decided on January 24, 2020
M.R. SHAH, J.:— Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 31.01.2008 passed by the High Court of Judicature at Bombay in Writ
Petition No. 423 of 2005, by which the High Court has dismissed the said writ petition
preferred by the appellant herein and has refused to interfere with the order of
dismissal passed by the respondent dated 29.04.2002, the original writ petitioner has
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the appellant herein - original writ petitioner (hereinafter referred to as the
‘Appellant’) joined the Indian Army as a Sepoy on 30.08.1990. In the year 1994-
95, he was promoted as Naik. Thereafter, he became qualified for promotion to the
post of Hawaldar. He was served with a charge sheet dated 3.8.1999 levelling three
charges of misconduct. That the three charges were framed against the appellant
under Section 63 of the Army Act, 1950 (hereinafter referred to as the ‘Army Act’).
With respect to the above charge sheet, the appellant was called upon to face a
Summary Court Martial. The appellant pleaded guilty to each of the charges in
writing. After considering his defence, the Summary Court Martial proceedings were
completed/concluded and the appellant was awarded with the punishment of
reduction in rank, vide order dated 7.8.1999. That thereafter the appellant was
served with a show cause notice dated 24.3.2000, by which the appellant was
called upon to show cause as to why he should not be discharged from Army service
under the provisions of Section 20 of the Army Act, read with Rule 17 of the Army
Rules, 1954 (hereinafter referred to as the ‘Army Rules’). That the appellant replied
to the said show cause notice on 10.4.2000. He denied the allegations made
therein. According to the department, though the appellant pleaded guilty to the
three charges, he denied those charges in the reply to the show cause notice dated
24.3.2000 and therefore the same were fraudulent in nature. According to the
department, upon such denial, a Court of Inquiry came to be held in January, 2001
to ascertain the facts revealed by the appellant in the notice. According to the
department, thereafter again meeting of the Court of Inquiry was held. The
appellant appeared as a witness. He was examined. The Court of Inquiry put to him
such questions as it thought desirable for testing the truth or accuracy of the
statement made by him in his reply and for eliciting the truth. According to the
department, the report of the Court of Inquiry was submitted to the authority
concerned. According to the department, the Court of Inquiry gave the finding that
the appellant has given false and misleading reply in his say as well as in his
evidence before the Court of Inquiry. According to the department, the appellant
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was, therefore, issued a show cause notice on 17.4.2001 to show cause as to why
he should not be discharged from the Army under Rule 13(3) item III(V) as his
services were no longer required, being undesirable. That the appellant filed his
reply to the said show cause notice on 14.6.2001. That thereafter the respondents
terminated the appellant's services on 29.4.2002, in exercise of the powers under
Section 20 of the Army Act, read with Rule 17 of the Army Rules.
3. Feeling aggrieved and dissatisfied with the order of termination dated 29.4.2002,
the appellant preferred an appeal, which came to be rejected on 22.12.2003. That
thereafter the appellant approached the High Court by way of present writ petition
challenging the order of dismissal of the appellant as well as the order dismissing the
appeal.
4. Before the High Court, it was the case on behalf of the appellant that once the
appellant faced the Summary Court Martial and the appellant was awarded the
punishment of reduction in rank, thereafter for the same charges, the appellant could
not have been dismissed from service in exercise of powers under Section 20 of the
Army Act, read with Rule 17 of the Army Rules. It was the case on behalf of the
appellant that once the Summary Court Martial awarded the punishment, thereafter to
dismiss the appellant by passing an administrative order under Section 20 of the Army
Act, read with Rule 17 of the Army Rules, would be double jeopardy, which is not
permissible. However, the High Court did not agree with the same and dismissed the
writ petition by observing that the administrative power under Section 20 of the Army
Act, read with Rule 17 of the Army Rules, is an independent power and therefore the
order of dismissal passed under Section 20 of the Army Act, read with Rule 17 of the
Army Rules, is not required to be interfered with. Consequently, the High Court by the
impugned judgment and order has dismissed the said writ petition and has refused to
interfere with the administrative order dismissing the appellant from service, which
was passed in exercise of the powers under Section 20 of the Army Act, read with Rule
17 of the Army Rules.
5. Feeling aggrieved and dissatisfied with the impugned judgment and order
passed by the High Court, the appellant - original writ petitioner has preferred the
present appeal.
6. Shri. Braj K. Mishra, learned Advocate appearing on behalf of the appellant -
original writ petitioner has vehemently submitted that in the facts and circumstances
of the case, the High Court has committed a grave error in dismissing the writ petition
and not interfering with the termination order passed by the respondent-authority
dated 29.4.2002.
7. Shri. Braj K. Mishra, learned Advocate appearing on behalf of the appellant -
original writ petitioner has vehemently submitted that the High Court has materially
erred in not appreciating the fact that the order passed by respondent no. 3 thereby
dismissing the appellant from service was actually illegal and bad in law and would
tantamount to double jeopardy.
8. It is submitted by the learned counsel appearing on behalf of the appellant that
the High Court has not properly appreciated and considered the fact that the appellant
for the one and the same offence was sought to be punished twice by the respondents.
It is submitted that earlier the appellant was made to face Summary Court Martial in
respect of charges of misconduct enumerated in the charge sheet dated 3.8.1999. The
appellant was found guilty of the same misconduct and on 7.8.1999 the Court Martial
imposed the punishment of reduction in rank under Section 71 of the Army Act. It is
submitted that the said proceedings concluded after the order of punishment was
given to the appellant. It is submitted therefore, after passing the order of punishment
passed by the Summary Court Martial and the same had attained finality, thereafter it
was not open for respondent no. 2 to re-open the matter and initiate any further
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proceedings against the appellant on the same set of charges.
9. It is submitted by the learned counsel appearing on behalf of the appellant that
in the present case despite there being a sentence awarded by the Summary Court
Martial, which was after the conclusion of the proceedings of the Summary Court
Martial, the respondents issued a show cause notice dated 24.3.2000 alleging against
the appellant that the particulars of charges disclosed that the offence was fraudulent
in nature. It is submitted that therefore the show cause notice dated 24.3.2000 itself
was illegal and bad in law.
10. It is vehemently submitted by the learned counsel appearing on behalf of the
appellant that after the conclusion of the Summary Court Martial in which the
appellant was given the punishment of reduction in rank, thereafter respondent no. 3
had no jurisdiction to take any further action in respect of very same misconduct of
the appellant. It is submitted that if at all the offences were said to be fraudulent in
nature, it was open for respondent no. 3 to impose any punishment upon the appellant
at the time of conducting the Summary Court Martial itself. It is submitted that,
however, at the relevant time, respondent no. 3 had taken a conscious decision to
impose the punishment of reduction in rank of the appellant. It is submitted that in
that view of the matter, thereafter respondent no. 3 was not legally entitled to re-open
the matter and initiate fresh proceedings on the same set of charges for which the
appellant had already been awarded sentence by way of reduction in rank. In support
of his above submissions, learned counsel appearing on behalf of the appellant has
taken us to the relevant provisions of the Act, more particularly Sections 121, 161 and
162 of the Army Act.
11. It is further submitted by the learned counsel appearing on behalf of the
appellant that even the manner in which the Court of Inquiry was subsequently
conducted by the respondents is also illegal and ab initio void. It is submitted that the
appellant had issued a show cause notice dated 24.3.2000 in which it was alleged that
the particulars of the charges mentioned in the show cause notice disclosed that the
offence is fraudulent in nature. It is submitted that therefore it was necessary for
respondent no. 3 to conduct further investigation/enquiry if at all permissible in law
only in respect of allegations which were called fraudulent in nature of charges
mentioned in the show cause notice dated 3.8.1999. It is submitted that as such in
view of the conclusion of the Summary Court martial, the same was not permissible. It
is submitted that, however, according to respondent no. 3, the Court of Inquiry was
conducted from the fresh facts allegedly revealed in the reply on behalf of the
appellant to the show cause notice. It is submitted that by the show cause notice
dated 24.3.2000, the appellant was called upon to submit his reply in respect of
alleged fraudulent nature of charges made against him in charge sheet dated
3.8.1999. It is submitted therefore that as a defence the appellant denied the charges
by stating that the same are not fraudulent nature of charges. It is submitted that
even otherwise, if at all respondent no. 3 was of the opinion that the appellant had
made false statements or given any false information in his reply dated 10.4.2000 and
for that purpose it was necessary to proceed against the appellant under the Act and
the Rules made thereunder, then it was necessary for respondent no. 3 to come up
with a fresh charge sheet making specific allegations against the appellant with
respect to specific contents of the appellant's reply to the show cause notice. It is
submitted that it was also necessary for respondent no. 3 to give an appropriate and
reasonable opportunity to the appellant to meet with those specific allegations in
relation to the alleged false statements made by the appellant in his reply to the show
cause notice. It is submitted that, however, admittedly neither such fresh charge
sheet was issued to the appellant nor any opportunity was given to the appellant by
firstly explaining to him which of the statements and contents of his reply to the show
cause notice were false, misleading etc. It is submitted that the appellant was also not
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called upon to submit his explanation to the same. It is submitted that respondent no.
3 straightway proceeded to conduct the Court of Inquiry and came to the conclusion
that the appellant has committed the misconduct while submitting his reply to the
show cause notice and for such misconduct, he is not authorised to retain in service or
that further retention of the appellant in service is considered undesirable. It is
submitted that therefore the entire proceedings conducted by respondent no. 3 are
illegal, bad in law and without jurisdiction and the same are also in breach of the Army
Act and the Rules made thereunder and therefore the same ought to have been set
aside by the High Court.
12. It is further submitted that the exercise of the administrative powers by
respondent no. 3 under Section 20 of the Army Act read with Rule 17 of the Army
Rules after the conclusion of the Summary Court Martial and award of sentence under
Section 71 of the Army Act for the very charge sheet/grounds for which the Summary
Court Martial was conducted, is wholly illegal and without jurisdiction.
13. In support of his submissions, learned counsel appearing on behalf of the
appellant has relied upon a decision of this Court in the case of State of Madhya
Pradesh v. Hazari Lal reported in (2008) 3 SCC 273.
14. Making the above submissions and relying upon the above decision of this
Court, it is prayed to allow the present appeal.
15. The present appeal is vehemently opposed by Ms. Sonia Mathur, learned Senior
Advocate appearing on behalf of the respondents. Learned Senior Advocate appearing
on behalf of the respondents has vehemently submitted that the order of termination
passed by respondent no. 3, challenged before the High Court, was an administrative
order passed in exercise of powers under Section 20 of the Army Act, read with Rule
17 of the Army Rules. It is submitted that powers under Section 20 of the Army Act,
read with Rule 17 of the Army Rules are independent powers available to respondent
no. 3. It is submitted that therefore the contention on behalf of the appellant that a
subsequent administrative order of termination passed under Section 20 of the Army
Act read with Rule 17 of the Army Rules is double jeopardy has no substance.
16. It is further submitted by the learned Senior Advocate appearing on behalf of
the respondents that proceedings under Section 20 of the Army Act, read with Rule 17
of the Army Rules are administrative in nature. It is submitted that the administrative
proceedings are independent of the criminal proceedings and even both can run in
parallel. It is submitted that assuming that the proceedings under Section 20 of the
Army Act are criminal proceedings, still the offences tried for in the Court Martial were
different from those under Section 20 of the Army Act and therefore there cannot be a
case of double jeopardy as the action taken under Section 20 of the Army Act cannot
be considered to be a “prosecution” under Article 20(2) of the Constitution of India.
17. It is further submitted that in the present case the impugned order of
termination in exercise of powers under Section 20 of the Army Act read with Rule 17
of the Army Rules was passed after following due procedure as required, by passing
the order under Section 20 of the Army Act. It is submitted that Section 20 of the
Army Act provides that the Chief of Army Staff or other officers may dismiss or remove
from the service any person subject to the Army Act, other than an officer. It is
submitted that the only procedure prescribed under the Army Rules for dismissal
under Rule 17 of the Army Rules is that no person shall be dismissed or removed
unless he has been informed about the cause of action against him and allowed
reasonable time to state in writing any reasons he may have to urge against his
dismissal or removal from service.
18. It is submitted by the learned Senior Advocate appearing on behalf of the
respondents that as per the scheme of the Army Act, Chapter 4 deals with conditions
of service. It is submitted that in the said Chapter, Section 18 provides the doctrine of
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pleasure of President. Sections 19 & 20 further provides power of Central Government
to terminate the services of the officer on misconduct and the power of Chief of Army
Staff and other officer to terminate the service of other ranks. It is submitted that in
Chapter 3 of the Rules, Rules 14 and 17 deal with the procedure for the termination of
service by the Central Government on account of misconduct in respect of the officer
and dismissal or removal by Chief of Army Staff and by other officers in respect of
other ranks respectively.
19. It is submitted by the learned Senior Advocate appearing on behalf of the
respondents that in Rule 14 the phrase conviction by Court Martial is not mentioned
which is given in Rule 17 in respect of other ranks. It is submitted that therefore the
Parliament has included the said phrase in Rule 17 because only other ranks can be
tried by Summary Court Martial which does not require confirmation in terms of
Section 153 of the Army Act. It is submitted that in the absence of any power of
confirmation which is available in case of General Court Martial, Summary Court
Martial and District Court Martial, the Summary Court Martial cannot be sent for
revision once signed by the Commanding Officer after the trial. It is submitted that in
other words the scheme of the Army Act and the Army Rules provide a mechanism to
rectify any error committed by Court Martial by way of revision under Section 160 of
the Army Act read with Rule 68 of the Army Rules, which is not available in the case of
Summary Court Martial. It is submitted that in order to avoid miscarriage of justice,
Parliament has empowered the competent authority to take the recourse of Section 20
of the Army Act read with Rule 17 of the Army Rules by providing power to dismiss
the individual after being convicted by Court Martial.
the respondents that in the present case the charges framed against the accused
(appellant herein - original writ petitioner) were all under Section 63 of the Army Act
which were very serious which warranted trial by either General Court Martial or
District Court Martial. It is therefore submitted that it was imperative on the part of
the Commanding Officer to refer the same for proper legal advice. It is further
submitted that there was no proper application of mind at the relevant time when the
Summary Court Martial was held and conducted and the Commanding Officer dealt
with the matter without any proper application of mind. It is submitted that the case
of frauds needs to be dealt with appropriately and laxity of the nature shown in this
case defeated the ends of justice and the wrong precedent was set for the prospective
offenders. It is submitted that therefore in order to ensure that the accused does not
escape from the natural consequences of his fraudulent acts, recourse was therefore
taken to terminate his services under Section 20 of the Army Act read with Rule 17 of
the Army Rules. It is submitted that therefore the action of termination under Section
20 of the Army Act read with Rule 17 is legally in order, as Rule 17 provides for
dismissal of a person convicted by a Court Martial whose retention in service is not
desirable.
21. Now so far as the submission on behalf of the appellant on exercise of the
powers by the Chief of Army Staff under Section 163 of the Army Act is concerned,
learned Senior Advocate appearing on behalf of the respondents has heavily relied
upon the decision of this Court in the case of Union of India v. Harjeet Singh Sandhu
reported in (2001) 5 SCC 593. It is submitted that in the aforesaid decision, this Court
considered in detail the entire scheme of the Army Act and the Rules with respect to
Summary Court Martial etc. and the powers of the Commanding in Chief Staff under
Section 20 of the Army Act read with Rule 17 of the Army Rules, and the case of an
officer whose service is proposed to be terminated on the ground of misconduct which
has led to his conviction by a criminal Court. It is submitted that in the aforesaid
decision, this Court recognised the independent powers under Section 20 of the Army
Act read with Rule 17 of the Army Rules. Relying upon the aforesaid decision, it is
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vehemently submitted by the learned Senior Advocate appearing on behalf of the

respondents that the proceedings under Section 20 of the Army Act are administrative
in nature and not on the same footing as that of a Court Martial proceedings. It is
further submitted that there cannot be a case of double jeopardy as the action taken
under Section 20 of the Army Act cannot be considered to be a “prosecution” under
Article 20(2) of the Constitution of India.
22. Learned Senior Advocate appearing on behalf of the respondents has heavily
relied upon the decision of this Court in the case of Chief of Army Staff v. Major
Dharam Pal Kukrety reported in (1985) 2 SCC 412 in support of her submission that in
the present case the exercise of powers by the Chief of Army Staff under Section 20 of
the Army Act does not suffer from any illegality.
the respondents that even otherwise on merits also, the order of termination passed
by respondent no. 3 in exercise of powers under Section 20 of the Army Act read with
rule 17 of the Army Rules is not required to be interfered with.
24. It is submitted that in the present case the initial show cause notice dated
24.3.2000 clearly set out that the conduct which led to reduction in rank by the
Summary Court Martial was fraudulent in nature and therefore the appellant was
called upon to show cause as to why action under Section 20 of the Army Act read
with Rule 17 of the Army Rules be not taken. It is submitted that in reply thereto, the
appellant categorically stated that he was not present in the unit till 29.2.1996. It is
submitted that the assertion of the appellant's reply regarding his absence was
subject of a Court of Inquiry presided by a Colonel which found the said statement to
be incorrect and recommended suitable disciplinary action. It is submitted that on the
basis of the opinion of the Court of Inquiry, the Brigade Commander recommended
disciplinary action for giving false and misleading reply to the show cause notice. It is
submitted that it was in the above background a further independent show cause
notice dated 17.4.2001 was issued to the appellant to show cause as to why he should
not be discharged under Rule 13(3) item III(v) as his services are no longer required,
being undesirable. It is submitted that power to discharge is under Section 22 of the
Army Act. It is submitted that the appellant has duly understood the difference
between the two show cause notices, namely, show cause notice dated 24.3.2000 and
the subsequent show cause notice dated 17.4.2001 and replied accordingly on
14.6.2001. It is submitted that the first show cause notice dated 24.3.2000 was
issued under Rule 17 which provides for dismissal or removal from service while the
second show cause notice was for discharge under Section 22 read with Rule 13. It is
submitted that both the show cause notices were issued in exercise of distinct powers
vested under the Army Act and the Army Rules. It is submitted that eventually the
order dated 29.4.2002 for dismissal has been passed under Section 20 of the Army
Act read with Rule 17 of the Army Rules. It is submitted that therefore the procedural
requirements of Section 20 of the Army Act read with Rule 17 have been duly
complied with. It is submitted that there is no contention regarding any non-
compliance of any procedural requirement. It is submitted that the only issue raised
was availability of the power to initiate administrative action after the proceedings of
Court Martial have attained finality. It is submitted that thereafter having been
satisfied that in the larger interest the appellant cannot be continued in service and
therefore his services have rightly been terminated/he is rightly dismissed from
service under Section 20 of the Army Act read with Rule 17 of the Army Rules.
25. Making the above submissions and relying upon the aforesaid decisions of this
Court, it is prayed to dismiss the present appeal.
26. We have heard the learned counsel appearing for the respective parties at
length.
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27. At the outset, it is required to be noted that in the present case, the appellant
has been dismissed from service by the Commander, respondent no. 3 herein, while
exercising powers under Section 20 of the Army Act read with Rule 17 of the Army
Rules.
28. It is the case on behalf of the appellant that as earlier he was subjected to the
Summary Court Martial for the very charges of misconduct for which the order of
dismissal has been passed and earlier the Summary Court Martial passed an order of
reduction in rank, the subsequent order of dismissal passed by respondent no. 3
herein in exercise of powers under Section 20 of the Army Act is bad in law and would
be violative of the principle of double jeopardy.
29. On the other hand, it is the case on behalf of the department that power of
dismissal under Section 20 of the Army Act vested with the Chief of Army Staff and
other officers is an independent power and the two Sections, Section 20 and 71 of the
Army Act, are, therefore, mutually exclusive. While considering the submission on
behalf of the department that power under Section 20 of the Army Act is an
independent power vested with the Chief of Army Staff and other officers, the decision
of this Court in the case of Harjeet Singh Sandhu (supra) is required to be referred to
and considered.
30. While considering the similar power of termination of service by the Central
Government under Section 19 of the Army Act, it is observed and held by this Court
that power under Section 19 (vested with the Central Government) is an independent
power. It is further observed and held by this Court in the aforesaid decision that the
Central Government or the Chief of the Army Staff may arrive at a satisfaction that it
is inexpedient or impracticable to have the officer tried by a Court Martial, then the
Court Martial may not be convened and additionally, subject to formation of the
opinion as to undesirability of the officer for further retention in the service, the power
under Section 19 read with Rule 14 may be exercised. It is further observed and held
that such a decision under Section 19 read with Rule 14 may be taken either before
convening the Court Martial or even after it has been convened and commenced,
subject to satisfaction as to the trial by a Court Martial becoming inexpedient or
impracticable at which stage the Central Government or the Chief of the Army Staff
may revert back to Section 19 read with Rule 14. At the same time, it is further
observed and held that there shall be finality to the finding and sentence of Court
Martial subject to their being confirmed and not annulled. It is further observed that
questions of correctness, legality and propriety of the order passed by any Court
Martial and the regularity of any proceedings to which the order of Court Martial relates
can be raised by way of petition under Section 164. It is further observed that once
the finding and the sentence, if any, have been confirmed, the Court Martial being a
Special Tribunal dispensing military justice, it would not be permissible to exercise
additionally the power conferred by Section 19 read with Rule 14 and to inflict a
penalty thereunder if the Court Martial has not chosen to inflict the same by way of
punishment under Section 71. It is further observed that to permit such a course
would be violative of the principle of double jeopardy and would also be subversive of
the efficacy of the Court Martial proceedings, finding and sentence. It is further
observed and held that so long as a final verdict of guilty or not guilty, pronounced by
a Court Martial and confirmed by the competent authority so as to be effective is not
available, the power to proceed under Section 19 read with Rule 14(2) exists and
remains available to be exercised.
31. In light of the aforesaid observations and the law laid down by this Court, the
order of dismissal dismissing the appellant from service which was passed by
respondent no. 3 herein in exercise of power under Section 20 of the Army Act and its
legality is required to be considered.
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32. From the facts emerging from the record, it appears that earlier the appellant
was subjected to Summary Court Martial on the following lapses:
“(a) Not correctly preparing certified Receipt convoy note against receipt convoy
note 599 date 27 Feb. 1996.
(b) Not dispatching the consignments pertaining to OTG and receipt Convoy Note
on 29th Feb. 1996 and 02 March, 1996 and instead dispatching consignments
pertaining to receipt convoy Notes of others.
(c) Furnishing false information to the court that buckets steel Qty 3700 were not
received in OTG contrary to the fact that Qty 268 packages of buckets steel were
unloaded in OTG on 27 Feb. 1996.”
33. However, it is required to be noted that at the relevant time, the aforesaid
lapses/charges were not considered to be fraudulent in nature and the appellant was
tried by Summary Court Martial for the said lapses/charges under Section 63 of the
Army Act. Thereafter, the appellant was inflicted with the penalty of reduction in rank.
Nothing is on record that the order passed by the Summary Court Martial by which the
appellant was reduced in rank was even confirmed by the Chief of the Army Staff in
exercise of powers under Section 164 of the Army Act. Therefore, it cannot be said
that the order passed by the Summary Court Martial by which the appellant was
inflicted with the penalty of reduction in rank attained finality on being confirmed by
the competent authority (in the present case the Chief of the Army Staff). Therefore,
considering the observations made by this Court in paragraphs 24 to 27(more
particularly, paragraph 27) in the case of Harjeet Singh Sandhu (supra), it was open
for the competent authority to exercise powers under Section 20 of the Army Act read
with Rule 17 of the Army Rules. The power vested with the Chief of the Army Staff and
conferred under Section 20 of the Army Act is an independent power available and for
which the procedure under Rule 17 of the Army Rules is required to be followed,
however, subject to the restrictions as observed by this Court in paragraph 27 in the
case of Harjeet Singh Sandhu (supra). Meaning thereby that only in a case where the
final verdict of guilty or not guilty pronounced by a Court Martial has been confirmed
by the competent authority and has attained finality, the power to proceed under
Section 19 read with Rule 14 or Section 20 read with Rule 17 shall not be available to
be exercised. In other words, so long as a final verdict of guilty or not guilty
pronounced by a Court Martial and confirmed by the competent authority as to be
effective is not available, the power to proceed under Section 19 read with Rule 14 or
Section 20 read with Rule 17, as the case may be, exists and remains available to be
exercised. Therefore, in the facts and circumstances of the case and in the absence of
any confirmation of the order passed by the Summary Court Martial by which he
appellant was reduced to rank, the respondent no. 3 herein was justified in exercising
the power under Section 20 read with Rule 17. At this stage, it is required to be noted
that while exercising the power under Section 20 of the Army Act, the only procedure
which is required to be followed would be under rule 17 of the Army Rules, namely, a
person who is sought to be dismissed or removed from service has been informed of
the particulars of the cause of action against him and allowed reasonable time to state
in writing any reasons he may have to urge against his dismissal or removal from the
service. In the present case, such an opportunity has been given to the appellant and
therefore the proper procedure has been followed before dismissing the appellant from
service, in exercise of powers under Section 20 of the Army Act.
34. Now so far as the submission on behalf of the appellant that the order of
dismissal passed under Section 20 of the Army Act would be violative of the principle
of double jeopardy is concerned, for the reasons stated above, the same cannot be
accepted. There is one another reason also why the order of dismissal under Section
20 of the Army Act cannot be said to be violative of the principle of double jeopardy. It
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is required to be noted that when earlier the appellant was treated by the Summary
Court Martial, he was tried for the offences under Section 63 of the Army Act only.
However, subsequently the Chief of the Army Staff was of the opinion that the
particulars of charges for which earlier the appellant was tried by the Summary Court
Martial and which were tried under Section 63 of the Army Act disclose that the
offences were fraudulent in nature. Therefore, while treating and considering the
offences as fraudulent in nature and thereafter after giving an opportunity to the
appellant as required under Rule 17 and thereafter having been satisfied that the
appellant cannot be continued in service, the order of dismissal has been passed by
respondent no. 3 herein in exercise of powers under Section 20 of the Army Act read
with Rule 17 of the Army Rules and the said order of dismissal has been confirmed by
the Chief of the Army Staff while exercising the powers under Section 164 of the Army
Act on a petition filed by the appellant. Therefore, in the facts and circumstances of
the case, the order of dismissal passed under Section 20 of the Army Act and
confirmed by the Chief of the Army Staff cannot be said to be violative of the principle
of double jeopardy.
35. Now so far as the submission on behalf of the department that subsequently
the appellant was served with the show cause notice dated 17.04.2001 by which the
appellant was called upon to show cause as to why he should not be discharged under
Rule 13(3) item III(v) which was on the allegation that in reply dated 10.04.2000 to
the show cause notice dated 24.03.2000, the appellant made a false and misleading
reply and thereafter the Court of Enquiry was conducted and thereafter having found
that the services of the appellant is no longer required being undesirable and therefore
the order of discharge has been passed after following due procedure is concerned, it
is required to be noted that the order of dismissal which is the subject matter of the
present appeal has not been passed under Rule 13(3) item III(v). The order of
dismissal in the present case is specifically passed under Section 20 of the Army Act
read with Rule 17 of the Army Rules. Therefore, the justification of the order of
dismissal which is the subject matter of the present appeal on the aforesaid ground is
not sustainable. However, at the same time, and for the reasons stated above, order of
dismissal dated 29.04.2002 which was the subject matter before the High Court and
even before this Court which has been passed under Section 20 of the Army Act read
with Rule 17 of the Army Rules is just, proper, legal and valid and the same is rightly
not interfered by the High Court. We are in complete agreement with the ultimate
conclusion arrived at by the High Court in the impugned judgment and order.
36. In view of the above and for the reasons stated above, the present appeal fails
and is liable to be dismissed and is accordingly dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
———
© EBC Publishing Pvt.Ltd., Lucknow.

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UNION OF INDIA v. CHANDRA BHUSHAN YADAV 747

2020
(BEFORE L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.) Jan. 17
a
UNION OF INDIA AND OTHERS Appellants;
Versus 2-Judge
CHANDRA BHUSHAN YADAV Respondent. Bench
Civil Appeals No. 18830 of 2017t with

No. 7 440 of 2018, decided on January 17, 2020
b A. Armed Forces-Air Force Act, 1950- S. 52(c) r/w Para 804(b) of Air
Force Regulations, 1964 r/w Ss. 154 and 5 CrPC - Inapplicability of CrPC
to matters covered by Air Force Act
- Registration of FIR for alleged offence of theft and misappropriation of
kerosene and diesel, committed by Air Force personnel from Diesel and Petrol
Store of Air Force - Held, was not mandatory since CrPC is inapplicable to
C matters covered by Air Force Act which is a special law conferring jurisdiction
and powers on court martial - Finding recorded by Tribunal that it was
mandatory for authorities to report offences to civil police for registration of
FIR unsustainable - Para 804(b) of Regulations makes it clear that reporting of
offence of theft to civil police is optional and only when circumstances warrant,
competent authority may do so - Air Force Regulations, 1964- Para 804(b)
d - Criminal Procedure Code, 1973, Ss. 5 and 154 (Paras 9 to 13)
Ajmer Singh v. Union of India, (1987) 3 SCC 340 : 1987 SCC (Cri) 499, relied on
B. Armed Forces - Air Force Rules, 1969 - Rr. 156(2), (6) and (7) -
Court of inquiry - Natural justice - Compliance - Failure to avail of
opportunity duly given to produce documentary evidence and cross-examine
witnesses, held, not violative
e Opportunity to examine/cross-examine witnesses, produce
documentary evidence granted to respondent which he failed to avail i.e.
respondent's statement dt. 19-7-2000 to effect that he did not wish to cross-
examine witnesses or produce documentary evidence in his defence, produced
before Supreme Court - Hence held, there was no violation of R. 156
- Tribunal erred in holding otherwise - Court of Inquiry/Disciplinary
proceedings (Paras 14 to 17)
f
C. Armed Forces - Air Force Act, 1950 - S. 111 - Convening of court
martial - Competent authority
- Order convening court martial signed by Group Captain who was Senior
Personnel Staff Officer for the AOC-in-C Maintenance Command but was
issued in name of Air Marshal - Hence held, convening order had approval of
g competent authority and was valid - Court Martial - Air Force Rules, 1969,
R. 43(4) (Paras 18 to 22)
Union of India v. G.S. Bajwa, (2003) 9 SCC 630, relied on
G.S. Bajwa v. Union of India, 1995 SCC OnLine Del 532 : ILR (1996) 1 Del 457, held,
reversed
t Arising from the Judgment and Order in Chandra Bhushan Yadav v. Union of India, 2017
SCC OnLine AFT 412 [Armed Forces Tribunal (RB), Lucknow Bench, TA No. 1288 of 2010,
h
dt. 18-4-2017] and MA No. 858 of 2017 in TA No . 1288 of 2010 [Armed Forces Tribunal (RB),
Lucknow Bench, dt. 22-5-2017]
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D. Armed Forces - Air Force Act, 1950 - S. 52(c) - Breach of trust
of property belonging to Government i.e. illegal transportation of petrol,
oil & lubricants (POL) alleged - Held, in absence of any evidence against
a
respondent connecting him to offence of illegal transportation of POL,
judgment of Tribunal setting aside conviction of respondent calls for no
interference
- PW 1 failing to identify signatures appended to vouchers - PW 2
Record Keeper in Security Section deposing that he was not aware as to
who was responsible for issuance of kerosene oil - PW 3 not remembering b
dates and data with regard to deficiency of POL and further deposing that no
deficiency was found in POL during weekly snap checks from February-May
2000 nor respondent was responsible for issuance of kerosene oil during those
months (alleged period of misappropriation) - PW 4 admitting that there was
no deficiency of diesel at time of handing and taking over of duty by respondent
- PW 5 having no personal knowledge of evidence since he was on leave but C
stating that there was no deficiency or surplus of POL - Testimony of co-
accused PW 6 not found reliable - PW s 7 , 8 and 9 categorically stating that
loading and off-loading of diesel was in presence or under instructions from M
- No action taken against M who was actually involved in transportation of
diesel barrels and loading and off-loading in civil areas (Paras 23 to 25)
Chandra Bhushan Yadav v. Union of India, 2017 SCC OnLine AFT 412, affirmed d
E. Armed Forces - Reinstatement/Back Wages/Arrears - Tribunal
while setting aside punishment of dismissal, reduction of rank and sentence
of RI for 3 months imposed by DCM, granting respondent 50% of arrears of
salary - Order of Tribunal not interfered with (Para 26)
Appeals dismissed P-D/63517 /CLR
Advocates who appeared in this case : e
R. Balasubramanian, Senior Advocate (Syed Shahid Husain Rizvi, S.K. Tyagi, Rajesh
Kr. Singh, Santosh Kr. Vishwakarma, Arvind Kr. Sharma, Mukesh Kr. Maroria, Yadav
Narender Singh, Deepak Kumar, Prerit Shukla, Advocates) for the Appellants;
Vinay Kumar Garg, Senior Advocate (Yadav Narender Singh, Abhishek Singh, Ashutosh
Yadav, Jagdish Parshad, Preprit Shukla, Deepak Kumar, Kunal Vajani, Lalit Kumar,
Kunal Mimani, Arvind Kr. Sharma, Advocates) for the Respondents .
Chronological list of cases cited on page(s) f
1. 2017 SCC OnLine AFT 412, Chandra Bhushan Yadav v. Union of
India 748h, 755f, 755f-g, 755g
2. (2003) 9 SCC 630, Union of India v. G.S. Bajwa 753b-c
3. 1995 SCC OnLine Del 532: ILR (1996) 1 Del 457, G.S. Bajwa v.
Union of India (held, reversed) 753c
4. (1987) 3 sec 340: 1987 sec (Cri) 499, Ajmer Singh v. Union of
India 750h, 75 la g
L. NAGESWARA RAo, J.-The district court martial imposed a punishment
of dismissal of the respondent from service and reduction of the ranks apart
from sentencing him to rigorous imprisonment for three months. The Armed
Forces Tribunal, Regional Bench, Lucknow (for short "the Tribunal") set aside 1
h
l Chandra Bhushan Yadav v. Union of India, 2017 SCC OnLine AFT 412
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UNION OF INDIA v. CHANDRA BHUSHAN YADAV (Nageswara Rao, ].) 749

the order of the district court martial aggrieved by which the Union of India
has filed this appeal.
a 2. The respondent was enrolled in the Indian Air Force in the trade of
Equipment Assistant on 18-1-1988. He was posted to 402 Air Force Station,
Kanpur in August 1997. The respondent was assigned duty in Diesel and Petrol
Store on 2-2-2000. Information was received from a civilian on 3-5-2000 that
7 barrels of diesel were unloaded in civil area at Pappu Ka Plot at about 1400
hrs. on 2-5-2000. The informant informed 4 Provost & Security (Unit), Air
Force, Kanpur, that he saw two airmen in uniform, out of which one was of dark
b complexion. The informant further stated that a similar incident of unloading
of barrels was observed by him on 20-4-2000 also as well.
3. A detailed report was sent by 4 Provost & Security (Unit), Air Force,
Kanpur by a letter dated 10-5-2000 in which it was indicated that the respondent
herein and Corporal G.S. Mani, Equipment Assistant were involved in taking
out POL (Petrol, Oil & Lubricants) belonging to Air Force Station, Kanpur.
C
Air-Officer Commanding, 402 Air Force Station, Kanpur directed a court of
inquiry to be convened. By its report dated 31-5-2000, the court of inquiry
found that DHPP quantity of 5800 1 and petrol of 5000 1 was misappropriated
by the respondent and the then Corporal G .S. Mani, Equipment Assistant.
4. According to the report, manipulation was done by raising gate passes
for a quantity more than which was authorised by issuance of vouchers and
obtaining the signature of Senior Logistic Officer on such gate passes. The said
d gate passes were used to take out kerosene, diesel and petrol. A second set of
vouchers were prepared for the purpose of issuing gate passes when items were
taken out of guard room, which were later destroyed after safe passage from the
guard room. The misappropriated items were disposed of in the civil area. On
the basis of the said finding, the court of inquiry recommended the following
actions:
e (a) Initiate strict disciplinary action against Corporal C.B. Yadav
(respondent) and others involved in the said action;
(b) To make good the loss incurred due to such action and to recover
the cost of quantity DHPP 400 1 and quantity 200 l of petrol (Rs 68,520).
5. An additional court of inquiry was ordered to further investigate into
certain other aspects not covered by the court of inquiry. By the Report
f dated 12-7-2007, the additional court of inquiry found that the respondent had
prepared the gate passes in advance on some occasions. The record of the
court of inquiry and additional court of inquiry proceedings were forwarded
to the Headquarters, Maintenance Command on 26-7-2000. The court of
inquiry proceedings were approved by the AOC-in-C, Maintenance Command,
pursuant to which disciplinary action was initiated against the respondent and
g others.
6. A charge-sheet was framed containing 14 charges and a hearing of
charge under Rule 24 of the Air Force Rules, 1969 (for short "the Rules")
was conducted before the Air Officer Commanding-in-Chief. The AOC-in-C
ordered evidence to be recorded in writing. After considering the summary of
evidence, the AOC-in-C found that there was insufficient evidence to sustain
Charges 1 to 5 and therefore, those charges were dropped. A charge-sheet
h containing fresh charges was issued.
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7. On 27-8-2001, AOC-in-C Headquarters, Maintenance Command
convened a district court martial for trial of the respondent. The district court
martial found the respondent guilty and imposed a punishment of dismissal a
from service and reduction of the rank apart from sentencing the respondent to
rigorous imprisonment for three months. The order dated 25-10-2001 was set
aside by the Tribunal. The respondent was directed to have been in continuous
service for the purpose of pension and other service benefits. However, arrears
of salary was confined to 50%.
8. The Tribunal held that the allegation against the respondent being theft
and misappropriation of kerosene and diesel, the loss caused due to theft b
required to be reported to the civil police as per Para 804(b) of the Regulations.
By referring to Section 154 of the Code of Criminal Procedure, 1973 (for short
"CrPC"), the Tribunal held that it is mandatory that a first information report
(FIR) had to be registered in a cognizable case. The Tribunal observed that the
respondent was not given an opportunity in terms of Rule 156 of the Rules
during the court ofinquiry proceedings. In view of the violation of sub-rules (2), C
( 6) and (7) of Rule 156 of the Air Force Rules, the Tribunal was of the view that
the proceedings of the court of inquiry were vitiated. The contention on behalf
of the respondent that there was violation of Rule 24 of the Rules and that the
summary of evidence was also not recorded in accordance with the prescribed
procedure, was not accepted by the Tribunal. Group Captain A.K. Gurtu, Senior
Personnel Staff Officer (SPSO), Headquarters for Air Officer, Commanding- d
in-Chief signed the order by which the district court martial was convened
which, according to the Tribunal was in violation of Section 111 of the Act
and Rule 43(4) of the Rules. The Tribunal observed that only the AOC-in-C is
competent to convene the district court martial. The Tribunal reappreciated the
evidence and came to the conclusion that the charges against the respondent
were not proved beyond reasonable doubt.
e
First information report (FIR)
9. Mr Vinay Kumar Garg, learned Senior Counsel appearing on behalf
of the respondent submitted that Para 804(b) of the Regulations imposes an
obligation that a loss caused due to theft should be reported to the civil
police. He supported the finding of the Tribunal that there is requirement of
compulsory registration of FIR in view of the provisions of Section 154 CrPC.
f
Mr R. Balasubramanian, learned Senior Counsel appearing for the Union of
India submitted that Para 804(b) of the Regulations is not mandatory. It is open
to the authorities to report a theft to the civil police if the situation warrants.
He submitted that the Air Force Act, 1950 and the Air Force Regulations, 1964
govern the conduct and discipline of the Air Force. The Air Force Act, 1950
is a special law in which detailed procedure for conducting of trial by a court
martial has been prescribed and no requirement for registration of an FIR is g
mandatory under the Rules therein. The conduct of trial including investigation
is covered under the Air Force Act and the Rules. He referred to Section 5 CrPC
to submit that CrPC is not applicable to the personnel governed under the Air
Force Act. He relied upon the judgment of this Court in Ajmer Singh v. Union
of lndia 2 in support of his argument.
h
2 (1987) 3 sec 340 : 1987 sec (Cri) 499
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UNION OF INDIA v. CHANDRA BHUSHAN YADAV (Nageswara Rao,].) 751

10. In Ajmer Singh 2 , it was held as follows: (SCC p. 343, para 7)
"7. Section 5 of the Code of Criminal Procedure lays down that nothing
a contained in the said Code shall, in the absence of a specific provision
to the contrary, affect any special or local law for the time being in
force, or any special jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the time being in force.
The relevant Chapters of the Army Act, the Navy Act and the Air Force
Act embody a completely self-contained comprehensive Code specifying
the various offences under those Acts and prescribing the procedure for
b detention and custody of offenders, investigation and trial of the offenders
by court martial, the punishments to be awarded for the various offences,
confirmation and revision of the sentences imposed by court martial, the
execution of such sentences and the grant of pardons, remissions and
suspensions in respect of such sentences. These enactments, therefore,
constitute a special law in force conferring special jurisdiction and powers
C
on court martial and prescribing a special form of procedure for the trial
of the offences under those Acts. The effect of Section 5 of the Code of
Criminal Procedure is to render the provisions of the Code of Criminal
Procedure inapplicable in respect of all matters covered by such special
law."
11. It is clear from the above that the Air Force Act is a special law
conferring jurisdiction and powers on the court martial and prescribing the
d procedure for trial of offences. It is also clear that the Code of Criminal
Procedure is not applicable in respect of matters covered by the Air Force
Act. Hence, the finding recorded by the Tribunal that it is mandatory for the
authorities to report the offences to civil police for registration of an FIR is
unsustainable. The Tribunal further relied upon Para 804(b) of the Regulations
to hold that it is incumbent on the part of the authorities to report an offence to
e the civil police for registration of an FIR.
12. Para 804(b) is as follows:
"804.Loss ofAir Force equipmentandfoodstuffs.-(a) * * *
(b) A loss which is supposed to be due to theft will be reported at once to
the civil police, when the circumstances warrant the course of action. In any
court of inquiry which may subsequently be held, evidence will be taken to
f show the date on which the loss was so reported."
13. There can be no doubt from a plain reading of the Regulations that the
reporting of an offence of theft to the civil police is optional. Only when the
circumstances warrant such reporting to the civil police, the competent officer
can do so. For the aforementioned reasons, Para 804(b) of the Regulations of
the Air Force Act cannot be said to be mandatory.
g Court of inquiry
14. The contention of the respondent which was accepted by the Tribunal
relates to the violation of sub-rules (2), (6) and (7) of Rule 156. It is necessary
to reproduce sub-rules (2), ( 6) and (7) of Rule 156 which are as under:
"156. Courts of inquiry other than those held under Section 107.-(1)
h * * *
2 Ajmer Singh v. Union of India, (1987) 3 SCC 340 : 1987 SCC (Cri) 499
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(2) Save in the case of a prisoner of war who is still absent, whenever any
inquiry affects the character or service 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 statements and of giving any evidence he may a
wish to make or give, and of cross-examining and witness whose evidence,
in his opinion, affects his character or service reputation, and producing any
witnesses in defence of his character or service reputation.
(3)-(5) * * *
(6) The proceedings of a court of inquiry, or any confession or statement or
answer to a question made or given at a court of inquiry, shall not be admissible b
in evidence against a person subject to Air Force Law, nor shall any evidence
respecting the proceedings of the court be given against any such person except
upon the trial of such person for wilfully giving false evidence before that
court.
(7) Any person subject to the Act whose character or service reputation is,
in the opinion of the Chief of the Air Staff, affected by anything in the evidence C
before or in the report of a court of inquiry shall be entitled to a copy of the
proceedings of such court unless the Chief of the Air Staff sees reason to order
otherwise."
15. The Tribunal was of the view that the respondent was not given
sufficient opportunity to defend himself during the course of the proceedings
before the court of inquiry. d
16. According to the respondent, he was not permitted to be present during
the recording of statement of witnesses. He was also deprived of an opportunity
to cross-examine the witnesses. The contention on behalf of the Union of India
is that the respondent was given an opportunity to make a statement and to
cross-examine witnesses. He was also given a chance to produce documentary
evidence. The respondent made a statement on 19-7-2000 to the effect that
he did not wish to cross-examine witnesses and to produce any documentary e
evidence in his defence.
17. The statement made by the respondent was produced before us which
indicates that he did not utilise the opportunity given to him. Therefore, it
cannot be held that there is violation of Rule 156 of the Rules and the Tribunal
committed an error in holding that the proceedings of court of inquiry are
vitiated. f
Convening order
18. The contention of the respondent is that Group Captain A.K. Gurtu,
Senior Personnel Staff Officer (SPSO), Headquarters MC IAF signed the order
by which the district court martial was convened. It is urged that AOC-in-
C is the competent authority to convene the court martial. The Union of g
India justified the order by which the district court martial was convened in
accordance with the Air Force Rules.
19. Section 111 of the Air Force Act provides that district court martial may
be convened by an officer having power to convene a general court martial, or
by an officer empowered by warrant of any such officer. Rule 43 deals with
h
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convening of General and district court martials. Rule 43(4) which is relevant
for our purpose reads as under:
a "43. Convening of general and district court martial.-(!)-
(3) * * *
(4) After the convening officer has appointed or detailed the officer to form
a court martial under sub-rule (3), convening order of the court martial and
endorsement on the charge-sheet for trial of the accused by court-martial may
either be signed by convening officer or by a staff officer on his behalf. The
b charge-sheet on which the accused to be tried, the summary of evidence and the
convening order for assembly of court martial shall then be sent to the senior
officer of court martial and the Judge-Advocate, if appointed."
20. In Union of India v. G.S. Bajwa3, this Court examined the issue
pertaining to the authority competent to convene the court martial and held as
follows: (SCC p. 651, para 44)
C
"44. A ground was taken before the High Court4 (Ground/) that the
convening of the general court martial was signed by an officer, in whose
name no delegation or such authority had ever been made. In reply thereto
the appellant had submitted that the convening order was signed by the
said officer on behalf of the Air Officer In-charge Personnel, who had
after due application of mind, issued the order for convening the above
d court martial. It was not disputed before us that the Air Officer In-charge
Personnel (AOP) was empowered to convene a court martial. The only
question which, therefore, requires consideration is whether the order
convening the general court martial was passed by the AOP and it was only
formally communicated under signatures of the Air Commodore concerned
or whether the Air Commodore named therein, who was not empowered,
e himself passed the convening order. With a view to avoid any controversy
on this factual position, we directed the appellant to produce before us
the original file. We have perused the file and we find that the order for
convening the general court martial was approved by Air Marshal D.A.
LaFontaine, AOP. There is, therefore, no force in the submission that the
convening order was unauthorised and, therefore, illegal."
f
21. The order dated 18-8-2001 by which the district court martial was
convened is issued in the name of Air Marshall S.S. Gupta, PVSM, AVSM,
VSM, ADC, Air Officer Commanding-in-Chief, Maintenance Command.
There is no doubt that the order was signed by Group Captain A.K. Gurtu,
SPSO, Headquarters MC IAF who is the Personnel Staff Officer for Air Officer
Commanding-in-Chief, Maintenance Command, IAF. Rule 43(4) provides that
a convening order may be signed by the Commanding Officer or by the Senior
g Staff Officer on his behalf. The fact that Group Captain A.K. Gurtu was the
Senior Personnel Staff Officer for the AOC-in-C Maintenance Command, IAF
is not in dispute. A perusal of the record reveals that the convening order had
the approval of the competent authority and as such, it cannot be termed as
unauthorised. Another submission that was made by the learned Senior Counsel
for the respondent is that according to the organisational chart of Headquarters
h
3 (2003) 9 sec 630
4 G.S. Bajwa v. Union of India, l 995 SCC OnLine Del 532 : ILR (1996) 1 Del 457
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MC IAF it is only Senior Air & Administrative Staff Officer (SAAS0) who can
be the Staff Officer of the AOC-in-C. The said submission was countered by
the learned Senior Counsel for the Union oflndia. It was contended that Group
a
Captain A.K. Gurtu was Senior Personnel Staff Officer (SPSO) and lesser than
that of Senior Air & Administrative Staff Officer (SAAS0) in the hierarchy.
There is no requirement that only SAAS0 can be the Staff Officer to AoC-in-C.
Even officers lower than SAAS0 can be appointed as Staff Officers. According
to Mr R. Balasubramanian, learned Senior Counsel, it is evident from the order
itself that Group Captain A.K. Gurtu who is Senior Personnel Staff Officer
(SPSO) was the Staff Officer and competent to sign the convening order. b
22. The convening order which was signed by the Staff Officer of the AoC-
in-C is in accord with Rule 43(4) of the Rule and no fault can be found with
the order. The Tribunal committed an error in holding that the convening order
was by an officer who was not competent.
Charges 5 and 6
23. The district court martial found the respondent guilty of Charges 1, 2, C
5 and 6. He was exonerated of Charges 3 and 4. The confirmation authority
held that there was no sufficient evidence in relation to Charges 1 and 2 and
they were dropped. What remains to be seen is whether Charges 5 and 6 are
established. Charges 5 and 6 are as follows:
( "Fifth charge Committing criminal breach of trust in respect of property ! d

j Section 52(c) Air Force belonging to the Govt. 1
!Act, 1950 l
1 In that he, at 402 AF Station, on 20-4-2000, being the 1
1 NCO i/c POL, Stores of 402 AF Station and in that 1
j capacity entrusted with POL Stores of the unit, dishonestly 1
j misappropriated 1400 l of DHPP(N), by raising IAFF(Q) j
i 429 No. EX/IV/P/10 (2000-2001) for 200 l of Petrol 87 l e
j MT 800 l of DHPP(N), but physically issuing 702670-K )
j Cpl Mani GS Eqpt Asst of 7 AF Hospital 200 l of Petrol j
i 87 MT, 2200 l DHPP(N) and nil Kerosene oil quantity,!
1 by writing quantity 200 l of Petrol 87 MT, 800 l of 1
1 DHPP(N) and 14001 of kerosene oil on Gate Pass No . 3129 j
j . dated 29-4-2000. 1
( Sixth charge Committing criminal breach of trust in respect of property ! f
j Section 52(c) Air Force belonging to the Govt. 1
!Act, 1950 l
j In that he, at 402 AF Station, on 2-5-2000 being the 1
i NCO i/c POL, stores of 402 AF Station and in that l
1 capacity entrusted with POL stores of the unit, dishonestly 1
j misappropriated 1400 1 of DHPP(N), by making use of 1
j two sets of IAFF(Q) 429 bearing same Serial No. EX/IV/ 1 g
i P/16 (2000-2001) for a single transaction of issue of POL l
j to 7 AF Hospital first set (receipted blue) showing issue 1
i of 2400 1 of Kerosene oil only and second set (original!
1 black) showing issue of 2400 1of kerosene oil and 1400 1of 1
j DHPP(N), and physically issuing to 702670-K Cpl Mani 1
j GS Eqpt Asst of 7 AF Hospital as per second set and Gate 1
h
L......................................... Pass.No .. 3131 .dated.2-5-2000." ............................................J
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24. The Tribunal on a reconsideration of the evidence on record concluded
that Charges 5 and 6 were not established beyond reasonable doubt. PW 1
Corporal M.K. Sharma failed to identify the signatures appended on the
a
vouchers. PW 2 Sergeant L. Singh who was the Record Keeper in Security
Section deposed that he was not aware as to who was responsible for the
issuance of kerosene oil. W.O. S.K. Singh who was examined as PW 3, does not
remember the dates and data with regard to deficiencies of POL. He stated that
no deficiency was found in POL during the weekly snap checks from February-
May 2000. He further stated that the respondent was not related to issuance of
b kerosene oil during the months of February-May 2000. Wing Commander J.K.
Chakraborty who appeared as PW 4 admitted that there was no deficiency of
diesel at the time of handing and taking over of duty by the respondent. PW 5
Flight Lieutenant Arvind Kumar had no personal knowledge of the evidence
as he was on leave. However, he stated that there was no surplus or deficiency
of POL. PW 6 Corporal G.S. Mani admitted to unloading seven empty barrels
at Pardevanpurwa on 20-4-2000 at the request of the respondent. He further
C
stated that an amount of Rs 1500 was forcibly given by the respondent. He
also stated that he carried 20 barrels for collecting 2400 1 of kerosene oil and
again collected seven barrels on 2-5-2000. During cross-examination, he was
confronted with his previous statement wherein he stated that he was coerced
to make a statement against the respondent. In view of the contradictions made
by PW 6 who is the co-accused, the Tribunal held that he is not a reliable
d witness. PW 7 Corporal S. Singh categorically stated that the loading of barrels
containing POL was at the behest of Corporal G.S. Mani. PW 8 Hasan R.
Lascar who was working in the Medical Ward stated that he loaded empty
barrels on the instructions of Corporal G .S. Mani. PW 9 Rajendra Prasad Lascar
also stated that loading and off-loading of diesel at Pardevanpurwa was in the
presence of Corporal G.S. Mani.
25. We have examined the evidence to satisfy ourselves as to whether there
e
is an iota of evidence against the respondent. It appears from the evidence that
Corporal G .S. Mani was actively involved in the transportation of diesel barrels
and loading and off-loading in the civil area. Curiously no action was taken
against Corporal G.S. Mani. There is no evidence on record to connect the
respondent to the offence of illegal transportation of POL. Though we are not in
agreement with the Tribunal on the other issues, in view of lack of any evidence
f against the respondent, we are inclined to uphold the judgment 1 of the Tribunal.
The appeal is dismissed.
26. This appeal has been filed by the respondent aggrieved by the
directions 1 of the Tribunal that the appellant shall pay only 50% of the arrears
of salary. After considering the submissions of the learned Senior Counsel,
g we are not inclined to interfere with the order 1 of the Tribunal. The appeal is
accordingly dismissed.
h
l Chandra Bhushan Yadav v. Union of India, 2017 SCC OnLine AFT 412
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2020 (BEFORE L. NAGESWARA RAO AND AJAY RASTOGI, JJ.)
Jan. 7 a
Versus
2-Judge EX. NO. 3192684 W. SEP. VIRENDRA KUMAR Respondent.
Bench Civil Appeal No. 9267 of 2019t, decided on January 7, 2020
A. Armed Forces - Army Rules, 1954 - Rr. 180, 179, 182 and 22 - b
Procedure for enquiry where character of person subject to Act is involved -
Alleged murder of a co-soldier and attempt to commit suicide by respondent
- Non-compliance with R. 180 i.e. at court of inquiry stage - However,
court martial recording its findings thereafter on basis of full-fledged trial
- Respondent-accused only thereafter raising issue of non-compliance with
R. 180 - Effect, if any on findings of court martial
C
- Held, proceedings of court of inquiry are in nature of fact-finding
conducted at pre-investigation stage and accused is entitled to full opportunity
to participate in proceedings - Further held, final order is on basis of trial by
court martial and hence, irregularities at earlier stages cannot be basis for setting
aside order passed by court martial - Where ground for non-compliance with
R. 180 is raised by accused during framing of charge or during recording of d
summary of evidence, authorities have to rectify defect as compliance with
procedure prescribed in R. 180 is obligatory- On facts held, though there was
non-compliance with R. 180 since respondent was not present during recording
of statements of witnesses but he failed to raise this ground either at stage
of framing of charge, recording summary of evidence or during court-martial
proceedings - After final order was passed by court martial on basis of full- e
fledged trial, it was not open to respondent to raise ground of non-compliance
with R. 180 - Tribunal erred in remanding matter back for de novo inquiry
from stage of court of inquiry for non-compliance with R. 180 - Penal Code,
1860- Ss. 302 and 309-Army Act, 1950, Ss. 69 and 64(c) (Paras 9 to 13)
Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 : 1982 SCC (Cri) 642; G.S. Sodhi
v. Union of India, (1991) 2 SCC 382: 1991 SCC (Cri) 357; Union of India v. A. Hussain,
f
(1998) 1 SCC 537 : 1998 SCC (Cri) 437; Inder lit Kumarv. Union of India, (1997) 9 SCC
1 : 1997 sec (L&S) 1177; Union of India v. Sanjay Jethi, (2013) 16 sec 116 : (2014) 3
SCC (L&S) 374, considered
Virendra Kumar v. Union of India, 2017 SCC OnLine AFT 4738, reversed
Ministry of Defence v. A. Hussani, WA No. 934 of 1991, order dated 21-2-1994 (AP), held,
reversed
B. Armed Forces - Armed Forces Tribunal Act, 2007 - S. 16 - Re- g
trial - When may be directed - Held, re-trial may be directed only in case
evidence made available to Tribunal was not produced before court martial
and if it appears to Tribunal that interests of justice require re-trial - Further
t Arising out of Diary No. 10621 of 2018. Arising from the Judgment and Order in Virendra Kumar
v. Union of India, 2017 SCC OnLine AFT 4738 (Armed Forces Tribunal, Lucknow Bench, TA h
No. 149 of 2010, dt. 25-1-2017) and MA No. 331 of2017in TA No. 149 of2010 (Armed Forces
Tribunal, Lucknow Bench, dt. 22-2-2017)
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UNION OF INDIA v. VIRENDRA KUMAR (Nageswara Rao, J.) 715

held, Tribunal has competence only to order re-trial by court martial but has
no power to direct matter to be remanded to stage prior to court-martial
a proceedings
- Furthermore, non-compliance with R. 180 of Army Rules, 1954 in
present case did not warrant a re-trial, as court martial had arrived at is findings
after a full- fledged trial - Order passed by Tribunal directing de novo inquiry
from stage of court ofinquiry unsustainable - Matter remanded to Tribunal for
reconsideration afresh on merits - However, respondent shall not be sentenced
b to any imprisonment in view of his having already undergone the sentence of
more than 10 years - Criminal Trial - Retrial/De novo trial - Army Act,
1950, Ss. 69 and 64(c) (Paras 14 to 16)
Virendra Kumar v. Union of India, 2017 SCC OnLine AFT 4738, reversed
Appeal allowed P-D/63499/CLR
C R. Balasubrarnanian, Senior Advocate (Nalin Kohli, Nachiketa Joshi, Santosh Kr.
Vishwakarrna and Mukesh Kr. Maroria, Advocates) for the Appellants;
V.K. Shukla, Senior Advocate (Ms Parul Shukla, Advocate) for the Respondent.
1. 2017 SCC OnLine AFT 4738, Virendra Kumar v. Union of
India (reversed) 715e-f, 722e
2. (2013) 16 sec 116 : (2014) 3 sec (L&S) 374, Union of India v.
d Sanjay Jethi 720c-d
3. (1998) 1 SCC 537 : 1998 SCC (Cri) 437, Union of India v. A. Hussain 720a
4. (1997) 9 SCC 1: 1997 SCC (L&S) 1177, Inderlit Kumarv. Union
of India 720a-b
5. WA No. 934 of 1991, order dated 21-2-1994 (AP), Ministry of
Defence v. A Hussani (held, reversed) 720a
6. (1991) 2 SCC 382: 1991 SCC (Cri) 357, G.S. Sodhi v. Union of India 719f-g
7. (1982) 3 sec 140 : 1982 sec (Cri) 642, Prithi Pal Singh Bedi v.
e Union of India 719a-b

L. NAGESWARA RAo, J.- The order of dismissal of the respondent was
set aside by the judgment 1 of the Armed Forces Tribunal, Regional Bench,
Lucknow (hereinafter "the Tribunal"), aggrieved by which this appeal is filed.
f 2. The respondent was enrolled as a Soldier in 20 Jat Firing Team
which was attached to the Jat Regimental Centre, Bareilly on 25-2-1999.
A firing incident took place at around 8.45 a.m. on 2-10-2004, when the
team was practising firing at the Jat Regimental Centre. During the incident,
Havildar Harpal and the respondent sustained gunshot injuries. Havildar Harpal
succumbed to the bullet injuries and the respondent was admitted at the
g hospital due to injuries. A first information report was lodged at Police Station
Sadar Cantonment, Bareilly. A preliminary investigation was initiated by
the staff court of inquiry as per the directions of the Station Headquarters,
Bareilly which concluded on 25-11-2004. The General Officer Commanding
22 Infantry Division directed:
(a) Disciplinary action to be initiated against the respondent for causing
h the death of late Havildar Harpal and for attempting to commit suicide.
l Virendra Kumar v. Union of India, 2017 SCC OnLine AFT 4738
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(b) To counsel Lt. Rajiv Menon for not implementing the relevant
instructions during the conduct of firing practices at the ranges.
(c) Late Havildar Harpal of 20 Jat Regiment was directed to be treated a
on bona :fide government duty and his death was held attributable to military
service in peace.
3. The respondent was kept in close arrest w.e.f. 27-11-2004 and was
handed over to 7 Kumaon Regiment under the authority of Headquarters 49
Infantry Brigade. On 28-12-2004, the respondent was tentatively charged with
the murder of Havildar Harpal under Section 302 IPC read with Section 69 of b
the Army Act, 1950 (for short "the Act") and under Section 64(c) of the Act
for attempting to commit suicide. Twenty-one witnesses were examined in the
summary of evidence and the respondent was given an opportunity to cross-
examine the witnesses, which he declined. He was given an opportunity to
make additional statement, which was also declined. Further opportunity given
to him to adduce evidence was also not availed by the respondent. Summary C
of evidence concluded on 7-2-2005. Additional summary of evidence was
also recorded, which was completed on 3-6-2005. The general court martial
commenced on 28-11-2005, and the trial was concluded on 16-3-2006. The
general court martial convicted the respondent under Section 302 IPC for
the murder of Havildar Harpal and for attempting to commit suicide. The
respondent was sentenced to suffer imprisonment for life and to be dismissed d
from service. The statutory complaint filed by the respondent was rejected by
the Chief of the Army Staff on 16-3-2007. The validity of the order of the
general court martial dated 16-3-2006 and the order of the Chief of the Army
Staff dated 16-3-2007, rejecting the statutory complaint were assailed before
the Tribunal.
4. Though several grounds were taken before the Tribunal to challenge the e
order of the general court martial, the principal contention of the respondent
was non-compliance with Rule 180 of the Rules. The Tribunal decided the
petition by adverting to the contention relating to Rule 180. It was held by
the Tribunal that Rule 180 provides that a person against whom an inquiry is
conducted to be present throughout the inquiry. As there was no doubt that the
respondent was denied permission to be present when statements of witnesses f
were being recorded before the court of inquiry, the Tribunal concluded that the
entire trial against the respondent is vitiated. The Tribunal set aside the order
of the court martial and remitted the matter for de novo trial from the stage of
court of inquiry in exercise of its power under Section 16 of the Armed Forces
Tribunal Act, 2007.
Rule 180 of the Army Rules, 1954 g
5. The only point considered by the Tribunal is Rule 180 and the effect of
non-compliance of the said Rule. It is relevant to re-produce Rule 180, which
is as follows:
"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 h
any inquiry affects the character or military reputation of a person subject to
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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
a 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 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 receives
notice of and fully understands his rights, under this rule."
b 6. Chapter VI of the Army Rules, 1954 deals with the court of inquiry.
According to Rule 177, a court of inquiry is an assembly of officers or
Junior Commissioned Officers (JCOs) constituted to collect the evidence. The
procedure to be followed by the court of inquiry is provided in Rule 179.
Rule 180 deals with the procedure for inquiry where the character of a person
who is subject to the Act is involved. When an inquiry affects the character or
military reputation of a person who is subject to the Act, full opportunity has to
C
be provided to the person throughout the inquiry, of making any statement, of
giving any evidence he may wish to make or give, and of cross-examining any
evidence. According to Rule 182, the proceedings of a court of inquiry, or of
any confession, statement, or answer to a question made or given in a court of
inquiry, shall not be admissible in evidence. However, the proviso to Rule 182
provides that nothing in Rule 182 shall prevent the proceedings from being
d used by the prosecution or the defence for the purpose of cross-examining any
witness. It is also necessary to refer to Rule 22 of the Army Rules, 1954 which
relates to the hearing of charge, which is as follows:
"22. Hearing of Charge.-( 1) Every charge against a person subject to the
Act shall be heard by the Commanding Officer in the presence of the accused.
The accused shall have full liberty to cross-examine any witness against him,
e
and to call such witness and make such statement as may be necessary for his
defence:
Provided that where the charge against the accused arises as a result of
investigation by a court of inquiry, wherein the provisions of Rule 180 have
been complied with in respect of that accused, the commanding officer may
dispense with the procedure in sub-rule (1).
f
(2) The commanding officer shall dismiss a charge brought before him if,
in his opinion the evidence does not show that an offence under the Act has
been committed, and may do so if, he is satisfied that the charge ought not to
be proceeded with:
Provided that the commanding officer shall not dismiss a charge which he
is debarred to try under sub-section (2) of Section 120 without reference to
g
superior authority as specified therein.
(3) After compliance of sub-rule (1), if the commanding officer is of
opinion that the charge ought to be proceeded with, he shall within a reasonable
time-
(a) dispose of the case under Section 80 in accordance with the manner
h and form in Appendix III; or
(b) refer the case to the proper superior military authority; or
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(c) adjourn the case for the purpose of having the evidence reduced
to writing; or
(d) if the accused is below the rank of warrant officer, order his trial a
by a summary court-martial:
Provided that the commanding officer shall not order trial by a summary
court-martial without a reference to the officer empowered to convene a district
court-martial or on active service a summary general court-martial for the trial
of the alleged offender unless-
b
(a) the offence is one which he can try by a summary court-martial
without any reference to that officer; or
(b) he considers that there is grave reason for immediate action and
such reference cannot be made without detriment to discipline.
(4) Where the evidence taken in accordance with sub-rule (3) of this
rule discloses an offence other than the offence which was the subject of C
the investigation, the commanding officer may frame suitable charge(s) on
the basis of the evidence so taken as well as the investigation of the original
charge."
7. On behalf of the appellant, it was contended that the court of inquiry was
initiated to unearth the circumstances leading to the death of Havildar Harpal
and to find out who was responsible. At that stage, there was no suspicion d
about the involvement of the respondent. The respondent was examined as
Witness 18 and not as an accused. Only during the course of the recording
of the statement of the respondent, a serious doubt was entertained about his
involvement in the death ofHavildar Harpal. It was contended by the appellant
that full opportunity was given to the respondent to cross-examine the witnesses
and to submit an additional statement in his defence which was declined by the e
respondent. It was further contended that there is no complaint made by the
respondent about the violation of Rule 180 and the prejudice that was caused to
him at the stage of recording summary of evidence and during the court martial.
The submission made on behalf of the appellant was that the court of inquiry
is only for collection of evidence and any violation of the procedure prescribed
under Rule 180 does not vitiate the proceedings of the court martial. Moreover,
f
according to the appellant, the respondent failed to show any prejudice caused
to him by the non-observance of the procedure provided in Rule 180. As the
respondent was given an opportunity to cross-examine witnesses as provided
in Rule 22 and during the court-martial proceedings which he did not utilise,
there is no failure of justice, according to the learned Senior Counsel for the
appellant.
8. The respondent defended the order of the Tribunal by submitting that g
collection of evidence by the court of inquiry is a crucial stage during which
the accused is entitled to be provided with an opportunity as contemplated in
Rule 180. Violation of the procedure prescribed in Rule 180 would render the
entire proceedings void. It was contended by the learned Senior Counsel for the
respondent that even though the respondent was initially examined as a witness,
there was a requirement of summoning those witnesses whose statements were h
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recorded in his absence and re-examining them after the status of the respondent
changed from a witness to that of an accused.
a 9. This Court had occasion to consider the scope of Rule 180 and it is
necessary to take note of the judgments of this Court in which Rule 180
was discussed. The orders by which general court martial was convened were
challenged by petitions filed under Article 32 of the Constitution of India in
Prithi Pal Singh Bedi v. Union of lndia 2 . One of the contentions on behalf of the
petitioners therein was that it was obligatory upon the authorities to appoint a
b court of inquiry whenever an inquiry affects the character or military reputation
of the persons subject to the Act and, in such an inquiry full opportunity must be
afforded to such person of being present throughout the inquiry and making any
statement or giving any evidence that he wishes to make and of cross-examining
any witnesses. Interpreting Rule 180, this Court held that it cannot be construed
to mean that whenever or wherever any inquiry in respect of any person who is
subject to the Act is conducted and his character or military reputation is likely
C
to be affected, setting up of a court of inquiry is sine qua non. However, this
Court held as follows: (SCC p. 176, para 40)
"40 . ... Rule 180 merely makes it obligatory that whenever a court
of enquiry is set up and in the course of enquiry by the court of enquiry
character or military reputation of a person is likely to be affected then such
a person must be given a full opportunity to participate in the proceedings
d
of court of enquiry. Court of enquiry by its very nature is likely to
examine certain issues generally concerning a situation or persons. Where
collective fine is desired to be imposed, a court of enquiry may generally
examine the shortfall to ascertain how many persons are responsible.
In the course of such an enquiry there may be a distinct possibility of
character or military reputation of a person subject to the Act likely to be
e affected. His participation cannot be avoided on the specious plea that no
specific enquiry 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 enquiry should be afforded full opportunity so that nothing is done at his
back and without opportunity of participation, Rule 180 merely makes an
f enabling provision to ensure such participation."
10. This Court in G.S. Sodhi v. Union of lndia 3 rejected the challenge to
the court-martial proceedings while dismissing the writ petitions filed under
Article 32 of the Constitution. The main grievance of the petitioners in that case
was the violation of the procedure prescribed in Rules 22 and 23 of the Army
Rules. While recording a finding that there has been substantial compliance
g of Rules 22 and 23, this Court has held that recording of evidence is only to
find out whether there is a prima facie case to convene a court martial. This
Court was of the opinion that the object and effect of the Rules should be
considered in the context bearing in mind the general principle whether such
an incomplete compliance has caused any prejudice to the delinquent officer.
However, it was held that if there is any violation of mandatory rules, the benefit
h
2 (1982) 3 sec 140: 1982 sec (Cri) 642
3 (1991) 2 sec 382: 1991 sec (Cri) 357
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of the same should be given to the delinquent officer. The conclusion in that
case was that there was no violation of the Rules and in any event no prejudice
was caused to the petitioners therein. In Union of India v. A. Hussain 4 , this a
Court while setting aside the judgment5 of the High Court of Andhra Pradesh
upheld the order of conviction of the respondent by the court martial. While
dealing with the submissions made on Rule 180, this Court relying upon Inder
Jit Kumar v. Union of India 6 held that proceedings before a court of inquiry
are not adversarial proceedings as the court of inquiry is in the nature of a fact-
finding Enquiry Committee. This Court was of the view that it is unnecessary b
to examine if pre-trial investigation is adequate or not when there is sufficient
evidence to sustain conviction by the court martial. It was further held that the
requirement of proper and adequate investigation is not jurisdictional and any
violation thereof does not invalidate the court martial unless it is shown that
the accused has been prejudiced or a mandatory provision has been violated.
As the respondent therein participated in the recording of summary of evidence
C
without raising any objection, the submission regarding violation of principles
of natural justice at an earlier stage was rejected by this Court.
11. In Union of India v. Sanjay Jethi7 the question regarding the bias of
members of the court of inquiry was decided in favour of the delinquent officer.
The interpretation by this Court of Rule 180 is as follows: (SCC pp.141-42,
para 53)
d
"53. In a Col participation of a delinquent officer whose character or
military reputation is likely to be affected is a categorical imperative. The
participation has to be meaningful, effective and he has to be afforded
adequate opportunity. It needs no special emphasis to state that Rule 180
is framed under the Army Act and it has the statutory colour and flavour. It
has the binding effect on Col. The rule provides for procedural safeguards e
regard being had to the fact that a person whose character and military
reputation is likely to be affected is in a position to offer his explanation and
in the ultimate eventuate may not be required to face disciplinary action.
Thus understood, the language employed in Rule 180 lays postulates of
a fair, just and reasonable delineation. It is the duty of the authorities to
ensure that there is proper notice to the person concerned and he is given f
opportunity to cross-examine the witnesses and, most importantly, nothing
should take place behind his back. It is one thing to say that Col may not
always be essential or sine qua non for initiation of a court martial but
another spectrum is that once the authority has exercised the power to hold
such an inquiry and Col has recommended for disciplinary action, then the
recommendation of Col is subject to judicial review. While exercising the g
power of judicial review it becomes obligatory to see whether there has
been due compliance of the stipulates prescribed under the rule, for the
language employed in the said rule is absolutely clear and unambiguous.
4 (1998) 1 sec 537: 1998 sec (Cri) 437

5 Ministry of Defence v. A. Bussani, WA No. 934 of 1991, order dated 21-2-1994 (AP) h
6 (1997) 9 sec 1 : 1997 sec (L&S) 1177
7 c2013) 16 sec 116: c2014) 3 sec (L&S) 374
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We may not dwell upon the concept of "full opportunity" in detail. Suffice
it to say that one cannot stretch the said concept at infinitum on the bedrock
a of grant of opportunity and fair play. It has to be tested on the touchstone
of the factual matrix of each case."
12. A close scrutiny of the above judgments would indicate that:
12.1. The proceedings of a court of inquiry are in the nature of a fact-finding
inquiry conducted at a pre-investigation stage.
12.2. The accused is entitled to full opportunity as provided in Rule 180.
b
12.3. As a final order of conviction is on the basis of a trial by the court
martial, irregularities at the earlier stages cannot be the basis for setting aside
the order passed by the court martial.
12.4. If the accused raises a ground of non-compliance with Rule 180
during the framing of charge or during the recording of summary of evidence,
C the authorities have to rectify the defect as compliance of the procedure
prescribed in Rule 180 is obligatory.
13. Though there is non-compliance with Rule 180 of the Army Rules,
in this case as the respondent was not present during the recording of the
statements of witnesses, it is clear from the record that the respondent did not
raise this ground either at the stage of framing of the charge, recording summary
d of evidence or during the court-martial proceedings. After a final order was
passed by the court martial on the basis of a full-fledged trial, it is not open
to the respondent to raise the ground of non-compliance with Rule 180 during
the court of inquiry proceedings. Therefore, the Tribunal ought not to have
remanded the matter back for a de novo inquiry from the stage of court of
inquiry on the ground of infraction of Rule 180 of the Army Rules.
e
Section 16 of the Armed Forces Tribunal Act, 2007
14. In exercise of the power conferred by Section 16 of the Armed Forces
Tribunal Act, 2007 an order of remand was made by the Tribunal. Section 16
of the Armed Forces Tribunal Act, 2007 reads as follows:
"16. Re-trial.- (1) Except as provided by this Act, where the conviction
f of a person by court martial for an offence has been quashed, he shall not be
liable to be tried again for that offence by a court-martial or by any other court.
(2) The Tribunal shall have the power of quashing a conviction, to make
an order authorising the appellant to be retried by court martial, but shall only
exercise this power when the appeal against conviction is allowed by reasons
only of evidence received or available to be received by the Tribunal under this
g Act and it appears to the Tribunal that the interests of justice require that an
order under this section should be made:
Provided that an appellant shall not be retried under this section for an
offence other than-
( a) the offence for which he was convicted by the original court
martial and in respect of which his appeal is allowed;
h
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(b) any offence for which he could have been convicted at the original
court martial on a charge of the first-mentioned offence;
(c) any offence charged in the alternative in respect of which the court a
martial recorded no finding in consequence of convicting him of the first-
mentioned offence.
(3) A person who is to be retried under this section for an offence shall,
if the Tribunal or the Supreme Court so directs, whether or not such person
is being tried or retried on one or more of the original charges, no fresh
investigation or other action shall be taken under the relevant provision of the b
Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air
Force Act, 1950 (45 of 1950), as the case may be, or rules and regulations
made thereunder, in relation to the said charge or charges on which he is to
be retried."
15. The power conferred on the Tribunal to direct re-trial by the court
martial is only on the grounds mentioned in Section 16(2). The Tribunal is C
competent to direct re-trial only in case of evidence made available to the

Tribunal was not produced before the court martial and if it appears to the
Tribunal that the interests of justice require a re-trial. The re-trial that was
ordered by the Tribunal in this case is on the basis that the procedure prescribed
in Rule 180 of the Army Rules has not been followed. The Tribunal does not
have jurisdiction to direct re-trial on any other ground except that mentioned in d
Section 16(2). Non-compliance of Rule 180 cannot be a ground for ordering a
re-trial. In addition, the Tribunal has competence only to order re-trial by the
court martial. There is no power conferred on the Tribunal to direct the matter
to be remanded to a stage prior to the court-martial proceedings. Therefore, we
are of the view that the order passed by the Tribunal directing a de novo inquiry
from the stage of court of inquiry requires to be set aside. As the Tribunal has e
not adjudicated on the merits of the transfer application, we set aside the order 1
of the Tribunal and remand the application back to the Tribunal to be considered
on its own merits, without being influenced by any observation made in this
judgment.
16. However, the respondent shall not be sentenced to any imprisonment
f
in view of his having already undergone the sentence of more than 10 years.
17. The appeal is accordingly allowed.
h
l Virerulra Kumar v. Union of India, 2017 SCC OnLine AFT 4738
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700 SUPREME COURT CASES (2020) s sec

3-Judge
Bench (2020) 8 Supreme Court Cases 700
2020
(BEFORE L. NAGESWARA RAO, HEMANT GUPTA AND S. RAVINDRA BHAT, JJ.)
July 29 a
Criminal Appeal No. 13 of 20l3 t
Versus
LIEUTENANT COLONEL S.S. BEDI Respondent.
With
b
Criminal Appeal No. 997 of 2013 t
LIEUTENANT COLONEL S.S. BEDI Appellant;
Versus
UNION OF INDIA AND OTHERS Respondents.
Criminal Appeals No. 13 of 2013 with
C
No. 997 of 2013, decided on July 29, 2020
A. Armed Forces - Army Act, 1950 - Ss. 69 and 70 - Conviction under

S. 354 IPC for using criminal force on two women with intent to outrage
their modesty by inappropriately touching their private parts during check-
up - PW 13 Physician stating that touching of private parts and squeezing
their nipples during examination was unnecessary - No motive for falsely d
implicating appellant - Hence held, conviction of appellant under S. 354 IPC
was justified - Medical and Health Law - Duties of Doctors and Medical
Ethics - Doctor and Patient - Penal Code, 1860, S. 354 (Para 8)
S.S. Bedi v. Union of India, TA No . 246 of 2010, order dated 1-10-2010 (AFT), affirmed on
this point
e
B. Armed Forces - Penalty/Punishment - Offence of using criminal
force with intent to outrage modesty of two women by touching them
inappropriately during check-up - Tribunal altering sentence of cashiering
into fine of Rs 50,000 considering appellant's blemish-free service record and
delay in lodging complaint - Held, Tribunal was not justified in doing so -
Penalty of cashiering restored taking into account appellant's reprehensible f
conduct of abusing position of trust being a doctor - Medical and Health Law
- Duties of Doctors and Medical Ethics - Doctor and Patient - Penal Code,
1860 - S. 354 - Army Act, 1950, S. 71(d) (Para 16)
C. Armed Forces - Army Act, 1950 - S. 71(h) r/w Regn. 16(a) of the
Army Pension Regulations, 1961 - Forfeiture of pension of officer cashiered
g
from service - Whether imposed by Court Martial
- Held, punishments awardable by Court Martial include cashiering in
case of officers besides forfeiture of service for pensionary benefits - In
instant case, only punishment of cashiering imposed on appellant - Hence,
pension of appellant cannot be forfeited - Liberty granted to respondents
h
t Arising from the Judgment and Order in S.S. Bedi v. Union of India (Armed Forces Tribunal, New
Delhi, TA No. 246 of 2010, dt. 1-10-2010)
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UNION OF INDIA v. S.S. BEDI (Nageswara Rao, J.) 701

to commence proceedings under Pension Regulations, if they so desired by
taking into consideration his service record and age - Respondents directed
a to release pensionary benefits in case they decide otherwise - Army Pension
Regulations, 1961, Regn. 16(a) (Paras 13 to 16)
Union of India v. P.D. Yadav, (2002) 1 SCC 405 : 2002 SCC (L&S) 149; Union of India v.
P.K. Dutta, 1995 Supp (2) SCC 29 : 1995 SCC (L&S) 760, considered
S.S. Bedi v. Union of India, TA No. 246 of 2010, order dated 1-10-2010 (AFT), reversed on
this point
b P.K. Dutta v. Union of India, 1994 SCC OnLine Del 345 : (1994) 30 DRJ 87, cited
P-D/65109/CLR
Sridhar Potaraju, Advocate, for the Appellants;
Vikramjit Banerjee, Advocate, for the Respondent.
C 1. TA No. 246 of 2010, order dated 1-10-2010 (AFT), S.S. Bedi v.
Union of India (partly reversed) 701d-e, 702b-c
2. (2002) 1 SCC 405 : 2002 SCC (L&S) 149, Union of India v. P.D.
Yadav 703c-d, 704a
3. 1995 Supp (2) sec 29 : 1995 sec (L&S) 760, Union of India v. P.K.
Dutta 703c-d, 703e-f
4. 1994 SCC OnLine Del 345: (1994) 30 DRJ 87, P.K. Dutta v. Union
d of India 703f

L. NAGESWARA RAo, J.- These appeals have been preferred against
the judgment 1 of the Armed Forces Tribunal, Principal Bench, New Delhi
(hereinafter "the Tribunal") by which the conviction of Ex. Lt. Col. S.S. Bedi
e by the General Court Martial was affirmed. However, the sentence of cashiering
from service was converted into a fine of Rs 50,000 by the Tribunal. An
application filed by Ex. Lt. Col. S.S. Bedi for granting permission to file an
appeal was dismissed by the Tribunal.
2. The appellant has filed Criminal Appeal No. 997 of 2013 aggrieved by
the judgment of the Tribunal upholding the conviction ordered by the General
f Court Martial and imposition of fine ofRs 50,000. The Union of India has filed
Criminal Appeal No. 13 of 2013 aggrieved by the alteration of sentence from
cashiering from service to imposition of fine. For the sake of convenience, we
will refer to the parties as they are arrayed in Criminal Appeal No. 997 of 2013.
3. The appellant was commissioned in the Indian Army Medical Corps on
24-7-1966. He was posted at Base Hospital, Lucknow, as a Medical Specialist
g on 3-4-1984. A complaint was made by two women against the appellant on
15-5-1986 that he misbehaved with them during check-up by inappropriately
touching their private parts. The GOC-in-C directed attachment of the appellant
for recording of summary evidence which was completed on 30-9-1986. Due
to certain procedural irregularities, the summary of evidence was cancelled on
1-10-1986 and a de novo recording of summary of evidence was directed.
h
1 S.S. Bedi v. Union of India, TA No. 246 of 2010, order dated 1-10-2010 (AFT)
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4. On the basis of the summary of evidence, the convening authority
directed trial of the appellant by the General Court Martial. On 29-11-1986, a
charge-sheet was filed against the appellant. He was charged for committing a a
civil offence that is to say, using criminal force on two women with intent to
outrage their modesty, contrary to Section 354 of the Penal Code, 1860 ("IPC").
The appellant was held guilty by the General Court Martial on 9-12-1986 and
was sentenced to be cashiered from service on 14-1-1987.
5. The petition filed by the appellant under Section 164(2) of the Army Act,
1950 was rejected on 30-5-1988. The conviction and sentence of the General b
Court Martial were challenged by the petitioner before the Delhi High Court
in the year 2010. The writ petition filed by the appellant was transferred by
the Delhi High Court to the Principal Bench of the Armed Forces Tribunal,
New Delhi. The Tribunal upheld 1 the conviction of the appellant but converted
the punishment of cashiering to a fine of Rs 50,000. Being dissatisfied, the
appellant filed the above appeal. The respondents have also filed an appeal C
aggrieved by the judgment of the Tribunal converting the sentence of cashiering
to a fine of Rs 50,000.
6. Mr Sridhar Potaraju, learned counsel appearing for the appellant
submitted that the conviction of the appellant is unsustainable as the evidence
on record was not properly appreciated by both the General Court Martial
and the Tribunal. He submitted that the evidence of Mrs Gita Ray which is d
in favour of the appellant has not been taken into account. He further stated
that the testimony of Lt. Col. R. Sharma is also in favour of the appellant. He
argued that the physical examination of both the complainants was necessary
for the ailments that were being suffered by them. One was suffering with
bronchial asthma and the other had complaint of duodenal ulcer. He stated
that the appellant is 78 years old and the fine of Rs 50,000 has already been e
deposited. In the event of this Court not accepting his submissions, the sentence
should not be altered, according to Mr Sridhar.
7. Mr Vikramjit Banerjee, learned Additional Solicitor General appearing
for the respondent contended that there is ample evidence on record pointing to
the guilt of the appellant which has been properly appreciated by the General
f
Court Martial and the Tribunal. The respondents are only concerned with the
conversion of the penalty of cashiering to a fine of Rs 50,000. The learned
Additional Solicitor General argued that the conversion of sentence by the
Tribunal was unwarranted. The appellant had misbehaved with two patients
and the expert evidence also shows that there was no necessity of the appellant
touching the private parts of the complainants.
g
8. We are unable to accept the contention of the appellant that his conviction
is unsustainable. A perusal of the evidence of the complainants makes it clear
that the appellant misbehaved with them during the course of their physical
examination. The evidence of PW 13 Lt. Col. R. Sharma, Physician is to the
effect that there was necessity to examine the cardio vascular system of the
patient who was suffering with bronchial asthma which involved exposure of
h
1 S.S. Bedi v. Union of India, TA No. 246 of 2010, order dated 1-10-2010 (AFT)
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UNION OF INDIA v. S.S. BEDI (Nageswara Rao, J.) 703

chest/breasts and touching of the breasts. However, squeezing of the breasts and
nipples of a lady patient was unnecessary. Insofar as the other complainant is
a concerned, Lt. Col. R. Sharma deposed that her stomach had to be fully exposed
right from the pubic symphysis to the nipples and in case of complication of
peptic ulcer, even percussion of right side of the chest is mandatory which
involves touching of the breasts. Lt. Col. Sharma testified that touching of
private parts and squeezing of nipples of such patient was totally unnecessary.
There was no motive for false implication of the appellant by the complainants,
b therefore, we are in agreement with the conclusion of the General Court Martial
and the Tribunal that the appellant is guilty of the charge of using criminal force
against two women patients.
9. Mr Sridhar argued that even if the penalty imposed by the court martial
of cashiering from service is upheld, forfeiture of all the pensionary benefits of
the appellant is not automatic. He submitted that no order as contemplated in
C Section 7l(h) of the Army Act, 1950 forfeiting his pension has been directed
by the General Court Martial. Therefore, the appellant is entitled for payment
of pension. He relied upon the judgments of this Court in Union of India v. P.K.
Dutta 2 and Union of India v. P.D. Yadav 3 .
10. The punishment that may be inflicted in respect of offences committed
by persons under the Army Act and convicted by the court martial are dealt with
d in Section 71. Section 71(d) refers to cashiering and Section 71(h) provides
for forfeiture of service for the purpose of increased pay, pension or other
prescribed purposes. Forfeiture in the case of a person sentenced to cashiering
or dismissal from the service of all arrears of pay and allowances and other
public money due to him at the time of such cashiering or dismissal is provided
in Section 7l(k). It is relevant to refer to Regulation 16(a) of the Army Pension
e Regulations, 1961, according to which the pension of an officer cashiered from
service may be forfeited at the discretion of the President.
11. The respondent in Union of India v. P.K. Dutta2 was court-martialled
and awarded three years' rigorous imprisonment apart from being cashiered.
He approached the Delhi High Court complaining against the inaction of the
authorities in not paying him retiral benefits. The Delhi High Court held4 that
f
cashiering does not itself result in forfeiture of retiral benefits. It was argued by
the Union of India before this Court that proceedings for forfeiture of the retiral
benefits as contemplated by Regulation 16(a) of the Pension Regulations were
pending and the High Court ought not to have allowed the writ petition filed
by Brig. P.K. Dutta. This Court was of the opinion that Section 71 relating to
the punishments awardable by the Courts Martial and Regulation 16(a) operate
g
in distinct fields. Regulation 16(a) contemplates a situation where an officer is
cashiered on dismissal or removal from service and provides how his pension is
to be dealt with. Section 71(h) provides for a punishment relating to forfeiture
of pension at the conclusion of the Court Martial. Finally, it was concluded
h 2 1995 Supp (2) sec 29: 1995 sec (L&S) 760

3 (2002) 1 sec 405 : 2002 sec (L&S) 149
4 P.K. Dutta v. Union of India, 1994 SCC OnLine Del 345 : (1994) 30 DRJ 87
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704 SUPREME COURT CASES (2020) s sec

that the nature and content of both the impositions is different and there is no
inconsistency between Section 71(h) and Regulation 16(a).
12. In Union of India v. P.D. Yadav 3 it was held by this Court that a
punishment imposed under Section 71 of the Army Act and order passed
under Regulation 16(a) of the Pension Regulations are entirely different. The
submission made that imposition of punishment under Section 71 of the Army
Act and passing of an order under Regulation 16(a) would result in double
jeopardy was not accepted by this Court.
13. Punishments awardable by a Court Martial under Section 71 include b
cashiering in case of officers and forfeiture of service for the purpose of
pension apart from the other penalties. Admittedly, the punishment imposed
on the appellant is only cashiering from service. There is no dispute that
Section 7l(h) forfeiting the pension of the appellant has not been resorted to
by the respondents.
14. There is merit in the submission of Mr Sridhar that in the absence of C
an order passed under Section 7l(h), the pension of the appellant cannot be
forfeited. The judgment of the Tribunal by which the punishment of cashiering
from service has been altered to imposition of a fine of Rs 50,000 is subject-
matter of this appeal which has been pending for the past seven years. There
is nothing on record to show that proceedings have been initiated under
Regulation l 6(a) of the Pension Regulations.
15. By an order dated 20-1-2013, this Court stayed the execution d
proceedings only. There may be a justification for the respondents for not
initiating proceedings under Regulation 16(a) of the Pension Regulations in
view of the pendency of these appeals. The respondents are at liberty to
commence proceedings under the Pension Regulations for forfeiture of the
pension of the appellant, if they so desire.
16. The Tribunal converted the sentence of cashiering into a fine of e
Rs 50,000 by holding that the appellant has a blemishless record of service. The
Tribunal found the imposition of the punishment of cashiering from service
shockingly disproportionate. The Tribunal also highlighted the delay in the
complaint made against the appellant. We are not convinced with the reasons
given by the Tribunal for converting the sentence from cashiering to imposition
of fine of Rs 50,000. We restore the punishment of penalty of cashiering f
by taking into account the reprehensible conduct of the appellant abusing a
position of trust being a doctor which is not condonable. However, we direct
the respondents to consider the entire record of service of the appellant and his
advanced age while taking a decision to initiate proceedings under the Army
Pension Regulations. In case the respondents decide not to initiate proceedings
under the Army Pension Regulations, the appellant shall be entitled for all g
pensionary benefits. The amount of Rs 50,000 deposited by the appellant shall
be refunded to him with interest accrued therefrom.
17. The appeals are disposed of.
h
3 c2002) 1 sec 405 : 2002 sec (L&S) 149
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2020 (BEFORE L. NAGESWARA RAO AND HEMANT GUPTA, JJ.)
Jan. 21 a
Versus
2-Judge R. KARTHIK Respondent.
Bench Criminal Appeal No. 831 of 2015t, decided on January 21, 2020
A. Armed Forces - Armed Forces Tribunal Act, 2007 - Ss. 30, 15 and b
3(f) - Appellate jurisdiction of Supreme Court - Scope of interference
with order of substituted punishment passed by Tribunal - Supreme Court
in exercise of its appellate jurisdiction under S. 30, held, would be slow in
interfering with substituted punishment unless order passed by Tribunal is
patently illegal, warranting interference
- Respondent Sailor, member of Aviation Core Team alleged to have C
not reported for duty when called upon to do so and abused and hit superior
officer A on his left cheek with fist consequent to provocation from A
- Substitution of dismissal order with punishment of 75 days' detention
while maintaining punishment of deprivation of First Good Conduct Badge
by Tribunal - Sustainability - Held, Tribunal is within its jurisdiction
to set aside dismissal order finding it to be disproportionate to alleged d
misconduct - On facts held, view taken by Tribunal was not patently illegal
warranting interference - Respondent directed to be reinstated without back
wages but entitled to computation of all consequential benefits including pay
fixation (Paras 11, 15 and 16)
R. Karthik v. Union of India, 2015 SCC OnLine AFT 970, affirmed
B. Armed Forces - Navy Act, 1957 - Ss. 45(a) and 74 - Conviction e
under S. 45(a) - Sustainability - Respondent Sailor, member of Aviation
Core Team alleged to have not reported for duty when called upon to do so
and abused and hit superior officer A on his left cheek with fist consequent
to provocation from A
- A neither cited as witness, nor examined either by investigating officer
nor executive officer, and held guilty for using abusive/profane language under f
S. 74 - None of the three witnesses examined deposing regarding hitting
of superior officer by respondent Sailor - Held, though superior officer was
guilty of using abusive language, but respondent Sailor was not expected to
retort and hit him - Conduct of Sailor cannot be condoned - Tribunal
was justified in substituting dismissal order with punishment of 7 5 days'
detention while maintaining punishment of deprivation of First Good Conduct g
Badge (Paras 6 to 15)
R. Karthik v. Union of India, 2015 SCC OnLine AFT 970, affirmed
Appeal dismissed P-D/63542/CL
t Arising from the Judgment and Order in R. Karthik v. Union of India, 2015 SCC OnLine AFT
970 [Armed Forces Tribunal, Chennai Bench, OA (Appeal) No. 45 of 2014, dt. 6-2-2015] and h
MA No. 53 of 2015 in OA (Appeal) No. 45 of 2014 (Armed Forces Tribunal, Chennai Bench,
dt. 20-3-2015)
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UNION OF INDIA v. R. KARTHIK (Hemant Gupta, J.) 783

Anmol Chandan, Deepak Goel, Arvind Kr. Sharma, B.V. Balaram Das and Mukesh Kr.
Maroria, Advocates, for the Appellants;
a Ashok Panigrahi (Amicus Curiae), Anmol Tayal, S. Vinay Ratnakar and Nabab Singh,
Advocates, for the Respondent.
1. 2015 SCC OnLine AFT 970, R. Karthik v. Union of
India 783b, 785a-b, 786f-g
b The Judgment of the Court was delivered by

HEMANT GUPTA, J.- The orders passed 1 by the Armed Forces Tribunal,
Regional Bench, Chennai are subject-matter of challenge by the Union oflndia.
Vide the said orders, the verdict dated 24-7-2013 of summary trial dismissing
the respondent (for short "Sailor") from service was partly modified by setting
aside the order of dismissal but substituting it with punishment of 7 5 days
detention and maintaining second part of sentence i.e. deprivation of First Good
C
Conduct Badge.
2. The Sailor entered in Naval service on 31-7-2008 when he was about 19
years of age having born on 1-11-1989. He was on board INS Gharial which
started sailing on 29-5-2013. He was Writer and assigned duties in the Pay
Office for preparation of pay bills and payment of salaries and maintenance
of records. An unfortunate incident happened on 29-5-2013 at about 10.00 hrs
d when Lt. Abhishek Vardhan made a complaint requesting strict possible action
against the Sailor.
3. The complaint dated 29-5-2013 reads as under:
"The ship left harbour on 29-5-2013 at about 0830 hrs. We were to
receive Seaking C-560 onboard at 1000 hrs an so flying stations was piped
& Aviation Core Team was mustered on helo deck. Being the Aviation
e
Officer of the ship, I went to helo deck to prepare the deck for flying.
When I mustered the Aviations Core Team, Karthik, WTR I was missing.
I called up bridge and requested SSD OOW to announce for him. After
about 15-20 minutes and 2 more announcements Karthik, Writer, I, finally
came to helo deck. When I asked him about the delay, he said that he had
closed for SSD. When I told him that Aviation Core Team was mustered &
f he should have come, he said that his name is not in Aviations Core Team
& that he is standby for Prasad, Cook II. I asked him if he was aware that
Prasad was on leave. He said he was aware of it. I asked him again that as
he was standby for Prasad and he knew he was on leave, he should have
closed up. To this he replied that Chief Writer has told him that as there are
only 2 writers onboard, they will not do any duty. I told him to get Chief
g Writer to helo deck. He then replied that Chief Writer is not onboard &
is admitted in hospital. Then I told him to remain on helo deck & once
Aviations Core Team is secured, write a statement saying "he came late
to helo hanger because Chief Writer had told him not to do any duty". He
then became more aggressive & shouted upon me that "I will not write any
statement, Chief Writer is hospitalised." I told him again that it does not
h make any difference whether Chief Writer is onboard or not, he must write
l R. Karthik v. Union of India, 2015 SCC OnLine AFT 970
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a statement at end of Flying Stations. He now shouted on the top of his voice
saying "Chief Sahab is admitted". I then lost my cool and shouted back at
him abusing him. He then hit me with his fist on my left cheek & abused me. a
I did not shout at him further or even touch him, I called a Regulating Sail or
who was in Helo Hanger & told him to take Karthik, Writer to executive
officer in bridge. I told the whole episode to the executive officer & EXO
took us to Commanding Officer and I apprised him of the situation. After
this I was asked to go to helo deck by EXO & ensure safe recovery of
SC-560. I composed myself & went to the helo deck for recovering SC-560.
b
After this when at 1400 hrs Aviation Core Team was asked to muster in helo
deck again, Karthik, Writer I did not come to helo deck once again. I asked
POA (AH) Gupta to announce for him & went to oversee the ground run
of SC-560. Post ground run, I was told by POA (AH) Gupta that Karthik,
Writer did not come for Aviation Core Team again. I do not think that such
an offence should be accepted by anyone and the most strict possible action
be taken against the Sailor. It was with this faith in Indian Navy that I did C
not hit the Sailor back and I hope that my faith in the system remains so."
4. On the basis of such complaint, the investigations were conducted
by Lt. Cdr. Ishwar Chandra, Investigating Officer. The accused was brought
before the investigating officer on 29-5-2013 at 16.00 hrs. Ganesh Kumar
Tiwari, Tara Chand Nehra and Vikash Sharma were examined as witnesses.
The investigating officer referred the case to executive officer. The executive d
officer conducted the proceedings on 1-6-2013 wherein the abovenamed three
witnesses were again examined. Lt. Vivek Rajput was provided to the Sailor
as a defending officer. They were not cross-examined by the defending officer.
Jenish George, Lt. Cdr., acting as executive officer, referred the case to the
Commanding Officer on 1-6-2013. It may be stated that the three witnesses
examined either before the investigating officer or before the executive officer e
have denied the incident as alleged. Lt. Abhishek Vardhan was neither cited as a
witness nor was examined either by the investigating officer or by the executive
officer.
5. The Commanding Officer found the charges to be proved of an
offence under Section 45(a) of the Navy Act, 1957 (for short "the Act") and
recommended the detention for a period of 60 days and deprivation of First f
Good Conduct Badge. However, the Chief of Naval Staff on 19-7-2013 passed
an order of dismissal of Sailor from naval service and deprivation of First Good
Conduct Badge. It is the said order which was challenged by the Sailor by way
of an original application before the Tribunal.
6. The Tribunal found that the Sailor was a member of Aviation Core Team
and was on actual duty. He did not report for duty when called upon to do so. g
The Sailor has sought to justify his action on the ground that he was not required
to do so as ordered by his Chief Writer. The Tribunal found that the statement
of Suraj Pradhan in respect of a past incident in August 2012 was not made
before the Sailor and no opportunity was given to him to cross-examine the
witness. The Tribunal found the use of force by the Sailor was not premeditated
or deliberate but was a consequence of provocation in the form of use of abusive
h
language by a superior officer. It was admitted by the Sailor that it was a reflex
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UNION OF INDIA v. R. KARTHIK (Hemant Gupta, J.) 785

action to the provocation and he immediately cooled down and owned up his
mistake voluntarily. The officer has handled situation poorly and the use of
a abusive language to subordinates is an unbecoming act of an officer. It is also
found that Lt. Abhishek Vardhan was found guilty of an act of using profane/
abusive language under Section 74 of the Act and was given a punishment of
one-month loss of seniority. The Tribunal held 1 as under: (R. Karthik easel,
SCC OnLine AFT paras 16-17)
"16. It appears that the punishment given to the officer was light in
b nature and, therefore, given the extenuating circumstances under which the
whole episode occurred, the applicant's plea for mitigation ought to have
been considered.
17. Viewed in light of the above, we are of the considered opinion that
the sentence of dismissal from service awarded to the applicant by the Chief
of Naval Staff is disproportionate and excessive."
C 7. After holding so, the punishment of dismissal was set aside by
substituting it with a punishment of 7 5 days' detention, which detention the
Sailor has since undergone.
8. The Sailor is not aggrieved against the order passed by the Tribunal
substituting punishment of deprivation of First Good Conduct Badge.
9. The learned (DM) counsel for the appellants vehemently argued that as
d per admission of the Sailor, he has hit his superior officer, therefore, he is guilty
of an offence under Section 45(a) of the Act.
10. We find that none of the three witnesses have deposed regarding hitting
of superior officer by the Sailor. The superior officer Lt. Abhishek Vardhan was
not examined either before the Investigation Officer or the executive officer
nor he has been made available for cross-examination as per the proceedings
e produced before us. It has also come on record that the superior officer has been
found to be guilty for using abusive language against the Sailor.
11. In terms of Section 15 of the Armed Forces Tribunal Act, 2007 (for
short "the AFT Act"), the Tribunal exercises jurisdiction, powers and authority
against any order, decision, finding or sentence passed by a court martial or any
matter connected therewith or incidental thereto. Sub-section (6) of Section 15
f of the AFT Act empowers the Tribunal to substitute the findings of the court
martial which includes the disciplinary proceedings under the said Act [see
Section 3(J) of the AFT Act] and also to interfere if the sentence is found to be
excessive, illegal or unjust.
12. Section 15(6) of the AFT Act reads as under:
"15. (6) Notwithstanding anything contained in the foregoing provisions
g of this section, the Tribunal shall have the power to-
(a) substitute for the findings of the court martial, a finding of guilty
for any other offence for which the offender could have been lawfully
found guilty by the court martial and pass a sentence afresh for the offence
specified or involved in such findings under the provisions of the Army
h
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Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force
Act, 1950 (45 of 1950), as the case may be; or
(b) if sentence is found to be excessive, illegal or unjust, the Tribunal a
may-
(i) remit the whole or any part of the sentence, with or without
conditions;
(ii) mitigate the punishment awarded;
(iii) commute such punishment to any lesser punishment or
punishments mentioned in the Army Act, 1950 (46 of 1950), the Navy b
Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), as
the case may be;
(c) enhance the sentence awarded by a court martial: Provided that no
such sentence shall be enhanced unless the appellant has been given an
opportunity of being heard;
C
(d) release the appellant, if sentenced to imprisonment, on parole with
or without conditions;
(e) suspend a sentence of imprisonment;
(j) pass any other order as it may think appropriate."
13. We find that the Commanding Officer who was on the high seas with
the Sailor and the superior officer was aware of the extent of misconduct of d
the Sailor. None of the three witnesses have deposed regarding striking of
the superior officer by the Sailor. The superior officer has not made himself
available before the investigating officer or the executive officer.
14. Even though the superior officer has used abusive language but the
Sailor was not expected to retort and hit the superior officer. The conduct of
the Sailor cannot be condoned in any manner. e
15. In terms of provisions of the AFT Act, the Tribunal is competent to
substitute the findings in the disciplinary proceedings leading to dismissal
of the Sailor and to substitute and/or mitigate the punishment awarded.
Therefore, the order passed by the Tribunal to set aside the dismissal is
within the jurisdiction of the Tribunal finding that the punishment imposed is
disproportionate to the misconduct. This Court in appellate jurisdiction under f
Section 30 of the AFT Act would be slow in interfering with the substituted
punishment, unless the order passed by the Tribunal is found to be arbitrary,
unreasonable or capricious. We find that the view 1 taken by the Tribunal is
not patently illegal warranting interference in the present appeal. The appeal is
accordingly dismissed.
g
16. However, it is directed that the respondent shall be reinstated within two
months but shall not be entitled to any back wages from the date of dismissal
till reinstatement but he shall be entitled to computation of all consequential
benefits including pay fixation.
h
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MINISTRY OF DEFENCE v. BABITA PUNIYA 469

2-Judge
(2020) 7 Supreme Court Cases 469 Bench
2020
(BEFORE DR D.Y. CHANDRACHUD AND AJAY RASTOGI, JJ.)
a Feb. 17
SECRETARY, MINISTRY OF DEFENCE Appellant;
Versus
BABITA PUNIYA AND OTHERS Respondents.
Civil Appeals Nos. 9367-69 of 201 it with Nos. 1127-28
of 2013 and 1210 of 2020, decided on February 17, 2020
b A. Armed Forces - Gender Equality/Equality of Opportunities
Claim for Permanent Commissions (PCs) by women officers engaged in
Short Service Commissions (SSCs) - Entitlement to - Policy dt. 25-2-2019
granting SSC women officers entitlement to PCs in eight Arms/Services in
addition to existing streams of JAG & AEC, all of which belonged to the two
broad categories of services in the Army of (i) Combat Support Arms and (ii)
Services (not including the third category of Combat Arms) - Applicability
C of - Policy decision dt. 25-2-2019, held, applicable to all women SSC officers
currently in service irrespective of their length of service
- In terms of S. 12 of the 19 50 Act, eligibility of women for engagement
or enrolment in regular Army is subject to provision being made by Central
Government - Held, said Policy dt. 25-2-2019 recognises right of women
officers to equality of opportunity and must be construed as a decision which
d enforces fundamental rights of women to seek access to public appointment and
equality of opportunity in matters of engagement in Armed Forces - Further
held, fact that it was intended to apply prospectively does not mean that it would
apply only to women officers who have been appointed as SSC officers after
the date of the policy decision - Army Act, 19 50 - S. 12 - Constitution of
India, Arts. 15(1) and 16(1)
e B. Armed Forces - Gender Equality/Equality of Opportunities -
Entitlement of women officers to Permanent Commissions (PCs) in criteria
and command appointments, and not just staff appointments - Right to equal
consideration with men officers - Differentiation between men and women
officers - Burden of proof to justify - Policy dt. 25-2-2019 extending grant of
PCs to women officers in eight Arms/Services in addition to existing streams
of JAG & AEC but restricting them to staff appointments only i.e. blanket
f restriction on criteria or command appointments imposed qua PCs in the
eight new streams, whereas there was no such restriction qua the PCs in JAG
& AEC streams - Invalidity of such absolute bar on entitlement of women
officers to PCs in criteria and command appointments in the said eight new
streams
- Held, absolute bar on women seeking criteria or command appointments
violates guarantee of equality under Art. 14 of the Constitution - Whether
g
a particular candidate, both men and women should be granted criteria or
command assignment is for competent authority to decide having regard to
exigency of service, performance and organisational requirements - Blanket
non-consideration of women for criteria or command appointment absent
an individuated justification, held, is unsustainable - Thus, directed that
h
t Arising from the Judgment and Order in Babita Puniya v. Ministry of Defence, 2010 SCC OnLine
Del 1116: (2010) 168 DLT 115 [Delhi High Court, WP (C) No. 1597 of 2003, dt. 12-3-2010]
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expression "in various staff appointments only" in Para 5 and that "on staff
appointments only" in Para 6 of Pollicy dt. 25-2-2019 shall not be enforced
- Implicit in guarantee of equality is that any differentiation must be a
reasonable and rational since right to equality is right to rationality - Where
Army, as instrumentality of State seeks to differentiate between men and
women officers, burden falls squarely on Army to justify it - Absolute
prohibition of women officers, to obtain only staff appointments does not
fulfil purpose of granting PCs as a means of career advancement in Army -
Constitution oflndia, Arts. 14, 15(1) and 16(1)
b
C. Armed Forces - Army Act, 1950 - S. 12 - Exercise of power under,
by Central Government - Scope of judicial review - Non-engagement of
women officers in Combat Arms, while permitting the same in the remaining
two broad categories of services in the Army: (i) Combat Support Arms and
(ii) Services - Held, issues of national security and matters related to Armed
Forces are amenable only to limited judicial review - Hence, policy decision
not to engage women officers in Combat Arms not interfered with C
- However, considering policy decision dt. 25-2-2019 of Union

Government granting PCs in eight streams plus the two existing streams of
the Army to all women SSC officers pertaining to services in the Combat
Support Arms and Services, as well as situation which had arisen because
of non-implementation of High Court as well as Supreme Court order, d
non-intervention would amount to travesty of justice - Directions issued
accordingly (see Shortnotes A, B, D, E and F)
D. Armed Forces - Gender Equality/Equality of Opportunities - Grant
of Permanent Commissions (PCs) to women Short Service Commission
(SSC) Officers - Proposal submitted by Government distinguishing between
women officers who were in service for less than 14 yrs and those beyond, e
envisaging that only those women officers with less than 14 yrs of service
should be considered for grant of PCs - Untenability of
- Held, there is fundamental fallacy in distinction sought to be drawn since
it was failure of Union Government to enforce judgment of High Court rendered
almost a decade back, which was not stayed by Supreme Court, which resulted
in some women officers rendering more than 14 yrs' service - No reason or f
justification to deprive women SSC officers of grant of PCs on ground that they
had completed 14 yrs of service - Thus, SSC women officers, irrespective of
their length of service, entitled to consideration for grant of PCs
E. Armed Forces - Gender Equality/Equality of Opportunities - Claim
for Permanent Commissions (PCs) by women Short Service Commission
(SSC) Officers - Denial of - Submissions based on stereotypes premised g
on assumptions about socially ascribed roles of gender discrimination against
women - Deprecated - Need for change in attitudes and mindsets to
recognise commitment to constitutional values, emphasised
- More so, since it was undisputed that women officers had brought laurels
to Army - Casting aspersions on their abilities on ground of gender, affront
not only to their dignity as women but to dignity of Indian Army both men and h
women who serve as equal citizens in common missions - Time to realise that
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women officers in Army are not adjuncts to male dominated establishments
whose presence must be "tolerated" within narrow confines - Policy decision
a of Union Government dt. 25-2-2019 granting PCs to SSC women officers in
eight Arms/Services, in addition to existing streams of JAG & AEC, making
it a total of ten streams is a step towards realising fundamental constitutional
commitment to equality and dignity of women - Ignorance of State of said
policy decision while making submissions seriously noted - Constitution of
India, Arts. 15(1) and 16(1)
b F. Armed Forces - Gender Equality/Equality of Opportunities - Claim
for Permanent Commissions (PCs) by women officers engaged in Short
Service Commissions (SSCs)- High Court by impugned judgment directing
grant of PCs to all women SSC officers on a par with their male counterparts
with all consequential benefits - Judgment of High Court not stayed by
Supreme Court though it was directed that no coercive steps should be
C initiated - Effect of
- Held, direction not to initiate coercive steps is distinct from stay
of operation of judgment - Fact that Union Government failed to act
upon directions issued by High Court, which were not stayed by Supreme
Court, for nearly nine years strongly deprecated - Practice and Procedure
- Interim/Interlocutory Order/Injunction/Stay/Interim Relief - Stay of
d judgment distinguished from direction not to initiate coercive steps -
Constitution of India, Arts. 136 and 226
G. Constitution of India - Art. 33 - Power of Parliament to modify
fundamental rights in their application to Armed Forces - Held, Art. 33
empowers Parliament to determine by law extent to which fundamental
rights shall be restricted/abrogated in their application inter alia to members
e of Armed Forces so as to ensure proper discharge of their duties and
maintenance of discipline - Army Act, 1950, S. 12
H. Armed Forces - Gender Equality/Equality of Opportunities -
Engagement of women officers in Army - Traced
A PIL was filed in the High Court for grant of Permanent Commissions
f ("PCs") to women Short Service Commissions ("SSCs") officers in the Army.
During the course of the proceedings, two circulars were issued on 20-7-2006
granting SSCs both on the technical and non-technical side to women officers.
The circulars had comprehensive provisions pertaining among other things, tenure,
substantive promotions and adjustment of seniority. Serving Women Special Entry
Scheme ("WSES") officers were given option either to move to new SSC scheme
g or to continue under the erstwhile WSES.
A writ petition was filed challenging the terms and conditions of service
imposed by the Circulars dated 20-7-2006 and for grant of PCs to women officers.
On 26-9-2008, the Ministry of Defence ("MoD") issued a circular granting PCs
prospectively to SSC women officers in the Judge Advocate General Department
("JAG") and the Army Education Corps ("AEC"). The Circular was challenged on
h the ground that it granted PCs only prospectively and only to specified cadres.
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The writ petitions were heard together. The High Court by the impugned
judgment inter alia issued following directions:
(1) The claim of absorption in areas of operation not open for recruitment a
of women officers was rejected being a policy decision.
(2) Women officers of the Air Force and Army on SSC who had opted for
grant of PC but were not granted that status were held entitled to PC on a par
with SSC male officers with all consequential benefits. However, this benefit
was only limited to women officers who had instituted proceedings before the
High Court and had retired during pendency of the writ petitions. Hence, the b
instant appeals.
Disposing of the appeals, the Supreme Court
Held:
During the pendency of the appeals, the Union Government in the MoD issued
a communication dated 25-2-2019 for the grant of PCs to SSC women officers in C
eight arms or services of the Army, in addition the JAG and AEC. (Paras 28 to 30)
Article 33 of the Constitution empowers Parliament to determine by law
extent to which the rights conferred by Part III of the Constitution shall be
restricted, abrogated in their application inter alia to the members of the Armed
Forces so as to ensure proper discharge of their duties and maintenance of
discipline (Paras 56 to 62) d
Ram Sarup v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247 : (1965) 1 Cri LJ 236;
Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140: 1982 SCC (Cri) 642; R. Viswan
v. Union of India , (1983) 3 SCC 401 : 1983 SCC (L&S) 405 , considered
Section 12 of the Army Act, 1950 embodies the principle that a woman would
be eligible for enrolment or employment only in such corps, departments, branches
or bodies forming part of or attached to the regular Army upon and to the extent
notified by the Central Government. In other words, the eligibility of women e
for enrolment or engagement in the regular Army is conditional on a provision
being made by the Central Government in terms of the enabling provision of
Section 12. (Para 64)
The engagement of women officers in the Army has been an evolutionary
process. The women officers were initially inducted in the year 1992 under the
WSES, for a period of five years. This was extended for a further period of five f
years. On the incorporation of a provision for SSCs for women officers, options
were granted to those amongst them who had been engaged under the earlier
scheme to become SSC officers. As a part of the pool of officers engaged as
SSC officers, the tenure was extended to fourteen years with a provision for due
promotions while in service. Following the judgment of the High Court, the Union
Government was under a mandate to grant PCs to women officers, to the exclusion
g
of the Combat Arms, and on a par with the grant of PCs to their male counterparts.
Significantly, the judgment of the Delhi High Court was not stayed by the Supreme
Court at any stage, though there was a direction that no coercive steps would be
initiated on the basis of the judgment. A direction by the Supreme Court not to
initiate coercive steps is distinct from a stay on the operation of the judgment.
There was no reason or justification for the Union Government not to act upon
the directions that were issued by the High Court, particularly, in the absence of h
a stay on the operation and enforcement of the judgment. Eventually, nearly nine
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years after the judgment, the Union Government communicated a policy circular
dated 25-2-2019 by which a decision was taken to grant women officers PC in
eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus,
a
as a matter of policy, the Union Government has taken a decision to allow for the
grant of PCs in all the ten streams in which women officers were currently being
commissioned as SSC officers. (Para 65)
Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116: (2010) 168 DLT 115,
considered
The decision of the Union Government to allow PCs to women officers in
b all the ten streams where they were being inducted as SSC officers substantially
renders redundant the submission based on the provisions of Section 12 of the
Army Act. Section 12 contemplates that women will be eligible for enrolment only
in those segments of the Army where the Union Government has, by notification,
permitted their enrolment and engagement. Even on a textual interpretation of
Section 12 as it stands, it is evident that the policy decision dated 25-2-2019
C
of the Union Government has allowed for the grant of consideration of PCs
to commissioned women officers in all the ten streams which have been
notified. (Para 66)
The policy decision of the Union Government is a recognition of the right of
women officers to equality of opportunity. One facet of that right is the principle
of non-discrimination on the ground of sex which is embodied in Article 15(1) of
the Constitution. The second facet of the right is equality of opportunity for all
d citizens in matters of public employment under Article 16(1) of the Constitution.
The policy statement of the Union Government must therefore be construed as a
decision which enforces the fundamental right of women to seek access to public
appointment and to equality of opportunity in matters of engagement relating to
the Army. The fundamental right is recognised in the specified streams where
women are permitted to seek engagement as equal members of the Armed Forces
e that the Indian Army represents. With the Union Government having recognised
the induction of permanently commissioned women officers in its policy decision
dated 25-2-2019, the submissions which have been made by the Union of India
betray a lack of understanding of the plain consequences of the decision. The
decision of the Union Government to extend the grant of PC to other corps in the
support arms and services recognises that the physiological features of a woman
have no significance to her equal entitlements under the Constitution. (Para 67)
f
Seventy years after the birth of a post-colonial independent State, there is
still a need for change in attitudes and mindsets to recognise the commitment to
the values of the Constitution. The submissions advanced in the note tendered to
the Supreme Court are based on sex stereotypes premised on assumptions about
socially ascribed roles of gender which discriminate against women. Underlying
the statement that it is a "greater challenge" for women officers to meet the hazards
g of service "owing to their prolonged absence during pregnancy, motherhood and
domestic obligations towards their children and families" is a strong stereotype
which assumes that domestic obligations rest solely on women. Reliance on the
"inherent physiological differences between men and women" rests in a deeply
entrenched stereotypical and constitutionally flawed notion that women are the
"weaker" sex and may not undertake tasks that are "too arduous" for them.
Arguments founded on the physical strengths and weaknesses of men and women
h and on assumptions about women in the social context of marriage and family do
not constitute a constitutionally valid basis for denying equal opportunity to women
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officers. To deny the grant of PCs to women officers on the ground that this would
upset the "peculiar dynamics" in a unit casts an undue burden on women officers
which has been claimed as a ground for excluding women. The written note also
a
relies on the "minimal facilities for habitat and hygiene" as a ground for suggesting
that women officers in the services must not be deployed in conflict zones. The
respondents have placed on record that 30% of the total women officers are in fact
deputed to conflict areas. (Paras 68 and 69)
The requirement for change in mindsets to bring about true equality in Army
needs to be emphasised. The counter-affidavit contains a detailed elaboration of the
service rendered by women SSC officers to the cause of nation, working shoulder b
to shoulder with their male counterparts. Women officers of the Indian Army have
brought laurels to the Force which have not been controverted. To cast aspersion
on their abilities on the ground of gender is an affront not only to their dignity as
women but to the dignity of the members of the Indian Army - men and women
- who serve as equal citizens in a common mission. (Paras 70 to 73)
Courts are indeed conscious of the limitations which issues of national security C
and policy impose on the judicial evolution of doctrine in matters relating to the
Armed Forces. For this reason, the engagement of women in the Combat Arms
has been specifically held to be a matter of policy by the judgment of the High
Court and which is not in question in the present appeals. The time has come for a
realisation that women officers in the Army are not adjuncts to a male dominated
establishment whose presence must be "tolerated" within narrow confines. The
salient decision of the Union Government to extend PCs to women SSC officers in d
all ten streams in which they are commissioned is a step forward in recognising and
realising the right of women to equality of opportunity in the Army. This marks a
step towards realising the fundamental constitutional commitment to the equality
and dignity of women. (Para 74)
The proposal which has been submitted before the Supreme Court by the Union
Government involves a three-stage assessment of women SSC officers for the grant e
of PCs. A distinction has been made in the proposal between women officers who
have been in service for a period of less than fourteen years and those beyond. The
proposal envisages that only those women officers with less than fourteen years of
service would be considered for the grant of PCs. Under the terms of this proposal,
women officers with more than fourteen years of service but less than twenty years
of service would continue until they attain pensionable service of twenty years,
f
without the grant of PCs. Women officers who have crossed twenty years' service
would be discharged from service immediately subject to receipt of pension. The
proposal is commended for acceptance on the ground that it allows women officers
who have crossed fourteen years of service to receive pensionary benefits, where
such benefit would otherwise not be available to them. (Para 75)
There is however, a fundamental fallacy in the distinction which has been
sought to be drawn between women officers with less than fourteen years of service g
with those with service between fourteen and twenty years and above twenty years.
The judgment of the High Court was rendered on 12-3-2010. Nearly a decade has
elapsed since the date of the decision. The Union Government was duty-bound
to enforce the judgment of the High Court, the judgment not having been stayed
during the pendency of these appeals. However, it failed to do so despite the
categoric assertion by the Supreme Court in its order dated 2-9-2011 that what
h
was stayed as an interim measure is the action for contempt and not the operation
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of the judgment. Having failed to enforce the judgment, the Union Government
has now informed the Court that it would not consider women officers who have
crossed the age of fourteen years in service as SSC officers for the grant of PCs.
a
This situation of women officers with service above fourteen years has come into
existence because of the failure of the Union Government to comply not only with
the directions of the High Court but also those which were issued by the Supreme
Court on 2-9-2011. In this view of the matter, there is no reason or justification
to deprive SSC women officers of the grant of PCs on the ground that they have
crossed fourteen years of service. The SSC women officers, both within the period
b of fourteen years' service and beyond, should equally be entitled to consideration
for the grant of PCs. (Paras 76 and 77)
The policy decision which has been taken by the Union Government on
25-2-2019 indicates that it is to apply prospectively. It is necessary to clarify that
the prospective application of the decision does not mean that it would apply to
women officers who have been appointed as SSCs officers after the date of the
C
decision. The Union Government has not applied it in such a manner, which is
evident from the fact that the decision contemplates that women officers already
in service but with less than fourteen years would be entitled to be considered. It
is clarified that the policy decision will apply to all women SSC officers who are
currently in service irrespective of the length of service which has been rendered
by them. (Para 78)
Relying on P.K. Choudhary, (2016) 4 SCC 236 it was contended that the
d scope of judicial review in matters of command/tenure is limited. The courts
are conscious of the limitations which questions of policy impose on judicial
intervention in matters relating to the Armed Forces. At the same time, faced with
a salient decision of the Union Government to extend to all women SSC officers
the option for the grant of PCs as well as the situation which has come to pass due
to the non-implementation of the binding directions of the High Court as well as
e the Supreme Court, non-intervention in the present matter would be nothing short
of a travesty of justice. (Paras 79 to 84)
Union of India v. P.K. Choudhary, (2016) 4 SCC 236 : (2016) 1 SCC (L&S) 640, explained
The next aspect of the policy decision relates to the restriction which has
been imposed on women officers being granted PCs save and except for staff
appointments. Such a restriction was not imposed when the JAG and AEC branches
were opened up for the grants of PCs for women SSC officers in the past. The
f
consequence of this, is an implicit acceptance by the Army that women can, in
certain situations, receive criteria or command appointments. An absolute bar on
women seeking criteria or command appointments would not comport with the
guarantee of equality under Article 14 of the Constitution. Implicit in the guarantee
of equality is that where the action of the State does differentiate between two
classes of persons, it does not differentiate them in an unreasonable or irrational
g manner. In this sense, even at its bare minimum, the right to equality is a right
to rationality. Where the State, and in this case the Army as an instrumentality of
the State, differentiates between women and men, the burden falls squarely on the
Army to justify such differentiation with reason. (Para 85)
An absolute prohibition of women SSC officers to obtain anything but staff
appointments evidently does not fulfil the purpose of granting PCs as a means of
h career advancement in the Army. Whether a particular candidate should or should
not be granted a criteria or command assignment is a matter for the competent
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authority to consider having regard to all the exigencies of service, performance
and organisational requirements. In the present case the Army has provided no
justification in discharging its burden as to why women across the board should not
a
be considered for any criteria or command appointments. Command assignments
are not automatic for men SSC officers who are granted PC and would not be
automatic for women either. (Para 85)
The absolute exclusion of women from all others except staff assignments is
indefensible. If the Army has cogent reasons for excluding women from a particular
criteria or command appointment, it may provide them to the relevant authorities
and if necessary, to future courts. However, such a justification must take place b
on a case-to-case basis, in light of the requirements and exigencies of a particular
appointment. The blanket non-consideration of women for criteria or command
appointments absent an individuated justification by the Army cannot be sustained
in law. The expression "in various staff appointments only" in Para 5 and that "on
staff appointments only" in Para 6 of the communication dated 25-2-2019 shall not
be enforced. (Paras 85 and 86) C
The Policy dated 25-2-2019 by the Union Government allowing for the grant of
PCs to SSC women officers in all the ten streams where women have been granted
SSC in the Indian Army is accepted subject to the following:
(i) All serving women officers on SSC shall be considered for the grant of
PCs irrespective of any of them having crossed fourteen years or, as the case
may be, twenty years of service. d
(ii) The option shall be granted to all women presently in service as SSC
officers.
(iii) Women officers on SSC with more than fourteen years of service who
do not opt for being considered for the grant of the PCs will be entitled to
continue in service until they attain twenty years of pensionable service.
(iv) As a one-time measure, the benefit of continuing in service until e
the attainment of pensionable service shall also apply to all the existing SSC
officers with more than fourteen years of service who are not appointed on PC.
(v) SSC women officers with over twenty years of service who are not
granted PC shall retire on pension in terms of the policy decision.
(vi) At the stage of opting for the grant of PC, all the choices for
specialisation shall be available to women officers on the same terms as for f
the male SSC officers. Women SSC officers shall be entitled to exercise their
options for being considered for the grant of PCs on the same terms as their
male counterparts.
(vii) SSC women officers who are granted PC in pursuance of the above
directions will be entitled to all consequential benefits including promotion and
financial benefits. However, these benefits would be made available to those g
officers in service or those who had moved the High Court by filing the writ
petitions and those who had retired during the course of the pendency of the
proceedings. (Para 87)
Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116: (2010) 168 DLT 115,
affirmed and modified
Ministry of Defence v. Babita Puniya , 2010 SCC OnLine SC 77 ; Ministry of Defence v. Babita h
Puniya, 2010 SCC OnLine SC 78; Ministry of Defence v. Babita Puniya, 2011 SCC OnLine
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SC 86; Ministry ofDefence v. Babita Puniya, 2011 SCC OnLine SC 87; Ministry of Defence
v. Babita Puniya, 2012 SCC OnLine SC 1213; Ministry of Defence v. Babita Puniya, 2013
SCC OnLine SC 1440; Sanjeev Shanna v. Union of India, 2018 SCC OnLine SC 3532,
a referred to
P-D/63826/CL
Advocates who appeared in this case:
Tushar Mehta, Solicitor General, Sanjay Jain, Additional Solicitor General, R.
Balasubramanian, Ms Aishwarya Bhati, P.S. Narasimha and C.U. Singh, Senior
Advocates [Ms Neela Gokhale, Ms Saniya Scott, Yuvraj Sharma, Padmesh Mishra,
b Arkaj Kumar, Ashray Behura, Ms Shradha Agrawal, Ms Shruti Dixit, Ilam Paridi,
Chitrangda Rastravara, Ms Kirti Khangarot, Ms Oorjasvi Goswami, Celeste Agarwal,
Nitin Pavuluri, Ms Archana Pathak Dave, Ms Aditi Tripathi, Ms Sindoora VNL,
Ms Kanti, Sridhar Potaraju, Ms Shweta Parihar, Ms Shiwani Tushir, Ms G. Ushari,
Vishnu Tulasi Menon, Mohd. Ali, Nikhil Goel, Ms Naveen Goel, Dushyant Sarna,
Vinay Mathew (for Santosh Krishnan), Ms Arunima Dwivedi, Arvind Kr. Sharma,
Harish Pandey, Mukesh Kr. Maroria, Sudhanshu Shekhar Pandey, Gaichangpou
C Gangmei, Abhishek R. Shukla, Arjun D. Singh, Arrant Vijay Palli, Ms Garima
Sachdeva, Nikhil Palli, Deepak Goel, Anil Kr. Bakshi, Ms Meenakshi Lekhi, Harish
Pandey, Jitender Kr. Tripathi, Alok Kr. Pandey, Sanchar Anand, Arrant K. Vatsya,
Devendra Singh, Vivek Narayan Sharma, Jasdeep Singh, Pragyan Mishra, Shubham
Awasthi, Akash Sharma, Rajeev Kr. Jha, Ms Suman Rani, Santosh Krishnan, B.V.
Balaram Das, Ms Pooja Dhar, Ms Haripriya Padmanabhan, Shurtanjaya Bharadwaj,
Vishal Sinha, Ms Sunieta Ojha, Mayank Tripathy, Ms Monisha Handa, Mohit D.
d Ram, Sachin Kaushal, Ms Liz Mathew, Navneet R., Ms Sonali Jain, Anupam Raina,
Maninder Jit Singh, Hitesh Kr. Sharma, Akhileshwar Jha and Ms Beendu Singh,
Advocates], for the appearing parties.
1. 2018 SCC OnLine SC 3532, Sanjeev Sharma v. Union of India 488a
2. (2016) 4 SCC 236: (2016) 1 SCC (L&S) 640, Union of India v. P.K.
Choudhary 490b-c, 505d, 506a, 506d-e,
e 506f
3. 2013 SCC OnLine SC 1440, Ministry of Defence v. Babita Puniya 484{-g
4. 2012 SCC OnLine SC 1213, Ministry of Defence v. Babita Puniya 484{
5. 2011 sec OnLine SC 87, Ministry of Defence V. Babita
Puniya 484c-d, 484d, 484!, 500a-b,
504{
6. 2011 SCC OnLine SC 86, Ministry of Defence v. Babita Puniya 484b
f 7. 2010 SCC OnLine Del 1116: (2010) 168 DLT 115, Babita Puniya v.
Ministry of Defence 482e, 482e-f, 483d, 483g,
484a, 484d, 484e, 484e-f,
488a-b, 488b, 488c-d, 488e,
491b, 491b-c, 493a,
499g-h, 499h, 500b, 503g,
504e, 504e-J, 505a, 508e:f
8. 2010 SCC OnLine SC 78, Ministry of Defence v. Babita Puniya 484a-b
g
9. 2010 SCC OnLine SC 77, Ministry of Defence v. Babita
Puniya 484a-b, 484b
10. (1983) 3 sec 401 : 1983 sec (L&S) 405, R. Vzswan v. Union of
India 498d, 498e, 499a
11. (1982) 3 SCC 140: 1982 SCC (Cri) 642, Prithi Pal Singh Bedi v.
Union of India 497d-e, 498a, 498b
12. (1964) 5 SCR 931 : AIR 1965 SC 247 : (1965) 1 Cri LJ 236, Ram
h Sarup v. Union of India 496f-g, 497c
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DR D.Y. CHANDRACHUD, J.-
INDEX a
!. S. No ...i. .........................................Heading···········································L. ....Page No . .....J

..............•.................................................................................................... ............................
:,, A :Background of the dispute :,, 478
485
,:
:,...........................................................................................................................................................
B. : Proposal of the Union of India :,........................................................ ,:
: C. : Submissions : 488 :
1 D. lconsequence of the policy letter dated 25-2-2019 1 496 ; b
1 E. l Stereotypes and women in the Armed Forces 1 501 ;
L.: ..G.F .....J: Blanket
Consequence. of.non-compliance .......................................... .L ........ 504·········.J
restriction on criteria appointments : 507 :
) H. lDirections
......................................................................................................................................................................................................................................1,.............................
508 1.
A. Background of the dispute C
1. A quest for equality of opportunity for women seeking Permanent
Commissions ("PCs") in the Indian Army forms the basis of these appeals. The
lead appeal originated in a batch of writ petitions which were instituted before
the High Court of Delhi in 2003 and 2006.
2. A decade and more spent in litigation, women engaged on Short Service
d
Commissions ("SSCs") in the Army seek parity with their male counterparts
in obtaining PCs. The entry of women in the Army has a chequered history.
Section 12 of the Army Act, 1950 ("the 1950 Act") contains, insofar as it is
material, the following provisions:
"12. Ineligibility of females for enrolment or employment.-No female
shall be eligible for enrolment or employment in the regular Army, except e
in such corps, department, branch or other body forming part of, or attached
to any portion of, the regular Army as the Central Government may, by
notification in the Official Gazette, specify in this behalf."
3. Pursuant to the power conferred by Section 12, the Union Government
issued a Notification 1 dated 30-1-1992 making women eligible for appointment f
as officers in the specific branches/cadres of the Army. These were:
"(i) Army Postal Service;
(ii) Judge Advocate General's Department;
(iii) Army Education Corps;
(iv) Army Ordinance Corps (Central Ammunition Depots and Material 9
Management); and
(v) Army Service Corps (Food Scientists and Catering Officers)."
h
1 SR0-11.
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MINISTRY OF DEFENCE v. BABITA PUNIYA ( Dr Chandrachud, J.) 4 79

This notification was to remain in force for a period of five years from the date
on which it was published in the Official Gazette. SRO-11 was published in
a the Gazette on 15-2-1992.
4. By a Noti:fication2 dated 31-12-1992, women became eligible for
enrolment in the following corps/departments of the regular Army:
"(i) Corps of Signals,
(ii) Intelligence Corps,
b (iii) Corps of Engineers,
(iv) Corps of Electrical and Mechanical Engineering,
(v) Regiment of Artillery."
5. The provision for the induction of women for an initial period of five
years was extended by a Notification3 dated 12-12-1996 issued by the Ministry
C
of Defence ("MoD"). The notification deleted Para 2 of SRO-11 under which
enrolment was to be for a period of five years.
6. On 28-10-2005, a notification4 was issued by the MoD by which the
Union Government extended the validity "of the scheme of appointment of
women as officers in the Indian Army". To facilitate this, four amendments
d were made to the earlier Notification dated 15-2-1992:
6.1. The tenure of women officers inducted under the Women Special
Entry Scheme (Officers) ("WSES") under the Notifications dated 15-2-1992,
23-1-1993 and 12-12-1996 was extended by five years from 1997.
6.2. The tenure of SSC male officers and WSES officers was extended up
e to fourteen years.
6.3. The WSES was to cease to apply as a consequence of which women
officers were to be inducted through SSC in the corps/services notified by the
Notifications dated 15-2-1992, 23-1-1993 and 12-12-1996.
6.4. Substantive promotions were to be extended both to men and women
f SSC officers "as applicable to PC officers".
7. Initially, when the WSES was notified under an Army lnstruction5 , it was
governed by the Terms of Engagement ("ToE"). Para 1 of the ToE stipulated
that commission would be for a period of five years in the Army Service Corps,
Army Ordinance Corps, Army Education Corps ("AEC") and Judge Advocate
g General's Department ("JAG"). Para 12 contemplated that on the successful
completion of pre-commission training, "lady cadets" would be granted PCs
in the rank of Second Lieutenant, but they would be placed junior to other
2 SRO-1, published in the Gazette on 23-1-1993.

3 SRO-l0(E).
h
4 SRO-121, published in the Gazette on 19-11-2005.
5 SAi NO/1/5/92.
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candidates passing out from the Indian Military Academy and would be granted
regular commission from the same date.
8. Para 19 of ToE contemplated that: a
"19. Disposal on expiry of Commission.-On expiry of contractual
period of commission i.e. five years' commissioned service from the
date of grant of commission, they will be released from the service.
The officers granted commission under this Army Instruction will not
be granted permanent commission or any extension beyond five years of b
commissioned service."
9. The original ToE provided for a contractual period of five years after
which the officers were to be released from service. The officers who were
granted commission under the Army Instruction were not entitled to PC or to
any extension beyond five years of commissioned service. C
10. On 1-8-1996, an amendment was issued to the WSES, under which

the commission for an initial period of five years was made further extendable
by five years in the Regiment of Artillery, Corps of Engineers, Corps of
Signals, Army Service Corps, Army Ordinance Corps, Corps of Electrical
and Mechanical Engineers, AEC, Intelligence Corps and JAG Department. d
Women who had been granted commission for an initial period of five years
were required to furnish an option for extension by five years or for release.
A provision was made for promotion on a substantive basis to the rank of a
Lieutenant after two years and to the rank of Captain after five years. The
provision contained in Para 19 of the earlier Army Instruction 5 for the release
from service on the completion of the contractual period of five years was e
substituted by the following provision:
"19. Disposal on expiry of Commission.-On expiry of contractual
period of commission i.e. five years/ten years from the date of grant of
commission as the case may be, they will be released from the service.
The officers granted commission under these Army Instruction will not be f
granted permanent commission."
11. The position that emerges from the above narration is that when the
induction of women in the Army was envisaged with effect from 15-2-1992
in stipulated branches and cadres, the tenure of engagement was five years.
The above stipulation of five years was deleted on 12-12-1996. On 19-11-2005, g
the MoD provided that the tenure of WSES officers would be extended up to
fourteen years. The Army Instruction broadly followed the same course, as
a consequence of which a cap on the length of service was introduced. The
initial process of induction under the WSES was replaced by SSCs with an
outer period of fourteen years.
h
5 SAi N0/1/5/92.
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MINISTRY OF DEFENCE v. BABITA PUNIYA ( Dr Chandrachud, J.) 481

12. The contesting respondents (other than the first respondent, who is not
an Army Officer) were selected in the Army as SSC officers commencing from
a 1995-96.
13. In February 2003, Babita Puniya, an advocate instituted a writ petition6
in the nature of a public interest litigation ("PIL") before the Delhi High Court
for the grant of PC to women SSC officers in the Army.
14. During the course of the proceedings, two circulars were issued on
b 20-7-2006, conveying the sanction of the President of India regarding the grant
of SSCs both on the technical and non-technical side to women officers. The
period of training was stipulated at forty-nine weeks on a par with male SSC
officers. The circulars had comprehensive provisions pertaining among other
things, tenure, substantive promotions and adjustment of seniority. Serving
WSES officers were given an option to move to the new SSC scheme or to
C
continue under the erstwhile WSES.
15. The first batch of women officers under the new scheme entered the
Army in 2008. Among the terms and conditions, Para l(a) provided for tenure
in the following terms:
d
"(a) Tenure of Short Service Service Commission.-Short
Commission (SSC) Technical in the Regular Army will be granted for 14
years i.e. for an initial period of ten years extendable by a further of four
years."
16. Para l(c) enabled newly inducted women officers other than those with
a specialised course to leave service after completing five years of service.
e
Substantive promotions were provided in Para (e) in the following terms:
"(e) Substantive Promotion.-Women granted Short Service
Commission under these rules will be eligible for substantive promotion
as under:
f (i) To the rank of Capt. - On completion of 2 years' reckonable

commissioned service.
(ii) To the rank of Maj. - On completion of 6 years' reckonable
commissioned service.
(iii) To the rank of Lt. Col. - On completion of 13 years'
reckonable commissioned service."
g
17. Para l(g) provided for the adjustment of seniority:
"(g) Adjustment of seniority.-To make adjustment for shorter
training of SSC Women Officers vis-a-vis PC officers, the seniority of
SSC Women Officers will be depressed by the period corresponding to the
h
6 WP (C) No. 1597 of 2003.
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difference in training period between the SSC course under consideration
and the training period of its equivalent PC course. This adjustment of
seniority will be carried out at the time of grant of first substantive rank of a
Captain. The revised seniority will have no effect on the pay and allowance
granted in the rank of Capt., Major and Lt Col."
18. Para 2-A allowed serving officers under the WSES to exercise an option
to opt for the SSC scheme within six months failing which, they would be
treated to have exercised the option to continue under the erstwhile scheme. b
Para 4 contained the following stipulation:
"4. All other provisions of AI 1/93 except Para 18 and SAi 1/S/92
as amended will be applicable, mutatis mutandis, to women granted SSC
subject to issue of separate AI for SSC (Women) (Tech)."
Consequently, all other provisions contained in SAI-1/S/1992 were to apply C
mutatis mutandis to women who were granted SSCs.
19. Apart from the PIL which was instituted before the High Court of
Delhi, a writ petition7 was filed by Major Leena Gurav on 16-10-2006 primarily
to challenge the terms and conditions of service imposed by the Circulars
dated 20-7-2006 and for seeking the grant of PCs for women officers.
d
20. On 26-9-2008, the MoD issued a circular envisaging the grant of PCs
prospectively to SSC women officers in the JAG Department and the AEC. The
circular was challenged before the Delhi High Court by Major Sandhya Yadav
and others on the ground that it granted PCs only prospectively and only to
certain specified cadres.
21. The writ petitions were heard together by the Division Bench of the e
Delhi High Court. By ajudgment dated 12-3-2010 8 , the High Court issued the
following directions: (Babita Puniya case 8 , SCC OnLine Del para 62)
"62. * * *
(i) The claim of absorption in areas of operation not open for
f
recruitment of women officers cannot be sustained being a policy
decision.
(ii) The policy decision not to offer PC to Short Service
Commissioned officers across the board for men and women being
on parity and as part of manpower management exercises is a policy
decision which is not required to be interfered with. g
(iii) The Short Service Commissioned women officers of the Air
Force who had opted for PC and were not granted PC but granted
extension of SS Cs and of the Army are entitled to PC on a par with male
Short Service Commissioned officers with all consequential benefits.
This benefit would be conferred to women officers recruited prior to
h
7 WP (C) No. 16010 of 2006.
8 Babita Puniya v. Ministry of Def ence, 2010 SCC OnLine Del 1116: (2010) 168 DLT 115
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change of policy as (ii) aforesaid. The Permanent Commission shall
be offered to them after completion of five years. They would also
a be entitled to all consequential benefits such as promotion and other
financial benefits. However, the aforesaid benefits are to be made
available only to women officers in service or who have approached
this Court by filing these petitions and have retired during the course
of pendency of the petitions.
(iv) It is made clear that those women officers who have
b not attained the age of retirement available for the Permanent
Commissioned officers shall, however, be reinstated in service and
shall be granted all consequential benefits including promotion, etc.
except for the pay and allowance for the period they have not been in
service.
(v) The necessary steps including release of financial benefits shall
C be done by the authorities within two (2) months of passing of this
order."
22. At this stage, it would be appropriate to briefly dwell on the above
directions.
23. Direction (i) envisages that "areas of operation" of the Armed Forces
d where recruitment of women officers is not open was excluded from the
purview of the judgment8 of the High Court on the ground that it is a matter
of policy. Women have been excluded from combat operations. This exclusion
which has not been interfered with in Direction (i) above on the ground that it
is a matter of policy is not the subject-matter of contest in the present appeals.
Direction (ii) envisages that where a policy decision has been taken not to offer
e PC to SSC officers - both men and women without distinction as a part of
manpower management, such a policy decision was not be interfered with.
Direction (iii) envisages that women officers of the Air Force and Army on SSC
who had opted for the grant of PC but were not granted that status would be
entitled to PC on a par with male SSC officers with all consequential benefits.
PC was to be offered to them after the completion of five years together with
f consequential benefits of promotion and other financial benefits. However, this
benefit was only available to women officers in service who had instituted
proceedings before the High Court and had retired during the pendency of the
writ petitions. By Direction (iv), it was envisaged that women officers who had
not attained the age of superannuation for PC officers would be reinstated with
all consequential benefits.
g
24. Assailing the judgment8 of the High Court, the Union of India is in
appeal. The present batch of appeals relates to the Indian Army. The directions
issued by the High Court in regard to the Indian Air Force are not the subject
of contest in these appeals.
h
8 Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116: (2010) 168 DLT 115
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25. Contempt proceedings were initiated by the respondents against the
Union of India alleging non-compliance with the judgment 8 of the Delhi High
Court. On 2-8-2010, the Solicitor General of India made a statement before a
this Court that "women SSC officers in service would be considered for grant
of Permanent Commission in JAG and Education Branch of the Army within
two months ... " In view of the statement made before this Court, the contempt
proceedings were stayed9 . By an order dated 4-10-2010 10 , time for compliance
with the order dated 2-8-2010 9 was extended until 1-12-2010. b
26. On 11-1-2011 11 , this Court, while issuing notice, acceded to the prayer
of the Additional Solicitor General of India for an adjournment of six weeks to
enable a "high-powered committee" constituted by the Union Government to
consider the question pertaining to the grant of PCs to SCC women officers and
to enable the Chief of Staffs' Committee and the MoD to consider the report.
C
During the pendency of the proceedings, applications for impleadment were
allowed on 4-3-2011 and the operation of release orders passed by the Union
oflndia on 19-1-2011 was stayed.
27. On 2-9-2011 12 , this Court dealt with an application filed by eleven
applicants for reinstatement in the Army in terms of the judgment8 of the Delhi
High Court. Dealing with the application, this Court observed that: (Babita d
Puniya case 12 , SCC OnLine SC para 2)
"2. . .. What is stayed as interim measure by this Court is action of
contempt initiated by the original writ petitioners against the petitioners
in special leave petitions. The operation of the impugned judgment8 is not
stayed at all." (emphasis supplied) e
It was explicitly clarified that no stay had been issued on the judgment of the
Delhi High Court. Hence, the eleven applicants were allowed to be reinstated
in terms of the judgment8 of the Delhi High Court subject to the outcome the
appeal. Eventually, leave was granted on 2-9-2011 12. During the pendency of
f
the appeal, on 24-4-2012 13 , this Court allowed impleadment applications and
stayed a release order 10-4-2012. As a consequence, the applicants were held to
be entitled to regular salary and other emoluments in the ranks which they were
presently holding. Similar orders were passed by the Court on 12-7-2013 14 •
9 Ministry of Defence v. Babita Puniya, 2010 SCC OnLine SC 77
12 Ministry of Defence V. Babita Puniya, 2011 sec OnLine SC 87 h
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B. Proposal of the Union of India
28. During the pendency of this appeal, the Union Government in the MoD
a issued a communication dated 25-2-2019 for the grant of PCs to SSC women
officers in eight arms or services of the Army, in addition to the JAG and AEC
which had been opened up earlier for PC. The communication stipulates that:
"The sanction of the President is hereby conveyed for consideration of
grant of Permanent Commission to SSC Women Officers in the eight arms/
b services in Indian Army viz. Signals, Engineers, Army Aviation, Army
Air Defence, Electronics and Mechanical Engineers (EME), Army Service
Corps, Army Ordinance Corps and Intelligence in addition to the existing
two streams of Judge Advocate General (JAG) and Army Education Corps
(AEC). Thus women will be considered for grant of PC in all the ten
streams in which they are currently being commissioned as SSC Officers."
C
29. The communication further stipulates that:
29.1. Women officers will continue to be commissioned in the
abovementioned ten arms/services as earlier with no change in their tenure of
SSC engagement.
d 29.2. On the completion of three years and before completing four years of
commissioned service, they will be required to exercise an option for the grant
of PC and the choice of specialisation.
29.3. SSC women officers will be considered for the grant of PC
based on the availability of vacancies and subject to willingness, suitability,
performance, medical fitness and competitive merit.
e
29.4. On the grant of PC, women officers will be employed "in various
staff appointments only" in accordance with their qualifications, professional
experience, specialisation, if any, and organisational requirements.
29.5. While women officers who are granted PCs will continue to be a part
of their parent Army/service, "they would serve on staff appointments only"
f both within the parent Army/service and in other fields of specialisation.
29.6. Further career progression in selected ranks will be within the existing
authorised strength of officers in the Army and no additional select rank
vacancies will be created.
29.7. Women officers who fail to exercise the option for PC will be
9 governed by the terms and conditions under which they were commissioned.
29.8. The policy would come into effect prospectively from the date of the
issuance of the letter.
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30. The communication dated 25-2-2019 is reproduced below:
"Policy Letter dated 25-2-2019
F. No. 14(01)/2018-D(AG) a
Government of India
Ministry of Defence
New Delhi,
Dated 25-2-2019
To b
The Chief of Army Staff,
New Delhi
Subject: Permanent Commission to Short Service Commission (SSC)
Women Officers in Indian Army
This is in continuation of MoD Letter No. 12(01)/2004-D(AG) Pt. II c
dated 26-9-2008 and Letter No. 671/2009-(AG) dated 11-11-2011 regarding
induction of women in Armed Forces and grant of Permanent Commission
(PC) to Short Service Commission (SSC) Women Officers.
2. The sanction of the President is hereby conveyed for consideration of
grant of Permanent Commission to SSC Women Officers in the eight arms/
services in Indian Army viz. Signals, Engineers, Army Aviation, Army Air d
Defence, Electronics and Mechanical Engineers (EME), Army Service Corps,
Army Ordnance Corps and Intelligence in addition to the existing two streams
of Judge Advocate General (JAG) and Army Education Corps (AEC). Thus
women will be considered for grant of PC in all the ten streams in which they
are currently being commissioned as SSC Officers.
3. Women Officers will continue to be commissioned into the e
abovementioned ten Arms and Services hithertofore, with no change in their
tenure of Short Service engagement.
4. On completion of three years of commissioned service and before
completion of four years of commissioned service, they will be required to
exercise option for grant of PC and their choices for specialisation.
5. SSC Women Officers will be considered for grant of PC based on the f
availability of vacancies and subject to willingness, suitability, performance,
medical fitness and competitive merit. On grant of permanent commission,
these women officers will be employed in various staff appointments only
as per their qualification, professional experience, specialisation if any and
organisational requirement.
6. Women Officers granted PC will continue to be part of their parent arm/ g
service. However, they would serve on staff appointments only, both within
their parent arm/service and in other fields of their specialisation.
7. Their further career progression in select ranks will be within the
existing authorised strength of officers in Indian Army in accordance with
Para 6 above and no additional select rank vacancies will be created for this
purpose. h
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8. Women Officers who fail to exercise option for permanent commission
or do not opt for permanent commission will be governed by terms and
a conditions under which they were commissioned.
9. This policy will come into effect prospectively from the date of issue
of this letter.
JO. Necessary administrative instructions in this regard will be issued by
Army HQ.
11. This issues with the concurrence of MoD (Finance) vide their ID
b No. 2(12)/2019(50-PA) dated 22-2-2019.
(Poornima Rajendran)
Deputy Secretary
Tel: 23011593
Copy to: As per standard distribution"
c 31. During the course of hearing, Mr R. Balasubramanian, learned Senior
Counsel appearing on behalf of the Union of India has tendered a proposal
which envisages that:
31.1. Women officers of up to fourteen years of service would be
considered for the grant of PC with further career progression only in
staff appointments in terms of the Union Government's communication
d dated 25-2-2019. Since women officers above four years of service have missed
the cut-off stipulated in the communication for exercising their choice to opt
for the grant of PC and specialisation, the provisions would be modified for the
benefit of such officers.
31.2. Women officers with more than fourteen years of service would be
permitted to serve for up to twenty years without being considered for the grant
e of PC and would be then released with pensionary benefits subject to meeting
disciplinary and medical criteria.
31.3. Women officers with more than twenty years of service would be
released with pensionary benefits immediately upon the conclusion of the
present appeal.
32. The rationale for the above classification is explained in the following
t terms:
32.1. In 1992, the Army introduced the WSES in the Army Service Corps,
Army Ordinance Corps, AEC and the JAG branches. The training period was
twenty-four weeks and the tenure of service was five years.
32.2. In 1996, the tenure was extended by five years in Corps of Engineers,
Signals and Electrical and Mechanical Engineering branches.
g 32.3. In 2004, the tenure was extended from ten years to fourteen years
(5+5+4). Women officers who have rendered more than fourteen years of
service belonged to the erstwhile WSES whose ToE were initially for a period
of five years, extended in two spells, thereafter to fourteen years (5+5+4 ). Since
their employment was for a limited period, they were imparted shorter pre-
commission training of twenty-four weeks as against forty-nine weeks for male
h officers. These officers have limited exposure and responsibility and many in
the technical arms are not qualified.
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33. In pursuance of an order dated 23-7-2018 15 of this Court in the present
appeal, the Union of India in the MoD filed an affidavit dated 4-5-2018. The
Union oflndia states that the services in the Army are classified into three broad a
categories: (i) Combat Arms; (ii) Combat Support Arms; and (iii) Services.
SSC for women was available only in Combat Support Arms and Services.
Combat Arms have been excluded for SSC appointments for women in the
Army. The judgment 8 of the Delhi High Court has also affirmed this position.
In 2008, the benefit of PC was extended to SSC women officers in the JAG
and AEC which belonged to the Services stream. As a consequence of the b
judgment8 of the Delhi High Court, it has been held that in all streams where
the Army has provided the option for SSC women officers, there should be
no impediment for extending the option for the conferment of PCs. The effect
of the judgment is that all SCC women officers in different disciplines in the
Combat Support Arms and in the Services category to whom the judgment
applies have continued in service beyond the maximum permissible term of
C
fourteen years as SSC officers.
34. Women SSC officers commissioned before 2008 who were parties
before the High Court but had been discharged from service secured the
benefit of being reinstated in service as a consequence of the judgment8 of
the Delhi High Court. As a result, they have continued after the expiry of
the term of fourteen years. The Union of India contends that restrictions on
the employability of women in the Army "is inescapable due to the peculiar d
operational compulsions of the Army". According to the Union Government,
measures to eradicate the divide between men and women officers in as many
streams as possible are being adopted in an incremental manner.
C. Submissions
Submissions of the Union Government e
35. Challenging the judgment8 of the Delhi High Court, the following
submissions have been urged on behalf of Union of India.
(a) Grant of PC
36. Prior to the communication dated 25-2-2019, the engagement of SSC
women officers was governed by gazette notifications as amended from time f
to time. The ToE of WSES officers, later replaced by SSC service was tenure
based with a clear stipulation for exit on the completion of fourteen years
of service. The grant of PCs was specifically not envisaged. None of these
notifications or Army instructions were challenged before the High Court:
36.1. The judgment of the Delhi High Court has failed to take notice of the
relevant statutory provisions and orders of the Government of India. g
36.2. Under Section 10 of the 1950 Act, the grant of commission is at
the discretion of the President of India. The absence of a fundamental right to
claim PC is reinforced by Section 12 of the 1950 Act by reason of which, no
woman is eligible for employment except in such corps and departments as the
h
15 Sanjeev Shanna v. Union of India, 2018 SCC OnLine SC 3532
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Government of India may determine. The power to grant commission belongs
to the President and no mandamus can be claimed from a court.
a 36.3. The communication dated 25-2-2019 which has been placed on
record has been taken after due deliberation and is issued in national interest.
It stipulates that the order applies prospectively.
36.4. The policy decision communicated on 25-2-2019, envisages that the
skills of SSC women officers can be utilised by training them in specialised
fields such as language interpreters, imagery interpreters and cyber and
b information technology. In these specialisations, unrestricted employment
including career progression to higher ranks can be ensured.
36.S. The new policy is in organisational interest. The benefits envisaged in
the policy cannot be granted to women officers who have crossed fourteen years
since they will be left with little time to be trained. It would not be possible to
gainfully employ them, as they would have limited years of service left.
C (b) Pensionary benefits
37. The policy decision dated 15-2-2019 communicated by the Union
of India provides that the offer of PCs would be restricted to SSC women
officers who have not completed fourteen years of service. Those who have
completed fourteen years but have not attained the pensionable service of
twenty years would be permitted to continue without any scrutiny as a one-time
d measure to qualify for the grant of pensionary benefits. Women officers who
have crossed twenty years of pensionable service would be discharged from
service immediately and would receive pension. Thus, the substantial benefit of
pensionable service has been provided to women officers who have continued
beyond fourteen years of service under interim orders.
(c) Policy considerations
e 38. The Union of India has submitted that:
38.1. Fortified by Section 12 of the 1950 Act and Article 33 16 of the
Constitution, questions relating to constitution, recruitment, posts, categories,
cadres and criteria for the grant of PCs constitute policy decisions and lie
exclusively in the domain of executive functions.
f
16 "33. Power of Parliament to modify the rights conferred by this Part in their
application to Forces, etc.-Parliament may, by law, determine to what extent any
of the rights conferred by this Part shall, in their application to-
(a) the members of the Armed Forces; or
g (b) the members of the Forces charged with the maintenance of public
order; or
(c) persons employed in any bureau or other organisation established by
the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunications
systems set up for the purposes of any Force, bureau or organisation referred
to in clause (a) to (c),
h
be restricted or abrogated so as to ensure the proper discharge of their duties and
the maintenance of discipline among them."
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38.2. The provisions of the 1950 Act, insofar as they infringe or affect
fundamental rights, are protected by Article 33.
38.3. The Union Government is entitled to frame a policy regarding a
the grant of PCs to women officers after accounting for the need for a
balanced approach involving military services and national security. The Union
Government is entitled to take into account the inherent dangers involved in
serving in the Army, adverse conditions of service which include an absence
of privacy in field and insurgency areas, maternity issues and childcare. These
considerations are not open to judicial review. b
38.4. The scope of judicial review in matters of command/tenure is limited
as held by this Court in Union of India v. P.K. Choudhary 17 ("P.K. Choudhary").
(d) Occupational hazards
39. According to the Union of India, women are not employed on
duties which are hazardous in nature unlike their male counterparts in the c
same Arm/Service who are liable to be employed in combat duties. For
instance, a male officer in Army Service Corps undergoes infantry attachment
in field areas upon commissioning and may be posted later to Rashtriya
Rifles/Assam Rifles for counter-insurgency/counter-terrorist operations. The
personnel below officer ranks are similarly engaged in combat roles. A male
officer in the engineering branch would undergo a tenure in the Rashtriya Riffle/ d
Assam Rifles while women officers are not employed due to the "inherent
risks".
(e) Discrimination
40. There is no discrimination between men and women SSC officers. For
example, male SSC officers are not eligible to opt for an MTech course. Women
e
SSC officers in the JAG branch may avail 180 days of child care leave, while
PC women officers are entitled to avail 360 days owing to the long period of
service expected from them. The Union Government has submitted that the
Army faces a huge management challenge "to manage WOs in soft postings
with required infrastructure, not involving hazardous duties with the regular
posts with the other women in the station". The Army has to cater for spouse
f
postings, "long absence on account of maternity leave, child care leave" as a
result of which "the legitimate dues of male officers have to be compromised".
(J) Ajay Vikram Singh Committee Report: SSC as a support cadre
41. The Ajay Vikram Singh Committee (2003-2004) constituted by the
Union Government to enquire into cadre issues in the Armed Forces favoured a
lean permanent cadre of officers, supplemented by an enhanced support cadre g
in the ratio 1: 1.1 in view of the pyramidical structure of the Indian Army.
However, the ratio between the PC cadre vis-a-vis the SSC cadre is currently
skewed at 3.98:1. Hence, further induction into the PC cadre through the SSC
cadre will upset the organisational structure of the Army.
h
11 (2016) 4 sec 236: (2016) 1 sec (L&S) 640
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(g) Employment in staff appointments
42. Since 1992, the Union Government has restricted the eligibility of
a women officers to select appointments, as decided from time to time by Army
headquarters. These orders have not been subjected to challenge or been
invalidated. The issue of command appointments was not a lis in the writ
petitions before the Delhi High Court. Considering matters of organisational
requirement, suitability and performance, women officers granted PC would be
recommended only for staff appointments.
b 43. Finally, it has been urged by the Union of India that it has reinstated
all women officers covered by the judgment8 of the Delhi High Court insofar
as it relates to the Army. Those who are not in service either did not join their
posts or had sought release despite the grant of an extension in service. Hence,
women officers who are out of service or are not covered by the judgment8 of
the High Court cannot seek the benefit of the policy decision dated 25-2-2019.
C Any extension of the benefit to a woman officer outside the scope of the policy
decision would (it is urged) "open floodgates for litigation creating serious
administrative issues of cadre management".
44. In emphasising these submissions of behalf of the Union of India, Mr R.
Balasubramanian, learned Senior Counsel has in his written note stressed upon
two facets:
d (i) The need to protect national security and operational effectiveness;
and
(ii) Non-linear battlefield scenarios in future wars.
45. At this stage, it would be necessary to extract from the written note
which has been submitted on behalf of the Union of India. While we will
e express our views on the content of the note at a later stage, it is necessary here
to extract certain portions, as they stand:
45.1. Under the head of "Exigencies of Service", the written note of
submissions states:
"The profession of arms is not only a profession but a 'way of life',
which often requires sacrifices and commitment beyond the call of duty
f by the entire family of service personnel involving separation, frequent
transfers affecting education of children and career prospects of the spouse.
As a consequence, it is a greater challenge for WOs to meet these hazards of
service, owing to their prolonged absence during pregnancy, motherhood
and domestic obligations towards their children and families, especially
when both husband and wife happen to be service officers."
g 45.2. Under the head of "Physical Capabilities", the written note states:
"A soldier relies heavily on his physical prowess to engage in combat.
The officers are expected to lead their men 'from the front' and need
to be in prime physical condition to undertake combat tasks. Inherent
physiological differences (reference Annexure A) between men and women
h preclude equal physical performances resulting in lower physical standards
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(reference Annexure B) and hence the physical capacity of WOs in the IA
remain a challenge for command of units."
45.3. Under the head of "Composition of Rank and File", the written note a
states:
"Most of the countries whose armies have women as officers also have
women in their rank and file with the exception of India, Pakistan and
Turkey. This results in a unique 'all male' environment in a unit where
presence of WOs requires moderated behaviour in their presence. Posting
b
of WOs in all male units thus has its own peculiar dynamics."
45.4. Under the head of "Infrastructure", the written note states:
"Infrastructure in forward/border areas is very basic with minimal
facilities for habitat and hygiene. Officers and men have to make do
with primitive/makeshift arrangements. Manning forward posts and small
detachments with restricted communication facilities leads to a feeling of C
isolation. Deployment of WOs in such situations or places in the current
circumstances is not advisable."
46. The submission note of the Union of India has spoken of "physiological
limitation" on the employability of women officers "accentuated by the
challenges of confinement, motherhood and childcare". Finally, the note
portends the dangers of a woman officer being captured by the enemy and d
becoming a prisoner of war.
Submissions of the respondents
47. Assailing the above submissions, and in a serious critique of the
submissions adopted by the Union of India and the MoD in their perception
of women officers, Ms Meenakshi Lekhi, learned counsel and Ms Aishwarya e
Bhati, learned Senior Counsel have joined issue. The attention of the Court has
been drawn to the total strength of and shortage of officers in the Army on date,
as reflected in the following table:
Details of Officers in Indian Army

Auth Officers Held Officers Shortage
f
50,266 j40,825 including 1653 Women j 9441
................................................................................................................................................................................................................................................................................
l Officers i ·••
Besides, 157 male officers between the age group of fifty-four and fifty-eight
years have been re-employed after their retirement. The cadre structure of
women officers serving in the Indian Army is indicated in the following table:
g
Details of Women Officers in Indian Army
Present Holding : Above 20 Yrs : Between 14-20 Yrs : Fate Undecided
!........................................................................
1653 77
:.s ................................................................... : 255 : 332 .
, \ ••••••••••••••••••••••••••••••••••• ., ••••••••••••••••••••••••••••••••••••
48. Women officers form a miniscule four per cent of the total strength
of commissioned officers in the Army. Ms Lekhi submitted that the Union h
Government instituted the present proceedings under Article 136 of the
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Constitution in 2010 and in spite of there being no stay on the implementation
of the judgment8 of the Delhi High Court, no steps were taken to grant PCs
a to women officers in the Army in compliance with the judgment8 of the Delhi
High Court. Ms Lekhi submitted that this is based on the predominant fear
of male officers representing ninety-six per cent of the overall strength that
four per cent of the officers who are women would "eat away vacancies" in
the higher ranks. However, it has been submitted that the reality is different
since higher rank vacancies genuinely due to the 322 competent women officers
b have been taken away for promoting male officers. Ms Lekhi has addressed
this Court about the conventional bias against the women officers in the Army.
Women officers have served the organisation for almost twenty-five years and
the battle is against mindsets.
49. Dealing with the factors which have been stressed by the Union oflndia,
the written note submitted by Ms Lekhi contains the following explanations:
C 49.1. Battlefield scenario: The Army considers women officers as an
effective workforce until they complete fourteen years of service. The nature
of duties is similar to male officers. Having served shoulder to shoulder with
male officers for twenty-five years, the contention advanced by the Union of
India with respect to battlefield scenarios lacks substance.
49.2. Unit cohesion: The Union of India has alleged that the presence of
d
women has a negative impact on unit cohesion. It is time that the organisation
starts accepting women as equal colleagues.
49.3. National security: Despite the present batch of appeals being sub
judice for ten years, women officers of all ages and service profiles are still
being posted to sensitive places, field areas, force headquarters and units
e without being commissioned into combat arms.
50. Ms Lekhi urged that women officers on SSC have suffered from serious
discrimination comprising of:
(i) Lack of opportunity for professional growth;
(ii) Absence of job security due to the ambiguous status of the cadre;
and
f
(iii) Rendering service under Junior Officers due to the lack of a
uniform and equal promotion policy.
51. In other words, women officers have been left in the lurch without
pensionary and promotional benefits on a par with their male counterparts
despite having dedicated prime years of their lives to the service of the nation.
g
Submissions based on the Policy Letter dated 25-2-2019
52. Ms Meenakshi Lekhi and Ms Aishwarya Bhati have highlighted, during
the course of their submissions, the following aspects of the Policy Letter
dated 25-2-2019 which are discriminatory:
52.1. In response to Para 4: Male SSC officers are required to exercise
h their option for the grant of PC prior to the completion of ten years of service.
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SSC women officers are required to exercise their option on the completion of
three years of service and prior to the completion of four years of service. With
comparatively lesser experience at the stage when they are required to exercise a
an option, women officers lack adequate experience to take a considered
decision and the possibility of being granted PC is comparatively lower.
52.2. In response to Para 6: Restricting SSC women officers only to staff
appointments is to prevent their career growth by restraining them within
vacancy restrictions, promotions and placements.
52.3. In response to Para 9: Application of the policy prospectively is b
designed to keep away senior women officers outside the ambit of PC. The
Army is misconstruing the prospective application of the policy to give the
benefit to women officers inducted after the date of the policy. On the other
hand, for the JAG and AEC officers, the prospective application has been
interpreted by the Army to grant benefit to officers who were in service on the
date of the issuance of the policy. C
53. It was further contended that posting women officers in staff
appointments in the select rank of Colonel under the aegis ofMS-1 and MS-3
will equate them with re-employed, low medical category and non-empanelled
male officers. Refuting the argument on command appointments, it has been
submitted that there are several command roles that do not require any special
training including: d
(i) NCC Battalions (there are more than 100 girl battalions which are
currently being commanded by male officers);
(ii) Record officers;
(iii) Training regiments;
(iv) Commandants of Sainik schools and Military schools; and e
(v) Provost unit commanding officers as provosts are pioneering the
induction of women combatants.
54. Meeting the submissions advanced by the Union Government, the
respondents have filed a counter-affidavit contending that:
54.1. Services in which women officers have been inducted as SSC women f
officers are not combative in nature. The job profile includes supporting the
combat arms segment and assisting in providing, maintaining and repairing the
logistic support. The respondents were inducted in the Army against specified
appointments with specific eligibility qualifications such as food scientists,
material managers, software engineers and linguistic officers. These postings
cannot be compared with the combat arms of the Army. The present case has not g
been instituted seeking either recruitment or commission into combat arms as
this is a conscious decision of the Union Government and is a matter of policy.
54.2. The nature of duty which a commissioned officer is required to
perform while serving in the Corps is defined in the Army Manuals of
these services. Both women and male officers who were commissioned in
these services perform similar duties, undergo similar professional courses h
and training and are posted to all field/peace postings according to their
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profiles. There is no separate charter of duties for women officers or
SSC commissioned male officers and PC male officers. Women officers
a commissioned in various corps are assigned duties similar to male officers (SSC
or PC) and commissioned into the same corps.
54.3. The claim of the appellant that there is a probability of women officers
being exposed to a hostile environment where there is a grave danger of their
coming in contact with the enemy is discriminatory and without any basis.
The women officers have been and are regularly being posted by the Indian
b Army to all possible field units (combat zones) where male officers from the
same corps are also serving. Consequently, the Army follows a policy of non-
discrimination when it comes to postings but does not follow the same when
it comes to granting PC to its women officers. Thirty per cent of all women
officers are posted in the field (combat zones).
54.4. Based on the response to a question raised in the Lok Sabha, as
C on 16-8-2010, there is an acute shortage of 11,500 officers in the Indian
Army out of which approximately 5115 officers are deficient in the support
services in which women officers have been commissioned. Despite the
deficiency of officers in the support services, the Indian Army is letting go of
trained women officers due to gender discrimination and not granting PCs to
women officers. To overcome the shortage of officers, the Army has given re-
d employment to retired male officers of the rank of Colonel or below at the age
of superannuation (54-58 years) for a period of four years. The vacancies in the
Indian Army can be easily handled by women officers.
54.5. Women officers undergo training for all mandatory courses which
other SSC male officers also undertake. However, only male officers are
eligible to seek PCs. Women officers also undergo the Junior Command Course
e which is mandatory to train Army officers to discharge their responsibilities as
Lieutenant Colonels.
54.6. No rule of the Indian Army prescribes that officers seeking PC have
to compulsorily be given command of troops. A command position is given
only to those officers who clear their promotion Board based on an efficiency
metric. Male officers (SSC or PC) who are not found fit for promotion to
f
the rank of Colonel are accommodated in the staff appointments. Similarly, if
women officers are found fit and deserving for the rank of Colonel, they may be
promoted to the next rank or be allowed to continue in the manner other non-
empanelled PC male officers are presently allowed.
54.7. The willingness of the Indian Army to grant PC to women officers of
g only AEC and JAG branches, stating that these are non-combative roles is not
true as these two corps do not have a "unit" like organisational structure and
both men and women officers are not offered command positions.
54.8. In addition to the discriminatory nature of the policy with respect to
the grant of PC, the policies for women officers in the Army also lowers their
status to that of a jawan/JCO. A woman officer working for fourteen years is
h neither given pension nor retirement benefits. Details of the treatment meted
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out to women officers in the Army in comparison with PC, SSC male officers/
jawans and JCOs is tabulated as follows:
a
"Pension Ex- Ex- Re- i Encashment j
I) Servicemen
statu,
i Servicemen employment! of lease
IContributory
!:. Health
I
Scheme
: PC Male l Pensionable l Yes Yes Yes : Paid for [
: Officers
1 j after 20 l 300 days' [ b
l
j:::
l:. years encashed j:.
j • • . . i leave .
i Jawan/JCO i Pensionable i Yes i Yes i Yes i Paid for [
i i after 15 i i i i 300 days' i
j l years l j j j encashed j
i i i i i i leave !
issCWomeniNopension iNo ESMjNo ECHSiNo iPaid only! C
jOfficers l status l jfacility l
provision of /or 90 days' j
: : : : : re- : encashed :
i i i i i employmend leave [
i
j SSC Male SSC Gentle~en officers ~e all together' in a different category, as j
iOfficers i they are allowed to opt for permanent commission after 5/10 years of [
1 lservice and once they get permanent commission, they are authorised 1 d
i• ••••••••••••••••••••••••i....................................
for all benefits of permanent commission officers." [
- ..................................................................................................................................... - ............................................. t
55. The rival submissions fall for consideration.

D. Consequence of the Policy Letter dated 25-2-2019
56. Article 33 of the Constitution empowers Parliament to determine by
law the extent to which the rights conferred by Part III of the Constitution e
shall be restricted/abrogated in their application inter alia to the members of
the Armed Forces so as to ensure the proper discharge of their duties and the
maintenance of discipline among them. The impact of Article 33 is to enable
Parliament to limit or abrogate the fundamental rights in their application to
the members of the Armed Forces. But such a restriction or abrogation must be
by law. Moreover, the restriction or abrogation must be enacted to ensure the f
proper discharge of duties and the maintenance of discipline.
57. Several decisions of this Court have dealt with Article 33 of the
Constitution in relation to the Armed Forces. In Ram Sarup v. Union of India 18 ,
the petitioner, a sepoy in 131 Platoon DSC , was charged under Section 69
of the 1950 Act read with Section 302 of the Penal Code, 1860. A sentence
of death was awarded by the General Court Martial which was confirmed by g
the Union Government. A number of contentions were raised for challenging
the provisions of the 1950 Act as well as the method in which the trial was
conducted. A Constitution Bench of this Court rejected the challenge and
upheld the sentence. In the course of the judgment, Raghubar Dayal, J. writing
for the Bench, held: (AIR p. 251, para 16)
h
18 (1964) 5 SCR 931: AIR 1965 SC 247: (1965) 1 CriLJ 236
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"16 . ... The learned Attorney General has urged that the entire Act
has been enacted by Parliament and if any of the provisions of the Act
a are not consistent with the provisions of any of the articles in Part III of
the Constitution, it must be taken that to the extent of the inconsistency
Parliament had modified the fundamental rights under those articles in
their application to the person subject to that Act. Any such provision
in the Act is as much law as the entire Act. We agree that each and
every provision of the Act is a law made by Parliament and that if any
b such provision tends to affect the fundamental right under Part III of the
Constitution, that provision does not, on that account, become void, as it
must be taken that Parliament has there by, in the exercise of its power under
Article 33 of the Constitution, made the requisite modification to affect the
respective fundamental right. We are however of opinion that the provisions
of Section 125 of the Act are not discriminatory and do not infringe the
C provisions of Article 14 of the Constitution."
58. This Court in Ram Sarup case 18 held that the 1950 Act was enacted in
pursuance of the enabling power conferred upon Parliament by Article 33 of
the Constitution and is entitled to protection despite the restrictions imposed
by its provisions on the fundamental rights guaranteed by the Constitution.
The Court held that the provisions of the 1950 Act formed an inherent part of
d the legislation and having been enacted in pursuance of the power conferred
by Article 33, they would not be declared void to the extent they restricted or
abrogated the guarantee of fundamental rights to members of the Armed Forces.
59. In Prithi Pal Singh Bedi v. Union of lndia 19 , the legality of orders
convening a General Court Martial and its composition was questioned. It
was contended that trial by a Court Martial would result in the deprivation
e of personal liberty, which can only be done in consonance with Article 21 of
the Constitution. It was contended that any restriction must be by procedure
established by law and the law prescribing such procedure must satisfy the test
prescribed by Articles 14 and 19 of the Constitution. D.A. Desai, J. writing
for a three-Judge Bench of this Court noted the competing interests that must
be considered in matters concerning the Armed Forces in the following terms:
f (SCC pp. 155-56, para 14)
"14. While investigating and precisely ascertaining the limits of
inroads or encroachments made by legislation enacted in exercise of power
conferred by Article 33, on the guaranteed fundamental rights to all citizens
of this country without distinction, in respect of armed personnel, the
g court should be vigilant to hold the balance between two conflicting public
interests; namely, necessity of discipline in armed personnel to preserve
national security at any cost, because that itself would ensure enjoyment
of fundamental rights by others, and the denial to those responsible for
national security of these very fundamental rights which are inseparable
adjuncts of civilised life."
h
18 Ram Sarup v. Union of Iruiia, (1964) 5 SCR 931 : AIR 1965 SC 247: (1965) 1 Cri LJ 236
19 (1982) 3 sec 140: 1982 sec (Cri) 642
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60. The Court in Prithi Pal Singh case 19 held that the public interest in
the maintenance and preparedness of the Armed Forces of the nation has to be
weighed with an equally compelling public interest in balancing the abrogation a
or restriction of fundamental rights of the officers in the Armed Forces. For this
reason, Article 33 specifies that any restriction imposed must be by law and
in order to ensure the proper discharge of their duties and the maintenance of
discipline among them. The Court rejected the challenge and held: (Prithi Pal
Singh Bedi case 19 , SCC pp. 156-57, para 15)
"15 . ... Article 33 does not obligate that Parliament must specifically b
adumbrate each fundamental right enshrined in Part III and to specify in
the law enacted in exercise of the power conferred by Article 33 the degree
of restriction or total abrogation of each right. That would be reading into
Article 33 a requirement which it does not enjoin. . .. it is not possible
to accept the submission that the law prescribing procedure for trial of
C
offences by court martial must satisfy the requirement of Article 21 because
to the extent the procedure is prescribed by law and if it stands in derogation
of Article 21, to that extent Article 21 in its application to the Armed Forces
is modified by enactment of the procedure in the Army Act itself."
61. In R. Viswan v. Union of lndia 20 , one of the issues concerned whether
Section 21 of the Army Act, 1950 read with Chapter IV of the Army Rules, d
1954 is within the scope and ambit of Article 33 of the Constitution. Section 21
empowers the Central Government by notification to make rules restricting "to
such extent and in such manner as may be necessary" certain fundamental rights
in their application to persons subject to the 1950 Act. P.N. Bhagwati, J. (as
the learned Chief Justice then was), speaking for a Constitution Bench of this
Court held: (R. Viswan case 20 , sec p. 418, para 7) e
"A plain reading thus would reveal that the extent of restrictions
necessary to be imposed on any of the fundamental rights in their
application to the armed forces and the forces charged with the maintenance
of public order for the purpose of ensuring proper discharge of their duties
and maintenance of discipline among them would necessarily depend upon
the prevailing situation at a given point of time and it would be inadvisable f
to encase it in a rigid statutory formula. The Constitution-makers were
obviously anxious that no more restrictions should be placed than are
absolutely necessary for ensuring proper discharge of duties and the
maintenance of discipline amongst the armed force personnel and therefore
Article 33 empowered Parliament to restrict or abridge within permissible
extent, the rights conferred under Part III of the Constitution insofar as the g
armed force personnel are concerned." (emphasis supplied)
h
l 9 Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 : 1982 SCC (Cri) 642
20 (1983) 3 sec 401 : 1983 sec (L&S) 405
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62. The Court in Viswan case 20 noted that restrictions imposed upon
fundamental rights in exercise of the power conferred by Article 33 must
a be "absolutely necessary for ensuring proper discharge of duties and the
maintenance of discipline". The Court held: (R. Viswan case 20 , SCC pp. 418-19,
para 7)
"7 .... Parliament was therefore within its power under Article 33 to
enact Section 21 laying down to what extent the Central Government may
restrict the Fundamental Rights under clauses (a), (b) and (c) of Article
b 19(1), of any person subject to the Army Act, 1950, every such person being
clearly a member of the Armed Forces .... The guideline for determining
as to which restrictions should be considered necessary by the Central
Government within the permissible extent determined by Parliament is
provided in Article 33 itself, namely, that the restrictions should be such
as are necessary for ensuring the proper discharge of their duties by the
C members of the Armed Forces and the maintenance of discipline among
them. The Central Government has to keep this guideline before it in
exercising the power of imposing restrictions under Section 21 .... "
This Court, in upholding Section 21 of the 1950 Act, held that the exercise of
such power must necessarily conform to the restrictions inherent in Article 33
d of the Constitution.
63. None of the above cases were rendered in the context of Section 12 of
the 1950 Act. The present case requires an assessment of the implication of a
specific provision restricting the entry of women into the Armed Forces on one
hand and the steps taken by the Union Government to grant PCs to women SSC
officers in streams in which they have been commissioned.
e 64. Section 12 of the 1950 Act embodies the principle that a woman would
be eligible for enrolment or employment only in such corps, departments,
branches or bodies forming part of or attached to the regular Army upon and
to the extent notified by the Central Government. In other words, the eligibility
of women for enrolment or engagement in the regular Army is conditional on
a provision being made by the Central Government in terms of the enabling
f provision of Section 12.
65. The engagement of women officers in the Army has been an
evolutionary process. As we have seen, women officers were initially inducted
in the year 1992 under the WSES, for a period of five years. This was extended
for a further period of five years. On the incorporation of a provision for S SCs
for women officers, options were granted to those amongst them who had been
g engaged under the earlier scheme to become SSC officers. As a part of the pool
of officers engaged as SSC officers, the tenure was extended to fourteen years
with a provision for due promotions while in service. Following the judgment8
of the Delhi High Court, the Union Government was under a mandate to grant
PCs to women officers, to the exclusion of the Combat Arms, and on a par with
the grant of PCs to their male counterparts. Significantly, the judgment 8 of the
h
20 R. Viswan v. Union of India, (1983) 3 SCC 401 : 1983 SCC (L&S) 405
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Delhi High Court was not stayed by this Court at any stage, though there was a
direction that no coercive steps would be initiated on the basis of the judgment
in appeal. A direction by this Court not to initiate coercive steps is distinct from a
a stay on the operation of the judgment. There was no reason or justification
for the Union Government not to act upon the directions that were issued by
the Delhi High Court, particularly, in the absence of a stay on the operation
and enforcement of the judgment. The Union Government continued to thwart
implementation despite the order of this Court dated 2-9-2011 12 clarifying that
"the operation of the impugned judgment8 is not stayed at all". Scant regard b
has been paid to the Delhi High Court and to this Court as well. Eventually,
nearly nine years after the judgment, the Union Government has communicated
a Policy Circular dated 25-2-2019 by which a decision has been taken to grant
women officers PC in eight Arms/Services, in addition to the existing streams
of JAG and AEC. Thus, as a matter of policy, the Union Government has taken
a decision to allow for the grant of PCs in all the ten streams in which women C
officers were currently being commissioned as SSC officers.
66. The decision of the Union Government to allow PCs to women officers
in all the ten streams where they are being inducted as SSC officers substantially
renders redundant the submission of Mr Balasubramanian, learned Senior
Counsel, based on the provisions of Section 12 of the Army Act. Section 12
contemplates that women will be eligible for enrolment only in those segments d
of the Army where the Union Government has, by notification, permitted their
enrolment and engagement. Even on a textual interpretation of Section 12 as
it stands, it is evident that the policy decision dated 25-2-2019 of the Union
Government has allowed for the grant of consideration of PCs to commissioned
women officers in all the ten streams which have been notified.
67. The policy decision of the Union Government is a recognition of the e
right of women officers to equality of opportunity. One facet of that right is
the principle of non-discrimination on the ground of sex which is embodied
in Article 15(1) of the Constitution. The second facet of the right is equality
of opportunity for all citizens in matters of public employment under Article
16(1 ). The policy statement of the Union Government must therefore be
construed as a decision which enforces the fundamental right of women to f
seek access to public appointment and to equality of opportunity in matters
of engagement relating to the Army. The fundamental right is recognised in
the specified streams where women are permitted to seek engagement as equal
members of the Armed Force that the Indian Army represents. With the Union
Government having recognised the induction of permanently commissioned
women officers in its policy decision dated 25-2-2019, we are of the opinion g
that the submissions which have been made by the Union oflndia betray a lack
of understanding of the plain consequences of the decision. The decision of
the Union Government to extend the grant of PC to other corps in the support
arms and services recognises that the physiological features of a woman have
no significance to her equal entitlements under the Constitution.
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E. Stereotypes and women in the Armed Forces
68. Seventy years after the birth of a post-colonial independent State, there
a is still a need for change in attitudes and mindsets to recognise the commitment
to the values of the Constitution. This is evident from the submissions which
were placed as a part of the record of this Court. Repeatedly, in the course of
the submissions, this Court has been informed that:
68.1. The profession of Arms is a way of life which requires sacrifice and
commitment beyond the call of duty.
b 68.2. Women officers must deal with pregnancy, motherhood and domestic
obligations towards their children and families and may not be well-suited to
the life of a soldier in the Armed Forces.
68.3. A soldier must have the physical capability to engage in combat
and inherent in the physiological differences between men and women is the
lowering of standards applicable to women.
C 68.4. An all-male environment in a unit would require "moderated
behaviour" in the presence of women officers.
68.5. The "physiological limitations" of women officers are accentuated by
challenges of confinement, motherhood and child care.
68.6. The deployment of women officers is not advisable in areas where
members of the Armed Forces are confronted with "minimal facility for habitat
d
and hygiene".
69. The submissions advanced in the note tendered to this Court are based
on sex stereotypes premised on assumptions about socially ascribed roles of
gender which discriminate against women. Underlying the statement that it
is a "greater challenge" for women officers to meet the hazards of service
"owing to their prolonged absence during pregnancy, motherhood and domestic
e
obligations towards their children and families" is a strong stereotype which
assumes that domestic obligations rest solely on women. Reliance on the
"inherent physiological differences between men and women" rests in a deeply
entrenched stereotypical and constitutionally flawed notion that women are the
"weaker" sex and may not undertake tasks that are "too arduous" for them.
Arguments founded on the physical strengths and weaknesses of men and
f
women and on assumptions about women in the social context of marriage
and family do not constitute a constitutionally valid basis for denying equal
opportunity to women officers. To deny the grant of PCs to women officers
on the ground that this would upset the "peculiar dynamics" in a unit casts
an undue burden on women officers which has been claimed as a ground for
excluding women. The written note also relies on the "minimal facilities for
g habitat and hygiene" as a ground for suggesting that women officers in the
services must not be deployed in conflict zones. The respondents have placed
on record that 30% of the total women officers are in fact deputed to conflict
areas.
70. These assertions which we have extracted bodily from the written
submissions which have been tendered before this Court only go to emphasise
h
the need for change in mindsets to bring about true equality in the Army.
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If society holds strong beliefs about gender roles - that men are socially
dominant, physically powerful and the breadwinners of the family and that
women are weak and physically submissive, and primarily caretakers confined a
to a domestic atmosphere - it is unlikely that there would be a change in
mindsets. Confronted on the one hand with a solemn policy decision taken by
the Union Government allowing for the grant of PC to women SSC officers in
ten streams, we have yet on the other hand a whole baseless line of submissions
solemnly made to this Court to detract from the vital role that has been played
by women SSC officers in the line of duty. b
71. The counter-affidavit contains a detailed elaboration of the service
which has been rendered by women SSC officers to the cause of the nation,
working shoulder to shoulder with their male counterparts. Yet, that role is
sought to be diluted by the repeated pleas made before this Court that women,
by the nature of their biological composition and social milieu have a less
important role to play than their male counterparts. Such a line of submission is C
disturbing as it ignores the solemn constitutional values which every institution
in the nation is bound to uphold and facilitate.
72. Women officers of the Indian Army have brought laurels to the
Force. These are documented in the course of proceedings and have not been
controverted in the submissions. Some of the distinctions which women officers
have achieved are catalogued below: d
72.1. Lieutenant Colonel Sophia Qureshi (Army Signal Corps) is the first
woman to lead an Indian Army contingent at a multi-national military exercise
named "Exercise Force 18" which is the largest ever foreign military exercise
hosted by India. She has served in the United Nations Peacekeeping Operation
in Congo in 2006 where she, along with others, was in charge of monitoring
ceasefires in those countries and aiding in humanitarian activities. Her job e
included ensuring peace in conflict affected areas.
72.2. Lieutenant Colonel Anuvandana Jaggi served as the Women's
Team Leader of the United Nations Military Observers' Team in the UN
mission in Burundi. She was awarded the United Nations Force Commander's
Commendation and an Appreciation Epistle from the Chief of Army Staff for
f
her commendable effort.
72.3. Major Madhumita (Army Education Corps) is the first woman officer
in the country to receive the Gallantry Award (Sena Medal) for fighting Taliban
terrorists in Afghanistan. Despite adversity, she continued and her speedy
rescue and evacuation efforts saved many lives.
72.4. Lieutenant Bhavana Kasturi recently led a contingent of the Indian g
Army Service Corps, becoming the first woman to lead an all-men Army
contingent in the history of India. Similarly, Captain Tania Shergill recently
became first Indian woman Parade Adjutant to lead an all-men contingent in
New Delhi on 15-1-2020.
72.S. In September 2010, the Sword of Honour in the Officers Training
Academy, Chennai (the only training centre for SSC male and female officers) h
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was given to Lieutenant A. Divya amongst 170 male officers and 57 women
officers.
a 72.6. By a letter21 dated 8-9-2009, women officers were also made part of
the Quick Reaction Teams, where women and male officers perform similar
duties.
72.7. The Indian Army entrusts women officers with complex tasks of
transporting convoys of between thirty to fifty vehicles in militant prone areas
in Leh, Srinagar, Udhampur and the North-East. An example was provided of
b the movement order from Leh to Pathankot dated 15-9-2010 issued to one of
the respondents, Major Gopika Bhatti who, in the role of a convoy commander,
handled junior commissioned officers, jawans (drivers and supporting staff),
vehicles (filled with logistics, arms and ammunitions) and other military
equipment.
72.8. Major Gopika Ajitsingh Pawar was awarded the United Nations
C
Peacekeeping Medal by the Secretary General of the United Nations in
recognition of her role as a military member of the United Nations Interim
Force in Lebanon.
72.9. Major Madhu Rana, Preeti Singh and Anuja Yadav were awarded the
United Nations Medal completing the qualifying service as military members
of the United Nations Mission in the Democratic Republic of Congo.
d
72.10. Captain Ashwini Pawar (Army Ordinance Corps) and Captain
Shipra Majumdar (Army Engineer Corps) were awarded the Sewa Medal by
the President of India in 2007.
72.11. Women officers from the Indian Army have been participating in the
UN Peacekeeping Force since 2004 and have been deployed in active combat
e scenarios in Syria, Lebanon, Ethiopia and Israel.
73. Numerous other commendation certificates and laurels achieved by
women officers have been placed on record. Their track record of service to
the nation is beyond reproach. To cast aspersion on their abilities on the ground
of gender is an affront not only to their dignity as women but to the dignity of
the members of the Indian Army - men and women - who serve as equal
f citizens in a common mission.
74. Courts are indeed conscious of the limitations which issues of national
security and policy impose on the judicial evolution of doctrine in matters
relating to the Armed Forces. For this reason, we have noticed that the
engagement of women in the Combat Arms has been specifically held to be
a matter of policy by the judgment8 of the Delhi High Court and which is
g not in question in the present appeals. At the same time, we have adverted
in some detail to the line of submissions urged before this Court. These
submissions detract from the significant role which has been played by women
SSC commissioned officers since their induction in 1992. The time has come
for a realisation that women officers in the Army are not adjuncts to a
h
21 10620/Sect/EME.
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male dominated establishment whose presence must be "tolerated" within
narrow confines. That in our view is not the manner in which the steps taken
progressively by the Union Government to bring women into the mainstream a
of the Army (except the Combat Arms) can be viewed. The salient decision of
the Union Government to extend PCs to women SSC officers in all ten streams
in which they are commissioned is a step forward in recognising and realising
the right of women to equality of opportunity in the Army. This marks a step
towards realising the fundamental constitutional commitment to the equality
and dignity of women. b
F. Consequence of non-compliance
75. The proposal which has been submitted before this Court by the Union
Government involves a three-stage assessment of women SSC officers for the
grant of PCs. A distinction has been made in the proposal between women
officers who have been in service for a period of less than fourteen years and
C
those beyond. The proposal envisages that only those women officers with less
than fourteen years of service would be considered for the grant of PCs. Under
the terms of this proposal, women officers with more than fourteen years of
service but less than twenty years of service would continue until they attain
pensionable service of twenty years, without the grant of PCs. Women officers
who have crossed twenty years' service would be discharged from service
d
immediately subject to receipt of pension. The proposal has been commended
for acceptance to this Court on the ground that it allows women officers who
have crossed fourteen years of service to receive pensionary benefits, where
such benefit would otherwise not be available to them.
76. There is fundamental fallacy in the distinction which has been sought to
be drawn between women officers with less than fourteen years of service with e
those with service between fourteen and twenty years and above twenty years.
The judgment of the Delhi High Court was rendered on 12-3-2010 8 . Nearly a
decade has elapsed since the date of the decision. The Union Government was
duty-bound to enforce the judgment8 of the Delhi High Court, the judgment not
having been stayed during the pendency of these appeals. However, it failed to
do so despite the categoric assertion by this Court in its order dated 2-9-2011 12 f
that what was stayed as an interim measure is the action for contempt and
not the operation of the judgment. Having failed to enforce the judgment, the
Union Government has now informed the Court that it would not consider
women officers who have crossed the age of fourteen years in service as SSC
officers for the grant of PCs. This situation of women officers with service
above fourteen years has come to pass plainly as a consequence of the failure g
of the Union Government to comply not only with the directions of the Delhi
High Court but also those which were issued by this Court on 2-9-2011 12 . In
this view of the matter, we see no reason or justification to deprive SSC women
officers of the grant of PCs on the ground that they have crossed fourteen years
of service.
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77. The failure of the Government to implement the judgment8 of the Delhi
High Court has caused irreparable prejudice to the women officers. Over the
a chequered history of the litigation of the past decade, they have lost the benefit
of promotions and the assumption of higher responsibilities as members of the
Armed Forces. To turn around now and inform them that they will lose the
entitlement of being considered for the grant of PCs would be a travesty of
justice. We are accordingly of the view that SSC women officers, both within
the period of fourteen years' service and beyond, should equally be entitled to
b consideration for the grant of PCs.
78. The policy decision which has been taken by the Union Government
on 25-2-2019 indicates that it is to apply prospectively. It is necessary for this
Court to clarify that the prospective application of the decision does not mean
that it would apply to women officers who have been appointed as SSCs officers
after the date of the decision. The Union Government has not applied it in such
C a manner, which is evident from the fact that the decision contemplates that
women officers already in service but with less than fourteen years would be
entitled to be considered. We therefore clarify that the policy decision will apply
to all women SSC officers who are currently in service irrespective of the length
of service which has been rendered by them.
79. Mr R. Balasubramanian, learned Senior Counsel relied on the judgment
d of this Court in P.K. Choudhary 17 to contend that the scope of judicial review in
matters of command/tenure is limited. In that case, pursuant to the suggestions
of the A jay Vikram Singh Committee ("AVS Committee") to lower of the age
profile of officers in the Indian Army and create 1484 additional vacancies
in the rank of Colonel, the Union Government sanctioned an additional 1484
vacancies which were to be allocated in two separate phases. In the first phase,
e 750 vacancies were sanctioned by the upgradation of appointments in the
rank of Lieutenant Colonel to Colonel which were to be distributed across the
three service branches of the Army - Combat, Combat Support and Services.
However, in the second phase, the Union Government sanctioned the remaining
734 vacancies to be allocated on a "Command Exit Model" which was claimed
to be in consonance with the functional and operational requirements of the
f Army. Aggrieved by the denial of a pro rata share of the vacancies sanctioned
in the second phase, the respondents, who were inducted in the Services Corps,
challenged the action of the Union Government.
80. The Union Government contended that the recommendations of the
AVS Committee were limited to officers in the Combat and Combat Support
Arms only and did not extend to the Services' Arms. It was further contended
g
that the "Command Exit Model" for allocation of vacancies was neither
discriminatory nor arbitrary, but in accordance with the recommendations of
the Committee. A two-Judge Bench of this Court rejected the claim of the
respondents. Mr R. Balasubramanian sought to rely on the judgment to contend
h
11 Union of India v. P.K. Choudhary, (2016) 4 SCC 236: (2016) 1 SCC (L&S) 640
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that courts must refrain from questions concerning the Armed Forces as they
constitute matters of policy in which courts cannot interfere.
81. It is necessary to observe the rationale underlying the judgment in a
P.K. Choudhary 17 • The Court noted that the AVS Committee did not take into
account vacancies for Colonels in the Corps of Services. The Court concluded
that the Committee did not recommend a reduction in the age profile of Unit
Commanders in Army Signal Corps, Army Ordinance Corps and other Minor
Corps. Thus, the argument urged by the respondents that the recommendations
of the Committee to create vacancies was for the benefit of officers serving b
in all streams, was rejected. The Court further noted that the recommendation
of AVS Committee to adopt the "Command Exit Model" was accepted by
the Government. Consequently, merely because the earlier allocation was not
reversed, this would not affect the binding nature of the Government's decision
to allocate vacancies on the basis of the "Command Exit Model". The Court
held: (SCC p. 255, para 28) C
"28 . ... If the Army Headquarters committed a mistake in allocating

vacancies on a pro rata basis contrary to the recommendations and the
decision of the Government, any such error cannot adversely affect officers
serving in Arms and Arms Support who may have been entitled to a higher
number of vacancies in the second tranche but who were deprived of such
d
allocation on account of the error in the previous allocation made on pro
rata basis."
82. This apart, the Court rejected a claim of legitimate expectation by
the respondents in the following terms: (P.K. Choudhary case 17 , SCC p. 268,
para 58)
"58 . ... There is nothing perverse, unreasonable or unfair about the e
policy that the age of officers serving in Combat Arms and Combat Arms
Support will be lowered by creating additional vacancies to be allotted on
Command Exit Model. In the absence of any perversity, unreasonableness
or unfairness in the policy so introduced, there is no reason to allow the
argument based on legitimate expectation to unsettle or undo the policy
which is otherwise laudable .... " f
83. The judgment of this Court in P.K. Choudhary 17 was based on the
specific recommendations of the AVS Committee as well as the actions of the
Union Government in committing to a course of action for the allocation of
vacancies. This Court observed that the first phase of allocation was clearly
contrary to both the recommendations of the AVS Committee as well as the g
method of allocation adopted by the Union Government. The Court additionally
observed that the method of allocation in the second phase did not suffer from
any perversity, unreasonableness or unfairness.
84. As we have noted before, courts are conscious of the limitations which
questions of policy impose on judicial intervention in matters relating to the
Armed Forces. At the same time, faced with a salient decision of the Union h
17 Union of India v. P.K. Choudhary, (2016) 4 SCC 236: (2016) 1 SCC (L&S) 640
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Government to extend to all women SSC officers the option for the grant of PCs
as well as the situation which has come to pass due to the non-implementation
a of the binding directions of the Delhi High Court as well as this Court, non-
intervention in the present matter would be nothing short of a travesty of justice.
G. Blanket restriction on criteria appointments
85. The next aspect of the policy decision relates to the restriction which
has been imposed on women officers being granted PCs save and except
for staff appointments. Such a restriction was not imposed when the JAG
b and AEC branches were opened up for the grants of PCs for women SSC
officers in the past. The consequence of this, is an implicit acceptance by
the Army that women can, in certain situations, receive criteria or command
appointments. An absolute bar on women seeking criteria or command
appointments would not comport with the guarantee of equality under Article
14. Implicit in the guarantee of equality is that where the action of the State
C does differentiate between two classes of persons, it does not differentiate them
in an unreasonable or irrational manner. In this sense, even at its bare minimum,
the right to equality is a right to rationality. Where the State, and in this case
the Army as an instrumentality of the State, differentiates between women and
men, the burden falls squarely on the Army to justify such differentiation with
reason. An absolute prohibition of women SSC officers to obtain anything but
d staff appointments evidently does not fulfil the purpose of granting PCs as
a means of career advancement in the Army. Whether a particular candidate
should or should not be granted a criteria or command assignment is a matter
for the competent authority to consider having regard to all the exigencies
of service, performance and organisational requirements. In the present case
the Army has provided no justification in discharging its burden as to why
e women across the board should not be considered for any criteria or command
appointments. Command assignments are not automatic for men SSC officers
who are granted PC and would not be automatic for women either. The absolute
exclusion of women from all others except staff assignments is indefensible.
If the Army has cogent reasons for excluding women from a particular criteria
or command appointment, it may provide them to the relevant authorities
f and if necessary, to future courts. However, such a justification must take
place on a case-to-case basis, in light of the requirements and exigencies of a
particular appointment. The blanket non-consideration of women for criteria
or command appointments absent an individuated justification by the Army
cannot be sustained in law.
86. We therefore hold that the expression "in various staff appointments
g only" in Para 5 and that "on staff appointments only" in Para 6 of the
communication dated 25-2-2019 shall not be enforced. We have already
adverted to the submission which was urged on behalf of the women officers
by Ms Lekhi that there are various command assignments in which there would
be no reason or justification for excluding women. This is a matter for the
determination of the relevant authority.
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H. Directions
87. We accordingly take on record the statement of policy placed on the
record in these proceedings by the Union Government in the form of the Letter a
dated 25-2-2019 and issue the following directions:
87.1. The policy decision which has been taken by the Union Government
allowing for the grant of PCs to SSC women officers in all the ten streams
where women have been granted SSC in the Indian Army is accepted subject
to the following:
87.1.1. All serving women officers on SSC shall be considered for the grant b
of PCs irrespective of any of them having crossed fourteen years or, as the case
may be, twenty years of service.
87.1.2. The option shall be granted to all women presently in service as
SSC officers.
87.1.3. Women officers on SSC with more than fourteen years of service
who do not opt for being considered for the grant of the PCs will be entitled to C
continue in service until they attain twenty years of pensionable service.
87.1.4. As a one-time measure, the benefit of continuing in service until
the attainment of pensionable service shall also apply to all the existing SSC
officers with more than fourteen years of service who are not appointed on PC.
87.1.5. The expression "in various staff appointments only" in Para 5 and
d
"on staff appointments only" in Para 6 shall not be enforced.
87.1.6. SSC women officers with over twenty years of service who are not
granted PC shall retire on pension in terms of the policy decision.
87.1.7. At the stage of opting for the grant of PC, all the choices for
specialisation shall be available to women officers on the same terms as for
the male SSC officers. Women SSC officers shall be entitled to exercise their e
options for being considered for the grant of PCs on the same terms as their
male counterparts.
87.2. We affirm the clarification which has been issued in sub-para (i) of
Para 61 of the impugned judgment8 and order of the Delhi High Court.
87.3. SSC women officers who are granted PC in pursuance of the above
directions will be entitled to all consequential benefits including promotion and f
financial benefits. However, these benefits would be made available to those
officers in service or those who had moved the Delhi High Court by filing the
writ petitions and those who had retired during the course of the pendency of
the proceedings.
88. Necessary steps for compliance with this judgment shall be taken within
three months from the date of this judgment. g
89. We accordingly dispose of the appeals. However, there shall be no order
as to costs.
h
8 Babita Puniya v. Ministry of Def ence, 2010 SCC OnLine Del 1116: (2010) 168 DLT 115
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Civil Appeal Nos. 2182-87 of 2020
Union of India v. Annie Nagaraja

(BEFORE DHANANJAYA Y. CHANDRACHUD AND AJAY RASTOGI, JJ.)

@ SLP (C) Nos. 30791-96 of 2015
Union of India and Others … Appellants;
Versus
Lt Cdr Annie Nagaraja and Others … Respondents.
With
C.A. No. 2181 of 2020
@ SLP (C) No 30337 of 2016
With
C.A. Nos. 10225-10230 of 2016
With
C.A. No. 3359 of 2017
With
C.A. No. 5392 of 2019
With
C.A. No. 2177 of 2020
@ Diary No. 26406 of 2017
With
C.A. No. 2178 of 2020
@ Diary No 27060 of 2019
And With
C.A. No. 2179 of 2020
@ Diary No 27061 of 2019
Decided on March 17, 2020
DHANANJAYA Y. CHANDRACHUD, J.:—
Index
A Background of the dispute
A.1 Annie Nagaraja's case
A.2 Priya Khurana's case
B Statutory and Policy framework
C Submissions
D Preliminary Objection
E Validity of the policy letter dated 26 September 2008
F The stereotypical sailor
G Ex turpi causa non oritur actio
H Directions
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A Background of the dispute

1. The present batch of Civil Appeals comes up for adjudication from two decisions,
the first in point of time being that of the High Court of Delhi and the second, being
that of the Armed Forces Tribunal1 .
A.1 Annie Nagaraja's case
2. Six Writ Petitions under Article 226 of the Constitution were instituted before the
Delhi High Court. The petitioners, seventeen in number, were women officers who
joined the Indian Navy as Short Service Commissioned2 Officers in the Logistics and
Air Traffic Controller3 cadres and the Education branch. Six of them were officers in the
Logistics cadre, nine in the Education branch and two in the ATC cadre. Their
grievance is that despite completing fourteen years of service as SSC officers, they
were not considered for the grant of Permanent Commissions4 and were discharged
from service.
3. The case which was set up before the High Court was that women SSC officers of
the Indian Army and Air Force had been granted PCs by the judgment of the Delhi
High Court in Babita Puniya v. Union of India5 (“Babita Puniya”). The Air Force
implemented the decision of the Delhi High Court. The Indian Army was in appeal
before this Court against the judgment in Babita Puniya.
4. The Union of India in the Ministry of Defence6 issued a policy letter dated 26
September 2008 granting PCs to SSC officers in all the three branches of the Armed
Forces. However, the offer was restricted to certain categories and was to operate
prospectively for the benefit of future batches inducted on SSCs after January 2009.
The Delhi High Court expressly noted that the denial of combat roles to women was
not in issue in the Writ Petitions. By its judgment dated 4 September 2015, the High
Court issued the following directions:
“50.a) The claim of absorption in areas of operation not open for recruitment of
women officers cannot be sustained being a policy decision.
b) The Short Service Commissioned Officers of the Navy who had opted for PC
and were not granted PC but instead were granted extension of SSC and were not
retired at the time of filing of these Writ Petitions and had attained the age of
retirement during the pendency of the present petitions, they shall be offered PC
within a period of 6 weeks from the date of this order. They shall be entitled to all
consequential benefits such as promotion and other financial benefits subject to
their medical fitness. However, their appointment to the post of PC shall be subject
to the final outcome of the said SLP i.e. CC No. 10437/2010 title Secr. Ministry of
Defence v. Babita Puniya pending consideration before the Hon'ble Supreme Court;
c) With respect to the petitioners who had attained the age of superannuation
prior to the filing of the Writ Petitions by them the following directions are required
to be issued:
1. The respondents shall reinstate these petitioners within a period of six weeks
from today on their respective posts;
2. Such reinstatement shall be subject to the final outcome of the said SLP i.e.
CC No. 10437/2010 titled Secr. Ministry of Defence v. Babita Puniya pending
consideration before the Hon'ble Supreme Court;
3. The petitioners are entitled to no benefits;
4. The reinstatement of the petitioners shall be subject to their medical fitness.”
5. Since the earlier decision of the Delhi High Court in Babita Puniya was the
subject matter of proceedings before this Court, the direction in regard to offering PCs
was made subject to the decision that would eventually emerge from this Court. The
first petitioner in the Writ Petition7 before the High Court was Lieutenant Commander
Annie Nagaraja. Hence, the decision of the Delhi High Court in that batch of cases has,
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in the course of the submissions, been adverted to as the decision in Annie Nagaraja
v. Union of India (“Annie Nagaraja's case”). In the appeals arising out of the judgment
of the Delhi High Court in Annie Nagaraja, an interim order was passed by this Court
on 20 November 2015 which directed:
“Pending further orders from this Court we direct that such of the respondents
(petitions before the High Court) as were serving as short service commissioned
officers in the Navy as on 26th September 2008, shall be allowed to continue on the
terms and conditions applicable to them in that capacity. We further direct that
such of the officers out of the respondents (petitioners before the High Court) as
may have been released from service after 26th September 2008, upon completion
of the short service commission tenure, shall be permitted to join back in terms of
the order passed by the High Court and continue in service in that capacity.”
6. By this order, protection was restricted only to those women officers in service on
26 September 2008.
A.2 Priya Khurana's case
7. The second batch of proceedings which has led to appeals before this Court
arises from the decision of the AFT at the Principal Bench in New Delhi in a batch of six
Original Applications.8 The lead Original Application9 was instituted by Commander
Priya Khurana. The applicants before the AFT in this batch of cases were seven SSC
officers recruited in 2002 in the Indian Navy in the Logistics and ATC cadres and the
Education branch. They sought the grant of PCs and challenged the policy document
dated 26 September 2008 as unconstitutional to the extent that it operated
prospectively and restricted the grant of PCs to a few cadres/branches. Consequently,
there was also a challenge to the implementation guidelines dated 3 December 2008
issued by the Integrated Headquarters of the MoD. The officers challenged their
release from service on the completion of their tenure of SSC engagement.
8. The AFT, by a judgment dated 11 August 2016, came to the conclusion that on
25 February 1999, the Union Government in the MoD had taken a policy decision for
the grant of PCs to both men and women officers in terms of Regulation 203 of
Chapter IX of the Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 196310 , which is contained in Part III of the Regulations. The AFT held
that the policy decision dated 25 February 1999 held the field and the subsequent
policy decision of 26 September 2008 was arrived at without considering the earlier
policy decision and as a matter of fact, even the Union Defence Minister had been kept
in the dark about the earlier decision. While accepting the principle that it is open to
government to review and alter an earlier policy decision, the AFT held that an
alteration has to be based on a reasonable exercise of power. The subsequent decision
making the grant of PCs only prospective and confining it to stipulated branches was
held to be invalid. The AFT has placed a considerable degree of reliance on the fact
that the advertisements on the basis of which the SSC officers were inducted had held
out a specific representation that the officers would be considered for the grant of PCs.
9. The AFT accordingly directed the reconsideration of the request for the grant of
PCs on the basis of Regulation 203 and the policy decision dated 25 February 1999
within six months. Until this exercise was undertaken, the applicants were directed to
be continued as SSC officers on existing terms and conditions. The decision of the AFT
was subsequent to the earlier judgment of the Delhi High Court in Annie Nagaraja,
which is the subject matter of appeals instituted before this Court. The AFT clarified
that its direction to reconsider the case of the SSC women officers for the grant of PCs
was subject to the decision of this Court in Annie Nagaraja. While directing the
consideration of the claim of SSC women officers to the grant of PCs by the Indian
Navy, the AFT stopped short of the direction which was issued by the Delhi High Court
for the grant of PCs. The AFT was of the view that the appropriate relief was to direct
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that the applicants be considered by the authorities and to this extent it disagreed
with the absolute relief granted by the Delhi High Court for the grant of PCs.
10. The judgment of the AFT has been assailed by the Union Government. The
applicants before the AFT are in appeal to the extent that the wider relief which was
granted by the Delhi High Court was denied to them by the AFT. The first applicant in
the OAs instituted before the AFT was Commander Priya Khurana. Hence, the decision
of the AFT in this batch of cases has, in the course of the submissions, been adverted
to as the decision in Priya Khurana v. Union of India (“Priya Khurana's case”). In the
appeals arising out of the judgment of the AFT in Priya Khurana, an interim order was
passed by this Court on 28 October 2016 directing the continuation in service of the
SSC officers in that capacity until further orders.
B Statutory and policy framework
11. Section 9 of the Navy Act 195711 deals with the eligibility for appointment or
enrolment in the Indian Navy. Section 9 reads thus:
“9. Eligibility for appointment or enrolment.—(1) No person who is not a citizen
of India shall be eligible for appointment or enrolment in the Indian Navy or the
Indian Naval Reserve Forces except with the consent of the Central Government:
Provided that nothing in this section shall render a person ineligible for appointment
or enrolment in the Indian Navy or the Indian Naval Reserve Forces on the ground
that he is a subject of Nepal.
(2) No woman shall be eligible for appointment or enrolment in the Indian Navy
or the Indian Naval Reserve Forces except in such department, branch or other
body forming part thereof or attached thereto and subject to such conditions as the
Central Government may, by notification in the Official Gazette specify in this
behalf.”
12. Sub-section (2) of Section 9 conditions the eligibility of women to be appointed
or enrolled in the Navy or the Indian Naval Reserve Forces. The provision commences
with the expression “no woman shall be eligible” and follows it up with the expression
“except in such department, branch or other body”. The prohibition on the
appointment or enrolment of women is subject to the lifting of the restriction by the
Union Government. The Union Government has been conferred with the authority to
stipulate the departments, branches or bodies forming a part of or attached to the
Navy or the Indian Naval Reserve Forces in which women can be appointed or
enrolled. The Union Government is also vested with the authority to define the
conditions on which the appointment or enrolment may take place.
13. The provisions of the Bill which were to lead to the enactment of the 1957 Act
were deliberated upon in a report of the Joint Committee of Parliament. A note of
dissent was appended by four Members of the Joint Committee on the restriction
which was proposed to be imposed on the appointment of women in the Indian Navy.
While opposing the restriction proposed in the report of the Joint Committee, the
dissenting members (TCN Menon, KK Warior, VK Dhage and V Prasad Rao) stated:
“An important provision of the Bill is the one which excludes women from the
right of joining the Indian Navy. It will be superfluous if we record in detail the
courage and capacity shown by the women of India in the past and especially
during our glorious freedom struggle. In almost all countries women have proved
themselves to be equal to men if not more and today there is no sphere of life nor is
there any kind of work where women cannot compete with men. Moreover we feel
that the admission of women into our armed services will, to a very large extent,
have a salutary and welcome effect upon the outlook and morale of our fighting
men. This injustice done to our women should be removed and we recommend that
the clause which prohibits women from joining the navy be removed.”
14. The dissenting Members stated that restrictions on the fundamental rights of
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the members of the Armed Forces should be only to the extent strictly necessary for
the maintenance of discipline and the discharge of duties. In their view, “the law that
Parliament enacts today in respect of the Indian Navy should be a law which will
facilitate the development of a Navy composed of contented men and women whose
primary allegiance shall be to the people of India”. The object, they stated, of
achieving such a fighting forces should be “not to suppress their democratic rights as
far as possible”.12
15. The dissent has remained a note in history. The task of the Court is to construe
the provisions of Section 9 as they stand.
16. Section 184 of the 1957 Act contemplates regulations being made by the
Central Government for governance, command, discipline, recruitment, conditions of
service and regulation of the Naval Forces and, generally for the purpose of
effectuating the provisions of the 1957 Act. The power to frame regulations includes
those in relation to the rank, terms and conditions of service, pay, pension, allowances
and other benefits. The Regulations are required to be laid before each House of
Parliament under Section 185. Part III of Chapter I of the Regulations for the Indian
Navy contain the 1963 Regulations. The AFT in its decision noted that in the absence
of a counter to the stand taken by the applicants that the 1963 Regulations are
statutory in nature, it will have to be presumed that the Regulations are referable to
the provisions of Section 184.
17. Section II deals with officers in the Executive branch inducted on SSCs.
Regulation 122(1) makes provisions governing “the entry, training and promotion of
officers granted SSCs in the Executive branch of the Indian Navy”. Regulation 122(2)
contains a stipulation that the candidate must be an “unmarried male”:
“(2) Nationality. - A candidate must be an unmarried male and must fulfil the
conditions regarding the nationality as laid down by the Government.”
18. Under Regulation 122(9), an officer is to be on probation for one year or until
the completion of initial training, whichever is later. Regulation 122(14) provides:
“(14) Permanent Commissions. - Suitable officers may be considered for the
grant of Permanent Commission in the Indian Navy at any time after successful
completion of the period of probation, subject to the existence of vacancies and the
regulations current at the time.”
19. Section IV of the Regulations deals with officers in the Engineering branch
inducted on SSCs. Regulation 124(2) contains a provision similar to Regulation 122(2)
which restricts SSCs only to “unmarried males”. Section VI provides for SSCs in the
Electrical branch. Regulation 126(2) contains a similar restriction of eligibility to
“unmarried males”. Regulations 124(14) and 126(14) contain provisions for the grant
of PCs.
20. Chapter IX of the Regulations is titled “Grant of Permanent Commission to
Short Service Commission Officers”. Regulation 203 contains the following stipulation
in regard to the grant of PCs :
“203. Grant of Permanent Commission. - (1) Subject to the availability of
vacancies in the stabilized cadre of the Navy, Permanent Commission may be
granted from time to time to Short Service Commission Officers of the rank of Sub-
Lieutenant and above who are considered suitable and are recommended by the
Chief of the Naval Staff.
(2) Officers granted Permanent Commission may be transferred with their
existing rank and seniority. The retention of any acting rank held by an officer at
the time of transfer to a Permanent Commission shall be governed by Regulation
202.
(3) Short Service Commission Officers selected for the grant of Permanent
Commission in the Navy shall conform to the medical standard laid down by the
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Chief of the Naval Staff from time to time.”

21. Regulation 203(1) conditions the grant of PCs to three factors:
(i) Availability of vacancies in the stabilised cadre;
(ii) Consideration of suitability; and
(iii) A recommendation of the Chief of Naval Staff.
22. Regulation 203 applies to SSC officers of the rank of Sub-lieutenant and above.
23. A comparison may be made of the provisions of Regulation 122(14) and
Regulation 203. Regulation 122(14) stipulates that suitable officers may be considered
for the grant of PC in the Navy after the successful completion of the period of
probation, subject to the existence of vacancies and the regulations current at the
time. Regulation 203 provides for the consideration of the grant of PCs from time to
time to SSC officers of the rank of Sub-lieutenant and above subject to their
suitability, availability of vacancies in the stabilized cadre of the Navy and the
recommendation of the Chief of Naval Staff. Regulation 122(14) applies to all officers
in the Executive branch of SSC officers. Regulation 203 applies to all officers of the
rank of Sub-lieutenant and above. The AFT observed that Regulation 203 would apply
to the OAs before it since the applicants were recruited as SSC officers in the rank of
Sub-lieutenant and were promoted thereafter.
24. The Indian Navy consists of four branches - Executive, Electrical, Engineering
and Education. On 9 October 1991, the Union Government, pursuant to the enabling
power conferred by Section 9(2), issued a notification by which women were made
eligible for appointment as officers of the Indian Navy in three cadres/branches which
were:
(i) Logistics;
(ii) Law; and
(iii) Education.
25. The Law and Logistics cadres belong to the Executive branch of the Indian
Navy.
26. At the material time when the 1963 Regulations were notified, no notification
had been issued in pursuance of the power conferred under Section 9(2) and no
women were commissioned as SSC officers. Consequently, the regulations were
restricted only to male officers. The notification which was published in the Gazette of
India on 9 October 1991 was to be in force for five years. The consequence of the
issuance of this notification under Section 9(2) was that the restriction on the
appointment or enrolment of women was lifted for specified cadres/branches of the
Navy. Once the notification was issued under Section 9(2), the provisions in the 1963
Regulations restricting the grant of SSCs to males would stand lifted insofar as the
cadres/branches where the entry of women was notified.
27. On 20 December 1991, the Union Government in the MoD addressed a
communication to the Chief of Naval Staff conveying the sanction of the President for
the induction of SSC officers, including women in the Education branch of the Indian
Navy and stipulating the terms and conditions of service. Para 2 of the letter stipulated
the eligibility for appointment on SSCs thus:
“Eligibility. A candidate must be an unmarried male or female and must
fulfill conditions regarding the nationality as laid down by the Government.”
(Emphasis supplied)
28. Para 3 stipulated that candidates would be inducted on SSC for seven years and
that the period could be extended with the consent of the officer for two years at a
time. Para 4 contemplated that the policy in regard to the grant of PCs would be
promulgated in 1997:
“Grant of Permanent Commission. The policy in this regard will be
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promulgated in 1997.”
29. Para 6 stipulated that the rules for entry and promotion would be those
prescribed in Part III of the 1963 Regulations of the Navy, as sanctioned by the Union
Government for the entry of male/PC officers in the Education branch except as
specified therein. Para 15 stipulated that the induction of women under the scheme
was to be initially for a period of five years, which would be reviewed thereafter.
30. The above notification dated 20 December 1991 had the following reference
number:
“MP/0417/NHQ/1110/DO/D(N-IV)”
31. On the same day - 20 December 1991 - the Union Government in the MoD
addressed another communication to the Chief of Naval Staff conveying the sanction of
the President for the induction of SSC officers including women into the Law and
Logistics cadres of the Executive branch of the Indian Navy and stipulating the terms
and conditions of service therein. The letter stipulated that the terms and conditions of
service would be those prescribed in Regulation 122 of the 1963 Regulations and in
the Union Government's letter dated 20 December 1991 regarding the entry of SSC
officers in the Education branch, except as set out in the notification. The reference
number of this notification was:
“MP/0417/NHQ/1111/DO/D(N-IV)”
32. On 1 July 1992, the Union Government in the MoD sanctioned the intake of
thirty-five officers on SSCs for a period of five years in the ATC cadre. Paragraph 11
specified the policy for the grant of PC in the following terms:
“11. Grant of Permanent Commission. There will be no provision for the grant
of Permanent Commission.”
33. It was stipulated that no PCs would be granted (for both men and women) in
the ATC cadre.
34. The Southern Naval Command, by a letter dated 15 May 1998 made a reference
to an earlier letter dated 20 April 1998 of the Naval Headquarters clarifying that the
services of women SSC officers were extendable for a period of upto ten years with the
consent of the officers, with each extension being of not more than two years.
35. On 6 November 1998, the Union Government once again exercised its authority
under Section 9(2) to make women eligible for appointment as officers in all the
branches of the Indian Navy:
(a) Executive;
(b) Engineering;
(c) Electrical; and
(d) Education.
36. The earlier exercise of power under Section 9(2) had rendered women eligible
for appointment as officers of the Indian Navy in the Logistics and Law cadres and the
Education branch. The subsequent notification dated 6 November 199813 extended the
field of eligibility under Section 9(2) to all four branches in the Indian Navy.
37. On 25 February 1999, the Union Government in the MoD issued a
communication to the Chief Naval Staff. The contents of the notification have a
substantive bearing in the present case and are hence extracted below:
“
No. MP/0417/1/NHQ/425D(N-II)
Government of India,
Ministry of Defence,
New Delhi, the 25th February, 1999
To
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The Chief of the Naval Staff
(with 30 spare copies)
Subject : TERMS AND CONDITIONS OF SERVICE OF SSC OFFICERS (INCLUDING
WOMEN)
Sir,
I am directed to refer to GOI, MOD letters No MP/0417/NHQ/1110/DO/D(N-IV)
dated 20 Dec 1991 and MP/0417/1/NHQ/1111/DO/D(N-IV) dated 20 Dec 1991 and
convey the sanction of the President for the following:—
(a) Grant of Permanent Commission. The policy for grant of Permanent
Commission will be in accordance with Article 203, Chapter IX of Regulations
Navy Part III.
(b) Employment/Sea Service. Women officers of all Branches/cadres may also be
directed to serve on board ships, during training & subsequent employment
should the exigencies of Service so require.
2. This issues with the concurrence of the Ministry of Defence (Finance/Navy)
vide their ID No. 22/NA/S of 1999.
Yours faithfully,
(SN Gupta)
Under Secretary to the Government of India
Copy to :-
The DA DS, New Delhi
The DDADS, Mumbai
The CGDA, New Delhi - 2 copies
The CDA (N), Mumbai - 2 copies (one signed in ink)
The DFA (N), New Delhi - 2 copies”
38. The above communication contains a reference to the two earlier letters dated
20 December 1991, which we have noted above bearing the reference numbers
MP/0417/NHQ/1110/DO/D(N-IV) and MP/0417/NHQ/1111/DO/D(N-IV).
39. The two significant facets of the above communication dated 25 February 1999
are: first, the policy for the grant of PCs to women officers would be in accordance with
the Regulation 203 of Chapter IX of the 1963 Regulations; and second, women officers
of all branches and cadres may be directed to serve on board ships, both during
training and subsequent employment in accordance with the exigencies of service.
40. Subsequently, on 27 February 2002, the Union Government conveyed the
sanction of the President to extend the tenure of SSC officers in the Navy to fourteen
years.
41. In July 2002, the Indian Navy issued an advertisement inviting applications
from men and women for appointment as SSC officers in the ATC and Logistics cadres
and the Education branch. While inviting applications, the advertisement specified
that:
“SHORT SERVICE COMMISSION
5. Short Service Commission is granted for a term of 07 years, extendable to 10
years. On completion of tenure of SSC, officers are released with gratuity as
admission under the rules. Based on their performance and requirements of service,
the deserving officers may also be considered for Permanent Commission.”
42. There was a specific representation that ‘deserving officers’ may be considered
for PCs based on their performance and the requirements of service.
43. It is necessary to note at this juncture that the women SSC officers in Annie
Nagaraja's case were inducted between 1992 and 2001 pursuant to the notifications
dated 9 October 1991, 20 December 1991 and 1 July 1992. On the other hand, the
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women SSC officers in Priya Khurana's case were inducted as SSC officers pursuant to
the advertisement issued in July 2002.
44. On 26 September 2008, the MoD issued a communication to the Chiefs of the
Army, Naval and Air Staff regarding the grant of PCs to SSC women officers. The
communication, which is the subject matter of the challenge in the present appeals, is
extracted below:
“
No. 12(1)/2004-D(AG). Pt II
Government of India,
Ministry of Defence
New Delhi, the 26th September, 2008
To
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject: Permanent Commission to SSC Women Officers
I am directed to convey the sanction of the President to offer Permanent
Commission prospectively to Short Service Commission (Women) Officers to be
inducted in Judge Advocate General (JAG) Department and Army Education Corps
(AEC) of Army and their corresponding Branch/Cadre in Navy and Air Force.
Accounts Branch of the Air Force and Naval Constructor of the Navy in addition to
current provision for Grant of PC to SSC (Men) Officers.
2. Suitable administrative instruction in this regard will be issued by respective
Service HQs.
3. This issues with the concurrence of the MoD(Fin) vide their UO No. 552/AG/PA
dated 26.9.2008.
(S.C. Barmma)
Director (AG)
Copy to :- As per standard Distribution”
45. The two significant facets of the above communication are: first, the grant of PC
was made prospective to SSC women officers “to be inducted” in the specified
cadres/branches. As a consequence, PCs were denied to women SSC officers who were
already in service; and second, PCs were confined to specific cadres and branches in
the case of SSC women officers in the Army, Navy and Air Force. Insofar as the Navy
is concerned, PCs were to be granted in the cadres/branches corresponding to the
Judge Advocate General14 and Education branches of the Army in addition to the Naval
Constructor cadre of the Navy. The communication dated 26 September 2008 contains
no reference to the earlier policy communication dated 25 February 1999.
46. On 3 December 2008, the Integrated Headquarters of the MoD (Navy) issued
implementation guidelines for selecting SSC officers for the grant of PCs in the Navy
from the following branches/cadres:
Srl Branch/Cadre Batch Commencing Remarks
(a) Education Jun 09 Men and Women
officers
(b) X/Law When scheduled
(c) E/Naval Jul 09
Architecture
47. The tabulation above indicates that the grant of PCs was envisaged only
prospectively for batches inducted after January 2009 and in only three
cadres/branches as noted above. This was in terms of the earlier decision dated 26
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September 2008. Para 4 of the implementation guidelines provides for the constitution
of a board for the selection of SSC officers for the grant of PCs:
“4. Constitution of Board. A Board will be constituted under the chairmanship of
COP for selecting SSC officers of Branches/Cadres mentioned at Para 2 above for
the grant of PC. The Board will be guided by Regulation 203 of Regulations for the
Indian Navy Part III (Statutory).”
48. Para 5 which deals with selection provides as follows:
“5. Selection. The eligible officers are thereafter to be empaneled for grant of PC.
The Branch/Cadre-wise selection would be based on inter-se merit based on ACRs
held on the officers under consideration and subject to availability of vacancies.”
49. Selection, in other words, of officers for the grant of PCs is to be based on inter
se merit determined on the basis of the Annual Confidential Reports15 of the officers
under consideration and subject to the availability of vacancies.
50. The judgment of the Delhi High Court in Babita Puniya has been the subject
matter of the recent decision rendered by this Court in The Secretary, Ministry of
Defence v. Babita Puniya16 . This Court issued the following directions:
“69. We accordingly take on record the statement of policy placed on the record
in these proceedings by the Union Government in the form of the letter dated 25
February 2019 and issue the following directions:
(i) The policy decision which has been taken by the Union Government allowing
for the grant of PCs to SSC women officers in all the ten streams where
women have been granted SSC in the Indian Army is accepted subject to the
following:
(a) All serving women officers on SSC shall be considered for the grant of PCs
irrespective of any of them having crossed fourteen years or, as the case
may be, twenty years of service;
(b) The option shall be granted to all women presently in service as SSC
officers;
(c) Women officers on SSC with more than fourteen years of service who do
not opt for being considered for the grant of the PCs will be entitled to
continue in service until they attain twenty years of pensionable service;
(d) As a one-time measure, the benefit of continuing in service until the
attainment of pensionable service shall also apply to all the existing SSC
officers with more than fourteen years of service who are not appointed on
PC;
(e) The expression “in various staff appointments only” in para 5 and “on staff
appointments only” in para 6 shall not be enforced;
(f) SSC women officers with over twenty years of service who are not granted
PC shall retire on pension in terms of the policy decision; and
(g) At the stage of opting for the grant of PC, all the choices for specialisation
shall be available to women officers on the same terms as for the male SSC
officers. Women SSC officers shall be entitled to exercise their options for
being considered for the grant of PCs on the same terms as their male
counterparts.
(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph
61 of the impugned judgment and order of the Delhi High Court; and
(iii) SSC women officers who are granted PC in pursuance of the above directions
will be entitled to all consequential benefits including promotion and financial
benefits. However, these benefits would be made available to those officers in
service or those who had moved the Delhi High Court by filing the Writ
Petitions and those who had retired during the course of the pendency of the
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proceedings.”
C Submissions
51. Mr. Sanjay Jain, learned Additional Solicitor General for India prefaced his
submissions by urging:
(i) Sea-going duties in the Indian Navy unlike the Army or Air Force have a
distinctive feature since there is no immediate return to base;
(ii) The policy has been to exclude women from sea-going branches with the
exception of the Logistics cadre;
(iii) There are practical difficulties in allowing the induction of women SSC officers
on PCs: the Indian Navy substantially operates on vessels of a Russian origin in
which there is an absence of toilet facilities for women; and
(iv) There is a possibility of certain branches involving sea-going duties being
opened up for women officers on PCs in the near future as new ships are
introduced into the Naval fleet.
52. Mr. Jain submitted that the Indian Navy does not discriminate between men
and women. In 1991, SSCs were opened up in the Law and Logistics cadres and the
Education branch on a uniform basis. To these branches were added ATC (1991),
Naval Constructor (2001), Naval Armament Inspectorate (2017) and Observer
Specialization (2018). As for PCs, as a result of the policy decision taken on 26
September 2008, Law and Naval Constructor cadres and the Education branch were
opened up which was followed up in 2017 with the Naval Armament Inspectorate. Mr.
Jain submitted that the size of the Indian Navy is much smaller than the other Armed
Forces, as a consequence of which, the pyramidal structure is saturated comparatively
quicker than in the Army and the Air Force. Elaborating on his submissions, Mr. Jain
urged that:
(i) The decision of the Delhi High Court in Babita Puniya has been recently upheld
by this Court;
(ii) The provisions of Section 9(2) of the 1957 Act are not under challenge;
(iii) The avenues for women which have opened up in the Indian Navy stem from
the exercise of power under Section 9(2);
(iv) Direct entry through PCs is not a matter in issue in the present appeals; and
(v) The grant of PCs is not automatic but on the assessment of merit inter se.
53. In defence of the policy decision taken by the Union Government on 26
September 2008 making the grant of PCs to SSC women officers prospective and in
stipulated cadres/branches, Mr. Jain submitted that while envisaging the grant of
SSCs to women on 20 December 1991, it was contemplated that the policy for the
grant of PCs would be promulgated in 1997. On 25 February 1999, the MoD while
outlining the terms and conditions of service of SSC officers including women
stipulated that the policy for the grant of PCs “will be in accordance with Regulation
203”. In his submission, the policy of 1999 was indicative of the fact that the Union
Government wanted to frame a policy in the future. Such a policy, it was contended,
was framed in 2008 on the basis of which the implementation guidelines were notified.
Hence, he urged that in the case of the Indian Navy, no promise was held out to
women officers recruited on SSCs of being granted PCs in the future. On this basis, it
has been urged that no rights had accrued to SSC women officers on the basis of the
policy which was notified on 25 February 1999. Hence, the Union Government was
justified in notifying a policy for the first time on 26 September 2008 making it
prospective and confining its application to specified cadres/branches.
54. Resisting the above submissions, Mr. CU Singh, learned Senior Counsel urged
that:
(i) The restraint which is imposed on the eligibility of women for appointment or
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enrolment in the Indian Navy is lifted upon the issuance of a notification by the
Central Government under Section 9(2) of the 1957 Act;
(ii) Upon the issuance of the notifications under Section 9(2) on 9 October 1991
and 6 November 1998, the provisions contained in the 1963 Regulations for the
grant of PCs would apply proprio vigore;
(iii) As a consequence, upon the issuance of a notification under Section 9(2), the
restrictions imposed in Regulations 122(2), 124(2) and 126(2) confining
eligibility only to male officers would not apply since the Regulations are
subservient to the parent statute;
(iv) Regulation 203 of Chapter IX of the 1963 Regulations contains a specific
provision for the grant of PCs subject to the availability of vacancies,
consideration of suitability and the recommendation of the Chief of Naval Staff;
(v) On 20 December 1991, the Union Government while opening up certain
cadres/branches for the induction of Short Service Commissioned officers
including women contemplated that the policy for the grant of PCs would be
promulgated in 1997. The policy which was issued on 25 February 1999
contained a specific reference to the two letters dated 20 December 1991 of the
MoD and is hence referable to the earlier commitment;
(vi) On 6 November 1998, a notification was issued under Section 9(2) opening up
the appointment of women as officers in the Executive, Engineering, Electrical
and Education branches. These four branches encompass nineteen sub-branches:
• Executive branch - 13
• Engineering branch - 2
• Electrical branch - 2
• Education branch - 2
(vii) The policy communication dated 25 February 1999 stipulated that the policy
for the grant of PCs will be in accordance with Regulation 203 and specifically
permitted sea-service for women;
(viii) The submission of the Union Government that the policy document of 25
February 1999 is only an intent to frame a policy in the future is belied by the
express terms of the document as well as by the advertisement issued in July
2002 for SSC officers, which contemplated their consideration for the grant of
PCs; and
(ix) The policy issued on 26 September 2008 has justifiably been held to be
arbitrary and invalid by the AFT. The policy contains no reference to the
notifications issued in 1991 or to the Presidential sanction of 25 February
1999. On a review of the files, the AFT came to the conclusion that the
sanction which was issued on 25 February 1999 was not placed before the
Board which gave its sanction to the subsequent policy dated 26 September
2008. As a result of the policy document dated 26 September 2008, there
would be a complete denial of PCs to those women officers recruited after
1991, including those recruited under the advertisement issued in July 2002
which expressly stipulated that PCs may be granted in deserving cases.
55. On the above rationale, Mr. CU Singh has urged that there is no merit in the
appeals filed by the Union of India. Mr. CU Singh stressed that according to a release
of the Press Information Bureau, the authorised strength of the Navy as on 1 July
2018 was 11,352. The held strength was 9,746, resulting in a shortage of 1,606
officers. As on 1 June 2019, the authorized strength is 11,567 while the held strength
is 10,012, thus resulting in a shortage of 1,555 officers.
56. Mr. Santosh Krishnan, learned counsel has urged:
(i) The policy letter dated 26 September 2008, in so far as it is prospective and has
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been restricted to certain cadres/branches, is liable to be set aside. In the
Logistics cadre and the Education branch, male officers are inducted directly as
PC officers. The absolute denial of consideration for the grant of PCs to SSC
women officers is discriminatory in nature;
(ii) The policy letter dated 26 September 2008 is ultra vires the policy letter dated
25 February 1999 and Regulation 203 of the 1963 Regulation. The findings of the
AFT in this regard are to be upheld. Regulation 203, as subordinate legislation,
outweighs executive instructions;
(iii) The Union Government has challenged before this Court the judgment of the
AFT only in one OA. Consequently, the Union Government is deemed to have
accepted the judgment of the AFT qua the other women SSC officers who were
inducted in pursuance of the advertisements issued in July 2002; and
(iv) No stay was granted by this Court on the judgment of the AFT. It is the failure
of the Union Government to implement the judgment of the AFT which has led to
cascading litigation since 2016 by officers seeking similar protection. Around 160
men have been recruited as direct PC officers in the last ten years. This belies
the contention urged on behalf of the Union Government that there is a
‘personnel saturation’ in the Logistics cadre. A saturation in the cadre, if any, is a
result of the failure of the Union Government to implement the judgment of the
AFT. Women SSC officers have been kept out of the zone of consideration despite
the binding directions in Annie Nagaraja's case and Priya Khurana's case.
57. Ms. Haripriya Padmanabhan, learned counsel appearing for the respondent nos.
two to six in Annie Nagaraja's case urged:
(i) SSC male officers have been granted PCs in various departments of the Navy.
The grant of PCs to SSC male officers in certain cadres was halted following the
induction of women on SSCs in those cadres. PCs, being granted to male officers
in these specified streams must also be extended to women officers inducted on
SSCs;
(ii) The notifications issued by the Union Government in 1991 stipulated that the
policy for the grant of PCs would be promulgated in 1997. Women officers,
inducted on SSCs pursuant to these notifications, had a legitimate expectation
that they would be considered for the grants of PCs;
(iii) The legitimate expectation of the women SSC officers crystalised into a right
upon the issuance of the policy letter dated 25 February 1999, which states that
the grant of PCs shall be in accordance with Regulation 203 of the 1963
Regulations;
(iv) The advertisements issued in July 2002 contained an express stipulation that
deserving SSC officers may be considered for the grant of PCs; and
(v) The second to sixth respondents were commissioned as SSC officers in the
Indian Navy between 1992 and 1994 and were among the first batches of
women officers in the Navy. They completed their service and were released
between 2006 and 2008 prior to the issuance of the policy letter dated 26
September 2008. Though the interim order of this Court dated 20 November
2015 protected only those women SSC officers in service on the date of the
issuance of the policy, their right of being considered for the grant of PCs arose
by virtue of the policy letter dated 25 February 1999. Though out of service for
over twelve years, this Court may consider their reinstatement and the grant of
PCs.
58. Ms. Aishwarya Bhati, learned Senior Counsel appearing on behalf of
Commander Seema Chaudhary (JAG SSC officer) has canvassed submissions in line
with those urged by Mr. CU Singh, learned Senior Counsel and Mr. Santosh Krishnan,
learned counsel. In addition to these submissions, it was urged that facially neutral
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laws, as in the present case, have a discriminatory effect against women SSC officers.
Male officers have, it was urged, always been afforded a choice between being
inducted either as SSC officers or directly as PC officers. Despite the non-consideration
of the grant of PCs to male SSC officers, PC avenues were in fact available to men. On
the other hand, women SSC officers are neither recruited directly as PC officers nor are
SSC women officers considered for the grant of PCs. This, it was urged, belies the
submission of the Union Government that the non-consideration of both male and
women SSC officers for the grant of PC is gender neutral and not discriminatory.
59. The rival submissions fall for consideration.
D Preliminary Objection
60. Before we deal with the rival submissions on merits, it is necessary to advert to
a preliminary objection which was urged by Mr. CU Singh, learned Senior Counsel to
the maintainability of the appeal17 filed by the Union of India in Priya Khurana's case.
Mr. CU Singh urged that when the SSC women officers sought to challenge the
judgment of the AFT, leave to appeal was separately sought and was granted by the
AFT to move this Court. This led to the filing of six Civil Appeals by the officers18 .
However, the Union of India sought the leave of the AFT to file an appeal before this
Court19 only in one OA. No leave was sought to appeal in the other OAs. Mr. CU Singh
urged that the AFT rendered one common judgment in six OAs. The Union of India
having filed an appeal only in one of the cases arising from the AFT, it was urged that
the common judgment binds the Union Government and operates as res judicata in
the other five OAs. In this submission, the judgment of the AFT which held that the
policy communication dated 26 September 2008 is ultra vires binds the Union of India
in the five cases where no appeal has been filed. Hence, it was submitted that it is not
open to the Union of India to file an appeal only in one of the six cases where a
common judgment has been delivered on similar facts. In this context, reliance was
placed on the decision of this Court in Sri Gangai Vinayagar Temple v. Meenakshi
Anmal20 .
61. Opposing the above submission, Mr. Sanjay Jain, learned ASG submitted that
the decision which was relied on by Mr. CU Singh arose in the context of a civil suit
while the scheme under the AFT Act 2007 is distinct.
62. Section 30(1) of the AFT Act 2007 provides as follows:
“30. Appeal to the Supreme Court. - (1) Subject to the provisions of Section
31, an appeal shall lie to the Supreme Court against the final decision or order of
the Tribunal (other than an order passed under Section 19):
Provided that such appeal is preferred within a period of ninety days of the
said decision or order.
Provided further that there shall be no appeal against an interlocutory order of
the Tribunal.”
63. Section 31 is in the following terms:
“31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the
leave of the Tribunal; and such leave shall not be granted unless it is certified by
the Tribunal that a point of law of general public importance is involved in the
decision, or it appears to the Supreme Court that the point is one which ought to be
considered by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme Court shall
be made within a period of thirty days beginning with the date of the decision of
the Tribunal and an application to the Supreme Court for leave shall be made within
a period of thirty days beginning with the date on which the application for leave is
refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for leave to
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appeal is disposed of and if leave to appeal is granted, until the appeal is disposed
of; and an application for leave to appeal shall be treated as disposed of at the
expiration of the time within which it might have been made, but it is not made
within that time.”
64. The above provisions were interpreted by a Bench of two learned judges of this
Court in Union of India v. Brigadier PS Gill21 . This Court held that there are two distinct
routes for filing an appeal against a final order of the AFT (other than an order passed
in the jurisdiction to punish for contempt). The first route is the grant of leave by the
Tribunal to file an appeal before the Supreme Court under Section 31(1). The second
route empowers this Court to permit the filing of an appeal against a final decision or
order of the Tribunal if it appears to this Court that the point is one which ought to be
considered by that Court. In this context, the Court held:
“8. Section 31 of the Act extracted above specifically provides for an appeal to
the Supreme Court but stipulates two distinct routes for such an appeal. The first
route to this Court is sanctioned by the Tribunal granting leave to file such an
appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this
Court unless the Tribunal certifies that a point of law of general public importance is
involved in the decision. This implies that Section 31 does not create a vested,
indefeasible or absolute right of filing an appeal to this Court against a final order or
decision of the Tribunal to this Court. Such an appeal must be preceded by the
leave of the Tribunal and such leave must in turn be preceded by a certificate by
the Tribunal that a point of law of general public importance is involved in the
appeal.
9. The second and the only other route to access this Court is also found in
Section 31(1) itself. The expression “or it appears to the Supreme Court that the
point is one which ought to be considered by that Court” empowers this Court to
permit the filing of an appeal against any such final decision or order of the
Tribunal.
10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz.
there is no vested right of appeal against a final order or decision of the Tribunal to
this Court other than those falling under Section 30(2) of the Act. The only mode to
bring up the matter to this Court in appeal is either by way of certificate obtained
from the Tribunal that decided the matter or by obtaining leave of this Court under
Section 31 for filing an appeal depending upon whether this Court considers the
point involved in the case to be one that ought to be considered by this Court.”
65. The Court also dealt with the question whether an application for leave to
appeal under Section 31 can be moved directly before the Supreme Court without first
approaching the Tribunal for a certificate in terms of the first part of Section 31(1).
The Court held that an aggrieved party cannot approach this Court directly for the
grant of leave to file an appeal under Section 31(1) read with Section 31(2). The Court
held:
“14. The scheme of Section 31 being that an application for grant of a certificate
must first be moved before the Tribunal, before the aggrieved party can approach
this Court for the grant of leave to file an appeal. The purpose underlying the
provision appears to be that if the Tribunal itself grants a certificate of fitness for
filing an appeal, it would be unnecessary for the aggrieved party to approach this
Court for a leave to file such an appeal. An appeal by certificate would then be
maintainable as a matter of right in view of Section 30 which uses the expression
“an appeal shall lie to the Supreme Court”. That appears to us to be the true legal
position on a plain reading of the provisions of Sections 30 and 31.”
66. The learned ASG has urged that though the Union Government did not seek the
grant of leave by the AFT for the companion five cases and as a matter of fact sought
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the grant of leave only in one case, they should not be foreclosed from challenging the
judgment of the AFT. Mr. Jain submitted that a common judgment has been delivered
by the AFT dealing with issues of far-reaching importance bearing on legal questions
involved and hence it would be desirable for the Court to consider the matter on
merits.
67. The learned Counsel appearing before this Court have addressed arguments on
the merits of the issues raised in the judgments of the Delhi High Court and AFT. We
are nevertheless required to adjudicate upon the validity and effect of the policy letter
dated 26 September 2008 in the appeals filed by the SSC women officers in Annie
Nagaraja's and Priya Khurana's case. In order to render a final adjudication, we
propose to deal with the appeals on merits. We leave open the question of law raised
in the preliminary objection of Mr. CU Singh to be considered in an appropriate case in
future.
E Validity of the policy letter dated 26 September 2008
68. Article 33 of the Constitution entrusts to Parliament to determine, by law, the
extent to which any of the rights conferred by Part III of the Constitution can be
restricted or abrogated in their application to the members of the Armed Forces “so as
to ensure the proper discharge of their duties and the maintenance of discipline
among them”. Besides the requirement that a restriction must be determined by law,
Article 33 postulates a nexus between the restriction or abrogation and the need for
the proper discharge of duties and the maintenance of discipline among members of
the Armed Forces.
69. In Lt. Col. Prithi Pal Singh Bedi v. Union of India,22 the legality of orders
convening a General Court Martial and its composition was questioned. It was
contended that trial by a Court Martial would result in the deprivation of personal
liberty, which can only be done in consonance with Article 21 of the Constitution. It
was contended that any restriction must be by procedure established by law and the
law prescribing such procedure must satisfy the test prescribed by Articles 14 and 19
of the Constitution. Justice D A Desai, writing for a three judge Bench of this Court
noted the competing interests that must be considered in matters concerning the
Armed Forces in the following terms:
“14. While investigating and precisely ascertaining the limits of inroads or
encroachments made by legislation enacted in exercise of power conferred by
Article 33, on the guaranteed fundamental rights to all citizens of this country
without distinction, in respect of armed personnel, the court should be vigilant to
hold the balance between two conflicting public interests; namely necessity of
discipline in armed personnel to preserve national security at any cost, because that
itself would ensure enjoyment of fundamental rights by others, and the denial to
those responsible for national security of these very fundamental rights which are
inseparable adjuncts of civilised life…”
70. The Court held that the public interest in the maintenance and preparedness of
the Armed Forces of the nation has to be weighed with an equally compelling public
interest in balancing the abrogation or restriction of fundamental rights of the officers
in the Armed Forces. For this reason, Article 33 specifies that any restriction imposed
must be by law and in order to ensure the proper discharge of their duties and the
maintenance of discipline among them. The Court rejected the challenge and held:
“…Article 33 does not obligate that Parliament must specifically adumbrate each
fundamental right enshrined in Part III and to specify in the law enacted in exercise
of the power conferred by Article 33 the degree of restriction or total abrogation of
each right. That would be reading into Article 33 a requirement which it does not
enjoin…it is not possible to accept the submission that the law prescribing
procedure for trial of offences by court martial must satisfy the requirement of
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Article 21 because to the extent the procedure is prescribed by law and if it stands
in derogation of Article 21, to that extent Article 21 in its application to the Armed
Forces is modified by enactment of the procedure in the Army Act itself.”
71. In R Viswan v. Union of India,23 one of the issues concerned whether Section 21
of the Army Act, 1950 read with Chapter IV of the Army Rules, 1954 is within the
scope and ambit of Article 33 of the Constitution. Section 21 empowers the Central
Government by notification to make rules restricting “to such extent and in such
manner as may be necessary” certain fundamental rights in their application to
persons subject to the 1950 Act. Justice P N Bhagwati (as the learned Chief Justice
then was), speaking for a Constitution Bench of this Court held:
“A plain reading thus would reveal that the extent of restrictions necessary to be
imposed on any of the fundamental rights in their application to the armed forces
and the forces charged with the maintenance of public order for the purpose of
ensuring proper discharge of their duties and maintenance of discipline among
them would necessarily depend upon the prevailing situation at a given point of
time and it would be inadvisable to encase it in a rigid statutory formula. The
Constitution-makers were obviously anxious that no more restrictions
should be placed than are absolutely necessary for ensuring proper
discharge of duties and the maintenance of discipline amongst the armed
force personnel and therefore Article 33 empowered Parliament to restrict
or abridge within permissible extent, the rights conferred under Part III of
the Constitution insofar as the armed force personnel are concerned.”
(Emphasis supplied)
72. The Court noted that restrictions imposed upon fundamental rights in exercise
of the power conferred by Article 33 must be “absolutely necessary for ensuring proper
discharge of duties and the maintenance of discipline”. The Court held:
“…Parliament was therefore within its power under Article 33 to enact Section 21
laying down to what extent the Central Government may restrict the Fundamental
Rights under clauses (a), (b) and (c) of Article 19(1), of any person subject to the
Army Act, 1950, every such person being clearly a member of the Armed Forces…
The guideline for determining as to which restrictions should be considered
necessary by the Central Government within the permissible extent determined by
Parliament is provided in Article 33 itself, namely, that the restrictions should be
such as are necessary for ensuring the proper discharge of their duties by the
members of the Armed Forces and the maintenance of discipline among them. The
Central Government has to keep this guideline before it in exercising the power of
imposing restrictions under Section 21 …”
73. This Court, in upholding Section 21 of the 1950 Act, held that the exercise of
such power must necessarily conform to the restrictions inherent in Article 33 of
Constitution. The nexus requirement in Article 33 was affirmed by this Court in Union
of India v. LD Balam Singh24 and Mohd. Yunus Khan v. State of U.P.25
74. Section 9(2) of the 1957 Act conditions the restriction on the appointment or
enrolment of women in the Indian Navy by entrusting to the Union Government the
authority to issue notifications allowing for the engagement of women in departments,
branches or bodies forming a part of or attached to the Navy or the Indian Naval
Reserve Forces. Acting in exercise of this authority, the Union Government initially
issued a notification on 9 October 1991 and thereafter on 6 November 1998. By the
first of those notifications, women were made eligible for appointment as officers in
the Indian Navy in the Law and Logistics cadres and the Education branch. The second
notification dated 6 November 1998 broadened the scope of the permissible areas for
the entry of women as officers in the Indian Navy by enabling their entry in all the four
branches - Executive, Engineering, Electrical and Education. Significantly, neither of
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the notifications dated 9 October 1991 nor 6 November 1998 restrict the appointment
or enrolment of women only on SSCs. Both notifications stipulate that women shall “be
eligible for appointment as officers in the Indian Navy” in the branches specified. The
consequence of the two notifications is to lift the bar envisaged in Section 9(2) and to
allow for the induction of women as officers in the Indian Navy in the specified
cadres/branches.
75. Close on the heels of the first notification dated 9 October 1991 issued under
Section 9(2), the MoD issued two notifications on 20 December 1991 with successive
numbers of reference providing for the terms and conditions of service of SSC officers,
including women. The first letter (bearing reference No. 1110) concerned SSC officers
in the Education branch. As we have noted, para 4 of the notification specifically
contemplated that the policy in regard to the grant of PCs would be promulgated in
1997. The second letter (bearing reference No. 1111) concerned SSC officers in the
Law and Logistics cadres and adopted the terms of the earlier letter, save to the extent
specified therein. As there was no specific stipulation concerning the grant of PCs in
the second letter, the stipulation in para 4 of the first notification (bearing reference
No. 1110) applies to SSC officers inducted in the Law and Logistics cadres.
76. Hence from 20 December 1991, it was within the contemplation of the Union
Government that the policy for the induction of SSC officers, including women, on PCs
would be notified within a period of six years. This was because officers who were
inducted on SSCs would have a tenure of seven years. The policy for the grant of PCs
was hence envisaged to be notified before or around the expiry of the short service
tenures notified in 1991. The stipulation on the tenure of seven years was
subsequently extended to ten years in 1998 and to fourteen years in 2002.
77. It is in the above background, that the policy communication of the Union
Government dated 25 February 1999 has to be understood. Regulation 203 of the
1963 Rules lays down the norms for the grant of PCs. The grant of PCs is made subject
to:
(i) The availability of vacancies in the stabilised cadre;
(ii) Suitability of the candidate; and
(iii) A recommendation by the Chief of Naval Staff.
78. The policy communication dated 25 February 1999 was not anticipatory in
nature. What the communication spelt out was that the grant of PCs to SSC officers
would be in terms of Regulation 203. This would cover both men and women officers
serving on SSCs. The expression “the policy for grant of Permanent Commission will
be” in accordance with Regulation 203 cannot be construed to mean that the policy
was yet to be framed or that until a future date when a policy would be notified, there
was no entitlement to be considered for the grant of PCs. The import of the policy
document dated 25 February 1999 was to bring the grant of PCs to all SSC officers
including women in accordance with Regulation 203.
79. The course of the evolution of policy from 9 October 1991 clearly indicates a
legitimate expectation on part of the SSC officers (both men and women) of being
governed by the provisions of Regulation 203 being considered for the grant of PCs.
The Navy Regulations, when they were originally drafted in 1963, did not contemplate
the induction of women. For this reason, Regulations 122(2), 124(2) and 126(2) spoke
of only “unmarried males” being eligible for induction on SSCs. The Regulations being
subservient to statute, incorporated restrictions which comported with the provisions
of Section 9(2). However, what Section 9(2) envisages is that the restrictions on the
enrolment or appointment of women in branches or departments of the Indian Navy
would be lifted upon the issuance of a notification by the Union Government
sanctioning the entry of women officers, subject to the conditions which may be
specified. Both in the notifications dated 9 October 1991 and 6 November 1998, the
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Union Government lifted the statutory bar in exercise of its enabling power under
Section 9(2) by allowing for the entry for women as officers in the Indian Navy in
stipulated branches. Once the statutory bar stood lifted, the appointment of SSC
officers, both men and women on PCs would be governed uniformly by the provisions
of Regulation 203. This was made abundantly clear by the policy letter dated 25
February 1999 which was issued in compliance with the legal regime. The grant of PCs
to SSC men and women officers aligned with the provisions of Regulation 203 which
plainly is a matter of law. Thus, the contention urged by Mr. Sanjay Jain, learned
Additional Solicitor General that the communication dated 25 February 1999 was
merely anticipatory in nature and that the entitlement to be considered for the grant
of PCs would have to await a further policy, which came into being on 26 September
2008 cannot be accepted. The communication dated 25 February 1999 of the MoD had
the sanction of the President and consequently cannot be disregarded as suggested in
the arguments urged by the Union of India in these proceedings.
80. In addition to the above observations, in Priya Khurana's case which concerned
women officers of the 2002 batch, an advertisement had been issued by the
authorities inviting applications from men and women for joining as SSC officers in the
ATC and Logistics cadres and the Education branch. The advertisement clearly
stipulated that based on their performance and the requirements of service, deserving
officers “may also be considered for Permanent Commission.” Subsequent employment
notices issued in 2003-4 did not contain such a stipulation. The employment notice of
July 2002 was not in conflict with the provisions contained in Regulations 203.
Regulation 203 uses the phrase “from time to time”, indicating thereby that it was
open to the competent authority to determine the grant of PCs to the SSC officers
based on the availability of vacancies, suitably and the recommendation of the Chief of
the Naval Staff. Hence, in July 2002, when the Navy invited applications for SSCs in
stipulated branches, it held out a clear representation that deserving cases may be
considered for the grant of PCs.
81. The policy decision of the MoD dated 26 September 2008 governed the grant of
PCs to SSC women officers in the Army, Navy and Air Force. The communication, by
stipulating that it would apply to SSC women officers “to be inducted”, purported to
exclude women SSC officers in service from being considered for the grant of PCs. It
also sought to restrict the cadres/branches in which PCs could be granted to women
SSC officers. The AFT has noted after it had summoned the files, that the earlier policy
decision of 25 February 1999 was not placed before the decision making authorities.
The AFT concluded that while a policy framed by the government is amenable to
change or alteration, decision making by the government is subject to the norms of
reasonableness and a non-arbitrary exercise of power. The AFT noted:
“…the said record reveals that the Chairman of the COSC never recommended
that the policy should apply to persons who have subsequently been recruited and
shall not apply to in-service SSC Officers…
The aforesaid record pertaining to the policy-decision dated 26th September 2008
does not reveal consideration of the existing policy-decision dated 25 February
1999. No deliberation, as it appears from the aforesaid record, was made as to why
the existing policy relating to the grant of PC to SSC officers, irrespective of the
gender, as well as the branches/cadres requires modification/change. The said
record reveals that even the Raksha Mantri was kept in the dark about the existing
policy-decision dated 25 February 1999. Though the respondent-authorities are free
to change their earlier policy, the reason for the change must be reflected on the
record pertaining to such change, so also the consideration as well as the
deliberation on the existing policy, which as discussed above, are absent in the case
at hand”
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82. Evidently, in the view of the AFT, the decision which was arrived at on 26
September 2008 was not a conscious departure from the earlier policy of 25 February
1999. It could not have been a conscious departure for the simple reason that the
earlier policy was not evaluated nor was there any basis formulated to justify a
departure from it.
83. We must note at this stage that no submission has been urged on behalf of the
Union of India by Mr. Sanjay Jain, learned Additional Solicitor General controverting
the above findings of the AFT. Quite apart from this however, there is a more
fundamental reason why a finding in regard to the invalidity of the policy letter dated
26 September 2008 in relation to the Navy rests on a sure foundation. The 1963
Regulations contain specific provisions in regard to the grant of SSCs and for the grant
of PCs. As we have noted, Regulations 122, 124 and 126 govern the grant of SSCs,
while Regulation 203 governs the grant of PCs. Regulation 203, in its own terms, is
not restricted in its application to only male officers. Once the appointment of women
officers in the Indian Navy was permitted in terms of the statutory notifications dated
9 October 1991 and 6 November 1998, the statutory bar under Section 9(2) stood
lifted and women officers inducted on SSCs would be entitled to be governed by
Regulation 203. Hence, the policy letter dated 26 September 2008 to the extent it
seeks to restrict the grants of PCs to specified cadres/branches as well as only to
women officers “to be inducted” is contrary to the notifications dated 9 October 1991
and 6 November 1998 and shall not be enforced. The policy letter dated 26 September
2008 was not in supersession of the statutory notifications dated 9 October 1991 and
6 November 1998. At the highest it may be construed as an administrative decision to
implement the statutory notifications. Hence, it cannot be construed to be prospective
in character as any other view to the contrary would be in violation of Section 9(2) of
the Act. The conclusion which was arrived at by the High Court and by AFT is
unimpeachable in its logical consistency and is in keeping with the legal regime
envisaged by the 1957 Act, the 1963 Regulations and the notifications issued on 9
October 1991, 6 November 1998 and 25 February 1999.
F The stereotypical sailor
84. The battle for gender equality is about confronting the battles of the mind.
History is replete with examples where women have been denied their just
entitlements under law and the right to fair and equal treatment in the workplace. In
the context of the Armed Forces, specious reasons have been advanced by decision
makers and administrators. They range from physiology, motherhood and physical
attributes to the male dominated hierarchies. A hundred and one excuses are no
answer to the constitutional entitlement to dignity, which attaches to every individual
irrespective of gender, to fair and equal conditions of work and to a level playing field.
A level playing field ensures that women have the opportunity to overcome their
histories of discrimination with the surest of responses based on their competence,
ability and performance.
85. In the decision of this Court by the present Bench in Babita Puniya, this Court
has dwelt on the need to change mind sets if equality for women is to be achieved in
the Armed Forces. In Babita Puniya, this Court dealt with the submissions of the Union
Government that women are ill-suited to assume command roles in the Indian Army.
Male officers, it was urged, would be averse to taking orders from women. Women,
this Court was informed share an undue burden of marital obligations and the
responsibilities of motherhood and child bearing. These arguments, based upon the
physiological attributes of women, were employed to justify the unequal treatment of
men and women officers.
86. These submissions which are based on deeply entrenched stereotypes came to
be rejected by this Court in emphatic terms:
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“The submissions advanced in the note tendered to this Court are based on sex
stereotypes premised on assumptions about socially ascribed roles of gender which
discriminate against women. Underlying the statement that it is a “greater
challenge” for women officers to meet the hazards of service “owing to their
prolonged absence during pregnancy, motherhood and domestic obligations
towards their children and families” is a strong stereotype which assumes that
domestic obligations rest solely on women. Reliance on the “inherent physiological
differences between men and women” rests in a deeply entrenched stereotypical
and constitutionally flawed notion that women are the “weaker” sex and may not
undertake tasks that are “too arduous” for them. Arguments founded on the
physical strengths and weaknesses of men and women and on assumptions about
women in the social context of marriage and family do not constitute a
constitutionally valid basis for denying equal opportunity to women officers…
Such a line of submission is disturbing as it ignores the solemn constitutional
values which every institution in the nation is bound to uphold and facilitate… To
cast aspersion on their abilities on the ground of gender is an affront not only to
their dignity as women but to the dignity of the members of the Indian Army - men
and women - who serve as equal citizens in a common mission.”
87. The submissions which were urged before this Court on behalf of the Union of
India in Babita Puniya which dealt with women SSC officers in the Army have found an
echo in the present appeals which deal with SSC women officers in the Indian Navy.
Originally, in the written submissions which were filed in these proceedings (‘Brief
note on behalf of the appellants’), it was urged that sailing in the Indian Navy is not a
proper avocation for women. The written submissions contain the following statement:
“There is also a strong contemporaneous rationale for not considering women as
sailors in the Indian Navy as the Navy ships of today are not structured nor have
the infrastructure to accommodate women sailors alongside men sailors. There is a
common barrack and a common bathroom, built as such that no temporary
arrangement is possible to be made as they are built on of Russian models where
there is no provision made for women as sailors. Navy is endeavoring to create such
infrastructure…it clearly emerges that women are kept away from sea-going duties
purely on operational grounds and not on the grounds of gender discrimination.”
88. In the revised note of submissions which has been placed on the record, the
above paragraph does not find a reference. Significantly however, the same
submissions, though absent in the written note which was subsequently tendered
before this Court, has been stressed at the forefront of the submissions which were
made before this Court by the learned ASG. The submission was that:
(i) Certain avenues such as sea-sailing duties are ill-suited for women officers as
there is no return to the base, unlike in the Army and the Air Force; and
(ii) In vessels of a Russian origin which are deployed by the Indian Navy, no
provision has been made for women as sailors and there are no bathrooms to
accommodate them.
89. The above reasons are illusory and without any foundation. Women officers
have worked shoulder to shoulder with their men counterparts in every walk of service.
The supposed explanations based on duties at sea or Russian vessels are devices
adopted to justify an action which is not germane to the proper discharge of duties
and the maintenance of discipline among members of the Armed Forces. These
submissions which have been made by the ASG are plainly contrary to the policy letter
dated 25 February 1999 issued by the MoD to the Chief of the Naval Staff. The policy
letter emphatically stipulates that women officers of all branches/cadres could be
directed to serve on board ships both during training and subsequent employment in
accordance with the exigencies of service. In the face of this communication, it is
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impossible to countenance a submission that women cannot sail alongside men
sailors.
90. Quite apart from the policy letter dated 25 February 1999, the contention that
certain sea-going duties are ill-suited to women officers is premised on sex
stereotypes that male officers are more suited to certain duties by virtue of the
physiological characteristics. As this Court has noted in Babita Puniya, arguments
founded on the physical strengths and weaknesses of men and women do not
constitute a constitutionally valid basis for denying equal opportunity to women
officers. To accept the contention urged by the ASG would be to approve the socially
ascribed gender roles which a commitment to equal worth and dignity of every
individual belies.
91. In the compilation of documents which forms a part of the record, there is
documentary evidence of the accolades which have been bestowed on women officers
in the Indian Navy. In 1993, Commander Ruby Singh became the first Indian woman
to lead a platoon in the contingent of the Indian Navy at Raj Path on Republic Day.
INSV Tarini which circumnavigated the globe comprised of an all women crew. Sub-
lieutenant Shivangi became the first pilot for the Indian Navy. The achievements of
some of the women officers of the Indian Navy have been set down in the form of a
tabulated chart which we consider necessary to extract:
1 Lieutenant Sandhya Suri Served on board the
warship INS Jyoti
2 Commander Reena Served onboard INS
Magdalene Sujatha (2002); She
received the Chief of Naval
Staff commendation and
was awarded the Best
Instructor award at INS
Valsura (1998)
3 Commander Suhas Received CinC
Patankar Commendation as well as
the Best Instructor Award
(INS Shivaji)
4 Commander Anuradha Received the Chief of Naval
Kanchi and Commander Staff commendation.
Babita Rawat
5 Commanders Shivani, Received the Vice-Chief of
Rajeshwari Kori and Naval Staff commendation.
Bhawna Salaria
Naval officers Anuradha Chauhan, Anupama Chauhan, Pawan Preet Maan, Shilpa,
Prabha Lal, Savitri Panwar, Pushpa Pandey and Rupali Rohatgi were all awarded the
CinC Commendation.
92. Performance at work and dedication to the cause of the nation are the surest
answers to prevailing gender stereotypes. To deprive serving women officers of the
opportunity to work as equals with men on PCs in the Indian Navy is plainly
discriminatory. Furthermore, to contend that women officers are ill-suited to certain
avocations which involve them being aboard ships is contrary to the equal worth of the
women officers who dedicate their lives to serving in the cause of the nation.
G Ex turpi causa non oritur actio
93. The Delhi High Court and the AFT have differed on the nature of the reliefs
which have been granted in the separate batch of cases adjudicated by them. The
Delhi High Court has held that SSC officers of the Navy who had opted for but were
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not granted PCs and were instead granted an extension on SSC but had not retired at
the time of the institution of the Writ Petitions should be offered PCs within a period of
six weeks, though they had attained the age of retirement during the pendency of the
petitions. They were held to be entitled to all consequential benefits such as
promotions and other financial benefits subject to medical fitness. As regards those of
the petitioners who had attained the age of superannuation prior to the filing of Writ
Petitions, the High Court directed their reinstatement within six weeks subject to the
decision of this Court in Babita Puniya. These petitioners, it was held, would be
entitled to no benefits.
94. The AFT disagreed with the direction of the High Court for the grant of PCs and
directed the authorities to consider the cases of the SSC officers for the grant of PCs.
The AFT was of the view that as it does not possess the requisite expertise and
necessary materials for determining whether PCs should be granted, such a decision
must be left to the relevant authorities. However, the AFT directed that until such
consideration was made and a decision was taken, the applicants before it would be
allowed to continue as SSC officers on existing terms and conditions as applicable to
them. The ultimate direction that was issued by the AFT is also the subject matter of
the appeals by the SSC officers before this Court. According to them, the wider
direction issued by the Delhi High Court for the grant of PCs should have been adopted
by the AFT and the mere direction for consideration will not provide any substantial
relief to the officers.
95. At this stage, it would be material to note that during the pendency of the
appeal filed by the Union of India arising from the judgment of the Delhi High Court in
Annie Nagaraja's case, an interim order was passed by this Court on 20 November
2015 while issuing notice by which (i) those of the petitioners before the High Court
who were serving as SSC officers in the Navy on 26 September 2008 were allowed to
continue on the terms and conditions applicable to them; and (ii) those who had been
released from service after 26 September 2008 upon completion of SSC tenures would
be allowed to rejoin in that capacity and to continue in service.
96. By this order, protection was restricted only to those officers before this Court
who were in service on 26 September 2008. Respondent Nos 2 to 6 were
commissioned as officers of the Indian Navy as SSC officers between 13 July 1992 and
12 August 1994 and were among the first batch of women officers in the Navy. They
were released from service between 12 July 2006 and 11 August 200826 . These officers
were released before the issuance of the policy letter dated 26 September 2008.
Consequently, the protection of the interim order of this Court was not extended to
these officers.
97. The case of these officers is that the 1963 Regulations as well as the policy
letter dated 25 February 1999 existed when they were in service which entitled them
to be considered for the grant of PCs. Prior to their release from service, they had
submitted several representations to the concerned authority requesting that they be
considered for the grant of PCs. The applications, it was urged, were forwarded by
their commanding officers recommending the grant of PCs which signifies their
capabilities, merit and work to serve as PC officers in the Indian Navy. The grievance
of these officers is that their request was not considered and that the Navy kept silent
about the policy letter dated 25 February 1999 which, according to the them, had
come to light much later.
98. It was urged that the Air Force accepted the decision of the Delhi High Court in
Babita Puniya and reinstated women officers who had retired. Similar steps, it was
urged, ought to have been undertaken by the Army. However, as a result of the
interim order of this Court, Respondent Nos 2 to 6 were not reinstated and have filed
an application seeking a modification of the order27 . Respondent Nos 2 to 6 urged that
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they are entitled to be considered for the grant of PCs in view of the policy letter dated
25 February 1999. They claim to have been gravely prejudiced by the conduct of the
Navy and the interim order of this Court. The principle of actus curiae neminem
gravabet - an act of court should prejudice no one - has been pressed in aid of this
submission. Though these respondents have been out of service for between twelve to
fourteen years, it has been submitted that the work in their departments is of such a
nature that being out of service should not stand in the way of their being reinstated.
In support of this, it was urged that fresh persons are inducted with six months’
training. Consequently, it was urged that the officers having served for fourteen years,
there is no difficulty in the way of this Court passing an order for their reinstatement
in service.
99. In the appeals arising out of the judgment of the AFT in Priya Khurana's case,
an interim order was passed by this Court on 28 October 2016 directing the
continuation in service of the SSC women officers in that capacity until further orders.
There was no stay on the judgment of the AFT in Priya Khurana's case by this Court.
In terms of the judgment, the Navy was required to consider the case of every officer
in terms of Regulation 203 read with the policy dated 25 February 1999. As a result of
the Navy not having implemented the judgment of the AFT since 2016, there has been
a cascading effect and nearly thirty officers (this Court was informed during hearing)
have filed cases before the AFT, the outcome of which depends on the judgment of
this Court in these appeals.
100. Mr. Santosh Krishnan, learned counsel submitted that if this Court were to
accept the view of the AFT and direct the ‘mere’ consideration of the representations
for the grant of PCs, a piquant situation would arise since any such consideration
would be rendered futile at least in respect of one cadre, namely Logistics. The
Logistics cadre is stated to be saturated or overborne as a result of the staffing
practices which have been followed by the Navy in the interregnum. Furthermore, two
Lieutenant Commanders (Lt. Commander Kaberi Kasturi and Lt. Commander Vijeta
Yadav) were ordered to be released from service on the ground that the cadre is
saturated. The submission which has been urged is that this excuse of the cadre being
saturated has been improvised to prevent a judicial review of the systemic gender
discrimination in the recruitment and retention practices of the Navy. This is sought to
be highlighted by the following submissions:
(i) While serving women SSC officers are being denied extensions in their SSC
tenure or the grant of PCs on the ground that the Logistics cadre is ‘overborne’,
the Navy is recruiting fresh hands in the same cadre;
(ii) Nearly 160 men were recruited in the Logistics cadre over the previous ten years
directly on PCs, out of whom between 25 and 30 officers were recruited over the
previous five years;
(iii) The Navy has defended this recruitment by claiming that fresh recruits
“maintain the youthful profile of the force”. This contention cannot be reconciled
with the fact that the Navy is offering re-employment to superannuated male
officers (aged 52 years and above) at the level of Commanders in the Logistics
cadre on account of the shortage of personnel;
(iv) Re-employment of such special duty officers is permissible only where there is
a shortage of personnel in the cadre in question, which is evident from a policy
letter dated 24 June 2013;
(v) Though, there is no separate Logistics cadre for special duty officers, yet, an
informal quota has been carved out for male officers to continue in service, even
after superannuation;
(vi) Since the special duty officers have risen from the ranks, they can tenant only
certain billets within the Logistics cadre. In contrast, women officers in the
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Logistics cadre can tenant those billets as well as others, if required. They have
been uniformly trained as officers and have passed various qualifying
examinations during employment. Yet ironically, it is women officers who are
required to exit as a result of the ‘cadre saturation’;
(vii) Despite the Navy being required to consider all serving women SSC personnel
for the grant of PC, not a single SSC woman officer in the Logistics cadre from
any batch has been considered till date; and
(viii) If the Navy had considered the application of every Logistics officer on their
own merit, there would have been no organizational difficulty of saturation faced
in any cadre. Yet, the Navy had continued to insist that it is only the policy letter
dated 26 September 2008 which will govern all cases for the grant of PCs,
though it was struck down by both the Delhi High Court as well as the AFT.
101. In other words, it has been submitted that SSC women officers from the
Logistics cadre have been driven to pursue their remedies in courts and are now
confronted with the plea that the cadre is overborne. This, it is urged, is a travesty of
justice.
102. In order to present to this Court a complete picture of the impact of the
decision in these cases, the status of the cases has been depicted as follows:
(i) Annie Nagaraja's case involves seventeen officers. From the 2002-03 batch
(Priya Khurana's case), there are seven officers before this Court who have
secured protection against release. Altogether before this Court, there are twenty
one serving officers including ten retired officers (including a few men) who are
seeking relief;
(ii) Of the serving officers in Annie Nagaraja's case, most have rendered services in
excess of twenty years. Officers in Priya Khurana's case have rendered
continuous service of eighteen years till date; and
(iii) About thirty officers are involved in pending litigation before the AFT from
batches subsequent to the officers in Priya Khurana's case. Of them, a few
officers are moving the courts agitating their grievance in regard to the non-
consideration of their entitlement for the grant of PCs.
103. In these circumstances, it has been submitted that the Court may consider
the issuance of directions pari materia to those which were issued by this Court in sub
-paragraphs (a), (b), (c), (d) and (f) of paragraph 69 in Babita Puniya's case. This, it
has been urged, would be appropriate since the same policy letter dated 26
September 2008 was the subject matter of the judgment of this Court in Babita
Puniya.
104. Opposing the above submissions, Mr. Sanjay Jain has placed on the record
three charts. The first chart depicts the cadre strength in the Indian Navy:
CADRE STRENGTH IN THE INDIAN NAVY
Cadre/Branch Stabilised Temp Total Officers Cadre Officers
Cadre (a) Sanction Sanction in- Status - Court
(b) (a) +(b) service Order
Logistics 485 42 527 574 + 57 31
Education 343 5 348 345 Minus 31
03
Naval Constructor 279 108 387 399 +11 11
ATC 88 0 88 110 +22 04
105. The second chart presents a comparative analysis of inductions and
retirements in the past three years:
Year Inductions Retirements
2017 15 20 (13 PC + 07 SSC)
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2018 12 24 (08 PC + 16 SSC)

2019 26 27 (05 PC + 22 SSC)
Total 53 71
106. The third chart deals with the status of re-employment of Special Duty
Commissioned Officers. These officers have been promoted from the other ranks
(sailors) in the Indian Navy. They are being given re-employment in service because
of a shortage against sanctioned strength. The sanctioned strength, it has been
submitted, is not interchangeable with other Logistics officers. The third chart is
reproduced below:
Cadre Govt. Sanction Held Strength
SD (Stores) 28 27
SD (Writer) 44 38
107. While considering the defence of the Union of India, urged by the ASG, that
the cadres are “overborne” and “saturated”, the assessment of this Court must be
based on the following position:
(i) Neither the judgment of the Delhi High Court nor the judgment of the AFT was
stayed during the pendency of these appeals. The Union Government and the
Naval authorities could not have proceeded on the misconceived basis that the
mere pendency of the present appeals was a license to not comply with the
directions contained in the judgments of the High Court and the AFT. As a result
of the failure of the authorities to consider the SSC officers for the grant of PCs,
their status continued in a state of uncertainty, effectively depriving them not
only of the benefits which would accrue to them in terms of career advancement
but also the ability to occupy progressively higher positions in the hierarchy upon
the grant of PCs;
(ii) While the Union Government and the Naval authorities did not consider any SSC
women officers for the grant of PCs, it has now claimed that the cadre is
saturated. This position has transpired precisely as a result of the failure to
implement the directions of the Delhi High Court and of the AFT, while at the
same time continuing to make recruitments which is now held up as a ground for
the cadres being saturated;
(iii) The right to be considered for the grant of PCs arose under the policy dated 25
February 1999. The policy letter dated 26 September 2008 was issued oblivious
to the earlier policy document and had the effect of denying benefits to SSC
officers who were in saddle, besides restricting the cadres/branches in which SSC
officers could be granted PCs. Though the policy letter dated 26 September 2008
was declared to be invalid by the High Court and by the AFT, the authorities have
relied upon either the absence of vacancies or the prospective application of the
policy letter dated 26 September 2008 to deny relief to SSC officers; and
(iv) If the Naval authorities had considered SSC officers for the grant of PCs in
terms of the policy letter dated 25 February 1999, that would have obviated a
situation of saturation of cadres with which the SSC officers are now sought to be
confronted as a ground to deny them relief to which they were legitimately
entitled in terms of the policy dated 25 February 1999;
108. Taking into consideration the above, we find merit in the grievance which has
been urged on behalf of the SSC officers that the present situation has arisen as a
plain consequence of the actions of the Naval authorities in:
(i) The failure to implement the statutory notifications under Section 9(2) dated 9
October 1991 and 6 November 1998;
(ii) The failure to abide by the policy letter dated 25 February 1999; and
(iii) The breach of the obligation to implement the judgments of the Delhi High
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Court and the AFT which had not been stayed and has resulted in the creation of
an impasse for the SSC women officers.
109. Once the policy decision of the Union Government was communicated on 25
February 1999, the authorities were bound to consider the claims of the SSC officers
for the grant of PC in terms of Regulation 203. The naval authorities and the Union
Government failed to do so, depriving them of the entitlement to be considered for the
grant of PC. By the failure of the authorities to consider the SSC officers for PCs in
terms of the policy communication of 25 February 1999, SSC officers lost out on the
opportunity to be granted PCs and all the responsibilities and benefits attached to the
grant of PC, including promotions and pensionable service. The situation which has
come to pass is due to the failure of the authorities to implement statutory
notifications issued under Section 9(2) the policy statement of 25 February 1999 by
which they were bound and as the decisions of the Delhi High Court and the AFT.
These SSC officers cannot be left in the lurch and the injustice meted to them by lost
years of service and the deprivation of retiral entitlements must be rectified. The
injustice is a direct consequence of the authorities having breached their duties under
law, as explained above. To deny substantive relief to the SSC officers would result in
a situation where a breach of duty on the part of the authorities to comply with
binding legal norms would go unattended. This would result in a serious miscarriage of
justice to the SSC officers who have served the nation and is unsustainable in law.
110. The second to sixth respondents in Annie Nagaraja's case had retired upon the
completion of fourteen years of service prior to the issuance of the policy letter dated
26 September 2008. Of these officers, three officers are from the Logistic cadre, one
officer is from the Education branch and one officer is from the ATC cadre. The Delhi
High Court had issued directions for the reinstatement of the second to sixth
respondents. These officers are: Commander R Prasanna, Commander Puja Chhabra,
Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna.
111. By virtue of the interim order of this Court dated 20 November 2015,
protection was extended to only those SSC women officers who were in service on 26
November 2008. This cut-off date was evidently adopted with reference to the policy
communication dated 26 September 2008.
112. We have considered the case of these women officers who were denied being
considered for the grant of PCs. The interim order of this Court was based on the policy
dated 26 September 2008 which envisaged the grant of PCs on a prospective basis to
officers “to be inducted” in the future. The prospective application of the policy dated
26 September 2008 has been held to be invalid. We cannot ignore the fact that it was
because of a restricted interim order passed by this Court that the above five
respondents were not reinstated during the pendency of the appeals. Had they been
reinstated, as directed by the High Court, they would have been in service in the
interregnum and would have been entitled to be considered for the grant of PCs
together with all other consequential benefits. These officers must be provided
restitution for the consequences suffered by them by the failure of the authorities to
have considered them for the grant of PC, and despite of the order of the Delhi High
Court which had directed their reinstatement. Where a situation which detrimentally
affects the rights of citizens arises as a result of an order of the Court, it is the duty of
the court to remedy the situation and to rectify the injustice to the extent that is
possible.
113. As we have noted, the right of women SSC officers to be considered for the
grant of PCs in the Logistics and Education cadres arose by virtue of the policy letter
dated 25 February 1999. The non-consideration of the case of these five officers for
the grant of PCs arose out of the actions of the Union Government in issuing a
restricted policy dated 26 September 2008 which has caused serious prejudice to
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these women officers. These officers were among the first inductee batches of women
SSC officers in the Navy and committed themselves to serving in the cause of the
nation.
114. The second to sixth respondents who had been released prior to 2008 have
been out of service for twelve years and more. Consistent with the exigencies of
service, it would not be appropriate to direct their reinstatement. However, following
the logic of the directions of this Court in Babita Puniya, we are of the view that a one-
time measure should be issued in exercise of the powers under Article 142 of the
Constitution. These officers who were released prior to 2008 after completing their
engagement should be deemed to have completed substantive pensionable service
and to have qualified for the grant of pension on the basis that they have fulfilled the
minimum qualifying service in a substantive capacity. In addition to the grant of
pensionary benefits, as a one-time measure, respondents two to six should be directed
to be paid a lump sum amount of Rs. 25 lakhs each as compensatory measure for lost
years of service and the serious injustice which has been meted out to them. We
clarify that our decision to award compensation is not a reflection of any malice on the
part of the Naval authorities but a measure of compensation for the women officers
who have been deprived of a valuable opportunity to render service and shoulder
responsibilities.
H Directions
115. We hold and direct that:
(i) The statutory bar on the engagement or enrolment of women in the Indian Navy
has been lifted to the extent envisaged in the notifications issued by the Union
Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the
1957 Act;
(ii) By and as a result of the policy decision of the Union Government in the Ministry
of Defence dated 25 February 1999, the terms and conditions of service of SSC
officers, including women in regard to the grant of PCs are governed by
Regulation 203, Chapter IX, Part III of the 1963 Regulations;
(iii) The stipulation in the policy letter dated 26 September 2008 making it
prospective and restricting its application to specified cadres/branches of the
Indian Navy shall not be enforced;
(iv) The provisions of the implementation guidelines dated 3 December 2008, to the
extent that they are made prospective and restricted to specified cadres are
quashed and set aside;
(v) All SSC officers in the Education, Law and Logistics cadres who are presently in
service shall be considered for the grant of PCs. The right to be considered for
the grant of PCs arises from the policy letter dated 25 February 1999 read with
Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women
officers in the batch of cases before the High Court and the AFT, who are
presently in service shall be considered for the grant of PCs on the basis of the
vacancy position as on the date of judgments of the Delhi High Court and the
AFT or as it presently stands, whichever is higher;
(vi) The period of service after which women SSC officers shall be entitled to submit
applications for the grant of PCs shall be the same as their male counterparts;
(vii) The applications of the serving officers for the grant of PCs shall be considered
on the basis of the norms contained in Regulation 203 namely: (i) availability of
vacancies in the stabilised cadre at the material time; (ii) determination of
suitability; and (iii) recommendation of the Chief of the Naval Staff. Their
empanelment shall be based on inter se merit evaluated on the ACRs of the
officers under consideration, subject to the availability of vacancies;
(viii) SSC officers who are found suitable for the grant of PC shall be entitled to all
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consequential benefits including arrears of pay, promotions and retiral benefits

as and when due;
(ix) Women SSC officers of the ATC cadre in Annie Nagaraja's case are not entitled
to consideration for the grant of PCs since neither men nor women SSC officers
are considered for the grant of PCs and there is no direct induction of men
officers to PCs. In exercise of the power conferred by Article 142 of the
Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre
in Annie Nagaraja's case shall be entitled to pensionary benefits. SSC officers in
the ATC cadre in Priya Khurana's case, being inducted in pursuance of the
specific representation contained in the advertisements pursuant to which they
were inducted, shall be considered for the grant of PCs in accordance with
directions (v) and (vi) above;
(x) All SSC women officers who were denied consideration for the grant of PCs on
the ground that they were inducted prior to the issuance of the letter dated 26
September 2008 and who are not presently in service shall be deemed, as a one-
time measure, to have completed substantive pensionable service. Their
pensionary benefits shall be computed and released on this basis. No arrears of
salary shall be payable for the period after release from service;
(xi) As a one-time measure, all SSC women officers who were before the High Court
and the AFT who are not granted PCs shall be deemed to have completed
substantive qualifying service for the grant of pension and shall be entitled to all
consequential benefits; and
(xii) Respondents two to six in the Civil Appeals arising out of Special Leave Petition
(C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja
Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander
E Prasanna shall be entitled, in addition to the grant of pensionary benefits, as a
one-time measure, to compensation quantified at Rs. 25 lakhs each.
116. We affirm the clarification which has been issued in sub-para (a) of paragraph
50 of the impugned judgment and order of the Delhi High Court.
117. Compliance with the above directions shall be effected within three months
from the date of this judgment. We accordingly dispose of the appeals.
118. There shall be no order as to costs. Pending application(s), if any, stand
disposed of.
———
1
“AFT”
2 “SSC”
3 “ATC”
4 “PC”
5 Writ Petition (C) No. 1597 of 2013, delivered on 12 March 2010
6 “MoD”
7 Writ Petition (C) No. 7336 of 2010
8 “OA”
9
OA No. 143 of 2016
10 “1963 Regulations”
11 “1957 Act”
12
We acknowledge the research into this aspect made by Ms. Liz Mathew, learned Counsel who has drawn it to
the attention of the Court during the course of the hearing.
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13 Published in the Gazette of India on 28 November 1998

14 “JAG”
15
“ACRs”
16 2020 (3) SCALE 712
17 Civil Appeal 3359 of 2011
18
Civil Appeal No. 10225-30 of 2016
19 Civil Appeal No 3359 of 2017
20
(2015) 3 SCC 624
21
(2012) 4 SCC 463
22
(1982) 3 SCC 140
23 (1983) 3 SCC 401
24
(2002) 9 SCC 73
25 (2010) 10 SCC 539
26Date of release are - Commander R Prasanna (R2 - 12 July 2006), Commander Puja Chhabra (R3 - 31 July
2006, Commander Saroj Kumari (R4 - 8 August 2007), Commander Sumita Balooni (R5 - 8 August 2008) and
Commander E Prasanna (11 August 2008).
27
IA No 71158 of 2017
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Union of India v. Balbir Singh

(BEFORE L. NAGESWARA RAO AND HEMANT GUPTA, JJ.)
Union of India and Others .…. Appellant(s);

v.
Brig. Balbir Singh (Retd.) .…. Respondent(s).
(@ D. No. 32143 of 2016)
L. NAGESWARA RAO, J.:— This appeal is directed against the judgment of the
Armed Forces Tribunal, Regional Bench, Kolkata by which the Appellants were directed
to consider the claim of the Respondent for payment of grade pay of Rs. 10,000/- or
more, at par with his civilian counterparts holding the post of Chief Engineer in the
Military Engineering Services (MES), with all consequential benefits.
2. The Respondent was commissioned in the Army on 16.12.1978 and he was
allotted to the Corps of Engineers in July, 2005. The Respondent was promoted to the
rank of Brigadier and was posted as Chief Engineer, Shillong Zone in the Military
Engineering Service. Aggrieved by the disparity with regard to grade pay of Brigadier
vis-à-vis civilian Chief Engineer in the MES, the Respondent filed O. A. No. 155 of
2012 before the Armed Forces Tribunal, Regional Bench, Jaipur and sought a direction
to the Appellants that he shall be entitled to the grade pay of Rs. 10,000/- at par with
his civilian counterparts. The Respondent further sought a direction to the Appellants
herein to pay the arrears consequent to re-fixation of grade pay at Rs. 10,000/- with
all benefits along with interest at 18 % on such arrears. The O.A. filed before the
Armed Forces Tribunal, Regional Bench, Jaipur was transferred to the Armed Forces
Tribunal, Regional Bench, Kolkata. By a judgment dated 13.08.2015, the Tribunal
allowed the O.A. filed by the Respondent and granted the relief sought by the
Respondent. The application filed by the Appellants seeking leave to appeal to this
Court was dismissed by the Tribunal.
3. The Tribunal held that the post of the Chief Engineer carries the same duties
whether they are performed by a military person or a civilian. The Tribunal was of the
opinion that in case the work and duties are similar then the source is immaterial, and
whosoever may be assigned the same duties shall be entitled for the same pay and
pay band. The Tribunal was of the opinion that the disparity in pay leads to the
reduction of status of an employee, and amounts to an adverse public perception of
their capability and their efficiency. By placing reliance on several judgments of this
Court on the principle of ‘equal pay for equal work’ including in Randhir Singh v. Union
of India1 , Bhagwan Dass v. State of Haryana2 and Jaspal v. State of Haryana3 , the
Tribunal held that the nature of appointment being tenure or temporary in nature does
not make a difference to the claim made by the Respondent. In the opinion of the
Tribunal, the payment of lesser salary to an employee or officer holding the same post
affects his fundamental rights. On the basis of the above findings, the Tribunal allowed
the O.A. filed by the Respondents.
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4. Ms. Madhavi Divan, learned Additional Solicitor General appearing for the
Appellants-Union of India argued that an Army Officer posted as Chief Engineer in the
MES cannot seek parity of grade pay with his civilian counterparts in the Indian
Defence Service of Engineers (IDSE) because members of the Armed Forces are a
distinct and distinguishable class. The learned Solicitor General submitted that the
Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules,
2016 (hereinafter referred to as “the IDSE Rules”) are not applicable to the
Respondent and he cannot seek the same grade pay as IDSE officers working as Chief
Engineers. By relying on the judgment of this Court in Confederation of Ex.
Servicemen Associations v. Union of India4 , the learned Additional Solicitor General
argued that the classification between defence personnel and other than defence
personnel is reasonable and valid. It was further contended on behalf of the Appellants
that the conditions of service of Commissioned Officers in the Army and civilian Chief
Engineers are entirely different. Commissioned Officers are liable to be posted
anywhere in the country including hard field areas such as Jammu and Kashmir and
the North East, unlike civilian engineers who do not have an all-India liability. It was
further submitted on behalf of the Appellants that the hierarchy of the ranks in the
Indian Army are completely different from that of the IDSE. The pay structure and
conditions of service are different and the Army Officers are entitled to Military Service
Pay of Rs. 15,000/- per month which is not available to their civilian counterparts.
That apart, several other facilities in material form such as canteen facilities, mess,
ration etc. are provided to the Army Officers, which disentitle them to seek parity with
civilian Chief Engineers.
5. Countering the submissions on behalf of the Appellants, Mr. Rajeev Manglik,
learned counsel for the Respondent submitted that the IDSE (Service Conditions)
Rules are applicable only in respect of the 15 posts of civilian Chief Engineers and that
the said Rules do not govern the recruitment and conditions of service of Army Officers
and the posts earmarked for them. He relied upon the recommendations of the 6th
Central Pay Commission by which the concept of grade pay and running pay band for
various posts were introduced. According to Mr. Manglik, seniority of a post shall
depend upon the grade pay drawn. It was further submitted that though the
appointment of Respondent in MES is on a tenure basis, he is not disentitled from
claiming parity of grade pay at par with his civilian counterparts. The learned counsel
for the Respondent made it clear that the benefit claimed by the Respondent is only
for the period during which he worked in the MES.
6. The contention of the Appellants is that the MES is governed by the provisions of
the Military Engineer Services (Army Personnel) Regulations, 1989, (hereinafter
referred to as MES Regulations) which are framed under Section 192 of the Army Act,
1950. Regulation 3 of the said Regulations provides for a number of posts and
proportion or percentage of the Army Officers belonging to the Corps of Engineers in
the MES for each post. In so far as the executive appointment of Chief Engineer is
concerned, the total number of posts is 37, out of which 50 % of the posts are filled by
Army Officers. In addition, 27 civilian and 9 military officers of the rank of the Chief
Engineer are on staff appointment.
7. The IDSE Rules regulate the method of recruitment and conditions of service of
persons appointed to the Indian Defence Service of Engineers in the Ministry of
Defence, Government of India. Rule 3 of the IDSE Rules deals with the constitution of
the Indian Defence Service of Engineers. The service in the Indian Defence Service of
Engineers, according to Rule 3, shall consist of posts specified in Schedule I. The post
of Chief Engineer, Senior Administrative Grade is shown against Serial No. 3 of
Schedule-I. The total number of posts of Chief Engineers are 45. The pay scale of Chief
Engineer, Senior Administrative Grade is Rs. 37400-67000 in pay band - 4. The grade
pay applicable to the post of Chief Engineer, Senior Administrative Grade is Rs.
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10,000/-. It is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall
not apply to Army Officers appointed on a tenure basis as they are governed by the
Army Act and the Rules framed thereunder. There is no dispute that the Respondent
was appointed on a tenure basis in accordance with the MES Regulations. Therefore,
there cannot be any doubt that the IDSE Rules are not applicable to the Respondent.
As such, we are unable to accept the submission made on behalf of the Respondent
that the IDSE Rules are applicable only to the 15 civilian posts and not to the others.
8. The Army Officers forming a separate class in comparison to the civilian
employees is a point which is no more res integra. In Confederation of Ex. Servicemen
Associations (supra) and Union of India v. Capt. Gurdev Singh5 this Court has clearly
laid down that the classification of military personnel as different class from non-
military personnel is permissible and valid. The submissions made on behalf of the
Appellant that the Army Officers serving in the MES as Chief Engineers continue to get
the same benefits and perks attached to the post of Brigadier has not been
controverted by the Respondent. Though there is no dispute that the principle of
‘equal pay for equal work’ is applicable even to tenure or temporary appointments, in
view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer,
Senior Administrative Grade, we are of the opinion that the Respondent is not entitled
to claim parity with members of the IDSE. The validity of the IDSE Rules has not been
challenged by the Respondent. We do not see any force in the submission of the
Respondent that grade pay should be made available to all persons working as Chief
Engineers irrespective of the source. We are in agreement with the Appellants that the
Respondent continues to be a Brigadier for all practical purposes and is entitled for the
benefits attached to the post of Brigadier, irrespective of the place and post in which
he works.
9. In view of the aforesaid, the judgment of the Armed Forces Tribunal is set aside
and the appeal is allowed.
———
1 (1982) 1 SCC 618
2 (1987) 4 SCC 634
3 (1987) 4 SCC 634
4 (2006) 8 SCC 399
5
© EBC Publishing Pvt.Ltd., Lucknow.

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2020 (BEFORE L. NAGESWARA RAO AND HEMANT GUPTA, JJ.)
Feb. 11 a
BRIGADIER NALIN KUMAR BHATIA Appellant;
Versus
2-Judge UNION OF INDIA AND OTHERS Respondents.
Bench Civil Appeals No. 5751 of 2017t with No. 5629
of 2017t-, decided on February 11, 2020
b
A. Administrative Law - Administrative Action - Administrative
or Executive Function - High Officials Holding/Exercising Discretionary
Powers - Power vested in authority must be discharged in accordance with
constitutional principles and statutory rules/regulations governing the field
regardless of rank/office held by officer(s) concerned - Furthermore,judicial
scrutiny of decision does not depend on rank/position of decision-maker -
C
Constitution of India, Art. 14 (Para 22)
B. Armed Forces - Promotion - Empanelment for - Power of Selection
Board - Matters to be considered - Scope of judicial review - Fact
that Selection Board consisted of senior officers - Irrelevance of - Non-
empanelment of appellant for promotion to rank of Major General
Whether proper in present case d
- Reiterated that Art. 16 of the Constitution only confers right to be
considered for promotion in accordance with extant rules or regulations
governing promotion and not right to promotion - In terms of promotion
policy dt. 4-1-2011 quantification system for promotion was introduced to
ensure objectivity and impartiality in promotion to higher ranks in Army and
accordingly primacy was given to CRs - Admittedly, appellant securing e
89.667 marks in first selection held in April 2015 and 90.469 marks in review
selection held in September 2015, and was only eligible officer in rank of
Brigadier belonging to 1981 batch who was considered for empanelment -
Appellant found not fit for promotion on evaluation of his suitability and
employability in rank of Major General wherefor only 5 marks earmarked -
Held, in absence of anything in promotion policy that officer can be ignored f
for empanelment only on basis of value judgment of Selection Board in spite
of his securing high marks in other criteria, non-empanelment of appellant on
basis of value judgment of Selection Board without reference to other marks
allotted to him was unjustified and would also render revised quantification
model for assessment meaningless - Furthermore, no presumption of exercise
of judicious discretion can be drawn only on basis that Selection Board g
consists of senior officers of Army - Power vested in authority must be
discharged in accordance with constitutional principles and statutory rules/
regulations governing the field - Judicial scrutiny of decision does not depend
t Arising from the Judgment and Order in OA No. 64 of2015 (Armed Forces Tribunal, Regional
Bench at Mumbai, dt. 1-10-2015) h
:j: Arising from the Judgment and Order in V.N. Chaturvedi v. Union of India, 2016 SCC OnLine
AFT 275 (Armed Forces Tribunal, OA No. 632 of 2015, dt. 13-1-2016)
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NALIN KUMAR BHATIA v. UNION OF INDIA (Nageswara Rao, J.) 79

on rank/position of decision-maker - Appellant entitled for reconsideration
for empanelment by Review Selection Board in accordance with promotion
a policy - Administrative Action - Administrative or Executive Function -
High Officials Holding/Exercising Discretionary Powers - Service Law -
Promotion - Right to consideration for promotion (Paras 17 to 25)
V.N. Chaturvedi v. Union of India, 2016 SCC OnLine AFT 275, reversed
C. Armed Forces - Promotion - Fair consideration of every officer
eligible for promotion to ensure objectivity and impartiality - Duties of
b Selection Board pertaining thereto - Stated - Procedure for assessment -
Explained (Paras 11 to 16)
Appeals allowed P-D/63730/CL
Dushyant Dave and R. Balasubramanian, Senior Advocates (Indra Sen Singh, Abhishek
Singh, Ms Kirtika Chhatwal, Sarvesh Singh, Naresh Kumar, Ms B. Sunita Rao, Kumar
C Shashank, Ms Neelam Chand, Ms Anil Katiyar, Arvind Kr. Sharma and Mukesh Kr.
Maroria, Advocates) for the appearing parties.
1. 2016 SCC OnLine AFT 275, V.N. Chaturvedi v. Union of India (reversed) 85e-f

d L. NAGESWARA RAo, J.-Whether the non-empanelment of the appellant
for promotion to the rank of Major General was contrary to the promotion
policy is the question that arises for consideration in the above appeal.
2. The appellant was commissioned in the Mechanised Infantry of Indian
Army on 13-6-1981 and was subsequently transferred to the Corps of
Intelligence in May 1991. He was promoted as a Brigadier in September 2008.
e His empanelment for promotion to the rank of Major General was placed before
the Members of Selection Board on 24-4-2015. On 31-7-2015, he was declared
as having not been empanelled for promotion to the rank of Major General.
Being aggrieved by his non-empanelment, he filed Original Application No. 64
of 2015 before the Armed Forces Tribunal, Regional Bench, Mumbai seeking
the following relief:
f "(a) Setting aside of the unpublished/unnotified policy of the
respondents, if any, whereby the service profile/quantified merit of a
candidate for promotion is required to be compared with that of the
previous/earlier batch;
(b) Direction commanding the respondents to review their decision
with regard to non-empanelment of the applicant for the said promotion
g and to empanel him for the promotion in accordance with the extant policy
of batch wise consideration;
(c) Direction requiring the respondents to ignore and not to act upon,
while so reviewing the applicant's case, any adverse/advisory remarks or
any non-recommendation for promotion endorsed in any of his CRs, which
have remained uncommunicated to him and forming ground to deny him
h the promotion;
* * *
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(e) Setting aside of any adverse/advisory remarks or any non-
recommendation for promotion endorsed in any of his CRs, which have
remained uncommunicated to the applicant; a
(J) Setting aside of Order No. A/46001/584/MS (X) dated 28-11-2014
retiring the applicant from service w.e.f. 30-9-2015 (A/N);
(g) Direction requiring the respondents not to hold the Number 1
Selection Board in respect of Intelligence Corps 1982 Batch tentatively
scheduled to be held in September 2015."
b
3. It was contended on his behalf before the Tribunal that the appellant
has an excellent record of service. Being the only eligible candidate for
empanelment for promotion to the rank of Major General, he ought not to have
been ignored. The appellant complained of arbitrary action on the part of the
respondents in comparing his service profile with persons belonging to the 1980
batch. It is relevant to mention that the appellant belongs to the 1981 batch.
C
According to the appellant, his non-empanelment for promotion to the rank of
Major General was a result of the arbitrary exercise of power on the part of
the respondents. The appellant relied upon the guidelines issued pursuant to
a policy decision dated 6-5-1997 which were not followed while considering
him for empanelment.
4. On behalf of the respondents it was contended before the Tribunal d
that empanelment of officers for promotion to higher ranks is governed
by detailed instructions issued by the Army Headquarters in the Policy
dated 6-5-1997. It was submitted before the Tribunal that quantified system
was introduced w.e.f. 1-1-2009 to bring greater transparency and objectivity
in the matter of selection for promotions. The respondents submitted before
the Tribunal that the Selection Board takes into account several factors such e
as War/Operational Reports, Course Reports, Annual Confidential Reports,
performance in Command and Staff appointments, honours and awards and
disciplinary background. The respondents further submitted that selection is
based upon the overall reckonable profile of an officer in comparative merit
within the batch as evaluated by the Selection Board.
5. The Tribunal dismissed the OA filed by the appellant by holding that f
there is no illegality or patent material irregularity in the constitution of the
Selection Board or the procedure followed by the Selection Board. The Tribunal
was convinced that the overall reckonable profile of the appellant was taken into
account by the Selection Board and the decision of the Selection Board did not
warrant interference. The contention of the appellant that his non-empanelment
was vitiated by a malice in law, was not accepted by the Tribunal. The Tribunal g
drew a distinction between the Armed Forces personnel and persons holding
civil posts under the State. The Tribunal observed that the decision of the
Selection Board cannot be substituted by a court of law.
6. This appeal has been filed challenging the judgment of the Tribunal by
which no relief was granted to the appellant.
h
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7. We have heard Mr Dushyant Dave, learned Senior Counsel and Indra
Sen Singh, advocate for the appellants and Mr R. Balasubramanian, learned
a Senior Counsel for the respondents.
8. It was urged on behalf of the appellant that his non-empanelment to
the rank of Major General is arbitrary and violative of the instructions issued
in terms of the promotion policy of the respondents and hence contrary to
Articles 14 and 16 of the Constitution of India. Mr Dave submitted that
the appellant is entitled for empanelment to the rank of Major General in
b accordance with the promotion policy. He took us through the promotion policy
of the respondents from 1987 onwards to contend that the respondents have
breached the procedure prescribed in the promotion policy. The action of the
respondents in not complying with the policy while considering the appellant
for empanelment is arbitrary and vitiated by malice in law.
9. On the other hand, it was contended on behalf of the respondents that
C the empanelment of the appellant to the rank of Major General was considered
by the First Board and later by a Review Board before he attained the age of
superannuation on 30-9-2015 after following the procedure prescribed in the
instructions issued by the Army Headquarters. The Selection Board consisting
of senior officers considered the overall reckonable profile of the appellant
and found that the appellant was not fit to be empanelled. The respondents
d submitted that the appellant was the only Brigadier from the Army Intelligence
Corps who was considered for empanelment in the year 2015 and he was not
compared to the officers of the earlier batch as apprehended by the appellant.
The respondents submitted that no right to promotion inheres in any person,
and that the only right that is conferred by Articles 14 and 16 of the Constitution
of India is the right to be considered. As the appellant was not empanelled only
e after a proper consideration in accordance with the instructions of the Army
Headquarters, Courts cannot substitute their opinion by interfering in the matter
of selection.
10. The only question to be considered is whether the appellant was
considered for empanelment for promotion to the rank of Major General in a
fair manner. The selection system for promotion to the higher ranks in the Army
f was initially governed by a letter dated 6-5-1987 of the Army Headquarters.
It is mentioned in the said instructions that the number of vacancies in the
higher ranks decreases in the face of the pyramidical rank structure. It becomes
necessary that only those officers whose record of service merits promotion,
within a particular batch, are selected to fill up the vacancies available in higher
ranks.
g
11. All promotions above the rank of Major are done through the process
of selection and the aim of the selection system is to serve the best interest of
the service by selecting only those officers who are considered competent to
shoulder the responsibilities of high ranks. Fair consideration of every officer
who is eligible for promotion to ensure objectivity and impartiality was one
of the aims of the selection system. Composition of the Selection Boards is
h
dealt with in para 6 of the above instructions. No. 1 Selection Board pertains
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to promotion from Brigadier to Major General. The Selection Boards are duty-
bound in accordance with the instructions to assess all eligible officers of a
batch who reckon seniority during one calendar year, to screen officers of a
earlier batch who have been placed on reviews for promotion to the next rank,
to assess the suitability of officers who have been approved earlier to the next
higher rank whilst in low medical classification and to ensure selection through
objectivity, impartiality and in the best interest of the service in accordance
with the guidelines laid down by the Chief of the Army Staff. According to
the guidelines of assessment in the above Army instructions, selection is to be b
based on the overall profile of the officers with special stress on the performance
in criteria command appointment. Due consideration should be given to officers
who show consistency in overall performance and they are given preference
over late starters.
12. Another criterion taken into account is consistent recommendations
for promotion to the next rank and credit is to be given to those officers C
who have earned positive recommendations for promotion in their very first
report in command. According to the guidelines of assessment the officer
should have potential for being employed or being rotated in Staff, instructional
or ERE appointments. Character qualities, disciplinary background and
decorations form an important input to the overall profile of the officer and
due consideration should be given while assessing border line cases. There d
is a requirement that the officers have undergone PSC/PTSC/postgraduate
courses and/or to have worked well in Staff/ERE/Instructional appointments.
A cautionary note given by the Chief of the Army Staff with respect to
the assessment of the officers is that such assessment should be as per the
comparative merit of the overall profile of officers within their own batch and
grading by the Board is to be undertaken only from the material placed before e
it and not from any personal knowledge. The Members of the Selection Board
were guided to invariably look for the overall performance of the officers,
employability of the officer in the next higher ranks, important character
qualities of the officer particularly drive and determination, decisiveness,
initiative, dependability, integrity and loyalty while making an assessment.
The other aspects which have to be taken into account by the Selection Board f
are management of resources and technical equipment and the professional
knowledge and conceptual ability of an officer.
13. The proceedings of the Selection Committee are sent for approval
to the Chief of the Army Staff and for final approval of the Ministry of
Defence. The Ministry of Defence, in accordance with the instructions of the
Army Headquarters has to scrutinise each case independently. The confidential g
reports' dossiers of the officers considered for empanelment are made available
to the Ministry of Defence for their perusal.
14. Realising the need for greater objectivity and to enable discernment of
the most deserving candidates for higher ranks, it was felt that a quantification
system would be suitable in the matter of selection for empanelment to the
higher ranks. On 31-12-2008, the quantification system was introduced by h
which it was decided that 95 per cent marks will be given for quantified
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parameters to include confidential reports (CRs), courses and honours and
awards. 5 per cent marks will be kept for value judgment by the Selection
a Board members for aspects that cannot be quantified out of a grand total
of 100 marks. 91 marks are earmarked for CRs, 4 marks for courses and
honours and awards. 5 marks are assigned for value judgment by the Selection
Board. Primacy is given to the CRs by allocation of maximum marks of 91
out of a grand total of 100 marks. 5 per cent marks which have been set
aside for value judgment by the Selection Board shall be allotted by following
b the parameters of performance, potential disciplinary awards/administrative
actions, recommendations for promotion and degree of difficulty.
15. The revised policy for conduct of the Selection Boards of quantification
system was issued on 4-1-2011. Primacy of the CRs vis-a-vis other criteria like
performance of courses, honours and awards has been maintained. All CRs in
reckonable profile were directed to be quantified. "Look-two-down" principle
C of taking into consideration of CRs earned in the present rank and previous
rank, will continue for No. 3 Selection Board, No. 2 Selection Board and No. 1
Selection Board as before.
16. There was also a change in allocation marks. Apart from 2 marks
allotted for the courses and 2 for honours and awards (gallantry), 19 marks
were allotted for performance as Colonel, 8 for Staff/Instr./others (Cols), 46
d for Brigadier, 18 for Staff/Instr./others (Brigadier). The above allocation of
marks would be included in the quantifiable total of 95, with 5 marks being
allotted to value judgment. The guidelines issued for allotment of 5 marks
earmarked for value judgment are on the basis of performance, potential,
special achievements, honours and awards and recommendation for promotion.
Para 19 of the letter dated 4-1-2011 postulates a review of the revised
e quantified model for Selection Boards after a period of five years. The policy
dated 4-1-2011 superseded all earlier policies on the conduct by selection
boards of quantification system.
17. The appellant was considered for empanelment by the First Selection
Board on 24-4-2015 in accordance with the guidelines laid down in the
promotion policy dated 4-1-2011. The appellant secured a total of 89.667
f per cent marks. The record pertaining to the First Selection Board, held on
24-4-2015 was placed before us. The Selection Board did not recommend
the appellant for empanelment for promotion to the rank of Major General
in Intelligence Corps. After examining the complete profile of the officer,
the Selection Board was of the opinion that the appellant did not have the
requisite potential and was not fit for promotion to the rank of Major General.
g The appellant was considered again for empanelment in September 2015 in
which he secured 90.469 marks out of 100 but was not recommended for
empanelment.
18. It is clear from the record that the appellant was the only officer of 1981
batch who was considered for empanelment for promotion to the rank of Major
General on 24-4-2015. The apprehension of the appellant that he was compared
h
with the merit of the earlier batch is unfounded.
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19. Article 16 of the Constitution of India confers a right to be considered
for promotion. There is no right for promotion, but the right that is conferred by
Article 16 is to be considered for promotion fairly and in accordance with the a
extant rules or regulations governing promotions. Violation of rules/regulations
or the policy governing promotions would entail in violation of Article 16 of
the Constitution of India. The contention of the appellant that he deserved to
be empanelled on the basis of the promotion policy needs to be considered.
The quantification system for promotion was introduced to ensure objectivity
and impartiality in the matter of promotions to higher ranks in the Army. It b
is clear from the policy that primacy is given to the CRs. Admittedly, the
appellant secured 89.667 marks in the first selection held in April 2015 and
90.469 marks in the review selection held in September 2015. He was the
only eligible officer in the rank of Brigadier in Intelligence Corps belonging
to the 1981 batch who was considered for empanelment to the rank of Major
General. Responding to a query, Mr Balasubramanian, learned Senior Counsel c
submitted that the appellant was found not fit for promotion on a fair evaluation
of his suitability and employability in the rank of Major General. Though,
only 5 marks have been earmarked for value judgment by the Selection Board,
Mr B alasubramanian submitted that there is nothing wrong in the decision of
the Selection Board in not recommending the appellant for empanelment to the
rank of Major General after examining the complete reckonable profile of the d
officer. He justified the recommendation of the Selection Board by arguing that
the appellant was correctly refused empanelment on the ground that he lacked
the requisite potential for promotion.
20. The earlier policy followed for promotion to higher ranks in the Army
from 1987 was revised in the year 2008 to introduce a quantification system
to be followed by the Selection Boards. The policy governing promotions to e
higher ranks in the Army was issued on 4-1-2011 in supersession of the earlier
policy of the quantification system. Primacy is given to the CRs as is clearly
mentioned in the policy. There is nothing mentioned in the policy that an officer
can be ignored for empanelment only on the basis of the value judgment in spite
of his securing high marks on the basis of the other criteria. We are unable to
agree with Mr R. Balasubramanian that the Selection Board can recommend f
non-empanelment of an officer on the basis of their value judgment without
reference to the other marks that are allotted to him. If the submission of
Mr Balasubramanian is accepted, the reason for the change in the method of
evaluation of officers by the Selection Board to a quantification model would
be meaningless. In the instant case, the appellant was the only eligible Brigadier
of his batch for empanelment to the rank of Major General with a meritorious g
record of service. He could not have been deprived of his empanelment only
on the basis of value judgment of the Selection Board.
21. Another submission of Mr Balasubramanian is that the Selection Board
consists of senior officers of the Army and deference has to be shown to the
discretion exercised by them in the matter of promotion. We disagree. Lord
Acton said: "I cannot accept your canon that we are to judge Pope and King h
unlike other men, with a favourable presumption that they did no wrong. If
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there is any presumption it is the other way against holders of power, increasing
as the power increases." 1
a 22. There is no presumption that a decision taken by persons occupying
high posts is valid. All power vested in the authorities has to be discharged
in accordance with the principles laid down by the Constitution and the other
statutes or rules/regulations governing the field. The judicial scrutiny of a
decision does not depend on the rank or position held by the decision-maker.
The Court is concerned with the legality and validity of the decision and the
b rank of the decision-maker does not make any difference.
23. Judgments of this Court have been cited to contend that officers
in the Army are different from the civil servants. The submission made on
behalf of the respondent is that the law laid down in case of Government
servants occupying civil posts cannot be applied to the Armed Forces personnel.
We are not relying upon any judgment in favour of public servants in
c Government service for adjudicating the dispute in this case. The only point
that is considered by us is regarding the non-empanelment of the appellant
being in accordance with the promotion policy of the respondent. The non-
empanelment of the appellant for promotion as Major General is contrary to
the promotion policy. He is entitled for reconsideration for empanelment by a
Review Selection Board strictly in accordance with the promotion policy by
d keeping in mind the observations in this judgment. The respondents are directed
to complete this exercise within a period of six months from today.
24. For the aforementioned reasons, the judgment of the Tribunal is set
aside and the appeal is allowed.
e 25. The appellant was not empanelled for promotion to the rank of Major
General in the year 2015, aggrieved by which he approached the Armed Forces
Tribunal, Principal Bench, New Delhi. The Tribunal dismissed 2 the original
application filed by the appellant. The facts of this appeal are similar to the
facts in Civil Appeal No. 5751 of 2017. The appellant was the only eligible
Brigadier to be considered for promotion for empanelment for the post of Major
f General in the year 2015. In spite of his securing 87 .973 marks out of a grand
total of 100 marks, he was deprived of empanelment for promotion to the rank
of Major General on the ground that he was not fit for promotion on the basis
of value judgment of the Selection Board. This appeal is allowed in terms of
thejudgment 3 in Civil Appeal No. 5751 of 2017.
h l Letter to Mandell (later, Bishop) Creighton, 5-4-1887 Historical Essays and Studies, 1907.
2 V.N. Chaturvedi v. Union of India, 2016 SCC OnLine AFT 275
3 Set out in paras 1 to 24, above.
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Writ Petition No. 318 of 2018
Trishna Taralkar v. Director General
2020 SCC OnLine Bom 154
In the High Court of Bombay at Goa

(BEFORE M.S. SONAK AND M.S. JAWALKAR , JJ.)
Surg. Lt. Cdr. Trishna Taralkar .…. Petitioners;

v.
Director General, Married Accommodation Project (MAP) and
Others .…. Respondents.
Writ Petition No. 318 of 2018
With
Stamp Number (Appln.) No. 2801 of 2019
Mr. Virendra Mohan with Mr. Ravi Anand, Advocates for the Petitioners.
Mr. Mahesh Amonkar, Central Government Standing Counsel for Respondents No. 1
and 2.
Mr. Raviraj Chodankar, Central Govt. Standing Counsel for Respondents No. 3 and
4.
Mr. D.J. Pangam, Advocate General with Ms. Neha Kholkar, Addl. Govt. Advocate for
Respondents No. 5 & 6.
Mr. D. Lawande, with Mr. P. Dangui, Advocates for Respondents No. 7 & 9.
Mr. P. Kamat, Advocate for Respondent No. 10
Mr. Aalok Tiwari, Head (Contracts), NKG Infrastructure Ltd.
P.C.
1. Heard Mr. Virendra Mohan, who appears along with Mr. Ravi Anand for the
Petitioners, Mr. Mahesh Amonkar, learned Central Govt. Standing Counsel for
Respondents No. 1 and 2, Mr. R. Chodankar, Standing Counsel for Respondents No. 3
and 4, Mr. D. Pangam, learned Advocate General with Ms. Neha Kholkar, learned
Additional Govt. Advocate for Respondents No. 5 & 6, Mr. D. Lawande, with Mr. P.
Dangui, learned Counsel for Respondents No. 7 and 9 and Mr. P. Kamat for
Respondent No. 10.
2. This Petition has been instituted by the parents of Master Atharva Taralkar, a 4
and half years old child who met his untimely demise in most unfortunate
circumstances.
3. The Petitioners are the members of the Defence Force, who, at the relevant time
were posted at INHS Jeevanti, Dabolim, Goa. They were allotted Flat No. 6B, 6th Floor,
F-Block, NOFRA-F, Dabolim, Goa.
4. On 6th April, 2017, at around 12.50 p.m., whilst Master Atharva Taralkar was
playing near the western window of the said flat, a grill installed on the said window
dislodged and fell out, causing Atharva to fall from the 6th Floor of the building to the
ground. Master Atharva unfortunately succumbed to the injuries caused by fall.
5. The Petitioners, consistent with the culture of the Defence Forces, donated their
son's cornea to science. The Petitioners, however, were aggrieved by the fact that no
action was forthcoming from the Respondents against the persons responsible for this
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incident. The Petitioners addressed several representations to the Authorities. Finally,
the Petitioners instituted the present Petition, seeking following reliefs:
“(A) directing the Respondents No. 1 to 4 to pay to the Petitioners an exemplary
compensation in the amount of Rs. 2,00,00,000/- (Rupees two crore only) under
Article 21 of the Constitution of India towards the loss of life of a child suffered
by the Petitioners on account of gross negligence of the said Respondents.
(B) directing the Respondent No. 3 to disclose the Section on Attainability of Blame
in the report of the Board of Inquiry.
(C) directing the Respondent No. 3 to provide full cooperation and assistance to the
Vasco Police in their investigation in the matter.
(D) directing the Respondent No. 5 to expedite its investigation and to file charge-
sheet in accordance with law, at the earliest, against all persons responsible for
the incident.
(E) directing the Respondents No. 3 and 4 to expeditiously take disciplinary action
against all the erring officers pointed out in the Report of the Board of Inquiry
dated 31/05/2017.
(F) directing the Respondents No. 1 to 4 to forthwith implement the
recommendations given by the Board of Inquiry in its report and to take all
safety measures and to incorporate sufficient safeguards in their tender
conditions to ensure that such a tragedy does not recur.
(G) granting costs.”
6. From time to time, several orders were made in this Petition. Today, the learned
Counsel for the Petitioners and Respondents No. 7 and 9 hand in the minutes, which
are taken on record and marked as “X” for the purpose of identification.
7. The Minutes, read as follows:
“A. In order to provide some solace and also on humanitarian ground to the
Petitioners whose son Mast. Atharva Taralkar (age (then) 4 and half years)
unfortunately died in a tragic accident on 06.04.17, being the mainstay of the
writ petition for which the Respondent nos. 7 & 9 herein have paid compensation
of Rupees 1.35 crores, drawn vide demand draft bearing no 016888 and dated
22/01/2020 in favour of Trishna Narender Taralkar (Petitioner no. 1 herein)
drawn on ICICI Bank, Patto Panaji, Branch-Goa after obtaining Petitioners
approval and assurance that they shall not seek any further compensation and
Petitioners have accepted this amount as full and final amount towards the
compensation and will have no further claims whatsoever against the
Respondents.
B. This payment made by the Respondent Nos. 7 & 9 herein to the Petitioners is
without prejudice to the rights and contentions of the Respondent nos. 7 & 9
herein and further it shall not be construed to be admission of any of the
Petitioners case raised in the present Writ Petition or otherwise Tor for that
matter admission of any culpability on part of the Respondent Nos. 7 & 9 herein.”
8. The learned Counsel for the Petitioners, on the basis of the instructions from the
Petitioners, who are today present in the Court, as well as the learned Counsel for
Respondents No. 7 and 9, on the basis of the instructions from the authorised
signatory on behalf of Respondents No. 7 and 9 who is also present in the Court,
submits that prayer clause (A) of this Petition stands worked out in terms of the
aforesaid minutes and, accordingly, the relief in terms of payer clause (A) of the
Petition be made absolute in terms of the Minutes.
9. According to us, the minutes can be accepted and the relief in terms of prayer
clause (A) can be granted to the extent indicated in the minutes. We order
accordingly.
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10. In so far as prayer clauses (B) and (C) of the Petition are concerned, the the
learned Counsel for the Petitioners accepts that the same need not be pursued in the
light of the orders earlier made by us and further, in the light of the fact that
Respondent No. 3 has offered full co-operation and assistance to the Vasco Police in
the investigation of the matter. Accordingly, there is no necessity to make any further
orders in relation to prayer clauses (B) and (C) of the Petition, as well.
11. In so far as prayer clause (D) is concerned, Respondent No. 5 i.e. Shri. Nilesh
Rane, Police Inspector, Vasco Police Station has filed an affidavit before us, in which,
he has stated that he has already filed Charge-sheet dated 18/8/2019 being Charge-
sheet No. 88/2019 against all the accused persons, except Respondent No. 2. In the
affidavit, he has stated that once sanction is accorded by the Appropriate Authority,
only then he will be in a position to file the charge-sheet against Respondent No. 2.
Correspondence relating to sanction has been placed on record, so also a copy of the
Charge-sheet No. 88/2019 has been placed on record. According to us, since the
charge-sheet is already filed, the relief in terms of prayer clause (D) of the Petition
also stands substantially granted.
12. On the issue of sanction, which, according to Respondent No. 5, was required to
be granted by the Central Government, we made several orders, particularly, because
no decision was forthcoming on the issue. Finally, we were informed that the Ministry
of Defence has taken a decision not to grant sanction to prosecute Respondent No. 2
before Courts under the Code of Criminal Procedure, but instead to proceed against
Respondent No. 2 under the Army Act, 1950. In this regard, reference was made to
Section 125 of the Army Act which, inter alia, provides that when a criminal court and
a court-martial have each jurisdiction in respect of an offence, it shall be in the
discretion of the officer commanding the army, army corps, division or independent
brigade in which the accused person is serving or such other officer as may be
prescribed to decide before which court the proceedings shall be instituted, and, if that
officer decides that they should be instituted before a court-martial, to direct that the
accused person shall be detained in military custody.
13. Now that Respondent No. 2 is to be proceeded against under the provisions of
the Army Act, 1950, we feel that the relief in terms of prayer clause (D) of this Petition
stands substantially worked out.
14. Mr. Amonkar, learned Standing Counsel, on behalf of the Central Government,
submitted that disciplinary proceedings have already commenced against the erring
officers. He pointed out that tentative charge-sheet has already been placed and three
hearings have already taken placed in the matter. He assures this Court that these
proceedings will be concluded expeditiously.
15. Mr. Mohan, in the context of proceedings for court-martial, as also the
disciplinary proceedings, expressed some apprehensions as regards the speed at
which they are proceeding. In particular, in he pointed out to the provisions of Section
122 of the Army Act, 1950 to submit that if the proceedings are not expedited, it is
possible that the defences of limitation are raised by the erring officers.
16. According to us, the proceedings have to be expedited in a matter of this
nature, so that the justice is done to all the parties involved. We say so because a
situation should not arise where for want of expedition, unnecessary defences of
limitation, etc. are made available and there is no proper investigation into the matter.
We, therefore, direct that the proceedings should be conducted with utmost dispatch
and expedition. Mr. Amonkar assures us that the proceedings will be conducted with
utmost dispatch and expedition, no doubt after safeguarding the interest of all the
parties. This, according to us, substantially takes care of the relief in terms of prayer
clause (E) of this Petition.
17. Mr. Mohan, on instructions, states that the relief in terms of prayer clause (F) of
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this Petition is not being pressed.
18. Accordingly, we dispose of this Petition by accepting the minutes, as aforesaid,
as also by passing the various directions as aforesaid. In the facts of the present case,
there shall be no order as to costs.
19. All concerned to act on the basis of an authenticated copy of this order.
20. The Civil Application Stamp Number (Appln.) No. 2801/2019 no longer survives
and the same is also disposed of.
———
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2020 SCC OnLine Del 915
In the High Court of Delhi at New Delhi

(BEFORE RAJIV SAHAI ENDLAW AND ASHA MENON, JJ.)
Lt. Col. P.K. Choudhary … Petitioner;

Versus
W.P. (C) No. 4181/2020
Decided on August 5, 2020
Administrative Law — Natural Justice — Exclusion or inapplicability of Rules of Natural
Justice — Principles of natural justice vis-à-vis national security — Duty of courts — Held,
when a question of national security is involved, Court may not be proper forum to weigh
matter and that as Executive is solely responsible for national security, no other organ could
judge so well such matters and documents in relation to these matters fall in a class which
per se requires protection — Army Rules, 1954, Rr. 19, 20 and 21 — Army Act, 1950, S. 21
— Constitution of India — Arts. 33 and 226
Held :
Art. 19(2) of the Constitution of India also carves out exception in matters relating to interests of
sovereignty and integrity of India and security of the State.
— National security is not a question of law but a matter of policy and it is not for Court to decide
whether something is in interest of State or not — it should be left to Executive and that decision on,
whether requirements of national security outweigh duty of fairness in any particular case is for
government and not for Court
— Impugned policy is a restricted document — Other means of communication to be still available
to petitioner and ban being with respect to certain social networking websites only — Petitioner
himself to have been posting tweets which according to ASG are in violation of policy earlier in force
qua use of social media
— Power under Art. 226 of Constitution of India is discretionary and will be exercised only in
furtherance of interest of justice and not merely on making out of a legal point; Courts have to
weigh public interest vis-à-vis private interest while exercising powers under Art. 226 of Constitution
of India.
Held :
Even when some defect is found in decision making process, court must exercise its discretionary
powers under Art. 226 with great caution and only in furtherance of a public interest and not merely
on making out of a legal point; Court should always keep larger public interest in mind in order to
decide whether its intervention is called for or not; only when it comes to a conclusion that
overwhelming public interest requires interference, Court should interfere
Held :
Courts are indeed conscious of limitations viz. issues of national security and policy, imposed on
judicial evolution of doctrine in matters relating to armed forces — Though there is a general
presumption against ousting jurisdiction of Courts, there are however certain areas of governmental
activity, national security being paradigm, which Courts regard themselves as incompetent to
investigate, beyond an initial decision as to whether government's claim is bona fide
Impugned Policy to the extent that it bans the petitioner and other members of the Indian Army
from using social networking platforms like Facebook and Instagram and to the extent it orders the
petitioner and other members of the Indian Army to delete their accounts from social networking
platforms like Facebook and Instagram. Impugned policy is, (i) an outcome of constantly evolving
intelligence of security threats and assessment of security safeguards needed; (ii) to plug the gaps
and meet the ever threatening electronic and cyber infrastructure; (iii) an outcome of the paradigm
shift in the intelligence activities of hostile nations; increased popularity of various social media
platforms; the vulnerability of unsuspecting military personnel; (iv) necessitated by the directives,
instructions and policies issued from time to time, advising the military personnel to regulate the use
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of social media websites, failing to meet the threat; (v) virtual impossibility to keep track of lacs of
online profiles or to identify the fictitious enemy profiles; (vi) on assessment of the different modes
adopted to honey trap, not necessarily in the conventional sense; and, (vii) an outcome of the
assessment of vulnerability of different social media platforms. Impugned policy has not been issued
impulsively but is preceded by prolonged study of different aspects and data collated in this regard
with particular instances and deliberations at the highest level thereon and has been issued after
considering similar bans imposed by other countries, on armed personnel.
Key issues involved before the High Court:
Whether intervention of High Court in the impugned policy is necessary?
Held :
That (i) exercise of jurisdiction under Article 226 is purely discretionary; (ii) seldom can a
petitioner ask for it as of right; (iii) writs are not issued as a matter of course; (iv) while deciding a
writ petition, the Court can see which way the justice lies; (v) the Court is not obliged or bound to
interfere in writ jurisdiction in every case where the order of the authorities may be without
jurisdiction; (vi) in an equitable jurisdiction, it is the duty of the Court to preserve the public good —
the writ court cannot protect the wrong; (vii) a person who seeks equity must do equity; (viii) no
one can be allowed to take advantage of own wrong; (ix) a person who has committed a wrong
may not be heard by a writ court in support of the plea that the authority which is taking action
against him has no power or jurisdiction and such power vests in another statutory authority; and,
(x) the law breakers can be refused equitable relief assuming they may have some case on merits —
the writ Court can deny hearing to such law breakers.
[Para 15]
Pradeep Oil Corporation v. Union of India, AIR 2012 Del 56; Master Marine Services Pvt. Ltd. v.
Metcalfe and Hodgkinson Pvt. Ltd., (2005) 6 SCC 138; Anil Kumar Khurana v. Municipal
Corporation of Delhi, 1996 SCC OnLine Del 156 ……………Followed
Held :
Writ petitions seeking disclosure of information relating to purported safety violations and defects
in various nuclear installations and power plants across the country. It was held that (i) the
jurisdiction of the Courts in such matter is very limited; (ii) the Court will not normally exercise its
power of judicial review in such matters unless it is found that formation of belief by the statutory
authority suffers from mala fide, dishonesty or corrupt practices; (iii) the order can be set aside if it
is held to be beyond the limits for which the power has been conferred upon the authorities by the
legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all
for passing it or if the grounds are such that no one can reasonably arrive at the opinion or
satisfaction required thereunder; no such case had been made out in the facts of that case; (iv) the
State must have the prerogative of preventing evidence being given on matters that would be
contrary to public interest; and, (v) when any claim of privilege is made by the State in respect of
any document, the question whether the documents belong to the privileged class, is first to be
decided by the Court; the Court cannot hold an enquiry into the possible injury to public interest
which may result from the disclosure of the document in question; the claim of immunity and
privilege has to be based on public interest.
[Para 18]
People's Union for Civil Liberties v. Union of India, (2004) 2 SCC 476……Considered
Held :
That (a) the present trend of judicial opinion is to restrict the doctrine of immunity from judicial
review to those classes of cases which relate to deployment of troops, entering into international
treaty etc.; the distinctive features of some of these recent cases signify the willingness of the Court
to assert their power to scrutinize the factual basis upon which discretionary powers have been
exercised; (b) the administrative action is subject to control by judicial review on the grounds of
illegality, irrationality and procedural impropriety; (c) if the power has been exercised on a non-
consideration or non-application of mind to relevant factors, the exercise of power will be regarded
as manifestly erroneous; (d) if a power is exercised on the basis of facts which do not exist and
which are patently erroneous, such exercise of power will stand vitiated; and, (e) judicial review can
be limited in the case of national security.
[Para 18]
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State of N.C.T. of Delhi v. Sanjeev, (2005) 5 SCC 181…………Followed
Held :
That (i) the decision on whether the requirements of national security outweigh the duty of
fairness on a particular case is for the government and not for the Courts; the government alone
have access to the necessary information and in any event the judicial process is unsuitable for
reaching decisions on national security; (ii) those who are responsible for the national security must
be the sole judges of what the national security requires and it is undesirable that such matter should
be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what
is in the interest of national security is not a question of law — it is a matter of policy and it is not for
the Court to decide whether something is in interest of State or not; and, (iv) once the State is of
the stand that the issue involves national security, the Court shall not disclose the reasons to the
affected party.
[Para 18]
Ex-Armymen's Protection Services Pvt. Ltd. v. Union of India, (2014) 5 SCC 409; Digi Cable
Network (India) Pvt. Ltd. v. Union of India, (2019) 4 SCC 451……….Considered
Held :
That (i) the High Court had evidently transgressed the wise and self-imposed restraint on the
power of judicial review; matters of security ought to be determined by the authorities of the
government vested with the duty and obligation to do so; (ii) gathering of intelligence information,
formulation of policies of security, deciding on steps to be taken to meet threats originating both
internally and externally, are matters on which Courts singularly lack expertise; (iii) it was not for the
Court, in the exercise of its power of judicial review, to suggest a policy which it considered fit and
the formulation of suggestions by the High Court for framing a National Security Policy travelled far
beyond the legitimate domain of judicial review; (iv) formulation of such a policy is based on
information and inputs which are not available to the Court; and, (v) the Court is not an expert in
such matters.
[Para 19]
Union of India v. Rajasthan High Court, (2017) 2 SCC 599………Considered
Held :
In the context of disclosure under the Right to Information Act, 2005, the proceedings of the
Collegium System for appointment and elevation of Judges to the Supreme Court and High Court,
the Supreme Court held (i) if the inner working of the government machinery is needlessly exposed
to public, it would hamper frank and forthright views, thoughts or options on sensitive matters; (ii)
therefore the level of deliberations of that class or category of documents get protection, in
particular, on policy matters; (iii) the Court would be willing to respond to the executive public
interest immunity to disclose such documents where national security or high policy, high sensitivity is
involved; (iii) there are several limitations on complete disclosure of governmental information,
especially in matters relating to national security; and, (iv) there is also a need to accept and trust
the government's decision makers.
[Para 20]
AST/NRS-125093
The Secretary, Ministry of Defence v. Babita Puniya, AIR 2020 SC 1000; Central Public
Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5
SCC 481; Esab India Ltd. v. Special Director of Enforcement, (2011) 178 DLT 569;
Mehmood Pracha v. Intelligence Bureau, 2018 SCC OnLine Del 9499; 63 Moons
Technologies Ltd. v. Union of India, 2019 SCC OnLine SC 624 …………Considered
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, Union of India v. L.D. Balam
Singh, (2002) 9 SCC 73, Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 : AIR
1982 SC 1413, Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305, LIC v.
Manubhai D. Shah (Prof.), (1992) 3 SCC 637 & Lipika Pual v. State of Tripura, 2020
SCC OnLine Tri 17; Dalbir Singh v. The State of Punjab, AIR 1962 SC 1106 (paras 6
and 7) and to R. Viswan v. Union of India, (1983) 3 SCC 401……………Cited
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Mr. Prashanto Chandra Sen, Sr. Adv. with Mr. Shivank Pratap Singh & Ms.
Sanandika Pratap Singh, Advs.;
Mr. Chetan Sharma, ASG with Mr. Ajay Digpaul, Adv..
RAJIV SAHAI ENDLAW, J.:— The petitioner, a Lieutenant Colonel with the Indian
Army, has filed this petition seeking a writ of mandamus directing the respondents (i)
Union of India, (ii) Director General of Military Intelligence, and (iii) Chief of the Army
Staff, to withdraw their policy dated 6th June, 2020 to the extent that it bans the
petitioner and other members of the Indian Army from using social networking
platforms like Facebook and Instagram and to the extent it orders the petitioner and
other members of the Indian Army to delete their accounts from social networking
platforms like Facebook and Instagram; declaration is also sought that the respondent
no. 2 Director General of Military Intelligence is not empowered under the Constitution
of India or under any other law, to modify, amend or abrogate the fundamental rights
of the petitioner and other members of the Armed Forces.
2. The petition came up before us first on 14th July, 2020. It was found that though
the petitioner had pleaded that on 9th July, 2020, the policy aforesaid was circulated to
the members of the Indian Army but the policy had not been produced before the
Court. It was the plea and contention of the counsel for the petitioner that the
petitioner, as a responsible officer, to maintain confidentiality, had not annexed the
policy, which is for restricted circulation, to the petition or reproduced the contents
thereof in the petition. Being of the view that the counsels should be heard only after
we have had an occasion to peruse the policy and if the documents prescribing the
policy did not record the reasons therefor, the documents containing the reasons for
the policy, we directed the counsel for respondents, appearing on advance notice on
14th July, 2020, to circulate in a sealed cover the policy and/or the documents
containing the reasons therefor and deferred the hearing to 21st July, 2020.
3. The contention of the counsel for the petitioner on 14th July, 2020, that the
petitioner till the next date be relieved from the mandate of being required to delete
his existing social media accounts by 15th July, 2020, was rejected observing that till
we had found a reason to entertain the petition and had entertained the petition, the
question of granting any such interim relief did not arise especially when the matter
had the potential of concerning the safety and security of the country.
4. The respondents, on 20th July, 2020 circulated to us in a sealed cover the
documents as directed vide order dated 14th July, 2020 and we heard the senior
counsel for the petitioner appearing on 21st July, 2020 and the Additional Solicitor
General (ASG) appearing for the respondents and reserved orders.
5. The petition has been filed, pleading that (i) the petitioner is currently posted in
Jammu & Kashmir and is an active user of Facebook and uses the said platform inter
alia to connect with his friends and family; (ii) most of the petitioner's family
members including his elder daughter are settled abroad; the younger daughter of the
petitioner studies in a residential school and the wife of the petitioner works in
Lucknow and the father of the petitioner also spends a lot of time outside India; in
these circumstances, the petitioner finds social media platforms, particularly Facebook,
an important tool to connect with his family; (iii) Facebook enables the petitioner to
share knowledge and information on varied subjects, with his daughters, helping the
petitioner to parent them even when he is posted in remote locations; (iv) the
petitioner, owing to the nature of his profession, being constantly on the move, also at
forward locations on the country's border, finds Facebook to be an effective means to
maintain his social relationships with friends, family and other acquaintances; (v) the
petitioner uses his Facebook account responsibly, in accordance with the guidelines
issued by the Indian Army from time to time and has never shared over Facebook or
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on any social networking platform, any classified or sensitive information pertaining to
his role and duties as an Indian Army officer; (vi) on 9th July, 2020, the petitioner
through a news article learnt that Indian Army had passed an order requiring the
petitioner and other personnel of Indian Army to delete Facebook, Instagram and 87
other applications, by 15th July, 2020; (vii) subsequently, on 10th July, 2020 the
petitioner received a letter titled “POLICY ON USE OF SOCIAL MEDIA PLATFORMS AND
MOBILE PHONES IN IA” issued by the respondent no. 2 Director General of Military
Intelligence on 6th June, 2020, inter alia banning usage of 89 applications and
websites listed therein and directing deletion of accounts on the said websites and
applications - the ban and direction for deletion, was applicable to all ranks of Indian
Army; (viii) the policy and the direction violate fundamental rights of the petitioner
under the Constitution of India, including the right to freedom of speech and
expression and right to privacy; (ix) the remote areas, extreme weather conditions,
difficult terrain, lingering threat of an enemy attack at all times, where the Indian
Army soldiers are posted, take a great toll on the physical and mental health of the
soldiers and the said conditions have to be borne by the soldiers being far away from
their family, friends and loved ones; (x) the soldiers rely on social networking
platforms like Facebook, to address various issues arising in their families and often
use the virtual connect to compensate for the physical distance existing between
themselves and their families; (xi) with the advent of the internet age, in particular
high speed internet, in connectivity over mobile networks, the soldiers have found an
effective way to come closer to their friends, family and loved ones, in the virtual
world, easing the stress otherwise suffered by the soldiers; (xii) websites and
applications like Facebook and Instagram have become more popular modes of
communication than the traditional modes; (xiii) India has the largest number of
users on Facebook, in the world; soldiers can view pictures, videos of events such as
weddings, birthdays and other events of cultural significance, in real time or even on a
later date, as per their convenience and need; (xiv) the impugned policy and direction
thus is not only violative of the fundamental right to freedom of speech and expression
but also the right of life and right to privacy and the restrictions imposed vide the
impugned policy violate Article 14 of the Constitution of India; (xv) the impugned
policy is draconian in nature; (xvi) the purported security concerns and risk of data
breach, forming the basis of the impugned policy and direction, are not limited to
soldiers only; several members of the civil administration and political class who
possess information of a much higher level of sensitivity than a regular soldier but the
restrictions as imposed on the soldiers do not extend to them, making the policy
arbitrary; (xvii) the fundamental rights of the soldiers are sought to be abrogated by
an executive order, in blatant abuse of authority; (xviii) the respondent no. 2 Director
General of Military Intelligence is not empowered to impose any restrictions on
fundamental rights of the soldiers; (xix) the policy has an entire section dedicated to
measures such as sensitization and training of army personnel, to avoid breach of
security and data - this gives rise to a glaring absurdity; on one hand soldiers are
ordered to stop using all major social media platforms and directed to delete their user
profiles and on the other hand the policy seeks to sensitize the soldiers and train them
in proper and safe conduct over social networking platforms; (xx) such contradictions
are a testament to non-application of mind while formulating the policy; (xxi) the
treatment meted out to the soldiers vide the impugned policy is akin to treating them
as slaves and is an insult to the integrity of the soldiers; (xxii) the policy assumes that
all soldiers are vulnerable to be lured by honey traps and bribes and which is an insult
to all the soldiers; (xxiii) the direction to delete the accounts from Facebook and other
social media platforms violates the right to privacy; (xxiv) such abrogation or
restriction on fundamental rights of soldiers cannot be done by way of executive order;
Article 33 of the Constitution of India and Section 21 of the Army Act, 1950 are
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reproduced in the petition itself; (xxv) the restrictions contained in the policy,
particularly relating to ban on use of social networking platforms and deletion of
accounts, are not contemplated under Section 21 of the Army Act or the Rules framed
by the Central Government in terms thereof; Rules 19, 20 and 21 of the Army Rules,
1954 are reproduced in the petition itself; and, (xxvi) reference in the petition itself is
made to K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, Union of India v. L.D.
Balam Singh, (2002) 9 SCC 73, Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 :
AIR 1982 SC 1413, Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305, LIC v.
Manubhai D. Shah (Prof.), (1992) 3 SCC 637 & Lipika Pual v. State of Tripura, 2020
SCC OnLine Tri 17.
6. The senior counsel for the petitioner has argued on the same lines as pleaded i.e.
(i) that vide the impugned policy, the fundamental right of the petitioner of freedom of
speech and expression has been curtailed; (ii) that though Article 33 of the
Constitution of India permits such right to be curtailed or modified in the application
to the members of the armed forces but only by law; (iii) that the law contained in
this regard being Section 21 of the Army Act also does not curtail the right which has
been curtailed by the impugned policy issued by an executive order and which is not
law; (iv) Section 21 of the Army Act also requires the Government to act by
notification or by making Rules and which has also not been done; (v) that the
impugned policy absolutely banning the personnel of the Indian Army from using
social media sites, also does not satisfy the test of proportionality, fairness and the
duty to impose the least restrictive ban, to curb the menace even if any; (vi) that
there is no such ban on the armies of USA and UK; (vii) that Indian Army, which is 18
lacs strong, has a rigorous course of conduct; (viii) the recruitment to the Indian Army
also is very rigorous and Indian Army is a very disciplined force and the guidelines
issued on the use of social media have been serving the purpose and will serve the
purpose in future also; (ix) that the ban imposed on the personnel of the Indian Army
shows the distrust of the country for its own army officials; (x) that the army
personnel, owing to the nature of their duty, have no social connectivity or bonding
with their family, friends, acquaintances and are also mostly living in very difficult
terrain and situations and all of which has effect on their mental well being and causes
depression; (x) that even if the authorities had any cause, issuing a advisory or an
alert would serve the purpose; (xi) that instead of putting a blanket ban, the social
media accounts of all the army personnel can be monitored; (xii) that no such ban has
been imposed on others similarly placed as army personnel and similarly possessed of
confidential/sensitive information and thus the army personnel are being discriminated
against; (xiii) that in the 15 years of existence of Facebook, there have been hardly
any cases of honey trapping of army officials; (xiv) that it is necessary to allow army
personnel use of social media platform, for integration with the society and to enable
them to, sitting far, from where they do not have a choice to move, explore other
places/persons; and, (xv) attention is drawn to Dalbir Singh v. The State of Punjab,
AIR 1962 SC 1106 (paras 6 and 7) and to R. Viswan v. Union of India, (1983) 3 SCC
401 (para 7).
7. We have perused the policy as well as other voluminous documents containing
the background of and the material on which impugned policy is based. Suffice it is to
state, that the policy is, (i) an outcome of constantly evolving intelligence of security
threats and assessment of security safeguards needed; (ii) to plug the gaps and meet
the ever threatening electronic and cyber infrastructure; (iii) an outcome of the
paradigm shift in the intelligence activities of hostile nations; increased popularity of
various social media platforms; the vulnerability of unsuspecting military personnel;
(iv) necessitated by the directives, instructions and policies issued from time to time,
advising the military personnel to regulate the use of social media websites, failing to
meet the threat; (v) virtual impossibility to keep track of lacs of online profiles or to
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identify the fictitious enemy profiles; (vi) on assessment of the different modes
adopted to honey trap, not necessarily in the conventional sense; and, (vii) an
outcome of the assessment of vulnerability of different social media platforms.
8. We also find that the impugned policy has not been issued impulsively but is
preceded by prolonged study of different aspects and data collated in this regard with
particular instances and deliberations at the highest level thereon and has been issued
after considering similar bans imposed by other countries, on armed personnel.
9. To be fair to the senior counsel for the petitioner, he also has argued the matter
not only as a responsible officer of the Court but as a concerned citizen of the country,
concerned not blindly with the case of his client but in the light of the sensitivity of the
issue and not with the exuberance and without care for consequences attitude
displayed by the counsel for the petitioner during the hearing on 14th July, 2020.
10. Per contra, the learned ASG (a) has drawn attention to Rules 19, 20 and 21 of
the Army Rules, 1950 prohibiting persons, subject to the Army Act, from taking active
part in any society, institution or organization not recognized as part of the armed
forces of the Union unless it be of recreational or religious nature or from publishing in
any form whatsoever or communicating directly or indirectly to the press any matter in
relation to a political question or on a service subject and containing any service
information or from delivering a lecture or wireless address on a matter relating to
political question or on a service subject, without prior sanction; (b) placed reliance on
63 Moons Technologies Ltd. v. Union of India, 2019 SCC OnLine SC 624 (paras 54 and
59) to contend that the same lays down the test of judicial interference with the
subjective satisfaction of the government; (c) contended that in none of the
judgments referred to by the petitioner in the petition, Rule 21 supra issued in
pursuance to Section 21 of the Army Act has been referred to; (d) invited attention to
Defence Services Regulations issued on 5th December, 1986 prescribing the procedure
for obtaining permission for communication to the press or to give lecture, by prior
submission of the content; (e) drawn attention to Special Army Order-issued on 9th
April, 2001 to show that the expression service information and service subject” in
Rule 21 is all embracing and would encompass within its meaning any information
relating to the services and to show that the expression “press” includes all non-
military audio visual, visual print electronic media, internet, non-military e-mail, non-
military Wide/Local Area Networks and general public; (f) contended that thus the
policy impugning which this petition has been filed is only clarificatory and the
restrictions on the use of social media platforms was already restricted/banned; (g)
that there is a similar ban in Navy also and in several other countries; (h) such bans
have become essential on perception of threat posed by use of certain social media
platforms; (i) it is not as if all social media platforms have been banned; and, (j) a list
of social media sites, of which restricted usage is permitted viz. Skype, WhatsApp,
Telegram, Signal, YouTube, LinkedIn etc., is handed over.
11. The learned ASG has also shared with us the printouts of the Twitter and
Facebook accounts of the petitioner, to demonstrate violation by the petitioner in
particular, of the Regulations earlier issued qua use of social networking sites on the
internet by the army personnel; particular attention is drawn to the posts by the
petitioner, on matters which are barred including photographs of the places of his
duty.
12. The senior counsel for the petitioner, in rejoinder contended that he has no
instructions qua the printouts of the Facebook and Twitter account of the petitioner,
shared by the ASG and has fairly contended that he is not supporting any violations if
committed by the petitioner and is only urging a pure question of law, of the
fundamental rights of the personnel of armed forces being permitted to be curtailed
only by law and not by executive fiat.
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13. The ASG stated that the army authorities will consider taking action against the
petitioner for the violations committed by the petitioner, of the advisories and
guidelines in force from time to time, as have surfaced on perusal of the Facebook and
Twitter accounts of the petitioner.
14. We have considered the controversy for the stage of admission only.
15. A Division Bench of this Court, of which one of us (Rajiv Sahai Endlaw, J.) was a
part, in Pradeep Oil Corporation v. Union of India, AIR 2012 Del 56, relying on past
precedents, held that the power under Article 226 of the Constitution of India is
discretionary and will be exercised only in furtherance of interest of justice and not
merely on making out of a legal point; the Courts have to weigh public interest vis-à-
vis the private interest while exercising the powers under Article 226 of the
Constitution of India. Mention may also be made of Master Marine Services Pvt. Ltd. v.
Metcalfe and Hodgkinson Pvt. Ltd., (2005) 6 SCC 138, laying down that even when
some defect is found in the decision making process, the Court must exercise its
discretionary powers under Article 226 with great caution and only in furtherance of a
public interest and not merely on the making out of a legal point; the Court should
always keep the larger public interest in mind in order to decide whether its
intervention is called for or not; only when it comes to a conclusion that overwhelming
public interest requires interference, the Court should interfere. An earlier Division
Bench of this Court also, in Anil Kumar Khurana v. Municipal Corporation of Delhi,
1996 SCC OnLine Del 156 held that (i) exercise of jurisdiction under Article 226 is
purely discretionary; (ii) seldom can a petitioner ask for it as of right; (iii) writs are
not issued as a matter of course; (iv) while deciding a writ petition, the Court can see
which way the justice lies; (v) the Court is not obliged or bound to interfere in writ
jurisdiction in every case where the order of the authorities may be without
jurisdiction; (vi) in an equitable jurisdiction, it is the duty of the Court to preserve the
public good - the writ court cannot protect the wrong; (vii) a person who seeks equity
must do equity; (viii) no one can be allowed to take advantage of own wrong; (ix) a
person who has committed a wrong may not be heard by a writ court in support of the
plea that the authority which is taking action against him has no power or jurisdiction
and such power vests in another statutory authority; and, (x) the law breakers can be
refused equitable relief assuming they may have some case on merits - the writ Court
can deny hearing to such law breakers.
16. We have enquired from the senior counsel for the petitioner, why, having been
shown the posts and tweets of petitioner (and which prima facie do not appear to have
been responsibly issued) and why inspite of being shown the elaborate process and
material preceding the decision making of the policy impugned, should we proceed to
adjudicate the legal contention urged of the impugned policy being not in compliance
of Article 33 of the Constitution of India and Section 21 of the Army Act. It is also not
as if such non-compliance is writ large. It will have to be adjudicated, whether the
impugned policy is merely in pursuance to and clarificatory of the Regulations and the
Army Orders to which attention is drawn by the ASG and to which there is no
challenge. We also enquired from the senior counsel for the petitioner, whether not it
is a settled principle of interpretation, that laws made for all times, are to be
interpreted to apply with changing times, especially fast developing technology and
whether not so interpreted, the existing laws are enough for issuance of the policy
impugned in this petition and no fresh law is required. It is evident from the records
produced that the earlier advisories and directives qua conduct and behavior of army
personnel on social networking sites have not been abided by some. The material
produced shows certain army personnel to be unsuspectingly answering all kinds of
questions relating to their postings and whereabouts and postings and whereabouts of
others merely on being told by a person befriended on social networking sites, of a
defence background and which information when collated from a number of sources
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can easily convey a full picture to an expert espionage eye.

17. We find it to be a fit case to apply the law as discussed in the paragraph before
the preceding paragraph. Even if there is any error in the respondents issuing the
impugned policy and direction, without complying with the procedure prescribed in
Section 21 of the Army Act, considering that the issue has an element of urgency and
concerns the safety and security of the entire country, we do not deem it necessary to,
for the grievance of the petitioner only, render an adjudication on the questions urged
and which may require us to refer to the documents and materials shown to us in
confidence. What has also weighed in our mind is, that any interpretation given by us
in the facts of the present case, of Section 21 of the Army Act, Defence Regulations
and army orders, may be prejudicial to the personnel of the armed forces in a case
with better facts. The counsel for the petitioner also has in response to the question
posed to him not been able to give any explanation, why we should not in our
discretion refuse to adjudicate the question urged of violation of fundamental rights of
the petitioner of speech and expression without in accordance with law. In fact, save
for stating that Facebook and Twitter are more convenient, no answer was forthcoming
to, why the filial and other social needs of the petitioner cannot be fulfilled by other
means of communication cited by the ASG, which are still available to the petitioner.
It was suggested that the petitioner cannot explore other people whose contacts are
not known to him. In this context we may record that we find the petitioner, on
Facebook and Twitter, following and being followed by a large number of persons from
other fields and making comments on their posts/tweets and qua which the ASG said,
is breach of earlier advisories/Regulations.
18. Supreme Court, in People's Union for Civil Liberties v. Union of India, (2004) 2
SCC 476 was concerned with writ petitions seeking disclosure of information relating
to purported safety violations and defects in various nuclear installations and power
plants across the country. It was held that (i) the jurisdiction of the Courts in such
matter is very limited; (ii) the Court will not normally exercise its power of judicial
review in such matters unless it is found that formation of belief by the statutory
authority suffers from mala fide, dishonesty or corrupt practices; (iii) the order can be
set aside if it is held to be beyond the limits for which the power has been conferred
upon the authorities by the legislature or is based on the grounds extraneous to the
legislation and if there are no grounds at all for passing it or if the grounds are such
that no one can reasonably arrive at the opinion or satisfaction required thereunder;
no such case had been made out in the facts of that case; (iv) the State must have
the prerogative of preventing evidence being given on matters that would be contrary
to public interest; and, (v) when any claim of privilege is made by the State in respect
of any document, the question whether the documents belong to the privileged class,
is first to be decided by the Court; the Court cannot hold an enquiry into the possible
injury to public interest which may result from the disclosure of the document in
question; the claim of immunity and privilege has to be based on public interest.
Again, in State of N.C.T. of Delhi v. Sanjeev, (2005) 5 SCC 181, it was held that (a)
the present trend of judicial opinion is to restrict the doctrine of immunity from judicial
review to those classes of cases which relate to deployment of troops, entering into
international treaty etc.; the distinctive features of some of these recent cases signify
the willingness of the Court to assert their power to scrutinize the factual basis upon
which discretionary powers have been exercised; (b) the administrative action is
subject to control by judicial review on the grounds of illegality, irrationality and
procedural impropriety; (c) if the power has been exercised on a non-consideration or
non-application of mind to relevant factors, the exercise of power will be regarded as
manifestly erroneous; (d) if a power is exercised on the basis of facts which do not
exist and which are patently erroneous, such exercise of power will stand vitiated;
and, (e) judicial review can be limited in the case of national security. Again, in Ex-
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Armymen's Protection Services Pvt. Ltd. v. Union of India, (2014) 5 SCC 409, it was
held that (i) the decision on whether the requirements of national security outweigh
the duty of fairness on a particular case is for the government and not for the Courts;
the government alone have access to the necessary information and in any event the
judicial process is unsuitable for reaching decisions on national security; (ii) those who
are responsible for the national security must be the sole judges of what the national
security requires and it is undesirable that such matter should be made the subject
matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in
the interest of national security is not a question of law - it is a matter of policy and it
is not for the Court to decide whether something is in interest of State or not; and,
(iv) once the State is of the stand that the issue involves national security, the Court
shall not disclose the reasons to the affected party. The same was followed recently in
Digi Cable Network (India) Pvt. Ltd. v. Union of India, (2019) 4 SCC 451.
19. Supreme Court in Union of India v. Rajasthan High Court, (2017) 2 SCC 599
was concerned with the directions issued by a High Court, to include the Chief Justices
and Judges of the High Court in the list of persons exempted from pre-embarkation
security checks at airports. While setting aside the said order of the High Court, it was
held that (i) the High Court had evidently transgressed the wise and self-imposed
restraint on the power of judicial review; matters of security ought to be determined
by the authorities of the government vested with the duty and obligation to do so; (ii)
gathering of intelligence information, formulation of policies of security, deciding on
steps to be taken to meet threats originating both internally and externally, are
matters on which Courts singularly lack expertise; (iii) it was not for the Court, in the
exercise of its power of judicial review, to suggest a policy which it considered fit and
the formulation of suggestions by the High Court for framing a National Security Policy
travelled far beyond the legitimate domain of judicial review; (iv) formulation of such
a policy is based on information and inputs which are not available to the Court; and,
(v) the Court is not an expert in such matters.
20. More contemporaneously, in the context of procurement of Rafale Fighter Jets
for Indian Air Force, it was reiterated that though there is a general presumption
against ousting the jurisdiction of the Courts, there are however certain areas of
governmental activity, national security being the paradigm, which the Courts regard
themselves as incompetent to investigate, beyond an initial decision as to whether the
government's claim is bona fide. Comparatively recently, in Central Public Information
Officer, Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481, in
the context of disclosure under the Right to Information Act, 2005, the proceedings of
the Collegium System for appointment and elevation of Judges to the Supreme Court
and High Court, the Supreme Court held (i) if the inner working of the government
machinery is needlessly exposed to public, it would hamper frank and forthright views,
thoughts or options on sensitive matters; (ii) therefore the level of deliberations of
that class or category of documents get protection, in particular, on policy matters;
(iii) the Court would be willing to respond to the executive public interest immunity to
disclose such documents where national security or high policy, high sensitivity is
involved; (iii) there are several limitations on complete disclosure of governmental
information, especially in matters relating to national security; and, (iv) there is also a
need to accept and trust the government's decision makers. Yet again in The
Secretary, Ministry of Defence v. Babita Puniya, AIR 2020 SC 1000, in the context of
grant of permanent commission to women in the Indian Army, it was reiterated that
the Courts are indeed conscious of the limitations viz. issues of national security and
policy, imposed on the judicial evolution of doctrine in matters relating to armed
forces.
21. The Division Bench of this Court also in Esab India Ltd. v. Special Director of
Enforcement, (2011) 178 DLT 569, again in the context of arms procurement, held
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that when a question of national security is involved, the Court may not be the proper
forum to weigh the matter and that as the Executive is solely responsible for national
security, no other organ could judge so well such matters and the documents in
relation to these matters fall in a class which per se requires protection. It was further
held that Article 19(2) of the Constitution of India also carves out exception in the
matters relating to interests of sovereignty and integrity of India and the security of
the State. Another Division Bench in Mehmood Pracha v. Intelligence Bureau, 2018
SCC OnLine Del 9499, in the context of writ petition seeking mandamus to constitute a
special investigation team to investigate all aspects of the hostage crisis, observed
that national security is not a question of law but a matter of policy and it is not for
the Court to decide whether something is in the interest of the State or not - it should
be left to the Executive and that the decision on, whether the requirements of national
security outweigh duty of fairness in any particular case is for the government and not
for the Court. Finding no right or justification for seeking divulgence of more
information, it was held that the Court could not grant the relief sought.
22. It is also in the light of the aforesaid judgments that we have herein observed
that we do not deem it appropriate to exercise the discretion vested in us as aforesaid
in exercise of powers under Article 226, to not entertain the petition and not
adjudicate the issues raised. Had we, on perusal of the impugned policy which itself is
a restricted document or the supporting material thereof found the same be suffering
from the vice of non-application of mind or being not based on any material on record
or being without proper deliberations, we would have certainly proceeded to answer
the legal issue raised by the petitioner, of the ban being imposed on the petitioner and
others similarly placed as the petitioner without complying with Article 33 of the
Constitution and Section 21 of the Army Act. However, once we are satisfied on the
aforesaid parameters and find other means of communication to be still available to
the petitioner and the ban being with respect to certain social networking websites
only and more so, once we have found the petitioner himself to have been posting
tweets which according to the ASG are in violation of the policy earlier in force qua use
of social media, we do not deem it apposite to at the instance of the petitioner to go
into the questions urged. Rather, we do not appreciate the pleadings of the petitioner
as a senior officer in the Army, of army personnel being treated as slaves and the
government not trusting its army.
23. We may also notice that warfare and inter-country rivalries and animosities
today are not confined to accession of territory and destruction of installations and
infrastructure of enemy countries but also extend to influencing and affecting the
economies and political stability of enemy country including by inciting civil unrest and
disturbance and influencing the political will of the citizens of the enemy country. In
such a scenario, if the government, after complete assessment, has concluded that
permitting use of certain social networking websites by personnel of its defence forces
is enabling the enemy countries to gain an edge, the Courts would be loath to
interfere.
24. In the circumstances, no case for interference is made out.
25. Dismissed.
———
$~VC-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th October, 2020
+ W.P. (C) 6408/2020, C.M. Appl. Nos.22687/2020 (of the petitioner

for ad-interim relief) & 22689/2020 (of the petitioner for
appearance of party in person)
COL. AMIT KUMAR .....Petitioner

Through: Mr. Rana Mukherjee, Sr. Advocate
with Mr. Sunil J. Mathews, Mr.
Ashim Dua, Ms. Daisy Hannah &
Ms. Surabhi Guleria, Advocates
versus
UNION OF INDIA AND ORS. .....Respondents

'
Through: Mr. Harish Vaidyanathan Shankar,
CGSC, Mr. Varun Kishore,
Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
%
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
1. On 15th September 2020, when the writ petition first came

up before this Court, the following order was passed:
“3. The petitioner, a Colonel in the Army (JAG

Branch), has filed this petition impugning the posting
W.P. (C) 6408/2020 Page 1 of 12

order dated 15th May, 2020. Though certain
grievances have also been made in the petition, of
harassment of the petitioner at the hands of
respondent No.3 Col. Anand Samantaray and
respondent No.4 Col. S. Mukherjee, but we are
presently not concerned therewith and the senior
counsel for the petitioner has also fairly stated that for
the purposes of the approach suggested by us, the said
aspect, for the time being may be ignored.
4. It is the case of the petitioner, (i) that his wife is
also a Colonel in the Army, in the JAG Branch and
presently both of them are posted at Jodhpur; (ii) that
the petitioner, on 16th December, 2019 had made a
statutory complaint and as a consequence whereof,
vide impugned posting orders dated 15th May, 2020,
issued four months in advance instead of normal two
months in advance, the petitioner has been posted at
Andaman and Nicobar and his wife at Bathinda; (iii)
that though the petitioner has represented against the
posting orders, referring to the f policy of making an
endeavor for posting of spouses at the same station
and pleading that .,, ..
the petitioner has a four years’ old
son and requires parenting by both parents and the
other family circumstances of the petitioner also do
not, for the time being permit the petitioner and his
wife to be posted at separate places but there has been
no outcome thereof; and, (iv) that the petitioner, under
fear of being posted out at a different station than his
wife, on 15th August, 2020 has also applied for
voluntary retirement.
5. The petitioner having applied for voluntary
retirement, we at the outset only enquired from the
senior counsel for the petitioner, whether not, in view
of the petitioner having so applied for voluntary
retirement, there is no need for us to go into the
challenge to the posting order and the only direction
which needs to be issued is for expeditious
W.P. (C) 6408/2020 Page 2 of 12

consideration of the application for voluntary
retirement and for stay of the posting order, which in
any case is to come into effect in November, 2020, till
then.
6. The matter was passed over to enable the senior
counsel for the petitioner to take instructions.
7. On pass over, senior counsel for the petitioner
states that the petitioner, being unable to, at this
stage, afford separation from his spouse, has opted for
voluntary retirement, though would very much want to
continue in service.
8. In view of the above, we have enquired from the
counsel for the respondents No. 1 & 2 appearing on
advance notice, whether it is possible for the petition
to be considered as a representation of the petitioner
and the matter being examined by an officer at the
appropriate level, in a position to take the
call/decision thereon. f
9. The senior counsel for the petitioner also, under
instructions has.,, .. stated that the petitioner is not
looking for posting at the same station as his wife, for
all times to come but only till the child is of young
age.
10. We also recollect having come across a circular
in another case providing for an endeavor to be made
for the parents to be posted at the same place, till the
child is 10 years of age.
11. The counsel for the respondents No. 1 & 2
though has drawn our attention to page 206 to
contend that the petitioner, even in his application for
voluntary retirement, against the column whether he
was under posting order, concealed the posting order
but we are of the view that if the matter is to be looked
at as a representation, the need to go into other
W.P. (C) 6408/2020 Page 3 of 12

details does not arise.
12. It is also the contention of the counsel for the
respondents No. 1 & 2 that the petitioner has not even
applied for spousal posting.
13. We now direct the writ petition to be treated as
a representation by the petitioner for posting of the
petitioner and his wife at the same station, wherever it
may be and the authorities entitled to deal therewith
to, within four weeks herefrom as sought, and which
time is granted considering that the impugned posting
is not to come into effect by then, inform, whether the
petitioner and his wife can be given the benefit of
spousal postings at the same place wherever it may be
and if not, the reasons therefor.
14. The counsel for the respondents No. 1 & 2,
under instructions states that though the wife of the
petitioner was required to leave for Bathinda
tomorrow but till the decision fon the spousal posting
is taken, she is also not required to proceed to
Bathinda.
.,, ..
15. List on 20th October, 2020.”
2. The respondents Indian Army, in compliance have filed a

short affidavit alongwith a copy of a speaking order dated 30 th
September, 2020 passed on the representation of the petitioner as
contained in the writ petition. In the said order it has inter alia been
reasoned as under:
“2. Upon due consideration of case, the following

facts have emerged:-
(a) The officer got married to Lt. Col Annu
Dogra, JAG, on 06 Jul 2008. At the time of their
W.P. (C) 6408/2020 Page 4 of 12

marriage, he was an Infantry Officer and was
posted to his Unit 14 SIKH LI in field, and his
wife was posted at HQ 33 Corps. After three
months of their marriage, the officer’s wife was
posted to HQ 16 Corps, at Nagrota as AJAG.
Thereafter, the officer was also posted as OIC
Legal Cell, HQ 16 Corps at Nagrota, on spouse
coordinated posting.
(b) From Nagrota, the officer’s wife was
posted to Delhi in Dec 2010.Therefore,
immediately after completion of his tenure at
Nagrota, the officer was posted to Jaipur, a
Class-A city and within about 4-5 hours journey
by road from Delhi and a short 40 minutes
journey by air.
(c) In Nov 2013, based on the officer’s
request on compassionate grounds, he was also
posted to Delhi, where his wife was already
posted. f
(d) In Mar 2014, based on request on
compassionate
.,, .. grounds from the officer’s wife,
her tenure in Delhi was extended to five years,
to enable both of them to stay together for a
longer period.
(e) In Dec 2015, the officer’s wife, who was
on family way, was posted to Pune, her home
station.
(f) In Apr 2016, after completion of his
tenure at Delhi, the officer was posted to HQ 16
Corps as DJAG on promotion to the rank of
Colonel.
(g) In Oct 2017, again a request for spouse
co-ordinated posting was received from the
officer’s wife, with a request to also extend her
W.P. (C) 6408/2020 Page 5 of 12

tenure at Pune so as to sync her posting with
her husband on completion of his tenure at HQ
16 Corps. The said request was also accepted
and her tenure at Pune was extended by eight
months.
(h) In Aug 2018, based on spouse posting
request, the officer’s wife was posted to HQ 12
Corps at Jodhpur and in Sep 2018 the officer
was also posted to HQ 12 Corps, on spouse
posting. Since then, both of them are serving
together at Jodhpur.
(i) Thus, in 12 years of marriage, the officer
and his wife were given three spouse
coordinated postings.
3. The officer’s wife, Lt. Col Annu Dogra stands
empanelled to the rank of Colonel and is due to
assume her rank on 30 Sep 2020, on the retirement of
Col Mukul Dev, DJAG, HQ 10 f Corps.
4. The request of the officer for posting him and
his wife at the same
.,, .. station has been duly considered
independent of the above facts. Since both the officer
and his wife belong to JAG Department, as on now,
the only place where both of them can be posted
together is New Delhi. The same has been duly
analysed by treating the writ petition ibid, as
representation. All aspects of the representation have
been duly examined and the request for posting the
officer and his wife at the same station has been
considered sympathetically. However, the same
cannot be accepted due to the following reasons:
(a) The JAG Department at present is holding
only 23 Colonels out of its authorization of 40
Colonels. As a consequence, in addition to
static HQs, selection grade Colonel
Appointments at 06 Command/Corps are vacant
W.P. (C) 6408/2020 Page 6 of 12

or being tenanted in officiating capacity by non
selection grade rank officers.
(b) JAG Department at Army HQ, New Delhi
at present is holding three Colonels out of five
authorized. Col. (Litigation), AG/DV has never
been posted due to the interse priority and
critical deficiency of Colonels in JAG
Department. Based on Operational
requirements, both JAG Dept, AHQ, New Delhi
and AG/DV Dte AHQ, New Delhi, are at lower
priority than field formations. Therefore, due to
overall paucity of Colonels in the JAG’s
department, posting both the officer and his
wife to Delhi will be at the cost of maintaining
voids at formation HQs, which is not in
organisational interest.
(c) Diversion of posting of the officer and his
wife to Delhi will lead to critical voids in HQ
Andaman & Nicobar Command f and HQ 10
Corps and is against the organizational
interest, especially in view of the present
operational
.,, ..
situation along the borders. HQ
Andaman & Nicobar Command is the only HQ
where an Indian Army JAG Colonel is posted in
a Tri Services Command DJAG, HQ Andaman
& Nicobar Command is an independent and
important appointment in the Tri Services
Command, which is not under JAG and
therefore demands posting of an experienced
offr.
(d) It has been highlighted by the officer in
Para 5 (i) of the Writ Petition that he has filed a
statutory complaint against the JAG on 16 Dec
19 alleging harassment and biased evaluation.
It has been specifically alleged that the officer
and his wife had been harassed at the hands of
W.P. (C) 6408/2020 Page 7 of 12

JAG and especially Dy JAG HQ Southern
Command since their present appointment.
Therefore, posting the officer and his wife at
JAG Branch, New Delhi, where JAG will be in
the direct reporting channel of one appointment
and both the appointments are in the HQ
headed by the JAG, is not in organisational
interest as the same will vitiate the working
environment in JAG Department.
5. It may be appreciated that despite
organisational constraints, all requests of the officer
and his wife for posting since marriage have been
duly acceded to and all out efforts were made to post
both of them in the same station. Presently, we have
an Operational situation, which includes high security
at all levels including HQ Andaman & Nicobar
Command. At this crucial stage, it is the duty of all of
us who have been nurtured by our organisation, to
strengthen the hands of our officers and men along the
borders. f
6. After duly examining all aspects of the officer’s

representation and
.,, ..
sympathetically considering his
request for posting him and his wife at the same
station, the Competent Authority has not accepted the
said request due to organizational interest and
exigencies of service.”
3. The petitioner has filed a detailed rejoinder to the affidavit
aforesaid.
4. After the last date of hearing we came across prominent

newspaper reports of the hearing before this court, containing the
version of the petitioner and obviously at the instance of the
petitioner. It appears that the said reports would not have appeared
W.P. (C) 6408/2020 Page 8 of 12

in the media without the petitioner feeding the same. In the said
media reports, the petitioner while highlighting his
requirements/needs has painted the Army Authorities as
insensitive. We have brought the said fact to the notice of the
senior counsel for the petitioner and informed him that such
conduct, when the matter was subjudice, cannot be appreciated.
5. The senior counsel for the petitioner states that he or his

briefing counsel have no knowledge of the same and will convey
what we have observed, to the petitioner and will ensure that the
same, if attributable to the petitioner, is not repeated.
6. We have heard the senior counsel for the petitioner as well

'
as the counsel for the respondents Indian Army.
7. The senior counsel for the petitioner has contended that the
aspect highlighted in our order dated 15th September 2020, of
requirements of the small child of the petitioner and the National
Policy for Children, 2013, has not been dealt with in the
consideration afforded to the representation of the petitioner.
8. Once we had mentioned all the facts in our order and

pursuant whereto the matter has been considered, faults cannot be
found with the speaking order, on the ground of one or the other
aspects having not been expressly mentioned. The Officers of the
Armed Forces are not trained to write orders/judgments, as of the
Court, and which are required to deal with each and every
contention. It is otherwise clear from a reading of the order dated
W.P. (C) 6408/2020 Page 9 of 12

30th September 2020, that all aspects as required to be considered,
have been considered.
9. The law laid down in Shilpi Bose Vs. State of Bihar (1991)
Supp (2) SCC 659, N.K. Singh Vs. Union of India (1994) 6 SCC
98, State Bank of India Vs. Anjan Sanyal (2001) 5 SCC 508,
National Hydroelectric Power Corporation Ltd. Vs. Shri
Bhagwan (2001) 8 SCC 574, Union of India Vs. Janardhan
Debanath (2004) 4 SCC 245, State of U.P. Vs. Siya Ram (2004) 7
SCC 405, Government of Andhra Pradesh Vs. G. Venkata
Ratnam (2008) 9 SCC 345, Rajendra Singh Vs. State of Uttar
Pradesh (2009) 15 SCC 178 and our recent judgments in W.P. (C)
6755/2020 dated 22nd September, 2020 titled Shri Bhagwan Vs
Union of India and Baikuntha Nath Das Vs. Central Reserve
f
Police Force MANU/DE/1708/2020 is that the courts can interfere
with orders of transfer,
.,, ..
only on the grounds of violation of any
Rule and/or on the ground of mala fide. No such ground is made
out in the present case. The Rule requiring endeavor to be made to
post both spouses, especially with young children, at the same
station, is not mandatory and is subject to availability of vacancies
for both spouses at the same station. The speaking order dated 30th
September 2020 has given reasons, why for the time being it is not
possible to post the petitioner as well as his wife at the same place.
10. On request, we have also heard the petitioner Col. Amit

Kumar. He has stated that he had not leaked any news to the media
and has not spoken to the media.
W.P. (C) 6408/2020 Page 10 of 12

11. The senior counsel for the petitioner states that the
application dated 15th August 2020 of the petitioner for pre-mature
retirement be considered.
12. The counsel for the respondents Indian Army states that
though the petitioner has withdrawn the said application but if
desires the said application to be considered, the same shall be
considered and orders in a time bound manner passed thereon and
communicated to the petitioner.
13. The senior counsel for the petitioner states (i) that the
petitioner and his wife be granted movement time, to join at the
transferred post; and, (ii) the reliefs also claimed in the petition, of
mandamus directing the Union of India to formulate a policy for
spouse coordination and same place
f of posting for the spouses
serving in the Indian Army, especially those who have no
operational role such.,, .. as JAG and AEC, and of following a
transparent and unbiased coding system fed by the qualification
requirements, not revealing the identity of officers, in matters of
place of postings, be left open for consideration in an appropriate
case.
14. The aforesaid requests are found to be reasonable.
15. The petition is dismissed, (a) granting 15 days time from

today to the petitioner and his wife to join at their transferred
places; (b) directing the Respondent Indian Army to decide the
application of the petitioner for voluntary retirement within 45 days
W.P. (C) 6408/2020 Page 11 of 12

of today and with liberty to the petitioner to pursue appropriate
remedies if remains dissatisfied therewith; and, (c) leaving the
reliefs aforesaid, of mandamus to Union of India, to be urged in an
appropriate case.
16. The petition is disposed of.
RAJIV SAHAI ENDLAW

(JUDGE)
ASHA MENON
f (JUDGE)
OCTOBER 20, 2020
pkb
.,, ..
W.P. (C) 6408/2020 Page 12 of 12

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(BEFORE RAJENDRA MENON, CHAIRPERSON AND PHILIP CAMPOSE, MEMBER (ADMINISTRATIVE))
Rachna Kumari and Others … Applicants;

Versus
OA 901/2020
Decided on August 7, 2020
Mr. D.S. Kauntae, Advocate for the Applicant;
Mr. Shyam Narayan, Advocate for the Respondents.
ORDER
1. Vide this OA, the applicant has invoked the jurisdiction of this Tribunal under
Section 14 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as ‘the Act’)
seeking a direction to Respondents Nos. 3, 4 and 5 to process her petition dated
25.01.2020 and grant her maintenance @ Rs. 30,000/- per month to be remitted after
deducting it from the salary of her husband (Respondent No. 6). The prayer is made
on the ground that the husband of the applicant has refused to maintain her.
2. The moot question, which requires consideration, at this stage, would be as to
whether the prayer made in the application is within the jurisdiction of this Tribunal or
whether the applicant should take recourse to the remedies available under the
common law by approaching the appropriate Family Court.
3. To address the aforesaid issue, at the very outset, it would be necessary for us to
take note of the statutory provisions and the scheme for adjudication as is
contemplated under the Act. This Tribunal has been created for the purpose of
adjudicating service matters pertaining to members of three armed forces of the Union
of India and Section 2 of the Act provides that the same shall apply to all persons who
are subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950.
Sub-section (2) of Section 2 of the Act further contemplates that the Act shall also
apply to the retired personnel subject to the Army Act, Navy Act and Air Force Act,
including their dependants, heirs and successors, in so far as it relates to their service
matters. The words used in sub-section (2) of Section 2 ‘it relates to service matters’
pertain to the right of a person, who is covered by the provisions of the Army Act,
Navy Act and the Air Force Act. Further, the ‘service matters’ are defined under
Section 3(o) of the Act in the following manner :
“3. Definitions.- In this Act, unless the context otherwise requires.—
XXX XXX XXX
(o) “service matters”, in relating to the persons subject to the Army Act, 1950
(46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of
1950), mean all matters relating to the conditions of their service and shall
include—
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure, including commission, appointment, enrolment, probation,
confirmation, seniority, training, promotion, reversion, premature retirement,
superannuation, termination of service and penal deductions;
(iii) summary disposal and trials where the punishment of dismissal is awarded;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
(iv) any other matter, whatsoever, but shall not include matters relating to
(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950), sub-
section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18
of the Air Force Act, 1950 (45 of 1950); and
(ii) transfers and postings including the change of place or unit on posting
whether individually or as a part of unit, formation or ship in relation to the
persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957
(62 of 1957) and the Air Force Act, 1950 (45 of 1950).
(iii) leave of any kind;
(iv) Summary Court Martial except where the punishment is of dismissal or
imprisonment for more than three months.”
4. A complete reading of Section 2 of the Act and the definition of ‘service matters’
given in Section 3(o) clearly indicates that the jurisdiction available to this Tribunal is
to adjudicate disputes pertaining to persons, who are subject to the Army Act, the
Navy Act and the Air Force Act that also with regard to their service matters, and, the
‘service matters’ means issues relating to conditions of service like remuneration,
pension and other retirement benefits etc. However, the ‘service matters’ as
contemplated under sub-Section (o) of Section 3 should be in relation to persons who
are subject to the Army Act, Navy Act or Air Force Act.
5. If we analyse relationship of the present applicant with regard to the question of
jurisdiction except for the fact that she is married to a person who is subject to the
Army Act, 1950, she is not subject to any of the provisions of the Army Act and the
issue raised by her in this application, is not a subject, which falls within the domain
of ‘service matters’ as defined under Section 3(o) of the Act. However, she has filed a
petition under Section 91(g) of the Army Act, 1950 read with Section 92 thereof for
grant of maintenance. Section 91 of the Army Act contemplates a provision wherein
the Competent Authority has power to make deduction from pay and allowances of
person(s), other than officers and sub-Section (i) thereof contemplates that a sum
required by order of the Central Government or any prescribed authority to be paid for
the maintenance of his wife or his legitimate or illegitimate child can be recovered
from the salary of the person. That being so, the petition filed by the applicant vide
Annexure-A/1, she has invoked jurisdiction of the Competent Authority for exercising
his powers under Section 91. If the Competent Authority has not invoked this
jurisdiction under that Section, this Tribunal cannot step into the shoes of the
Competent Authority and invoke the jurisdiction under Section 91 and direct for grant
of maintenance. For this, the options available to the applicant are to seek mandamus
from the Court of competent jurisdiction to the respondents and pray to the Court for
issuing directions to the respondents for deciding this application. Question of deciding
the petition filed under Section 91(g) of the Army Act, 1950 is not within the
jurisdiction of this Tribunal. As far as the contention of the applicant that, by virtue of
Section 33 of the AFT Act, this becomes a ‘service matter’, is also misconceived.
Section 33 excludes the jurisdiction of the civil courts in the matter of adjudication of
service matters provided under this Act. As the present is not a “service matter” within
the jurisdiction of this Tribunal, the applicant cannot invoke the jurisdiction, in our
considered view, as neither the applicant is subject to the Army Act, the Navy Act or
the Air Force Act, she cannot invoke the jurisdiction and the claim made by her
seeking a direction to the respondents to deduct Rs. 30,000/- per month from the
salary of her husband and to be paid to her, in our considered view, will not come
within the purview of ‘service matters’ as defined in Section 3(o) of the AFT Act.
6. The applicant, in fact, wants this Tribunal to exercise the jurisdiction available
under the Family Law for grant of maintenance. This can be done only by a Family
Court or the Courts having jurisdiction under the common law.
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-
7. Accordingly, we are of the considered view that the applicant has approached the
wrong forum for redressal of her grievance. If advised, she may invoke the jurisdiction
of the Competent Court for redressal of her grievance.
8. In our considered view, the application filed by the applicant before us is nothing
but an application seeking maintenance, which can be done under the provisions
contained in Section 125 of the Code of Criminal Procedure (Cr PC) or the appropriate
personal family law applicable to her or to her husband and, accordingly, the
application is beyond our jurisdiction and cannot be entertained. However, liberty shall
be available to the applicant to invoke jurisdiction of a competent court with regard to
her grievance as we have refrained from exercising our jurisdiction as this application
is not maintainable and we have no jurisdiction under Section 14 of the AFT Act to
deal with the issue in question.
9. Even though, during the course of the hearing of the application, learned counsel
for the applicant invited our attention to certain orders passed by this Tribunal in
similar matters, but on a perusal of these orders, we find that, in those cases,
objections with regard to the maintainability were never raised or considered and,
therefore, these orders will not help the applicant. We may also take note of the fact
that the prayer made by the applicant in this application is nothing but a direction to
the respondents to grant her maintenance to the tune of Rs. 30,000/- per month and
to be remitted to her every month after deducting it from the salary of Respondent No.
6 i.e. her husband. This prayer, as detailed hereinabove, can be considered only by a
Court of competent jurisdiction empowered to adjudicate a family dispute and grant
maintenance.
10. In view of the foregoing, present OA stands dismissed with the liberty as
indicated hereinabove.
———
† Principal Bench at New Delhi

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JUDGMENTS ON MILITARY LAW : 2020

1. Balakrishna Ram v. UoI, 2020 (2) SCC 442 2

442 SUPREME COURT CASES (2020) 2 sec

BALKRISHNA RAM v. UNION OF INDIA 443

444 SUPREME COURT CASES (2020) 2 sec

Advocates who appeared in this case :

Chronological list of cases cited on page(s)

BALKRISHNA RAM v. UNION OF INDIA (Deepak Gupta, J.) 445

The Judgment of the Court was delivered by

446 SUPREME COURT CASES (2020) 2 sec

1 2010 SCC OnLine All 3387

BALKRISHNA RAM v. UNION OF INDIA (Deepak Gupta, J.) 447

6 (1997) 3 sec 261 : 1997 sec (L&S) 577

448 SUPREME COURT CASES (2020) 2 sec

BALKRISHNA RAM v. UNION OF INDIA (Deepak Gupta, J.) 449

450 SUPREME COURT CASES (2020) 2 sec

BALKRISHNARAMv. UNION OF INDIA (DeepakGupta, J.) 451

452 SUPREME COURT CASES (2020) 2 sec

8 Union of India v. T.R. Vanna, AIR 1957 SC 882

BALKRISHNA RAM v. UNION OF INDIA (Deepak Gupta, J.) 453

2020 SCC OnLine AFT 1086

In the Armed Forces Tribunal†

OA 22/2012 with MA 30/2012

Criminal Appeal No. 2035 of 2012

Virender Prasad v. Union of India

2020 SCC OnLine SC 339

In the Supreme Court of India

Ex-Gunner Virender Prasad … Appellant(s);

1 (1976) 4 SCC 190

In the High Court of Allahabad

Writ - A No. 2071 of 2017

Article 226, it was stated thus:—

jurisdiction either by residence or location within those territories, is the correct

Union of India, was the Punjab High Court.

jurisdiction of the Court is rightly attracted by the alleged cause of action.

PRAVIN KUMAR v. UNION OF INDIA 471

472 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA 473

474 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 475

476 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 477

478 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 479

480 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 481

h 7 (1996) 7 sec 509: 1996 sec (L&S) 627

482 SUPREME COURT CASES (2020) 9 sec

PRAVIN KUMAR v. UNION OF INDIA (Surya Kant, J.) 483

2020 SCC OnLine AFT 2558

In the Armed Forces Tribunal†

Ravi Shankar Singh … Applicant;

Civil Appeal No. 2448 of 2010

Sanjay Marutirao Patil v. Union of India

2020 SCC OnLine SC 78

In the Supreme Court of India

Sanjay Marutirao Patil .…. Appellant;