REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5306 OF 2008 (Arising out of SLP (C) No.3385 of 2007)

Rajiv Arora          … Appellant

Versus

Union of India & Ors.              … Respondents

WITH

CIVIL APPEAL NO. 5307 OF 2008 (Arising out of SLP (C) No.5916 of 2007)

J U D G M E N T

S.B.SINHA, J.

1. Leave granted.

2. While appeal arising out of SLP (C) No. 3385 of 2007 is directed

against a judgment and order dated 16.11.2006 passed by the Division

Bench  of  the  High  Court  of  Delhi  whereby  and  whereunder  a  writ

petition filed by the appellant herein questioning the validity of a Court

Martial  proceeding has been dismissed,  appeal  arising out  of SLP (C)

No.5916 of 2007 is directed against the order dated 19th December, 2006

passed in the review petition.

3. We may, before adverting to the contentions raised by the parties,

notice the admitted fact of the matter.

4. Appellant was commissioned in the Indian Air Force on or about

6.12.1985.  He filed an application for posting to MOFT Unit so as to

enable him to fly MIG 21 Fighter Aircrafts.  The said application was

rejected.   He  applied  for  premature  retirement.   A  good  conduct

certificate was issued in his favour.  However, a disciplinary proceeding

was  initiated  against  him on or  about  20.1.2006 in  respect  whereof  a

charge-sheet was issued on 1.4.2006, the details whereof are as under :

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“FIRST CHARGE SECTION  65 AIR  FORCE ACT, 1950

AN ACT PREJUDICIAL TO GOOD ORDER AND AIR FORCE

DISCIPLINE

In that he  

At New Delhi on the night of 28/29 Apr.  05,  improperly  introduced himself as husband of Mrs. Ambika Singhania to Head Constable Ranbir and  Constable  Dharmendeer,  Police Personnel  of  Delhi  Police,  knowing such statement to be false.

SECOND CHARGE SECTION  45 AIR  FORCE ACT, 1950

BEHAVING IN A MANNER UNBECOMING THE POSITION

AND CHARACTER OF AN OFFICER

In that he,

At New Delhi on the night of 28/29 Apr  05,  used  offensive  language  to Sh.  Dependra  Pathak,  Deputy Commissioner of Police, South West District, New Delhi and behaved in a riotous manner.

THIRD CHARGE SECTION  48 AIR  FORCE ACT, 1950

INTOXICATION

In that he

AT New Delhi on the night of 28/29 Apr  05,  was  found  in  a  state  of intoxication.

FIFTH CHARGE SECTION  40(a) AIR  FORCE ACT, 1950

ASSAULTING HIS SUPERIOR OFFICER

In that he,

At  Gandhinagar  (Gujarat),  on  06 Jan.06,  assaulted  Gp.Capt.  SS Kothari (16788) F (P) of Headquarter South Western Air Command, Indian Air Force.

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SEXTH CHARGE SECTION  45 AIR  FORCE ACT, 1950

BEHAVING IN A MANNER UNBECOMING THE POSITION

AND CHARACTER OF AN OFFICER

In that he,

At  Gandhinagar  (Gujarat),  on  06 Jan.06 at Officers’ Mess Headquarter South Western Air Command, Indian Air Force, used offensive language to 707519  Sergeant  Narender  Kumar, Catering  Assistant  of  Headquarter South Western Air Command, Indian Air  Force  and  behaved in  a  riotous manner.

SEVENTH CHARGE SECTION  47 AIR  FORCE ACT,  1950 (ALTERNATIVE TO  SIXTH CHARGE)

ILL TREATING A PERSON SUBJECT TO THE AIR FORCE

ACT BEING HIS SUBORDINATE IN RANK

In that he,

At  Gandhinagar  (Gujarat),  on  06 Jan.06,  at  the  Officers’  Mess Headquarter  South  Western  Air Command,  Indian  Air  Force,  ill- treated  707518  Sergeant  Narender Kumar  Catering  Assistant  of Headquarter  South  Western  Air Command, Indian Air Force.”

5. A convening order was issued for trial by a General Court Martial

on 8.5.2006.   

6. A contention was raised as regards sustainability of the first three

charges,  inter  alia,  on the  ground that  as  the witnesses  named therein

were not produced for cross-examination, the purpose of continuing the

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General  Court  Martial  proceedings  became frustrated.   The same was

rejected.   

7. He filed an application for substitution of the Judge Advocate.  It

was also disallowed.   

8. On the aforementioned premise, the writ petition was filed.   

9. Indisputably, the witnesses named in respect of first three charges

were not examined.  Was it violative of Rule 43 of the Air Force Rules is

the question.   

It reads as under :

“43.Convening  of  General  and  District Courts-martial  :  (1)  An  officer  before convening  a  general  or  district  courts-martial shall first satisfy himself that the charges to be tried  by  the  court-martial  are  for  offences within the meaning of the Act,  and framed in accordance  with  Law,  and  that  the  evidence justifies a trial on those charges, he may amend the  charges  if  he  deems  fit,  and  if  not  so satisfied order  release of the accused, or refer the case to superior authority.

(2) He shall also satisfy himself that the case is a proper one to be tried by the description of court-martial he proposes to convene.

(3)  The  officer  convening  the  court-martial shall appoint or detail the officers to form the court  and  may  also  appoint  or  detail  such waiting officers as he thinks expedient. He may also  where  he  considers  the  services  of  an

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interpreter to be necessary, appoint or detail an interpreter to the court.

(4) After the convening officer has appointed or detailed  the  officers  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  the  court- martial may either be signed by the convening officer or by a staff officer on his behalf.  The charge sheet on which the accused to be tried, the  summary  of  the  evidence  and  convening order  for  assembly  of  court-martial shall  then be sent to the senior officer of court-martial and the Judge Advocate, if appointed.”

Rule 57 of the Rules enables the accused to object to the charge,

inter alia, on the ground that it does not disclose an offence under the Act

or is not in accordance with these Rules.   

10. It  is  not  in  dispute  that  such  an  objection  was  taken  by  the

petitioner, stating :

“It would be ironical and amazing to state that the cause of action relating to first three charges pertain to when I was posted at AIR HQ at New Delhi  and for the last  one year no cognizable action  was  taken  against  me.   Now  in  the absence  of  any  Court  of  Inquiry  or  formal marshaling  of  evidence  in  the  Summary  of Evidence, I am being prejudiced by facing these charges  which  have  cropped  up  for  the  first time  in  the  Court  Martial  itself  which  is  in violation  of  all  the  aforementioned  AF Rules and the principles of Natural Justice.  Inter alia, the Fourth to Seventh Charges have been made

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out  after  analyzing  the  evidence  in  the Summary  of  Evidence  but  in  the  First  three charges  not  a  single  prosecution  witness  had deposed in the Summary of Evidence which is open to verification.  I was also given a Good Conduct Certificate by my CO.

3. Therefore, I pray in all humility that the Convening orders of the General Court Martial is not only based on summary of evidence but it also  lacks  jurisdiction  as  the  only  competent authority to convene the GCM is an officer of the rank of Air Marshal in the appointment of AOC-in-C  and  this  power  and  the  warrant cannot be delegated to any Staff Officer as has been done in this instant case for which there are enough case laws on the subject which the respected Judge Advocate is well aware of.”

11. Respondents never denied or disputed the said contentions.  It is,

however, urged that no prejudice has been caused to the petitioner due to

non-examination of the said witnesses during the summary of evidence.

Such  a  plea  has  been  raised  on  the  premise  that  a  report  had  been

furnished, inter alia, in respect of charge No.2 by Shri Dipendra Pathak

and the same has been produced in the summary of evidence by Sq. Ldr.

T.S. Reddy who was the custodian thereof.   

12. Whether  prejudice  has  been  caused  by  non-examination  of

witnesses named in the charge-sheet is essentially a question of fact.  An

inference  is  required  to  be  drawn  having  regard  to  the  facts  and

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circumstances obtaining in each case.  The charges framed as against the

appellant  were  specific.   The  misconducts  were  said  to  have  been

committed  are  in  relation  to  the  persons  named  therein.   In  the

proceedings, seven witnesses were examined, namely, Air Commander

M. Bhandari, Sgt. Narender Kumar, Flight Lieutenant S. Dasgupta, Gp.

Captain  S.S.  Kothari,  Gp.  Captain  P.W.  Amberkar,  Gp.  Captain  S.C.

Kabra and Sqn. Leader T.S. Reddy.   

13. No  explanation  has  been  offered  as  to  why  the  concerned

witnesses could not be examined.  Shri Reddy, PW-7 was the custodian

of the report.  He was not the maker thereof.  Effective cross-examination

could  have  been  done  as  regards  the  correctness  or  otherwise  of  the

report, if the contents of them were proved.  The principles analogous to

the provisions of the Indian Evidence Act as also the principles of natural

justice demand that the maker of the report should be examined, save and

except  in  cases  where  the  facts  are  admitted  or  the  witnesses  are  not

available for cross-examination or similar situation.  No reason has been

assigned  as  to  why  the  named  witnesses  who  only  could  prove  the

change  had  not  been  examined.   Indisputably,  they  were  the  prime

witnesses.

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14. The High Court in its impugned judgment proceeded to consider

the issue on a technical plea, namely, no prejudice has been caused to the

appellant by such non-examination.  If the basic principles of law have

not  been  complied  with  or  there  has  been  a  gross  violation  of  the

principles  of  natural  justice,  the High Court  should have exercised its

jurisdiction  of  judicial  review.   Before  a  court  martial  proceeding  is

convened, legal requirements therefor must be satisfied.  Satisfaction of

the  officer  concerned  must  be  premised  on  a  finding  that  evidence

justified a trial on those charges.  Such a satisfaction cannot be arrived at

without any evidence.  If an order is passed without any evidence, the

same must be held to be perverse.   

15. The High Court was also not correct in opining that the appellant

did not raise any objection in the said proceedings.   

16. We, therefore, are of the opinion that the impugned judgment in

regard to the charge Nos.1, 2 and 3 cannot be sustained.  They are set

aside accordingly.  It has not been disputed that witnesses for proving

charge  Nos.4  to  7  have  been  examined.   The  General  Court  Martial

Proceedings shall  continue in respect  of charge Nos.4 to 7 and not  in

respect of charges No.1 to 3.  Appeals are allowed to the above extent

with costs.  Counsel’s fee assessed at Rs.50,000/-.

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….…………………….J. [S.B. Sinha]

……………………..…J.     [Cyriac Joseph]

New Delhi; August 29, 2008

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