2009 (9) SCR 584 UNION OF INDIA & ANR.

v. EX. MAJOR SUDERSHAN GUPTA

(Civil Appeal No.4418 of 2004) MAY 20, 2009

[DR. MUKUNDAKAM SHARMA AND DR. B.S. CHAUHAN, JJ.]

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. This appeal is directed  against the judgment and order dated 10.03.2003, passed by the  

Division Bench of the Delhi High Court setting aside quashing the  

order of convening the General Court Martial. While doing so and  

coming to the conclusions leading to the said order the High Court  

applied the ratio of the decision of this Court in  Union of India &  

Ors. vs. Harish Chandra Goswami, reported in AIR 1999 SC 1940.  

While  allowing  the  aforesaid  writ  petition,  the  High  Court  has  

observed in paragraph 4, in the following manner:

“We  have  given  ample  opportunities  to  the  respondents  to  

produce the records as to whether the convening order passed  

by Maj. Mehta was passed after the same was endorsed by  

the  Major  General  concerned,  so  that  it  could  have  been  

observed whether the competent authority under the law has  

applied its mind before convening the General Court Martial or  

not.  In  spite  of  various  opportunities  granted  to  the  

Respondents, the respondents have not been in a position to  

produce the records before us.”

2. When the present appeal is taken up for final hearing and on  

our  query,  it  is  pointed  out  that  the  records  of  the  Convening

Authority are not available as the same has been destroyed by the  

Army Authorities. We are informed that the same has been done  

pursuant  to  the prevailing Rule that  records of  all  Court  Martial  

proceedings  should  be  retained  only  for  a  period  of  7  years.  

However, the records disclose that the writ petition was filed in the  

Delhi High Court by the respondent before the expiry of 7 years  

period and since the matter was sub-judice before the Court, the  

Army Authorities were required to preserve the records so as to  

make the  same available  to  the  Court  to  effectively  decide  the  

issue  with  regard  to  the  legality  or  validity  of  the  order  of  

Convening the General Court Martial. It would not be possible to  

decide  the  issue  raised,  as  has  been  rightly  held  by  the  High  

Court, namely, as to whether or not there was proper application of  

mind  by  the  competent  authority  while  passing  the  Convening  

Order.  

3.  Learned counsel appearing for the respondent has stated  

that adverse inference should be drawn against the inability of the  

Department  to  produce  the  records.  However,  in  view  of  non-

availability of records, we find no reasonable ground to interfere  

with  the  order  of  the  Division  Bench  of  the  High  Court.  In  our  

considered  opinion  legality  and  the  validity  of  the  order  of  

Convening the General Court Martial cannot now be decided in the  

absence of the records which the appellant is required to produce  

before  us.  We,  therefore,  find  no  merit  in  this  appeal  which  is  

accordingly dismissed leaving the parties to bear their own costs.

4. At this stage, learned counsel for the respondent states that  

in view of the order passed today the respondent shall have to be  

paid all the consequential benefits. We grant three months time to

the appellant to comply with the order and to give all consequential  

benefits.