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The Army Act, 1950
Section 123 in The Army Act, 1950
Article 226 in The Constitution Of India 1949

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Madras High Court
Lt.Col.M.K.Sanga vs Union Of India on 18 March, 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:18-3-2008

CORAM:

THE HON'BLE MR.JUSTICE P.JYOTHIMANI

W.P.Nos.14447 and 25334 of 2001 & 42102 of 2002

and connected miscellaneous petitions

.....

Lt.Col.M.K.Sanga

IC 23127P

MEG & Centre

Bangalore 5. ... Petitioner in

all the Writ Petitions

vs.

1.Union of India

rep. By its Secretary

Ministry of Defence

South Block, New Delhi.

2.The Chief of Army Staff

Army Headquarters

New Delhi.

3.Convening Authority

HQ,ATNKK & G Area

Chennai.

4.Col.C.R.S.Bahadur

Presiding Officer SCOI

C.M.P.Centre, Bangalore.

5.Commandant

MEG & Centre

Bangalore.

6.Col.R.M.Mittal

Officer Recording S of E

MEG & Centre

Bangalore. .. Respondents in

W.P.Nos.14447 & 25334/01

1.Union of India

rep. By its Secretary

Ministry of Defence

South Block, New Delhi.

2.The Chief of Army Staff

Army Headquarters

New Delhi.

3.Maj.Gen.AS Jamwal

HQ,ATNKK & G Area

Chennai.

4.Col.R.M.Mittal

Officer Recording S of E

MEG & Centre

Bangalore.

5.Commandant

MEG & Centre

Bangalore.

6.GOC-IN-C

HQ Southern Command

Pune.

7.Maj.Monish Dass

Assistant Adjutant

HQ, MEG and Centre

Bangalore. .. Respondents in

W.P.No.42102 of 2002

Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus and Certiorari as stated therein.

For petitioner : Mr. V.Kalyanaraman

for M/s.Aiyar & Dolia

For respondents: Mr. V.Balsubramanian,SCGSC

for R.1 to R.6 in WP.14447 & 25334/01

and for R.1 in WP.42102 of 2002.

Mr.S.Yashwanth,ACGSC

for R.2 to R.7 in WP.42102 of 2002.

..

COMMON ORDER

The writ petitioner in the above writ petitions is holding a Permanent Commission in the rank of Lt.Col Selection Grade in Indian Army. He was posted as Officer Commanding Military Farm, Bangalore between 18.03.1996 and 20.08.1999, and thereafter, he was posted as Deputy Director, Military Farm, Pune. During the time he worked in Bangalore in the above capacity, the Military Farm Employees Association, which according to the petitioner is an unrecognised Association, has made certain complaints about the petitioner. The petitioner would state that since the charges were serious, an independent investigation was conducted by the Zonal Regional Officer on 17.05.1999, who found there was no substance in the said complaints. Thereafter, Departmental investigations were carried out on the instructions of Director General, Military Farm by the Director of Military Farm Headquarters, Southern Command.

2. It is the further case of the petitioner that the complaint received by the Ministry of Defence on 15.05.1999 through Central Vigilance Commission was forwarded to the Deputy Director General of Military Farms, Army Headquarters, New Delhi to enquire and furnish report. According to the petitioner, a High Level Inquiry was again constituted, which recommended on 01.10.1999 that the case to be closed. The said High Level Inquiry is to be treated as Court of Inquiry and therefore, its finding dated 01.10.1999 has become final. It was found that the petitioner was not in command of the unit during the conduit period/month of origination of alleged complaints. The conclusion of the Southern Command, Pune was forwarded to the Army Headquarters, New Delhi, who has also rejected the complaints on the basis that some forgery has been committed.

2(a). In spite of the fact that the matter has reached finality, the third respondent has ordered for Staff Court of Inquiry on 30.10.1999. In those circumstances the petitioner wanted to see the original Convening Order made by the third respondent along with other records. According to the petitioner, the third respondent has no authority to order for such Court of Inquiry and there cannot be successive Courts of Inquiry on the same allegations under the Army Rules and Instructions. Even in the Staff Court Inquiry which was conducted earlier, the petitioner has raised his objection and witnesses were examined, however, the copies were not furnished to the petitioner, apart from the finding of the Staff Court Inquiry. Therefore, according to the petitioner, the convening order itself has been passed by the third respondent without any complaint.

2(b). It is also the case of the petitioner that before the Staff Court Inquiry which was conducted earlier and completed, the petitioner was shifted from Bangalore to Madras Engineering Group as per the order dated 11.08.2000 and in those circumstances, he filed W.P.No.14447 of 2001, for direction against the respondents, especially the third respondent to produce original convening order along with all its annexures, including the basic complaint against the petitioner containing 62 signatures and also to forbear the respondents from proceeding with the Court of Inquiry.

2(c). This Court while admitting the said writ petition, has also granted an order of interim stay of all proceedings of the third respondent initiated which has been continued.

2(d). The petitioner has also filed W.P.No.25334 of 2001, to forbear the third respondent from holding Staff Court of Inquiry or Unit Court of Inquiry or departmental Court of Inquiry or any other Inquiry or investigation/proceedings on the basis of the alleged complaints given by the unrecognised military farm employees association in the letters dated 20.01.1999, 19.02.1999 and 10.05.1999 and the said writ petition was admitted on 21.12.2001 and order of interim stay granted was made absolute on 15.09.2003.

2(e). That writ petition was filed due to the reason that on the basis of the information given by the Staff Court of Inquiry, Central Bureau of Investigation registered a First Information Report against the petitioner based on the complaints dated 19.02.1999 and 10.05.1999. In addition to that, against the said complaints and challenging the first information report, the petitioner has also filed Criminal Petition No.3696 of 2001, before the High Court of Karnataka at Bangalore. During the Court of Inquiry constituted for the second time, viz., as ordered on 30.10.1999, 18 charges were framed against the petitioner, and the petitioner was attached by the order of the third respondent dated 09.08.2000, directing him not to move out of the centre till finalisation of disciplinary cases against him, which was followed by the consequential orders of the 7th respondent dated 12.08.2000. Challenging the said orders, the petitioner has filed WP.No.42102 of 2002, which was admitted by this Court on 25.12.2002 and order of interim stay was granted.

3. The contention of the learned counsel for the petitioner in these cases is that the order of attachment passed by the 7th respondent dated 12.08.2000, is without jurisdiction, since according to the petitioner such order can be passed only by the 6th respondent. The further ground of challenge is that such order must be signed by the 6th respondent in red ink and the 6th respondent cannot delegate his powers to the 7th respondent to pass such orders and the staff officer is not Military Command. It is further challenged on the ground that the order of attachment has been passed with malicious intention to harass the petitioner from discharging his public duties. That apart, it is the case of the petitioner that the order is illegal. It is also challenged on the ground that the third respondent has admitted that the attachment was effected without the letter of sanction by the Headquarters Southern Command, viz., the 6th respondent.

4. On the other hand, it is the case of the respondents in the counter affidavit that the Military Farm Employees Association, Bangalore has sent complaints dated 20.01.1999 and 19.02.1999 to the Chief of Army Staff and another complaint on 10.05.1999 to the Central Vigilance Commissioner against the petitioner, and it was due to repeated complaints against the petitioner, the Deputy Director General of Military Farms has asked for an investigation by his letter dated 23.06.1999 and a newly promoted Officer of Group-B, Mr.M.G.Sawaskade was directed to make preliminary investigation in which it was found that the Military Farm Employees Association was not a recognised Union and the allegations made against the petitioner were not substantiated. However, according to the respondents, that is not equivalent to the investigation by the Staff Court of Inquiry. According to the respondents, the Staff Court of Inquiry can be ordered against an individual even without a formal complaint and therefore, the question of considering the complaint made by the unrecognised Union does not arise when the Court of Inquiry was ordered.

4(a). It is the further case of the respondents that the closure of case was based on the above said preliminary investigation by the Ministry of Defence and does not become a bar for inquiry under the Army Act,1950 at a later date. The Court of Inquiry was constituted against the petitioner only after finding that the Officer, who has investigated earlier has not examined the documents in detail. It is also stated that there is no precondition that a complaint must be made or order should be signed in a particular ink. According to the respondents, the authority to constitute a de novo inquiry originates from Army Rule 177 and such inquiry was ordered against the petitioner on 30.10.1999, since the One Man Inquiry did not indicate anything wrong. The report of the preliminary investigation is not the finding of Staff Court Inquiry.

4(b). The petitioner was moved from his temporary duty at Bangalore to Madras Engineering Group, in order to facilitate finalisation of disciplinary proceedings against him. As per the Army Instructions, particularly, Instruction No.30/86, any officer, including the petitioner against whom disciplinary action is contemplated, can be attached to other Units at the discretion of the Army Headquarters or General Officer Commanding-in-Chief Southern Command and that is only for the purpose of investigation and monitoring the progress of disciplinary case and therefore, the attachment of the officer done by the competent authority is in order.

4(c). It is the case of the respondents in the counter affidavit that by filing various writ petitions not only in this Court but also in some other High Court, the petitioner's intention is to protract the proceedings. It is the further case of the respondents that the attachment orders are not required to be signed personally by the General Officer Commanding-in-Chief, Southern Command and as per the practice in vogue, sanction of the General Officer Commanding-in-Chief was obtained as authorised under para 27 of Defence Service Regulations and therefore, there is no procedural irregularity. The movement order of the petitioner is only pursuant to the attachment order and therefore, according to the respondents there is no illegality in the order passed.

5. Mr.A.L.Somayaji, learned senior counsel appearing for the petitioner would submit that while it is not in dispute that the complaints alleged to have been received against the petitioner on 20.01.1999, 19.02.1999 and 10.05.1999 are all from an unrecognised Union and an investigation has been ordered by the competent authority regarding the complaints and when such complaints came to be closed on finding that there was no truth in such complaints, the formation of Court of Inquiry on the same complaints is not permissible in law. He would also submit that the jurisdictional issue is involved in this case, inasmuch as the attachment order passed by the 7th respondent is not legal, since he is not competent to pass the same.

5(a). Mr.A.L.Somayaji, learned senior counsel has also relied upon the subsequent affidavit filed by Mr.S.Abimanyu, son of the petitioner dated 27.02.2008 in this Court, in which it is stated that the petitioner has attained the age of superannuation on 30.11.2004 and was detained under Army Act. It is also stated in the affidavit that during the period of detention at Meerut from the month of November, 2004, the petitioner was treated at the Institute of Mental Health and Neuroscience, Meerut, which is a Government Hospital for depression, hypertension and psychiatry evaluation in the Neuro-psychiatry Department. Since the petitioner was not given membership under Ex-servicemen Health Scheme, the Military Hospital, Meerut has referred the petitioner to All India Institute of Medical Sciences (AIIMS), New Delhi during April, 2006, observing that the petitioner required continuous psychiatric treatment.

5(b). It is also stated that the order of detention passed under Section 123 of the Army Act,1950 was set aside by the Allahabad High Court by order dated 28.07.2006 and thereafter, he was taken to Gurgaon, which is located 35 kms. away from New Delhi and the petitioner is being treated in the psychiatry OPD for chronic Dementia (Alzheimer's disease) and referred to Neurology Department and the said disease denotes loss of memory. In the affidavit it is also stated that the petitioner is taking treatment under Dr.Raman Girotra, who has issued necessary certificate that the petitioner is suffering from chronic depression, Alzheimer's disease and advised regular medication. Since the said disease relates to memory impairment, it is not possible for the petitioner to even participate in the enquiry at this mental stage.

5(c). It is also stated in the affidavit that even during enquiry before the Staff Court of Inquiry, Ex.58, the medical certificate issued by Bowring and Lady Curzon Hospital, Bangalore-1 was marked which confirmed that the petitioner was not in sound mind. The learned senior counsel has also produced various medical records and also various literature to speak about the consequences of dementia, viz., Alzheimer's disease  loss of memory by a person. 5(d). The learned senior counsel for the petitioner would submit that inasmuch as the All India Institute of Medical Sciences itself has given various certificates and the petitioner was unable to take treatment in the Military Hospital because he is not given membership under Ex-servicemen Health Scheme, there is no purpose in making the petitioner to undergo the ordeal of facing the inquiry at this stage and therefore, according to him, considering the fact that the petitioner has retired from service, the proceedings under the Army Act has to be put an end.

6. On the other hand, Mr.V.Balasubramanian, learned Senior Central Government standing counsel appearing for the respondents would submit that there is remarkable difference between the preliminary investigation conducted and the proper enquiry ordered in the Court of Inquiry under the Army Act. He would submit that for a regular Court of Inquiry, no specific complaint is required and even assuming that the said three complaints were given by an unrecognised Union, taking into consideration about the seriousness of the charges, the Court of Inquiry was constituted. 6(a). His further contention is that the closure of routine departmental investigation cannot be equated with the formal Staff Court of Inquiry, while departmental junior has closed the Inquiry only on 14.08.1996, the Court of Inquiry was ordered on 30.10.1999 and there is no bar for such Inquiry. In respect of the subsequent affidavit filed by the petitioner's son, the learned counsel would submit that while it may be true that the petitioner has attained the age of superannuation, however, if really the petitioner is suffering from such disease as stated in the affidavit, he can be directed to be referred to Military Hospital for opinion and if the Military Hospital gives opinion in consonance with the Doctors of All India Institute of Medical Sciences, the respondents will take a decision regarding the closure of the case against the petitioner.

7. I have heard the learned senior counsel for the petitioner and the learned Senior Central Government standing counsel for the respondents and perused the entire records.

8. It is not in dispute that originally investigation was conducted by Mr.M.G.Sawaskade, who was directed to investigate the case by the Army Headquarters letter No.A-60761/Q/MF-1 dated 23.06.1999 in respect of three complaints received against the petitioner from Military Farm Employees Association dated 20.01.1999, 19.02.1999 and 10.05.1999 and subsequently, the present Court of Inquiry has been constituted under the Army Act in respect of the same complaints. It is also specifically admitted that in the earlier investigation it was found that there was no basis for such allegations against the petitioner apart from arriving at a conclusion that the complainants themselves are also not from a recognised Union. Even assuming that a suo-motu Court of Inquiry can be conducted as per the provisions of the Army Act, which may not require a formal complaint from any person, in the light of the decision taken by an Officer as per the direction of the competent authority, even though such decision is stated to have been taken in a formal investigation, certainly the respondents are bound by such decision unless and until a new cause of action is shown for initiating a fresh inquiry on the petitioner.

9. A reference to the finding of Farm Officer Mr.MG.Sawaskade, Officer-in-charge, Military Farm, Majri, Pune, who was appointed as an Inquiry Officer dated 22.07.1999, shows clearly that even SPCBI, Bangalore has carried out a detailed investigation and found nothing and therefore, it can be stated that the Inquiry Officer has categorically found that the complaints are false, fabricated and untruthful. Even at the preliminary investigation it was also specifically found that the complaints have been made by fabricating the signature of the General Secretary and others in the letter pad of the employees' association after verifying various documents.

10. Further, the finding of the Inquiry Officer has also been agreed by the Director of Military Farms, Southern Command in his proceedings dated 2.09.1999 with the following observation, viz.,

"11. Undersigned agreeing with the Inquiry Officer's findings, opinions and recommendations, strongly recommends that complainant be called upon to give under taking as stated above and the Officer Lt Col MK Sanga be permitted to file a case of defamation against the complainant in the Court of Law on Govt. expenses. This will reduce the number of complaints in Military Farms and teach the unscrupulous office bearers of the unions to be responsible in their action in future. Initiation of a tough action warranted."

11. In the letter dated 11.09.1999, the Director of Military Farms addressed to the Deputy Director General of Military Farms, New Delhi has forwarded the recommendations with para-wise comments. It is also seen that the Deputy Director General of Farms in his letter dated 01.10.1999 has recommended to the Ministry of Defence (Vigilance) to reject the complaints and treat the case against the petitioner as closed.

12. In such background, the Convening Order, which relates to the same complaints even assuming that the same is permissible under law, certainly would amount to reopening an investigation, which has already come to an end. The contention made on behalf of the respondents as if it is only a routine investigation is not sustainable for many reasons including that the investigation was relating to the same complaints and the investigation reports have been accepted by the Director of Military Farms and the same has been referred to the Deputy Director General of Farms, New Delhi for the purpose of closing the complaints.

13. Taking into consideration the above said factual position and also the further development in this case that the petitioner has attained his age of superannuation in November,2004 and the medical records issued by the Military Hospital, Meerut showing that the petitioner is having certain problem and therefore he has been referred to the Department of Psychiatry, I am of the considered view that WP.Nos.42102 of 2002 and 25334 of 2001 are liable to be allowed and the petitioner must be permitted to retire from service.

14. In view of the above said order in WP.Nos.42102 of 2002 and 25334 of 2001, no orders are necessary in WP.No.14447 of 2001. Accordingly, the said writ petition is closed.

With result, WP.Nos.42102 of 2002 and 25334 of 2001 are allowed and WP.No.14447 of 2001, is closed. No costs. Connected miscellaneous petitions are closed.

Index:Yes

Internet:Yes

kh 18.03.2008

P.JYOTHIMANI,J.

To

1.The Secretary

Union of India

Ministry of Defence

South Block, New Delhi.

2.The Chief of Army Staff

Army Headquarters

New Delhi.

3.Convening Authority

HQ,ATNKK & G Area

Chennai.

4.Col.C.R.S.Bahadur

Presiding Officer SCOI

C.M.P.Centre, Bangalore.

5.Commandant

MEG & Centre

Bangalore.

6.Col.R.M.Mittal

Officer Recording S of E

MEG & Centre

Bangalore.

P.D.Common Order in

W.P.Nos.14447 & 25334/01

& 42102/02

Dated:18.03.2008