Rajiv Arora Vs. Union
of India & Ors.  INSC 1470 (29 August 2008)
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)
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.
may, before adverting to the contentions raised by the parties, notice the
admitted fact of the matter.
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 :
"FIRST AN ACT
PREJUDICIAL TO GOOD
CHARGE ORDER AND AIR
FORCE SECTION 65 DISCIPLINE AIR FORCE
ACT, 1950 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 BEHAVING IN A
MANNER CHARGE UNBECOMING THE POSITION SECTION 45 AND CHARACTER OF AN AIR FORCE
OFFICER ACT, 1950
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.
CHARGE SECTION 48 In that he AIR FORCE
ACT, 1950 AT New
Delhi on the night of 28/29
Apr 05, was found in
a state of intoxication.
ASSAULTING HIS SUPERIOR SECTION 40(a) OFFICER AIR FORCE
ACT, 1950 In that he,
(Gujarat), on 06 Jan.06, assaulted Gp.Capt. SS Kothari (16788) F (P) of
Headquarter South Western Air Command, Indian Air Force.
4 SEXTH BEHAVING IN
A MANNER CHARGE UNBECOMING THE POSITION SECTION 45 AND CHARACTER OF AN AIR
FORCE OFFICER ACT, 1950
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 ILL TREATING
A PERSON CHARGE SUBJECT TO THE AIR FORCE SECTION 47 ACT BEING HIS SUBORDINATE
AIR FORCE IN RANK ACT, 1950
(ALTERNATIVE In that
he, TO SIXTH CHARGE) 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."
convening order was issued for trial by a General Court Martial on 8.5.2006.
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 5 General Court Martial
proceedings became frustrated. The same was rejected.
filed an application for substitution of the Judge Advocate. It was also
the aforementioned premise, the writ petition was filed.
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 :
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 6 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
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
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 7 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."
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.
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 8 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.
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.
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.
High Court was also not correct in opining that the appellant did not raise any
objection in the said proceedings.
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/-.