U O I
& Ors Vs. Rajbir Singh Khanna & Anr  Insc 417 (24 August 2001)
Babu & R.C. Lahoti R.C. Lahoti, J.
Appeal No. 5665/2001 (@ S.L.P.(C) No. 15370/1997)
granted in SLP(C) No. 15370/1997.
Singh Khanna, respondent no.1 was commissioned in the Indian Army on 8.2.1964.
In June 1989, when he was holding the rank of Colonel, he was posted as Deputy
Commandant of 61 Infantry Brigade deployed in Sri Lanka. At that time Brigade Commander was Brigadier Jaspal Singh,
respondent no.2. On 22.1.1990, 7.2.1990 and 9.2.1990 respectively three Courts
of Inquiries were ordered to investigate certain financial irregularities in
the sale of VCPs belonging to HQ 61 Infantry Brigade and movement of 5 other
ranks of HQ 61 Infantry on temporary duties from operational area to Jammu, the home place of respondent no.1.
The irregularities were noticed by Brigadier Jaspal Singh. On 6.2.1990
Brigadier Jaspal Singh also issued warning letter to respondent no.1 putting
him on adverse report under paras 80 and 81 of Special Army Order 3/S/89.
Though the respondent no.1 replied to the warning letter dated 6.2.1990,
Brigadier Jaspal Singh was not convinced and directed staff Court of Inquiry to
be held for ascertaining the facts. On 14.3.1990 Brigadier Jaspal Singh
endorsed an adverse report on the respondent no.1 which stated inter alia -
there have been aberrations in his mandatory character qualities of integrity
and moral courage which make his utility to the service doubtful. He has been
found wanting in discipline towards managing personal finances and was thus
embarrassed in this context. I do not recommend this officer for further
promotion and would advise upon his change of appointment. The respondent no.1
was due for promotion as Brigadier but the aforesaid adverse report was
construed as drop in his performance and as his promotion was subject to
continued satisfactory performance he was not physically promoted to the rank
of Brigadier. On 23.2.1990 he was approved for promotion to the acting rank of
Brigadier in the General Cadre.
fourth Court of Inquiry was also ordered against the respondent no.1 to
investigate into certain allegations, such as,
of regimental fund,
of regimental money,
cheques which bounced,
of Sri Lankan currency where the respondent no.1 was deployed,
Jawans on temporary duty to his home station at Jammu, and
false declaration in his record of service.
on the findings of the fourth Court of Inquiry, on 11.7.1990 disciplinary
action was directed to be initiated against respondent no.1 and he was attached
with the office of the Chief Engineer, Calcutta Zone so that the disciplinary
action could proceed against him as per the rules.
in 1991 respondent no.1 filed a writ petition in the High Court of Jammu and
Kashmir seeking quashing of all proceedings initiated against him as also a
direction to the army authorities to promote him to the rank of Brigadier with
effect from 23.2.1990, the date on which he was intimated of his having been
approved for the rank of acting Brigadier. On 17.12.1991 a learned Single
Judge, while directing rule nisi to issue, also made an interim order
restraining any further action against the respondent no.1 on the basis of
proceedings already held and not to deprive the respondent no.1 of promotion to
the rank of Brigadier in case he has been held to be entitled for it.
interim order was continued by the High Court vide order dated 9.3.1992 to
remain in operation in spite of objections filed on behalf of the appellants
and the High Court having been informed by the appellants that because of drop
in performance the respondent no.1 could not be promoted. Thereafter again, on
behalf of the appellants, an application was filed before the High Court
seeking vacation of the interim order dated 17.12.1991 so that the army
authorities could proceed with the court martial but the learned Single Judge
declined to vacate the interim order on the ground that the prayer could not be
entertained until the interim order dated 17.12.1991 was first implemented,
that is, the respondent no.1 was promoted. The appellants unsuccessfully filed
LPA against the order of learned Single Judge and then came up to this Court by
filing a SLP putting in issue the interim orders of the learned Single Judge as
also the order of Division Bench dismissing the LPA.
29.6.1992 and 28.9.1992 the High Court had directed its order dated 17.12.1991
to be implemented in letter and spirit without regard to alleged drop in
performance of respondent no.1.
respondent no.1 had to be promoted by the appellants and given acting rank of
Brigadier under threat of contempt proceedings. Such promotion had taken place
after the filing of the SLP and before it could be listed for hearing. On
25.11.1992 this Court disposed off the SLP directing the disciplinary
proceedings against the respondent no.1 to be proceeded ahead. This Court also
noted that the respondent no.1 was already promoted. Liberty was allowed to the appellants to
approach the High Court seeking its leave for the framing of the charges which
were alleged to have become barred by time on account of court proceedings.
31.12.1993 a learned Single Judge of the High Court allowed the writ petition
filed by the respondent no.1. Proceedings of all the four Courts of Inquiry
were adjudged to be illegal. The respondent no.1 was directed to consider the
respondent no.1 for promotion to the rank of Brigadier along with the
consequential benefits attaching with such promotion. The court martial
proceedings were directed to be quashed as being barred by time under Section
122 of the Army Act overruling the plea of the appellants that the delay in
court martial proceedings was attributable to the interim orders passed by the
High Court. In the opinion of the High Court even if the delay was attributable
to the interim orders of the High Court that did not make any difference to the
applicability of Section 122 of the Army Act.
appellants filed Letters Patent Appeal. By an interim order dated 3.3.1994 the
Division Bench gave liberty to the appellants to proceed with the court martial
but directed no final order to be passed therein. On 21.4.1994 general court
martial proceedings commenced and were concluded on 10.8.1994. The GCM found
the respondent no.1 guilty of 9 charges framed against him. The respondent no.1
was sentenced to rigorous imprisonment for one year, to be cashiered from
service and 15 years past service to be forfeited for the purpose of pension.
The findings recorded by the GCM and the sentence passed on respondent no.1
could not be confirmed in view of the order of the Division Bench dated
3.3.1994. Under Section 153 of the Army Act the finding and sentence of the
court martial are not valid unless confirmed. After hearing both the parties,
vide the judgment dated 25.3.1997 the Division bench dismissed the LPA with a
slight modification. Briefly stated the Division bench held that the first and
the second Court of Inquiry were conducted behind the back of the respondent
and therefore stood vitiated in view of Rule 180 of the Army Rules. It was also
held that the first three Courts of Inquiry were presided over by an officer of
the rank of Lieutenant Colonel and Major and the respondent no.1 could not be
made to appear before an officer lower in rank in view of Regulation 518 of the
Defence Services Regulations. However, the fourth Court of Inquiry was held to
be valid. Nevertheless, the adverse report recording drop in performance of the
respondent no.1 which was based on the first three courts of Inquiry was also
held liable to be set aside. The Division Bench agreed with the learned Single
Judge in holding that the court martial proceedings were barred by time under
Section 122 of the Army Act and it was immaterial if the court martial
proceedings were interdicted by a judicial order.
Union of India has come up in appeal by special leave. We have heard the
learned counsel for the parties at length. The position of law insofar as the interpretation
of Section 122 of the Army Act, 1950 is concerned stands resolved and settled
by a three-Judge Bench Sandhu - 2001 (5) SCC 593 wherein it has been held that
the delinquent officer having himself created a situation withholding
commencement of trial he would be estopped from pleading the bar of limitation
and the trial commenced on vacating of the judicial order of restraint on court
martial shall be a valid trial, relying on the principle that no man can take
advantage of his own wrong. It has also been held that in spite of court
martial proceedings having gone barred by time a disciplinary action based on
the same set of facts and the same misconduct which formed subject-matter of
charge before the court martial is not excluded. The Division Bench and the
learned Single Judge of the High Court were therefore not right in taking the
view which they did for the purpose of quashing the court martial proceedings.
also brought to our notice that certain contempt of court proceedings were initiated
at the instance of the respondent no.1 complaining of the appellants having
violated the interim orders of the Court.
case has a chequered history. For the third time this matter has travelled upto
this Court. Admittedly, the respondent no.1 has retired with effect from
31.8.1996. Upto the time when in the year 1989 the respondent no.1 came to be
posted in Sri Lanka he had a brilliant service record.
We have carefully looked into the allegations levelled against the respondent
no.1 forming subject-matter of several Courts of Inquiry proceedings out of
which 3 have been held to be invalid while one has been held to be valid. The
allegation levelled against the respondent no.1 were not only denied but also
defended by alleging malafides on the part of Brigadier Jaspal Singh, who
according to respondent no.1 was guilty of financial irregularities himself and
was interesting in blocking the respondent no.1, lest the respondent no.1, on
being promoted, should initiate proceedings against him. Keeping in view the
totality of the circumstances of the case, the nature of allegations and
counter-allegations, the chequered history of multiple litigation and the fact
that the respondent no.1 has stood retired from the service we do not deem it
proper to revive several legal proceedings pending against each other and in
our opinion it will meet the ends of justice if this multi-pronged legal battle
and the court proceedings are given a quietus so that the respondent no.1 can
also live a peaceful life as a civilian while the appellants may feel happy
with their relationship with the respondent no.1 having been severed with
effect from 31.8.1996 whatever might have been the appellants earlier view of
the respondents conduct. While hearing the learned counsel for the parties
additionally in the light of the law settled by this Court in the case of Harjeet
Singh Sandhu (supra) we put across the suggestion to the learned counsel for
both the parties and heard them thereon. In our opinion the following
directions would, in the facts and circumstances of this case, meet the ends of
general court martial proceedings initiated against the respondent no.1 shall
stand dropped at the stage at which they are;
respondent no.1 shall be deemed to have retired from the appellants service
with effect from 31.8.1996 in the rank of acting Brigadier. His retiral
benefits shall be settled and released, if not already done;
other proceedings initiated by the appellants against the respondent no.1 or by
the respondent no.1 against the appellants or any of their officers, including
the contempt of court proceedings shall also stand terminated at the stage at
which they may be.
appeals stand disposed of accordingly. No order as to the costs.
. . .
. . . . . . . . . . . . . . . .J.
( S. Rajendra
Babu ) . . . . . . . . . . . . . . . . . . .J.
Lahoti ) August 24,