# 16 S.C.R. 495 UNION OF INDIA AND OTHERS v. SANJAY JETHI AND ANOTHER

- **Citation:** [2013] 16 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 2013-10-18
- **Case number:** CIVIL· APPEAL NO. 891-t OF 2012
- **Bench:** Dr. B.S. Chauhan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/16-s-c-r-495-union-of-india-and-others-v-sanjay-jethi-and-another-29007
- **Pages:** 47

## Headnote

A
. B
Armed Forces Rules, 1954 - rr. 177, 179 and 180 -
Armed Forces Tribunal - Tribunal setting aside the decision
rendered by the Additional Court of Inquiry and consequential C
action taken or orders passed pursuant to the said order
against first respondent and directing to convene a fresh Court
of Inquiry (CO/) with a different Presiding Officer and other
independent members - Propriety - Held: On facts, proper -
What really weighed with the Tribunal while passing the
D
impugned order was that such members constituted the CO!
who were biased or reasoned to be biased and such bias was
discernible - In quasi-judicial proceedings, the authority
empowered to decide a dispute between the contesting
parties has to be free from bias - When free from bias is
E
mentioned, it means there should be absence of conscious
or unconscious prejudice to either of the parties - In the case
at hand, the Technical Members of the Tribunal had compiled
the documents, · adopted the methodology,
made
observations, drawn inferences and expressed the view and,
F
above all, they had prepared the report which was brought on
record as a document- To say, they had not played any role
would tantamount to blinking at reality - Their inclusion as the
Technical Members was not legally permissible - Even
applying the rigorous substantive test, a case of prejudice G
came into full play in the case at hand - Once a COi has been
constituted to inquire into the allegations relating to a person's
character and military reputation subject to the Act it should
not be done by the persons who have expressed their views
495
H
496
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A in writing behind the back of the person and assumed the role
of the recommending authority which is statutory in nature to
take disciplinary action - Law does not countenance the same
- Also, in the fitness of things, the Presiding Officer should
have recused himself to preside over the CO/ since his
9 inclusion in the CO/ had been objected to, on an earlier
occasion, yet he was allowed to continue and was not changed
- Natural justice - Bias.
Armed Forces Rules, 1954 - r.180 - Court of Inquiry
C (CO/) - What r. 180 postulates - Held: r. 180 has a binding
effect on the CO/ -
The Rule provides for procedural
safeguards regard being had to the fact that a person whose
character and military reputation is likely to be affected is in
a position to offer his explanation and in the ultimate eventuate
may not be required to face disciplinary action -
Thus
D understood, the language employed in r. 180 postulates of a
fair, just and reasonable delineation -Duty of the authorities
to ensure that there is proper notice to the person concerned
and he is given opportunity to cross-examine the witnesses
and, most importantly, nothing should take place behind his
E back.
Armed Forces Tribunal Act, 2007 - s. 14 - Jurisdiction,
powers and authority of the tribunal in service matters - Held:
Tribunal required to decide both questions of law and facts
F that may be raised before it and conferred powers to deal with
the cases in promptitude - Promptitude does not ostracize or
drive away the apposite exposition of facts and necessary
ratiocination - A seemly depiction of factual score, succinct
analysis of facts and law, pertinent and cogent reasoning in
G support of the view expressed having due regard to the
rational methodology, are imperative.
H
Administrative Law - Natural Justice - Bias - Effect of -
Held: Bias is an insegregable facet of the concept of natural
JUStice as a genus - Question of bias would arise depending
UNION OF INDIA v. SANJAY JETHI
497
on the facts and circumstances of the case - Challenge of A
bias, when sustained, makes the whole proceeding or order
a nullity, the same being coram non-judice.
The legal propriety of the judgment passed by the
Arnied Forces Tribunal setting aside the decision
rendered by the Additional Court of Inquiry (COi) and
consequential action taken or orders passed pursua

## Text

_Characters 0–39,976 of 89,542. This is a partial read: ask again with offset=39976 for what follows._

[2013) 16 S.C.R. 495
UNION OF INDIA AND OTHERS
v.
SANJAY JETH! AND ANOTHER
(CIVIL· APPEAL NO. 891-t OF 2012)
OCTOBER 18, 2013
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]
A
. B
Armed Forces Rules, 1954 - rr. 177, 179 and 180 -
Armed Forces Tribunal - Tribunal setting aside the decision
rendered by the Additional Court of Inquiry and consequential C
action taken or orders passed pursuant to the said order
against first respondent and directing to convene a fresh Court
of Inquiry (CO/) with a different Presiding Officer and other
independent members - Propriety - Held: On facts, proper -
What really weighed with the Tribunal while passing the
D
impugned order was that such members constituted the CO!
who were biased or reasoned to be biased and such bias was
discernible - In quasi-judicial proceedings, the authority
empowered to decide a dispute between the contesting
parties has to be free from bias - When free from bias is
E
mentioned, it means there should be absence of conscious
or unconscious prejudice to either of the parties - In the case
at hand, the Technical Members of the Tribunal had compiled
the documents, · adopted the methodology,
made
observations, drawn inferences and expressed the view and,
F
above all, they had prepared the report which was brought on
record as a document- To say, they had not played any role
would tantamount to blinking at reality - Their inclusion as the
Technical Members was not legally permissible - Even
applying the rigorous substantive test, a case of prejudice G
came into full play in the case at hand - Once a COi has been
constituted to inquire into the allegations relating to a person's
character and military reputation subject to the Act it should
not be done by the persons who have expressed their views
495
H
496
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A in writing behind the back of the person and assumed the role
of the recommending authority which is statutory in nature to
take disciplinary action - Law does not countenance the same
- Also, in the fitness of things, the Presiding Officer should
have recused himself to preside over the CO/ since his
9 inclusion in the CO/ had been objected to, on an earlier
occasion, yet he was allowed to continue and was not changed
- Natural justice - Bias.
Armed Forces Rules, 1954 - r.180 - Court of Inquiry
C (CO/) - What r. 180 postulates - Held: r. 180 has a binding
effect on the CO/ -
The Rule provides for procedural
safeguards regard being had to the fact that a person whose
character and military reputation is likely to be affected is in
a position to offer his explanation and in the ultimate eventuate
may not be required to face disciplinary action -
Thus
D understood, the language employed in r. 180 postulates of a
fair, just and reasonable delineation -Duty of the authorities
to ensure that there is proper notice to the person concerned
and he is given opportunity to cross-examine the witnesses
and, most importantly, nothing should take place behind his
E back.
Armed Forces Tribunal Act, 2007 - s. 14 - Jurisdiction,
powers and authority of the tribunal in service matters - Held:
Tribunal required to decide both questions of law and facts
F that may be raised before it and conferred powers to deal with
the cases in promptitude - Promptitude does not ostracize or
drive away the apposite exposition of facts and necessary
ratiocination - A seemly depiction of factual score, succinct
analysis of facts and law, pertinent and cogent reasoning in
G support of the view expressed having due regard to the
rational methodology, are imperative.
H
Administrative Law - Natural Justice - Bias - Effect of -
Held: Bias is an insegregable facet of the concept of natural
JUStice as a genus - Question of bias would arise depending
UNION OF INDIA v. SANJAY JETHI
497
on the facts and circumstances of the case - Challenge of A
bias, when sustained, makes the whole proceeding or order
a nullity, the same being coram non-judice.
The legal propriety of the judgment passed by the
Arnied Forces Tribunal setting aside the decision
rendered by the Additional Court of Inquiry (COi) and
consequential action taken or orders passed pursuant to
the said order against the first respondent and directing
B
to convene a fresh Court of Inquiry (COi) with a different
Presiding Officer and other independent members, was
C
called in question in the present appeal.
Four reasons weighed with the Tribunal while
passing the impugned judgment, namely, (i) that though
the tribunal vide its earlier judgment had directed the
witnesses concerned with the annexures which were
D
brought on record before the COi were to be made
available for cross-examination, the said witnesses were
not made subject to cros~-examination tiy the delinquent
officer; (ii) that though the inclusion of the Presiding
Officer in the COi had been objected to on earlier E
occasion, he was allowed to continue and was not
changed; (iii) that in spite of the Technical Members had
prepared and arranged the documents which would
mean that they had expressed an opinion at an earlier
stage, yet they were retained as Members of the COi as
F
a consequence of which the principles of natural justice
were violated, for one cannot be the judge in his own
cause; and (iv) that the doctrine of bias comes into play
as the Presiding Officer as well as the Technical Members
would have a tendency to support their own reports/ G
documents and it is against the spirit of Rule 180.
The issues that therefore emerged for consideration
before this Court were whether the tribunal was justified
in holding that the constitution of the COi which
consisted of two Technical Members and the Presiding
H
498
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A Officer was vitiated as there was possibility of their having
an interest in the proceedings as a consequence of
which being biased or there could be a perception or
likelihood of bias in the decision making process which
would raise a doubt pertaining to the decision by a
B prudent or rational person; and whether the Presiding
Officer and the Technical Members should have been
made available for cross-examination in a COi to meet the
necessary command of Rule 180 of the Armed Forces
Rules, 1954 and further whether there was a real violation
c of the principles of natural justice which ultimately
vitiated the proceedings of the Additional COi.
Dismissing the appeal, the Court
HELD:1. The .authorities, as far as Rule 180 of the
D Armed Forces Rules, 1954 is concerned, are to the effect
that when a COi is set up under Rule 177 and during the
course of enquiry, character or military reputation of a
person is likely to be affected, he should be granted full
opportunity to participate in the proceedings; that the COi
E in its very nature ts likely to examine certain issues
generally concerning a situation or persons; that his
participation could not be avoided on a mercurial plea
that no specific enquiry was directed against the person
whose character or military reputation is involved; that
F the concerned person shall be afforded full opportunity
so that nothing is done at his back and without
opportunity of participation; that it is the command of the
said provision to ensure such participation; that it is not
a condition precedent to always hold that a COi for
G proceeding a trial by court martial where character or
military reputation of the officer concerned is likely to be
affected; that the COi is· in the nature of a fact finding
enquiry committee; that the participation in a COi is at a
stage prior to the trial by court martial; that the said rule
H gives adequate protection to the person affected at the
UNION OF INDIA v. SANJAY JETHI
499
stage. of COi and there is no provision for supplying the
A
accused with a copy of the report of the COi; and that the
proceedings before a COi are not adversarial
proceedings. [Para 23] [519-D-H]
Lt. Col. Prithi Pal Singh Bedi v. Union of India and others
8
AIR 1982 SC 1413: 1983 (1) SCR 393; Uma Nath Pandey
and others v. State of U.P. and another AIR 2009 SC 2375:
2009 (4) SCR 374; Major General lnder Jit Kumar v. Union
of India and others (1997) 9 sec 1; Union of India and Others
v. Major A. Hussain (IC-14827): (1998) 1 SCC 537: 1997 (6)
C
Suppl. SCR 218 and Major G.S. Sodhi v. Union of India
(1991) 2 sec 382 - referred to.
2.1. In the instant case, what really weighed with the
tribunal while passing the impugned order is that such
members constituted the COi who were biased or D
reasoned to be biased and such bias is discernible. Bias
is an insegregable facet of the concept of natural justice
as a genus. The fundamental principles of natural justice
are ingrained in the decision making process to prevent
miscarriage of justice. It is applicable to administrative
E
enquiries and administrative proceedings. It is also
fundamental facet of principle of natural justice that in the
case of quasi-judicial proceeding the authority
empowered to decide a dispute between the contesting
parties has to be free from bias. When free from bias is
F
mentioned, it means there should be absence of
conscious or unconscious prejudice to either of the·
parties. [Para 29] [523-A-D]
2.2. The question of bias would arise depending on
the facts and circumstances of the case. It cannot be an
G
imaginary one or come into existence by an individual's
perception based on figment of imagination. While
dealing with the plea of bias advanced by the delinquent
officer or an accused a court or tribunal is required to
·. adopt a rational approach keeping in view the basic
H
500
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A concept of legitimacy of interdiction in such matters, for
the challenge of bias, when sustained, makes the whole
proceeding or order a nullity, the same being coram nonjudice. One has to keep oneself alive to the relevant
aspects while accepting the plea of bias. What is relevant
8 is actually the reasonableness of the apprehension in this
regard in the mind of such a party or an impression would
go that the decision is dented and affected by bias. To
adjudge the attractability of plea of bias a tribunal or a
court is required to adopt a deliberative and logical
c thinking based on the acceptable touchstone and
parameters for testing such a plea and not to be guided
or moved by emotions or for that matter by one's
individual perception or misguided intuition. [Para 45]
[532-8-E]
D
A.K. Kraipak v. Union of India (1969) 2 SCC 262: 1970
(1) SCR 457; Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport Corporation and others AIR 1959 SC
308: 1959 Suppl. SCR 319 Gul/appalli Nageswarrao v. State
of A.P. and others AIR 1959 SC 1376: 1960 SCR 580 Dr. G.
E Sarana v. University of Lucknow and others (1976) 3 SCC
585: 1977 (1) SCR 64; Manak Lal v. Dr. Prem Chand Singhvi
and others AIR 1957 SC 425: 1957 SCR 575; Secretary to
Government, Transport Deptt., Madras v. Munuswamy
Mudaliar and another 1988 (Supp) SCC 651: 1988 Suppl.
F SCR 673; Kumaon Manda/ Vikas Nigam Ltd. v. Girja Shankar .
Pant and others (2001) 1 SCC 182: 2000 (4) Suppl. SCR
248; S. Patthasarathi v. State of Andhra Pradesh (1974) 3
SCC 459: 1974 (1) SCR 697; G.N. Nayak v. Goa University
and others (2002) 2 SCC 712: 2002 (1) SCR 636; Delhi
G Financial Corpn. and another v. Rajiv Anand and others
(2004) 11 SCC 625; Chandra Kumar Chopra v. Union of India
and others (2012) 6 sec 369: 2012 (5) SCR 1029; State of
Gujarat and another v. Justice R.A. Mehta (Retired) and
others (2013) 3 SCC 1: 2013 (1) SCR 1; Ranjit Thakur v.
H Union of India and others (1987) 4 sec 611: 1988 (1) SCR
UNION OF INDIA v. SANJAY JETHI
501
512 and Major G.S. Sodhi v. Union of India (1991) 2 see
A
382 - referred to.
Frome United Breweries v. Bath Justices (1926) AC 586;
· Metropolitan Properlies Co. (F.G.C.) Ltd. v. Lannon (1968) 3
WLR 694; Franklin v. Minister of Town and Country Planning
8
1948 AC 87; R. v. Bow Street Metropolitan Stipendiary
Magistrate, ex ·p Pinochet Ugarle (No. 2) (2000) 1 AC 119;
Locabail Locabail (U.K.) Ltd. v. Bayfield Properlies Ltd. 2000
QB 451; Ebner, Re. (1999) 161 ALR 55; President of the
Republic of South Africa v. South African .Rugby Football C
Union (1999) 4 SA 147; Vassiliadas v. Vassiliades AIR 1945
PC 38; Allinson v. General Council of Medical Education and
Registration (1894) 1 QB 759; Metropolitan Properlies Co.
(F.G.C.) Ltd. v. Lannon (1969) 1 QB 577; Public Utilities
Commission of the District of Columbia v. Pollak 343 US 451
and Regina JI. Liverpool City Justices, ex parte Topping
D
(1983) 1 All ER 490 - referred to.
Principles of Administrative Law by J.A.C. Griffith and
H Street (Fourth Edition) - referred to.
E
Halsbury's Laws of England, Fourth Edition, Volume 2,
paragraph 551
3. The case at hand is to be appreciated in its factual
backdrop whether there has been "really likelihood of
bias". In a COi participation of a delinquent officer whose
F
character or military reputation is likely to be affected is
a categorical imperative. The participation has to be
meaningful, effective and he has to be afforded adequate
opportunity. Rule 180 is framed under the Army Act and
it has the statutory colour and flavour. It has the binding
G
effect on the COi. The Rule provides for procedural
safeguards regard being had to the fact that a person
whose character and military reputation is likely to be
affected is in a position to offer his explanation and in the
ultimate eventuate may not be required to face. H ·
502
SUPREME COURT REPORTS
[2013) 16 S.C.R.
A disciplinary action. Thus understood, the language
employed in the Rule 180 lays postulates of a fair, just and
reasonable delineation. It is the duty of the authorities to
ensure that there is proper notice to the person
·concerned and he is given opportunity to cross-examine
B the witnesses and, most importantly, nothing should take
place behind his back. It is one thing to say that the COi
may not always be essential or sine qua non for initiation
of a court martial but the another spectrum is once the
authority has exercised the power to hold such an inquiry
c and the COi has recommended for disciplinary action,
then the recommendation of the COi is subject to judicial
review. While exercising the power of judicial review it
becomes obligatory to see whether there has been due
compliance of the stipulates prescribed under the Rule,
0 for the language employed in the said Rule is absolutely
clear and unambiguous. One cannot stretch the said
concept at ·infinitum on the bedrock of grant of
opportunity and fair play. It has to be tested on the
touchstone of factual matrix of each case. [Para 46] [532E F-H; 533-A-E]
4. In the case at hand, initially the COi was
constituted by three members by order dated 22.7.2009
and it was asked to investigate certain issues. Thereafter,
an amendment was brought regarding composition of
F the COi vide order dated 28.7.2009. The core of
controversy, is the inclusion of the Technical Members
and the Presiding Officer in the COi. The respondent
raised the plea of bias against the Technical Members and
had objected to the inclusion of Brig. N.S. Ahamed as
G Presiding Officer. The Technical Members have
expressed their opinion after analysis of the documents.
They have, in detail, scrutinized the documents, drawn
their inferences and made their observations. By no
stretch of imagination it can be said that it is an
H arrangement of documents or pagination of documents.
UNION OF INDIA v. ,SANJAY JETHI
503
B
True it is, they are not the authors of the original 1 A
documents but their analysis and inference have been
used against the respondent in the earlier COi and in the
Additional COi. It cannot be brushed aside by saying that
Technical Members did not sign the final report. Once
they have given an opinion, the possibility to support the
same cannot be totally discarded. That is where the real
likelihood of bias comes into play. If one has something
substantial, relevant or material to do with the case he is
disqualified. In the case at hand, the T~chnical Members
had compiled the documents, adopted! the methodology;
made observations, drawn inferences a,nd expressed the C
view and, above all, they had prepared the report which
has been brought on record as a document. To say, they
had not played any role would tantamount to blinking at
reality. Their inclusion as the Technical Members is not 0
legally permissible. It is so as the said respondent is
bound to be prejudiced. Even applying the rigorous
substantive test, a case of prejudice comes into full play
in the case at hand. [Paras 47, 48, 51 and 52) [533-F; 534i
C; 536-0-E; 537-D-H; 538-A-B]
5. Once a COi has been constituted to inquire into
the allegations relating to a person's character and
military reputation subject to the Act it should not be done
by the persons who have expressed their views in writing
behind the back of the person and assume the role of the
recommending authority which is statutory in nature to
take disciplinary action. Law does not countenance the .
same. In the present case it is irrefragably clear that the
recommendation of the COi was the sole basis on which
E
F
the disciplinary action has been initiated. Nothing else
G
had come on record as observed by the tribunal on earlier
occasion as well as by the impugned order and the said
finding is unassailable. That being the position, in the
fitness of things, the Presiding Officer should have
recused himself to preside over the COi. However, on
H
504
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A earlier occasion the tribunal had not quashed the entire
proceedings and the same was not challenged by either
of the parties. Therefore, the Additional COi which has
been directed by the tribunal by the impugned judgment,
shall only function as an Additional COi and deal with the
8 documents which were produced earlier before the
tribunal. [Para 54) (539-G-H; 540-A-C]
6. Respondent No. 1 at one point of time had filed a
long list of witnesses. On the earlier occasion the tribunal
permitted for examination or cross-examination of
C witnesses who had something to do with the documents.
D
The Additional COi shall keep that in view so that there
is no procrastination of the proceedings at the behest of
the delinquent officer, for natural justice has also its own
limitations. [Para 55] (540-D-EJ
7. Though, in the case at hand, the verdict of the
tribunal is being sustained, it is found that the tribunal did
not advert to the necessitous facts. Section 14 of the
Armed Forces Tribunal Act, 2007 occurs in Chapter Ill of
E the said Act and deals with jurisdiction, powers and
authority of the tribunal in service matters. Under subsection (5) of Section 14 the tribunal is required to decide
both questions of law and facts that may be raised before
it. The tribunal has been conferred powers to deal with
F the cases in promptitude. Promptitude does not ostracize
or drives away the apposite exposition of facts and
necessary ratiocination. A seemly depiction of factual
score, succinct analysis of facts and law, pertinent and
cogent reasoning in support of the view expressed
having due regard to the rational methodology, are
G imperative. [Para 56) [540-F-H; 541-A-C)
H
Case Law Reference:
1983 (1) SCR 393
2009 (4) SCR 374
referred to
referred to
Para 4
Para 5
UNION OF INDIA v. SANJAY JETHI
505 ..
(1997) 9 sec 1
referred to
Para 20
A
(1991) 2 sec 382
referred to
Para 20
1997 (6) Suppl. SCR 218 referred to
Para 22
. 1970 (1) SCR 457
referred to
Para 29
B
1959 Suppl. SCR
referred to
Para 29
1960 SCR 580
referred to
Para 29
1977 (1) SCR 64
referred to
Para 29
c
1957 SCR 575
referred to
Para 29
(1926) AC 586
referred to
Para 31
1988 Suppl. SCR 673
referred to
Para 34
2000 (4) Suppl. SCR 248 referred to
Para 35
D
1974 (1) SCR 697
referred to
Para 36
(1968) 3 WLR 694
referred to
Para 36
1948 AC 87
referred to
Para 36
E
(2000) 1 AC 119
referred to
Para 36
2000 QB 451
referred to
Para 36
(1999) 161 ALR 55
referred to
Para 36
F
(1999) 4 SA 147
referred to
Para 36
2002 (1) SCR 636
referred to
Para 37
(2004) 11 sec 625
referred to
Para 38
2012 (5) SCR 1029
referred to
Para 39
G
2013 (1) SCR 1
, referred to
Para 40
1988 (1) SCR 512
referred to
Para 42
H
A
B
c
506
SUPREME COURT REPORTS
[2013] 16 S.C.R.
(1991) 2 sec 382
referred to
Para 42
AIR 1945 PC 38
referred to
Para 42
(1894) 1 QB 759
referred to
Para 43
(1969) 1 QB 577
referred to
Para 43
343 us 451
referred to
Para 43
(1983) 1 All ER 490
referred to
Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8914 of 2012.
From the Judgment & Order dated 12.10.2012 of the
Armed Forces Tribunal, Regional Bench, Mumbai in Transfer
Application No. 38 of 2011.
D
Paras
Kuhad,
ASG,
Jitin
Chaturvedi,
R.
Balasubramaniam, Abhinav Mukherjee, Shalaj Mridul, B.V.
Balaram Das for the Appellants.
Shekhar Naphade, Ashok K. Mahajan for the
E Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The legal propriety of the judgment
and order dated 12.12.2012 in TA No. 38 of 2011 passed by
F the Armed Forces Tribunal, Regional Bench at Mumbai (for
short "the tribunal") ~etting aside the decision rendered by the
Additional Court of Inquiry and consequential action taken or
orders passed pursuant to the said order and directing to
convene a fres,h Court of Inquiry (COi) with a different Presiding
Officer and other independent members, if decision is taken
G to proceed against the 1st respondent, is called in question in
the present appeal.
2. The factual score as depicted is that on 5.8.2009, a
complaint was made by one of the officers alleging irregularity
H in the hiring of Civil Hin~d Transport (CHT), which were used
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 507
for the purpose of;supply of ordnance stores to units spread
A
over the country, including remotest field and high altitude area
by the respondent No. 1 who holds the rank of Colonel in the
Army. On the basis of a complaint, the General Officer
Commanding-in-Chief, Pune initiated an action against the
respondent No. 1 by making his attachment with HQ Sub Area
B
on 6.8. 2009 and also convened a Board of Officers on
21.7.2009 for ascertaining the truthfulness of the allegations.
On 22.7.2009 the said Board seized the entire records and
submitted a report. On the premises of 'hat report, a COi was
convened against the respondent No. 1 to investigate into the c
alleged irregularities.
3. The COi conducted an inquiry and on 8.3.2010
recommended for taking appropriate disciplinary action
against the 1st respondent and some other officers. On the
basis of the said recommendation on 23.2.2010 the first
D
respondent was attached to the Head Quarters, Mumbai Sub
Area till finalization of the disciplinary proceedings. At that
juncture,. respondent No. 1 filed Original Application No. 283
of 2010 before the Principal Bench of the tribunal at New Delhi
challenging the COi proceedings contending, inter alia, that he
E
had been deprived of the right of cross-examination as
stipulated under Rule 180 of the Armed Forces Rules, 1954
(for short "the Rules"); and that there had been non"supply of
documents which were annexed after conclusion of the
proceedings before the COi. As the factual matrix would unveil,
F
on 17 .6.2010 the hearing of charges commenced and the
Commanding Offrcer, Mumbai Sub Area, under Rule 22
directed for recording of Summary of Evidence under Rule 23.
4. The Original Application filed before the tribunal was
G
disposed of on 8.10.2010. While dealing with the grievance
pertaining to violation of Rule 180, especially the deprivation
of the right to cross-examine, the tribunal referred to the
. decision in Lt. Col. Prithi Pal Singh Bedi v. Union of India.and
1.
AIR 1982 SC 1413.
H
508
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A others1, certain passages from Administrative Law by De Smith
and applicability of the principles of natural justice and came
to hold that as the 1st respondent had remained present
throughout the course of COi and had been given opportunity
to 'cross-examine the witnesses and, therefore, the grievance
B that he was not afforded full opportunity to cross-examine did
not merit consideration. In fact, the tribunal opined that in-depth
cross-examination was allowed to the respondent No. 1 and the
Presiding officer asking for written questions to be submitted,
could be treated as fair and reasonable exercise of discretion
c and hence, there was no illegality or irregularity in the conduct
of the COi.
5. A contention was advanced that after conclusion of the
proceedings by the COi when the report was submitted, certain
documents which were not made available to the said
D respondent were annexed to justify his culpability. The tribunal
found force in the said submission and opined that it was the
duty of the COi to find out the truth by holding suitable
investigation about the documents that were annexed
afterwards. This opinion was formed on scrutiny of the language
E employed in Rule 180 and placing reliance on the dictum in
Uma Nath Pandey and others v. State of U.P. and another2.
This led to the ultimate conclusion that such enclosing of the
documents along with the report by the COi amounted to
violation of Rule .180 inasmuch as the said report was treated
F as the sole basis for initiating the disciplinary proceedings
against the respondent No. 1. It was also held that it would be
difficult for the authority concerned to proceed for hearing on
the point of charge to take into account those documents which
were subsequently annexed, and in all fairness, an Additional
G COi should be convened affording full opportunity to the parties,
by examining .or cross-examining any of the witnesses
pertaining to those annexures.
H 2.
AIR 2009 SC 2375.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 509
6. Being of this view the tribunal directed the authority to
A
convene an Additional COi limiting to the documents which
were subsequently annexed to the .eport of the COi and
granting liberty to the delinquent officer to cross-examine any
of the witnesses, if produced, pertaining to those documents.
7. In pursuance to the aforesaid order, the Additional COi
B
reassembled and the respondent No. 1 was shown all the
documents and he perused the same, as the proceedings would
reveal, availing considerable length of time. At that stage, he
made a request for grant of permission to cross-examine the
C
Technical Members but the same was denied on the ground that
as per Rule 180 he could only cross-examine the witnesses and
not the Members. However; certain other witnesses were
examined and cross-examined in the COi and, eventually, a
report was sent by the Presiding Officer.
8. Being grLeved by the said order the respondent No. 1
preferred an Original Application under Section 14 of the
Armed Forces Tribunal Act, 2007 for quashing of the Additional
D
COi as there had been infraction of Rule 180 and for issue of
appropriate direction for holding a fresh Additional COi with new
E
Members who are independent and unbiased and the said
Original Application was transferred to the Regional Bench at
Mumbai where it was registered as TA No. 38/2011. For
claiming such relief heavy reliance was placed on the order
passed on earlier occasion in OA No. 283/2010. ·it was
F
contended before the tribunal that Brig. N.S. Ahmed, who was
the earlier Presiding Officer of the COi, had continued as the
Presiding Officer of the Additional COi despite objections
raised by the applicant therein and in spite of the request to
constitute a fresh COi without him. It was highlighted that the
G
concerned Brigadier should have been made available for
cross-examination as he was the author of the document, i.e.,
Ext. XLI which was referred to in the order dated 8.10.2010 in
OA No. 283/2010. It was brought to the notice of the tribunal
that in the Additional COi Lt. Col. Sandeep Sinha and Maj.
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[2013) 16 S.C.R.
A Sanjeev Narula were also retained as Technical Members
despite the factum that those two officers were responsible for
preparing the appendices 'N' to 'AB' to Ext. XLIX and on that
ground he had been deprived of the opportunity of crossexamining them. It was further put forth that the document, vide
B Ext. XXXV, was not shown or allowed for his perusal although
the said document was a complete report making serious
allegations of misappropriation and fraud against the applicant
therein. In essence, the grievance that was agitated before the
tribunal was that certain documents were not supplied and the
c authors of document had become the Members of the
Additional COi. It was also submitted that as the Additional COi
had already submitted the report and the next phase of the
proceedings, i.e., Summary of Evidence was about to be over
the same also deserved to be quashed.
D
9. The said submissions were resisted by the respondents
therein contending that Ext. XU contains the observations of the
Court on the two letters referred to it, i.e., COD, Mumbai letter
No. 2754/Gen/Cont dated 4.8.2008 and DGOS IHQ of MoD
(Army) letter No. PC-2/13357/RI00159/Fin/OS-4(e) dated
E 6.8.2009 and these two letters were earlier perused by
respondent No. 1. Emphasis was laid on the fact that there is
no provision for cross-examination of the Presiding Officer of
the COi on the basis of his observations made in the COi. As
regards the cross-examination of the Technical Members, it
F was opposed on the ground that the Technical Members had
only collated the data which was taken into consideration for
formation of an opinion by the COi and the same was done to
comply with the order passed on the earlier occasion. It was
put forth that Technical Members had only signed the day's
G proceedings and had no role to play in the final opinion
expressed by the COi. That apart, it was stressed that the
Technical Members had been produced as witnesses in
Summary of Evidence and every opportunity had been granted
to the applicant therein to cross-examine them and, therefore,
1.•
no prejudice has been caused to him due to their non-
I UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 511
production in the COi for cross-examination.
A
10. It was also contended that request of the applicant
therein to cross~examine the authors of the document XU and
XUX was beyond the scope of the Rule and was also not in
accord with the earlier judgment passed on 8.10.2010. It was
8
put forth that Technical Members were allowed only to assist
the Presiding Officer in the proceedings and not allowed to form
any opinion and finding. Their inclusion in the Additional COi
would not vitiate the enquiry as it does not violate the spirit of
Rule 180.
c
11. The tribunal first dealt with the contention relating to
inclusion of Technical Members in the Additional COi. In that
context, it observed that the Technical Members were
undoubtedly involved and connected with the matter being
investigated and since they had submitted their report, it was
D
obvious that those members would certainly support their own
report/ documents and it would not be possible for them to
arrive at a different finding than what they had already found
as their personal credibility would be at· stake. Taking note of
this fact.situation and also the factum that the respondent herein
E
had raisia.Q his objection at the initial stage pertaining to
inclusion of these officers in the Additional COi, the tribunal
opined that the apprehension expressed by him was wellfounded.
12. After so holding the tribunal proceeded to deal with the
F
mandate of Rule 180 and relying on the decision rendered in
Lt. Col Prithi Pal Singh Bedi (supra) and certain other
decisions of the ~ligh Courts came to hold as follows: -
'
" ...... that the respondents did not produce the maker of G ·
those documents XUX and XU for cross examination by,
the applicant, although he specifically prayed for it which
was also directed in judgment passed in OA 283/2010.
The applicant objected from the very beginning not to
include Brig NS Ahmed and two Technical Members in the
H
A
B
c
D
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[2013) 16 S.C.R.
Addi. COi so that a fair trial can be held and they could be
cross examined by him. But the respondents turned a deaf
ear to such request of the applicant and in fact that has
been done at their own risks. The categorical direction in
the earlier OA 283/2010 dt. 8.10.2010 passed by the
Principal Bench ·of AFT is that in the additional COi the
petitioner is to be afforded with full opportunities to examine
and cross examine the witnesses pertaining to those
documents. The respondents, could have convened the
additional COi with different members when there are
various other officers available for holding the additional
inquiry, but they preferred not to do so and in turn creators
of some vital documents were inducted as members
allowing themselves to decide upon the documents created
by them and they being the Members of the inquiry were
not produced for cross examination by the applicant. Such
action on the part of the respondents is contrary to fair play
in action."
13. The tribunal observed that as the applicant therein was
not allowed to cross-examine the makers of documents XLIX
E and XU, the respondents therein not only violated the provisions
of Rule 180 but also did not comply with the directions
contained in the earlier judgment passed in OA No. 283/2010.
The tribunal proceeded to state that the contention advanced
by the respondents therein that on reading of Rule 180 it cannot
F be discerned that the Presiding Officer and Technical Member
of the COi were required to be produced as witnesses was
devoid of merit. After so stating the tribunal held that the
respondents therein should not have included Brig. N.S. Ahmad
as Presiding Officer and Lt. Col. Sandeep Sinha and Maj.
G Sanjeev Narula as Technical (ltlembers in the said Additional
COi, for whatever might be the role of the Technical Members,
nonetheless they were Members of the Additional COi and
must have applied their mind while preparing the inquiry report.
H
14. Being of this opinion, the tribunal concluded that the
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 513
decision rendered by Additional COi was in violation of the
A
provisions contained in Rule 180 and, accordingly, set aside
the same and also all consequential actions taken on the basis
of the said Additional COi. It granted liberty to the respondents
. therein to convene a fresh Additional COi with a. different
Presiding Officer and other independent Members.
B
15. The centripodal issues that emerge for consideration
are whether the tribunal was justified in holding that the
constitution of the COi which consisted of two Technical
Members and the Presiding Officer was vitiated as there was
C
possibility of their having an interest in the proceedings as a
consequence of which being biased or there could be a
perception or likelihood of bias in the decision making prooess
which would raise a doubt pertaining to the decision by a
prudent or rational person; whether the Presiding Officer and
the Technical Members should have been made available for
D
cross-examination in a COi to meet the necessary command
of Rule 180 and further regard being had to the earlier order
passed in OA No. 283 of 201 O; and whether there has been
real violation of the principles of natural justice which ultimately
vitiates the proceedings of the Additional COi.
E
16. To appreciate the said aspects we shall first proceed
to examine the schematic contents of the Rules in issue and
how they have been understood and interpreted by this Court.
Chapter VI of the Rules provides for COi. Rule 177 deals with
F
the Constitution of COi and its role, namely, to collect evidence
and if so required to report with regard to any matter which may
be referred to them. Rule 179 provides the procedure by which
a COi shall be guided.
17. Rule 180 on which the present controversy revolves
G
deals with the procedure when character of person subject to
the Act is involved. It is as follows:-
"180. Procedure when character of a person subject
to the Act is involved. - Save in the case of a prisoner
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[2013) 16 S.C.R.
A
of war who is still absent whenever any inquiry affects the
character of military reputation of a person subject to the
Act, full opportunity must be afforded to such person of
being present throughout the inquiry and of making any
statement, and of giving any evidence he may wish to
B
make or give, and of cross- examining any witness whose
evidence in his opinion, affects his character or military
reputation and producing any witnesses in defence of his
character or military reputation. The presiding officer of the
court spall take such steps as may be necessary to ensure
c
that any such person so affected and not previously notified
receives notice of any fully understands his rights, under
this rule."
·
17. Rule 182 stipulates that the proceeding of Courts of
Inquiry or any confession statement or answer to a question
D made or given at a COi shall not. be admissible in evidence
against a person subject to the Act, nor shall any evidence
respecting the proceedings of the court be given against any
such person except upon the trial or such person for willfully
giving false evidence before that court: The proviso to the rule
E states nothing in the said rules shall prevent the proceedings
from being used by the prosecution or the delence for the
purpose of cross-examining any witnesses. Rule 184 which has
been substituted by S.R.O. 44, dated 24th January, 1985 deals
with right of certain persons to copies of statements and
F documents.
18. Rule 180 had come up for consideration in Lt. Col
Prithi P.~I Singh Bedi (supra). In the said case a contention was
advanced that it was obligatory upon the authorities concerned
G to appoint a COi whenever it affects the character or military
reputation of a persons subject to the Act and in such an enquiry
full opportunity must be afforded to such person of being present
throughout the enquiry and of making any statement or giving
any evidence he may wish to make or give and of crossH examining any witness whose evidence in his opinion affects
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] .515
the character or miHtary reputation and producing any witness . A
in defence of his character or military reputation. It was further.
urged before the court that on a correct interpretation of Rule
180, it would appear whenever the character of a person subject
to the Act is involved in any inquiry, a COi must be set up.
Repelling the said submission the learned judges opined thus:-
B
"Rule 180 does not bear out the submission. It sets up a
stage in tne procedure prescribed for the Courts of inquiry.
Ru1e·1so cannot be construed to me·an that whenever or
wherever in' any inquiry in respect of any person subject
to the Act his character or military reputation is likely to be
C
affected setting up of a Court of inquiry is a sine qua non ..
Rule 180 merely makes it obligatory that whenever a Court
of inquiry is set up and in the course of inquiry by the Court
of inquiry character or military reputation· of a person is
likely to be affected then such a person must be given a
D
full opportunity to participate in the proceedings of Court·
of inquiry. Court of inquiry by its very nature is likely to
examine certain issues generally concerning a situation or
persons."
[Emphasis supplied)
19. Thereafter, the Court dealt with the proceedings where·
the participation of a person is obligatory and where it is not
required. The said delineation is as follows:-
"Where collective fine is desired to be imposed, a Court
of inquiry may generaily examine the shortfall to ascertain
how many persons are responsible. In the course of such
an inquiry there may be a distinct possibility of character
E
F
or military reputation of a person subject to the Act likely
G
to be affected.