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  • Manak Mohta, J.M.
  • M.L. Naidu, A.M.
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  • Section 81(m) of the Navy Act
  • provisions of Army Rule 180
  • SECTION 81 NAVY ACT
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
  • Manak Mohta, J.M.
  • M.L. Naidu, A.M.
Acts
  • Section 81(m) of the Navy Act
  • provisions of Army Rule 180
  • SECTION 81 NAVY ACT
  • 11 of 15 Army Rule 180
  • Section 71(h)
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Smart Summary

Structured Summary of the Opinion — TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall (Announced 22.09.2011)

Factual and Procedural Background

The petition was initially registered as WP(C) No.4539 of 1999 in the Delhi High Court on 26.07.1999 and was transferred to the Armed Forces Tribunal (AFT) on 10.12.2009. The applicant challenged three primary actions: (a) the Ministry of Defence (MOD) order dated 14.02.1997 terminating his services effective 06.03.1997; (b) the MOD letter dated 18.05.1998 forfeiting his pensionary benefits; and (c) correspondence (Station HQ Bhatinda and HQ Western Command) directing him to deposit Rs.41,899.53 to make good losses alleged in connection with the CSD canteen.

Relevant factual matrix presented in the opinion: the applicant was commissioned on 22.12.1969; served as Station Staff Officer (SSO) and thereby as Canteen Officer at Bhatinda; some financial irregularities in the canteen led to a Court of Inquiry (COI) convened on 30.07.1993 (completed October 1994). The applicant was called as a witness in that COI. On completion, he and others were held responsible for detected losses and directed (by order dated 29.09.1994) to deposit Rs.41,899.53, which he paid. No disciplinary action immediately followed.

Subsequently, a show cause notice dated 30.01.1996 (Annexure P-9) proposed termination; the applicant replied on 23.05.1996 contesting responsibility and noting he had already deposited the sum. The MOD terminated his services by order dated 14.02.1997. Thereafter, a second show cause notice dated 22.10.1997 questioned forfeiture of pensionary benefits; the applicant replied on 07.11.1997. The applicant contended he had already been punished by depositing the money and that he was being subjected to multiple penalties for the same cause of action.

Legal Issues Presented

  1. Whether the Court of Inquiry (COI) proceedings were legally valid in view of non-compliance with Army Rule 180 when the applicant became implicated.
  2. Whether the termination order dated 14.02.1997 (administrative dismissal) and the subsequent order forfeiting pension dated 18.05.1998 can be sustained where the COI findings formed the primary basis for those orders and the COI proceedings were not supplied to the applicant.
  3. Whether the deposit order directing the applicant to pay Rs.41,899.53 should be upheld or quashed.
  4. Whether the applicant suffered impermissible multiple punishments for the same underlying conduct and, relatedly, whether natural justice was violated by not supplying COI material and by not applying Rule 180 when the applicant's character and reputation were affected.
  5. Whether respondents may initiate fresh disciplinary or administrative proceedings after rectifying purported legal infirmities in the COI.

Arguments of the Parties

Applicant's Arguments

  • The COI proceedings were flawed because Army Rule 180 was not applied when the applicant's name emerged; in the COI he was only called as a witness and Rule 180 protections were not afforded.
  • He had already deposited Rs.41,899.53 to make good deemed losses and thus had been punished; subsequent termination and forfeiture amounted to multiple punishments for a single act.
  • The termination order dated 14.02.1997 was not a speaking order and failed to consider his replies to the 30.01.1996 show cause notice.
  • Documents / COI proceedings were not supplied with the show cause notice, preventing him from preparing an adequate defence.
  • Relied on authorities (including Union of India v. Mohd. Ramzan Khan; Lt Gen S.K. Dahiya v. UOI; Surendra Kumar Sahni; Major Harbhajan Singh) to contend that Rule 180 is mandatory and that quasi-judicial/fact-finding proceedings affecting character require compliance with natural justice.

Respondents' Arguments

  • The COI was convened as a general fact-finding exercise and initially did not name individuals; the applicant was only called to give evidence and his name emerged through the inquiry.
  • Army Rule 180 was not invoked, but the subsequent show cause notice concisely stated the gravamen of charges against the applicant.
  • The original COI proceedings would have been supplied to the applicant had he requested them; the applicant did not ask for copies when replying to the show cause notice.
  • Relied on Union of India v. P.D. Yadav (2002) 1 SCC 405 to argue that the Central Government retains the power to order forfeiture of pension/gratuity under the relevant pension/regulatory provisions, and that such an order is not necessarily an additional punishment.
  • Contended the termination was administrative and taken because disciplinary action was time-barred; produced original documents and the convening order to show reasons for administrative action.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Union of India & Ors. vs Mohd. Ramzan Khan, AIR 1991 SC 471 Disciplinary inquiry is quasi-judicial; principles of natural justice apply; a delinquent must have knowledge of material used against him. Cited by applicant's counsel to support the argument that COI material used against the applicant without affording him opportunity violated natural justice. The Tribunal references the principle in assessing prejudice from COI non-disclosure.
Lt Gen S.K. Dahiya vs Union of India and Ors., Mil LJ 2007 Del 151 Held that Army Rule 180 is mandatory; COI proceedings vitiated on account of violation of Rule 180. Cited by the applicant; Tribunal treats this authority as supportive of the proposition that non-compliance with Rule 180 can vitiate COI proceedings.
Surendra Kumar Sahni vs Chief of Army Staff, 2008 (3) SLR Compliance with Army Rule 180 is mandatory and affords a full opportunity to an affected officer; obligation cannot be shifted. Cited by applicant; Tribunal relies on the mandatory character of Rule 180 when concluding that Rule 180 should have been applied as soon as individuals were implicated.
Major Harbhajan Singh vs The Ministry of Defence and others, All India Services Law Journal 1982 (2) p.120 Elaborates Rule 180 rights: presence throughout inquiry, making statements, giving evidence, cross-examination and producing defence witnesses; Presiding Officer obliged to explain rights. Quoted and relied upon by Tribunal to demonstrate the protective scope of Rule 180 and to find prejudice from its non-application in the COI.
Union of India & another vs P.D. Yadav, (2002) 1 SCC 405 Central Government / President retains power to pass orders forfeiting pension under pension regulations even where some disciplinary punishments have been imposed; forfeiture under regulatory powers is available. Relied on by respondents to justify the forfeiture power; Tribunal records the respondents' reliance but examines the COI infirmity and non-supply of proceedings in reaching its decision.
Maj G.S. Sodhi vs UOI & Ors., (1991) 2 SCC 382; Maj Gen Inder Jit Kumar vs UOI, (1997) 9 SCC 1; Maj Suresh Chand Mehta vs Defence Secretary & Ors, AIR 1991 SCC 482 Authorities holding that a COI is a preliminary fact-finding body and shortcomings therein do not automatically vitiate subsequent proceedings if the accused gets full opportunity to prepare defence and is not prejudiced. Cited by respondents to contend that COI shortcomings do not necessarily vitiate action; Tribunal acknowledges these authorities but distinguishes them on facts, observing that here the COI findings were the sole basis for action and proceedings were not supplied to the applicant, causing prejudice.
Lt Gen Surender Kumar Sahni vs UOI & Ors., TA No.34 of 2009 (AFT Principal Bench) Held that respondents were free to initiate disciplinary/administrative action or to rectify COI shortcomings. Referred to by Tribunal; used to indicate respondents may initiate fresh proceedings after rectifying COI deficiencies.

Court's Reasoning and Analysis

The Tribunal conducted a fact-based legal analysis focusing primarily on the legality of the COI process and the consequences that flowed from it:

  1. Nature of COI and Army Rule 180:

    The convening order for the COI was of a general nature and did not list individual names at the outset. The Tribunal accepted that Rule 180 could not have been applied in the very first convening order if no individuals were identified. However, the Tribunal emphasized that once specific persons (including the applicant) emerged during the COI, Army Rule 180 should have been applied to afford the protections the rule mandates.

  2. Evidence of non-compliance:

    The respondents' counter-affidavit itself recorded that the Convening Authority passed strictures against the Presiding Officer for not complying with Army Rule 180, demonstrating non-compliance within the record.

  3. Reliance on COI as sole basis for punitive action:

    The Tribunal noted the Show Cause Notice (31.01.1996) expressly stated that the COI had found "irrefutable evidence" and held the applicant culpable of embezzlement. The Tribunal observed that the subsequent termination and forfeiture orders were based entirely on COI findings.

  4. Non-supply of COI proceedings and prejudice:

    The COI proceedings were not supplied to the applicant with the show cause notice; the Tribunal found this prevented the applicant from adequately preparing his defence and thereby caused prejudice, undermining principles of fair procedure and natural justice.

  5. Effect of precedent and distinguishing cases relied upon by respondents:

    While the Tribunal recorded authorities stating that COI infirmities do not always vitiate subsequent proceedings where the accused is not prejudiced, it distinguished those cases on the ground that in the present matter there was no consequential trial and the COI findings alone were used to take punitive administrative steps without supplying COI material to the applicant.

  6. Remedial and consequential analysis:

    Because the COI was treated as the primary basis for action and because Rule 180 protections were not applied when the applicant was implicated, and because COI proceedings were not provided to him, the Tribunal concluded the COI findings were vitiated. Consequently, the Show Cause Notice and subsequent orders based on the COI stood vitiated to the extent indicated by the Tribunal. The Tribunal nevertheless upheld the earlier order directing the applicant to deposit Rs.41,899.53, noting the applicant had not protested that order at the relevant time.

Holding and Implications

Core Ruling: The Tribunal quashed the proceedings of the Court of Inquiry and consequently quashed the orders based on those proceedings, namely the order of termination of service dated 14.02.1997 and the order of forfeiture of pension dated 18.05.1998. The order directing deposit of Rs.41,899.53 was upheld. The application was partly allowed.

Consequences and Directions:

  • The applicant will be deemed to be in service until his superannuation (30.06.1997), and all consequential benefits, including pensionary benefits, shall accrue.
  • The respondents are free to initiate departmental and/or disciplinary action afresh, after rectifying the identified legal infirmities in the COI (i.e., they may proceed but cannot rely on the vitiated COI).
  • The respondents were directed to complete payment of monetary dues to the applicant within 180 days; failure to do so will attract interest at 12% until payment.
  • No order as to costs was made by the Tribunal.

The opinion does not purport to lay down a new legal precedent beyond its application to the facts of this case. The Tribunal primarily applied established principles concerning Army Rule 180, natural justice, the consequences of non-supply of inquiry material, and the circumstances in which COI infirmities will vitiate subsequent action.

This summary is prepared strictly on the basis of the text of the provided opinion and does not add facts or inferences not present in that text.

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    Ex. Lt. Col. B.K. Mall v. Union Of India

    Date: 22.09.2011

    1. The case was registered as WP(C) No.4539 of 1999 in the Honble High Court of Delhi on 26.7.1999 and was subsequently transferred to the Armed Forces Tribunal on 10.12.2009.

    2. The applicant vide his petition has prayed for quashing of the Government of India, Ministry of Defence order dated 14.2.1997 (Annexure P-1) which terminated the services of the applicant and to re-instate the applicant in service w.e.f. 06.03.1997, the date from which the applicant was removed from service with all consequential financial benefits. The applicant has also sought quashing the Ministry of Defences letter dated 18.5.1998 (Annexure P-2) for forfeiture of entire pensionary benefits which was entitled to him having put in 27 TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 2 of 15 years of physical commissioned service. The applicant has also sought quashing of the Station HQ Bhatindas letter dated 25.7.1994, HQ Western Command Letter dated 12.9.1994 which directed him to deposit an amount of Rs.41899.53 in order to make good the losses that accrued to the respondents and be directed to refund the same.

    3. The applicant was commissioned into the Army service on 22.12.69. On 27.8.1988 he was posted as the Station Staff Officer (SSO) in the rank of Major at Bhatinda. Col. R.C.D. Joshi was posted to the same place as the Administrative Commandant.

    4. As per the Standard Operating Procedure (SOP), the SSO the applicant was appointed as the Canteen Officer. One Col. M.C. Singla, a retired officer, who was reemployed was attached to the Station HQ Bhatinda and he was deputed to look after the CSD Canteen and to assist the SSO.

    5. On 21.12.1990, the applicant was promoted as Lt. Col. Time Scale (TS). On 5.5.1991, the applicant was posted to 116 GL Section on relieve by Major K.A. Singh. During the handing/taking over, all the stocks in the Canteen were checked and found to be correct.

    6. It is revealed from the record that there were some allegations of financial irregularities in Canteen management. On 30.7.1993, a Court of Inquiry (COI) was convened to investigate the same in which the applicant was called as a witness. Army Rule 180 was not applied. On TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 3 of 15 completion of the COI in October 1994, the applicant alongwith some others were held responsible for the losses which were detected during the COI. Consequently, the applicant was directed to deposit vide order dated 29 Sep 1994 a sum of Rs.41899.53, which was deposited by him. No further action was suggested at that time.

    7. On 30.1.1996, consequent to the recommendations of the COI, a show cause notice was issued to the applicant asking him as to why his services should not be terminated (Annexure-P-9). He replied to the show cause notice on 23.5.1996 in which he agitated that he had already made up the deemed losses by depositing a sum of Rs.41899.53 and therefore, he was already punished and thus, the show cause notice was irrelevant. In his reply, he also made an averment that he was in supervisory capacity which was consequent to his designation as the SSO and therefore, was not directly responsible for the deemed losses. He further stated in the reply that he had only one year left before he would superannuate on 30.6.1997. The respondents considered his reply to the show cause notice but did not find satisfaction and his services were terminated by the MOD vide their order dated 14.02.1997 (Annexure P-1).

    8. On 22.10.1997, another show cause notice was issued by the MOD (Annexure P-10) to the applicant which sought reasons for why his pensionary benefits that were admissible to him, had he retired from the service on the same date in the normal course, should not be TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 4 of 15 forfeited. The applicant replied to this second show cause notice on 07.11.97 (Annexure P-11). In reply to this show cause notice, the applicant made an averment that he had already deposited Rs.41,899.53 with the Government in order to make up the deemed losses. Further, that his services have been terminated w.e.f. 06.03.1997 by the MOD vide their letter dated 14.2.1997. This letter of 14.02.1997 did not mention forfeiture of pensionary benefits. In case the pensionary benefits are forfeited, the applicant would have suffered three times penalty for the same cause of action.

    9. Ld. Counsel for the applicant also argued that the GOC-in-C had recommended in the court of inquiry for disciplinary action on 27.04.1994 which was besides the penal deduction in order to make good the losses. However, for the reasons best known to the respondents, no disciplinary action was taken but on the other hand his services were terminated as part of administrative action after having served him the show cause notice.

    10. In the show cause notice issued on 31.1.1996 (Annexure-P-9), para 5 clearly states that :- In consideration of the fact that the case has become time barred for disciplinary action by way of Court Martial; and in view of your confirmed weak moral fibre and unreliability in financial matters, the Chief of the Army Staff has decided that your further retention in service is not desirable. TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 5 of 15

    11. This clearly shows that the reason for taking administrative action instead of disciplinary action was because the case was getting time barred.

    12. Ld. Counsel for the applicant further argued that the dismissal order was issued by the Central Government on 14.2.1997 (Annexure P-1) is not a speaking order and without having considered the averments and pleas made by the applicant in his reply to the show cause notice of 30.1.1996.

    13. Ld. Counsel for the applicant also argued that no document was supplied to him alongwith the Show Cause Notice. Therefore, the applicant was restricted in giving his reply and was unable to prepare his defence adequately.

    14. Ld. Counsel for the applicant also stated that in the court of inquiry which was conducted in August 1993, the applicant was only called as a witness. Army Rule 180 was not applied and therefore, to call upon the applicant to deposit the money for the deemed losses and subsequently using the same material for issuing a show cause notice for dismissal of service is prejudicial and violative of laws laid down by the various Courts. Ld. Counsel for the applicant cited AIR 1991 SC 471 between Union of India and Ors. Vs Mohd. Ramzan Khan. In this case, it was observed as under:- TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 6 of 15 Disciplinary inquiry is quasi-judicial in nature. There is charge and a denial followed by and inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the principles of natural justice. With the Forty Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusion with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding a of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusions, rules of natural justice would be affected.

    15. Ld. Counsel for the applicant further cited Mil LJ 2007 Del 151 in the matter of Lt Gen S.K. Dahiya Vs Union of India and Ors., in which the Honble High Court of Delhi held that Rule 180 is mandatory in character due to the word must used in the Rule. Court of Inquiry proceedings vitiated on account of violation of Rule 180.

    16. Ld. Counsel for the applicant further cited 2008(3) SLR in the matter of Surendra Kumar Sahni Vs Chief of Army Staff (Delhi) in which the Honble High Court (DB) maintained that compliance to the requirements of Rule 180 is mandatory. The language of the Rule is certain and unambiguous, capable of only one interpretation i.e. that to TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 7 of 15 afford a full opportunity in terms of this provision is the responsibility of the competent authority. This obligation and burden is incapable of being shifted at the initiated stage. Once an opportunity is affirmed at his initial stage then it is for the concerned Officer whose character or military reputation is being affected or is likely to be affected, to exercise the option in regard to what defence, if any, he to give, which witnesses he wishes to cross-examine and what defence, if any, he wishes to lead.

    17. Ld. Counsel for the applicant further cited several cases as quoted in Study and Practice of Military Law by Cols. G.K. Sharma and M.S. Jaswal 7th Edition 2010 which give out the rationale for a reasoned order.

    18. Ld. Counsel for the applicant also cited All India Services Law Journal 1982 (2) Page 120 in the matter of Major Harbhajan Singh Vs The Ministry of Defence and others.

    19. Ld. Counsel for the applicant also argued that now the applicant has been punished three times for the same action. In the first action taken by the respondents, the applicant was ordered to pay Rs.41899.53 towards making up the deemed losses, which the applicant pay, as directed. Second, he was issued a show cause notice dated 30.1.1996 and his services were terminated by order dated 14.2.1997. The third time, a second show cause notice was issued on 22.10.1997 and consequently his pensionary benefits were forfeited vide order dated 18.5.1998 which is clear that all the three TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 8 of 15 punishments are consequent to just one action, the losses which has been made good by the applicant. As such, the actions by the respondents seem to be rather severe.

    20. Ld. Counsel for the respondents stated that the Court of Inquiry which was held was of a general nature to find about the losses that accrued in the CSD Canteen, Bhatinda. The applicant was called by the Court of Inquiry just to give evidence. It is only on the conclusion of the Court of Inquiry that the authorities have realised that the applicant was responsible for the losses to a certain extent by virtue of poor supervision/negligence. In order to support his contentions, Ld. Counsel for the respondents produced the original convening order of Court of Inquiry. Having examined the convening order of Court of Inquiry, we are convinced that the convening Order for the Court of Inquiry was of a general nature and did not name any person.

    21. Ld. Counsel for the respondents further argued that the Army Rule 180 was not invoked. He further stated that the Show Cause Notice was issued which gave out the detailed gravamen of the charges against the applicant.

    22. Ld. Counsel for the respondents submitted that the Show Cause Notice in itself was detailed and gives out all the charges which were mentioned against the applicant. However, had the applicant asked for the COI procedings, the same would have certainly been supplied to TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 9 of 15 him. Since the applicant did not seek the copy of the Court of Inquiry, it was not given to him. It has also been stated that the applicant had not agitated on this issue when he replied to the Show Cause Notice.

    23. Ld. Counsel for the respondents in support of issuance of notice for forfeiting the pensionary benefits cited (2002) 1 SCC 405 in the matter of Union of India and another Vs P.D. Yadav. These are bunch of cases in front of the Honble Supreme Court in which Honble Apex Court have opined as under:- Merely because punishment is not imposed under Section 71(h) or (k) and other punishments are imposed, it does not mean that the President is deprived of his power and jurisdiction to pass an order under Regulation 16(a); so also the Central Government under Regulation 15(2) of the Navy (Pension) Regulations taking note of the punishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regulations may not arise. But that does not mean that in case of punishments imposed, which are covered by Regulation 15 of the Central Government is deprived of its power to pass appropriate orders under the said Regulation, when such power is specifically conferred on the Central Government under the vary Regulations, which enables granting of pension and/or gratuity.

    24. Ld. Counsel for the respondents further argued that in view of the Supreme Court Judgment (supra), it is clear that the Central Government retained the option of granting the applicant pension and TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 10 of 15 gratuity and it should not be construed as an additional punishment. As regards the dismissal from service, it was consequent to the recommendations of the GOC-in-C who had recommended disciplinary action against the applicant. However, since the case was time barred, a conscious decision was taken to initiate administrative action. He produced the original documents and other details and the reasons that were considered by the respondents before deciding to initiate administrative action instead of disciplinary action. It was also contended that COI found the responsibility of applicant, therefore, he was directed to make good the losses, thus that also could not be treated as punishment.

    25. Having heard both the parties at length and having examined the original records, we find that the convening Order of Court of Inquiry was of a general nature and no name of any person was listed in the Court of Inquiry for which Army Rule 180 could have been applied from the very beginning.

    26. The nature of the Court of Inquiry and the tasking for the Court of Inquiry was such that perhaps it would not have been possible at the initial stages to incorporate the names of all the people involved. The names would have emerged only during the deposition by the witnesses. It was, therefore, required that the Court should have summoned the individuals for compliance of Army Rule 180, in whose case character and military reputation was involved. Provisions of TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 11 of 15 Army Rule 180 should have been complied with as and when individuals were named and involved. In this case during COI the name of the applicant came and he was found involved and at that stage Army Rule 180 should have been applied.

    27. The very fact that the COI did not comply with the provisions of Army Rule 180 is evident from the respondents counter affidavit which state that the Convening Authority of the COI had passed strictures against the Presiding Officer of the Court for not having been complied with the provisions of Army Rule 180 in this case. Even at this stage, this illegality could have been rectified but that too was not done.

    28. We are of the opinion that though COI is a fact finding body and any discrepancy in its proceedings as long as substantial compliance has been carried out and the investigation does not prejudice the accused in the subsequent trial proceedings, the infirmities can be over-looked. However, in this case, the subsequent action of the respondents to punish the applicant has been based totally on the COI proceedings. Copy of the COI proceedings even have also not been supplied to the applicant alongwith the ntoice. The SCN issued on 31.01.1996 for termination of services (Annexure P-9) clearly states that during the aforesaid COI proceedings Irrefutable evidence of the under-mentioned functional lapses were found............. Further it states that And therefore the aforesaid Court of Inquiry has found you culpable of having embezzled the amount of Rs.93,110.06 in TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 12 of 15 connivance with the Canteen Clerk......... Meaning thereby, the entire evidence was based on COI, the proceedings of which were flawed.

    29. It is evident that in the absence of the copy of COI having been given to the applicant, the applicant was not in a position to prepare his defence in a fair and adequate manner and thus he had been prejudiced.

    30. On both the counts, the process of the inquiry and the subsequent action taken by the respondents is, therefore, infirm. In this respect the judgment of Honble High Court of Delhi given in the case of Major Harbhajan Singh Vs The Ministry of Defence and others (supra), is relevant wherein the Honble High Court of Delhi has held as under:- .....A highly commendable provision is made in Rule 180 to give full opportunity of being heard even in this fact finding proceeding. When a Court of Inquiry affects the character or military reputation or a person, he is given full opportunity (i) of being present throughout the inquiry, (ii) making any statement,

    (iii) giving of any evidence, (iv) cross examining any witnesses and (v) producing any witnesses in defence of his character or military reputation. The Presiding officer of the Court is obliged by the said Rule to make the delinquent officer fully understand his rights under this rule.....

    15. I, therefore, hold that the findings of guilt against the petitioner recorded by Court of Inquiry are vitiated by the facts that the relevant witnesses were not procured by the Court for TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 13 of 15 ascertaining the existence of relevant facts and by denying the opportunity of citing defence witnesses to the petitioner. The evidence of other witnesses for prosecution was found sufficient by the Court of Inquiry for holding that the prosecution case was proved but the legal infirmity is that the defence evidence was not allowed and assessment was one sided.

    16. Since the findings of the Court of Inquiry are vitiated and since they form the basis of Show Cause Notice, the Show Cause Notice also stands vitiated for this reason.

    18. For the reasons stated above, the writ petition is allowed, with costs.

    30. We have also considered the contentions and judgments given in the cases of Maj G.S. Sodhi Vs UOI & Ors. (1991) 2 SCC 382; Maj Gen Inder Jit Kumar Vs UOI (1997) 9 SCC 1 and Maj Suresh Chand Mehta Vs Defence Secretary & Ors, AIR 1991 SCC 482 cited by the respondents wherein the Honble Apex Court has ruled that the COI being preliminary fact finding body, any shortcomings in the investigation will not vitiate the trial as long as the accused get full opportunity to prepare his defence and has not suffered prejudice. Since in this case there was no consequent trial to the COI and the findings of the COI were the sole basis for issuing the SCN, besides the proceedings having not been provided to the applicant, clearly has infringed valuable right of defence of the applicant. We, therefore, feel that the COI being legally infirm, needs to be struck down and TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 14 of 15 consequently all the subsequent actions by the respondents are liable to be quashed.

    31. In case of Lt Gen Surender Kumar Sahni Vs UOI & Ors. TA No.34 of 2009, passed by AFT Principle Bench, it has been held that the respondents were free to initiate disciplinary/administrative action or rectify the shortcomings of the COI.

    32. We, therefore, quash the proceedings of the COI and all consequent actions i.e., order of termination of service dated 14.02.1997 and order of forfeiture of pension dated 18.5.1998. So far as order of deposition of money by the applicant is concerned, the same is upheld as the applicant has not made any protest against the said order at that time. The applicant will be deemed to be in service till his superannuation. All consequential benefits including pensionary benefits shall accrue.

    33. The respondents are however free to initiate the departmental action and/or disciplinary action as deemed fit without taking recourse to the said COI. They are also free to take departmental and/or administrative action against the applicant after having rectified the legal infirmities in the said COI.

    34. In view of the above, the order of termination of service dated 14.02.1997 and the order of forfeiture of pension dated 18.5.1998 are TA No.512 of 2009 Ex. Lt. Col. (TS) B.K. Mall Page 15 of 15 hereby quashed with aforesaid observations. The present application is partly allowed.

    35. The exercise to pay the monetary dues to the applicant be completed within 180 days failing which the amount will attract 12% interest till the date of payment. No order as to costs. (M.L. NAIDU) (MANAK MOHTA) (Administrative Member) (Judicial Member) Announced in the open Court on this day of 22nd September, 2011.

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    Ex. Lt. Col. B.K. Mall v. Union Of India
    (Sep 22, 2011)