Dismissed

Bahadur Singh v. the Union of India and 4 Ors.

Gauhati HC2 Nov 2022WP(C)/3503/2021

Case brief

AI extract

What is this about?

Petitioner challenged a Convening Order constituting a Court of Inquiry for an investigation into missing leave account forms, arguing violation of Army Rules. The High Court held the inquiry was preliminary, not disciplinary, and thus Army Rules procedures were not applicable, dismissing the writ.

What did the court decide?

Writ petition for quashing of Convening Order dated 29.06.2021 dismissed.

Bahadur Singh Vs the Union of India and 4 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/9

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GAHC010111842021

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Writ Petition (Civil) 3503/2021

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Bahadur Singh Son of Late Munshi Ram C/o 99 APO, Project – Dantak, Lankeswar, Guwahati – 14, Assam

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………………..Petitioner

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-Vs-

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The Union of India Represented by the Joint Secretary Border Roads,

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B’ Wing, 4^th Floor, Sena

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Bhawan, New Delhi -110001

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1. The Secretary, Border Roads Development Board

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B’ Wing, 4^th Floor, Sena Bhawan, New Delhi -110001

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1. The Chief Engineer, C/o 99 APO, Project Dantak, Lankeswar, Guwahati

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1. The ADGBR [EAST], C/o 99 APO, Project Dantak, Lankeswar, Guwahati

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1. The Gref Records Dighi Camp, Pune

…………………Respondents

Page No.# 2/9

Advocates :

Petitioner : Mr. T. Das, Advocate

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Respondent nos. 1 - 5 : Mr. S.K. Medhi, Central Government Counsel

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Date of Hearing and Judgment & Order : 02.11.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGEMENT & ORDER [ORAL]

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The instant writ petition has been preferred by the petitioner invoking the extraordinary jurisdiction under Article 226 of the Constitution of India for making a challenge to a Convening Order dated 29.06.2021.

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The case projected by the petitioner in the writ petition, in brief, is that he joined the Border Roads Organization [BRO] on 02.01.1988. The BRO was raised on 18.04.1960 for expanding border communications in the North East Zone and consequently, various projects had been raised under the command and control of the Director General, BRO. A project named ‘Project Dantak’ was raised during the year 1961 for construction of road networks in Bhutan and the personnel posted in Bhutan under Project Dantak are entitled to Bhutan Compensatory Allowances [BCA]. A three-stage process of selection for posting the personnel to BCA areas has been put in place and the personnel who fulfills the eligibility criteria set forth therein and qualifies in the three stages of selection process, is posted in BCA areas. It is the case of the petitioner that he qualified as per the selection methodology for posting in BCA areas on 09.11.2019 and accordingly, he was posted in BCA areas. It is stated that the petitioner was handed over the charge of E1 Camp Section of HQ CE[P] Dantak vide a letter dated 18.12.2019.

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2.1. By the Convening Order dated 29.06.2021, a Court of Inquiry cum Board of Officers

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was constituted to investigate into the missing/removed leave account forms from service documents in respect of one GS-1786883A SSA Sanjay Kumar Ujala of HQ CE[P] Dantak since his appointment. The ground of challenge to the said Convening Order is that the respondent authorities had set up the Court of Inquiry cum Board of Officers against the petitioner without giving him proper opportunity to defend his case and the same is in violation of Rule 180 of the Army Rules, 1954 framed in exercise of the powers conferred by Section 191 of the Army Act, 1950.

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I have heard Mr. T. Das, learned counsel for the petitioner and Mr. S.K. Medhi, learned Central Government Counsel [CGC] for all the respondents.

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Mr. Das, learned counsel for the petitioner in his submissions, has reiterated the averments made in the writ petition. It is his submission that a procedure has been laid down under Rule 180 of the Army Rules, 1954 when character of a person subject to the Army Act is involved. In a court of inquiry, full opportunity is to be provided to a person and such a person must have to be present throughout the inquiry and he has to be given the opportunity of making any statement and giving any evidence he may wish to make or give. Further, he has to be provided the opportunity of cross-examining any witness whose evidence, in his opinion, affects his character or military reputation. It is the submission of Mr. Das that the General Reserve Engineer Force [GREF] of which the petitioner is a member, is an integral part of the Armed Forces of India and therefore, the provisions of the Army Act, 1950 and the Army Rules, 1954 are applicable proprio vigore in respect of the members of the GREF. In such view of the matter, the Convening Order dated 29.06.2021 is bad and illegal and the same is liable to be set aside and quashed.

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Mr. Medhi, learned CGC has submitted that the respondents have traversed the contentions of the petitioner in its counter affidavit. It is his submission that the Court of Inquiry cum Board of Officers, convened by the Convening Order dated 29.06.2021, cannot be termed as court-martial under the Army Act, 1950 and the Army Rules, 1954. It is his submission that the procedure to be followed in court-martial has been laid down in Chapter V of the Army Act, 1950. It is submitted by him that the petitioner as a member of the GREF

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is not subjected to the provisions of the Army Act, 1950 and the Army Rules, 1954. The constitution of the Court of Inquiry cum Board of Officers is only for the purpose of making a preliminary enquiry and it did not contemplate or amount to initiation of any disciplinary action against any person. He has referred to the Terms of Reference mentioned in the Convening Order dated 29.06.2021 to buttress his submission that the report to be submitted by the Court of Inquiry cum Board of Officers had to be in the nature of a preliminary inquiry report based on which the competent authority was to decide about the subsequent action to be taken. Merely use of the phrase, “Court of Inquiry” in the Convening Order would not make it incumbent on the part of such Court of Inquiry cum Board of Officers to follow the procedure of court-martial. Mr. Medhi has referred to the order dated 26.03.2001 of the Director General, BRO to submit that in case any proceeding is initiated against a GREF person or a criminal proceedings is initiated against him while he is serving in BCA area, he will be attached to non-BCA area during the pendency of proceedings.

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I have given due consideration to the respective submissions advanced by the learned counsel for the parties and also perused the materials brought on record by the parties through their pleadings.

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Before going into any other aspect, it is apposite to refer to the Convening Order dated 29.06.2021. For ready reference, the contents of the Convening Order dated 29.06.2021 are quoted hereinbelow in its entirety :-

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CONVENING ORDER

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COURT OF INQUIRY CUM BOARD OF OFFICERS

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A Board of Officers composed as under will assemble at place, date and time to be fixed by Presiding Officer to investigate into the missing/removed leave account form from service document in respect of GS-1786883A SSA Sanjay Kumar Ujala of HQ CE[P] Dantak since his appointment.

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OC, Signal Sec [P] Dantak

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Shri Ashutosh Mishra, UDC

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HQ CE [P] Dantak

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Terms of Reference :-

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[a] To pin point responsibility against those who were involved in the above missing/removal of leave account from service document.

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[b] To ascertain the facts and circumstances under which missing/removal of leave account from service documents of GS-1786883A SSA Sanjay Kumar Ujala of HQ CE[P] Dantak.

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[c] Record the statement of all staff concerned, as deemed necessary with regards to missing/removed leave account forms.

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[d] Recommend the disciplinary action against blameworthy.

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[e] Recommend re-construction of leave account.

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[f] To suggest remedial measure to avoid recurrence of such incidents/negligence in future.

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The Court of Inquiry alongwith supporting documents to tbe submitted to Camp Section of this HQ by 10 Jul 2021 positively.

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14098/CO/C/47/EI Coord [Indresh Kumar] Headquarters Adm Office Chief Engineer SO-2 [Pers] Project Dantak For chief Engineer PIN-931708 C/o 99 APO

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Dated 29 June 2021

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The learned counsel for the petitioner has referred to Rule 180 of the Army Rules, 1954 in support of his challenge. Rule 180 is part of Chapter VI : “Courts of Enquiry” of the Army Rules, 1954, framed in exercise of the powers conferred by Section 191 of the Army Act, 1950. As per Section 177[1] of the Army Rules, 1954, a court of inquiry is an assembly of officers or of junior commissioned officers or of officers and junior commissioned officers,

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warrant officers or non-commissioned officers, directed to collect evidence, and if so required to report with regard to any matter which may be referred to them.

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Rule 180 which is a part of Chapter VI of the Army Rules, 1954 reads as under :-

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Rule 180 :- Procedure when character of a person subject to the Act is involved. Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or 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 make or give, and of crossexamining any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character and military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule.

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Rule 182 of the Army Rules, 1954 states that proceedings of court of inquiry are not admissible in evidence. It states that the proceedings of a court of inquiry, or any confession, statement, or answer to a question made or given at a court of inquiry, 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 wilfully giving false evidence before the courts, provided that nothing in the said rule shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witness. Be that as it may.

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The events which led to the Convening Order dated 29.06.2021, as alluded in the counter affidavit of the State respondents, may be referred to. A complaint dated 18.06.2021 was received in the name of PNR AC Mishra of 1644 PNR Coy, in which it was alleged that in order to adjust the leave of SSA Sanjay Kumar Ujala, the petitioner and SSA Sanjay Kumar Ujala had removed the leave account forms from the service book of SSA Sanjay Kumar Ujala since his appointment and the same was done on the orders of AE [Civil] Daulat Kumar

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Narzari, the then Camp Commandant of HQ CE[P] Dantak. The complainant also alleged involvement of one Assistant. It was further alleged that the persons named used to demand money from the personnel with the threat that they would be harmed if such demanded money was not paid. One Senior Administrative Officer, Indresh Kumar, SO-2 [Pers] was detailed as Investigating Officer vide HQ CE [P] Dantak letter no. 13002/Comp/2021/39/Vig dated 21.06.2021 and the matter was investigated by him and an initial investigation report was submitted on 26.06.2021. During initial investigation, it was found that leave account forms and some more pages were missing from the service documents of SSA Sanjay Kumar Ujala and the Investigating Officer recommended that the case be investigated through One Man Inquiry [OMI]/Court of Inquiry. Based on the said recommendation made after the initial investigation, a Court of Inquiry vide the Convening Order dated 29.06.2021 came to be convened by the Competent Authority.

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The Terms of Reference of the Court of Inquiry cum Board of Officers have already been extracted hereinabove. From the Terms of Reference, it is clear that the Court of Inquiry cum Board of Officers was asked to submit a report along with supporting documents inter alia to pin point the responsibility against those who were involved in the above missing/removal of leave account from the service documents pertaining to SSA Sanjay Kumar Ujala of HQ CE[P] Dantak and to ascertain the facts and circumstances under which missing/removal of leave account had occurred. Three of the Terms of Reference for the Court of Inquiry cum Board of Officers was to recommend disciplinary action against the persons who were found to be blameworthy; to recommend re-constitution of leave account; and to suggest remedial measure to avoid recurrence of such incidents/negligence in future. Perusal of the Term of Reference does not go to indicate that any person including the petitioner, has been identified to be the person involved in the alleged incident of missing/removal of leave account from the service documents of SSA Sanjay Kumar Ujala of HQ CE[P] Dantak. Thus, it can clearly be discerned that by the Convening Order dated 29.06.2021, the Court of Inquiry cum Board of Officers was asked to do a preliminary enquiry and to submit a report along with supporting documents. No disciplinary action was initiated by the Convening Order dated 29.06.2021 and the step taken by the Court of Inquiry cum Board of Officers was only a step which can, at best, be termed to be a prelude to any

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disciplinary action likely to be taken based on the recommendations made by the Court of Inquiry cum Board of Officers in its report. Mere use of phrase, “Court of Inquiry” in the Convening Order does not change the nature and character of the task entrusted to the Court of Inquiry cum Board of Officers, which was nothing but a fact finding inquiry. A preliminary enquiry has nothing to do with the disciplinary proceeding to be initiated by issuance of a memorandum of charges. The purpose of preliminary enquiry is to find out whether any action in the form of a detailed disciplinary proceeding should be initiated against any delinquent employee. On initiation and completion of the disciplinary proceedings the preliminary enquiry loses its relevance.

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In the case in hand, the Court of Inquiry cum Board of Officers submitted its report pursuant to the Convening Order dated 29.06.2021. Based on the findings and opinion of the Court of Inquiry cum Board of Officers, the competent authority decided to initiate disciplinary action against the petitioner under the provisions of the Central Civil Services [Classification, Control and Appeal] Rules, 1965 and accordingly, a memorandum of charges alongwith a statement of Imputation of charges has already been issued to the petitioner on 23.07.2021. For the purpose of the disciplinary proceeding, an Enquiry Officer and a Presenting Officer have already been appointed. Thus, the Convening Order dated 29.06.2021 was only for the purpose of causing a preliminary enquiry and in such view of the matter, the contention of the petitioner is found devoid of any merit.

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In the above view of the matter, there is no necessity to go into the question raised by the learned counsel for the petitioner during the course of hearing to the effect that whether the disciplinary action initiated against the petitioner under the provisions of the Central Civil Services [Classification, Control and Appeal] Rules, 1965 pursuant to submission of the report by such Court of Inquiry cum Board of Officers sustainable or not and the petitioner is required to be proceeded only under the provisions of the Army Act, 1950 and the Army Rules, 1954 as the said issue is not subject-matter of challenge in the present writ petition. It is for the petitioner to assail the same by resorting to appropriate remedy available to him under the law.

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In view of the above discussions and for the reasons assigned, I find no merit in this writ petition instituted for setting aside and quashing of the convening order dated 29.06.2021. As the writ petition is found devoid of merit and liable to be dismissed, the same is accordingly dismissed. No cost.

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JUDGE

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Comparing Assistant

Bahadur Singh v. the Union of India and 4 Ors.

Case brief

What is this about?

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Bahadur Singh v. the Union of India and 4 Ors.

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