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TMI Blog2013 (10) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... al score as depicted is that on 5-8-2009, a complaint was made by one of the officers alleging irregularity in the hiring of Civil Hired Transport (CHT), which were used for the purpose of supply of ordnance stores to units spread over the country, including remotest field and high altitude area by Respondent 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 Respondent 1 by making his attachment with Headquarters Sub-Area 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 that report, a CoI was convened against Respondent 1 to investigate into the alleged irregularities. 3. CoI conducted an inquiry and on 8-3-2010 recommended for taking appropriate disciplinary action against the first respondent and some other officers. On the basis of the said recommendation on 23-2-2010 the first respondent was attached to the Head Quarters, Mumbai Sub-Area till finalisation of the disciplinary proceedings. At that juncture, Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for initiating the disciplinary proceedings against Respondent 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 CoI should be convened affording full opportunity to the parties, by examining or cross-examining any of the witnesses pertaining to those annexures. 6. Being of this view the Tribunal directed the authority to convene an additional CoI limiting to the documents which were subsequently annexed to the report of 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 reassembled and Respondent 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 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, certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6-8-2009 and these two letters were earlier perused by Respondent 1. Emphasis was laid on the fact that there is no provision for cross-examination of the Presiding Officer of CoI on the basis of his observations made in CoI. As regards the cross-examination of the Technical Members, it 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 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 proceedings and had no role to play in the final opinion expressed by 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, no prejudice has been caused to him due to their non-production in CoI for cross-examination. 11. It was also contended that request of the applicant therein to cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 14. The Tribunal observed that as the applicant therein was not allowed to cross-examine the makers of documents XLIX and XLI, 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 Col. Sanjay Jethi v. Union of India. The Tribunal proceeded to state that the contention advanced by the respondents therein that on reading of Rule 180 it cannot be discerned that the Presiding Officer and Technical Member of 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 Ahamad as Presiding Officer and Lt. Col. Sandeep Sinha and Maj. Sanjeev Narula as Tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 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 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. 19. Rule 182 stipulates that the proceeding of courts of inquiry or any confession statement or answer to a question 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 wilfully giving false evidence before that court. The proviso to the rule states nothing in the said Rules shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility of character or military reputation of a person subject to the Act likely to be affected. His participation cannot be avoided on the specious plea that no specific inquiry was directed against the person whose character or military reputation is involved. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the court of inquiry should be afforded full opportunity so that nothing is done at his back and without opportunity of participation, Rule 180 merely makes an enabling provision to ensure such participation. But it cannot be used to say that whenever in any other inquiry or an inquiry before a commanding officer under Rule 22 or a convening officer under Rule 37 of the trial by a court martial, character or military reputation of the officer concerned is likely to be affected a prior inquiry by the court of inquiry is a sine qua non. (emphasis supplied) 22. In Major General Inder Jit Kumar v. Union of India Major General Inder Jit Kumar v. Union of India, 1997 9 SCC 1 a two-Judge Bench observed that CoI is set up under Rule 177 to collect evidence and to report, if so required, with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the court of inquiry. In the present case, the appellant was given that protection. He was present at the court of inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses. (emphasis supplied) 24. In Union of India v. Major A. Hussain Union of India v. Major A. Hussain, 1998 1 SCC 537 Union of India and its functionaries had challenged the decision of the High Court which had quashed the court-martial proceedings including the confirmation of the sentence on the ground that the delinquent officers had denied reasonable opportunity to defend himself as he was not communicated the conclusion reached. In the said case the High Court opined that during the proceeding under Section 22 of the Act, the copies submitted in earlier CoI were not supplied; that he was not given assistance of a defending officer of his choice; that he was not provided a loan which was already sanctioned to engage a new counsel; and that the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invariably be set up in each and every case prior to recording of summary of evidence or convening of a court martial. (emphasis supplied) 27. The aforesaid authorities, as far as Rule 180 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 CoI in its very nature is 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 the person concerned 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 proceeding a trial by court martial where the character or military reputation of the officer concerned is likely to be affected; that CoI is in the nature of a fact-finding enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding his conduct without giving him an opportunity to put forward his defence as regards those annexures; the applicant was obviously not afforded opportunity to see the documents which were annexed to the report of CoI. 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. In all fairness, an additional CoI is to be convened affording full opportunity to the parties, by examining or cross-examining any of the witnesses pertaining to those annexures. The additional CoI would remain confined to the annexures referred to above. (emphasis supplied) 30. After so holding, the Tribunal directed the authority concerned to pass orders convening an additional CoI limiting to the documents which were subsequently annexed to the report of CoI and the applicant was granted liberty to cross-examine any of the witnesses, if produced, pertaining to those documents. 31. We may note here with profit that the aforesaid order was not assailed by the Union of India and its functionaries. 32. We have referred to the earlier order in extensor despite the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mentioned, it means there should be absence of conscious or unconscious prejudice to either of the parties and the said principle has been laid down in Gullapalli Nageswara Rao v. A.P SRTC AIR 1959 SC 308, Gullapalli Nageswararao v. State of A.P AIR 1959 SC 1376 and G. Sarana v. University of Lucknow G. Sarana v. University of Lucknow, 1976 3 SCC 585. 35. In Manak Lal v. Prem Chand Singhvi AIR 1957 SC 425 the Court has stated thus: (AIR p. 429, para 4) 4. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er interference with the course of justice. Eventually in the said decision in G. Surana it has been ruled that what has to be seen in a case where there is an allegation of bias in respect of a member of an administrative board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words, whether there is substantial possibility of bias animating the mind of the member against the aggrieved party. 37. At this juncture, we may refer with profit to Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, where it has been observed: 551. Want of impartiality or bias; fraud.- The test for bias is whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias13. 38. In Transport Deptt. v. Munuswamy Mudaliar 1988 Supp SCC 651, while dealing with the concept of bias as a part of natural justice, the Court observed that: (SCC p. 654, para 12) 12. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 993 AC 646 together with Dimes case Dimes v. Grand Junction Canal Proprietors, 1852 3 HL Cas 759, Pinochet case as also Ebner, In re23 and the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union 1999 ZACC 9 opined that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The learned Judges took note of the fact that the Court of Appeal continued to give effect that everything will depend upon facts which may include the nature of the issue to be decided. 41. Eventually, this Court ruled thus: (Girja Shankar Pant case, SCC p. 201, para 35) 35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a facet of one's imagination. It must be in accord with the prudence of a reasonable man. The circumstances brought on record would show that it can create an impression in the mind of a reasonable man that there is real likelihood of bias. It is not to be forgotten that in a democratic polity, justice in its conceptual eventuality and inherent quintessentiality forms the bedrock of good governance. In a democratic system that is governed by the rule of law, fairness of action, propriety, reasonability, institutional impeccability and non-biased justice delivery system constitute the pillars on which its survival remains in continuum. 45. The plea of bias it is to be scrutinised on the basis of material brought on record whether someone makes wild, irrelevant and imaginary allegations to frustrate a trial or it is in consonance with the thinking of a reasonable man which can meet the test of real likelihood of bias. The principle cannot be attracted in vacuum. 46. In State of Gujarat v. R.A Mehta 2013 3 SCC 1, a two-Judge Bench dealing with bias has observed thus: (SCC p. 37, para 58) 58. Bias is one of the limbs of natural justice. The doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice. (See Vassiliades v. Vassiliades AIR 1945 PC 38.) 49. The Court in Ranjit Thakur case referred to the decisions in Allinson v. General Council of Medical Education and Registration 1894 1 QB 750 CA, Metropolitan Properties Co. (F.G.C) Ltd. v. Lannon, Public Utilities Commission of the District of Columbia v. Pollak 96 L Ed 1068 and R. v. Liverpool City Justices, ex p Topping 1983 1 WLR 119 and, eventually, concluded that the inescapable conclusion was that the participation of Respondent 4 had rendered the court martial proceedings coram non judice. 50. In Major G.S Sodhi, the Court did not accept the alleged plea of bias or mala fide as Lt. Col. S.K Maini, who had ordered summary of evidence against the petitioner therein, was inimical towards him because of certain prior incidents. It was also alleged that he had not acceded to certain requests made by the petitioner during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected is a categorical imperative. The participation has to be meaningful, effective and he has to be afforded adequate opportunity. It needs no special emphasis to state that Rule 180 is framed under the Army Act and it has the statutory colour and flavour. It has the binding effect on 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 disciplinary action. Thus understood, the language employed in 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 the witnesses and, most importantly, nothing should take place behind his back. It is one thing to say that CoI may not always be essential or sine qua non for initiation of a court martial but another spectrum is that once the authority has exercised the power to hold such an inquiry and CoI has recommended for disciplinary action, then the recommendation of CoI is subject to ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report that was submitted through the officer who convened CoI. In this context we may refer to what has been recorded on 11-2-2011 by the additional CoI: In deference to the directions given by Hon'ble Armed Forces Tribunal Principal Bench, New Delhi dated 8-10-2010, the following exhibits, namely, Ext. XLIX, Ext. LXIX, Ext. L, Ext. LXVIII, Ext. XXXV, Ext. XLI, Ext. LV, Ext. LXVI are available for perusal. It is clarified that Ext. XLIX named as technical report containing Appendices A to M, the documents produced at the initial court of inquiry and which have already been perused by all the witnesses under AR 180 and for easy reference these documents have been compiled in one place marked as Appendices A to M of Ext. XLIX. The balance of Ext. XLIX, the technical report forming part of Appendices N to AB and extract to Appx N is the collation of information in various formats as per headings given in these Appendices from the information available in Appendices A to M of Ext. XLIX. The court has requested the convening authority HQ MG G Area to intimate details of documents, copies of court of inquiry and exhibits handed over to the witnesses if any dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N to Z . After giving the inputs the Members have given their observations stating that during the course of scrutiny of documents they have observed many financial irregularities. 59. The observations are from Paras 5(a) to (m). Para 6 deals with inferences and describes the part, namely, Anomaly along with inference . The same includes- (a) variation between tonnage mentioned in gate register and bills, (b) variation of CHT tonnage between traffic branch office copy of consignment note (bilti) and bills with financial loss, (c) transhipment details as per office copy of convoy note in Traffic Branch and receipted copies of convoy note and input, from consignee units, (d) Same CHT billed for different tonnages with financial loss, (e) same CHT being hired within close period, (f) variation in billed tonnage of CHTs vis- -vis actual tonnage as per list given by Kaushik Transport with tender documents with financial loss, (g) CHT billed but date record at variance in gate register with respect to reporting and utilisation of vehicle note, (h) dispatch to same places in consecutive days amounting to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) 61. Even applying the rigorous substantive test, we find that a case of prejudice comes into full play in the case at hand. 62. Presently we shall advert to the inclusion of Brig. N.S Ahamed. In the earlier order dated 8-10-2010 the Tribunal had referred to Ext. XLI to be made available to the respondent. The learned Senior Counsel for the appellants has filed Ext. XLI before us. The same has been prepared by the Presiding Officer. It reads as follows: On sample perusal of File No. 2751.Gen/18.Cont of Central Ordnance Depot, Mumbai, it is observed by the Court that recommended distribution of stores has been forwarded to DGOS by Central Ordnance Depot, Mumbai. The approval is accorded by DGOS which may or may not be the same as recommended by Central Ordnance Depot, Mumbai. A photocopy of Central Ordnance Depot Letter No. 2754.Gen/Cont. dated 4-8-2008 found from DGOS and approval Letter of the same IHQ. MOD, MGO Letter No. PC 2 to 13357.R1001519.Fin/OS-46 dated 6-8-2009, this approval is only for issue of items and not dispatch is enclosed as Ext. XLI. To the said observation/report two letters have been annexed, one writt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne point of time had filed a long list of witnesses. It is to be borne in mind that on the earlier occasion the Tribunal permitted for examination or cross-examination of witnesses who had something to do with the documents. 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. It can be allowed to become an unruly horse. 65. Before parting with the case, we think and we are constrained to think that we should say something about the order of the Tribunal. Section 14 of the Armed Forces Tribunal Act, 2007 occurs in Chapter III of the said Act and deals with jurisdiction, powers and authority of the Tribunal in service matters. Under sub-section (5) of Section 14 the Tribunal is required to decide both questions of law and facts that may be raised before it. The respondent had approached the Tribunal under Section 14 of the said Act. In the Statement of Objects and Reasons it has been spelt out for constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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