Judgment:
Shrikant Tripathi, Member (J):
1. In all these matters, similar questions of law and facts are involved for decision, therefore, with the consent of the learned counsel for the parties they were heard together and are being disposed of by this common order.
2. Heard Col (Rtd.) Bhupinder Singh for the applicants and counsel for the respondents and perused the record.
3. All the applicants have impugned their respective discharge from the service, which was made on the ground that each of them got their enrolment in a fraudulent manner. We, therefore, consider it just and expedient to state brief facts of the cases, leading to their discharge before narrating their independent allegations.
4. It appears that after the enrolment of the applicants in the Indian Army as Sapper/Sepoy, Advocates Shri Narayan Shedabhavi and Shri R.K. Ranganathan made complaints to the effect that while making recruitment at the various recruiting centres, certain malpractices had been done, which resulted in making the fraudulent enrolment not only of the applicants, but also few other persons. On receipt of the complaints, the 4th respondent instituted a Court of Inquiry to enquire into the allegations of malpractices and fraudulent enrolment. The Court of Inquiry examined 51 witnesses, out of which (Witness No.1 to 13 and 32 to 51), were the 33 persons against whom allegations of fraudulent enrolment have been made. The remaining 18 witnesses (Witness Nos.14 to 31) were official witnesses. The Court of Inquiry found that 34 candidates had resorted to unfair means by conniving to ensure that other persons appeared in the examination in their place during the Common Entrance Examination held on 31st March 2002, 20th April, 2002 and 20th May, 2002 at Recruiting Office, Head Quarters, Bangalore and on 30th June, 2002 at BRO, Mangalore. Out of the aforesaid 34 candidates, one recruit was discharged from service as he was considered unfit to become an efficient soldier. The remaining 33 candidates who had been involved for having their fraudulent enrolments were recommended to be served with show cause notices under the Army Act, Section 20, read with Army Rule 17. Apart from the aforesaid candidates, certain officers/officials involved in making the recruitment were also found guilty against whom separate recommendations were made. 12 touts/agents were also identified who played pivotal role in having the applicants and others enrolled in the Army. The Court of Inquiry recommended lodging of FIR against them. It is also significant to mention that the report of the Court of Inquiry was ultimately examined by Maj.Gen. Paramjit Singh, GOC, who directed for issue of a show cause notice to each of the applicants and other candidates under the Army Act Section 20 read with Army Rule 17, vide his order dated 17th July, 2004. After receipt of the notices, the applicants submitted their respective replies to the show cause notices. The respondents, after considering the replies ultimately decided to terminate the services of the applicants and accordingly issued the discharge certificates/movement orders to them.
5. The facts of each case, relevant for the decision, are being narrated as follows:
(i) TA No.236 of 2010: The applicant, Channappa B Galati, Ex Sepoy No.15779068Y filed Writ Petition No.15377 of 2005 in the Karnataka High Court for quashing the order of his discharge from the Army. After the establishment of the Tribunal at Kochi, the matter was transferred to this Bench under Section 34 of the Armed Forces Tribunal Act and has been registered here as T.A.No.236 of 2010. According to the Court of Inquiry, the applicant (Witness No.7 in the Court of Inquiry) was to appear as a candidate in the Common Entrance Examination, but he is said to have indulged in malpractice by fraudulently allowing a proxy to appear in his place for the examination. He was served with the show cause notice dated 20th November 2004 (Annexure E) whereby he was informed that he was found to be involved in malpractice during his enrollment and was accordingly called upon to reply to the show cause notice within 15 days of its receipt. He was further warned that in case no reply was received, a decision would be taken ex parte. The applicant is alleged to have submitted the reply to the show cause notice denying the allegations. The respondents considered the reply to the show cause notice and passed the impugned order dated 21st January 2005 (Annexure A) dismissing him from the service under under Section 20 of the Army Act read with Army Rule 17.
(ii) T.A.No.237 of 2010: The applicant, Vikram Singh P Rajput No.15779066N filed Writ Petition No.17311 of 2005 in the Karnataka High Court for quashing the order of his discharge from the Army. After the establishment of the Tribunal at Kochi, the matter was transferred to this Bench under Section 34 of the Armed Forces Tribunal Act and has been registered here as T.A.No.237 of 2010. According to the Court of Inquiry, the applicant (Witness No.3 in the Court of Inquiry) was to appear as a candidate in the Common Entrance Examination, but he is said to have indulged in malpractice by fraudulently allowing a proxy to appear in his place for the examination. He was served with the show cause notice dated 20th November 2004 (Annexure F), whereby he was informed that he was found to be involved in malpractice during his enrollment and was accordingly called upon to reply to the show cause notice within 15 days of its receipt. He was further warned that in case no reply was received, a decision would be taken ex parte. The applicant is alleged to have submitted the reply to the show cause notice denying the allegations. The respondents considered the reply to the show cause notice and passed the impugned order dated 21st January 2005 (Annexure A) dismissing him from the service under under Section 20 of the Army Act read with Army Rule 17.
(iii) T.A.No. 238 of 2010: The applicant, Balu Pawar No.15778792W filed Writ Petition No.19308 of 2005 in the Karnataka High Court for quashing the order of his discharge from the Army. After the establishment of the Tribunal at Kochi, the matter was transferred to this Bench under Section 34 of the Armed Forces Tribunal Act and has been registered here as T.A.No.238 of 2010. According to the Court of Inquiry, the applicant was to appear as a candidate in the Common Entrance Examination, but he is said to have indulged in malpractice by fraudulently allowing a proxy to appear in his place for the examination. He was served with the show cause notice dated 20th November 2004 (Annexure E) whereby he was informed that he was found to be involved in malpractice during his enrollment and was accordingly called upon to reply to the show cause notice within 15 days of its receipt. He was further warned that in case no reply was received, a decision would be taken ex parte. The applicant is alleged to have submitted the reply to the show cause notice denying the allegations. The respondents considered the reply to the show cause notice and passed the impugned order dated 21st January 2005 (Annexure A) dismissing him from the service under under Section 20 of the Army Act read with Army Rule 17.
6. We had occasion to consider the relevant question of law and facts arising out of the same Court of Inquiry in T.A.No.232 of 2010 and other connected matters and rendered a detailed order on 14th June 2013. The learned counsel for the applicant submitted that the present matter also needs to be decided accordingly.
7. The relevant observations made in paragraphs 20 to 31 in the order rendered in T.A.No.232 of 2010 and connected matters, being relevant for the present matter, are re-produced as follows:
20. We have to next consider as to what formalities were required to be done in a case where the provisions of Army Act section 20 read with Army Rule 17 are invoked by the authorities. Whether issue of show cause notice to the concerned person is an empty formality or it has some meaningful purpose is the paramount question, we have to answer. It is also required to be seen as to how a reply denying the charge/allegation levelled by the show cause notice is to be dealt with by the concerned officer/Commander on receiving the reply. Whether in doing so, the officer/Commander/the Chief of the Army Staff is required to pass any reasoned order or not. These questions seem to be very relevant to find out as to whether or not the procedures adopted by the respondents in discharging the applicants from service were correct and legally justified?
21. In our view, the compliance of the Army Rule 17 is mandatory in nature. It has two purpose, firstly, to provide an opportunity to the person concerned to explain the particulars of the cause of action made against him, and to put forth his explanations along with materials if any for controverting the particulars of the cause of action and also for showing that the intended dismissal or removal from service is uncalled for. The other object behind the said Rule 17 seems to be to give due consideration to the reply/explanations so furnished by the person concerned and to accept or annul the same with a reasoned order (speaking order). To put it otherwise, what is required by rule 17 is firstly to inform the person proposed to be dismissed or removed from service with the particulars of the cause of action (allegations) levelled against him and secondly to provide him reasonable time to state in writing any reasons (grounds) against the proposed dismissal or removal. When the rule mandatorily requires providing of such opportunity to the delinquent army personnel, it is also inbuilt or inherent therein that the authority, who is to consider the reasons furnished by the delinquent army personnel, to apply his mind to the facts of the case, give due consideration to the explanation and pass a reasoned order. Mere providing of an opportunity to furnish reasons without giving due consideration to the reasons so furnished, would serve no purpose in providing show cause opportunity to the concerned person. Therefore, what is required by Rule 17 of the Army Rules 1954 is not only to inform the particulars of the cause of action(allegations) with full certainty and free from ambiguity and vagueness to the delinquent so as to enable him to furnish reasons, if any, but also to require the authority concerned to consider the reasons so furnished and pass a speaking order in the matter. But the aforesaid requirements of Rule 17 need not be observed in a case where dismissal or removal is made on the ground of conduct which has led to conviction of the person concerned by a Criminal Court or Court Martial.
22. There is one more exception to the aforesaid principles as contained in the proviso to Army Rule 17, which empowers the competent officer to dispense with the requirement of the provisions of Rule 17, if he forms the opinion that it is not expedient or reasonably practicable to comply with provisions of Rule 17. To put it otherwise, a dismissal or removal from service can be made without due compliance of the Army Rule 17, if the competent authority records the opinion that the compliance of the said Rule is not expedient or reasonably practicable. But, in all such matters a report must be sent to the Central Government.
23. In the matter of S.N.Mukherjee vs. Union of India, (1990) 4 SCC 549, a Constitution Bench of the Supreme Court interalia examined the question of necessity of observing the principles of natural justice and recording of reasons by the authority exercising the quasi judicial functions, and held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The requirement of recording reasons for its decision, by an administrative authority exercising quasi judicial functions achieves this object by excluding chances of arbitrariness and ensuring the degree of fairness in the process of one of the principles of natural justice which govern exercise of power by administrative authorities.
24. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated:
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. âAdam'' says God, âwhere art thou has thou not eaten of the tree whereof I commanded thee that though should not eat''.
25. It is, therefore, well settled that the adherence to principles of natural justice is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as 'audi alteram partem' rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated and non-est. The other limb of the principles of natural justice is recording of reasons by the authority exercising the quasi judicial functions or administrative functions involving civil consequences. An order disclosing no reason apparently violates the principles of natural justice.
26. It is also well settled that the principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
27. In the instant cases, the report of the Court of Inquiry prompted the respondents to proceed against the applicants under the Army Act Section 20(3) read with Army Rule 17 by issuing show cause notices and there was no other material except the materials collected during the court of inquiry for such action against the applicants. The Court of Inquiry is constituted under Army Rule 177. The purpose of holding a Court of Inquiry is to collect evidence and if so required to report in regard to any matter which may be referred to the officers and as such, the Court of Inquiry is in the form of a preliminary investigation, which cannot be equated with a trial or Court Martial. If the character and military reputation of a person subject to the Army Act is likely to be affected due to a Court of Inquiry, he has to be provided as per Army Rule 180, full opportunity 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 of witnesses whose evidence in his opinion affects his character or military reputation. Besides this, he must be provided further opportunity to produce any witness in defence of his character or military reputation.
28. The Apex Court had occasion to examine the ambit and scope of Army Rule 180 in the matter of Lt.Col.Prithi Pal Singh Bedi vs. Union of India and Ors. (1982) 3 SCC 140, and held that Army Rule 180 makes it obligatory that whenever a Court of Inquiry is set up and in the course of inquiry the character or military reputation of a person is likely to be affected, then such a person must be given full opportunity to participate in the proceedings of the court of inquiry.
29. It is therefore, evident that the provisions of Army Rule 180 being mandatory in nature, must be observed in a case where the character or military reputation of a person subject to the Army Act is likely to be affected due to the Court of Inquiry. Any disregard to the said provision would result in vitiating the court of inquiry against the affected person.
30. The learned counsel for the respondents tried to contend that the character or military reputation of the applicants were not likely to be affected due to the Court of Inquiry. More so, they had appeared during the court of inquiry and made their statements. According to the learned counsel for the respondents, the applicants in T.A.Nos.233 of 2010, 239 of 2010 and 4 of 2011 had admitted their guilt to the extent that they paid money for their enrolment and someone else appeared on their behalf in the Common Entrance Examination. He next submitted that the applicants in T.A.Nos.232/2010, 234/2010, 5/2011 and O.A.No.83 of 2011, no doubt stated that they themselves appeared in the Common Entrance Examination and had written answer sheets, but during the Inquiry, on being shown the answer sheets, they admitted that the handwritings on the answer sheets were different. The applicant in T.A. No.240 of 2010 admitted that he did not appear during the test and his brother had taken the Hall Ticket. On the basis of these statements, learned counsel for the respondents submitted that all the applicants had therefore admitted their guilt during the Court of Inquiry. In this connection, learned counsel for the applicants submitted that except the applicants in T.A.Nos.4 of 2011 and 5 of 2011, all other applicants did not admit their guilt in their replies submitted against the show cause notices and they have further set up the case that they did not make any confessional statement during the Court of Inquiry. Learned counsel for the applicants next submitted that besides the statements of the recruits, the statements of certain officials, witnesses Nos.14 to 31, were also recorded, but none of the applicants was afforded any opportunity to cross examine the said official witnesses. More so, they were not provided any opportunity even to adduce evidence in defence and as such Army Rule 180 was violated.
31. In our view, the applicants and other recruits who were alleged to have obtained their enrollments fraudulently in the Indian Army were, in fact, the affected persons due to the reason that the ultimate conclusion of the Court of Inquiry could be applied against them and it could be asserted that they indulged themselves in malpractices for ensuring their enrollments, so, it can be safely held that the characters of the applicants who were subject to the Army Act, were not only involved but were also likely to be affected due to the Court of Inquiry, and as such, the compliance of Army Rule 180 was obligatory and its non compliance would go against the respondents.
8. The disputes involved in all these matters need to be examined in the backdrop of the aforesaid principles. The notices given to the applicants were vague and ambiguous. In all the notices it was stated that they were found to be involved in the malpractice during their enrollment. But notices were silent as to what malpractice had been committed by the applicants during the enrollment. It was not stated in the notice given to each of the applicant that the applicants had allowed anybody else to appear in their place in the written examination or they paid any money to someone else. In absence of this material disclosures in the show cause notices, it can be inferred that the notices were vague and ambiguous but before attaching any significance to such defects in the show cause notices we have to see as to whether such defects resulted in causing any prejudice to the applicants or not. In this connection, we have perused the replies to the show cause notices. The applicants have given detailed replies to the show cause notices and have very clearly stated that they neither contacted any person nor paid any money and further stated that they themselves appeared during the written examination and before their entry in the examination hall, photograph and other documents were checked. In this way, each of the applicants was fully aware of the allegations that had been made against them and they were not misled in any way. Accordingly they gave their replies to all the material allegations levelled against them without any difficulty. In this view of the matter, the aforesaid ambiguousness/vagueness in the show cause notices had not resulted in causing any prejudice to the applicants. Therefore, vagueness of the notices have no material significance.
9. The discharge order passed against each of the applicants is not only sketchy but without disclosing any reasons, therefore, the order cannot be termed as a speaking order. The discharge order in respect of each applicant had not disclosed the relevant allegation against him nor it disclosed his replies to the allegations made in the show cause notices nor any reasoned decision thereon. Therefore, in view of the observations made in paragraph 20 to 26 of the order rendered in T.A.NO.232 of 2010 and connected matters, the dismissal order passed against each of the applicant cannot be upheld and is liable to be quashed only on the ground that the same was sketchy without disclosing any reason. The applicants had not rendered 3 year's of service prior to their discharge, as such, they are not entitled to the benefits of section 122(4) of the Army Act extended to the applicants of T.A.No.232 of 2010 and other similar matters.
10. For the reasons discussed above, the orders discharging the applicants from service are liable to be quashed. As there is a much gap between the date of discharge and this order, it would be just and expedient to reinstate the applicant s in service only notionally.
11. T.A.Nos.236, 237 and 238 of 2010 are allowed. The dismissal order passed against the applicants in pursuance of the show cause notice given to each of them under section 20(3) of the Army Act read with Army Rule 17 are quashed. The respondents are directed to notionally reinstate the applicants in service with full benefit of continuity in service with effect from the date of their respective dismissal/discharge without any benefit of back pay and allowances for the period dismissal/discharge remained in operation. It is further directed that the applicants will be treated notionally to be in service till they complete the pensionable tenure of 15 years and will be notionally discharged on completion of 15 year of service with all consequential retiral benefits. It will, however, be open to the respondents to proceed afresh against the applicants in accordance with law. In case the respondents proceed afresh against the applicants, it will be open to the respondents to summon the applicants for the purpose of the inquiry in which the applicants have to co-operate without any objection.
12. There will be no order as to costs.
13. Let a copy of this order be placed in the files of the connected cases.
14. Issue free copy of this order to both side.