High Court
Case Details
WP(C) 5606/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P. K. SAIKIA JUDGMENT & ORDER (Ansari, J) Standing before us, as the petitioner in this writ petition, made under Article 226 and 227 of the Constitution of India, is a decorated officer of the Indian Air Force, a recipient of Visistha Sewa Medal, presently holding the rank of Air Commodore after having served the Indian Air Force since 1983 as a fight er pilot of the highest caliber with an impeccable and unblemished service recor d. The petitioner has come to this Court, having been unsuccessful in invoking t he jurisdiction of the Armed Forces Tribunal (hereinafter referred to as ’the AF T’), the petitioner’s grievance being that he is a victim of harassment, humilia tion and persecution in a systematic, concerted and vindictive manner by the res pondents, because the petitioner had raised his voice against mal-administration and corruption leading to low quality of construction of Airbase for operation The case of the petitioner, leading to filing of the present writ petiti of well known Sukhoi-SU-30 MKI Aircrafts. 2. on, may, in brief, be set out as under: The petitioner is a Commissioned officer in the Indian Air Force (in sho (i) rt, ’IAF’), the petitioner having joined the IAF as Pilot Officer in the year 19 83. During his service tenure, the petitioner not only earned appreciation, but has also been awarded ’Visistha Sewa Medal’ and Chief of Air Staff and AOC-in-C Commendation cards. (ii) In the year 2010, the petitioner was posted to 14 Wing as Air Officer Co mmanding, at Air Force Station, Chabua, Assam, and he was entrusted with the tas k of making the station re-activated for induction of Sukhoi SU 30 MK-I aircraft s. At the time of petitioner’s joining the Air Force Station, Chabua, major wor ks of construction, under Para 35 of the Defence Works Procedure, were in progre ss and the petitioner found that the quality of work, performed by the contracto r company, namely, M/S Surface Tech Construction Company, was not satisfactory. The predecessor-in-office of the petitioner, dissatisfied with the poor quality of work done by the said construction company, had already made complaints to th e higher authorities and the petitioner also made several complaints to the resp ondent No 5 regarding the poor quality of work, but the petitioner’s complaints failed to yield any positive response from the respondent No 5. Thereafter, the petitioner wrote letters addressed to respondent No. 3 requesting him for a hig h level inquiry into the said matter. (iii) The respondent No. 7 was posted as Assistant Provost Marshal (hereinafte r referred to as ’APM’). The APM, who heads the Provost & Security Unit, has th e power and duty of ensuring maintenance of discipline amongst Air Force personn el, preventing and detecting crimes among service personnel, liaisoning with civ il police, other civil and military authorities and also civilian organizations. Provost & Security units are the field level functionaries of the vigilance or ganization of Air Force and, as such, enjoy wide powers. (iv) Consequent upon a complaint made by the Deputy Commissioner, Dibrugarh, in March, 2011, to the petitioner as regards unauthorised use of red light beaco n by the respondent No 7 in the civil area, the petitioner had a discussion with respondent No. 7. This discussion resulted into heated arguments and the respon dent No 7 even threatened the petitioner by saying, (cid:28)You don’t know the powers o f APM, I can ruin your career (cid:29). (v) Thereafter, the petitioner wrote, at least, four letters to respondent N o. 5 about the insubordinate and improper conduct of respondent No. 7, but no ac tion was taken against respondent No. 7. The petitioner, then, vide letter, da ted 22.06.2011, brought the matter to the notice of the then AOC-in-C, Eastern A ir Command, and, in consequence thereof, respondent No 7 was posted out to a nea rby station. The posting out of the respondent No 7 was neither liked by him no r by the staff of the 19 Provost & Security Unit and the respondent No 5 even ex pressed his annoyance on posting out of respondent No. 7 by telling the petition er, (cid:28)M. Singh, you will have to pay heavily for getting the APM removed (cid:29). Thus, the steps, so taken by the petitioner against respondent No.7, sowed seeds of a nimosity of the APM Branch (including respondent No.7 and 8) towards the petitio ner. (vi) The incident, above mentioned, according to the petitioner, is relevant, because the APM staff, including respondent No.8, had, thereafter, started vict imizing and persecuting the petitioner by concocting evidence and by pressurizin g and threatening people to give false evidence against the petitioner. (vii) During the period mentioned above, the petitioner was busy in making the station fully operational, because of the rising security threats from a banned terrorist organization, namely, ULFA. The Air Force Station, Chabua, was visit ed by many superior officers of the petitioner and a high level inspection team even appreciated the station and assessed the station as ’Average Plus’ in opera tions, maintenance as well as administration. (viii) Apart from the sub-standard quality of work, done at the said airbase, e ven the repair works carried out, latter on, by a private contractor, namely, M/ S Surface Tech Construction Company, on the airfield, was not up to the mark. (ix) On, thus, finding that even the later repairing works, carried o ut by the private contractor, M/s. Surface Tech Construction Company, on the air field, was not up to the mark, the petitioner communicated this aspect of the ma tter, too, to the respondent Nos.4 and 5 and sent to them, along with his commun ication, some photographs to prove that the execution of the contract work was n ot of the required level. (x) No fruitful result was, however, achieved; but this resulted in damage t o, at least, four engines of the said aircrafts causing loss of hundreds of Cror es of rupees to the public exchequer. The petitioner also requested the authorit ies concerned to order a high level enquiry into the sub-standard and slow work carried out at the said Air Force Station. In course of time, the contractor aforementioned had to be blacklisted a (xi) nd these duties were performed by the petitioner (according to what the petition er contends), with all sincerity and not knowing that there was a nexus between the contractor, in question, and the Air Force Establishment, at Eastern Command , headed by the respondent No.4. This apart, only after the damage had been caus ed to the four engines of the said aircrafts that a team to assess the situation visited the Air Force Station, Chabua, and due to poor work by the said contrac tor, the SU 30 Squadron had to be moved out for undertaking the repair work. Left with no alternative, the petitioner banned the entry of the contrac (xii) tor concerned to the Air Force Station, Chabua. The actions and steps, so taken by the petitioner, not only antagonized the Contractor, but also the higher auth orities in the Air Force establishment, who had nexus with the Contractor. (xiii) Describing as to how the petitioner was systematically harassed, humilia ted, victimized, pressurized and persecuted, the petitioner submits that an anon ymous letter, containing allegation against the petitioner to the effect that th e petitioner had been sexually exploiting his junior officers’ wives, was allege dly received, on 07.03.2012, by the Headquarter, Eastern Command, without, howev er, naming any lady in the letter. (xiv) Closely following the purported anonymous letter, received by Ea stern Air Command, on 07.03.2012, about 90 anonymous letters were allegedly rece ived, on 04.07.2012, at the Eastern Air Command, which were addressed to various officers making allegations of corruption against respondent Nos.4 and 5. The r espondents contend that the Headquarter, Eastern Command, forwarded the letters to Air Force Headquarter for consideration and appropriate action and, in the me anwhile, a preliminary investigation, conducted in this regard, revealed, accord ing to the respondents, that these letters were authored and posted by the petit ioner, at Guwahati, on 30.06.2012, when he was going to attend his farewell dinn er at Shillong, but he did not attend the dinner claiming that his wife had, sud denly, fallen ill. The petitioner was, then, transferred, on 10.07.2012, from 14 Wing Air F (xv) orce Station and left the Station for Jaipur accordingly. Soon, thereafter, on 1 6.07.2013, a Court of Inquiry, at Jorhat, was convened by respondent No.4. The ’ terms of reference’ of the Court of Inquiry, which had been ordered into the two sets of anonymous letters, one received against the petitioner and the other re
Legal Reasoning
(xxxviii) The petitioner claims that even the Court of Inquiry, at Hashi mara, smacks of mala fide, because of the manner in which the proceedings of thi s Court of Inquiry has also been conducted with pre-determined mind to implicate the petitioner. In this regard, the petitioner has also pointed out that the Co urt of Inquiry, at 16 Wing Hashimara, has been constituted by officers, who were directly under the chain of command and control of respondent Nos.4 and 5, and the common charge-sheet, dated 20.06.2012, aforementioned, is an outcome of the two mala fide Court of Inquiry and this is ex facie illegal warranting interfere nce of this Court. (xxxix) So far as the Court of Inquiry, at 16 Wing Hashimara, is concern ed, it needs to be pointed out that the Air Force Order, on Counselling, clearly lays down the responsibilities in the Counselling chain and AOC of a base, such as, the petitioner, is no way connected with this chain and, therefore, the pet itioner was not concerned and had no rational cause to direct any entry to be ma de in the Counselling Register. This apart, it is noteworthy that even the then Security Officer, Wg Cdr D.N. Tiwari (witness No.19), who is alleged to have bee n directed by the petitioner to have forged an entry, clearly denied having got any such orders from the petitioner. (xxxx) The only witness, based on whose statement, the petitioner has been roped in, is one Junior Warrant Officer T.B. Sarkar (Witness No. 4), who has stated t hat on 18.06.2012, while leaving the petitioner’s (Witness No. 22) office, he he ard the petitioner instructing Wg Cdr D.N. Tiwari (Witness No. 19) to make an en try in the said register. (xxxxi) With regard to the above, what can not be ignored is that the said witne ss No.4 has also stated before the Court of Inquiry, at 16 Wing Air Force, Hashi mara, that Wg Cdr V.K. Thakur, Stn Adjd (Witness No. 18) and Wg Cdr A. Saxena (W itness No. 21) were also present in the petitioner’s office at that point of tim e. However, the said Wg Cdr Thakur has clearly denied that any such instruction was given by the petitioner to Wg Cdr Tiwari in his presence and Wg Cdr Saxena, too, has denied that in his presence, any instruction, in respect of the Counsel ling register, was given by the petitioner to Wg Cdr Tiwari. (xxxxii) However, without assigning any cogent, plausible and convincing reason, the Court of Inquiry has held the petitioner blameworthy despite clear statemen ts having been made, at the Court of Inquiry, as indicated hereinbefore, by the person to whom the petitioner had allegedly given orders and also by persons in whose presence, the order was said to have been given. (xxxxiii) On the basis of the findings of the said two Courts of Inquiry, the pe titioner was issued, on 26.10.2012, a charge-sheet containing 12 charges. The s aid 12 charges also include the charges, which were beyond the scope of ’terms o f reference’. The petitioner, who had not been earlier supplied with any of the copies of the said 90 anonymous letters, was given, on 26.10.2012, the charge-s heet along with the findings of the Court of Inquiry, copy of two letters, out o f the 90 alleged anonymous letters, even without their envelops having the name of any addressee or any post office stamp. 3. In order to, however, enter into the soul of the subject-matter of contr oversy, in the present case, let us pause and look into the case of the responde nts. The respondents’ case is, in brief, thus: (i) An anonymous letter, alleging sexual exploitation of women, agai nst the petitioner was received, on 07.03.2012, by Headquarters, Eastern Air Com mand, and it was decided by the respondent No. 4, who is the competent authority , to enquire into the matter. (ii) On 07.03.2012 itself, oral instructions were sent to respondent No. 8 from the Headquarters, Eastern Air Command, to carry out a preliminary inv estigation and, that is why, respondent No. 8 wrote the said letter to the polic e, on 07.03.2012 itself, prior to his receipt of the written instructions, on 09 .03.2012, issued, in this regard, to him by the Headquarters, Eastern Air Comman d. This apart, since respondent No. 8 and respondent No. 7 had prior knowledge, at Air Force Station, Chabua, of the petitioner’s involvement with the said lad y, the call records of the specific phone number, belonging to the lady, in ques tion, were asked for by respondent No. 8. (iii) Pursuant thereto, respondent No. 8 forwarded his report to the Headquart ers, Eastern Air Command, on 30.03.2012. The report, so submitted, indicated tha t the petitioner was involved in exceptional interaction, from his official mobi le phone, with Ms. ’X’, on latter’s mobile phone and that the petitioner had als o procured some SIM cards from his subordinate employees to maintain contact wit h the said lady. (iv) As the said issue was sensitive, the report was forwarded to the Air Hea dquarters for consideration and when the petitioner came to know about this deve lopment, the petitioner was, on the request of the petitioner, invited by respon dent No. 4, on 24.05.2012, which was more than 2 ‰ months after the receipt of t he anonymous complaint and apprised him of the investigation carried out against him. (v) On the direction of the competent authority, the petitioner was posted to Advance Headquarter, Western Air Command (Jaipur) w.e.f 10.07.2012. In accordance with existing practice, petitioner, being Air Officer Commanding of an Air Force Station, was invited to Headquarters, Eastern Air Command, Shillong , on 29.06.2012, for a farewell dinner. The petitioner travelled by air from Dib rugarh to Guwahati taking his wife with him. He also started from Guwahati Airpo rt for Shillong in a taxi. However, in the evening, he gave a call expressing hi s inability to attend the dinner due to ill-health of his wife. The petitioner r eturned to Dibrugarh on 30.06.2012. (vi) The entire matter was deliberated upon and Air Headquarters advised the Eastern Air Commander to order Court of Inquiry to investigate the contents of t he anonymous letter, dated 07.03.2012, and also to identify the author of anonym ous letters written against AOC-in-C, EAC, as well as intent and motive behind w riting such a letter. The Court of Inquiry accordingly assembled, on 19.07.2012, and continued its proceeding till 29.08.2012. A total of 50 witnesses were exam ined by Court of Inquiry. The proceedings have been conducted meticulously in ac cordance with Air Force laws. (vii) On the conclusion of the enquiry, the Court of Inquiry blamed 5 Air For ce personnel for various acts of omissions and commissions. They were provided d ue opportunity in terms of Para-790 of the Air Force Regulations, 1969, to prese nt their case before the Court of Inquiry. The Court of Inquiry also found the p etitioner blameworthy on 12 counts. (viii) The Court of Inquiry, according to the respondents, conducted the procee ding strictly in compliance of the various provisions contained in Air Force Act and the Rules framed thereunder and, thus, the proceedings, in question, its fi nding as well as all subsequent actions cannot be set aside and quashed, though the petitioner has so sought for. (ix) Neither the Office Memorandum, dated 22.11.1992, nor Rule 156 2( 2) has any application to the present proceeding conducted by the Court of Inqui ry. The proceedings, at hand, contend the respondents, were required to be condu cted under Para by 790 (C) Air Force Regulations, 1969. Regarding the poor quality of work at Air Force Station, Chabua, the res (x) pondents claim that the petitioner himself was in-charge at the final stage of t he said project and he raised complaints about the poor quality of work at the said Air base only after he came to know that a preliminary investigation had be en ordered against him so as to ascertain his improper relationship with the wiv es of subordinate officers and, thus, the plea of poor quality of work, carried out at the said Air base, had been raised by the petitioner only to deflect the attention of authority concerned from the inquiry, which had been initiated agai nst him. (xi) Moreover, a set of 90 anonymous letters, addressed to various officers, we re received, on 04.07.2012, at Headquarters, Eastern Air Command, containing all egations of corruption against respondent Nos. 4 and 5. The Headquarters, Easte rn Air Command, forwarded the letters to the Air Headquarters for consideration and appropriate action. The preliminary investigation, according to the respond ents, indicated that those letters were also posted by the petitioner, at Guwaha ti, on 03.06.2012, when he was to attend his farewell dinner, at Shillong, but w hich he did not attend claiming that his wife had, suddenly, fallen ill. As rega rds the Court of Inquiry at 16 Wing, Hashimara, the respondents insisted that it was on the basis of the materials available before the Court of Inquiry that th e findings against the petitioner has been rendered. 4. Countering the case, as set up by the respondents, the petitioner submit s that the relevant provision, which govern the present proceeding, are not cont ained in Para 790 of the Air Force Regulations, 1969, but Rule 156(2) of the Rul es inasmuch as his identity was already known to one and all from the time the p urported anonymous letter was allegedly received, on 07.03.2012, by the authorit ies concerned. 5. The petitioner had put to challenge, by way of an Original Application, made under Sections 14 and 15 of the Armed Forces Tribunal Act, 2007, in the Reg ional Bench, Guwahati, the legality, validity and sustainability of the Court of Inquiry, the charge-sheet, which had been issued to the petitioner, and the dis ciplinary proceeding, which had been initiated against him. The learned AFT pass ed an order, on 20.11.2012, refusing to interfere and examine the merit of the m atter on the ground that the proceedings of the Court Martial had already commen ced and no interference, at such a stage, was called for. The ground, so assume d to exist, was, according to the petitioner, wholly non-existent and suffered f rom non-application of mind inasmuch as the trial by a Court Martial could have commenced only on convening of the Court Martial and the convening of the Court Martial could have been done only when the Summary of Evidence was concluded; wh ereas the stage, when the petitioner had approached the learned AFT, the proceed ings were still at the stage of recording of the Summary of Evidence and, hence, the question of trial by the Court Martial having commenced had not arisen. 6. Impugning the order, dated 20.11.2012, the petitioner had, initially, co me to this Court with the present writ petition, made under Article 226 and 227 of the Constitution of India, and while issuing notice of motion, on 27.11.2012, this Court stayed the ongoing proceedings of the Summary of Evidence. 7. Upon institution of the present writ proceeding, as the respondents rais ed a preliminary objection with regard to the jurisdiction of the High Court in entertaining a writ petition against an order of the learned AFT, this Court, on hearing the learned counsel for the parties concerned, passed an order, on 22.0 2.2013, and concluded that under Article 226, there was no legal impediment in e ntertaining the present writ petition. Following the conclusion, so reached, thi s Court issued Rule on 22.02.2013. Since this Court’s order, dated 22.02.2013, has never been challenged by the respondents, the order has attained finality. 8. After this Court had already held, on 22.02.2013, the present writ petit ion to be maintainable and Rule had been issued, the respondents herein, without informing anyone, made, before the learned AFT, a Miscellaneous Application, on 11.03.2013, which gave rise to Misc. Case No. 04/13, though it was within the k nowledge of the respondents that this writ petition would come up, for hearing, on 23.02.2013. 9. Be that as it may, by their Miscellaneous Application, the respondents h ad contended that the learned AFT had inadvertently erred in mentioning, or, bec ause of typographical mistake, mentioned, that General Court Martial (in short, ’GCM’) had been convened and that these observations, made by the learned AFT, w ere required to be ’rectified’ by making appropriate order by deleting the word ’GCM’ and inserting, in the place thereof, the expression, (cid:28)further disciplinary proceeding (cid:29).
Arguments
ceived against respondent Nos.4 and 5, would be taken note of shortly. Suffice it, at this stage, to point out that respondent No. 8 requested (xvi) the local police to furnish to the respondent No. 8 the call records of mobile N o.9707791027, belonging to one Ms. ’X’ (name not disclosed for reasons of propri ety), from the local police on 07.03.2012 itself, i.e., the date on which the pu rported anonymous letter containing allegation of the petitioner having been sex ually exploiting his junior officers’ wives was claimed to have been received at Headquarter, Eastern Command. Interestingly enough, respondent No. 8 had receiv ed the anonymous letter from the Headquarter, Eastern Command, for the purpose o f making discreet enquiry only on 09.03.2012, but he had had already requested f or the call records of telephone No. 9707791027, belonging to Ms. ’X’, from the local police, on 7.03.2012 itself, though the anonymous letter did not contain n ame of any lady or any mobile number. The said telephone number belongs to one M s. ’X’, wife of Wing Commander, J. Singh, with whom the petitioner was sought to be involved in the Court of Inquiry. (xvii) The petitioner alleges that respondent No. 8 had, in a pre-planned manne r, conspired to malign the image and reputation of the petitioner by concocting a story of improper relationship between the petitioner and the said Ms. ’X’, be cause the said Ms. ’X’ used to frequently visit the house of the petitioner to m eet the wife of the petitioner inasmuch as the petitioner’s wife was the Preside nt, while Ms. ’X’ was the Secretary of Air Force Wives Welfare Association. The details of the call records were sought for by respondent No.8 purportedly in ex ercise of his powers under Section 108 of the Air Force Act, 1950, though he doe s not, according to the petitioner, have such an authority. The obtaining of the call records of an individual by respondent No.8 amounts to, according to the p etitioner, not only a blatant invasion and breach of privacy of a civilian lady, but also violation of her fundamental rights and is contrary to Section 108 of the Air Force Act and, thus, according to the petitioner, the law of the land wa s put at the back burner to, somehow, implicate the petitioner. (xviii) The materials, placed before this Court, also reveal, submits the petiti oner, that Ms. ’X’ has filed a suit, in Allahabad, against the respondents, for maligning her reputation by eliciting false imputations in the Court of Inquiry. The said Ms. ’X’ has also lodged a complaint with the National Commission for Women against the respondents for publicly maligning her character and reputatio n without even making an enquiry. Further-more, Ms. ’X’ has also filed complain t against the respondents in the Court of Magistrate, Allahabad. Thus, the respo ndents started investigation on the purported anonymous complaint, received agai nst the petitioner, on 07.03.2012, by the Headquarters, Eastern Air Command, and , later on, through a Court of Inquiry. According to the petitioner, the Court of Inquiry is mala fide, biased, (xix) discriminatory and in violation of the procedure, which has been laid down by th e Ministry of Defence, in its Memorandum, dated 22.11.1992, which requires (poin ts out the petitioner), that whenever the Head of Department/Chief Executive, on a prima facie examination of an anonymous complaint, takes a decision to pursue further action as to the verification of facts, mentioned in an anonymous compl aint, a copy of the complaint is required to be, first, made available to the of ficer concerned for his comments before taking any action. However, no such ste p was taken by the respondents and, in fact, the copy of the anonymous letter wa s supplied to the petitioner only on issuance of charge sheet, dated 26.10.2012, along with copies of the findings of the Courts of Inquiry. This apart, the Cou rt of Inquiry, according to the petitioner, is also in violation of Rule 156(2) of the Air Force Rules, 1969. (xx) Explaining how the petitioner has been harassed by the violation of the instructions, contained in the Memorandum, dated 22.11.1992, issued by the Minis try of Defence, and how the Court of Inquiry suffers from mala fide, bias and di scrimination, the petitioner submits that the Court of Inquiry commenced, w.e.f. 19.07.2012, having the ’terms of reference’, dated 16.07.2012. In the case at hand, the ’terms of reference’, as points out the petitioner, refers to anonymo us letters, one containing allegation against the petitioner to the effect that the petitioner had been maintaining improper relation with the wives of his coll eagues and the other containing allegations of corruption against respondents No . 4 and 5. (xxi) However, while in the case of purported anonymous letter, allegedly rece ived, on 07.03.2012, containing allegations of the petitioner’s improper relatio nship with the wives of his colleagues, the Court of Inquiry was required to inv estigate into the veracity of the allegation made in the anonymous letter, alleg edly received on 07.03.2012, the set of 90 anonymous letters, which contained al legations of corruption against respondent Nos. 4 and 5, were not required to be investigated by the Court of Inquiry for the purpose of determining as to whet her the allegations, made therein, were true or not; rather, the Court of Inquir y was required to determine as to who the author of the said anonymous letter, m aking allegation of corruption against respondent Nos.4 and 5, was. (xxii) Thus, points out the petitioner, the respondents adopted double and in consistent standards, while dealing with the two alleged anonymous complaints in asmuch as they took the view that the allegations of corruption, made against re spondent Nos. 4 and 5, were not required to be investigated into and what shall be enquired into was the authorship of the said anonymous letters. Thus, without holding any enquiry into the allegations of corruption, made against respondent Nos.4 and 5, it was decided that the allegations of corruption, made against th e individual concerned, were untrue and unfounded. (xxiii) The ’terms of reference’ were, thus, according to the petitioner, palpab ly mala fide, biased and discriminatory inasmuch as the ’terms of reference’ did not require the Court of Inquiry to determine if there was any truth in the all egations of corruption, which had been made against respondent Nos. 4 and 5 by t he said 90 anonymous letters. Thus, respondent No 4, who was the convening auth ority of the Court of Inquiry, became the Judge in his own case, which is agains t the principle, (cid:28)Nemo judex in causa sua (cid:29). The Court of Inquiry, under respond ent No 6 as the presiding officer, accordingly, commenced its proceedings on 19. 07. 2012. (xxiv) The Court of Inquiry examined respondent No 7 as witness No 1, who depos ed that, while working as APM, 19 P&S (U), he was informed by his staff that the petitioner had been seen with Mrs. S. Singh during late hours of night in May, 2011. Though the statements, so given by respondent No. 7, in the Court of Inqui ry, were palpably hearsay, his statements were accepted and despite the fact tha t his statements malign the reputation of the petitioner, the petitioner was not allowed to participate in the Court of Inquiry, which was in violation of the p rovisions of Rule 156 (2) of the Air Force Rules,1969, and also Regulation 790 o f the Defence Service Regulations (Air Force) apart from being in violation of t he Memorandum, dated 22.11.1992, issued by the Ministry of Defence, Govt. of Ind ia. (xxv) Though respondent No 6, acting as Presiding Officer of the Court of Inqu iry, was required to invoke the provisions of Para 790 and Rule 156(2) of the Ai r Force Rules and give full and effective opportunity to the petitioner to defen d himself, the petitioner was not accorded any such opportunity and, the respond ent No. 6, as the Presiding Officer, continued to record, on the subsequent days , the statements of witness Nos. 2 to 6, who were ready to depose against the pe titioner as hearsay witnesses. After examining six witnesses, the provisions of Regulation 790 were inv (xxvi) oked and the petitioner was accorded an opportunity to cross- examine such witne sses, but the statements of these witnesses were already on record, their statem ents having been recorded in absence of the petitioner, and, as such, they were bound to support their own respective statements. (xxvii) Even from the cross examination of respondent No. 8, as witness No 6, it transpired that the statement of the witness was false and despite the fact tha t the answers to the petitioner’s questions were refused, though they were very relevant in the matter, no objection, in this regard, was entertained by the Pre siding Officer even after the request of the petitioner. Conducting of the Court of Enquiry was, thus, unfair, unreasonable and in violation of the mandatory re quirements of law. (xxviii) The respondent No. 8, as witness No 6, further produced the written s tatement of two other witnesses, who were never brought before the Court of Inqu iry; but their statements, recorded by the Air Force Police, were only taken on record and no opportunity was, thus, accorded to the petitioner to cross-examine these witnesses, whose statements were to be considered by the Court of Inquiry . (xxvix) Respondent No. 8, as witness No 6, further produced the call records of Ms. ’X’ and that of the petitioner and these call records were accepted by th e Court of Inquiry even without the same having been authenticated by the servic e provider nor any service provider was examined, as a witness, by the Court of Inquiry. (xxx) The husband of Ms. ’X’ was examined as witness No. 17; but he did not ma ke any complaint to the effect that his wife had any improper relation with the petitioner. Moreover, when asked specifically by the petitioner, the reply of th e witness No 17 clearly revealed that he was never informed by the Court of Inqu iry as regards the alleged relationship of his wife with the petitioner. (xxxi) The other incident of having posted 90 anonymous letters, addressed to v arious Air Force authorities, in EAC, was investigated and the Court of Inquiry directly held the petitioner responsible for posting of the said 90 anonymous le tters on the basis of the statement of one witness, who was a taxi driver, and w ho had stated that he had been taken to SP’s office and he had made a statement in front of two senior Air Force Officers. The said taxi driver had been called by Traffic In-charge, Sadar Police Station, Shillong, as well as SP (Crimes), fo r recording his statements and, thereafter, he was made to give his statement be fore the Court of Inquiry. (xxxii) The petitioner was never provided with the copies of the said 90 anonymo us letters. In fact, all the 90 anonymous letters were not even produced before the Court of Inquiry. More-over, none of the individuals/addressees, who had re ceived such letters, was ever called and examined to substantiate the fact of th eir having received such letters. (xxiii) Further-more, none of the post office staff was examined by the Court of Inquiry to verify the receipt of such a huge number of similar kind of envelops , in bulk, in a single clearance, meant for the same destination. This gives, ac cording to the petitioner, a clear indication that the story, concocted by the r espondents, was pre-planned aiming to harm the petitioner by misusing their powe rs. (xxxvi) During the progress of the Court of Inquiry, the petitioner submitted ma ny letters regarding improper manner in which the Court of Inquiry had been proc eeding, the manner in which the statements of witnesses had been recorded and th e manner in which their cross-examination was conducted. However, the respondent s/authorities concerned did not pay any heed to the letters, so submitted by the petitioner, though the Court of Inquiry travelled beyond the ’terms of referenc e’ and investigated many other aspects, which did not form part of the ’terms of reference’ for which the Court of Inquiry had been convened. (xxxv) The Court of Inquiry held the petitioner blameworthy in respect of both the sets of anonymous letters. (xxxvi) During the currency of the Court of Inquiry, which we have referred to above, the petitioner was also sent, as a witness, to record his statement in an other Court of Inquiry, held at 16 Wing Hashimara, regarding incident of suicide of one Corporal Ram Swaroop Bishnoi. It is the petitioner’s contention that in the latter Court of Inquiry, the petitioner was called initially as a witness, b ut subsequently, the petitioner was sought to be blamed for allegedly directing a falsified entry to be made in the Counselling Register even though the petitio ner, as Air Officer Commanding, 14 Wing, Air Force Station, Chabua, had no conne ction with the Counselling process. This has been done, contends the petitioner, in order to ensure that even if the petitioner is able to withstand one Court o f Inquiry, he can be crucified in another, and, in fact, the Court of Inquiry, a t Hashimara, by its findings, dated 06.09.2012, blamed the petitioner for giving an unlawful command. (xxxvii) In respect of the Court of Inquiry, held at 16 Wing, Hashimara, the allegation is that there is a false back-dated entry made in the Counsellin g Register of the Security Section to show that Corporal Ram Swaroop Bishnoi (si nce deceased) was duly counseled on 17.04.2002 and this false entry was made in the Counselling Register on the order of the petitioner.
Decision
10. Having received the Misc. Application No.4/13 aforementioned, the learne d AFT, without giving any notice to the writ petitioner, passed an order, on 13. 03.2013, making the corrections as had been sought for by the respondents. 11. Following the order, dated 13.03.2013, passed by the learned AFT, this w rit petition has been amended impugning herein and putting to challenge the subs equent order, dated 13.03.2013, passed, in Miscellaneous Application No. 04/13, by the learned AFT. 12. Situated thus, it is quite clear that the present writ petition, as it s tands today, has put to challenge not only the order, dated 20.11.2012, whereby the learned AFT had refused to decide the Original Application No. 32/12 on meri t, but also the order, dated 13.03.2013, passed by the learned AFT, whereby the learned AFT has claimed to have rectified the order, which it had passed, on 20. 11.2012. 13. To put what have been mentioned above a little differently and to be mor e precise, the petitioner has put to challenge the order, dated 13.03.2013, too, passed by the learned AFT, whereby the learned AFT had, according to its observ ations, made in its order, dated 13.03.2013, ’inadvertently’ mentioned in its ea rlier order, dated 20.11.2012, that the proceedings of the General Court Martial had commenced; whereas what had commenced was a disciplinary proceeding. Is th is conclusion, which the learned AFT has expressed in its order, dated 13.03.201 3, correct? This is one of the questions for determination in the present writ p etition. 14. We may pause here to point out that the order of correction/rectificatio n, passed by the learned AFT, stands challenged by the petitioner as illegal on the ground, inter alia, that no leave was obtained from this Court, while this w rit petition was pending for hearing, no notice had been served on the petitione r before the said correction was made, the petitioner was not heard on the respo ndents’ application for correction of the learned AFT’s earlier order, dated 20. 11.2012, and, further, that the order, dated 13.03.2013, which had been claimed by the learned AFT to be an order of correction, was based on erroneously assume d facts and contrary to the records. 15. We have heard Mr. A. Choudhury, learned counsel, appearing for the petit ioner, and Mr. R. Balasubramaniam, learned Assistant Solicitor General, appeari ng on behalf of the respondents. 16. Before dealing with the various contentions, which have been raised by t he learned counsel, and determining the merit of such contentions, we may point out that the respondents have tacitly admitted that the order, dated 20-11-2012, is not in conformity with law inasmuch as it had been submitted, on behalf of t he respondents, at the time of hearing of the preliminary objection, to the effe ct that this Court may set aside the impugned order if this Court finds that the impugned order, dated 20-11-2012, passed by the learned AFT, was not a valid or der, because of the fact that the GCM had not commenced at the time, when the or der, dated 20.11.2012, had been passed by the learned AFT on wrong assumption th at the GCM had been convened and remand the matter to the learned AFT for adjudi cation afresh. 17. This Court, however, as observed, in its order, dated 22-02-2013, had de clined to interfere with the order, dated 20-11-2012, passed by the learned AFT, on the ground that it must, first, consider whether this Court has jurisdiction or not to entertain the writ petition and if this Court finds that it has the j urisdiction, then, this Court would determine if the impugned order, dated 20-11 -2012, needs, or does not need, interference by this Court in exercise of its po wers under Article 226 or Article 227. The relevant observations, appearing in t his regard, in the order, dated 22-02-2013, being relevant are reproduced below: Responding to the above submissions, made on behalf of the petitioner, M (cid:28)26. r. Sharma, learned ASG, has pointed out that as far as the impugned order, dated 20.11.2012, is concerned, the same is a final order, which has been arrived at after discussing the case of the petitioner, and, hence, the petitioner does not have any right to approach this Court either under Article 226 or under Article 227, when a statutory right of appeal has been provided against the impugned or der. At the same time and in the same breath, the learned ASG, as already indica ted above, has submitted that if this Court finds that the impugned order, dated 20.11.2012, passed by the learned AFT, is not in accordance with law, because o f the fact that the GCM had not commenced, when the impugned final order was pas sed by the learned AFT, this Court may set aside the impugned order and remand t he matter to the learned AFT for adjudication afresh. 27. When a query was made by this Court as to how can this Court interfere w ith the impugned order if it accepts the respondents’ plea that the impugned ord er does not fall within the ambit of this Court’s writ jurisdiction under Articl e 226 or 227, the learned ASG could give no effective reply. Nonetheless, the le arned ASG insists that the impugned order is a final order and there being a sta tutory appeal provided against such an order, the High Court’s jurisdiction, und er Articles 226 as well as 227, stands ousted. The conflicting submissions, whic h have been made on behalf of the respondents, give an impression that the respo ndents are, perhaps, of the view that the impugned order is based on non-existen t fact and, is, therefore, illegal, but they are also of the view that since the impugned order is a final order, this Court, at least, does not have the jurisd iction either under Article 226 or under Article 227 to interfere with the final order, because statutory provisions for appeal against a final order exist in t he AFT Act. (cid:29) (Emphasis is added) 18. Before proceeding further, let us determine the legality of the impugned order, dated 20-11-2012, passed by the learned AFT. For the purpose of determin ing if the impugned order, dated 20.11.2012, passed by the learned AFT, is susta inable in law, we reproduce hereinbelow the relevant observations, appearing in the impugned order, dated 20.11.2012, aforementioned, passed by the learned AFT: (cid:28)5. 08.2012 and the second one on 06.09.2012, the appellant did not challenge the sa me immediately. In the meantime, the GCM proceeding has been convened and it sta rted functioning against the appellant as submitted. That apart, the statutory c omplaint filed by the appellant is also yet to be disposed of by the Ministry of We notice that although the Court of Inquiry submitted its report on 29. Defence. 6. In the case of Lt. Gen PK Nath Vs. UOI (OA No.610/2010 dated 20.10.2010) , the Principal Bench of Armed Forces Tribunal did not interfere with findings o f Court of Inquiry when the next procedure of the GCM already started. Again in the case of Union of India Vs. Maj Gen Madanlal (AIR 1996 SC 1340), the Apex Cou rt held that trial commences the moment the General Court Martial assembles to c onsider the charge and examines wherein they would proceed with the trial. Apply ing this test also, in the instant case, we find that the trial has already comm enced and there has been much progress in the GCM and hence we do not consider t o interfere with the Court of Enquiry report on the trial at this stage. In view of the above discussion, we refrain from giving any opinion on t 6. he merit of the case and in turn, dispose the appeal with the directions that th e respondents, more particularly, respondent No.1, shall dispose of the statutor y complaint of the appellant which must have been forwarded to them by now by th e respondent No.2 as early as possible preferably within a period of six weeks a nd communicate the result thereof to the appellant forthwith. (cid:29) (Emphasis is added) 19. From a bare reading of the impugned order, dated 20.11.2012, what clearl y transpires is that the learned AFT had not only taken the view, in its order, dated 20.11.2012, that the General Court Martial (in short, GCM) had already com menced, but that much progress had already been made in the proceedings of the G CM and that it (i.e., the learned AFT) shall not interfere with the report of th e Court of Inquiry, when the proceedings of the GCM had already progressed much; whereas the reality was that the subject-matter of the OA rested, on 20.11.2012 , at the stage of recording of Summary of Evidence (popularly called ’S of E’) a nd that neither any formal charge-sheet, as contemplated by Air Force Rules, 196 9, has been served on the petitioner nor till date the GCM has been convened. In fact, it is, now, conceded by the respondents that the GCM has not be 20. en convened. Consequently, the question of the GCM having made progress, as had observed by the learned AFT, did not arise. 21. Let us, now, turn to the scheme of the Air Force Rules, 1969, with regar d to investigation and trial. In this regard, what needs to be noted is that it is Chapter V of the Air Force Rules, 1969, which makes provisions for investigat ion of charges and trial by a Court Martial. 22. While considering Chapter V, what is of great significance to note is th at Chapter V relates to investigation of charges and remand for trial. The word ’charges’, appearing in Chapter V, means tentative charges, which, in turn, mean s accusations and not ’charges’, which are formally framed by the Criminal Court s of ordinary jurisdiction. These ’tentative charges’ are, thus, accusations and it is the Commanding Officer, who has to decide whether or not the accusations, so made, are to be proceeded with or not. What is of utmost importance to note, while considering the provisions c 23. ontained in Chapter V of the Air Force Rules, 1969, is that Sub-Rule (1) of Rule 24 empowers, and, at the same time, makes it a duty of the Commanding Officer t o hear every ’charge’ against a person subject to the Air Force Act in the pres ence of the accused with liberty given to the accused to cross-examine the witne sses produced against him and also to call such witnesses as he may require and he may make such statement as may be necessary for his defence. 24. If, upon hearing of the ’charges’ under Sub-Rule (1) of Rule 24, the Com manding Officer is of the opinion that the ’evidence’ does not show that an offe nce under the Act has been committed, he must dismiss the ’charges’. The Command ing Officer may also dismiss the ’charge’ if he is satisfied that the ’charge’ o ught not to be proceeded with. If, however, the Commanding Officer is of the opi nion that the ’charge’ ought to be proceeded with, he shall, within a reasonable time, (a) dispose of the case summarily or (b) he may refer the case to the sup erior air force authority for sanction under Section 83 or (c) adjourn the case for the purpose of having the ’evidence’ reduced to writing. 25. When the Commanding Officer adjourns the case, in terms of Clause (c) of Sub-Rule (3) of Rule 24, for the purpose of having the ’evidence’ reduced to wr iting, a Summary of Evidence, is recorded in terms of Rule 24. At the stage of S ummary of Evidence, as Rule 24 conceives, ’evidence’ given by the witnesses is r ecorded with liberty given to the accused to cross-examine the witnesses. The ac cused also has the right to make a statement in his defence and may even examine witnesses in defence of his case. The ’evidence’, so collected, and the stateme nts, so recorded, under Rule 24, is called Summary of Evidence. Rule 24 requires that the Commanding Officer shall consider the Summary of Evidence and remand t he accused for trial by a Court Martial or refer the case to the appropriate sup erior air force authority for sanction under Section 83 or disposal under Sectio n 86 or, if he thinks it desirable, re-hear the case and dispose it of summarily . When, however, the accused is remanded for trial, he is served with a ch 26. arge-sheet, which has to be signed by the Commanding Officer in terms of Rule 37 and it is Rule 43, which empowers the convening authority to convene a Court Ma rtial. Where the Commanding Officer is not the officer competent to convene a Co urt Martial, the competent military authority can convene Court Martial if he is satisfied that the ’charges’ to be tried by the Court Martial are ’offences’ wi thin the meaning of the Army Act and that the ’evidence’ justifies a trial on th ose ’charges’ and if he is not so satisfied, he may order release of the accused or may even refer the case to the superior authority. What is, now, imperative to note is that until the time a convening orde 27. r is made by a competent military authority, the accused is not put to trial by a Court Martial. More importantly, though Rules 24, 25 and 26 use the expression ’evidence’, the word ’evidence’ is not really ’evidence’ as is understood under Section 3 of the Evidence Act and the expression ’charge’, which appears in Rul e 24, 25 and 26, is not really a formal ’charge’, which a Criminal Court frames. The expression, ’charge’, as already indicated, means an accusation, which may be under enquiry or investigation. Though called as Summary of Evidence, none of the materials collected under Rule 24 is ’evidence’ stricto senso and Summary of Evidence stands on the same footing as do the previous statements of witness es, who are examined during the course of investigation, and can be used for the purpose of contradicting a witness or impeaching the credibility of a witness i n terms of Section 145 of the Evidence Act. 28. Thus, the scheme of the Air Force Rules, 1969, if carefully read, clearl y reflect that when an accusation, made against a person, subject to the Air For ce Act, 1950, is investigated in terms of Rule 24 or 25, the accusation is calle d ’charge’ and Summary of Evidence is merely a collection of the statements of t he witnesses recorded during investigation with, however, liberty given to the a ccused to examine the witnesses and, hence, Summary of Evidence is not, legally speaking, ’evidence’ as conceived under Section 3 of the Evidence Act. 29. In the case of Courts of ordinary criminal jurisdiction, a person may ap pear or may be brought before the Court on accusations of his having committed a n offence either on completion of investigation or on completion of enquiry. Whe n an accused is brought before a Criminal Court with an accusation, there is no formal charge. When, however, an accused is brought before a Court Martial, char ge(s), on which the accused is to be tried, are charge(s) already framed by the Commanding Officer. 30. In a Court Martial, unlike an ordinary Criminal Court, it is not the Cou rt, which frames charges. Though in both the cases, i.e., in a trial by a Court Martial as also in a trial by an ordinary Criminal Court, the accused is asked i f he pleads guilty to the charge or not. 31. From the discussions, held above, it becomes clear that recording of the Summary of Evidence is a stage or part of the investigation procedure and after recording of the Summary of Evidence, a Court Martial may or may not be convene d depending upon the contingencies, which have been indicated in Chapter V. 32. The learned AFT, therefore, ex facie refused to exercise jurisdiction on non-existent ground by erroneously treating the Summary of Evidence as a collec tion of ’evidence’ within the meaning of Section 3 of the Evidence Act and assum ed that trial by General Court Martial had already commenced and had made much p rogress. 33. Considering the fact that the impugned order, dated 20-11-2012, passed by the learned AFT, was demonstratively illegal and not sustainable in law, beca use the foundation of this order was on a wrong assumption of facts and position of law, it could not have been logically extended to mean, nor could have the respondents, legally speaking, contended before the learned AFT, that the word ’ GCM’ had been mentioned by the learned AFT, in its order, dated 20-11-2012, ’ina dvertently’ or because of ’typographical’ mistake. This apart, even the learned AFT could not have legally held, in its subsequent order, dated 13.03.2013, that the words ’trial’ and ’GCM’, appearing in its earlier order, dated 20.11.2012, should be taken to have meant disciplinary proceeding inasmuch as mentioning of the word ’GCM’ was only a ’typographical’ error or an ’inadvertent’ mistake in i ts order, dated 20.11.2012. Moreover, without giving any notice to the petitione r, the order, dated 13-03-2013, could not have been passed by the learned AFT tr eating the order, dated 20-11-2012, as an order, wherein ’typographical’ mistake or an ’inadvertent’ error had crept in, while using the word ’trial’ and the wo rd ’GCM’, particularly when the learned AFT had made it clear, in its earlier o rder, dated 20.11.2012 (as has already been pointed out above), that the GCM had commenced and made much progress. 34. In addition to what have been pointed out above, we may also take note o f the fact that it has been pointed out by Mr. A Choudhury, learned counsel for the petitioner, with great justification, that an Armed Forces Tribunal cannot r eview, in the light of Rule 18 of the Armed Forces Tribunal (Procedure) Rule, 20 08, its order if an application for review is made after expiry of a period of 3 0 days from the date of receipt of the copy of the order sought to be reviewed. Though there can be no doubt that in the light of the provisions of Sect 35. ion 14(4)(f) of the Armed Forces Tribunal Act, 2007, (in short, AFT Act), the AF T does have the power to review its own order, an AFT cannot review, in the face of Rule 18 of the Armed Forces Tribunal (Procedure) Rule, 2008, its order if an application for review is made after expiry of a period of 30 days from the dat e of receipt of the copy of the order sought to be reviewed. 36. The above inference is reinforced from the fact that wherever the AFT Ac t wanted to confer discretion, the same has been clearly specified. For instance , while imposing limitation on the powers of the AFT to admit an application, Se ction 22(2) very clearly states that ’if the Tribunal is satisfied that the app licant had sufficient cause for not making the application under Section 21 of t he AFT Act, the Tribunal shall not admit such an application.’ Similarly, Sectio n 32 confers power to condone delay by laying down that the Supreme Court may, u pon an application made, at any time by the appellant, extend the time within wh ich an appeal may be preferred by him to that Court under Section 30 or Sub-Sect ion (2) of Section 31. 37. There is no provision in the AFT Act or the Rules made thereunder making the Limitation Act, 1963, applicable. There can, therefore, be no manner of dou bt that the learned AFT could not have entertained the application seeking recti fication/correction, when the said application had been made beyond the period o f 30 days of the receipt of the copy of the order. 38. Though the above position of law was not even disputed on behalf of the respondents, at the time of hearing of this writ petition, Mr. Choudhury, learne d counsel, to buttress his above submission, relies on two decisions of the Supr eme Court in L.S. Synthetics Ltd. v Fairgrowth Financial Services Ltd. and Anr., reported in (2004) 11 SCC 456, and Fairgrowth Investments Ltd. v Custodian, rep orted in (2004) 11 SCC 472. The references, made by Mr. Choudhury, to the cases of L.S. Synthetics Ltd. (supra) and Fairgrowth Investments Ltd. (supra), are, to our mind, not wholly misplaced and we, therefore, must hold, and do hold, that the Armed Forces Tribunal, under the scheme of Armed Forces Tribunal Act, 2007, read with the Armed Forces Tribunal (Procedure) Rules, 2008, cannot take resort to Limitation Act, 1963, for the purpose of condoning delay in making an applica tion for review. 39. In short, an Armed Forces Tribunal does not have, under the scheme of th e Armed Forces Tribunal Act 2007 read with Armed Forces Tribunal (Procedure) Rul es, 2008, the power to entertain a review petition or any proceeding in the natu re of review on expiry of 30 days from the date of receipt of the order, which i s sought to be reviewed. Considered in this light, there can be no escape from t he conclusion that same as the order, dated 20-11-2012, even the order, dated 13 -03-2013, is wholly without jurisdiction, palpably illegal and is in gross viola tion of the principles of natural justice, particularly, when we have noted abov e that the learned AFT, in the present case, incorrectly recorded, in its order, dated 13.03.2013, to the effect that the word ’trial’ and the word ’GCM’, whic h appeared in its earlier order, dated 20.11.2012, were not due to ’inadvertent’ error or ’typographical’ mistake. 40. We would have had, in the light of the discussions held above, set aside the orders, dated 20-11-2012 and 13-03-2013, passed by the learned AFT, and we would have, perhaps, remanded the matter to the learned AFT, but we restrain fro m doing so, because of three reasons. 41. The first reason, as has been pointed out by this Court, in its order, d ated 22-02-2013, is that when an accusation of discrimination or victimization i s made, the High Court has, indeed, the power under Article 226 to examine such issues. 42. The second reason for our decision not to remand the matter to the learn ed AFT is that the learned AFT, in the light of the order, dated, 20.11.2012, re ad with order, dated 13.03.2013, has clearly reflected its mind that in the face of the materials on record, the petitioner does not have, at this stage, any ca se calling for interference by the learned AFT or to invoke jurisdiction of the learned AFT. 43. Coupled with the above, the third reason, which restrains us from remand ing the matter to the learned AFT, is that the learned counsel for the parties, appearing before this Court, have addressed this Court on the merit of the writ petition and having heard the writ petition at length, it would not be advisable for this Court not to determine the correctness of the rival submissions made b efore us with regard to the sustainability of the findings of the Court of Inqui ry and the initiation of the disciplinary proceeding against the petitioner by i ssuing a charge-sheet to the petitioner, particularly, when the learned AFT, in the light of its subsequent order, dated 13-03-2013, is convinced that the origi nal application, which the petitioner had filed in the learned AFT, was not to b e pursued on merit. Indeed, none of the parties to the present writ proceeding h as expressed that if this Court happens to set aside the learned AFT’s order, da ted 20.11.2012, read with order, dated 13.03.2013, this Court may not, in exerci se of its jurisdiction under Article 226 or 227, examine the validity of the ord er convening Court of Inquiry, the proceedings of the Court of Inquiry and/or th e charge-sheet and/or the disciplinary proceeding initiated against the petition er. 44. Ordinarily, this Court would not have, in exercise of its power under Ar ticle 226 and/or Article 227, entered into the merit of the allegations and coun ter allegations made by the parties to the present writ proceeding. However, we have, very reluctantly, taken the view that this writ petition needs to be decid ed on merit lest this Court’s reluctance to interfere with the impugned proceedi ngs creates a ’distorted picture’ in the minds of the Air Force personnel, who s tand on the same footing as do the Army personnel, that the persons subject to t he Air Force Act, 1950, are not citizens of India. The Parliament may, under Art icle 33 of the Constitution of India, restrict or abrogate the fundamental right s of the members of an armed force; but exercise of this power cannot be read to mean that a person subject to the armed forces act is not entitled to the benef it of liberal spirit our Constitution or liberty oriented approach of our Consti tution. 45. It is, therefore, the right time to recall the Supreme Court’s famous an d often quoted observations made in Lt. Col. Prithi Pal Singh Bedi v. Union of I ndia, reported in (1983) SCR 1 393, wherein the relevant observations, appearing in Lt. Col. Prithi Pal Singh Bedi (supra), read thus: (cid:28)8. Personnel of the Armed Forces are entitled as much as any other citizen to t he protection of the Constitution of India. The Supreme Court had observed over thirty years ago and reiterated regularly thereafter (yet regretfully unheeded b y the Respondents) that service in the Armed Forces can no longer be viewed as a support or adjunct of the Rulers. We cannot do better than to reproduce the fol lowing extract from the decision in Lt. Col. Prithi Pal Singh Bedi v. Union of I ndia reported in (1983) SCR 1 393 : 44. Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citize ns of India. It is one of the cardinal features of our Constitution that a perso n by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Co urt held in Sunil Batra v. Delhi Administration that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larg er interest of national security and military discipline Parliament in its wisdo m may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens n ot entitled to the benefits of the liberal spirit of the Constitution. Persons s ubject to Army Act are citizens of this ancient land having a feeling of belongi ng to the civilised community governed by the liberty-oriented constitution. Per sonal liberty makes for the worth of human being and is a cherished and prized r ight. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the cr iminal court and the court martial is apt to generate dissatisfaction arising ou t of this differential treatment. Even though it is pointed out that the procedu re of trial by court martial is almost analogous to the procedure of trial in th e ordinary criminal courts, we must recall what Justice William O’Douglas observ ed : That civil trial is held in an atmosphere conducive to the protection of in dividual rights while a military trial is market by the age-old manifest destiny of retributive justice. Very expression ’court martial’ generally strikes terro r in the heart of the person to be tried by it. And somehow or the other the tri al is looked upon with disfavor. In Reid v. Covert, Justice Black observed at pa ge 1174 as under: Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of comm and influence. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous a ssignments and efficiency ratings in short, for their future progress in the ser vice. Conceding to military personnel that high degree of honesty and sense of j ustice which nearly all of them undoubtedly have, the members of a court martial , in the nature of things, do not and cannot have the independence of jurors dra wn from the general public or of civilian judges. (cid:29) (Emphasis is added) 46. In the light of our decision that we must decide the writ petition on me rit, we, now, turn to the Office Memorandum, dated 22-11-1992, issued by the Min istry of Defence, Government of India, which is reproduced under: (cid:28)a. Many anonymous/pseudonymous complaints are false and malicious and very ofte n, such complaints are not a reliable source of information and enquiries into s uch complaints do have an adverse effect on the morale of the services. The Gov ernment of India are, therefore, of the view, that generally, no action is warra nted on anonymous/ pseudonymous complaints against Government Servants and they are to be filed. b. While as a policy, anonymous/pseudonymous complaints should be ignored and on ly be filed [....] wherever the Head of the Department/Chief Executive, on a pri ma facie examination of such complaints, takes a decision, to pursue further act ion in this regard as to the verification of the facts, a copy of all such compl aints, petitions, as far as possible, shall first be made available to the offic er concerned for his comments and only thereafter, further action should be take n. (cid:29) (Emphasis is supplied) 47. From a bare reading of the office memorandum, dated 22-11-1992, it becom es clear that according to the policy decision and guidelines issued by the Gove rnment of India, no action is, generally, warranted on an anonymous complaint ag ainst Government servant or pseudonymous complaint against Government servants a nd such a complaint shall, ordinarily, be filed. However, when the Head of the D epartment/Chief Executive, on a prima facie examination of such a complaint, dec ides to pursue the complaint as regards the verification of the acts stated ther ein, a copy of such a complaint, as far as possible, shall, first, be made avail able to the officer concerned for his comments and only thereafter, further acti on should be taken. 48