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Armed Forces Tribunal, Regional Bench, Chennai O.A

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Armed Forces Tribunal, Regional Bench, Chennai O.A 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A. No. 65 of 2014 and M.A.No.133 of 2014 Wednesday, the 16 th day of July 2014 THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE) Lt Col RD Sharma Unit 249, C/o 56 APO Gurgaon, Haryana … Applicant By Legal Practitioners: M/s. K.Ramesh & M.K.Sikdar vs. 1. Union of India Through Secretary Ministry of Defence New Delhi-110 011. 2. The Chief of Army Staff Through Adjutant General (ADGDV) Army Headquarters, New Delhi 3. The General Officer Commanding 54 Infantry Division C/o 56 APO ..Respondents By Major Suchithra Chellappan, JAG Officer. 2 ORDER (Order of the TriBunal made By Hon’Ble Justice V. Periya Karuppiah, MemBer-Judicial) 1. This Original application has Been filed Before the Principal Bench, Armed Forces TriBunal, New Delhi and was taken on file in O.A.No.182 of 2014. The Hon’Ble Principal Bench has directed to return the application for Being presented Before this TriBunal on the question of jurisdiction and accordingly the said Original Application was returned, taken Back By the applicant and was re-presented Before this TriBunal and was taken on file in O.A.No.65 of 2014. 2. The reliefs sought for By the applicant in this Original Application are, to issue directions to quash and set aside the Convening Order dated 21.12.2013 passed By Head Quarters 54 Infantry Division against the applicant Being contrary to the judgment of this TriBunal; to issue directions to the respondents (Army Head Quarters) to cancel the Discipline and Vigilance Ban dated 28.06.2012 Based on the Disciplinary Attachment Order issued By Army Head Quarters on 01.11.2012 which was quashed and set aside By this TriBunal already; to pass such other further orders against the respondents to pay adequate compensation to the applicant for the harassment caused; and also to impose a penalty on GOC HQ 54 Infantry Division for again convening a Court of Inquiry on an issue which is no longer res integra Being defiant in nature per se. 3 3. The Brief facts of the case as culled out from the application would Be as follows: A complaint was suBmitted By SuBedar Major Raju Kurian of 18 MADRAS on 12.08.2011 only against the Commanding Officer Col VV Bhaskar with no iota of complaint against the applicant. A Court of Inquiry was convened on 29.09.2011 to investigate the veracity of the complaint. During the proceedings, Army Rule 180 was invoked against the complainant SuB Maj Raju Kurian and also against the Commanding Officer Col VV Bhaskar. On 27.09.2012, HQ Southern Command recommended a Disciplinary Attachment order against Commanding Officer Col VV Bhaskar and also against the applicant Lt Col RD Sharma. Despite the fact that Army Rule 180 was not invoked against the applicant, Army HQ issued a Disciplinary Vigilance Ban against the applicant dated 28.06.2012 and also imposed a Disciplinary Attachment Order dated 01.11.2012. Aggrieved over the same, the applicant filed Original Application No.52 of 2013 in which a full-fledged judgment was passed in favour of the applicant on 12.09.2013 and the Attachment Order issued on 01.11.2012 By the Army HQ AG (DV) Directorate stands quashed and the entire Court of Inquiry was set aside with clear instructions to stop the disciplinary action against the applicant. A Demi Official letter was written By the applicant’s counsel to Army Headquarters on 30.09.2013 with a request to revert him Back to the 4 Unit where he was the Officer Commanding. The applicant was reverted Back to his Unit By a proper Movement Order along with a Detention Certificate dated 07.12.2013. However within a period of 14 days, a fresh Convening Order for the Court of Inquiry dated 21.12.2013 was issued exactly on the same issues which were adjudicated and set aside By the Hon’Ble TriBunal. This would Be a high-handed act of GOC 54 Infantry Division under whose directions the Convening Order was issued. Based on the said Convening Order, the applicant was directed to report to HQ 54 Infantry Division to take part in the Court of Inquiry. The Convening Order is nothing But a malafide action of the army authorities and a violation of the judgment rendered in favour of the applicant, By the Chennai Regional Bench of AFT on 12.09.2013. Having no other remedy, the applicant is constrained to file another Original Application on 04.04.2014 Before the Principal Bench of AFT, New Delhi now transferred to Chennai Regional Bench of AFT. A fresh Convening Order refers to ascertain the old alleged culpaBility and lapses of the applicant herein which would Be nothing But a contempt of Court and needs to Be corrected to meet the ends of equity, justice and fair play. 4. The said Convening Order issued By 54 Infantry Division dated 21.12.2013 needs to Be quashed and set aside at the very outset in view of the matter Being no longer res integra in the light of the 5 judgment of the Hon’Ble AFT Regional Bench, Chennai dated 12.09.2013. Therefore, the applicant seeks for setting aside the Convening Order and to grant reliefs as prayed for By the applicant in the application and thus the application Be allowed. 5. The Brief oBjections raised in the reply-statement of the respondents would Be as follows: The assailed Convening Order dated 21.12.2013 has directed the composition of a Court of Inquiry as a fresh fact-finding Body to ascertain the culpaBility/lapses By Lt Col RD Sharma and other officers in a series of events that occurred in 18 MADRAS on a complaint By SuB Maj Raju Kurian against Col VV Bhaskar and the Report of Col VV Bhaskar on the events on the night of 20/21 June 2011. Since the said Convening Order is valid in the eye of law, the request of the applicant in the application is premature and no prejudice would Be caused to him in ordering a Court of Inquiry which is a fact-finding Body to ascertain the involvement of Lt Col RD Sharma as per the allegations levelled By SuB Maj Raju Kurian. The judgment of the AFT Regional Bench Chennai dated 12.09.2013 made in O.A.No.52 of 2013 would not Bar the respondents from initiating a fresh Court of Inquiry as the respondents were given liBerty to take suitaBle action as deemed fit and only on the Basis of the liBerty given in the judgment of the AFT Regional Bench Chennai, the Convening Order has Been issued. Despite no disciplinary 6 action can Be initiated on the opinion of the Court of Inquiry vide Convening Order dated 30.01.2012, it however does not restrain the Competent Military Authority to order a fresh Court of Inquiry to ascertain the veracity of the complaint and the Report of the Commanding Officer. The Court of Inquiry ordered into the allegations levelled against Col VV Bhaskar dated 12.08.2011 was set aside But the Hon’Ble AFT Regional Bench Chennai vide order dated 12.09.2013 came to a conclusion that Army Rule 180 was not invoked in respect of the applicant, when the applicant’s character and military reputation got impugned on the evidence of P.W.1 who incriminated the applicant three times in his statement. Since the applicant was the Second-in- Command of the Battalion, a fresh Court of Inquiry was ordered vide Convening Order dated 21.12.2013 against the applicant in order to ascertain his involvement. The assemBly of a fresh fact-finding Body, viz., Court of Inquiry was ordered to ascertain the culpaBility or lapses By Lt Col RD Sharma in various events as high-lighted By SuB Maj Raju Kurian in his complaint against Col VV Bhaskar and the Report of the Commanding Officer. During his tenure, the applicant as 2IC of 18 MADRAS was involved in the incident during the intervening night of 20 and 21 June 2011 at Focolari Camp (Congo) while the Unit was deployed on UN Mission. The Hon’Ble AFT Chennai Regional Bench has quashed the disciplinary action against the applicant Based on the 7 opinion of the Court of Inquiry convened vide Convening Order dated 30.02.2012 on the ground of non-compliance of Army Rule 180 in respect of the individual during the said Court of Inquiry. Thus the disciplinary proceedings was quashed on a technical aspect only. It does not deBar the competent military authority to order any fresh investigation into the matter and pin-point lapses, if any, By Lt Col RD Sharma or any other individual. In the previous Court of Inquiry even P.Ws.1, 5, 6, 7 and 23 incriminated the applicant in their evidence. However Army Rule 180 was not invoked at that time But was invoked on one occasion when Col VV Bhaskar was questioned By the Court on 10.04.2012 and therefore, the said Court of Inquiry was entirely quashed against the applicant. The quashment of the said Court of Inquiry did not Bar the competent authority to investigate the involvement of the applicant into the allegations levelled By SuB Maj Raju Kurian and the events at Focolari Camp (Congo) on the night of 20/21 June 2011. While the complaint initiated By SuB Maj Raju Kurian is not specific against any of the officers, accountaBility of various commanders/appointment holders within the Command Structure of the Battalion needs to Be ascertained.
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