2022-SC Judgments On Mil Law

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 1 Monday, December 19, 2022
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TruePrint™ source: Supreme Court Cases, © 2022 Eastern Book Company. The text of this version of
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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544 SUPREME COURT CASES (2022) 6 sec

(':;;\ (2022) 6 Supreme Court Cases 544
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'-:.J (BEFORE L. NAGESWARA RAO AND B.R. GAVAI, JJ.)
a
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UNION OF INDIA AND OTHERS .. Appellants;
Versus
AT
LIEUTENANT GENERAL (RETIRED) S.K. SAHNI Respondent.
Criminal Appeal No. 2169 of 2014t with Transferred Case
(Criminal) No. 1 of 2017, decided on March 23, 2022
b
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A. Armed Forces - Army Rules, 1954 - R. 40(2) r/w R. 102 -
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Composition of GCM - Requirement of members of GCM for trial of officer
not to be below in rank than that officer - Departure from - Recording of
reasons for - Sufficiency
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- On facts held, reasons recorded by convening officer regarding
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unavailability of officers above and/or rank respondent Lt. General (Retd.)
fall within exigencies of public service and hence, justified -
judicial review of such decision limited - OScope of
Enquiry permissible only to
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determine whether reasons recorded have relevance to public exigencies or
not - Unless decision found to be suffering from arbitrariness, irrationality
or unreasonableness, Court cannot sit in appeal over decision of convening
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officer (Paras 21 and 22) d

EN
Avadhesh Prakash v. Union of India, (2022) 6 SCC 559, explained

Union of India v. Charanjit S. Gill, (2000) 5 SCC 742, cited
B. Armed Forces - Discharge/Dismissal/Removal from service/

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Termination of service - Concurrent findings of fact with regard to charges

proved - Interference with - When warranted - Ration scam e
- AFT by impugned judgment reducing sentence of three years of RI and

cashiering imposed by GCM to dismissal while affirming finding of guilt -
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Reiterated that there are inherent limitations on jurisdiction of Supreme Court

and it would not reappreciate evidence unless it is found that material facts were
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ignored or appreciation of evidence was erroneous f

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- On facts held, findings recorded by GCM which were affirmed by

AFT holding respondent Lt. General (Retd.) guilty under S. 52(f) of the Army
Act despite finding that respondent had neither committed any fraud nor any
act causing actual loss or wrongful gain to any person, unsustainable -
2-
Impugned judgment set aside - Respondent, held, entitled to all pensionary

and consequential benefits g
2
- (i) Respondent alleged to have agreed to proposal for addition of two

20
more tendering stations in addition to existing 14 tendering stations with intent

to defraud State; (ii) Though he had enquired into complaint alleging fake
t Arising from the Judgment and Order in S.K. Sahni v. Union of India, 2013 SCC OnLine AFT h
467 (Armed Forces Tribunal, Chandigarh Bench, MA No. 1871 of2012 and OA No. 262 of 2011,
dt. 10-10-2013) [Reversed]
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. S.K. SAHNI 545

tendering and presence of kesari peas and akra in masur dal, he had failed to
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investigate same and thus, was responsible for feeding food to Army personnel
a which was below standard and had further agreed to proposal of G firm
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supplying same for upgradation of masur dal; and (iii) with intent to defraud
had approved deviation with relaxation permitting 350-400 grains per 100 gm
of kabli chana as against 300-350 grains per 100 gm
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- As far as first charge is concerned, held, authority to accept additional
tendering stations was with CDP, APO and not respondent - Besides, no loss
b was caused to Army on account of such decision nor any benefit had accrued to
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firm concerned - Hence, finding of AFT that there was intention to defraud,
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held, unsustainable
- As far as second charge is concerned, on detection of kesari peas in
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samples sent for analysis, respondent had issued instructions to freeze the
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stock and departmental enquiry was directed by DGST - Thus, finding that
respondent had failed to take cognizance of complaint and initiate enquiry
contrary to material placed on record - Besides, GCM itself had noted that
560.727.380 metric tonnes of masur dal had gone bad for which recoveries
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were made from firm concerned - Lastly, as regards relaxation permitting
350-400 grains per 100 gm of kabli chana, it was allowed on reduction of
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d 0.5% of contract amount and thus, public exchequer had benefitted thereby -
Besides, it was not contended that kabli chana supplied was of inferior quality
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or below standard - Moreover, CL 6(a)(iv) in tender enquiry of APO which is

in vogue for decades permitted same - Impugned judgment unsustainable -
Army Act, 1950, S. 52(f) (Paras 31 to 46)
Surendra Kumar Sahni v. Chief ofArmy Staff, 2007 SCC OnLine Del 1928; P.S. Gill v. Union
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e of India, 2011 SCC OnLine AFT 79, considered

S.K. Sahni v. Union of India, 2013 SCC OnLine AFT 467, reversed
Surendra Kumar Sahni v. Union of India, 2009 SCC OnLine AFT 9; S.K. Sahni v. Union of
India, 2013 SCC OnLine P&H 26964; Union of India v. S.K. Sahni, 2016 SCC OnLine SC
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1952, referred to
Appeal allowed P-D/68697 /CLR
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f
Advocates who appeared in this case :
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Sanjay Jain, Additional Solicitor General and R. Balasubramanian, Senior Advocate

[K.K. Tyagi, Sarvam Ritam Khare (Advocate-on-Record), Mukesh Kr. Maroria
(Advocate-on-Record), Sanjay Kr. Tyagi, Anukalp Jain, Arvind Kr. Sharma (Advocate-
on-Record) and P. Narasimhan (Advocate-on-Record), Advocates], for the appearing
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parties.
g
Chronological list of cases cited on page(s)
2
1. (2022) 6 SCC 559, Avadhesh Prakash v. Union of India 549g,550c,551a

20
2. 2016 SCC OnLine SC 1952, Union of India v. S.K. Sahni 549e

3. 2013 SCC OnLine P&H 26964, S.K. Sahni v. Union of India 549d
4. 2013 SCC OnLine AFT 467, S.K. Sahni v. Union of
India (reversed) 546b, 549b-c, 549c-d, 549d-e,
h 554g, 557e-f, 558e-:f
5. 2011 SCC OnLine AFT 79, P.S. Gill v. Union of India 553b, 554{-g, 556e
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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6. 2009 SCC OnLine AFT 9, Surendra Kumar Sahni v. Union of
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India 548d, 548e:f
7. 2007 SCC OnLine Del 1928, Surendra Kumar Sahni v. Chief of Army Staff 548a
a
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8. (2000) 5 SCC 742, Union of India v. Charanjit S. Gill 550a-b
The Judgment of the Court was delivered by
AT
B.R. GAVAI, J.- Criminal Appeal No. 2169 of 2014 is filed by the
Union of India and others challenging the orders passed by the Armed Forces
Tribunal, Chandigarh Regional Bench at Chandimandir (hereinafter referred to
b
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as "AFT") dated 10-10-2013 in S.K. Sahni v. Union of lndia 1 to the effect that
it reduces the sentence of three years' rigorous imprisonment and cashiering
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imposed on the respondent herein, Lt. Gen. (Retd.) S.K. Sahni to dismissal
from the service as provided in Section 7l(e) of the Armed Forces Tribunal
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Act, 2007 (hereinafter referred to as "the AFT Act"), and 21-3-2014 in MAs
Nos. 3201 and 3202 of2014 in OA No. 262 of 2011, whereby the learned AFT C
refused to grant leave to appeal.
2. Transferred Case (Criminal) No. 1 of 2017 is filed by the petitionerO
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therein (respondent herein), originally before the High Court of Punjab and
Haryana being Criminal Writ Petition No. 1895 of 2013, challenging the
dismissal of MA No. 1871 of2012 and OA No. 262 of 2011, which was filed
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challenging the order dated 18-2-2011, passed by the General Court Martial d
(hereinafter referred to as " GCM"), vide which the respondent herein was held
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guilty of first, third, fourth, fifth, seventh and ninth charges and was sentenced
as under:
(i) To be cashiered; and
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(ii) Rigorous imprisonment for three years subject to confirmation. e

3. As such, both, the appeal filed by the Union oflndia and others, and the
transferred case, filed by the respondent herein have been heard together. For
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the sake of convenience, the facts are taken from Criminal Appeal No. 2169
of 2014.
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4. The respondent was commissioned in the Indian Army on 16-12-1967 f

and earned promotions and was promoted to the rank of Lieutenant General
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in May 2003. The respondent was thereafter appointed as Director General,

Supplies and Transport (hereinafter referred to as "DGST") with effect from
1-2-2005. He was also awarded the "Ati Vishisht Seva Medal" in January 2005.
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5. An anonymous complaint was received in the Directorate of Supplies

and Transport (hereinafter referred to as "the Directorate") on 4-4-2005. g
2
On 8-4-2005, the complaint was forwarded and a request was made to the
respondent to examine the complaint and forward his comments on the file on
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priority for perusal of the Directorate. It is contended by the respondent that he

replied to the same on 12-9-2005.
h
1 2013 SCC OnLine AFT 467
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 547

6. A court of inquiry was ordered against the respondent under the
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directions of General Officer Commanding-in-Chief, Western Command
a (hereinafter referred to as "GOC-in-C"), to investigate into the following seven
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allegations:
"(i) Procurement of kabuli chana through contract :finalised during
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April 5 by Army Purchase Organisation;
(ii) Tendering and procurement of barley crushed and gram kibbled
during Financial Year 2005-2006 by Army Purchase Organisation;
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(iii) Testing and sampling of items of ration by CFL, Delhi as per laid
down specification and its subsequent purchase/procurement from various
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:firms/dealers as per approved sample and ASC specifications;
(iv) Tendering and procurement of979 metric tonne s ofmasoor whole
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which was supplied by GRAINFED;
C (v) Violation, if any, of the laid down quality norms, ASC specifications
and other desired parameters with regard to moisture content, number
counts per 100 gm weight, system of imposing price reduction of O
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commodities contracted;
(vi) Any undue favour granted to any contractor for procurement of
meat by HQ Central Command during Financial Years 2003-2004 and
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d 2004-2005; and
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(vii) Any irregularity with regard to permitting a civil contractor to

dump excavated soil within the compound of ASC Centre and College of
any undue favour taken from any contractor by and Army personnel at ASC
Centre and College."
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e 7. The court of inquiry only recommended for award of recordable censure

against the respondent while recommending disciplinary action qua other
officials under the Army Act, 1950 (hereinafter referred to as "the Army Act")
and the Army Rules, 1954 (hereinafter referred to as "the Army Rules").
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However, as per the direction of Army Commander, the respondent's name was
included in the list for disciplinary action. The court of inquiry was :finalised on
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f 24-6-2006, and thereafter, the GOC-in-C directed a disciplinary action against

the respondent.
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8. As contended by the respondent, the GOC-in-C, despite

recommendation mentioned in the inquiry report for an administrative action,
directed disciplinary action while admitting that there was no evidence of the
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acts of :financial consideration qua the respondent. The respondent, on attaining

g the compulsory retirement age of 60 years, retired on 30-9-2006.
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9. The respondent filed a writ petition before the High Court of Delhi
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being WP (C) No. 11839 of 2006 seeking for quashing and setting aside
of the proceedings and recommendations of the court of inquiry in terms of
order dated 26-5-2005 and order dated 18-7-2006 directing attachment of the
h respondent. The High Court of Delhi allowed the said writ petition, vide order
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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dated 11-1-2007 2 , in the following terms: (Surendra Kumar Sahni case 2 , SCC
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OnLine Del para 33)
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"33. For the reasons afore-recorded, we are of the considered view
that the respondents have not complied with the provisions of Rule 180
of the Rules, as such, they cannot take any further proceedings against
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the respondents on the basis of the court of inquiry held in furtherance
to the order of the competent authority dated 26-9-2005. However, the
respondents are at liberty to give notice to the respondent and continue
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with the proceedings under Rule 180, and in the alternative, even to take
recourse to the provisions of Rule 22, or exercise any other power available
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to them under the Act, insofar as they do not rely upon the proceedings on
the aforesaid court of inquiry."
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10. The appellants, instead of invoking Rule 180 of the Army Rules,
wherein opportunity was to be provided to the respondent, resorted to C
Rule 22 of the Army Rules and issued a fresh notice and passed an order
dated 31-8-2007 and ordered attachment under Section 123 of the Army Act. O
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11. The respondent challenged the above by filing a writ petition in the High
Court of Delhi being WP (C) No. 6632 of 2007 , which was then transferred to
the learned AFT, Principal Bench at New Delhi. The said learned AFT, vide its
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order dated 3-9-2009 3 , set aside the subsequent act of the Army Authorities and
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held that resorting to Rule 22 of the Army Rules was totally unwarranted and
illegal. The appellants were however directed to resort to court of inquiry after
giving an opportunity to the respondent and to comply with the requirement
under Rule 180 of the Army Rules.
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12. The GOC-in-C, vide its order dated 22-9-2009, directed reconvening/ e
reassembling of the court of inquiry on the basis of the liberty granted by the
learned AFT, New Delhi vide its order dated 3-9-2009 3 . The GOC-in-C vide its
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order dated 12-4-2010, on the basis of the court of inquiry, directed disciplinary
action against the respondent.
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13. On 30-7-2010, a convening order, directing assembly of the GCM f

under the Army Act, was issued. The GCM consisted of 7 Members, out of
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which, 6 Members were holding ranks of Major General which was lower
than the respondent's rank. The Presiding Officer, however, was of the rank of
Lieutenant General, but was allegedly junior to the respondent. Even the Judge-
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Advocate General (hereinafter referred to as "JAG") was allegedly junior to

the responde nt and was only holding the rank of Colonel. On the same day g
2
i.e. 30-7-2010, a charge-sheet comprising of nine charges was served upon the
respondent.
20
h
2 Surendra Kumar Sahni v. Chief ofAnny Staff, 2007 SCC OnLine Del 1928
3 Surendra Kumar Sahni v. Union of India, 2009 SCC OnLine AFT 9
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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14. The GCM, vide order dated 18-2-2011, found the respondent not guilty
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of Charges 2, 6 and 8 whereas found the respondent guilty of Charges 1, 3, 4 ,
a 5, 7 and 9 and was sentenced as under:
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(i) To be cashiered; and
(ii) Rigorous imprisonment for three years subject to confirmation.
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The findings and sentence of the GCM were confirmed by the Chief of Army
Staffvide its order dated 13-1-2012.
b 15. The respondent filed an appeal before the learned AFT against the
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order of the GCM dated 18-2-2011, which was further confirmed by the order
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dated 13-1-2012 passed by the Chief of Army Staff. The learned AFT, vide the
impugned order dated 10-10-2013 1, partly allowed the petition. The learned
AFT held that the :findings of the GCM as against the respondent were liable
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to be affirmed. However, the learned AFT held that the sentence of cashiering
C and substantive imprisonment of 3 years' rigorous imprisonment was harsh and
thus, modified the sentence to dismissal from service.
16. The respondent filed a writ petition being Criminal Writ Petition O
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No. 1895 of2013 before the High Court of Punjab and Haryana at Chandigarh,
challenging the aforesaid impugned order dated 10-10-2013 1 passed by the
learned AFT. The High Court issued notice vide order dated 28-10-2013 4 . In the
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d meanwhile, the appellants also filed an appeal being Criminal Appeal No. 2169
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of 2014 before this Court, challenging the order passed by the learned AFT
dated 10-10-2013 1 . Thereafter, the respondent filed an application being Crl.
MP No. 24464 of 2014 in Criminal Appeal No. 2169 of 2014 seeking transfer
of Criminal Writ Petition No. 1895 of 2013, pending before the High Court of
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Punjab and Haryana at Chandigarh to this Court.

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17. This Court, vide its order dated 22-8-2016 5 , allowed the said application
and directed transfer of the said petition to this Court, to be listed along with
Criminal Appeal No. 2169 of 2014.
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18. We have heard Shri R. Balasubramanian, learned Senior Counsel

appearing on behalf of the Union of India and Shri K.K. Tyagi, learned counsel
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f appearing on behalf of the respondent.

19. Shri Tyagi, learned counsel appearing on behalf of the respondent,
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raised a preliminary point that since the Members of the GCM were below the
rank of the respondent, the GCM was not properly constituted, and as such,
violative of sub-rule (2) of Rule 40 of the Army Rules. He relies on the order
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of this Court in Avadhesh Prakash v. Union of India 6 . He submitted that from

g perusal of the said order, it will be clear that about 80 Lieutenant Generals were
2
available in the Indian Army at the relevant time, and as such, the Court-Martial
which had Members below the rank of Lieutenant General, could not have tried
20
the respondent. He therefore submitted that the GCM, which is constituted in
1 S. K. Sahni v. Union of India, 2013 SCC OnLine AFT 467

h 4 S.K. S ahni v. Union of India , 2013 SCC OnLine P&H 26964
5 Union of India v. S.K. Sahni , 2016 SCC OnLine SC 1952
6 (2022) 6 sec 559
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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contravention of sub-rule (2) of Rule 40 of the Army Rules, could not have
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tried the respondent. He further submitted that on the same ground, in view of
Rule 102 of the Army Rules, since the JAG, who was of the rank of Colonel, a
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which is below the rank of Lieutenant General, stood disqualified while acting
as a JAG. He relies on the judgment of this Court in Union of India v. Charanjit
S. Gill7 in this regard.
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20. Shri Balasubramanian, learned Senior Counsel appearing on behalf of
the appellants, on the contrary, submitted that though sub-rule (2) of Rule 40
of the Army Rules requires that the Members of a Court-Martial for the trial of b
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an officer shall not be of a rank below than that of the officer, it also provides
that a departure from the said rule is permissible, when in the opinion of
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the convening officer, having regard to the exigencies of the public service,
the officers of such rank are not available. He therefore submits that merely
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because the GCM consisted of the officers below the rank of Lieutenant General
itself, would not ipso facto vitiate the proceedings. He submitted that the only
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requirement is that such an opinion is required to be recorded in the convening
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order. He submitted that insofar as the order of this Court inAvadhesh Prakash 6
is concerned, in the said case, the order was passed by this Court on the
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concession that such officers were available. He further submitted that in the
said case, no such opinion as required under sub-rule (2) of Rule 40 of the Army
Rules was recorded.
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21. For appreciating the rival submissions with regard to the preliminary
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objections, it will be relevant to refer to sub-rule (2) of Rule 40 of the Army

Rules:
"40. Composition of General Court-martial.-(!) * * *
(2) The members of a court-martial for the trial of an officer shall be of a
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rank not lower than that of the officer unless, in the opinion of the convening e
officer, officers of such rank are not (having due regard to the exigencies of
the public service) available. Such opinion shall be recorded in the convening
order."
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22. In view of the specific contention with regard to the violation of sub-
rule (2) of Rule 40 read with Rule 102 of the Army Rules , we have summoned
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the original file. On perusal of the original file, we find that the convening f
officer has recorded reasons as to why the officers of the rank of respondent
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were not available. We find that the reasons given, for doing the same, would
fall within the exigencies of the public service. The scope of judicial review of
such a decision is very limited. Unless it is found that the d ecision take n by the
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authority suffers from arbitrariness, irrationality or unreasonableness, it would

not be permissible for us to sit in an appeal over the decision of the convening
officer. The limited inquiry that would be permissible is, as to whether the g
2
reasons recorded are having regard to the exigencies of the public service or
not. On perusal of the original file, we find that the reasons given are directly
20
concerned with the exigencies of the public service. We therefore do not find
any merit in the said submission.
h
1 (2000) 5 sec 742
6 Avadhesh Prakash v. Union of India, (2022) 6 SCC 559
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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23. Insofar as the order of this Court inAvadhesh Prakash 6 is concerned, in
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the said case, the contention made on behalf of the petitioner therein was that
a the respondents therein could have tried to make Lieutenant General available.
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In any case, from the said order, it is not clear as to whether the subjective
satisfaction as required under sub-rule (2) of Rule 40 of the Army Rules
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was, in fact, recorded or not. Another reason that weighed with this Court for
interfering with the order of the learned AFT was that the learned AFT had
recorded that since the appellant therein had already retired from the service,
b there was no illegality in constitution of GCM. This Court found that such a
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finding was not permissible on the bare reading of Rule 40 of the Army Rules.
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24. Insofar as the merits of the present matter are concerned, Shri
Balasubramanian submits that after the learned AFT had concurred with the
findings of the GCM that the charges against the respondent stood proved,
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there was no occasion for the learned AFT to have interfered with the penalty
C imposed on the respondent. Insofar as the appeal of the appellants herein
is concerned, the learned Senior Counsel for the appellants submitted that
since there are concurrent findings of fact with regard to the charges being O
C
proved, no interference would be warranted in the appeal of the appellants. He
therefore submitted that the appeal of the appellants deserves to be allowed and
Transferred Case (Criminal) No. 1 of 2017 filed by the petitioner (respondent
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d in Criminal Appeal No. 2169 of 2014) be dismissed.

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25. Shri Tyagi, learned counsel appearing for the respondent, on the
contrary, would submit that the findings as recorded by the GCM as well as
the learned AFT are recorded on the basis of conjectures and surmises. He
submitted that in the GCM, the standard that is required to be followed is of a
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criminal trial. It is therefore submitted that unless the charges against an officer
e are proved beyond reasonable doubt, he cannot be held guilty in GCM. It is
submitted that like a criminal trial, the benefit of doubt must go to the officer
and not to the prosecution. He, however, submitted that in the present case,
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the GCM as well as the learned AFT have given the benefit of doubt to the
prosecution.
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26. He submits that as a matter of fact, not a single charge stands proved
f beyond reasonable doubt against the respondent. However, the respondent has
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been convicted by the GCM without any evidence. He therefore submitted that
Transferred Case (Criminal) No. 1 of 2017 filed by the petitioner (respondent
in Criminal Appeal No. 2169 of 2014) deserves to be allowed and the appeal
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filed by the appellants be dismissed.

27. With the assistance of the learned counsel for the appellants and the
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respondent, we have perused the order passed by the GCM as well as the learned
2
AFT and the materials placed on record.

20
28. At the outset, we may state that there are inherent limitations on the
jurisdiction of this Court and it will not be permissible to reappreciate the
evidence as recorded by the GCM unless this Court finds that the material
h factors have been either ignored or the evidence that has come on record, has
6 Avadhesh Prakash v. Union of India, (2022) 6 SCC 559
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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been appreciated in a totally erroneous manner. With these limitations in mind,
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we will consider the materials placed on record.
29. Though nine charges have been framed against the respondent, he has a
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been found guilty insofar as Charges 1, 3, 4, 5, 7 and 9 are concerned. He has
been found not guilty insofar as Charges 2, 6 and 8 are concerned. The learned
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AFT has also concurred with the finding of fact holding the respondent guilty
of the aforesaid charges. The learned AFT has observed that the evidence led
with regard to all these charges is mostly common and as such, has decided all
the said points together. b
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30. The learned AFT has come to a finding of fact that though the contracts
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were finalised by the Army Purchase Organisation (hereinafter referred to
as "the APO"), insofar as the provisioning of dry supplies for the troops
is concerned, it found that both the APO as well as the Directorate, are
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concurrently and co-jointly responsible for the monitoring, examination and
the progress of the contracts. C
31. The respondent, at the relevant time, was holding the post of DGST.
Though nine charges have been framed against the respondent, they are O
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interconnected and are related to three transactions as under:
31.1. That the respondent had agreed to the proposal of M/s Gujarat
Cooperative Grain Growers Federation Ltd. (hereinafter referred to as " M/s
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GRAINFED") for addition of two more tendering stations at Gadarwara, District
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Narsingpur, Madhya Pradesh and Narsingpur in Madhya Pradesh in addition

to 14 tendering stations already mentioned in the contract. The charge was that
this was done with an intent to defraud the State.
31.2. That though the respondent had enquired in the complaint
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dated 4-4-2005 alleging fake tendering and presence of kesari peas and e
akra, which were unfit for human consumption, he had omitted to ensure
investigation of the alleged presence ofkesari peas and akra in dal masur whole.
Therefore, the respondent was instrumental in feeding the food to the Army
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Personnel, which was not as per the standards. As a continuation of the same
transaction, with an intent to defraud, he had agreed to the proposal of M/s
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GRAINFED for upgradation of dal masur whole supplied by the firm knowing f
that the said item had been found and declared unfit for human consumption.
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31.3. That the respondent had approved deviation with relaxation to M/s
PUNSUP Ltd. and M/s MMTC Ltd. of permitting 350-400 grains per 100 grams
of kabli chana as against 300-350 grains per 100 grams, and that this was done
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with an intent to defraud.

32. Insofar as the first charge is concerned, the findings of the learned g
2
AFT would reveal that the request of M/s GRAINFED for two additional
tendering stations at Gadarwara and Narsingpur was made on 3-3-2005 to
20
the Chief Director of Purchase (hereinafter referred to as "CDP"), APO. The

APO forwarded the said request for comments/views of the Directorate vide
communication dated 9-3-2005. The perusal of the orders of the learned AFT
as well as the GCM would reveal that, after accepting the recommendation h
of PW 6, Major General (Retd.) S.C. Mohan, the respondent did not agree
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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to the r equest of M/s GRAINFED. However, the proposal was put up before
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him for reconsideration pursuant to the note prepared by PW 13, Col. (Retd.)
a N .K. Yadav, Director Provisioning, stating that the entire quantity against
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the acceptance of tender has already been tendered at Gadarwara within
the delivery period. The respondent therefore agreed to the request of M/s
GRAINFED for two additional tendering stations and the decision of the
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respondent was intimated to the APO.
33. With regard to the aforesaid charge, it will also be relevant to refer to
b the order passed by the learned AFT, in P.S. Gill v. Union of lndia 8 . In the said
L
case, the petitioner therein (Brig. P.S. Gill), at the relevant time, was working as
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CDP, APO. The relevant portion of the said findings is as under: (SCC OnLine
AFT paras 3-4)
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"3 . From a bare reading of the aforesaid charges it appears that
the petitioner in the capacity of his being Chief Director of Purchase,
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Army Purchase Organisation, Ministry of Defence contrary to APO/MOD
Consolidated Order No. 3 of 1987, with intent to defraud/improperly
approved addition of two more tendering stations, namely, Gadarwara and O
C
Narsingpur in Madhya Pradesh. For the purpose of drawing the charges ,
reliance appears to have been placed by the respondents on the exhibits,
the details of which may be charted out as under:
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d
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Exhibit Page Para

:L
,....................................................................... ,:...............................239 . ...................................:,.........................:•
,............................................................................. , ...................................................................:,.........................:•
:LXIX : 294
:XXVII 193
,.............................................................................,:................................................................... :,.........................
2 :•
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:VI :
,............................................................................. , ...................................................................,.........................:•
141-143 : 1 and 2
e :II : 83-85 : :!
$ ••••••••••••••••••••••••••••••••••••••• , •••••••••••••••••••••••••••••••••• $ •••••••••••••••••••••••••
:V : 139-140 : :
(LXXV ! 303-305 ; :
!XXVIII to ·xxxm/I ····r····· 194_204/80·······-r························1
G
..........................................,..................................,........................ .
4. From the perusal of the exhibits noted above, there is nothing to
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f show that the addition of two tendering stations was not within the powers
of the petitioner. Nothing could be pointed out to show the relevancy of
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these documents for making out prima facie case against the petitioner.
Further the statement of the witness, namely, PW 1 Brig P.P.S. Bal of
CDP Army Purchase Organisation, AHQ New Delhi was scrutinised. He
2-
was categorical in his statement that he was aware of the Consolidated

g Order No. 3 of 1987 (Ext. 2) permits the inclusion of additional tendering
station. Ext. 1 is related to the letter dated 6-10-2008 written to M/s M.P.
2
Trade & Investment Facilitation Corporation Ltd. for "procurement of 1000

20
MT Gram Crushed (Kibbled) against A/T even no dated 5-12-2007 from

MPTRIFAC-Addition of Tendering Station-Delhi. This one example was
quoted by the witness. This itself indicates that the addition of tendering
h stations is within the discretion of the competent authority to the effect that
8 2011 SCC OnLine AFf 79
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

"stores can be tendered at D e lhi as a special case in the subject A/T, subject
N
to the condition that any additional expenditure incurred by the purchaser/
savings accruing to the supplier, on account of this addition of tendering a
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station, shall be reimbursed by the Supplier to the Government" which
is also exactly the requirement mandated in defence Consolidated Order
No. 3 of1987. Further with regard to the making of the additional tendering
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stations by the accused-petitioner as per the reply of PW 1, the contract
was amended as required by Government of India orders and the amended
contract was also communicated by Ext. VI. There was no objection to b
L
such acceptance of tendering stations from Audit authorities or by PCDA.
Apart from it, witness also makes it clear in his answer to Question 4
PI
that the tenderer has option to select stations where h e can te nder stores
as per the contract. The APO does not dictate the tendering stations.
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However, they must lend themselves to ease of inspection and movement
of stores to consignee depots. Lastly this witness also clarified that by C
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making the addition of two tendering stations no monetary benefits could
be acquired by petitioner nor there was any extra expenditure borne out by
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the respondents owning to acceptance of two new stations by the accused-
petitioner. Further by adding these two new stations, no violation of any
rule or order was made by the accused petitioner." (emphasis in original)
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34. It could thus be seen that the very same AFT has come to a finding that d
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the CDP, APO was within the powers to include additional tendering stations.
It has further been found that there was no objection to acceptance of such
tendering stations from Audit Authorities or by CDP, APO. It is further to
be observed that the learned AFT has clearly noted that Consolidated Order
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No. 3 of 1987 permitted inclusion of additional tendering station subject to

the condition that the additional expenditure incurred by the purchaser/savings e
accrued to the supplier, on account of this addition of tendering station, shall
be reimbursed by the Supplier to the Government. There was a specific finding
G
that on account of addition of two tendering stations, neither any monetary

benefits could be accrued to the petitioner therein (Brig P.S. Gill), nor there
D
was any extra expenditure borne out by the Army owing to acceptance of
two new stations by the petitioner therein (Brig P.S. Gill). In any case, it is f
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clear from the said order that the authority to accept such additional tendering
stations was with the CDP, APO. In view of this specific finding of the learned
AFT recorded in the order dated 24-5-2011 8 , we find that the finding, to the
contrary, recorded by another Bench of the learned AFT vide the impugned
2-
order dated 10-10-2013 1 in the case of the present respondent, would not be
sustainable. g
2
35. In any case, it is not even the case of the appellants herein that any loss
20
was caused to the Army on account of such decision or any additional benefit
was accrued to M/s GRAINFED by such deviation. This is apart from the fact that
Consolidated Order No. 3 of 1987 itself required any additional expenditure
h
8 P.S. Gill v. Union of India, 2011 SCC 0nLine AFf 79
l S.K. Sahni v. Union of India, 2013 SCC 0nLine AFT 467
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

incurred by the purchaser/savings made by the supplier to be reimbursed by
N
the Supplier to the Government. As such, the findings of the learned AFT that
a there was an intention on the part of the respondent to defraud, in our view,
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would not be sustainable.
36. Insofar as the second charge is concerned, it is with regard to
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the respondent not taking action on the basis of the anonymous complaint
dated 4-4-2005. The related charge is that though the dal masur whole was
found to also contain kesari peas and akra, the respondent cleared the samples
b and the supply of said dal masur whole was cleared. It is the case of the
L
appellants that on account of this, the dal masur whole, which was not as per
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the standards, was fed to the Army Personnel. It is their further case that the
respondent also did not take immediate steps for preventing the consumption of
the same. It is to be noted that after the receipt of the said anonymous complaint,
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the samples were sent for analysis and the presence of traces of kesari peas was
C revealed during analysis of samples on 13-5-2005. The respondent thereafter
issued instructions to freeze the stocks. It is further to be noted that the DGST,
vide order dated 12-4-2005, had directed a departmental court of inquiry O
C
to inquire into whether there were any irregularities in tendering/inspection
procedure of dal masur whole offered by Mis GAINFED.
37. It will be apposite to refer to the said order dated 12-4-2005:
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"l. A departmental court of inquiry composed as under will assemble
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at the place, date and time to be fixed by the Presiding Officer to

investigate whether there were any irregularities in tendering/inspection
procedure of masur whole offered by M/s Gujarat Coop Grain Growers'
Federation Ltd. for inspection by CFL, ASC, Delhi against AT No.
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J-13028/1/4-03/45-RP/2005-PUR III dated 28-2-2005:

e
Presiding Officer Brig V. Marwaha
DOST, HQ Delhi Area
G
Technical Members Col. S.C. Chakravarty

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Dir ST (FI)
f
2. The court will specifically examine the following issues:
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(a) Whether the complete qty of 979.600 MT was tendered by

15-3-2005. If so why was the BIO instructed to inspect only 440.800
2-
MT.
g (b) Was it ascertained by the BIO that the complete qty i.e. 979.600
MT has been tendered and a report made to that effect.
2
(c) Why did the BIO not carry out sampling of the consignment,
20
and why were the samples of bags rejected, not brought for the perusal
of CO/Lab analysis.
(d) The decision of CO, CFL, ASC, Delhi to repack and retender
h the stocks as and when ready when the AT Note is against risk
purchase; resulting in automatic extn of DP.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

(e) The acceptance of a certificate from the contractor that the
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balance of the consignment i.e. 538.400 MT is packed in the same
quality bags as the 440.800 MT; and thereby ordering its rebagging. a
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CONFIDENTIAL
3. The Court will examine all associated issues, and pinpoint
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responsibility for lapses if any.
4. The proceedings duly completed will be submitted personally to
ADGST (SM) by 19-4-2005."
b
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38. It could thus be seen that the court of inquiry was directed to examine
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all associated issues and pinpoint responsibility for lapses, if any. It is thus
clear that the finding that the respondent had failed to take cogniz ance of the
complaint and direct an inquiry with that regard, is contrary to the material
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placed on record.
39. It is further to be noted that the GCM has itself, in its order C
dated 18-2-2011, come to a conclusion that 560.727.380 metric tonnes of
dal masur whole was declared gone bad within warranty period for which
recoveries were made from Mis GRAINFED.
O
C
40. That leaves us with the third charge with regard to the relaxation being
granted to Mis PUNSUP Ltd. and Mis MMTC Ltd. in acceptance o f tender
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dated 26-6-2005, vide which 350-400 grains per 100 grams of kabli chana was d
permitted on price reduction of 0.5% instead of 300-350 grains per 100 grams.
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It is to be noted that, leave apart the respondent or anyone else gaining from
the said relaxation, there is a specific finding that on account of the decision of
reducing 0.5 % contract amount for such a relaxation, there has been a benefit
to the public exchequer. It will be relevant to refer to the finding of the learned
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AFT in .P.S. Gill 8 : (SCC OnLine AFT para 12) e

"12 . ... There i s no dispute on the point that DGST was the competent
authority for making relaxation in the specification. There is also ample
G
evidence that the DGST being competent authority permitted to despatch

400 grains per 100 gm in the place of 300-350 grains per 100 gm. DGST
also appears to have made reduction of 0.5% from the contract amount,
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in that the government money to the tune of Rs 7 ,57,480.16 was saved in f

the matter of supplier Mis Punjab State Civil Supplies Corporation Ltd.
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pertaining to Charges 3 and 4. Similarly, within his powers, he granted

relaxation to Mis MMTC to the tune of Rs 4,48,050.00."
41. It could thus be seen that the learned AFT has specifically come
2-
to a finding that on account of such decision, public money to the tune of

Rs 7,57,480.16 was saved in the case of supplier Mis Punjab State Civil g
2
Supplies Corporation Ltd. Similarly, an amount of Rs 4,48,050 was saved in

the case of relaxation granted to Mis MMTC Ltd.
20
42. It is not the case of the appellants that the kabli chana so supplied was
of inferior quality or not as per the standards. The only allegation is that the
relaxation which was granted was with regard to number of grains that every
h
8 P.S. Gill v. Union of India, 2011 SCC OnLine AFT 79
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

100 grams should contain. On the contrary, on account of reduction in price,
N
there has been a substantial saving to the public exchequer, leave aside any
a pecuniary gain to the supplier. As a matter of fact, even the GCM in para (26)
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held that the respondent was entitled to benefit of doubt with regard to his
intent but has found that the said act was prejudicial to good order and military
discipline.
AT
43. In any case, it is to be noted that clause 6(a)(iv) in the tender inquiry of
the APO, which has been in vogue for decades, permitted the same to be done.
b It will be relevant to refer the same, which reads thus:
L
"6(a)(iv). When an appeal is preferred by the supplier against the
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decision of the inspecting officer the final finding of the appellate authority
viz. QMG's Branch, ST-7/8 will automatically supersede the original
report of the Inspecting Officer irrespective of the fact whether the said
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inspecting officer recommended the consignment to be accepted subject to
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quality allowance price reduction, etc. In the event of any supplies being
found not conforming to the prescribed specification but being considered
of acceptable quality the Chief Director of Purchase may, at his sole O
C
discretion, accept the supplies subject to such reduction in price as he
considers reasonable, in the light of the defects found in the supplies or
the quality of the supplies accepted. In case, the reduction in price is up
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d to 5%, the consignment will be accepted without any reference to the

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contractor for acceptance of the price reduction and the contractor will
not raise any objection thereto. However, if any consignment is acceptable
on price reduction over 5% the consent of the contractor will be obtained
before acceptance of supplies."
EM
e 44. It could thus be seen that the finding in that regard, in our view, is also
not sustainable. It will also be apposite to refer to the following observations
of the learned AFT in the impugned order 1 : (S.K. Sahni case 1 , SCC OnLine
AFT para 38)
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"38. However, we are of the opinion that though these charges stand
D
proved which show that he had failed to perform the duties of the post of
f which he was assigned the duties and had done such acts prejudicial to
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good order and military discipline and he cannot escape the responsibilities
in this regard. It is true that his acts were prejudicial to army discipline and
he had committed such acts with intent to defraud but it cannot be said that
he actually committed fraud or did any such act which resulted in actual
2-
loss or wrongful gain to any person though his acts lead to an inference
g that attempts were made to cause a wrongful gain and, therefore, he cannot
2
escape his liabilities."

20
45. It could thus clearly be seen that the learned AFT has come to a
conclusion that it cannot be said that the respondent has actually committed
fraud or did any such act, which resulted in actual loss or wrongful gain to
h any person. However, in the same breath, the learned AFT observes that the
1 S.K. Sahni v. Union of India, 2013 SCC OnLine AFT 467
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

acts lead to an inference that attempts were made to cause a wrongful gain,
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and therefore, the respondent cannot escape his liabilities. Observing this, the
learned AFT comes to a finding that the offence under Section 52(.f) of the a
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Army Act, 1950, which reads thus, was made out against the respondent:
"52. Offences in respect of property.- * * *
AT
(j) does any other thing with intent to defraud, or to cause wrongful
gain to one person or wrongful loss to another person."
46. We are afraid as to whether such a finding would be sustainable in law. b
L
The learned AFT has specifically come to a finding that the respondent has not
PI
committed any fraud or did not commit any act which resulted in actual loss or
wrongful gain to any person. We are unable to appreciate as to on what basis
the learned AFT comes to a conclusion that the acts lead to an inference that
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the attempts were made to cause a wrongful gain. The finding as recorded by
the learned AFT is totally contrary to the material placed on record. C
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47. We, therefore, find that the orders passed by the learned AFT as well as
the GCM are not sustainable in law. The appeal of the appellants deserves to be
C
dismissed and Transferred Case (Criminal) No. 1 of2017 filed by the petitioner
(respondent in Criminal Appeal No. 2169 of 2014) be allowed.
48. In the result, we pass the following order:
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d
A. Criminal Appeal No. 2169 of 2014
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48.1. Criminal Appeal No. 2169 of 2014 filed by the appellants is

dismissed.
B. Transferred Case (Criminal) No. 1 of 2017
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48.2. Transferred Case (Criminal) No. 1 of 2017 filed by the petitioner e

(respondent in Criminal Appeal No. 2169 of 2014) is allowed.
48.3. The order dated 18-2-2011 passed by the GCM holding the petitioner
guilty and imposing penalty on him and the impugned order dated 10-10-2013 1 ,
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passed by the learned AFT are quashed and set aside.

48.4. The petitioner is acquitted of all the charges levelled against him.
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48.5. The petitioner would be entitled to all pensionary and consequential f

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benefits in accordance with law. The arrears of such benefits shall be computed
and paid to the petitioner within a period of three months from the date of this
judgment.
2-
g
2
20
h
l S.K. Sahni v. Union of India, 2013 SCC OnLine AFT 467
© 2022 EBC Publishing Pvt. Ltd., Lucknow.
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2022 SCC OnLine SC 1534
In the Supreme Court of India

(BEFORE UDAY U. LALIT, C.J. AND BELA M. TRIVEDI, J.)
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IC-56663X Col. Anil Kumar Gupta … Appellant;
Versus
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Union of India and Others … Respondents.
Civil Appeal No. 8968 of 2019
Decided on November 7, 2022
AT
BELA M. TRIVEDI, J.:— The present appeal filed by the appellant under Section 30
(1) of the Armed Forces Tribunal Act, 2007 is directed against the impugned judgment
and order dated 30.09.2019 passed by the Court No. 2 Armed Forces Tribunal,
L
Principal Bench, New Delhi (hereinafter referred to as “the Tribunal”) in O.A. No. 32 of
2019 with M.A. No. 645 of 2019, whereby the Tribunal has dismissed the said O.A.
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filed by the appellant. The O.A. No. 32 of 2019 was preferred by the appellant before
the Tribunal challenging the charge-sheet dated 19.11.2018 containing three charges
pertaining to the appellant having behaved in a manner unbecoming his position and
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the character expected of him, under Section 45 of the Army Act, 1950, and
challenging the order dated 22.11.2018 passed by Convening Authority directing the
trial of the appellant by way of General Court Martial (GCM).
2. The short facts leading to the present appeal are that the appellant was
commissioned as an officer in the Indian Army in 14 battalion of the Rajputana Rifles
O
C
(Infantry) on 07.12.1996. On 13.08.2015, Col. Ramneesh Pal Singh, a close friend and
colleague of the appellant wrote a letter to Brig. Ajav Vig which is reproduced
hereunder:
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“CONFIDENTIAL
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Colonel Ramneesh Pal Singh 14th Battalion The Rajputana

Rifles PIN-912014
Commanding Officer C/o 56 APO
RPS156206/Pers 13, Aug 15
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Brig Ajav Vig

Cdr
79Mtn Bde
Pin-908079
G
C/o 56 APO
COMPLAINT IN R/O IC 56663 COL ANIL K GUPTA
1. I am writing, this letter to bring to your notice an act of stealing
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brother officer's affection by LC 56663, Col Anil K Gupta. The officer is

presently posted at HQ DG NCC in New Delhi, tenanting the appt of Dir
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NCC (PLU) COORD.

2. The offr has been sending indecent msgs to my wife, which sexually
explicit in nature and there is reasonable cause to believe it they have
indulged in illegitimate physical relationship My wife, Mrs. Sugandhi
2-
Aggarwal has been equally involved and has reciprocated positively to

these msgs. The offr vis my house in Delhi on 13th Jul 2015, after lying
2
to his wife about some official social engagement and was present
there from 2030H, for approx. two hours.
20
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3. With regard to my marriage, I intend initiating divorce proceedings in

the civ court, based on charges of infidelity. However, I would request
you to initiate suitable inquiry into the incident and take up case for
disep action against the offr, as deemed fit. May I also request you to
initiate the process for forthwith posting out of Col AK Gupta from
Delhi.
With warm regards
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Sd/-
CONFIDENTIAL
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Sd/- 31.10.15 Sd/- 31/10 XV”Sd/- 31.10.15
3. Consequent to the said letter, a Court of Inquiry was conducted by the HQ Delhi
Area to investigate into the complaint made by Col. Ramneesh Pal Singh. The said
AT
Court of Inquiry was finalized on 11.11.2016 with the directions of GOC Delhi Area to
initiate disciplinary proceedings against the appellant. After the hearing of the Charge
in terms of Army Rule 22, on 24.07.2017 directions were given for recording the
Summary of Evidence. On the completion of Summary of Evidence, a prima facie case
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was made out against the Appellant and accordingly, three charges were framed
against the appellant with regard to he having behaved in the manner unbecoming his
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position and character expected of him, under Section 45 of the Army Act vide the
charge-sheet dated 19.11.2018. Consequent thereto, on 22.11.2018 the Convening
Authority directed the trial by General Court Martial.
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4. The appellant vide his letter dated 04.01.2019 addressed to the Convening
Authority, raised an issue pertaining to the period of limitation in terms of Section 122
of the Army Act, however, since the directions for trial were given, he was advised to
raise the issue before the General Court Martial. The appellant, thereafter on
07.01.2019, filed an Original Application being no. 32/2019 before the Tribunal under
O
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Section 14 of the Armed Forces Tribunal Act, 2007, challenging the charge-sheet
dated 19.11.2018 as well as the order dated 22.11.2018 passed by the Convening
Authority directing trial of the appellant by General Court Martial. The said OA having
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been dismissed by the Tribunal vide the impugned judgment and order, the present
appeal is filed. This Court vide the order dated 02.12.2019, while issuing a notice to
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the respondents, had stayed the disciplinary proceedings as well as the General Court
Martial proceedings.
5. The learned counsel appearing for the appellant relying upon Section 122 of the
Army Act submitted that the trial by Court Martial was vitiated being barred by the
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period of limitation prescribed under the said provision. According to him the
aggrieved person i.e. Col. Ramneesh Singh knew about the commission of the alleged
offence when he wrote the letter on 13.08.2015 and the Convening Authority had
passed the order directing the trial by the General Court Martial on 22.11.2018 i.e.
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three years after the letter written by Col. Ramneesh Singh. Hence the period of three
years having already expired as contemplated in Section 122 of the Army Act, the
Tribunal had committed an error in not quashing the order dated 22.11.2018 passed
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by the Convening Authority and consequently the trial proceedings. He also submitted
that the charge-sheet dated 19.11.2018 framing three charges against the appellant
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under Section 45 of the Army Act, based on the said allegations was also required to
be quashed and set aside.
6. Per contra, the learned senior advocate Mr. R. Balasubramanian appearing for the
respondents vehemently submitted that from the letter dated 13.08.2015 written by
2-
the aggrieved person Col. Ramneesh Singh it could not be construed that he had the
knowledge about the commission of the alleged offence by the appellant. According to
him, after the completion of Summary of Evidence, a prima facie case was made out
2
against the appellant and hence the charge-sheet was issued on 19.11.2018 and
20
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consequently the Convening Authority had directed the trial by the General Court
Martial vide order dated 22.11.2018. He also drew the attention of the Court to the
letter dated 03.11.2000 written by the Lt. General, Adjutant General's Branch, Army
Headquarters DHQ PO, New Delhi containing the policy dealing with disciplinary aspect
of matrimonial affairs of officers, which mentioned as to what constituted the alleged
misbehavior amounting to adultery, to submit that it was only after conducting a court
inquiry, it could be concluded that an alleged offence of stealing the affection of the
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officer's wife has been committed by the officer or not, and in the instant case, the
said offence was prima facie made out only after the completion of Summary of
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Evidence. He further submitted that since the department has initiated the
departmental proceedings against the appellant for the charges which are of serious
nature, the Tribunal had rightly not interfered with the said proceedings.
AT
7. In order to appreciate the rival contentions raised by the learned counsel for the
parties, it would be apposite to reproduce the relevant provision contained in Section
122 of the Army Act, which reads as under:
“122. Period of Limitation for trial - (1) Except as provided by sub-
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section (2), no trial by court-martial of any person subject to this Act for
any offence shall be commenced after the expiration of a period of three
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years and such period shall commence-
(a) on the date of the offence or,
(b) where the commission of the offence was not known to the person
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aggrieved by the offence or to the authority competent to initiate
action, the first day on which such offence comes to the knowledge of
such person or authority, whichever is earlier or
(c) where it is not known by whom the offence was committed, the first
day on which the identity of the offender is known to the person
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aggrieved by the offence or to the authority competent to initiate
action, whichever is earlier…”
8. From the bare reading of the said provision, it clearly transpires that no trial by
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Court Martial of any person subject to the Army Act, for any offence could be
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commenced after the expiration of a period of three years, and such period would
commence on the date of offence or where the commission of the offence was not
known to the person aggrieved by the offence or to the authority competent to initiate
action, the first day on which such offence comes to the knowledge of such person or
authority, whichever is earlier. Hence for the purpose of Section 122, the two dates
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will be relevant i.e., the date when the alleged offence comes to the knowledge of the
person aggrieved and the date on which the authority competent to initiate action
comes to know about the alleged offence. As per Section 3(xvii) “offence” means any
act or omission punishable under the said Act and includes a civil offence as defined in
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Section 3(ii) which means an offence triable by a criminal court. Chapter-VI of the
Army Act deals with the offences. Section 45 which falls under the said Chapter states
that Army officer, junior commissioner officer or warrant officer who behaves in a
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manner unbecoming his position and the character expected of him shall be liable to
suffer punishment as prescribed therein.
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9. In the instant case, having regard to the contents of the letter dated 13.08.2015
written by the aggrieved person i.e., Col. Ramneesh Singh to the concerned authority,
it clearly transpires that he was aware of the alleged act of the appellant having stolen
the affection of his wife on the date of the said letter. He had specifically mentioned in
2-
the said letter that it was for bringing to the notice of the concerned authority about
the appellant's act of stealing affection of his wife. He had further alleged therein that
the appellant was sending indecent messages to his wife which were sexually explicit
2
in nature and that he had reasonable cause to believe that the appellant and his wife
20
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had indulged in illegitimate physical relationship with each other. Therefore, the date
13.08.2015 would be the crucial date on which the aggrieved person had the
knowledge about the commission of the alleged offence. Therefore the time had
started running from the said date for the purpose of Section 122 of the said Act. In
that view of the matter, the submission of the learned senior advocate appearing for
the respondents that date of aggrieved person's knowledge about the commission of
the alleged offence by the appellant, should be construed as the date when the
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respondents prima facie concluded after the Court of Inquiry that the appellant had
committed the offence, cannot be accepted. The date 13.08.2015 therefore would be
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the date on which the aggrieved persons i.e., Col. Ramneesh Pal Singh had the
knowledge about the commission of the alleged offence by the appellant. The
Convening Authority having directed the trial by General Court Martial vide order dated
22.11.2018, the same was clearly beyond three years and therefore barred under
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Section 122 of the Act.
10. We are therefore of the opinion that the trial by the General Court Martial
directed vide the order dated 22.11.2018 was clearly barred under Section 122 of the
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Army Act. The said proceedings deserve to be quashed and set aside and are
accordingly set aside.
PI
11. However, we hasten to add that as per the well settled legal position1 , the
power of judicial review in the matter of disciplinary proceedings is extremely limited.
It is circumscribed by the limits of correcting errors of law or procedural errors leading
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to manifest injustice or violation of principles of natural justice. The power of judicial
review is an evaluation of the decision-making process and not of the merits of the
decision itself. It is therefore clarified that the disciplinary proceedings initiated
against the appellant pursuant to the chargesheet issued on 19.11.2018 shall continue
in accordance with law.
O
C
12. The appeal stands partly allowed accordingly.
———
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1 Regional Manager, UCO Bank v. Krishna Kumar Bhardwaj, (2022) 5 SCC 695
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
EN
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
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authenticity of this text must be verified from the original source.
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D
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2-
2
20
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. R. METRI 525

(2022) 6 Supreme Court Cases 525
N
L. NAGESWARA RAO AND B.R. GAVAI, JJ.)
(BEFORE
a
IO
UNION OF INDIA AND OTHERS Appellants;
Versus
AT
MAJOR R. METRI NO. 08585N Respondent.
Criminal Appeals No. 2196 of 2017t with
Nos. 537-538 of2018t, decided on April 4, 2022
b
L
A. Armed Forces -Armed Forces Tribunal Act, 2007- Ss. 15(4)(a), (b)
PI
and (c) - Jurisdiction, powers and authority of AFT in appeal against court
martial - Scope of interference
- Held, AFT would be justified in interfering with finding of court martial
M
where its finding is legally unsustainable for any reason whatsoever or where
C
wrong decision is rendered on question of law or where there is material
irregularity in course of trial resulting in miscarriage of justice - On facts,
held, AFT was entitled to reappreciate evidence to determine justiciability of O
C
findings determined by court martial-Army Act, 1950- S. 69-Prevention
of Corruption Act, 1988, S. 7 (Paras 26 to 29)
T
d B. Armed Forces - Army Act, 1950 - S. 69 r/w S. 7 of the PC Act,

1988 - Respondent officer alleged to have obtained illegal gratification for
EN
helping candidates for recruitment during recruitment rallies by medically

clearing them - Reliance on confessional statement for sustaining confession
- Necessity to prove voluntary nature thereof
EM
- Held, issue whether confessional statement made by accused is

e
voluntary is a question of fact which is to be determined by weighing facts and
circumstances on basis of evidence produced
- In instant case, AFT had found confessional statement not voluntary
G
while allowing appeal preferred by respondent against his conviction - Thus,

parameters that weigh while considering appeal against acquittal need to be
D
f applied i.e. if view taken by AFT is found to be plausible, Supreme Court would
not interfere only because it finds other view more plausible/probable unless
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:findings of AFT are found perverse or impossible

- PW 1 admitting that respondent officer had informed him about
threatening calls and SMS messages from touts seeking favour for some
2-
candidates in December 2008 itself while PW 3 admitting that respondent had

g informed him thereabout in May 2009 - PW 2 stating that he was aware
2
about complaints from Medical Officers including respondent officer about

unwanted calls and SMS messages with threatening contents and further that
20
local newspapers had reported about recruitment racket on 14-7-2009 and in

meeting with SP he was informed about FIR alleging malpractices at Army
h
t Arising from the Judgment and Order in R. Metri v. Union of India, 2017 SCC OnLine AFT 4742
(Armed Forces Tribunal, Kochi Bench, OA No. 2 of 2014, dt. 2-3-2017) [Reversed]
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Recruitment Rally - Held, on cumulative appre ciation of evidence of PWs
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1, 2 and 3 finding of AFT that confessional statement made by respondent on
4-7-2009 did not appear to be voluntary, held, cannot be said to be perverse a
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warranting interference
- Evidence Act, 1872 - Ss. 24 to 26 - Confession whether voluntary -
AT
Determination of- Prevention of Corruption Act, 1988, S. 7 (Paras 30 to 43)
State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808, relied on
C. Evidence Act, 1872 - Ss. 24 and 6 - Extra-judicial confession - b
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Evidentiary value - Corroboration - Necessity
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- Held, extra-judicial confession is weak piece of evidence and unless
such confession is found to be voluntary, trustworthy and reliable, conviction
solely on basis of the same without corroboration, held, not justified
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- On facts held, there was no corroboration of extra-judicial confession
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allegedly made by respondent to PW 1 - On contrary, evidence of PW 1
indicating that respondent was part of team and could not singly declare
candidate medically fit in case he was not and team like one of which O
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respondent was member only assisted independent members in conducting
tests , measurements and medical ex amination - Besides , no evidence was
produced to show that any candidate declared fit by respondent was later
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d
found unfit, nor any material to e stablish that amount deposited in account
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of respondent and his father-in-law was received as illegal gratification -

Acquittal of respondent under S. 7 of the PC Act was justified - Army Act,
1950- S. 69 - Prevention of Corruption Act, 1988, S. 7 (Paras 44 to 49)
Sahadevan v. State ofT.N., (2012) 6 SCC 403 : (2012) 3 SCC (Cri) 146, applied
EM
D. Armed Forces - Army Act, 1950 - Ss. 69 and 63 - Respondent e

officer alleged to have received Rs 65,000 and Rs 20,000 as reward for his
share for helping candidates for recruitment in Army - Evidence of PWs
10 and 12 indicating that respondent had borrowed Rs 20,000 from PW 12
G
for rushing to his native place since his wife had given birth to a child and
had returned said amount - As far as amount of Rs 65,000 is concerned,
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PW 8 stating that he had taken loan of said amount from father-in-law of f

respondent and had deposited the amount towards loan repayment - Thus,
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held, respondent successfully discharged burden to prove as to how said

amounts were deposited in his and his father-in-law's account - Conviction
of respondent under S. 63 set aside and sentence of forfeiture of seniority of
2-
rank and severe reprimand, quashed (Paras 51 to 53)

R. Metri v. Union of India , 20 17 SCC OnLine AFT 4742, reversed
g
2
D. Srinivas v. Union of India , 2010 SCC OnLine AFT 1132, referred to

Union of India v. Sandeep Kuma r, (2019) 10 SCC 496 : (2020) 1 SCC (Cri) 30 : (2020) 1
20
SCC (L&S) 126 ; Chandra Kumar Chopra v. Union of India, (2012) 6 SCC 369 : (2012)
2 sec (L&S) 152, cited
P-D/68804/CLR
h
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA v. R. METRI (B.R. Gavai, J.) 527

N
Vikrarnjit Banerjee, Additional Solicitor General and R. Balasubramanian, Senior
Advocate [Nachiketa Joshi, Arvind Kr. Sharma (Advocate-on-Record), Ms Suhasini
a
IO
Sen, B.K. Satija, Manish, Saransh Kumar, Nring Chamwibo Zeliang, Prashant Rawat,
Tathagat Sharma, Mukesh Kr. Maroria (Advocate-on-Record), Gaurav Agrawal, Nishe
Rajen Shanker (Advocate-on-Record), Ms Anu K. Joy, Alim Anvar and Arvind Kr.
Sharma (Advocate-on-Record), Advocates], for the appearing parties.
AT
1. (2019) 10 sec 496 : (2020) 1 sec (Cri) 30 : (2020) 1 sec (L&S)
b 126, Union of India v. Sandeep Kumar 531b-c, 533b-c
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2. 2017 SCC OnLine AFT 4742, R. Metri v. Union of
India (reversed) 527d, 527d-e, 527g, 530g-h,
PI
539c-d
3. (2012) 6 sec 403 : (2012) 3 sec (Cri) 146, Sahadevan v. State ofT.N. 537c-d
4. (2012) 6 SCC 369 : (2012) 2 SCC (L&S) 152, Chandra Kumar
M
Chopra v. Union of India 53ld-e
5. 2010 SCC OnLine AFT 1132, D. Srinivas v. Union of India 529f-g
C
6. (1962) 3 SCR 10: AIR 1961 SC 1808, State of Bombay v. Kathi
Kalu Oghad
O
531c-d, 534c-d
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B.R. GAVAI, J.- These two cross-appeals challenge the judgments and
orders passed by the learned Armed Forces Tribunal, Regional Bench, Kochi
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d (hereinafter referred to as "the learned AFT") dated 2-3-2017, passed in R.

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Metri v. Union of lndia 1 and 30-5-2017, passed in MA No. 271 of 2017.

2. Criminal Appeal No. 2196 of 2017 is filed by the Union of India and
others, challenging that part of the judgment and order dated 2-3-20171, of
the learned AFT, vide which the learned AFT, while setting aside the order
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of conviction, under Section 7 of the Prevention of Corruption Act, 1988

e
(hereinafter referred to as "the PC Act") read with Section 69 of the Army
Act, 1950 (hereinafter referred to as "the Army Act") and the sentence of
cashiering from service and suffering of rigorous imprisonment for one year,
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dated 28-4-2013 passed by the General Court Martial (hereinafter referred to as

"GCM"), has convicted the respondent Major R. Metri (appellant in connected
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appeals being Criminal Appeals Nos. 537-38 of 2018) (hereinafter referred to

f
as "the respondent officer") under Section 63 of the Army Act, and in turn,
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sentenced him to punishment of forfeiture of seniority of rank of Major and of

severe reprimand. The learned AFT has also directed that the respondent officer
be reinstated in service, with no pay and allowance for the period he remained
2-
out of service, but, without any service break.

g 3. Criminal Appeals Nos. 537-38 of2018 have been filed by the respondent
officer, aggrieved by that part of the said judgment and order 1 of the learned
2
AFT, convicting him for the offence punishable under Section 63 of the Army
20
Act and sentencing him to punishment of forfeiture of seniority of rank and of

severe reprimand.
4. The facts necessary for adjudication of the present appeals are as under.
h
1 2017 SCC OnLine AFT 4742
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

5. For the sake of convenience, the parties are referred to hereunder as are
N
found in Criminal Appeal No. 2196 of 2017.
6. In the year 2008, the respondent officer was posted as the Recruiting a
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Medical Officer, Army Recruiting Office, Jhunjhunu, Rajas than. At the relevant
time, PW 1 Col. Anil Singh Rathore was the Director of the Army Recruiting
AT
Office, Jhunjhunu, Rajasthan.
7. Between 16-12-2008 and 18-12-2008, an Army Recruitment Rally took
place in U daipur. According to the prosecution, PW 8 Major B .S .R.K. Prasad as
well as PW 12 Major D. Srinivas, who were also working as Recruiting Medical b
L
Officers, contacted the respondent officer and told him that they help the
PI
candidates by making them medically fit and asked his help for clearing certain
candidates by declaring them medically fit. It is the case of the prosecution that,
though, at first, the respondent officer was reluctant, at the insistence of PW 8
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Major B.S.R.K. Prasad, he helped clearing certain candidates within acceptable
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range.
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8. It is further the prosecution case that when the respondent officer went
to his native place at Dharwad on 28-12-2008, he was informed by PW 8 Major
C
B.S.R.K. Prasad that an amount of Rs 65,000 would be paid to him towards
his share. It is further the prosecution case that the respondent officer asked
T
PW 8 Major B.S.R.K. Prasad that the said amount be deposited in the account d
of his father-in-law. Accordingly, an amount of Rs 65,000 was deposited in the
EN
account of the father-in-law of the respondent officer.

9. It is the further case of the prosecution that there was another
Recruitment Rally in Dausa in January 2009. In the said rally, PW 12 Major
EM
D. Srinivas requested the re spondent officer to h elp some candidates and the
respondent officer, though reluctant, helped in clearing some candidates within e
the acceptable range. It is the prosecution case that the respondent officer' s wife
delivered a baby girl on 16-2-2009, and as such, the respondent officer wanted
G
to immediately rush to his native place. Since he was not having sufficient funds
to buy an air ticket, he requested PW 12 Major D. Srinivas to lend an amount of
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Rs 20,000. The said amount of Rs 20,000 was deposited in the account of the
respondent officer by PW 10 Varalakshmi Srinivas i.e. the wife of PW 12 Major f
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D. Srinivas. It is the case of the prosecution that PW 12 Major D. Srinivas told

the respondent officer that the said amount of Rs 20,000 was towards his share
for helping the candidates in Dausa Recruitment Rally.
2-
10. It is further the case of the prosecution that there were also Recruitment
Rallies in Jodhpur and Ganganagar in May 2009 and June 2009, respectively.
g
It is the allegation that in the said rallies also, certain malpractices of clearing
2
some candidates as medically fit, who were not otherwise fit, took place.
20
11. It is further the prosecution case that in the month of July 2009 ,
there was another Recruitment Rally at Ajmer. The respondent officer, along
with PW 1 Col. Anil Singh Rathore, went to Ajmer to take part in the said
Recruitment Rally. When the recruitment process was going on at Ajmer, First h
Information Report (hereinafter referred to as "FIR") No. 125 of 2009, came
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

to be registered in Police Station Adarsh Nagar, Ajmer on 11-7-2009, at the
N
instance of one N arendra Singh, under Sections 406 and 420 of the Penal Code,
a 1860 (hereinafter referred to as "IPC"), complaining about the malpractices in
IO
the Army Recruitment Rally. PW 6 Mohd. Anwar Khan, Circle Inspector, took
up the investigation and arrested 10 persons, who were alleged to be touts.
AT
12. It is the prosecution case that on 13-7-2009, certain reports were
published in Media at Ajmer. In the media reports, the name of three officers,
namely, (]) the respondent officer; (2) PW 8 Major B.S.R.K. Prasad; and
b (3) PW 12 Major D. Srinivas and three Junior Commissioned Officers, namely,
L
(]) Subedar Major V.P. Singh; (2) Subedar Surjan Singh and (3) Subedar Major
PI
Jaswant Singh were mentioned.
13. It is the case of the prosecution that, on 14-7-2009, in the evening, the
M
respondent officer went to PW 1 Col. Anil Singh Rathore. They had gone to a
C
nearby temple and on the stairs of the temple, the respondent officer confessed
about his involvement. PW 1 Col. Anil Singh Rathore asked the respondent
O
officer to give his confession in writing. It is further the case of the prosecution
C
that the respondent officer initially came with a draft confession on 15-7-2009,
on which, PW 1 Col. Anil Singh Rathore told him that there was no need for
him to see the draft and he should submit a final statement. Accordingly, on the
T
d same day, at around 8.00 p.m., the respondent officer gave a written statement
to PW 1 Col. Anil Singh Rathore in the presence of PW 3 Col. Bharat Kumar
EN
and PW 4 Col. Balraj Singh Sohl. On 16-7-2009, the Office of Superintendent

of Police sought the presence of the respondent officer to interrogate him and
others in the FIR in question. The statement of the respondent officer was
EM
recorded by the police on 18-7-2009.

e
14. On 14-12-2009, the court of inquiry proceedings were convened. The
General Officer Commanding (hereinafter referred to as "GOC"), South West
Command, vide Note dated 14-12-2009, directed disciplinary action to be taken
G
against the respondent officer and two other officers, namely, PW 12 Major
D. Srinivas and PW 8 Major B.S.R.K. Prasad and three Junior Commissioned
D
f
Officers.
15. The respondent officer and others challenged the court of inquiry
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proceedings by way of original applications before the learned AFT, Jaipur.

The same were rejected by the learned AFT, Jaipur, vide order dated 9-4-2010 2 .
16. GCM proceedings were ordered to be instituted against the respondent
2-
officer and five others on 28-6-2012, on the following charges:

g
"(a) Charge 1:
2
Army Act, Section 69 - Committing a civil offence, that is to say,

20
being a public servant, obtaining for himself a gratification other than legal
remuneration as a reward for doing an official act, contrary to Section 7 of
the Prevention of Corruption Act, 1988.
h
2 D. Srinivas v. Union of India, 2010 SCC OnLine AFT 1132
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

In that he
N
At Dharwad during January 2009, which came to the knowledge of
authority competent to initiate action on 14-12-2009, while performing the a
IO
duties of Recruiting Medical Officer, Jhunjhunu, being a public servant,
obtained Rs 65,000 from MR-08309 L Major B.S.R.K. Prasad as a reward
AT
of his share for helping the candidates for recruitment in the army, in
Udaipur rally.
(b) Charge 2:
Army Act, Section 69 - Committing a civil offence, that is to say, b
L
being a public servant, obtaining for himself a gratification other than legal
PI
M
In that he
At Dharwad during February 2009, which came to the knowledge of c
authority competent to initiate action on 14-12-2009, while performing the
O
duties of Recruiting Medical Officer, Army Recruiting Office, Jhunjhunu,
being a public servant, obtained Rs 20,000 from Mrs Vara Laxmi wife of
C
MR-08205 K Major D. Srinivas as a reward of his share for helping the
candidates for recruitment in the army in Dausa rally.
T
(c) Charge 3: d
Army Act, Section 69 - Committing a civil offence , that is to say,
EN
being a public, servant, obtaining for himself a gratification other than legal
EM
In that he
At Jodhpur, between January 2009 and April 2009, which came to the e
knowledge of authority competent to initiate action, on 14-12-2009, while
performing the duties of Recruiting Medical Officer, Army Recruiting
G
Office, Jhunjhunu, being a public servant obtained SIM No. 9784341343

from Mr Taru Lai, as a motive for helping his candidates for recruitment
D
in the army."
f
17. At the conclusion of the trial, GCM found the respondent officer
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guilty of Charges 1 and 2 and not guilty of Charge 3. GCM, therefore, vide
order dated 28-4-2013, sentenced the respondent officer to be cashiered from
service and to suffer rigorous imprisonment for one year. The GOC confirmed
2-
the findings and sentence of GCM, but remitted the unexpired portion of
the sentence of rigorous imprisonment, vide order dated 29-12-2013. Being g
2
aggrieved thereby, the respondent officer preferred an appeal before the learned
AFT by way of OA (Appeal) No. 2 of 2014. The same has been partly allowed
20
by the impugned judgment and order dated 2-3-2017 1 , as aforesaid. Being

aggrieved thereby, the present appeals.
h
l R. M etri v. Union of India, 2017 SCC OnLine AFT 4742
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

18. We have heard Shri Vikramjit Banerjee, learned Additional Solicitor
N
General ("ASG" for short), appearing on behalf of the Union of India and
a others and Shri Gaurav Agrawal, learned counsel appearing on behalf of the
IO
respondent officer.
19. Shri Vikramjit Banerjee, learned ASG, submits that the scope of
AT
interference by the learned AFT under Section 15 of the Armed Forces
Tribunal Act, 2007 (hereinafter referred to as "the AFT Act") is very limited.
He submitted that the reappreciation of evidence by the learned AFT is not
b permissible. It is submitted that the interference by the learned AFT would
L
be warranted only on three grounds, as is mentioned under sub-section (4) of
PI
Section 15 of the AFT Act. In this respect, reliance is placed on the judgment
of this Court in Union of India v. Sandeep Kumar 3 •
20. Shri Banerjee further submitted that the learned AFT has grossly erred
M
in holding that the confessional statement made by the respondent officer
C was not voluntary. It is submitted that when the respondent officer made the
confessional statement, he was not an accused, and as such, the learned AFT
has grossly erred in relying on Article 20(3) of the Constitution oflndia. In this O
C
respect, he relies on the judgment of the eleven-Judge Bench of this Court in
State of Bombay v. Kathi Kalu Oghad4 .
21. Shri Banerjee further submits that the learned AFT itself has come to a
T
d
conclusion that the respondent officer has indulged in financial misconduct, and
EN
therefore, the punishment of cashiering from service for such misconduct ought
not to have been sustained. Reliance in this respect is placed on the judgment
of this Court in Chandra Kumar Chopra v. Union of lndia 5 .
22. Shri Gaurav Agrawal, learned counsel appearing on behalf of the
EM
e respondent officer, on the contrary, submits that the learned AFT has rightly
held that the confessional statement was not voluntary. He submitted that the
extra-judicial confession is a very weak piece of evidence and conviction on
the basis of the same cannot be sustained, unless there is some corroboration.
G
He submits that the news about the respondent officer being already involved
in the FIR, registere d on 11-7-2009, was already published in the newspapers
D
f on 13-7-2009. He submits that the police had already started interrogation with
regard to the FIR and there was discussion between the police officials and the
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army officials. He submitted that the learned AFT has come to a conclusion
that it was a huge recruitment scam and in order to save the higher officials, the
possibility of the respondent officer being forced to give such a confession by
2-
promising him that he would also be saved, is a possible view. He, therefore,
g submits that no interference would be warranted with the findings of the learned
AFT in that regard.
2
23. He further submitted that even the evidence of PW 1 Col. Anil Singh
20
Rathore, Director, Army Recruitment Centre, Jhunjhunu; PW 2 Brigadier Arnn

Kumar Tuli, Dy. Director General, Recruitment Zone Rajasthan at Jaipur; and
3 (201 9) 10 sec 496 : (2020) 1 sec (Cri) 30 : (2020) 1 sec (L&S) 126
h
4 (1962) 3 SCR 10: AIR 1961 SC 1808
s (2012) 6 sec 369: (2012) 2 sec (L&S) 1s2
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

PW 4 Col. Balraj Singh Sohi, Director Recruiting Office, Jaipur would reveal
N
that not a single person was found, who could be said to have been medically
declared fit, though being unfit. He further submitted that, on the contrary, a
IO
the evidence of the prosecution witnesses would itself reveal that actual tests
were conducted by independent members and the medical team was only
assisting the independent members in the conduct of tests, measurements and
AT
the medical examination. He further submits that the evidence of prosecution
witnesses would itself show that there was no material to establish that the
respondent officer had received any amount from the touts as a consideration b
L
for clearing any candidate.
PI
24. Shri Agrawal further submits that from the evidence of PW 10
Varalakshmi Srinivas, it is clear that the amount of Rs 20,000 was deposited
by her, on the directions of her husband, PW 12 Major D. Srinivas, since the
M
respondent officer was in dire need of the said money as he had to rush to his
hometown at Dharwad by flight. He submitted that from the evidence of PW 12 C
Major D. Srinivas, it would be clear that the said amount of Rs 20,000 was
returned by the respondent officer to PW 12 Major D. Srinivas, on his returnO
C
from Dharwad.
25. Insofar as the amount of Rs 65,000 alleged to have been received from
PW 8 Major B .S .R.K. Prasad is concerned, Shri Agrawal would submit that
T
PW 8 Major B.S.R.K. Prasad had taken a loan of Rs 65,000 from the father- d
EN
in-law of the respondent officer, since he wanted to purchase a plot of land. He

submits that the amount of Rs 65,000 deposited in the account of the father-in-
law of the respondent officer was towards the repayment of the said loan. He
submits that the said fact would b e evident from the evidence of PW 8 Major
EM
B.S.R.K. Prasad.
26. With the assistance of the learned counsel for the parties, we have e
scrutinised the material on record. Insofar as the first submission with regard
to scope of Section 15 of the AFT Act is concerned, it will be relevant to refer
G
to sub-section (4) of Section 15 of the AFT Act, which reads as unde r:

"15. Jurisdiction, powers and authority in matters of appeal against
D
court martial.-(1)-(3) * * * f
( 4) The Tribunal shall allow an appeal against conviction by a court martial
JU
where-
(a) the finding of the court martial is legally not sustainable due to
any reason whatsoever; or
2-
(b) the finding involves wrong decision on a question of law; or

(c) there was a material irregularity in the course of the trial resulting g
2
in miscarriage of justice,
20
but, in any other case, may dismiss the appeal where the Tribunal considers
that no miscarriage of justice is likely to be caused or has actually resulted to
the appellant:
Provided that no order dismissing the appeal by the Tribunal shall be h
passed unless such order is made after recording reasons therefor in writing."
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

27. It could thus be seen that, in view of clause (a) of sub-section (4) of
N
Section 15 of the AFT Act, the learned AFT would be justified in interfering
a with the finding of the court martial where its finding is legally not sustainable
IO
due to any reason whatsoever. Under clause (b) thereof, it would be permissible
for the learned AFT to interfere with such a finding when it involves a wrong
decision on a question of law. Under clause (c) thereof, the learned AFT would
AT
be justified in allowing an appeal against conviction by a court martial when
there was a material irregularity in the course of the trial resulting in miscarriage
b of justice.
L
28. Insofar as reliance placed by Shri Vikramjit Banerjee, learned ASG on
PI
the judgment of this Court in Sandeep Kumar 3 is concerned, this Court in the
said case itself has observed thus: (SCC p. 515, para 46)
M
"46. Section 15 of the Act confers wide power on the Tribunal so
as to allow an appeal against conviction by a court martial where the
C
finding of the court martial is legally not sustainable due to any reason;
the finding involves wrong decision on a question of law or there was a
O
material irregularity in the course of the trial resulting in miscarriage of
C
justice. Even though the power of the Tribunal is wide but it is not merely
a different opinion on the appreciation of the evidence to interfere with
the findings recorded by the court martial. The first ground of interference
T
d
is whether the finding of the court martial is "legally not sustainable".
EN
Therefore, to exercise such power, there has to be error of law by the

court martial which would confer jurisdiction on the Tribunal to interfere
against the conviction recorded by the court martial. The second ground
is "wrong application on a question of law". However, the Tribunal, in
EM
the present case, has committed grave error in interfering with the finding
e
of the court martial by misreading an Army Order. There is no material
irregularity pointed out by the Tribunal inasmuch as the irregularity pointed
out is with regard to confessional statements by military officer which is
G
not a bar either under the Evidence Act or under the Army Order issued
under the Act. The Tribunal could reappreciate evidence to find out if
D
any findings of the court martial are legally not sustainable due to any
f
reason; or that the finding involves wrong decision on a question of law
JU
or there was a material irregularity in the course of the trial resulting in

miscarriage of justice. But such wide powers do not confer jurisdiction to
the Tribunal to reverse the findings merely because it finds that different
2-
view is possible." (emphasis in original)

g 29. It could thus be seen that this Court itself has held that the learned AFT
2
was entitled to reappreciate evidence to find out if any findings of the Court
Martial are legally not sustainable due to any reason; or that the finding involves
20
wrong decision on a question of law; or there was a material irregularity in the

course of the trial resulting in miscarriage of justice. We find that the reliance
placed by the learned ASG on the sentence i.e. "But such wide powers do not
h
3 Union of India v. Sandeep Kumar, (2019) 10 SCC 496 : (2020) 1 SCC (Cri) 30 : (2020) 1 SCC
(L&S) 126
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

confer jurisdiction to the Tribunal to reverse the findings merely because it finds
N
that different view is possible" , is being pressed into service without context.
In the said case, on facts, this Court came to the conclusion that there was no a
IO
material irregularity pointed out by the Tribunal inasmuch as the irregularity
pointed out was with regard to confessional statements by military officer
which was not a bar either under the Evidence Act or under the Army Order
AT
issued under the Act. This Court, therefore, came to a specific conclusion that
the finding recorded by the Tribunal was on misreading of an army order. The
sentence which is pressed into service will have to be read in the context of b
L
those findings. We are unable to accept the contention urged on behalf of the
Union oflndia that the learned AFT is not entitled to reappreciate the evidence.
PI
Such reappreciation of evidence is permissible to find out if any findings of the
court martial are legally not sustainable due to any reason.
M
30. It is not in dispute that GCM has passed its conviction basically on the
confessional statement made by the respondent officer. Reliance in this respect C
is placed on the judgment of the eleven-Judge Bench of this Court in State
O
of Bombay v. Kathi Kalu Oghad4 . It will be relevant to refer to the following
C
observations of this Court in the said case: (AIR p. 1816, para 16)
"(1) An accused person cannot be said to have been compelled to be a
witness against himself simply because h e made a statement while in police
T
d
custody, without anything more. In other words, the mere fact of being
EN
in police custody at the time when the statement in question was made
would not, by itself, as a proposition of law, lend itself to the inference
that the accused was compelled to make the statement, though that fact, in
conjunction with other circumstances disclosed in evidence in a particular
EM
case, would be a relevant consideration in an enquiry whether or not the

e
accused person had been compelled to make the impugned statement."
31. It is to be noted that this Court, in the aforesaid case itse lf, has h eld that
the question, as to whether a person was compelled to make a statement or not,
G
is a question of fact in each case to be determined by the Court on weighing

the facts and circumstances disclosed in the evidence before it.
D
32. In the present case, the learned AFT, upon perusal of the evidence of f
PW 1 Col. Anil Singh Rathore, PW 3 Col. Bharat Kumar and PW 4 Col. Balraj
JU
Singh Sohi, has come to a conclusion that from the circumstances as emerged,
it cannot be said that the confessional statement was voluntary.
33. The finding as recorded by the learned AFT, was recorded while
2-
allowing the appeal preferred by the respondent officer against the judgment
and order of GCM dated 28-4-2013, as confirmed by the GOC vide order g
2
dated 29-12-2013, holding him guilty for the offence punishable under
Section 7 of the PC Act read with Section 69 of the Army Act. As such, in the
20
present matter, while considering the appeal of the Union of India and others,
we will be guided by the parameters that weigh while considering an appeal
against acquittal. If the view taken by the learned AFT is found to be a plausible
h
4 (1962) 3 SCR 10: AIR 1961 SC 1808
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

one , it will not be permissible for this Court to interfere with the same only
N
because this Court finds the other view to be more probable/plausible. Equally,
a unless the finding of the learned AFT is found to be perverse or impossible, an
IO
interference would not be justified.
34. From the perusal of evidence of PW 1 Col. Anil Singh Rathore, it would
AT
reveal that he himself has stated that after he was posted as Director, Army
Recruiting Office, Jhunjhunu, Rajasthan in May 2008, he had received various
calls from unauthorised elements seeking favours for recruitment. He had told
b them to lay off. However, in spite of this, the said callers increased the frequency
L
of making calls seeking favours and also started using threatening language.
PI
He stated that the issue was discussed in detail with all Directors of the Army
Recruiting Office under the zone. He stated that, in the Conference, he had
informed the Additional Director General Recruiting, Integrated Headquarters
M
of Ministry of Defence (Army) that, though the recruiting system was free and
C fair, yet about 90% of the persons recruited, pay varying amounts to the touts.
He further stated that in the month of May 2009, when the Recruitment Rally
was held at Jodhpur, the re spondent officer was de tailed as a member of the O
C
medical team for the said Recruitment Rally. When the Recruitment Rally was
in process, he received a call from the respondent officer informing him that the
respondent officer had received calls from undesirable elements asking favours
T
d from the respondent officer. PW 1 Col. Anil Singh Rathore has further stated
that he told the respondent officer not to do any favour to anyone and report the
EN
matter to the Director of Host Army Recruiting Office i.e. PW 3 Col. Bharat
Kumar.
35. PW 1 Col. Anil Singh Rathore further stated in his evidence that
EM
another Recruitment Rally was held in June 2009 at Ganganagar, where he

e was the Host Army Recruiting Office. He had a meeting with Detachment
Commander of South Western Command Intelligence Unit, who provided him
some inputs about the touts' activities in the area. He has stated in his evidence
G
that the respondent officer was one of the members of the medical team at the
Recruitment Rally held at Ganganagar.
D
36. It will be apposite to reproduce the following part of the cross-

f examination of PW 1 Col. Anil Singh Rathore:
JU
"As far as I remember, first time the accused informed me about having
received calls from undesirable elements was sometime in the month of
December 2008 when I came back from leave. Subsequently, he informed
2-
me about the same from Jodhpur recruitment rally. Further in Ganganagar, I

g heard the medical officers including the accused discussing about such calls
being received by them on the dining table during breakfast time. Finally
2
the same information was given by the accused in his verbal and written
20
confessional statement made on 14-7-2009 and 15-7-2009, respectively."

37. PW 1 Col. Anil Singh Rathore has further stated in his evidence that he
along with the respondent officer, who was also one of the members of Team
h 'B' as Medical Officer, went to Ajmer on 9-7-2009 for the Recruitment Rally to
be held on 11-7-2009. He states about the news being published in newspapers
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

on 13-7-2009 about the police taking action against the touts. He states that
N
the respondent officer came to him on 14-7-2009 and wanted to confess his
involvement in the recruitment racket with the touts. They went to a nearby a
IO
temple where he narrated about his involvement over a duration of two hours
or so. He told the respondent officer to give everything in writing about what
he has narrated. He has further stated that on 15-7-2009, the respondent officer
AT
came to him and handed over a written statement in the presence of PW 3 Col.
Bharat Kumar and PW 4 Col. Balraj Singh Sohi.
38. PW 1 Col. Anil Singh Rathore, in his cross-examination, has admitted b
L
that he and the other recruiting officers had been interacting with the media at
PI
the site of the Recruitment Rally. He has further admitted that during interaction
on 13-7-2009, a number of media persons had arrived in the stadium, where the
Recruitment Rally was being conducted. Though he has denied that the details
M
of information published in the newspaper dated 13-7-2009 were given by him,
it is not denied that he has interacted with the police on 13-7-2009. C
O
39. It could thus be seen that when the respondent officer allegedly made an
oral confession on 14-7-2009 and gave a written statement on 15-7-2009, the
C
news with regard to the recruitment racket was already known to one and all.
40. PW 3 Col. Bharat Kumar, who was the Director of Army Recruiting
Office at the re levant time , has stated in his examination-in-chief that during
T
Jodhpur Recruitment Rally, held between 11-5-2009 and 21-5-2009, the d

EN
respondent officer had come to him, totally shattered with tears in his eyes, and
informed that he had received threatening calls and SMS messages from the
touts seeking favours for some candidates.
41. It is thus clear from the evidence of PW 1 Col. Anil Singh Rathore
EM
and PW 3 Col. Bharat Kumar that from December 2008 itself, they were aware
e
about the racket of touts in the recruitment scam. Not only this, but PW 1 Col.
Anil Singh Rathore has gone on record to say that, in the recruitment process,
90% of the persons recruited pay varying amount to touts, though the selection
G
process was free and fair. PW 1 Col. Anil Singh Rathore has admitted that
the respondent officer had informed him about the phone calls as early as in
D
December 2008. Insofar as PW 3 Col. Bharat Kumar is concerned, he has also

f
admitted that the respondent officer had informed him about the phone calls
JU
in the month of May 2009. The finding of the learned AFT that, in view of
the circumstances, it appears unnatural that the respondent officer would make
a voluntary confession on 14-7-2009 and the written statement on 15-7-2009
2-
and that many more persons might be involved in the recruitment scam and in
order to find a scapegoat, the possibility of the respondent officer being asked
g
to make a confessional statement with an assurance that no action will be taken
2
against him, cannot be said to be an impossible view.

20
42. PW 2 Brigadier Arun Kumar Tuli, at the relevant time, was the Deputy
Director General, Recruitment Zone Rajasthan at Jaipur. He has also admitted
in his examination-in-chief that, when he assumed the office of Deputy Director
General Recruiting Zone, the first Recruitment Rally was conducted at Jodhpur, h
sometime between 11-5-2009 and 18-5-2009/19-5-2009. He has admitted that
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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during this Recruitment Rally, he came to know about the receipt of complaints
N
from Medical Officers, including the respondent officer, that they had received
a unwanted calls and SMS messages with threatening contents. He has also
IO
admitted in his evidence that, on 14-7-2009, he received local newspapers,
which were full of news on recruitment racket. He has also admitted that, on
14-7-2009, a meeting was arranged with the Superintendent of Police, Ajmer,
AT
who informed him about the FIR.
43. It could thus be seen that, on cumulative appreciation of evidence of
b PW 1 Col. Anil Singh Rathore, PW 2 Brigadier Arnn Kumar Tuli and PW 3 Col.
L
Bharat Kumar, the view that the confessional statement made by the respondent
PI
officer did not appear to be voluntary cannot be said to be a perverse view. This
is particularly so, when PW 1 Col. Anil Singh Rathore has admitted that the
respondent officer had intimated him about such calls as early as in December
M
2008, and also, PW 2 Brigadier Arun Kumar Tuli and PW 3 Col. Bharat Kumar
C
have admitted about they having knowledge about such calls much earlier
to 14-7-2009 and 15-7-2009 i.e. the dates of oral/written confession.
44. This Court in Sahadevan v. State of T.N. 6 , after surveying various
O
C
judgments on the issue, has laid down the following principles: (SCC
pp. 412-13, para 16)
T
d "The principles
EN
16. Upon a proper analysis of the abovereferred judgments of this

Court, it will be appropriate to state the principles which would make
an extra-judicial confession an admissible piece of evidence capable of
forming the basis of conviction of an accused. These precepts would
EM
e guide the judicial mind while dealing with the veracity of cases where the
prosecution heavily relies upon an extra-judicial confession alleged to have
been made by the accused:
G
(i) The extra-judicial confession is a weak evidence by itself. It has

to be examined by the court with gre ater care and caution.
D
(ii) It should be made voluntarily and should be truthful.

f
(iii) It should inspire confidence.
JU
(iv) An extra-judicial confession attains greater credibility and

evidentiary value if it is supported by a chain of cogent circumstance s
and is further corroborated by other prosecution evidence.
2-
(v) For an extra-judicial confession to be the basis of conviction,

g it should not suffer from any material discrepancies and inherent
2
improbabilities.
20
(vi) Such statement essentially has to be proved like any other fact
and in accordance with law."
h
6 (2012) 6 sec 403: (2012) 3 sec (Cri) 146
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

45. It could, thus, be seen that the extra-judicial confession is a weak piece
N
of evidence. Unless such a confession is found to be voluntary, trustworthy and
reliable, the conviction solely on the basis of the same, without corroboration, a
IO
would not be justified.
46. In the present case, there is no corroboration at all. On the contrary,
AT
PW 1 Col. Anil Singh Rathore in his evidence has himself admitted that the
respondent officer was part of Team 'B '. It will be relevant to refer to the
following part of his examination-in-chief:
b
L
"In any recruitment rally there are three teams, Host Army Recruiting
Office, Teams 'A' and 'B '. Host Army Recruiting Office is responsible for
PI
documentation and administration. Team 'A' is responsible for physical
tests and run while Team 'B' is re sponsible for measurements of the
candidate and their medical examination. Actual tests are conducted by
M
independent members. These teams only assist the independent members
C
in conduct of tests, measurements and the medical examination.
O
47. It could thus be seen that a single officer like the respondent officer
C
cannot de clare a candidate medically fit, if he is otherwise not. His evidence
would show that the team like the one of which the respondent officer was
a member, only assists the independent members in the conduct of tests,
T
measurements and the medical examination. d

EN
48. All the three witnesses have admitted that they had no knowledge if
any candidate, declared fit by the respondent officer, was subsequently found
to have been medically unfit. All the three witnesses have also admitted that
there was no material to establish that the amount, which was deposited in the
EM
account of the respondent officer and his father-in-law was an amount received
e
as illegal gratification.
49. We are , therefore , of the view that no error could be found with the
findings of the learned AFT that the respondent officer deserves to be acquitted
G
of the offence punishable under Se ction 7 of the PC Act.

50. That leaves us with the appeals of the respondent officer.
D
51. Perusal of the evidence of PW 10 Varalakshmi Srinivas and PW 12 f

JU
Major D . Srinivas would reveal that they have stated in their evidence, that since
the wife of the respondent officer had given birth to a girl child on 16-2-2009, he
wanted to rush to his native place at Dharwad and did not have sufficient funds.
2-
As such, he had requested PW 12 Major D. Srinivas to give a loan of Rs 20,000,

which amount was deposited by PW 10 Varalakshmi Srinivas in the account
g
of the respondent officer, on the instructions of her husband PW 12 Major D.
2
Srinivas. From the evidence of PW 12 Major D. Srinivas, it would reveal that

20
on his return from his native place, the respondent officer had returned the said
amount.
52. Insofar as the amount of Rs 65,000 is concerned, PW 8 Major B.S.R.K.
Prasad, in his evidence, has stated that he had taken a loan of Rs 65,000 from h
the father-in-law of the respondent officer for purchase of a plot of land. The
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

amount of Rs 65,000 deposited by him in the account of the father-in-law of
N
the respondent officer was towards repayment of the said loan amount.
a
IO
53. It could thus be seen that the re spondent officer had discharged the
burden to prove, as to how the said amount of Rs 20,000 was deposited in his
account and as to how the amount of Rs 65,000 was deposited in the account of
AT
his father-in-law. As such, that part of the order, which convicts the respondent
officer for the offence punishable under Section 63 of the Army Act, in our
view, is not sustainable.
b
L
54. In the result, we pass the following order:
PI
A. Criminal Appeal No. 2196 of 2017
54.1. Criminal Appeal No. 2196 of 2017 filed on behalf of the Union of
India and others is dismissed.
M
C B. Criminal Appeals No s. 537-538 of 2018
54.2. Criminal Appeals Nos. 537-538 of 2018 filed on behalf of the
appellant Major R. Metri No. 08585N are allowed. O
C
54.3. The impugned judgment and order dated 2-3-2017 1 , passed by the
learned AFT, convicting the appellant Major R . Metri No. 08585N for the
offence punishable under Section 63 of the Army Act and sentencing him to
T
d forfeiture of seniority of rank and of severe reprimand is quashed and set aside.
EN
54.4. The appellant Major R. Metri No. 08585N is acquitted of all the
charges, charged with.
54.5. The appellant Major R. Metri No. 08585N is directed to be reinstated
forthwith with continuity of service. However, in the facts and circumstances
EM
of the case, the appellant Major R. Metri No. 08585N will not be entitled for
e
back wages for the period during which he was out of employment.
55. Pending applications, if any, shall stand disposed of.
G
D
f
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2-
g
2
20
h
l R. Metri v. Union of India, 2017 SCC OnLine AFT 4742
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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STATE OF SIKKIM v. JASBIR SINGH 287

N
(BEFORE DR D.Y. CHANDRACHUD AND SURYA KANT, JJ.)
a
IO
STATE OF SIKKIM Appellant;
Versus
AT
JASBIR SINGH AND ANOTHER Respondents.
Criminal Appeal No. 85 of 2022t, decided on February 1, 2022
b
A. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70
L
- Criminal trial - Concurrent jurisdiction of court martial under Army
Act and criminal courts under CrPC - Discretion of Designated Officer/
PI
Commanding Officer under S. 125 of the Army Act to decide the forum -
Implied exercise of such discretion - When may be inferred - Effect of such
M
implied exercise of discretion
C - Designated Officer/Commanding Officer impliedly declining to
exercise discretion to conduct trial in court martial - Trial by criminal
court under CrPC, held, mandatory - In a case of concurrent jurisdiction,
when court martial has impliedly declined to conduct trial, criminal court
O
C
cannot direct the court martial to do the same - Impugned direction by
Sessions Court as affirmed by High Court, thus, held, unsustainable - Matter
T
remanded to Sessions Court for completion of trial in accordance with law -

d
Criminal Procedure Code, 1973, S. 475
EN
B. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70
Commanding Officer under S. 125 of the Army Act to the decide the forum
EM
e - Implied refusal by Designated Officer/Commanding Officer to exercise

discretion for conduct of the trial in court martial - When can be inferred
- Matters to be considered
G
- Requirements for proper exercise of discretion under S. 125 for

institution of proceedings before court martial - Clarified
D
- In a case of alleged murder by use of firearm (rifle), the accused,

f deceased and informant were Indian Army personnel - The Army handed
JU
over the accused to the police station concerned - By choosing not to retain
the accused to be tried by court martial and events indicating the choice of
Designated Officer/Commanding Officer that trial should be conducted in
accordance with provisions of CrPC, held, it can be inferred that there was
2-
implied exercise of discretion that trial should be conducted by criminal court

g under CrPC and not by court martial
2
- In cases involving concurrent jurisdiction, if there are no directions by

20
Designated Officer to institute proceedings before court martial (as in present

case), the Army Act would not interdict the exercise of jurisdiction by the
ordinary criminal court
h
t Arising from the Judgment and Order in State of S ikkim v. Jasbir Singh, 2019 SCC OnLine Sikk
23 (Sikkim High Court, Criminal Revision Petition No. 2 of 2017, dt. 6-4-2019) [Reversed]
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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- Conjunctive requirement of S. 125 of the Army Act is that if Designated
N
O fficer exercises discretion to institute proceedings before a court martial, he
should direct the detention of accused in military custody - In such an event, a
IO
S. 126 of the Army Act can come into picture , which explicitly recognises
that in the event of a difference of view between the officer designated under
AT
S. 125 and the criminal court under S. 126 of the Army Act, the matter has to be
referred to the Central Government for resolution, finality being attached to the
decision of the Central Government- Criminal Procedure Code, 1973, S. 475
C. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70 b
L
PI
Commanding Officer under S. 125 of the Army Act to decide the forum -
Exercise of discretion has to be in terms of the provisions of the Army Act,
M
S. 475 CrPC and Rules framed therefor, such as the 1978 Rules - There is
no concept of absolute immunity of Armed Forces personnel from trial by a C
criminal court
- Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, O
C
1978 - Generally
D. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70 -
T
Criminal trial - Concurrent jurisdiction of court martial under Army Act d

and criminal courts under CrPC - Implied refusal by Designated Officer/
EN
Commanding Officer to exercise discretion to conduct trial in court martial

- When can be inferred - Absence of notice under R. 4 r/w R. 3 of the 1978
Rules - Effect of, and inference that may be drawn therefrom - Object and
purpose of such notice, explained
EM
- Object and purpose of said notice by Magistrate to Commanding Officer e

to release the accused from military custody to civil custody is to facilitate the
exercise of discretion by the Designated Officer to determine whether interest
G
of the service would warrant a trial by a court martial or not - However, such
a notice is not mandatory for said release - When even in the absence of such
notice, the Designated Officer releases the accused from military custody to
D
civil custody (as in present case) , Magistrate would be justified in proceeding f

JU
on the basi s that the military authorities had decided that the accused is not to
be tried by a court martial and that he should be tried by the ordinary criminal
court - Criminal Procedure Code, 1973 - S. 475 - Criminal Courts and
Court Martial (Adjustment of Jurisdiction) Rules, 1978 - Rr. 3 to 5 - Object
2-
and purpose of notice under R. 4 - Absence of notice under R. 4 - Effect

of - Explained g
2
E. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70
20
- Cases involving concurrent jurisdiction of court martial under Army

Commanding Officer under S. 125 of the Army Act to decide choice of forum
- Object behind entrustment of discretion to a military officer, explained -
h
Criminal Procedure Code, 1973, S. 475
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

F. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70
N
Cases involving concurrent jurisdiction of court martial under Army
a Act and criminal courts under CrPC - Discretion of Designated Officer/
IO
Commanding Officer under S. 125 of the Army Act to decide choice of forum
- Stage for exercise of jurisdiction under S. 125 of the Army Act - It can be
exercised only after the police have completed the investigation and submitted
AT
the charge-sheet- Criminal Procedure Code, 1973, S. 475
G. Criminal Procedure Code, 1973 - S. 475 - Concurrent jurisdiction
of court martial under Army Act and criminal courts under CrPC - Scope
b of S. 475 CrPC - Held, S. 475 CrPC has to be construed in the light of S. 125
L
of the Army Act and both the provisions have been made keeping in mind
PI
the object of avoiding a collision between the ordinary criminal court and the
court martial -Armed Forces - Army Act, 1950, Ss. 125, 126, 69, 3(ii) and 70
H. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70 -
M
Forum for trial based on nature of offence - Concurrent jurisdiction of court
C martial under Army Act and criminal courts under CrPC in certain cases -
Types of offences which would come under concurrent jurisdiction, clarified
- Present case (alleged case of murder by Army personnel using firearm), O
C
held, is not exclusively triable by court martial as conditions for applicability
of S. 70 of the Army Act, not attracted on facts - Thus, S. 69 of the Army
Act applicable - S. 69 does not ipso jure oust jurisdiction of ordinary criminal
T
d courts - Criminal Procedure Code, 1973, S. 475

I. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70 -
EN
Three types of offences under the Army Act, explained

J. Armed Forces - Army Act, 1950 - Ss. 70 and 69 - Relative scope
and operation of, explained - Held, where the conditions requisite for the
EM
application of S. 70 exist, S. 69 would give way to S. 70

e K. Armed Forces - Army Act, 1950 - S. 70 - Exclusive jurisdiction
of court martial - Conditions for application of S. 70, stated - Criminal
Procedure Code, 1973, S. 475
G
There was an alleged murder by use of rifle inside the barracks of the Indian
Army. The informant, the deceased and the respondent-accused were riflemen
D
f in the Indian Army. The Army handed over the custody of the accused to the
investigating officer of the police station concerned.
JU
An order of committal was passed by the Chief Judicial Magistrate to

the Principal Sessions Judge. The Sessions Judge framed charges against the
respondent under Sections 302 and 308 IPC and under Section 27(3) of the Arms
2-
Act, 1959 ("the Arms Act").

After the recording of evidence was complete, the Sessions Judge heard the
g
counsel for the parties for final arguments.
2
Having due regard to the provisions of Section 69 of the Army Act, 1950, the
20
Sessions Judge upheld the objection of the respondent-accused by concluding that

given the nature of offence, the accused ought to have been tried by court martial
alone and that the Sessions Court had no jurisdiction. With this conclusion, the
Chief Judicial Magistrate was directed to give written notice to the Commanding
h Officer of the respondent's unit or the competent military authority for his trial by
a court martial.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

The High Court by the impugned order while exerc1smg the revisional
N
jurisdiction under Sections 397 and 401 read with Section 482 CrPC upheld the
order of the Sessions Judge. a
IO
Allowing the appeal, the Supreme Court
Held:
AT
Concurrent jurisdiction - Discretion of designated army officer under
Section 125 of the Army Act
Section 125 deals with a situation where both a criminal court and a court
martial have jurisdiction in respect of an offence. In such a case, it is the discretion b
L
of the Commanding Officer of the unit. If he decides that the proceedings should
PI
be instituted before a court martial, he may direct that the accused be retained in
military custody. Section 125 confers the discretion on the Designated Officer to
decide whether the accused should be tried by a court martial or by the regular
M
criminal court. (Para 16)
The latter part of Section 475(1) contemplates an eventuality in which a person C
O
is brought before a Magistrate and is charged with offences for which that person
is liable to be tried either by a court to which CrPC applies or by a court martial.
C
In such a situation, the Magistrate is to have regard to the rules and shall in proper
cases deliver the person together with a statement of the offences of which he is
accused to the Commanding Officer of the unit of the nearest military, naval or air
T
force station, for the purpose of being tried by a court martial. (Paras 19 and 20) d
EN
Resolution by Central Government under Section 126 of the Army Act -

When required
Section 126, as the marginal note indicates, deals with the powers of the
criminal court "to require delivery of offender". Under Section 126, the Designated
EM
Officer has two courses of action open: (i) deliver the offender in compliance
with the requisition of the criminal court; or (ii) refer the question to the Central e
Government for determining the court before which the proceedings are to be
instituted. The determination by the Central Government is to be final. (Para 17)
G
Sections 125 and 126 operate in different domains. Section 126 explicitly
recognises that in the event of a difference of view between the officer designated
under Section 125 and the criminal court under Section 126, the matter has
D
to be referred to the Central Government for resolution, finality being attached f

to the decision of the Central Government. Section 126, in other words, has
JU
provided the modalities for resolving a situation where a criminal court decides
to proceed against the accused, while on the other hand, the Designated Officer
under Section 125 decides to have the accused tried by a court martial. It is
2-
to resolve a situation of this nature that a reference is envisaged to the Central

Government. (Para 18)
g
2
Notice under Rule 4 read with Rule 3 of the 1978 Rules - Object and purpose
The purpose underlying Rule 3 and Rule 4 is that unless the Magistrate has
20
been moved by a competent military, naval or air force authority, the Magistrate
must furnish a written notice to the Commanding Officer or the competent authority
if he is of the opinion that either the trial should proceed before the Magistrate
or order of committal of the case to the Court of Session should be passed h
against the accused held liable to be tried by a court martial. The object and
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

purpose of g1vmg the notice is to facilitate an exercise of discretion by the
N
Designated Officer to determine whether the accused should be tried by a court
a martial or in the alternative, should be proceeded with before the ordinary criminal
IO
court. (Para 23)
Object behind entrustment of discretion to military officer
AT
There are a wide variety of circumstances which may be relevant in deciding
whether an accused should be tried by a court martial or by an ordinary criminal
court. Due to this, the choice of making this decision is entrusted to the military
b officer under whom the accused was serving. Under Section 549 of the Code of
L
Criminal Procedure, 1898 (equivalent to Section 475 CrPC), the final choice about
PI
the forum of the trial of a person accused of a "civil offence" rests with the Central
Government, whenever there is a difference of opinion between a criminal court
and the military authority. (Paras 27 and 42)
M
Ram Sarup v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247,followed
C
Object of Sections 125 and 126 of the Army Act
Sections 125 and 126 have made provisions to avoid a conflict of jurisdiction
between ordinary criminal courts and a court martial in respect of an offence whichO
C
could be tried by both the criminal court and by a court martial. Section 125
leaves the discretion, in the first instance, with the competent officer and it is only
when he so exercises the discretion and decides that the proceedings should be
T
d instituted before a court martial that Section 126 would come into operation. If the
EN
Designated Officer does not exercise this discretion to institute proceedings before
a court martial, the Army Act would not interdict the exercise of jurisdiction by
the ordinary criminal court. (Para 33)
Joginder Singh v. State of H.P., (1971) 3 SCC 86: 1971 SCC (Cri) 269,followed
EM
A written notice under Rule 4 of the 1978 Rules is not mandatory to release
e
the accused from military custody and hand him over to the civil authorities
The absence of a written notice to the competent officer under Rule 4 is
unnecessary where the competent military authorities, knowing about the nature
G
of the offence alleged against the accused, release him from military custody and
hand him over to the civil authorities. In such a situation, the Magistrate would be
D
justified in proceeding on the basis that the military authorities had decided that
f the appellant need not be tried by a court martial and that he should be tried by the
JU
ordinary criminal court. (Paras 34 and 43)

Joginder Singh v. State of H.P. , (1971) 3 SCC 86: 1971 SCC (Cri) 269,followed
Som Datt Datta v. Union ofIndia, (1969) 2 SCR 177: AIR 1969 SC 414, distinguished on facts
2-
E.G. Barsay v. State of Bombay, (1962) 2 SCR 195 : AIR 1961 SC 1762; Ram Sarup v. Union
of India , (1964) 5 SCR 931 : AIR 1965 SC 247, referred to
g
2
Object of Sections 475 CrPC and 125 of the Army Act is to avoid collision
between the ordinary criminal court and the court martial
20
Section 475 CrPC has to be construed in the light of Section 125 of the Army
Act and both the provisions have been made keeping in mind the object of avoiding
a collision between the ordinary criminal court and the court martial. (Para 36)
h Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692: 1973 SCC (Cri) 1101,
relied on
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Jurisdiction under Section 125 of the Army Act can be exercised only after the
N
police had completed the investigation and submitted the charge-sheet
The stage for consideration would only be on the completion of the police a
IO
investigation. The option as to whether the accused should be tried before the
criminal court or by a court martial could be exercised only after the police had
completed the investigation and submitted the charge-sheet. (Para 37)
AT
S.K. Jha Commodore v. State ofKerala, (2011) 15 SCC 492: (2012) 4 SCC (Cri) 630, relied on
Som Datt Datta v. Union of India, (1969) 2 SCR 177 : AIR 1969 SC 414, referred to
b
L
There is no concept of absolute immunity of army personnel from trial by a
criminal court
PI
If an offence is committed even by Army personnel, there is no concept
of absolute immunity from trial by the criminal court constituted under
CrPC. (Paras 38 to 40)
M
Extra-Judicial Execution Victim Families Assn. v. Union of India, (2016) 14 SCC 536: (2016)
C
14 sec 578 (2): (2016) 4 sec (Cri) 508: (2016) 4 sec (Cri) 547 (2); BalbirSingh v. State
O
of Punjab, (1995) 1 SCC 90 : 1995 SCC (Cri) 202; Army Headquarters v. CBI, (2012) 6
SCC 228: (2012) 3 SCC (Cri) 88,followed
C
Som Datt Datta v. Union of India, (1969) 2 SCR 177 : AIR 1969 SC 414; Ram Sarup v. Union
of India , (1964) 5 SCR 931 : AIR 1965 SC 247, referred to
Three types of offences under the Army Act
T
d
Broadly speaking there are three categories of offences. First, the provisions
EN
of Chapter VI of the Army Act indicate that where an offence is created by the
Act itself it would be exclusively triable by a court martial. Second, where a "civil
offence" is also an offence under the Army Act or is deemed to be an offence
under the Act, both the ordinary criminal court as well as court martial would have
EM
jurisdiction to try the person committing the offence. The third category (referred to
in Section 70) consists of the offences of murder, culpable homicide not amounting e
to murder or rape committed by a person subject to the Army Act against a person
who is not subject to military, naval or air force law. Subject to the three exceptions
G
which are set out in Section 70, such offences are not triable by a court martial but
by an ordinary criminal court. (Para 44)
D
Present case is a case involving concurrent jurisdiction

f
The offence in the present case does not fall in the category of those offences
JU
which are triable exclusively by a court martial (Sections 34 to 68 of the Army Act)
or those offences which cannot be tried by a court martial (under Section 70 of the
Army Act). The offence with which the respondent-accused is charged falls in the
2-
category where there is concurrent jurisdiction between the court martial and the
ordinary criminal court. Hence, it needs to be underscored that there is no inherent
g
lack of jurisdiction in the ordinary criminal court to conduct a trial in accordance
2
with the procedure envisaged in CrPC. (Para 45)

20
Relative scope and operation of Sections 69 and 70 of the Army Act

Section 69 provides when a person who is subject to the Act shall be deemed
to be guilty of an offence against the Act. Section 69 of the Army Act has been
made subject to the provisions of Section 70. When a provision of a statute is made h
subject to another provision by the legislature, this evinces an intent that where
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

the latter provision is attracted, the former would give way. Where the conditions
N
requisite for the application of Section 70 exist, Section 69 would give way to
a Section 70. Section 70 provides for the conditions in which a person who is subject
IO
to the Army Act shall not be deemed to be guilty of an offence under the Act and
shall not be tried by a court martial. In other words, Section 70 of the Army Act
provides for where the court martial would not exercise jurisdiction (unless the case
AT
falls under the exceptions to Section 70). (Para 46)
Conditions for application under Section 70 of the Army Act not attracted -
b Respondent would be subject to the provisions of the Army Act as provided by
L
Section 69
PI
When the provisions of Section 70 of the Army Act apply, a person who is
subject to the Army Act is not deemed to be guilty of an offence under the Act if
the ingredients of that provision are fulfilled. The ingredients of Section 70 are:
M
(i) The offence must be committed by a person subject to the Army Act;
C
(ii) The offence must be committed against a person who is not subject to
military, naval or air force law; and
O
(iii) The offence must be of murder, culpable homicide not amounting to
C
murder or rape.
Where these conditions apply, the person is not deemed to be guilty of an
T
d offence under the Act and is not to be tried by a court martial unless the three
exceptions which are carved out in clauses (a), (b) and (c) of Section 70 are
EN
attracted. (Para 47)

In the present case, the conditions requisite for the application under Section 70
do not stand attracted for the reason that the offence in the present case was
EM
committed against a person who was subject to military law and in any event, the
e offence was committed by the respondent while on active service in Sikkim. Since
Section 70 has no application, the respondent who is alleged to have committed
a "civil offence" in India would be subject to the provisions of the Army Act as
G
provided by Section 69. (Para 48)

Section 69 of the Army Act does not ipso jure oust the jurisdiction of the
D
ordinary criminal court

f
The crucial words of Section 69 however are that an accused "shall be deemed
JU
to be guilty of an offence against this Acf' and "if charged therewith under this
section, shall be liable to be tried by a court martial". The liability to be tried by
a court martial arises if the person is charged with an offence under "this section",
2-
that is, Section 69. The language of Section 69 is a clear indicator that it does not
ipso Jure oust the jurisdiction of the ordinary criminal court. (Para 48)
g
2
Where there exists concurrent jurisdiction in the court martial and in the
ordinary criminal court, primarily the discretion of conducting the court martial
20
in preference to a trial by the ordinary criminal court is entrusted to the

Designated Officer under Section 125. The Designated Officer has been conferred
with the discretion "to decide before which court the proceedings shall be
h instituted''. (Para 48)
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Conjunctive requirement of Section 125 of the Army Act
N
Moreover, Section 125 of the Army Act has a conjunctive requirement which
is amplified by the expression "and, if that officer decides that they should a
IO
be instituted before a court martial". Thus, the conjunctive requirement under
Section 125 is that the competent officer has the discretion to decide before which
AT
court the proceedings shall be instituted and if the officer exercises that discretion
to institute proceedings before a court martial, then the officer will direct that the
accused be detained in military custody. Section 125, in other words, not only
recognises that an element of discretion has been vested in the Designated Officer, b
L
but it also postulates that the Designated Officer should have decided that the
proceedings be instituted by the court martial in which event the court martial
PI
would take place. (Para 49)
Argument based on the absence of compliance with Rule 3 and Rule 4 of the
M
1978 Rules is misconceived
C
Significantly, in the present case there was no decision by the Designated
O
Officer to institute proceedings before a court martial in terms of Section 125 of
the Army Act. The argument based on the absence of compliance with Rule 3
C
and Rule 4 of the 1978 Rules is misconceived. The 1978 Rules, which have been
made pursuant to Section 126 of the Army Act and Section 475 CrPC, were
intended to obviate a conflict of jurisdiction where both the Army Authorities
T
under a court martial as well as the ordinary criminal court assert jurisdiction d
EN
to try a person for the same offence. Section 126(2) provides the modality for
the resolution of a conflict by the Central Government. The rules which have
been framed under Section 475 CrPC provide for the issuance of a notice by the
Magistrate to the competent officer in order to enable the competent officer to take
EM
a considered decision on whether the interest of the service would warrant a trial
by a court martial. But the present case does not involve a conflict in the exercise e
of jurisdiction in the first place. (Para 50)
Events before and after the completion of the investigation indicated that
G
Commanding Officer took a conscious decision that investigation and trial

should be conducted in accordance with the provisions of CrPC
D
The entire sequence of events both before and after the completion of
f
the investigation provides a clear indicator that the Commanding Officer took
JU
a conscious decision that the investigation and trial should be conducted in

accordance with the provisions of CrPC, namely:
(i) the handing over of the accused by the Army to the custody of the
2-
police;
(ii) the cooperation of the Commanding Officer, Colonel R.R. Nair, in g
2
meeting the requisitions of the investigating officer;

(iii) the recording of the statement of the informant under Section 164
20
CrPC;
(iv) the recording of the evidence of the Commanding Officer during the
course of the criminal trial, thereby indicating a clear intent that the trial would
proceed in terms of the jurisdiction of the ordinary criminal court. (Para 51) h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

The respondent-accused has relied on the decision of this Court in S.K.
N
Loraiya, (1972) 2 SCC 692, to urge that the provisions of Section 475 CrPC are
a mandatory, that is, the Magistrate must issue notice to the Commanding Officer to
IO
enable him to exercise the option of a trial by court martial or by a criminal court.
The submission is that since the procedure under this provision and Rule 4 of the
1978 Rules was not followed, the trial stands vitiated. The said submission is not
AT
persuasive. The decision in S.K. Loraiya case is distinguishable. S.K. Loraiya case
involved the framing of charges under the Prevention of Corruption Act, 1988 and
b IPC against a person subject to the Army Act. The judgment of the Court does not
L
contain any indication of a referral to the jurisdiction of the ordinary criminal court
by the Army Authorities, as in the present case. (Para 52)
PI
Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692: 1973 SCC (Cri) 1101,
distinguished
M
The High Court has found fault with the prosecution in not producing certified
C copies of the decision of the Army Authorities to refer to the jurisdiction of the
O
criminal court. But even keeping that decision aside, it is abundantly clear that far
from there being any decision by the competent officer regarding the institution of
C
proceedings before the court martial, there was in the present case an unequivocal
and clear acceptance of the jurisdiction of the ordinary criminal court coupled with
explicit cooperation with the Court of Session. (Para 53)
T
d Thus, it is held that the Sessions Judge was competent and there was no error in
the assumption or the exercise of the jurisdiction. The consequence of the decision
EN
of the High Court is to foist an obligation on the Army Authorities to hold a court
martial despite a clear and unequivocal submission to the jurisdiction of the Court
of Session. The respondent-accused shall be transferred from military custody to
EM
civil custody to face trial. (Para 60)

e State of Sikkim v. Jasbir Singh, 2019 SCC OnLine Sikk 23, reversed
The trial would proceed from the stage that was reached when the Sessions
Judge decided that there was an absence of jurisdiction. The trial shall be proceeded
G
with and be concluded in accordance with law. The appeal is allowed in the above
terms. (Para 62)
D
State of Sikkim v. Jasbi r Singh, 2019 SCC OnLine Sikk 23, reversed
f
JU
L. Criminal Procedure Code, 1973 - Ss. 475 and 461(1)- Cases involving
concurrent jurisdiction of court martial under Army Act and criminal courts
under CrPC - Case tried by Sessions Judge as it was found that competent
authority under the Army Act had (impliedly) exercised its discretion for trial
2-
to be conducted by regular criminal court and not court martial - S. 461(1)

g whether attracted
2
- Held, S. 461(1) not attracted as the same provides that if a Magistrate

20
has not been empowered by law to try an offender, then the proceedings would
be void - But in the present case, it is clear that the Sessions Judge had the
jurisdiction to try the offender - Thus, the provisions of Section 461(1) CrPC
have no application - See in detail Shortnotes A to D - Army Act, 1950,
h
Ss. 125, 126, 69, 3(ii) and 70 (Para 54)
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

M. Armed Forces - Army Act, 1950 - Ss. 125, 126, 69, 3(ii) and 70 -
N
Criminal trial - Concurrent jurisdiction of court martial under Army Act
and criminal courts under CrPC - Designated Officer/Commanding Officer a
IO
impliedly declining to exercise its discretion under S. 125 to conduct trial
in court martial - Inference therefrom that trial by regular criminal court
therefore became mandatory (see Shortnote A) - Plea that still trial should
AT
be conducted in court martial based on claim that the Army Act provided for
lesser punishment under S. 69 thereof than the Penal Code - Tenability of
- S. 69(a) of the Army Act, held, does not provide for lesser punishment b
L
- Word "and" in S. 69(a) indicates that a person who is otherwise liable for
PI
death or life imprisonment cannot be granted a lesser punishment under the
Army Act - In contrast, S. 69(b) uses the term "or" to indicate that for offences
that under IPC or any other law are less severe, the Army Authorities may
M
order a lesser punishment - Intention of the legislature was not to protect
and provide an advantageous position to a person subject to Army Act and C
undergoing a trial by a court martial - Had it been so, Army Act would not
O
have provided for concurrent jurisdiction of court martial and ordinary criminal
C
courts - Criminal Procedure Code, 1973, S. 475
Held:
It was urged that in case the trial is conducted by the ordinary criminal
T
court and not a court martial under the Army Act, the respondent would not be d
EN
able to avail the benefit of being awarded a lower punishment under the Army
Act. (Para 55)
Section 69(a) of the Army Act states if a person is convicted of a "civil offence"
which is punishable with death or transportation under the law in force, then he
EM
shall be liable to suffer any punishment, other than whipping, assigned for the
e
offence by the aforesaid law and such less punishment as is in this Act mentioned.
In contrast with Section 69(a), Section 69(b) provides that in all other offences, the
person convicted shall be liable to suffer the punishment assigned under the laws
G
in force or imprisonment for a term which may extend to seven years, or such less
punishment as provided in the Act. The words of the statute clearly indicate that
D
the legislature provided different punishments for serious offences which under the
f
law are punishable with death or life imprisonment, and for all other offences. In
JU
the case of the former, Section 69(a) provides that the court martial may convict
him and punish him with death or life imprisonment. In addition to this, the court
martial may also give a lesser punishment under the Army Act (such as cashiering,
2-
dismissal from service, etc. provided under Section 71). (Para 57)
The use of the word "and" in Section 69(a) clarifies the intent of the legislature, g
2
which is to ensure that the Army Authorities have sufficient discretion to grant a
punishment for serious offences, over and beyond what is permissible under IPC.
20
This, however, does not imply that a person who is otherwise liable for death or
life imprisonment can be granted a lesser punishment under the Army Act. In
contrast, Section 69( b) uses the term "or" to indicate that for offences that under
IPC or any other law are of less severity, the Army Authorities may order a lesser h
punishment. (Para 58)
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

If the argument of the respondent is accepted, it would imply that a person
N
who is convicted and punished by a court martial under the Army Act will be
a in an advantageous position than a person who, though subject to the Army Act,
IO
has been convicted by an ordinary criminal court. If that was the intent of the
legislature-that is to protect persons subject to the Army Act by awarding them
AT
lesser punishment even for serious offences-then the Act would not have provided
for concurrent jurisdiction of court martial and ordinary criminal courts at all.
Although the Army Act is a special law in this case as compared to IPC, if the
b statute in its text does not make any qualifications or exceptions to the general law,
L
it would be impermissible for the court to read such qualifications in the Act. Thus,
PI
the Court is unable to accept this submission of the respondent. (Para 59)
SS-D/68514/CR
M
c Vivek Kohli, Advocate General [Raghvendra Kumar, Ms Yeshi Rinchhen, Anand Kr.
Dubey and Narendra Kumar (Advocate-on-Record), Advocates], for the Appellant;
Aman Lekhi, Additional Solicitor General, Pradeep Kr. Dey, Senior Advocate [Ansar
Ahmad Chaudhary (Advocate-on-Record) and Arvind Kr. Sharma (Advocate-on- O
C
Record), Advocates], for the Respondents.

T
d l. 2019 SCC OnLine Sikk 23, State of Sikkim v. Jasbir

Singh (reversed) 298c, 300b, 30la, 322e
EN
2. (2016) 14 sec 536 : (2016) 14 sec 578 (2) : (2016) 4 sec (Cri)
508 : (2016) 4 SCC (Cri) 547 (2), Extra-Judicial Execution
Victim Families Assn. v. Union of India 314/, 315a, 316a, 3l6d-e
3. (2012) 6 sec 228: (2012) 3 sec (Cri) 88, Army Headquarters v. CBI 316a
EM
4. (2011) 15 sec 492: (2012) 4 sec (Cri) 630, S.K. Iha Commodore
e v. State of Kerala 3l4c-d
5. (1995) 1 SCC 90 : 1995 SCC (Cri) 202, Balbir Singh v. State of Punjab 315a
6. (1972) 2 sec 692 : 1973 sec (Cri) 1101, Delhi Special Police
G
Establishment v. S.K. Loraiya 313d, 314b, 319g, 3l9g-h,

320a
7. (1971) 3 SCC 86: 1971 SCC (Cri) 269, JoginderSingh v. State of
D
f H.P. 301/, 302e-f, 303!,

3llf-g, 3llg-h, 312b,
JU
3l2f-g, 313b-c
8. (1969) 2 SCR 177: AIR 1969 SC 414, Som Datt Datta v. Union of
India 303!, 310a, 310f-g,
2-
3lle, 3llf. 3llg-h,

313b, 314e, 314g, 317c
g 9. (1964) 5 SCR 931 : AIR 1965 SC 247, Ram Sarup v. Union of
2
India 303!, 308d-e, 308!,

309d-e, 309f-g, 3l2a-b,
20
314g, 317b
10. (1962) 2 SCR 195 : AIR 1961 SC 1762, E.G. Barsay v. State of Bombay 3l2a-b
h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
DR D.Y. CHANDRACHUD, J.-
a
IO
INDEX
j Sl. Nos. Headings \ Page Nos.
AT
. A. \Facts .
..................................................................................................................................................
298 .
L. ....~:...... .J Submissions ............................................................................1.......301 .......1 b

L.....s::.-........L~~.~~?'.~~~ ....................................................................................1-......~9:: ....... J
L
P..:...... JConclusion...............................................................................J. ......~~:'.: ....... j
PI
1......
A. Facts
M
1. This appeal arises from a judgment 1 of a Single Judge of the High Court
of Sikkim. While exercising the revisional jurisdiction under Sections 397 and C
401 read with Section 482 of the Code of Criminal Procedure, 1973 ("CrPC"),
the High Court has upheld the order of the Sessions Judge, Special Division- O
C
11, Sikkim, at Gangtok, directing the Chief Judicial Magistrate, East Sikkim
to furnish a written notice to the Commanding Officer of the unit of the
respondent-accused and deliver him for trial by a court martial.
T
d
2. On 14-12-2014, at about 19:40 hrs, Lance Naik Rajesh Kumar of 17
EN
Mountain Division of the Indian Army lodged a first information report 2 before
the Station House Officer at Sadar Police Station in Gangtok stating inter
alia that on the relevant date at around 6.00 p.m., when he returned to his
barracks, he struck up a conversation with two riflemen for a short while.
EM
After that, as he was freshening up, between 6.30 p.m. and 6.45 p.m. he heard e
sounds of gunshots inside the barracks. He immediately rushed to the barracks
and witnessed the respondent-accused, Lance Naik Jasbir Singh, opening fire
on a rifleman, Balbir Singh, with an INSAS rifle. The informant pulled the
G
respondent-accused out of the barracks along with the rifle and simultaneously
raised an alarm for help, on which Signalmen Ujjal Sinha and C.H. Anil arrived
D
at the spot. The accused, in the meanwhile, escaped from the clutches of the f
JU
informant. The informant then immediately rang up the medical room and
returned to check on the injured rifleman, by which time he suspected that the
he was already dead. FIR No. 409 of 2014 was registered on 14-12-2014 at
Sadar Police Station, Gangtok.
2-
3. On 15-12-2014, the custody of the accused was handed over by the

competent military authority to the investigating officer ("IO") and an arrest/
g
2
court surrender memo was issued by the Sub-Inspector of Police at the Sardar
20
Police Station. While conducting the investigation, the IO issued a requisition

to the Commanding Officer of the 17 Mountain Division Pro Unit, informing
him that an FIR under Section 302 of the Penal Code, 1860 ("IPC") had been
h
l State of Sikkim v. Jasbir Singh, 2019 SCC 0nLine Sikk 23
2 FIR No. 409 of2014
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
STATE OF SIKKIM v. JASBIR SINGH (Dr D.Y. Chandrachud, J.) 299

registered against the respondent-accused. The IO requested certain documents
N
for the purpose of investigation, namely:
a
IO
(i) The order of appointment of the accused;
(ii) Duty Deployment Chart of Sunday, 14-12-2014;
(iii) Weapon Issue Register of Sunday, 14-12-2014; and
AT
(iv) Records of any previous offence.
4. In response to the above communication, Colonel R.R. Nair, the
b
L
Commanding Officer ("CO") of the 17 Mountain Division Pro Unit furnished
the following documents by his letter dated 27-12-2014:
PI
(i) Copy of the posting order in respect of No. 778224F L/Nk(MP)
Jasbir Singh;
M
(ii) CTC of Pilot duty detailment extract as on 14-12-2014;
C (iii) CTC of Weapon Issue Register, where he informed the IO that
the respondent-accused had withdrawn the weapon for piloting duty on
14-12-2014. After completion of the duty however, while committing the O
C
offence, the respondent had unauthorisedly accessed the weapon; and
(iv) Record of previous offences.
T
d A copy of this communication was forwarded by the CO to the Headquarters

of the 17 Mountain Division Pro Unit.
EN
5. On 12-1-2015, the IO filed an application before the Chief Judicial

Magistrate (East & North), for recording the statement of the informant
(Rifleman Rajesh Kumar). On 13-2-2015, the IO submitted a charge-sheet after
the completion of investigation against the respondent-accused for offences
EM
e punishable under Sections 302 and 308 IPC. An order of committal was passed
by the Chief Judicial Magistrate to the Principal Sessions Judge. On 28-2-2015,
a case was registered as Sessions Trial Case No. 03/2015. On 15-7-2015, the
Sessions Judge framed charges against the respondent under Sections 302 and
G
308 IPC and under Section 25(1-B)(a) of the Arms Act, 1959 ("the Arms
Act"). On 18-11-2015, the Sessions Judge allowed an application filed under
D
f Section 216 CrPC for alteration of the charge under Section 25(1-B)(a) to
Section 27(3) of the Arms Act.
JU
6. During the course of the trial, on 18-6-2016, the Sessions Judge directed
the issuance of fresh summons to Colonel R.R. Nair returnable on 7-7-2016.
On 7-7-2016, the Sessions Judge was informed that a letter had been received
2-
from the Army Authorities stating that Colonel R.R. Nair was undergoing a
g training course and was on leave up to 24-7-2016. During the course of the trial,
2
the CO, Colonel R.R. Nair was examined as PW 19 on 28-7-2016. A fter the
recording of evidence was complete, the Sessions Judge heard the counsel for
20
the parties for final arguments. During the course of the hearing, counsel for the
accused inter alia contended that as the respondent-accused and the deceased
were both governed by the Army Act, 1950 ("the Army Act") when the incident
h took place, in view of Section 69 of the Army Act, the accuse d could be tried
only by a general court martial and not by the Sessions Court.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

7. Having due regard to the provisions of Section 69 of the Army Act,
N
the Sessions Judge by his order dated 9-3-2017 upheld the objection of the
respondent-accused by concluding that given the nature of offence, the accused a
IO
ought to have been tried by court martial alone and that the Sessions Court had
no jurisdiction. With this conclusion, the Chief Judicial Magistrate was directed
to give a written notice to the CO of the respondent's unit or the competent
AT
military authority for his trial by a court martial.
8. The order of the Sessions Court was challenged in revision. The Sikkim
High Court in its judgment dated 6-4-2019 1 adverted to the provisions of b
L
Sections 69 and 70 of the Army Act. The High Court held that the procedure
prescribed under Sections 125 and 126 of the Army Act, Section 475 CrPC,
PI
and Rules 3, 4 and 5 of the Criminal Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1978 ("the 1978 Rules") had not been observed. While
M
issuing notice to the Army Authorities, the High Court held that both the
respondent and the deceased were subject to the Army Act. The procedure
C
mandated by the 1978 Rules had to be followed and the submission that the
O
Army authority had exercised their discretion to try the accused in the criminal
court was held to bear no weight on the ground that no documentary evidence
C
existed to prove the exercise of the discretion. Moreover, the mere handing over
of the accused to the civil authority was held not to be proof of the exercise of
the option. While a minute-sheet was produced before the High Court where
T
the General Officer Commanding ("GOC") had accepted the recommendation d

EN
that the accused be tried by the Sessions Court, the High Court rejected this
on the ground that:
(i) the document was not furnished before the Sessions Judge; and
(ii) the document which was produced was a photocopy and not a
EM
certified copy. e
The revision petition was dismissed.
9. Pursuant to the impugned judgment of the High Court, the GOC of
G
17 Mountain Division Pro Unit, Maj. General. R.C. Tiwari, by an order

dated 22-4-2019, exercised his powers under Section 125 of the Army Act
and decided that the proceedings against the respondent-accused be instituted
D
before the criminal court and that he be detained in civil custody. An application f
was filed before the Chief Judicial Magistrate to convey the decision of the
JU
GOC. By an order dated 22-4-2019, the Chief Judicial Magistrate rejected

the application of the GOC in view of the order of the Sessions Judge
dated 9-3-2017, which required that the accused be delivered to the competent
2-
military authority. Since this order had been upheld by the High Court, the
Chief Judicial Magistrate directed the Superintendent of Prisons, Central Jail, g
2
Rongyek to hand over the respondent to the competent military authority. The
respondent was handed over to the Army and has been in military custody since
20
23-4-2019. Meanwhile, the respondent retired from service on 31-3-2020. On

the same day, the Army Authorities passed an order for extension of the time
of detention.
h
l State of Sikkim v. Jasbir Singh, 2019 SCC OnLine Sikk 23
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

B. Submissions
N
10. The State of Sikkim is in appeal against the judgment 1 of the High
a Court. The State has been represented by Mr Vivek Kohli, learned Advocate
IO
General. The challenge made by the State of Sikkim has been supported by
the Union of India appearing as a re spondent through Mr Aman Lekhi, learned
Additional Solicitor General. The arguments on behalf of the respondent were
AT
made by Mr Pradeep Kumar Dey, learned Senior Counsel.
11. Mr Vivek Kohli, Advocate General appearing on behalf of the appellant
b State made the following submissions:
L
11.1. The High Court and the Sessions Court have both failed to appreciate
PI
that the criminal courts and court martial have concurrent jurisdiction to try a
case, depending on the "discretion" exercised under Section 125 of the Army
Act. The "discretion" to decide whether or not the accused is to be tried by
M
court martial, is solely with the Commanding Officer.
c 11.2. Under Section 125, one of the following three situations may arise:
(a) The Commanding Officer may exercise his discretion and
affirmatively choose to try the accused through court martial; O
C
(b) The Commanding Officer may exercise his discretion and may not
choose a trial through court martial; and
T
d (c) There may be no overt exercise of discretion by the Commanding

Officer, in which event his conduct should determine whether there was an
EN
exercise of discretion.
11.3. When the Commanding Officer exercises discretion in terms of the
first two situations noted above, the procedure under Section 126 of the Army
EM
Act and Rules 3, 4 and 5 of the 1978 Rules becomes applicable.

e 11.4. However, when the Commanding Officer does not exercise his
discretion as detailed in the last situation, the absence of any objection by the
Army Authorities to the trial by the criminal court can be regarded as a tacit
G
approval of the Commanding Officer for the accused to be tried by the criminal
court.
11.S. As held by this Court in Joginde r Singh v. State of H.P. 3 , if the
D
f Designated Officer does not exercise his discretion to institute proceedings

before a court martial, then the Army Act would not come in the way of the
JU
criminal court exercising its ordinary jurisdiction in the manner provided by

law.
11.6. On the basis of the above premises, in the present case, the discretion
2-
has been exercised by the Commanding Officer by recommending that the trial
g can be conducted by the "civil court" (i.e. the criminal court) which, in the
2
present case is, the Sessions Judge , Special Division-II, Sikkim, Gangtok. The
following circumstances indicate the exercise of this discretion:
20
(a) The handing over of the accused by the Commanding Officer

to the IO on 15-12-2014, immediately after the incident took place on
14-12-2014;
h
l State of Sikkim v. Jasbi r Singh , 2019 SCC OnLine Sikk: 23
3 (1971) 3 sec 86: 1911 sec (Cri) 269
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

(b) The letter dated 27-12-2014 by the Commanding Officer in
N
response to the requisition made by the IO (by his letter dated 26-12-2014)
for furnishing of documents for conducting the investigation; a
IO
(c) The recording of the statement under Section 164 CrPC on
12-1-2015 of the informant Lance Naik Rajesh Kumar;
(d) The examination on 28-7-2015 of the Commanding Officer
AT
(Colonel R.R. Nair) during the course of the trial, together with the
examination of other Army officials;
(e) The participation, right from the institution of the FIR till the b
L
investigation and throughout the trial, by the Commanding Officer and the
Army in the proceedings before the criminal court. Thus, the trial has to be
PI
conducted by the criminal court and not the court martial;
(f) On 16-1-2015, the Army Authorities recommended that the case
M
of the accused be tried by the civil court (criminal court). On 8-3-2015,
this recommendation culminated into the Commanding Officer exercising C
"discretion" by deciding that the case of the accused should be tried by
O
the criminal court. On 22-4-2019, the Commanding Officer exercised his
discretion under Section 125 of the Army Act read with Rule 9 of the 1978
C
Rules by addressing a communication to the Chief Judicial Magistrate,
East Sikkim (Gangtok), intimating the decision that the trial of the accused
should be conducted by the criminal court.
T
d
11.7. The order of the Sessions Judge dated 9-3-2017, turned back the clock
EN
at the stage of final arguments. The High Court has failed to consider that under
Section 122 of the Army Act, the period of limitation to commence a trial by
court martial is three years from the date of the offence. In the present case,
the offence took place on 14-12-2014 and immediate Iy thereafter proceedings
EM
were initiated before the criminal court.

12. Mr Aman Lekhi, Additional Solicitor General, has supported the e
submissions of the State of Sikkim and urged the following propositions:
12.1. The controversy in the present case is covered by the decision of this
G
Court in Joginder Singh v. State of H.P. 3 , where it was held that the Army
authority was aware of the offence committed and decided to hand over the
D
custody of the accused to the police and not to hold a court martial.
12.2. There are three categories of offences, namely: f
JU
(a) Offences which are created by the Army Act, such as those provided
under Sections 34, 35, 36 and 37, which are exclusively triable by a court
martial;
2-
(b) Offences which are committed under Section 70 of the Army Act
which are to be tried by a criminal court subject to exceptions; and
g
(c) Offences involving the exercise of jurisdiction by the court martial
2
and by an ordinary criminal court (Section 69), where a court martial can
20
be convened if a decision in terms of Section 125 of the Army Act is taken.

12.3. In the present case, the Army Authorities had taken control of the
accused and handed him over to the IO for trial by criminal court. This clearly
establishes that the Army did not want to try the accused by court martial. h
3 (1971) 3 sec 86 : 1971 sec (Cri) 269
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

13. Mr Pradeep Kumar Dey, Senior Counsel appearing on behalf of the
N
re spondent-accused, has supported the decision of the High Court and made
a the following submissions:
IO
13.1. In view of the provisions of Sections 69 and 70 of the Army Act, a trial
is possible only before the court martial and not by an ordinary criminal court.
13.2. Sections 125 and 126 operate in different spheres. Section 125 relates
AT
to the discretion of the Army Authorities to the effect that when a criminal
court and a court martial both have jurisdiction in respect of an offence, it shall
b be the discretion of the Commanding Officer to decide before which court the
L
proceedings shall be instituted.
13.3. Section 126 deals with the power of the criminal court to require
PI
delivery of an offender. When a criminal court having jurisdiction is of opinion
that proceedings shall be instituted before itself in respect of any alleged
M
offence, it may, by written notice, require the officer referred to in Section 125,
C
at his option, to either deliver the offender to the nearest Magistrate to be
proceeded against according to law, or to postpone proceedings pending a
reference to the Central Government. In every such case the said officer shall
either deliver the offender in compliance with the requisition, or shall forthwith O
C
refer the question as to the court before which the proceedings are to be
instituted for the determination by the Central Government, whose order upon
such reference shall be final.
T
d
13.4. Section 475 CrPC and Rules 3, 4 and 5 of the 1978 Rules indicate
EN
that in this case, a trial is only permissible before the court martial.
13.5. It is a settled principle of law that where a statute provides that a
particular thing should be done in the manner prescribed by law and if it is not
done in the same manner, failure to comply with this mandatory requirement
EM
would lead to severe consequences and any action taken would be a nullity. It
e
will be a mockery of the provisions of Section 461 (!) CrPC and other provisions
of the law and the trial stands vitiated.
13.6. The trial before the ordinary criminal court will cause serious
G
prejudice to the accused and will result in a failure o f justice. The entire trial
before the ordinary criminal court is null and void as it lacks jurisdiction.
D
f
13.7. The decision in Joginder Singh 3 is contrary to the judgments of the
Constitution Bench in Som Datt Datta v. Union of lndia 4 and Ram Sarup v.
JU
Union of India 5 •
13.8. The crucial question is the stage at which the discretion has to be
exercised under Section 125. The decision has to be taken after the filing of the
2-
charge-sheet and before taking cogniz ance. However, in the present case, the
g decision was taken by the Army authority to opt for a trial before the ordinary
criminal court before filing the charge-sheet, which is clear from the cross-
2
examination of the Commanding Officer. Since the decision was taken before
20
the submission of the charge-sheet, it is immaterial.
h 3 Joginder S ingh V. State of H.P. , (1971) 3 sec 86: 1971 sec (Cri) 269
4 (1969) 2 SCR 177 : AIR 1969 SC 414
5 (1964) 5 SCR 931 : AIR 1965 SC 247
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

13.9. The Magistrate was required under Rules 3 and 4 of the 1978 Rules to
N
issue a notice to the Commanding Officer and to require him to take a decision
under Section 125 of the Army Act. The Magistrate, however, committed the a
IO
case to the Sessions Court on the same day as the filing of the charge-sheet, as a
consequence of which there was non-compliance of the provisions of Rules 3,
4 and 5 of the 1978 Rules. In view of the well-settled position of law, the
AT
discretion under Section 125 has to be exercised by the Commanding Officer
only after filing of the charge-sheet.
13.10. The 1978 Rules have been framed in pursuance of the powers b
L
conferred under Section 475 CrPC and the mandate of issuing a notice is
provided under Section 126 of the Army Act.
PI
13.11. The respondent can still be tried by a court martial under Section 123
of the Army Act, having regard to the fact that his retirement was due on
M
31-3-2020.
14. The rival submissions shall now be considered. C
C.Analysis
15. Chapter VI of the Army Act deals with offences. The expression "civilO
C
offences" is defined in Section 3(ii) to mean "an offence which is triable by a
criminal court". Section 69 6 deals with civil offences. Section 70 7 deals with
civil offences which are not triable by a court martial.
T
d
EN
6 "69. Civil offences .-Subject to the provisions of Section 70, any person subject
EM
to this Act who at any place in or beyond India, commits any civil offence, shall be
deemed to be guilty of an offence against this Act and, if charged therewith under e
this section, shall be liable to be tried by a court martial and, on conviction, be
punishable as follows, that is to say-
G
(a) if the offence is one which would be punishable under any law in
force in India with death or with transportation, he shall be liable to suffer any
D
punishment, other than whipping, assigned for the offence, by the aforesaid
law and such less punishment as is in this Act mentioned; and f
JU
(b) in any other case, he shall be liable to suffer any punishment, other than
whipping, assigned for the offence by the law in force in India, or imprisonment
for a term which may extend to seven years, or such less punishment as is in
this Act mentioned."
2-
7 "70. Civil offences not triable by court martial.-A person subject to this Act who
commits an offence of murder against a person not subject to military, naval or air
g
force law, or of culpable homicide not amounting to murder against such a person
2
or of rape in relation to such a person, shall not be deemed to be guilty of an offence

20
against this Act and shall not be tried by a court martial, unless he commits any of
the said offences-
(a) while on active service, or
(b) at any place outside India, or
h
(c) at a frontier post specified by the Central Government by notification
in this behalf."
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

16. Section 125 8 deals with a situation where both a criminal court and a
N
court martial have jurisdiction in respect of an offence. In such a case, it is the
a discretion of the Commanding Officer of the unit where the accused person
IO
is serving to decide before which court the proceedings shall be instituted,
and if that officer decides that the proceedings should be instituted before a
court martial, he may direct that the accused be retained in military custody.
AT
Section 125, in other words, confers the discretion on the Designated Officer to
decide whether the accused should be tried by a court martial or by the regular
b
criminal court.
L
17. Section 126, as the marginal note indicates, deals with the powers of the
criminal court "to require delivery of offender". Section 126 provides that when
PI
a criminal court having jurisdiction is of the opinion that the proceedings should
be instituted before itself in respect of "any alleged offence", it may by written
M
notice require the officer referred to in Section 125 to either deliver over the
offender to the nearest Magistrate to be dealt with in accordance with law or in
C
the alternative to postpone the proceedings, pending a reference to the Central
Government. Under Section 126, the Designated Officer has two courses of
action open: (i) deliver the offender in compliance with the requisition of O
C
the criminal court; or (ii) refer the question to the Central Government for
determining the court before which the proceedings are to be instituted. The
determination by the Central Government is to be final.
T
d
18. Sections 125 and 126 operate in different domains. Section 125
EN
envisages that there is a discretion in the Designated Officer to determine as

to whether the accused should be tried by a court martial or by the competent
criminal court. Section 126 on the other hand recognises that the criminal court
may require the officer designated in Section 125 by a written notice, to deliver
EM
the offender to the nearest Magistrate to be proceeded with in accordance with

e law. Upon the issuance of such a written notice, the Designated Officer has
the discretion either to accept the decision of the criminal court by delivering
the offender or the officer may decide to refer the matter to the Central
G
Government for its decision. Section 126 explicitly recognises that in the event
of a difference of view between the officer designated under Section 125 and
the criminal court under Section 126, the matter has to be referred to the
D
f Central Government for resolution, finality being attached to the decision of the
Central Government. Section 126, in other words, has provided the modalities
JU
for resolving a situation where a criminal court decides to proceed against the
accused, while on the other hand the Designated Officer under Section 125
decides to have the accused tried by a court martial. It is to resolve a situation
2-
of this nature that a reference is envisaged to the Central Government.

g
2
8 "125. Choice between criminal court and court martial.-When a criminal court
20
and a court martial have each jurisdiction in respect of an offence, it shall be in the
discretion of the officer commanding the army, army corps, division or independent
brigade in which the accused person is serving or such other officer as may be
h prescribed to decide before which court the proceedings shall be instituted, and, if
that officer decides that they should be instituted before a court martial, to direct
that the accused person shall be detained in military custody."
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

19. Section 475 9 CrPC has empowered the Central Government to make
N
rules consistent with CrPC and the Army Act, the Navy Act, 1957 and the Air
Force Act, 1950 and any other law relating to the Armed Forces of the Union, a
IO
as regards the cases in which persons subject to military, naval or air force
law or such other law, shall be tried by a court to which CrPC applies or by a
AT
court martial. The first part of Section 4 7 5(1) recognises the rule-making power
of the Central Government. The latter part of Section 475(1) contemplates an
eventuality in which a person is brought before a Magistrate and is charged with
offences for which that person is liable to be tried either by a court to which b
L
CrPC applies or by a court martial. In such a situation, the Magistrate is to have
PI
regard to the rules and shall in proper cases deliver the person together with a
statement of the offences of which he is accused to the Commanding Officer
of the unit of the nearest military, naval or air force station, for the purpose of
M
being tried by a court martial.
20. In exercise of the powers which have been conferred by Section 475 c
CrPC, the Central Government framed the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 which were notified and published O
C
in the Gazette of India on 26-4-1952. These Rules were superseded by the
T
d
EN
9 "475. Delivery to Commanding Officers of persons liable to be tried by court

martial.-(l) The Central Government may make rules consistent with this Code
and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the
Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces
EM
of the Union, for the time being in force, as to cases in which persons subject to
military, naval or air force law, or such other law, shall be tried by a court to which e
this Code applies or by a court martial, and when any person is brought before a
Magistrate and charged with an offence for which he is liable to be tried either by a
Court to which this Code applies or by a court martial, such Magistrate shall have
G
regard to such rules, and shall in proper cases deliver him, together with a statement
of the offence of which he is accused, to the Commanding Officer of the unit to
D
which he belongs, or to the Commanding Officer of the nearest military, naval or

f
air force station, as the case may be, for purpose of being tried by a court martial.
JU
Explanation.-In this section-

(a) "unit" includes a regiment, corps, ship, detachment, group, battalion
or company.
2-
(b) "court martial" includes any tribunal with the powers similar to those
of a court martial constituted under the relevant law applicable to the Armed g
Forces of the Union.
2
(2) Every Magistrate shall, on receiving a written application for that purpose by
20
the Commanding Officer of any unit or body of soldiers, sailors or airmen stationed
or employed-at any such place, use his utmost endeavours to apprehend and secure
any person accused of such offence.
(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail h
situate within the State be brought before a court martial for trial or to be examined
touching any matter pending before the court martial."
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978.
N
Rules 3, 4 and 5 of the 1978 Rules are extracted below:
a
IO
"3. Where a person subject to military, naval or air force law, or any other
law relating to the Armed Forces of the Union for the time being in force is
brought before a Magistrate and charged with an offence for which he is also
AT
liable to be tried by a court martial, such Magistrate shall not proceed to try
such person or to commit the case to the Court of Session, unless-
(a) he is moved thereto by a competent military, naval or air force
b
L
authority; or
(b) he is of opinion, for reasons to be recorded, that he should so
PI
proceed or to commit without being moved thereto by such authority.
4. Before proceeding under clause (b) of Rule 3 , the Magistrate shall give
M
a written notice to the Commanding Officer or the competent military, naval
C or air force authority, as the case may be, of the accused and until the expiry
O
of a period of fifteen days from the date of service of the notice he shall not-
(a) convict or acquit the accused under Section 252, sub-sections (1)
C
and (2) of Section 255 sub-section (1) of Section 256 or Section 257 of
the Criminal Procedure Code, 1973 (2 of 1974), or hear him in his defence
under Section 254 of the said Code; or
T
d (b) frame in writing a charge against the accused under Section 240
or sub-section (1) of Section 246 of the said Code; or
EN
(c) make an order committing the accused for trial to the Court of
Session under Section 209 of the said Code; or
(d) make over the case for inquiry or trial under Section 192 of the
EM
said Code.
e
5. Where a Magistrate has been moved by the competent military, naval
or air force authority, as the case may be, under clause (a) of Rule 3, and
the Commanding Officer of the accused or the competent military, naval or
G
air force authority, as the case may be, subsequently gives notice to such
Magistrate that, in the opinion of such officer or authority, the accused should
D
be tried by a court martial, such Magistrate if he has not taken any action
f or made any order referred to in clauses (a), (b), (c) or (d) of Rule 4, before
JU
receiving the notice shall stay the proceedings and, if the accused is in his
power or under his control, shall deliver him together with the statement
referred to in sub-section (1) of Section 475 of the said Code to the officer
specified in the said sub-section."
2-
g
21. Under Rule 3 , where a person who is subject to military, naval or air
force law, (or any other law relating to the Armed Forces of the Union) is
2
brought before a Magistrate and is charged with an offence liable to be tried by

20
a court martial, the Magistrate cannot proceed to try such a person or commit
the case to the Court of Session, except in one of the two eventualities specified
in clauses (a) and (b ). Clause (a) envisages a situation where the Magistrate
is moved by a competent military, naval, or air force authority. Clause (b)
h
envisages a situation where the Magistrate is of the opinion that the person
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

should be tried by him or that the case should be committed to the Court of
N
Session.
22. Rule 4(c) provides that before proceeding under clause (b) of Rule 3, a
IO
the Magistrate has to give a written notice to the Commanding Officer or
the competent authority of the accused and until the expiry of fifteen days,
AT
the Magistrate cannot make an order committing the accused for trial to the
Court of Session under Section 209 CrPC. Rule 5 deals with a situation where
the Magistrate has been moved by the competent military, naval or air force
authority under clause (a) of Rule 3 and subsequently, the Commanding Officer b
L
or competent authority gives notice to the Magistrate that in the opinion of the
PI
officer, the accused should be tried by a court martial.
23. The purpose underlying Rule 3 and Rule 4 is that unless the Magistrate
has been moved by a competent military, naval or air force authority, the
M
Magistrate must furnish a written notice to the Commanding Officer or the
competent authority, if he is of the opinion that either the trial should proceed C
before the Magistrate or an order of committal of the case to the Court of
O
Session should be passed against the accused held liable to be tried by a court
C
martial. The object and purpose of giving the notice is to facilitate an exercise of
discretion by the Designated Officer to determine whether the accused should
be tried by a court martial or in the alternative, should be proceeded with before
T
the ordinary criminal court. The above provisions have been interpreted in d
several decisions of this Court.
EN
24. In Ram Sarup v. Union oflndia 5 , the petitioner, who was a sepoy subject
to the Army Act, was charged under Section 69 of the Army Act read with
Section 302 IPC. The petitioner was tried by the general court martial for having
EM
shot dead two sepoys, and was found guilty and sentenced to death. The Central
e
Government confirmed the findings and the sentence awarded by the general
court martial. The petitioner inter alia challenged the provisions of Section 125
of the Army Act on the ground that they were in violation of Article 14 of the
G
Constitution.
25. While dealing with the constitutional challenge, Raghubar Dayal, J.,
D
speaking for the Constitution Bench observed as follows: (Ram Sarup case 5 , f
AIR p. 252, para 18)
JU
"18. Section 69 provides for the punishment which can be imposed

on a person tried for committing any civil offence at any place in or
beyond India, if charged under Section 69 and convicted by a court martial.
2-
Section 70 provides for certain persons who cannot be tried by court

martial, except in certain circumstances. Such persons are those who g
2
commit an offence of murder, culpable homicide not amounting to murder

or of rape, against a person not subject to Military, Naval or Air Force law.
20
They can be tried by court martial of any of those three offences if the
offence is committed while on active service or at any place outside India
or at a frontier post specified by the Central Government by notification
h
5 (1964) 5 SCR 931 : AIR 1965 SC 247
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

in that behalf. This much therefore is clear that persons committing other
N
offences over which both the court martial and ordinary criminal courts
a have jurisdiction can and must be tried by courts martial if the offences are
IO
committed while the accused be on active service or at any place outside
India or at a frontier post. This indication of the circumstances in which
it would be better exercise of discretion to have a trial by court martial, is
AT
an index as to what considerations should guide the decision of the officer
concerned about the trial being by a court martial or by an ordinary court.
b Such considerations can be based on grounds of maintenance of discipline
L
in the army, the persons against whom the offences are committed and
the nature of the offences. It may be considered better for the purpose
PI
of discipline that offences which are not of a serious type be ordinarily
tried by a court martial, which is empowered under Section 69 to award a
M
punishment provided by the ordinary law and also such less punishment
c as be mentioned in the Act. Chapter VII mentions the various punishments
which can be awarded by court martial and Section 72 provides that subject
to the provisions of the Act a court martial may, on convicting a person ofO
C
any of the offences specified in Sections 31 to 68 inclusive, award either the
particular punishment with which the offence is stated in the said sections
to be punishable or in lieu thereof any one of the punishments lower in the
T
d scale set out in Section 71, regard being had to the nature and degree of
the offence."
EN
26. In the above extract, the Court dealt with the considerations which
would ultimately weigh in determining as to whether a trial by a court martial
should be convened. In that backdrop, the Court noted: (Ram Sarup cases, AIR
EM
p. 253, para 22)

e
"22. In short, it is clear that there could be a variety of circumstances
which may influence the decision as to whether the offender be tried by a
court martial or by an ordinary criminal court, and therefore it becomes
G
inevitable that the discretion to make the choice as to which Court should
try the accused be left to responsible military officers under whom the
D
accused be serving. Those officers are to be guided by considerations of the

f
exigencies of the service, maintenance of discipline in the army, speedier
JU
trial, the nature of the offence and the person against whom the offence is
committed." (emphasis supplied)
27. Hence in the view of the Constitution Bench in Ram Sarup cases,
2-
there are a wide variety of circumstances which may be relevant in deciding

g whether an accused should be tried by a court martial or by an ordinary
criminal court. Due to this, the choice of making this decision is entrusted to
2
the military officer under whom the accused was serving. The Court also noted
20
that under Section 549 of the Code of Criminal Procedure, 1898 (equivalent
to Section 475 CrPC), the final choice about the forum of the trial of a person
accused of a "civil offence" rests with the Central Government, whenever there
h is a difference of opinion between a criminal court and the military authority.
S Ram Sarup v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

28. In Som Datt Datta v. Union of lndia 4 , the Constitution Bench
N
considered a challenge under Article 32 to the proceedings before a general
court martial, pursuant to which the petitioner had been found guilty of charges a
IO
under Section 304 and Section 149 IPC and sentenced to rigorous imprisonment
of six years and cashiering. The first question which was considered by the
Constitution Bench was whether the court martial had jurisdiction to try
AT
and convict the petitioner for the offences. V. Ramaswami, J., speaking for
the Constitution Bench, elaborated that under Chapter VI of the Army Act,
Sections 34 to 68 define the offences against the Act which are triable by a b
L
court martial. After alluding to Sections 69 and 70, the Court observed: (AIR
p. 417, para 4)
PI
"4 . ... Shortly stated, under this Chapter there are three categories of
offences, namely, (1) offences committed by a person subject to the Act
M
triable by a court martial in respect whereof specific punishments have
been assigned; (2) civil offences committed by the said person at any place C
in or beyond India, but deemed to be offences committed under the Act
O
and, if charged under Section 69 of the Act, triable by a court martial; and
C
(3) offences of murder and culpable homicide not amounting to murder or
rape committed by a person subject to the Act against a person not subject
to the military law. Subject to a few exceptions, they are not triable by
T
court martial, but are triable only by ordinary criminal courts. The legal d
position therefore is that, when an offence is for the first time created by the
EN
Army Act, such as those created by Sections 34, 35, 36, 37, etc. it would
be exclusively triable by a court martial; but where a civil offence is also
an offence under the Act or deemed to be an offence under the Act, both an
ordinary criminal court as well as a court martial would have jurisdiction
EM
to try the person committing the offence. Such a situation is visualised and e
provision is made for resolving the conflict under Sections 125 and 126 of
the Army Act."
29. The Court noted that where a civil offence is also an offence under
G
the Army Act or is deemed to be an offence under the Act, both the ordinary
criminal court as well as the court martial have jurisdiction to try the accused
D
committing the offence. In that case, the petitioner argued that the Commanding f
Officer had not furnished a notice under Rule 5 to the Magistrate that the
JU
petitioner should be tried by a court martial and hence the criminal court alone
had jurisdiction. This submission was held to be misconceived for the following
reasons: (Som Datt Datta case 4 , AIR pp. 419-20, para 7)
2-
"7. It was argued on behalf of the petitioner that there was no notice
given by the Commanding Officer to the Magistrate under Rule 5 that g
2
the petitioner should be tried by a court martial and hence the criminal
court alone had jurisdiction under Rule 3 to conduct proceedings against
20
the petitioner for the offences charged. In our opinion, the argument on
behalf of the petitioner is misconceived. The Rules framed by the Central
Government under Section 549 of the Criminal Procedure Code apply
h
4 (1969)2SCR177:AIR1969SC414
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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STATE OF SIKKIM v. JASBIR SINGH ( Dr D. Y. Chandrachud, J.) 311

to a case where the proceedings against the petitioner have already been
N
instituted in an ordinary criminal court having jurisdiction to try the matter
a and not at a stage where such proceedings have not been instituted. It is
IO
clear from the affidavits filed in the present case that the petitioner was not
brought before the Magistrate and charged with the offences for which he
was liable to be tried by the court martial within the meaning of Rule 3 and
AT
so the situation contemplated by Rule 5 has not arisen and the requirements
of that Rule are therefore not attracted. It was pointed out by Mr Dutta that
after the first information report was lodged at Pallavaran Police Station
b
L
a copy thereof should have been sent to the Magistrate. But that does not
mean that the petitioner "was brought before the Magistrate and charged
PI
with the offences" within the meaning of Rule 3. It is manifest that Rule 3
only applies to a case where the police had completed investigation and
M
the accused is brought before the Magistrate after submission of a charge-
sheet. The provisions of this Rule cannot be invoked in a case where the
C
police had merely started investigation against a person subject to military,
naval or air force law. With regard to the holding of the inquest of the
dead body of Shri Bishwanath Singh it was pointed out by the Attorney- O
C
General that Regulation 527 of the Defence Services Regulations has itself
provided that in cases of unnatural death that is death due to suicide,
violence or under suspicious circumstances information should be given
T
d under Section 174 of the Criminal Procedure Code to the civil authorities,
EN
and the conduct of Maj. Agarwal in sending information to the civil police
was merely in accordance with the provisions of this particular Regulation.
For these reasons we hold that counsel for the petitioner is unable to make
good his argument on this aspect of the case." (emphasis supplied)
EM
e
30. From the above extract, it is evident that the Constitution Bench in Som
Datt Datta case 4 held that the Rules applied in a situation where proceedings
had already been instituted in an ordinary criminal court. In that case, the
petitioner was not brought before the Magistrate and charged with an offence
G
for which he was liable to be tried by the court martial. Rule 3 only applied,
as the Court noted, where the police had completed the investigation and the
D
accused was brought before the Magistrate after the submission of the charge-
f
sheet. The decision in Som Datt Datta4 , in other words, dealt with a situation
JU
where the offender had been tried by a court martial. The argument that the
Rules applied but had not been followed by the competent officer was rejected.
31. In Joginder Singh v. State of H.P.3, a two-Judge Bench of this Court
2-
dealt with a case where the appellant, who was governed by the Army Act,
g challenged the legality of his trial and conviction for committing the offence
under Section 376 IPC by the Assistant Sessions Judge, Nahan. Unlike the
2
situation before the Constitution Bench in Som Datt Datta4 (where the accused
20
had been tried by a court martial), in Joginder Singh 3 the accused had been tried
and convicted by the Sessions Court. In that case, the appellant who was subject
to the Army Act was alleged to have committed rape in relation to a person who
h
4 Som Datt Datta v. Union of India, (1969) 2 SCR 177 : AIR 1969 SC 414
3 (1971) 3 sec 86: 1911 sec (Cri) 269
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

was not subject to military, naval or air force law and hence under Section 70,
N
the accused could normally be tried by an ordinary criminal court. However,
since the appellant was in active service at the time of the alleged offence, a
IO
the court martial also had the jurisdiction to try him and the case involved
a situation where both the court martial and the ordinary criminal court had
concurrent jurisdiction.
AT
32. After considering the earlier judgments of this Court in E.G. Barsay
v. State of Bombay 10 , Ram Sarup 5 and Som Datt Datta4 , the Court observed:
(Joginder Singh case3, SCC p. 92, para 22) b
L
"22. It is further clear that in respect of an offence which could be
PI
tried both by a criminal court as well as a court martial Sections 125,
126 and the Rules, have made suitable provisions to avoid a conflict of
jurisdiction between the ordinary criminal courts and the court martial. But
M
it is to be noted that in the first instance, discretion is left to the officer
mentioned in Section 125 to decide before which court the proceedings C
O
should be instituted. Hence the officer commanding the army, army corps,
division or independent brigade in which the accused person is serving or
C
such other officer as may be prescribed will have to exercise his discretion
and decide under Section 125 in which court the proceedings shall be
instituted. It is only when he so exercises his discretion and decides that the
T
proceedings should be instituted before a court martial, that the provisions d

of Section 126(1) come into operation. If the Designated Officer does not
EN
exercise his discretion and decides that the proceedings should be instituted
before a court martial, the Army Act would not obviously be in the way of a
criminal court exercising its ordinary jurisdiction in the manner provided
by law." (emphasis supplied)
EM
33. In the above observation, the Court clarified that Sections 125 and e
126 have made provisions to avoid a conflict of jurisdiction between ordinary
criminal courts and a court martial in respect of an offence which could be
G
tried by both the criminal court and by a court martial. The Court observed
that Section 125 leaves the discretion, in the first instance, with the competent
D
officer and it is only when he so exercises the discretion and decides that the
proceedings should be instituted before a court martial that Section 126 would f
JU
come into operation. If the Designated Officer does not exercise this discretion
to institute proceedings before a court martial, the Army Act would not interdict
the exercise of jurisdiction by the ordinary criminal court. After adverting to
the provisions of the Rules, the Court noted: (Joginder Singh case 3 , SCC p. 95,
2-
para 29)
g
"29. Rule 4 is related to clause (a) of Rule 3 and will be attracted
2
only when the Magistrate proceeds to conduct the trial without having
20
been moved by the competent military authority. It is no doubt true that
10 (1962) 2 SCR 195 : AIR 1961 SC 1762

5 Ram Sarup v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247 h
3 JoginderSingh v. State of H.P., (1971) 3 SCC 86: 1971 SCC (Cri) 269
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

in this case the Assistant Sessions Judge has not given a written notice
N
to the Commanding Officer as envisaged under Rule 4. But, in our view,
a that was unnecessary. When the competent military authorities, knowing
IO
full well the nature of the offence alleged against the appellant, had
released him from military custody and handed him over to the civil
AT
authorities, the Magistrate was justified in proceeding on the basis that
the military authorities had decided that the appellant need not be tried
by the court martial and that he could be tried by the ordinary criminal
b court." (emphasis supplied)
L
34. In Joginder Singh 3 therefore the Court noted that the absence of a
PI
written notice to the competent officer under Rule 4 was unnecessary where the
competent military authorities, knowing about the nature of the offence alleged
M
against the appellant, released him from military custody and handed him over
C to the civil authorities. In such a situation, it was held that the Magistrate was
justified in proceeding on the basis that the military authorities had decided that
the appellant need not be tried by a court martial and that he should be tried O
C
by the ordinary criminal court.
35. The next decision to which a reference has to be made is that of a three-
Judge Bench decision in Delhi Special Police Establishment v. S.K. Loraiya 11 .
T
d
The respondent in that case was a Lieutenant Colonel in the service of the Army
EN
and was charged by the Special Judge, Gauhati for the offences punishable
under Section 120-B IPC read with Sections 5(1)(c) and (d) and Section 5(2)
of the Prevention of Corruption Act, 1988. A revision against the framing of
charges was allowed by the High Court. The order of the High Court quashing
EM
e the charges was assailed before this Court. In that context, the Court held: (SCC
p. 695, para 9)
"9. As regards the trial of offences committed by army men, the
G
Army Act draws a threefold scheme. Certain offences enumerated in the

Army Act are exclusively triable by a court martial; certain other offences
D
are exclusively triable by the ordinary criminal courts; and certain other
f
offences are triable both by the ordinary criminal court and the court
JU
martial. In respect of the last category both the courts have concurrent
jurisdiction. Section 549(1) CrPC is designed to avoid the conflict of
jurisdiction in respect of the last category of offences. The clause 'for which
2-
he is liable to be tried either by the court to which this Code applies or by a

g court martial' in our view, qualifies the preceding clause "when any person
2
is charged with an offence" in Section 549(1). Accordingly the phrase "is

liable to be tried either by a court to which this Code applies or a court
20
martial" imports that the offence for which the accused is to be tried should
be an offence of which cognizance can be taken by an ordinary criminal
h
3 Joginder Singh v. State of H.P., (1971) 3 SCC 86: 1971 SCC (Cri) 269
11 (1972) 2 sec 692 : 1973 sec (Cri) 1101
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

court as well as a court martial. In our opinion, the phrase is intended to
N
refer to the initial jurisdiction of the two courts to take cognizance of the
case and not to their jurisdiction to decide it on merits. It is admitted that a
IO
both the ordinary criminal court and the court martial have concurrent
jurisdiction with respect to the offences for which the respondent has
AT
been charged by the Special Judge. So, Section 549 and the Rules made
thereunder are attracted to the case at hand." (emphasis supplied)
36. The Court in S.K. Loraiya case 11 noted that it was an admitted fact b
L
that the procedure specified in Rule 3 was not followed by the Special Judge,
Gauhati before framing the charges. The Court held that Section 549(1) of the
PI
Code of Criminal Procedure, 1898 (equivalent to Section 475 CrPC) had to be
construed in the light of Section 125 of the Army Act and both the provisions
M
had in mind the object of avoiding a collision between the ordinary criminal
court and the court martial. In this backdrop, the order of the High Court C
quashing the framing of charges was sustained.
O
37. An order of a two-Judge Bench of this Court in S.K. Jha Commodore v.
C
State of Kerala 12 arose from a case where three naval officers were arrested for
offences punishable under Sections 143, 147, 148, 452, 307, 326 and 427 read
T
with Section 149 IPC. An application was filed by the Commanding Officer of d
the Naval Unit for handing over the accused for trial under the Navy Act, 1957.
EN
The application was rejected by the Magistrate on the ground that the stage for
consideration would only be on the completion of the police investigation. The
order of the Magistrate was challenged before the High Court in revision and
EM
the challenge was rejected. The two-Judge Bench held that the decision in Sam
Datt Datta4 governed the case and the option as to whether the accused should e
be tried before the criminal court or by a court martial could be exercised only
after the police had completed the investigation and submitted the charge-sheet.
G
In that case, the police had merely commenced the investigation and hence
the rejection of the request of the Commanding Officer by the Magistrate was
D
upheld.
f
38. In Extra-Judicial Execution Victim Families Assn. v. Union of India 13 , a
JU
submission was urged on behalf of the Union of India that an offence committed
by a member of the Armed Forces must be tried under the provisions of the
Army Act through a court martial and not under CrPC. Madan B. Lokur,
2-
J., speaking for the two-Judge Bench, inter alia adverted to the decisions of
the Constitution Benches in Ram Sarup 5 and Som Datt Datta 4 . The Court g
2
also referred to the following extract from the decision in Balbir Singh v.
20
ll Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692 : 1973 SCC (Cri) 1101
12 (2011) 15 sec 492: (2012) 4 sec (Cri) 630
4 Som Datt Datta v. Union of India, (1969) 2 SCR 177 : AIR 1969 SC 414 h
13 (2016) 14 sec 536: (2016) 14 sec 578 (2): (2016) 4 sec (Cri) 508: (2016) 4 sec (Cri) 547 (2)
5 Ram Sarup v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

State of Punjab 14 : (Extra-Judicial Execution Victim Families Assn. case 13, SCC
N
pp. 627-28, para 240)
a
IO
"240. In para 17 of the Report in Balbir Singh case 14 , this was held as
follows: (SCC pp. 99-100)
AT
'17. A conjoint reading of the above provisions shows that when
a criminal court and court martial each have jurisdiction in respect
of the trial of the offence, it shall be in the discretion of the officer
b commanding the group, wing or station in which the accused is serving
L
or such other officer as may be prescribed, in the first instance, to
PI
decide before which court the proceedings shall be instituted and if that
officer decides that they should be instituted before a "court martial",
to direct that the accused persons shall be detained in air force custody.
M
Thus, the option to try a person subject to the Air Force Act who
C commits an offence while on "active service" is in the first instance
with the Air Force Authorities. The criminal court, when such an
O
accused is brought before it shall not proceed to try such a person or to
C
inquire with a view to his commitment for trial and shall give a notice
to the Commanding Officer of the accused, to decide whether they
would like to try the accused by a court martial or allow the criminal
T
d court to proceed with the trial. In case, the Air Force Authorities decide
EN
either not to try such a person by a court martial or fail to exercise

the option when intimated by the criminal court within the period
prescribed by Rule 4 of the 1952 Rules ( supra), the accused can be tried
by the ordinary criminal court in accordance with the Code of Criminal
EM
Procedure. On the other hand if the Authorities under the Act opt to
e
try the accused by the "court martial", the criminal court shall direct
delivery of the custody of the accused to the Authorities under the Act
and to forward to the Authorities a statement of the offence of which he
G
is accused. It is explicit that the option to try the accused subject to the
Act by a court martial is with the Air Force Authorities and the accused
D
f person has *no option or right to claim trial by a particular forum* . ...
... However, in the event the criminal court is of the opinion, for
JU
reasons to be recorded, that instead of giving option to the Authorities

under the Act, the said court should proceed with the trial of the
accused, without being moved by the competent authority under the
2-
Act and the Authorities under the Act decide to the contrary, the
g conflict of jurisdiction shall be resolved by the Central Government
2
under Section 125(2) of the Act and the decision as to the forum
of trial by the Central Government in that eventuality shall be
20
final.' " ( emphasis supplied)
14 (1995) 1 sec 90: 1995 sec (Cri) 202

h 13 Extra-Judicial Execution Victim Families Assn. v. Union of India, (2016) 14 SCC 536: (2016) 14
sec 578 (2) : (2016) 4 sec (Cri) 508 : c2016) 4 sec (Cri) 547 (2)
* Ed.: The matter between two asterisks has been emphasised in original as well.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

39. The Court also adverted to the following extract from the decision in
N
Army Headquarters v. CBI15 : (Extra-Judicial Execution Victim Families Assn.
case 13 , SCC p. 629, para 244) a
IO
"244. This Court in Army Headquarters case 15 then recorded its
conclusions in para 95 of the Report and they read as follows: (SCC p. 264)
AT
'95. To sum up:
95.1. The conjoint reading of the relevant statutory provisions and
Rules make it clear that the term "institution" contained in Section 7 b
L
of the 1990 Act means taking cognizance of the offence and not mere
PI
pre sentation of the charge-sheet by the investigating agency.
95.2. The competent army authority has to exercise his discretion
M
to opt as to whether the trial could be by a court martial or criminal
court after filing of the charge-sheet and not after the cognizance of the
C
offence is taken by the court.
O
95.3. Facts of this case require sanction of the Central Government
C
to proceed with the criminal prosecution/trial.
95.4. In case option is made to try the accused by a court martial,
sanction of the Central Government is not required.' "
T
d
40. In this backdrop, the Court held that if an offence is committed even by
EN
Army personnel, there was no concept of absolute immunity from trial by the
criminal court constituted under CrPC. Rejecting the submission of the Union
of India, the Court observed: (Extra-Judicial Execution Victim Families Assn.
case 13 , sec p. 630, para 246)
EM
"246. The result of the interplay between Section 4 and Section 5 CrPC e
and Sections 125 and 126 of the Army Act makes it quite clear that the
decision to try a person who has committed an offence punishable under
G
the Army Act and who is subject to the provisions of the Army Act does
not always or necessarily lie only with the Army - the criminal court
under CrPC could also try the alleged offender in certain circumstances in
D
accordance with the procedure laid down by CrPC." f

JU
41. In the present case, the essence of the submission which has been urged
on behalf of the respondent is:
41.1. The stage of the exercise of discretion by the Army authority to either
2-
opt for a court martial or for trial before the criminal court is after the charge-
sheet is filed and before cogniz ance has been taken. g
41.2. The Magistrate precluded the exercise of the discretion by the
2
Army Authoritie s by passing an order of committal to the Court of Session

20
immediately after the charge-sheet was filed.
15 (2012) 6 sec 228 : (2012) 3 sec (Cri) 88 h

13 Extra-Judicial Ex ecution Victim Families Assn. v. Union of India , (2016) 14 SCC 536: (2016) 14
sec 578 (2) : (2016) 4 sec (Cri) 508 : (2016) 4 sec (Cri) 547 (2)
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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STATE OF SIKKIM v. JASBIR SINGH ( Dr D. Y. Chandrachud, J.) 317

41.3. There was a failure on the part of the Magistrate to follow the
N
mandatory provisions of the 1978 Rules by issuing a notice under Rule 4 to
a the competent officer.
IO
41.4. All that has transpired prior to the submission of the charge-sheet in
terms of the handing over of the accused by the Army Authorities to the police
AT
stands obliterated and in the absence of a notice under Rule 4, the trial would
stand vitiated.
42. Now in evaluating this submission, a survey of the precedent indicates
b that Ram Sarup 5 was a case of a court martial where there was a challenge to
L
the validity of Section 125 of the Army Act. The challenge was rejected on
PI
the ground that a variety of circumstances bearing upon the exigencies of the
service would determine the exercise of discretion by the competent authority
to opt for a court martial.
M
43. The decision of the Constitution Bench in Som Datt Datta4 involved
C
a challenge to the court martial proceedings on the ground that no notice had
been issued by the competent officer to the Magistrate notifying the latter that
the accused was to be tried by a court martial. The argument was rejected on the O
C
ground that Rule 3 only applied to a situation where a person who is charged
with an offence is brought before a Magistrate, which was not the case before
the Constitution Bench. In that case, the accused had been tried by the court
T
d
martial and there was no involvement of the Magistrate. Thus, the challenge that
EN
there had been a violation of the procedure mandated under the Criminal Courts
and Court Martial (Adjustment of Jurisdiction) Rules, 1952 was rejected.
44. Broadly speaking there are three categories of offences. First, the
provisions of Chapter VI of the Army Act indicate that where an offence is
EM
e
created by the Act itself it would be exclusively triable by a court martial.
Second, where a "civil offence" is also an offence under the Army Act or is
deemed to be an offence under the Act, both the ordinary criminal court as
well as court martial would have jurisdiction to try the person committing the
G
offence. The third category (referred to in Section 70) consists of the offences
of murder, culpable homicide not amounting to murder or rape committed by a
D
f
person subject to the Army Act against a person who is not subje ct to military,
naval or air force law. Subject to the three exceptions which are set out in
JU
Section 70, such offences are not triable by a court martial but by an ordinary
criminal court.
45. The offence in the present case does not fall in the category of those
2-
offences which are triable exclusively by a court martial (Sections 34 to 68)

g or those offences which cannot be tried by a court martial (under Section 70).
2
The offence with which the respondent-accused is charged falls in the category
where there is a concurrent jurisdiction between the court martial and the
20
ordinary criminal court. Hence, it needs to be underscored that there is no

inherent lack of jurisdiction in the ordinary criminal court to conduct a trial in
accordance with the procedure envisaged in CrPC.
h
5 R am Samp v. Union of India, (1964) 5 SCR 931 : AIR 1965 SC 247
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

46. Section 69 provides when a person who is subject to the Act shall be
N
deemed to be guilty of an offence against the Act. Section 69 of the Army Act
has been made subject to the provisions of Section 70. When a provision of a
IO
a statute is made subject to another provision by the legislature, this evinces
an intent that where the latter provision is attracted, the former would give
way. Where the conditions requisite for the application of Section 70 exist,
AT
Section 69 would give way to Section 70. Section 70 provides for the conditions
in which a person who is subject to the Army Act shall not be deemed to be
guilty of an offence under the Act and shall not be tried by a court martial. In
b
L
other words , Section 70 of the Army Act provides for where the court martial
would not exercise jurisdiction (unless the case falls under the exceptions to
PI
Section 70).
47. When the provisions of Section 70 apply, a person who is subject to
M
the Army Act is not deemed to be guilty of an offence under the Act if the
ingredients of that provision are fulfilled. The ingredients of Section 70 are:
C
O
(i) The offence must be committed by a person subject to the Army Act;
(ii) The offence must be committed against a person who is not subject
C
to military, naval or air force law; and
(iii) The offence must be of murder, culpable homicide not amounting
to murder or rape.
T
d
Where these conditions apply, the person is not deemed to be guilty of an
EN
offence under the Act and is not to be tried by a court martial unless the three
ex ceptions which are carved out in clauses (a), (b) and (c ) of Section 70 are
attracted.
48. In the present case, the conditions requisite for the application under
EM
Section 70 do not stand attracted for the reason that the offence in the present
e
case was committed against a person who was subject to military law and in
any event, the offence was committed by the respondent while on active service
in Sikkim. Since Section 70 has no application, the respondent who is alleged
G
to have committed a "civil offence" in India would be subject to the provisions

of the Army Act as provided by Section 69. The crucial words of Section 69
D
however are that an accused "shall be deemed to be guilty of an offence against

this Act" and "if charged therewith under this section, shall be liable to be f
JU
tried by a court martial". The liability to be tried by a court martial arises if

the person is charged with an offence under "this section", that is Section 69.
The language of Section 69 is a clear indicator that it does not ipso Jure oust
the jurisdiction of the ordinary criminal court. Where there exists concurrent
2-
jurisdiction in the court martial and in the ordinary criminal court, primarily the
discretion of conducting the court martial in preference to a trial by the ordinary g
2
criminal court is entrusted to the Designated Officer under Section 125. The
Designated Officer has been conferred with the discretion "to decide before
20
which court the proceedings shall be instituted".

49. Moreover, Section 125 has a conjunctive requirement which is
amplified by the expression "and, if that officer decides that they should be
instituted before a court martial". Thus, the conjunctive requirement under h
Section 125 is that the competent officer has the discretion to decide before
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

which court the proceedings shall be instituted and if the officer exercises that
N
discretion to institute proceedings before a court martial, then the officer will
a direct that the accused be detained in military custody. Section 125, in other
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words, not only recognises that an element of discretion has been vested in the
Designated Officer, but it also postulates that the Designated Officer should
have decided that the proceedings be instituted by the court martial in which
AT
event the court martial would take place.
50. Significantly, in the present case there was no decision by the
b Designated Officer to institute proceedings before a court martial in terms of
L
Section 125. The argument on the absence of compliance with Rule 3 and
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Rule 4 of the 1978 Rules is misconceived. The 1978 Rules, which have been
made pursuant to Section 126 of the Army Act and Section 475 CrPC, were
intended to obviate a conflict of jurisdiction where both the Army Authorities
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under a court martial as well as the ordinary criminal court assert jurisdiction
C to try a person for the same offence. Section 126(2) provides the modality for
the resolution of a conflict by the Central Government. The Rules which have
been framed under Section 475 CrPC provide for the issuance of a notice by the O
C
Magistrate to the competent officer in order to enable the competent officer to
take a considered decision on whether the interest of the service would warrant
a trial by a court martial. But the present case does not involve a conflict in the
T
d exercise of jurisdiction in the first place.

51. The entire sequence of events both before and after the completion
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of investigation provides a clear indicator that the Commanding Officer took

a conscious decision that the investigation and trial should be conducted in
accordance with the provisions of CrPC. In the earlier part of this judgment,
EM
we have narrated these circumstances, namely:

e
(i) the handing over of the accused by the Army to the custody of the
police;
(ii) the co-operation of the Commanding Officer, Colonel R.R. Nair, in
G
meeting the requisitions of the investigating officer;

(iii) the recording of the statement of the informant under Section 164
D
f CrPC;
(iv) the recording of the evidence of the Commanding Officer during
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the course of the criminal trial, thereby indicating a clear intent that the trial
would proceed in terms of the jurisdiction of the ordinary criminal court.
52. The respondent-accused has relied on the decision of this Court in
2-
Loraiya 11 , to urge that the provisions of Section 475 CrPC are mandatory,
g
that is, the Magistrate must issue notice to the Commanding Officer to enable
2
him to exercise the option of a trial by court martial or by a criminal court.

20
The submission is that since the procedure under this provision and Rule 4
of the 1978 Rules was not followed, the trial stands vitiated. We do not find
this submission to be persuasive. The decision in Loraiya 11 is distinguishable.
h
11 Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692: 1973 SCC (Cri) 1101
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Loraiya 11 involved the framing of charges under the Prevention of Corruption
N
Act, 1988 and IPC against a person subject to the Army Act. The judgment of
this Court does not contain any indication of a deferral to the jurisdiction of the a
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ordinary criminal court by the Army Authorities, as in the present case.
53. The High Court has found fault with the prosecution in not producing
AT
certified copies of the decision of the Army Authorities to defer to the
jurisdiction of the criminal court. But even keeping that decision aside, it is
abundantly clear that far from the re being any decision by the competent officer
regarding the institution of proceedings before the court martial, there was in b
L
the present case an unequivocal and clear acceptance of the jurisdiction of the
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ordinary criminal court coupled with explicit cooperation with the Court of
Session.
54. The respondent has also submitted that the proceedings before the
M
Sessions Judge would be in violation of Section 461(!) CrPC. The submission is
thoroughly misconceived as Section 461 (l) indicates that if a Magistrate has not C
been empowered by law to try an offender, then the proceedings would be void.
O
For the reasons, we have indicated above, it is clear that the Sessions Judge had
C
the jurisdiction to try the offender and thus, the provisions of Section 461([)
CrPC have no application.
55. During the course of the proceedings, Mr Pradeep Kumar Dey urged
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before this Court that in case the trial is conducted by the ordinary criminal d
EN
court and not a court martial under the Army Act, the respondent would not be
able to avail the benefit of being awarded a lower punishment under the Army
Act.
56. Section 69 of the Army Act is reproduced below:
EM
"69. Civil offences .-Subject to the provisions of Section 70, any person e
subject to this Act who at any place in or beyond India, commits any civil
offence, shall be deemed to be guilty of an offence against this Act and, if
charged therewith under this section, shall be liable to be tried by a court
G
martial and, on conviction, be punishable as follows, that is to say-

D
(a) if the offence is one which would be punishable under any law
in force in India with death or with tran sportation, he shall be liable to f
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suffer any punishment, other than whipping, assigned for the offence, by
the aforesaid law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other
than whipping, assigned for the offence by the law in force in India, or
2-
imprisonment for a term which may extend to seven years, or such less
punishment as is in this Act mentioned." (emphasis supplied) g
2
57. Clause (a) of Section 69 states if a person is convicted of a "civil

20
offence" which is punishable with death or transportation under the law in

force, then he shall be liable to suffer any punishment, other than whipping,
assigned for the offence by the aforesaid law and such less punishment as
is in this Act mentioned. In contrast with clause (a), clause (b) provides
h
l l Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692 : 1973 SCC (Cri) 1101
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

that in all other offences, the person convicted shall be liable to suffer the
N
punishment assigned under the laws in force or imprisonment for a term which
a may extend to seven years, or such less punishment as provided in the Act.
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The words of the statute clearly indicate that the legislature provided different
punishments for serious offences which under law are punishable with death or
life imprisonment, and for all other offences. In case of the former, clause (a)
AT
of Section 69 provides that the court martial may convict him and punish him
with death or life imprisonment. In addition to this, the court martial may also
b give a lesser punishment under the Army Act (such as cashiering, dismissal
L
from service, etc. provided under Section 71 16 ).
PI
58. The use of the word "and" in clause (a) of Section 69 clarifies the intent
of the legislature, which is to ensure that the Army Authorities have sufficient
discretion to grant a punishment for serious offences, over and beyond what is
M
permissible under the Penal Code. This however, does not imply that a person
C who is otherwise liable for death or life imprisonment can be granted a lesser
punishment under the Army Act. In contrast, clause (b) of Section 69 uses the
O
C
16 "71. Punishments awardable by courts martial.-Punishments may be inflicted
in respect of offences committed by persons subject to this Act and convicted by
T
d courts martial, according to the scale following, that is to say-

EN
(a) death;
(b) transportation for life or for any period not less than seven years;
(c) imprisonment either rigorous or simple, for any period not exceeding
fourteen years;
EM
(d) cashiering, in the case of officers;

e
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or place in the list
of their rank, in the case of warrant officers; and reduction to the ranks or to a
G
lower rank or grade, in the case of non-commissioned officers:

Provided that a warrant officer reduced to the ranks shall not be required
D
to serve in the ranks as a sepoy;

f
(g) forfeiture of seniority of rank, in the case of officers, junior
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commissioned officers, warrant officers and non-commissioned officers; and

forfeiture of all or any part of their service for the purpose of promotion, in the
case of any of them whose promotion depends upon length of service;
(h) forfeiture of service for the purpose of increased pay, pension or any
2-
other prescribed purpose;

g (i) severe reprimand or reprimand, in the case of officers, junior
2
commissioned officers, warrant officers and non-commissioned officers;

(j) forfeiture of pay and allowances for a period not exceeding three
20
months for an offence committed on active service;

(k) forfeiture in the case of a person sentenced to cashiering or dismissal
from the service of all arrears of pay and allowances and other public money
due to him at the time of such cashiering or dismissal:
h
(l) stoppage o f pay and allowances until any proved loss or damage
occasioned by the offence of which he is convicted is made good."
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

term "or" to indicate that for offences that under the Penal Code or any other
N
law are of less severity, the Army Authorities may order a lesser punishment.
a
IO
59. If the argument of the respondent is accepted, it would imply that
a person who is convicted and punished by a court martial under the Army
Act will be in an advantageous position than a person who, though subject to
AT
the Army Act, has been convicted by an ordinary criminal court. If that was
the intent of the legislature-that is to protect persons subject to the Army
Act by awarding them lesser punishment even for serious offences-then the
Act would not have provided for concurrent jurisdiction of court martial and b
L
ordinary criminal courts at all. Although the Army Act is special law in this case
PI
as compared to IPC, if the statute in its text does not make any qualifications or
exceptions to the general law, it would be impermissible for the court to read
such qualifications in the Act. Thus, we are unable to accept this submission
M
of the respondent.
C
D. Conclusion
60. For the above reasons, we find that the High Court was in error in O
C
affirming, in the exercise of its revisional jurisdiction, the decision of the
Sessions Judge that the court martial alone would have jurisdiction. Both on law
and in fact, the position is to the contrary. The Sessions Judge was competent
T
and there was no error in the assumption or the exercise of the jurisdiction. d
EN
The consequence of the decision of the High Court is to foist an obligation on

the Army Authorities to hold a court martial despite a clear and unequivocal
submission to the jurisdiction of the Court of Session. We according! y allow the
appeal and set aside impugned judgment of the Single Judge of the High Court
EM
of Sikkim dated 6-4-2019 in State of Sikkim v. Jasbir Singh 1. The respondent-

e
accused shall be transferred from military custody to civil custody to face trial.
61. The trial would proceed from the stage that was reached when the
Sessions Judge decided that there was an absence of jurisdiction. The trial shall
G
be proceeded with and be concluded in accordance with law. The appeal is

allowed in the above terms.
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62. Pending applications, if any, shall stand dismissed. f

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2-
g
2
20
h
1 2019 SCC OnLine Sikk: 23
Page 1 Tuesday, December 20, 2022
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(BEFORE D.Y. CHANDRACHUD AND HIMA KOHLI, JJ.)
Civil Appeal Nos. 841-843 of 2022

Cdr Amit Kumar Sharma etc. … Appellants;
N
Versus
IO
With
(@ Civil Appeal Nos. 845-846 of 2022)
With
AT
Civil Appeal No. 2457/2022
With
Civil Appeal Nos. 2059-2060/2022
With
L
With
PI
With
M
With
With
Civil Appeal Nos. 844/2022
With
O
C
With
Civil Appeal No. of 2022
(Diary No. 20730/2022)
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And With
Civil Appeal No. of 2022
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(Diary No. 23503/2022)

Civil Appeal Nos. 841-843 of 2022, Civil Appeal No. 846 of 2022 (@ Civil Appeal Nos. 845-846 of 2022), Civil
Appeal No. 2457/2022, Civil Appeal Nos. 2059-2060/2022, Civil Appeal No. 2216/2022, Civil Appeal Nos.
856-858/2022, Civil Appeal No. 855/2022, Civil Appeal Nos. 852-854/2022, Civil Appeal Nos. 844/2022,
Civil Appeal Nos. 847-851/2022, Civil Appeal No. of 2022 (Diary No. 20730/2022) and Civil Appeal No. of
2022 (Diary No. 23503/2022)
EM
Decided on October 20, 2022

D.Y. CHANDRACHUD, J.:— Leave to appeal under Section 31(1) of the Armed Forces Tribunal Act 2007 is
granted.
2. Delay condoned.
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3. This batch of appeals arises from a judgment dated 3 January 2022 of the Principal Bench of the Armed
Forces Tribunal1 . The AFT dismissed the applications challenging the denial of Permanent Commission2 in the
Indian Navy. The principle issue is whether the AFT could have adjudicated on the validity of the selection
D
proceedings when relevant material was disclosed only to the AFT in a sealed cover.
The Facts
4. On 26 September 2008, the Ministry of Defence notified that women Short Service Commission3 Officers
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would be eligible for grant of PC prospectively. In Union of India v. Lieutenant Commander Annie Nagaraj4 , the
issue for consideration before this court was whether women who were inducted in various branches of the Indian
Navy prior to 2008 were entitled to the grant of PC. By its judgment dated 17 March 2020, this Court observed,
inter alia, that5 :
2-
(i) As a result of the policy decision of the Union Government dated 25 February 1999, the terms and
conditions of service of SSC Officers including women with regard to the grant of PC were governed by
Regulation 203 of Chapter IV of Part III of the Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 19636 ;
2
(ii) The stipulation in the policy letter dated 26 September 2008 making it prospective and applicable only to
specified branches/cadres of the Indian Navy (Education, Law and Naval Construction) was not enforceable;
20
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(iii) All SSC Officers in the Education, Law and Logistics cadres, who were “presently in service” shall be
considered for the grant of PCs;
(iv) The officers were entitled to the grant of PC in view of the policy letter of the Union Government dated 25
February 1999 read with Regulation 203;
(v) SSC women officers in the batch of cases before the High Court and the AFT who are “presently in service”
shall be considered for the grant of PC on the basis of the vacancy position as on the date of the judgment
of the Delhi High Court and the AFT or as it “presently stands”, whichever is higher;
(vi) The applications of the serving officers for the grant of PC shall be considered on the basis of the norms
N
contained in Regulation 203, namely,
(a) availability of vacancies in the stablised cadre at the relevant time;
(b) determination of suitability;
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(c) recommendation of the Chief of Naval Staff; and
(d) empanelment shall be based on the inter-se merit evaluated on the ACRs of the officers under
consideration, subject to the availability of vacancies.
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5. There are three points in time, which were taken into consideration by the authorities for the determination
of vacancies, namely:
(i) August 2015, when the judgment of the High Court in Annie Nagaraj (supra) was pronounced;
(ii) September 2016, when the decision of the AFT in Commander Priya Khurana v. Union of India7 was
pronounced; and
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(iii) March 2020, when the decision of this Court in Annie Nagaraj (supra) case was pronounced.
6. Following the above directions, the process for implementing the judgment was carried out. The
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respondents worked out a total of 88 vacancies. 306 officers were considered for PC against the 88 vacancies
after which 80 of them were granted PC. The second respondent (Integrated Headquarters of Ministry of Defence
(Navy)) issued a signal order releasing many SSC officers from service on the ground that they had not obtained
PC. The Signal order only notes the date of commission, date of release and the Unit of the officer without any
M
reference to the process of selection that was undertaken or the relative merit. Many of the SSC officers, both
men and women, who were not granted PC filed writ petitions before this Court challenging the rejection of their
claim for PC. In the alternative, they sought directions for the grant of pension.
O
7. By an order dated 24 August 2021, this Court dismissed the writ petitions on the ground that the Court had
already laid down the principles for granting PC in Annie Nagaraj (supra) and Lt. Col. Nitisha v. Union of India8 . It
was observed that the officers who were denied PC would assail the decision on the basis of individual facts and
C
thus, it would be necessary for them to claim their reliefs before the AFT. The relevant observations are extracted
below:
“12 The petitioners who are considered for the grant of PC and were denied it would have to assail the
decision not to grant them PC on the basis of the individual facts in each case. Bearing this in mind, it
T
would be necessary for them to pursue their remedies before the AFT where the facts of each case can be
scrutinized. If the petitioners were to succeed on their plea for the grant of PC, the alternative claim for
EN
invoking the jurisdiction under Article 142 would cease to have any practical significance. It is only if the
denial of PC is upheld that the alternate plea can be pressed and this can be pursued after the decision of the
AFT, by following the remedies available under the statute. Hence, on a considered view of the matter we are
inclined not to entertain the petitions under Article 32 on merits.”
(emphasis supplied)
EM
8. The second respondent, in the written submissions before the AFT, filed in Cdr AK Sharma v. Union of India9
submitted that the vacancy calculation is more than an exercise of simple mathematics and that the “minute
details of vacancy calculation cannot be put in the open domain for the obvious reasons. Accordingly, this Hon'ble
Tribunal will be provided with a detailed note with respect to vacancy calculation in a sealed envelope (as and
when sought).” It was also submitted that the fairness of the selection process “would be amply clear from the
selection Board Proceedings which would be provided to this Hon'ble Tribunal for perusal in the sealed cover, if
G
need for the same arises.” Similarly, in the counter affidavit filed in Commander Barsha Agrawal v. Union of
India10 , it was submitted:
“Accordingly, this Hon'ble Tribunal has been provided with a detailed note with respect to vacancy
D
calculation in a sealed envelope”.

(emphasis supplied)
9. The AFT by the impugned judgment dated 3 January 2022 disposed the cases transferred to the AFT
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pursuant to the order of this Court along with cases where the denial of PC was challenged before the AFT. The
impugned judgment of the AFT in paragraph 54 indicates that the respondents submitted:
(i) All the files connected with the Selection Board convened in December 2020;
(ii) The previous Selection Boards held for the grant of PC;
2-
(iii) The management of SSC Officers; and

(iv) The dossiers containing the confidential reports of 32 applicants before the AFT.
10. In addition to the above, the AFT noted in paragraph 81 that on a perusal of “various records and files
2
submitted by the respondents”, the second respondent had considered the following issues:
(a) Selection Boards held prior to 2020;
20
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(b) Baseline for consideration and batches to be considered;

(c) Categorization of officers for consideration;
(d) Determination of vacancies;
(e) Suitability criteria;
(f) Inter-se merit criteria;
(g) Conduct of Board and results; and
(h) Analysis of the Selection Board Proceedings.
11. In paragraph 99 of the judgment, it is observed that the Board conducted its proceedings on 18 December
N
2020 according to the criteria approved in the Approach paper. Paragraph 37 of the impugned judgment extracts
the selection procedure that was adopted by Indian Navy. Paragraph 37 of the judgment is extracted below:
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“37. The Counsel then took us through the criteria for selection and said that marks were apportioned as
given below to work out inter-se merit. He added that there was no ‘Value Judgment’ mark as was applicable
in promotion boards. He also stated that no one has been rejected based on medical criteria and all had been
recommended by the CNS. He further added that the merit list was computer generated based on the criteria
mentioned below; and that out of a total of 381 officers, 80 had been granted PC (41 women and 39 male
AT
officers). The counsel then elaborated on the factors and their weightage.
Ser Factor Weightage Unsuitability Criteria
(a) ACR Merit 90%
(b) SLt Seniority 04%
L
(c) War 02% Officer should not have
been recommended G and
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below any time in the last
five CR cycles held on
record
(d) Peer 02% Officer should not have
M
been recommended G and
below any time in the last
five CR cycles held on
(e) Recommendation for PC 02% O

record
Officer should not have
been graded ‘No’ in
C
recommendation for PC
thrice or more in the last
five CRs
12. On perusing the records disclosed in a sealed cover, the AFT recorded the status of the remaining
T
applicants as follows:
Ser OA Case Applicants Current Relief sought Merit 1st Merit 2nd Disposal
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Ref Status Consideration Consideration

1 OA Lt. Cdr Retired PC/Pension 5/6 Low No vacancy Was
433/2016 Ravinder Pal Released merit considered
SLP (C) Singh 31.12.2020 only for first
834- Engineering/NC look. To be
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36/2021 Batch-2005 given

Service-16 second look
2 OA Lt. Cdr Amit Retired PC/Pension 6/6 Low No vacancy Was
435/2016 Khajuria Released merit considered
SLP (C) Engineering/NC 31.12.2020 only for first
834- Batch-2005 look. To be
G
36/2021 Service-16 given

second look
3 OA Lt. Cdr Manish Retired PC/Pension 3/6 Low No vacancy Was
D
436/2016 Kumar Singh Released merit considered

SLP (C) Engineering/NC 31.12.2020 only for first
834- Batch-2005 look. To be
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36/2021 Service-16 given

second look
4 OA Cdr Saroj Released PC 5/10 Low 4/9 Low Not eligible
1203/2017 Singh Exec/gs 31.12.2020 merit merit for PC
2-
WP Batch-2003 Rel stayed Already

1471/2020 Service-18 in service Granted
(Tfr- Pension
Rajkumar)
2
5 OA Cdr Swati Released PC 12/14 Low 18/20 Low Not eligible

838/2018 Bhatia 31.12.2020 merit merit for PC
20
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WP Education/GS Rel stayed Already

1471/2020 Batch-2004 In service Granted
(Tfr- Service-17 Pension
Rajkumar)
6 OA Cdr Vijayeta Released PC 8/14 Low 14/20 Low Not eligible
840/2018 Education GS 31.12.2020 merit merit for PC
WP Batch-2004 Rel stayed Already
1478/2020 Service - 17 In service Granted
N
(Tfr- Pension
Rajkumar)
7 OA Cdr Kumar Released PC Not Not Not eligible
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1959/2018 Dhiraj Batch- 9.01.2019 considered considered for PC and
Old matter 2007 Service- Retired since not in since not in not granted
14 service on service on pension
date of date of being
AT
judgment judgment inadmissible
under Para
96(x) and
(xi) of the
judgment
L
8 OA Cdr Mandip Released PC 7/9 Low 10/12 Low Not eligible
2118/2018 Kaur Exec/Lgd 31.12.2020 merit NR for merit NR for for PC
PI
WP Batch-2005 Rel stayed PC in ACR PC ON acr Already
1478/2020 Service-16 in service Granted
(Tfr- Pension
Rajkumar)
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9 OA Cdr YK Singh Released PC/Pension 15/20 Low 10/13 Low Not eligible
816/2019 Education/GS 31.12.2020 merit merit for PC and
WP Batch-2005 Rel stayed not granted
1269/2020
(Tfr-
Rajkumar)
Service - 16 in service
O pension
being
inadmissible
C
under Para
96(x) and
(xi) of the
judgment
T
10 OA Cdr Sarita Released PC/Pension 07/15 Low 13/20 Low Not eligible
1361/2021 Nagayach 05.08.2021 merit NR for merit NR for for PC and
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Fresh case Exec/Lgs Batch Retired PC in ACR PC in ACR not grated

-2007 Service- pension
14 being
inadmissible
under Para
96(x) and
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(xi) of the
judgment
11 OA Cdr Sandeep Rel Order PC/Pension 4/15 Low 8/20 Low Not eligible
1454/2021 Singh Exec/Lgs 24.03.2021 merit merit for PC and
WP Batch-2007 Released not grated
G
646/2021 Service - 14 06.08.2021 pension

Dismissed being
as inadmissible
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withdrawn under Para

by 96(x) and
applicant. (xi) of the
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judgment
12 OA Cdr Pooja Released PC 5/7 Low 7/14 Low Not eligible
1964/2021 Rajput 31.12.2020 merit merit for PC
WP Exec/Lgs Batch Rel stayed Already
1471/2020 -2002 Service- in service granted
2-
(Tfr- 19 pension
Rajkuamr)
13 OA Cdr Barsha Rel Order PC/Pension/Permit 9/11 Low 7/9 Low Not eligible
2
2008/2021 Agarwal & 03 05.08.2020 to service till 20 merit merit for PC and
WP Ors. Released yrs (Ref BP/N not grated
20
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703/2021 Education/GS 05.08.2021 case) pension

(Tfr- Batch-2007 being
Rajkumar) Service-14 inadmissible
under Para
96(x) and
(xi) of the
judgment
14 Joint with Cdr Shweta Rel Order PC/Pension/Permit 11/11 Low 09/09 Low Not eligible
Ser 13 Kapoor 5.8.2020 to service till 20 merit merit for PC and
N
Education/GS Released yrs (Ref BP/N not grated
Batch-2007 05.08.2021 case) pension
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Service-14 being
inadmissible
under Para
96(x) and
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(xi) of the
judgment
15 Joint with Cdr Sapna C Rel Order PC/Pension/Permit 7/11 Low 05/09 Low Not eligible
Ser 13 Lanjewar 05.08.2020 to service till 20 merit merit for PC and
Education/GS Released yrs (Ref BP/N not grated
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Batch-2007 05.08.2021 case) pension
Service-14 being
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inadmissible
under Para
96(x) and
(xi) of the
M
judgment
16 Joint with Cdr SS Naik Rel Order PC/Pension/Permit 8/11 Low 06/09 Low Not eligible
Ser 13 Education/GS 05.08.2020 to service till 20 merit merit for PC and
Batch-2007
Service-14
Released
05.08.2021
yrs
case)
(Ref BP/N
O not grated
pension
being
C
inadmissible
under Para
96(x) and
(xi) of the
T
judgment
17 OA Cdr Annie Released PC 5/8 NR for PC 6/9 NR for PC Not eligible
EN
2064/2021 Nagaraja 31.12.2020 Reframe in ACR in ACR for PC

WP Education/GS Rel stayed- guidelines of Already
1471/2020 Batch-1999 SC order 15.10.2020? granted
(Tfr- Service-22 24.08.2020 pension
Rajkumar) In service
18 OA Lt. Cdr Barkha Released PC 10/10 Low 9/9 Not eligible
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2065/2021 Rathore 31.12.2020 Reframe merit NR for Low merit NR for PC

WP Exec/Lgs Batch Rel stayed guidelines of PC in ACR for PC in Already
1471/2020 -2003 Service- In service 15.10.2020? ACR granted
(Tfr- 18 pension
Rajkumar)
G
19 OA Cdr Urmila Released PC 7/8 8/9 Not eligible

2066/2021 Bhat 31.12.2020 Low merit NR Low merit NR for PC
WP Education/Met Rel stayed for PC in for PC in Already
D
1471/2020 Batch-1999 In service ACR ACR granted

(Tfr- Service-22 pension
Rajkumar)
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20 OA Cdr Puneet Pal Released PC/Pension 5/12 Low 6/15 Low Not eligible
2067/2021 Kaur Exec/Lgs 12.05.2021 merit merit for PC and
WP Batch-2006 Rel stayed not grated
507/2021 Service-14 in service pension
(Tfr- being
2-
Rajkumar) inadmissible
under Para
96(x) and
2
(xi) of the
judgment
20
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21 OA Cdr Shruti Released PC 6/8 7/9 NR for PC Not eligible

2068/2021 Dhawan 31.12.2020 NR for PC in in ACR for PC
WP Education/GS ACR Already
1471/2020
(Tfr- Batch-1999 Rel stayed granted
Rajkumar) Service-22 in service pension
22 OA Cdr Bhanu Released PC/Pension 10/15 15/20 Not eligible
2069/2021 Pratap Singh 31.12.2020 Low merit NR Low merit NR for PC and
N
Fresh case Exec/Lgs Batch Retired for PC in ACR for PC in ACR not grated
-2007 Service- pension
14 being
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inadmissible
under Para
96(x) and
(xi) of the
AT
judgment
23 OA Cdr Amit Released PC/Pension 2/3 NR for PC 9/14 Not eligible
2167/2021 Kumar Sharma 31.12.2020 in ACR Low merit NR for PC and
(Tfr-RB Education/GS Rel stayed for PC in not grated
Mumbai) Batch-2003 in service ACR pension
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WP No. Service-18 being
1269/2020 inadmissible
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(Tfr- under Para
Rajkumar) 96(x) and
(xi) of the
judgment
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24 OA Lt. Cdr Yogita Released PC/Pension 3/3 14/14 Low Not eligible
2168/2021 Rani 31.12.2020 Low merit merit for PC
(Tfr-RB Education/GS Already
Mumbai)
Old
matter,
Batch-2003
Service-18
O granted
pension
C
transferred
from AFT
(RB0
Mumbai
T
25 OA Cdr Released PC/Pension 13/14 19/20 Not eligible

2169/2021 PS Soodan 31.12.2020 Permit to serve till Low merit NR Low merit NR for PC and
EN
(OA Education/GS Rel stayed 20 yrs (Ref BP/N for PC in ACR for PC in ACR not grated
105/2017 Batch-2004 In service case) pension
RB Service-17 being
Mumbai) inadmissible
WP under Para
1269/2020 96(x) and
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(Tfr- (xi) of the

Rajkumar) judgment
13. On an examination of the Board proceedings, the AFT observed that there were no mala fides in the
parameters which were prescribed or the procedure adopted. It was also observed that the officers were not
granted PC because of their comparative merit against limited vacancies and, in certain cases, the officers were
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not found suitable. The relevant observations are extracted below:

“110. Having heard all parties and examined various records, it is well established that the IN has
formulated a proper procedure with suitable parameters, and has applied it uniformly to all eligible SSCOs,
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both men and women, of all affected Branches/Cadres in their consideration for grant of PC. We find no mala
fide in the parameters laid down or the procedure adopted. No gender discrimination has been observed in the
Selection Board held in Dec 2020 and those held prior to the decision of the Hon'ble Supreme Court in Annie
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Nagaraj (supra).
[…]
121. The merit position and status of the rest of the applicants are given below. The inputs on
recommendations for PC; Peer and War Report entries have all been verified from the CRs. It is seen from the
records that the applicants have not been granted PC only because their comparative merit against limited
2-
vacancy and in certain cases, not being found suitable as per the laid down criteria.”
14. The decision of the AFT has led to the institution of twelve Civil Appeals before this Court. Twenty-six
officers of the Indian Navy are appellants before this Court in the Civil Appeals. Of these twenty six officers,
2
thirteen are still in service pursuant to interim orders. The remaining thirteen officers are out of service since
varying dates in 2020, 2021 and 2022. Apart from the twenty six officers who are appellants before this Court in
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the twelve civil appeals, eight officers have filed IAs for intervention. Seven out of eight officers are protected by
interim orders while the tenure of the eighth officer (Commander Navneet Sharma) is to end in the month of
December 2022.
15. Notice was issued in this batch of Civil Appeals on 31 January 2022. The grievance of the appellants is
that the sealed cover procedure, which was followed by the AFT, has resulted in substantial prejudice.
The Submissions
16. Mr. Huzefa A Ahmadi and Mr. C U Singh, senior counsel appearing on behalf of the appellants together
with the other counsel - Ms. Kamini Jaiswal, Ms. Haripriya Padmanabhan and Ms. Puja Dhar have submitted that
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the AFT, in the course of its decision, has extensively relied upon material which was submitted by the Naval
Authorities in a sealed cover. It has been urged that this material was never disclosed to the appellants and if the
material had been disclosed to them, they would have been in a position to demonstrate that much of the data
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which has been relied upon is seriously in dispute and is not reflective of the correct position. Mr. R.
Balasubramaniam, senior counsel appearing on behalf of the respondent, submitted that it is not as if the
respondents voluntarily chose to place the data in a sealed cover and the files which were produced were on the
directions of the AFT.
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17. During the course of hearing, three principal submissions have been urged by Mr. Huzefa A Ahmadi, senior
counsel:
(i) In its decision in Annie Nagaraj (supra), this Court directed that the highest number of vacancies were to
be considered in determining the claims of the SSC officers for the grant of PC but this has not been done;
(ii) Several batches have been clubbed together as a consequence of which vacancies have not been
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considered batch-wise and inter se merit has been skewed; and
(iii) Consideration for the grant of PC was effected on the basis of ACRs which were written casually at a time
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when the officers concerned were not eligible for the grant of PC as observed in a subsequent decision of
this Court (albeit in the case of the Army) in Nitisha (supra).
18. While formulating the objections to the findings of the AFT on merits, it has been submitted by the
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counsel for the appellants that:
(i) The respondents have made no distinction between officers who were inducted prior to 2008 and those
inducted after 2008;
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(ii) Data submitted by the Navy shows that vacancies at the material time were not properly calculated;
(iii) There is sufficient data to indicate that many more vacancies exist in most cadres than what is depicted in
the impugned order;
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(iv) The adoption of the 60 : 40 ratio (PC : SSC Officers) based on the AV Singh Committee report is flawed
since various other aspects of the report are yet to be implemented by the Naval Authorities including the
disbursal of monetary benefits;
(v) The computation of yearly vacancies has proceeded on an arbitrary basis of 15 years' distribution;
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(vi) The methodology of dividing the total number of vacancies by 15 is arbitrary;

(vii) The chart which has been set out in paragraph 95 of AFT's decision shows that as many as 14 batches
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were considered together; and

(viii) The grievances of individual officers have not been adjudicated. For instance, in the case of Commanders
Annie Nagaraj and Amit Sharma, though they were recommended for the grant of PC and would fall within
the existing vacancies, they have been denied PC on the ground that they were not recommended.
19. On the other hand, Mr. R Balasubramaniam, senior counsel appearing on behalf of the respondents made
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the following submissions:

(i) While computing the vacancies, the Naval Authorities have correctly borne in mind:
(a) The overall cadre structure of the Indian Navy;
(b) The policies which have been consistently followed; and
(c) The pattern of future inductions and retirements; and the need to maintain a youthful profile in the
Indian Navy and a balanced cadre structure.
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(ii) Grant of PC is governed by Regulation 203 according to which the availability of vacancies should be in the
stabilised cadre;
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(iii) While the stabilised cadre normally comprises only of government sanctioned posts in the permanent
cadre, in the spirit of the judgment of this Court, temporary vacancies and Training Drafting Leave Reserve
(TDLR) vacancies were also added to the stabilised cadre;
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(iv) The vacancies of the stabilised cadre were worked out with reference to August 2015, September 2016
and March 2020;
(v) The ratio of 60 : 40 (PC : SSC) has been approved by the Government of India on 3 November 2008 based
on the AV Singh Committee report;
(vi) Based on the above, the deficiencies in each stream were divided by a 15 year cycle which is the
2-
difference between the life of a PC Officer and SSC Officer in service;

(vii) The deficiencies in manning strength cannot be given to any particular batch or a few batches because of
the policy of the Navy to have a balanced cadre structure, a youthful profile and a proper
2
induction/retirement pattern in the long run;

(viii) The vacancies assigned to each batch worked out in terms of the above model provided the maximum
20
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vacancies as on March 2020, the date of the judgment of this Court;

(ix) Pursuant to the directions given by the AFT, the Navy carried out a fresh exercise and allotted seven more
vacancies to the Naval Construction Cadre and seven officers were approved for the grant of PC;
(x) In regard to the clubbing of batches, each SSC Officer was given two ‘looks’ (the first and the second
‘look’) pursuant to consistent practice. The first look is with officers of the preceding batch, who were not
granted PC in their first look and the second look is with the available next fresh batch. Hence, each batch
was given consideration separately and it would not be correct to postulate that 14 batches of the Logistics
Cadre were clubbed together. The distribution of vacancies per batch on the basis of a 15 year cycle is
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justified;
(xi) The manner of writing ACRs is not erroneous. The judgment in Nitisha (supra) pertained to the Indian
Army which is distinguishable since:
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(a) Unlike the Indian Army where male officers were being granted PC, in the case of the Indian Navy
neither men nor women officers were granted PC;
(b) The ACRs written by officers in the last five years preceding the conduct of the Board were taken into
consideration which had a specific column on whether or not a recommendation was being made for PC,
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since 2015; and
(c) If an officer has not been recommended for PC in three or more ACRs, it would be a disqualification and
hence an officer would not be eligible for grant of PC, even if higher in merit.
20. The second respondent in the written submissions before this Court submitted that (i) it is a norm for the
Board proceedings to only be provided to the AFT in a sealed cover; (ii) the AFT on a perusal of the proceedings
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of the Selection Board as well as confidential dossiers of the individual applicants found that the Navy had
considered the claims of the officers for PC based upon the parameters laid down by this Court in Annie Nagaraja
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(supra).
The Analysis
21. The AFT, inter alia, had to determine if (i) the Naval Authorities had correctly computed the vacancies
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against which the claims of the SSC Officers would be considered for the grant of PC; and (ii) the Selection Board
considered the applications for the grant of PC fairly. The judgment of the AFT indicates that in assessing the
validity of the exercise undertaken to determine vacancies and the fairness of the selection process, it placed
extensive reliance on material drawn from the data emerging from the files which were submitted by the Union
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Government and the Naval Authorities in a sealed cover. The judgment of AFT sets out in paragraph 92, a
summary of the cadre-wise strength and vacancies to be considered for granting PC to the affected SSC officers.
In paragraphs 93 and 94, the AFT has set out, in a similar manner, tabulated statements in regard to the
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utilisation of vacancies. This data did not form the subject matter of deliberations before the AFT. In fact, the
counter affidavits in Commander Barsha Agrawal (supra) and Commander AK Sharma (supra) indicate that the
data was submitted in the form of a sealed note.
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22. Similarly, the Board proceedings were not disclosed to the appellants. The written submissions before this
court and the submissions in Commander AK Sharma (supra) before the AFT indicate that the Board proceedings
were not disclosed to the officers and were submitted to the AFT in a sealed cover. The AFT on a perusal of the
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Board proceedings has observed that the second respondent had adopted proper procedure and suitable
parameters that it had uniformly applied. It was also observed on a perusal of the documents that there was no
gender bias and that the appellants' applications for PC were rejected only because they were lower in inter se
merit.
23. This Court in Annie Nagaraj (supra) had directed that the applications of the serving officers for PC shall
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be considered on the basis of norms in Regulation 203 and paragraph 4 of the implementation guidelines. The
parameters that were directed to be considered were : (i) availability of vacancies in stabilized cadre at the
material time; (ii) determination of suitability; and (iii) recommendation of the Chief of Naval Staff. In terms of
paragraph 4 of the implementation guidelines, the empanelment has to be based on inter-se merit evaluated on
the ACRs of the officers. The Tribunal in paragraph 105 of the judgment observed that on a perusal of record it
was evident that the Indian Navy had considered the SSC officers for PC based on the parameters laid down in
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Annie Nagaraj (supra). However, the material that has been relied on to arrive at the finding that there was no
infirmity in the process has not been disclosed to the appellants. The AFT observed that the weightage to the
individual parameters in the selection process for PC is the same as it existed before the judgment of this Court
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in Annie Nagaraj (supra). Even if the parameters for selection and the weightage of the individual parameters
have been in the public domain, there is no material on record to determine if the selection has been made in
accordance with the criteria. The AFT has recorded that there are ‘no mala fides’ and ‘no gender bias’ in the
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selection process. However, there is no material available to the appellants to challenge these findings since the
material was disclosed to the AFT in a sealed envelope. The orders granting PC to other officers also did not
contain any reasoning on the inter-se merit of the applicants. The AFT on a perusal of the files submitted in a
sealed cover recorded the status of the applicants in a tabular format that has been extracted in the earlier part
of the judgment. However, the appellants were not privy to such information.
2-
24. Material prejudice has been caused by the process which has been followed of disclosing the information of
vacancies and the board proceedings to the AFT in a sealed cover. In Khudiram Das v. State of West Bengal11 ,
this Court held that the test for determining if material must be disclosed is whether in all ‘reasonable
2
probability’, the material would influence the decision of the authority. Ruling in the context of preventive
detention, a four-Judge Bench of this Court observed:
20
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“15. Now, the proposition can hardly be disputed that if there is before the District Magistrate
material against the detenu which is of a highly damaging character and having nexus and relevancy
with the object of detention, and proximity with the time when the subjective satisfaction forming
the basis of the detention order was arrived at, it would be legitimate for the Court to infer that
such material must have influenced the District Magistrate in arriving at his subjective satisfaction
and in such a case the Court would refuse to accept the bald statement of the District Magistrate
that he did not take such material into account and excluded it from consideration. It is elementary
that the human mind does not function in compartments. When it receives impressions from different sources,
it is the totality of the impressions which goes into the making of the decision and it is not possible to analyse
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and dissect the impressions and predicate which impressions went into the making of the decision and which
did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude
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the influence of such impression in the decision making process. Therefore, in a case where the material before
the District Magistrate is of a character which would in all reasonable probability be likely to influence the
decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the
District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu,
the order of detention would be vitiated, both on the ground that all the basic facts and materials which
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influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also
on the ground that the detenu was denied an opportunity of making an effective representation against the
order of detention.”
(emphasis supplied)
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25. In T. Takano v. Securities and Exchange Board of India12 , a two-Judge Bench of this Court held that the all
relevant information must be disclosed. In this case, the issue for consideration before this Court was whether an
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investigation report under Regulation 9 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices)
Regulations 2003 must be disclosed to the person to whom a notice to show cause is issued. SEBI had not
disclosed the investigation report. It was the contention of SEBI that it had not relied on the investigation report
to issue the show cause notice. The two Judge Bench observed that disclosure of information to the parties to the
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adjudication serves three purposes : (i) Reliability : The possession of information by both the parties can aid the
courts in determining the truth of the contentions; (ii) Fair Trial : There is a legitimate expectation that parties
are provided all the information for them to effectively participate in the proceedings; (iii) Transparency and
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accountability : It is necessary that the adjudication is not opaque but transparent. Transparency aids in
establishing accountability. The observations on disclosure of information and its impact on transparency are
extracted below:
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“22. […] Keeping a party bereft of the information that influenced the decision of an authority undertaking
an adjudicatory function also undermines the transparency of the judicial process. It denies the concerned
party and the public at large the ability to effectively scruitinise the decisions of the authority since it creates
an information asymmetry.”
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23. The purpose of disclosure of information is not merely individualistic, that is to prevent errors in the
verdict but is also towards fulfilling the larger institutional purpose of fair trial and transparency. Since the
purpose of disclosure of information targets both the outcome (reliability) and the process (fair trial and
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transparency), it would be insufficient if only the material relied on is disclosed. Such a rule of disclosure, only
holds nexus to the outcome and not the process. Therefore, as a default rule, all relevant material must be
disclosed.
26. This court observed that the right to disclosure is not absolute. Portions that involve information on third-
parties or confidential information on the securities market may be withheld by SEBI. The court directed that the
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Board is duty bound to disclose parts of the investigative report that concern the specific allegations that have
been levelled in the show cause notice. However, the court also observed that it does not entitle a person to
whom the notice is issued to receive unrelated sensitive information.
27. The court held that it must first be prima facie established by SEBI that the disclosure of the information
would affect third party rights. Once a prima facie case of sensitivity is established, the onus would then shift to
the appellant to prove that the information is necessary to defend his case appropriately. The conclusions are
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extracted below:
51 […]
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(v) The right to disclosure is not absolute. The disclosure of information may affect other third-party
interests and the stability and orderly functioning of the securities market. The respondent should prima facie
establish that the disclosure of the report would affect third-party rights and the stability and orderly
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functioning of the securities market. The onus then shifts to the appellant to prove that the information is
necessary to defend his case appropriately; and
(vi) Where some portions of the enquiry report involve information on third parties or confidential
information on the securities market, the respondent cannot for that reason assert a privilege against
disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which
2-
deal with third-party personal information and strategic information bearing upon the stable and orderly
functioning of the securities market.
52 The Board shall be duty-bound to provide copies of such parts of the report which concern the specific
2
allegations which have been levelled against the appellant in the notice to show cause. However, this does not
entitle the appellant to receive sensitive information regarding third parties and unrelated transactions that
20
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may form part of the investigation report.”

28. The elementary principle of law is that all material which is relied upon by either party in the course of a
judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while
arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’
influence the decision of the authority must be disclosed. A one-sided submission of material which forms the
subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In
the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a
consequence.
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29. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the
adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to
the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure
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in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively
challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a
sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a
finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of
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opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the
balance of power in a litigation in favour of a dominant party which has control over information. Most often than
not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses
the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond
scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual
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case-to case level and at an institutional level. However, this is not to say that all information must be disclosed
in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a
sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in
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exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The
exceptions should not, however, become the norm.
30. During the course of the hearing, it has clearly emerged before this Court that material which was relied
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upon by the AFT for determining the vacancies which were available and for assessing as to whether they were
utilised correctly has not been disclosed to the appellants. Similarly, the Board proceedings that were relied upon
by AFT to determine if the selection for PC was fair have not been disclosed to the appellants. We are cognizant of
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the wide range of sensitive information in the records of board proceedings. The respondents are not required to
disclose the deliberations on the selection for PC within the closed Board setting. While the AFT on a perusal of
the records concluded that there was no gender bias or mala fides in the grant of PC, it must be borne in mind
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that the officers do not possess the material to challenge this observation. The respondents while protecting the
confidentiality of the proceedings of the Board must disclose the position in merit of the appellants vis-à-vis the
parameters and their weightage devised by the respondents.
31. We permitted counsel to address the Court briefly on the nature of objections which arise on the basis of
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the data as disclosed. Counsel for the appellants submitted that instead of a remand to AFT, this Court may carry
out the exercise. We are not inclined to do so for two reasons. Firstly, a primary fact-finding role is entrusted to
the AFT under the Armed Forces Tribunal Act 2007. While exercising its appellate jurisdiction, it would be
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appropriate if this Court has the benefit of a considered view of the AFT. To decide the issues for the first time in
appeal, as a matter of first impression, would not be appropriate. Secondly, the issues which arise before the AFT
primarily turn upon the determination of vacancies, the manner of utilising them and the fairness of the selection
process. This is an exercise which had to be carried out by the Naval Authorities while implementing the
judgment of this Court. The correctness of that determination fell for consideration before the AFT. In arriving at
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its conclusion upholding the determination, the AFT has not had the benefit of considering the objections of the
appellants to the manner in which the exercise was carried out by the authorities. The objections of the
appellants noted above would have been set out before the AFT if the material was disclosed to the appellants.
The failure to disclose relevant material has caused substantial prejudice to the appellants. This case exposes the
danger of following a sealed cover procedure.
32. For the above reasons we are of the view that a remand to the AFT would be necessitated. We are
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conscious of the fact that the AFT carried out a painstaking exercise while disposing of the OAs but there has
been a clear breach of the principles of natural justice. We are of the considered opinion that the AFT should be
directed to reconsider the entire matter afresh.
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33. We accordingly allow the appeals and set aside the impugned judgment of the AFT. The OAs
corresponding to the appeals which are filed before this Court are restored for fresh adjudication by the AFT.
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During the pendency of these proceedings, as already noted, some of the officers in this batch of appeals
including some interveners have continued in service as a result of the protective orders operating in their favour
while the tenure of one officer is to end in December 2022. We direct that the officers who are protected by
interim orders of this Court shall continue to have the benefit of those orders pending the disposal of the
proceedings before the AFT and thereafter for a period of eight weeks from the date of the decision of the AFT
2-
should it become necessary for them to assail the judgment before this Court in appeal. The officer whose tenure
is to end in December 2022 shall also be entitled to the benefit of the same protection.
34. We request the AFT to dispose of the OAs which have been restored to the file of the AFT expeditiously
and preferably by the end of February 2023.
2
35. Pending applications, if any, including applications for impleadment/intervention, stand disposed of.
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———
1 “AFT”
2
“PC”
3 “SSC”
4 (2020) 13 SCC 1
5 Paragraphs 109.5, 109.6 and 109.7 of the judgment in Annie Nagaraj
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6 “Regulations”
7 OA No 143 of 2016
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8 2021 SCC OnLine SC 261
9
O.A 2167 of 2021
10
OA 2008 of 2021
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11 (1975) 2 SCC 81
12
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on the condition and
understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice rendered or accepted on the
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basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only.
The authenticity of this text must be verified from the original source.
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~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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INDIAN EX-SERVICEMEN MOVEMENT v. 323

UNION OF INDIA
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a
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(BEFORE DR D.Y. CHANDRACHUD, SURYA KANT AND VIKRAM NATH, JJ.)
INDIAN EX-SERVICEMEN MOVEMENT
AND OTHERS Petitioners;
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Versus
UNION OF INDIA AND OTHERS Respondents.
b Writ Petition (C) No. 419 of 2016t , decided on March 16, 2022
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A. Armed Forces - Pension - One Rank One Pension (OROP) Policy
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Validity of OROP Policy Communication dt. 7-11-2015 - Expression
"automatically passed on" in original policy vis-a-vis "at periodic intervals"
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in Communication dt. 7-11-2015 - Implications of, explained
c - OROP Scheme as originally envisaged, envisaging future enhancement
in rates of pension to be automatically applied to past pensioners, while
Communication dt. 7-11-2015 issued by Ministry of Defence to Chiefs of O
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Army, Air Force & Navy stipulating future revision in pension to past
pensioners "at periodic intervals" i.e. every 5 yrs - Contention that Policy
Communication dt. 7-11-2015 was contrary to original decision taken by
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d Union Government to implement OROP - Rejected and OROP Policy

Communication dt. 7-11-2015, affirmed
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- Held, the said contention is liable to be rejected since though decision

taken by Union Government was based on Koshyari Committee Report but
modalities for its implementation were yet to be determined - It was only after
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modalities were finalised Communication dt. 7-11-2015 was issued- Further

e held, expression " automatically" was not linked to time period for revision of
pension - Moreover, expression "to be automatically passed on" immediately
follows words "any future enhancement in rates of pension" - Read together
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contextually, it signifies that rate s of p e nsion would be passed on to past

pensioners without administrative impediments - Expression "automatically
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passed on" cannot be construed as commitment with reference to any period

f of time for computation of benefits - Words and Phrases - "Automatically
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passed on", " automatically"
B. Administrative Law - Legitimate Expectation - Requirements for

applicability of - Principles summarised
2-
- Original decision to implement OROP Policy envisaging that future

g enhancements in rates of pension would be automatically applied to past
2
pensioners, while Communication dt. 7-11-2015 issued by Ministry of Defence

envisaging enhancement in pension rates at periodic intervals - Whether
20
use of phrase "automatically applied" meant that revision in pension rates

would take place on ongoing basis, and not at periodic intervals - Legitimate
expectation of past pensioners - If any, arose in this regard
h
t Under Article 32 of the Constitution oflndia
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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- Held, doctrine of legitimate expectation can be invoked if representation
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made by public body leads an individual to believe that he would be
recipient of benefit - Further held, expression "automatically" was not a
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linked to time period for pension revision - Moreover, even assuming that
expression "automatically" meant that revision in pension rate would take
place on ongoing basis rather than at periodic intervals, doctrine of legitimate
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expectation would be inapplicable since there was no concrete policy prior
to 7-11-2015 but only assurances - Policy of Government was embodied only
in communication of 7-11-2015 - Armed Forces - Pension - One Rank b
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One Pension (OROP) Policy
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C. Armed Forces - Pension - One Rank One Pension (OROP) Policy -
Principles governing pensioners and cut-off dates - Explained
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- Held, all pensioners who hold same rank may not for all purposes form
homogeneous class since it is possible that personnel in same rank may be C
availing different pay scales in view of MACP & ACP Schemes - Further
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held, benefit of new element in pensionary scheme, though can be prospectively
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applied, but sche me cannot bifurcate homogeneous group based on cut-off date
- No legal mandate that pensioners holding same rank must be given same
amount of pensions
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d
D. Armed Forces - Pension - One Rank One Pension (OROP) Policy
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- Validity of OROP Policy Communication dt. 7-11-2015 - OROP Policy

Communication dt. 7-11-2015 envisaging that pension of past pensioners was
to be refixed on basis of pension of retirees of calendar year 2013; pension
of all pensioners was to be revisited on basis of average of minimum and
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maximum pension of persons who retired in 2013 in same rank with same
e
length of service; and future pension was to be revisited every five years and
not automatically applied - Plea of discrimination - Unsustainability
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- Held, manner in which and period over which revision should take place
for pensioners, salaries and other financial benefits is pure question of policy
- Decision of Central Government to revise pension every five years, held,
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not violative of Art. 14 of the Constitution - Further held, in taking policy f

decision, Government is entitled to consider financial implications of decision
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and to modulate grant of financial benefits to subserve and balance distinct

priorities - Moreover (i) definition of OROP was made uniformly applicable
to all pensioners irrespective of date of retirement; and (ii) cut-off date was
2-
used only for purpose of determining base salary for calculation of pension -
Constitution of India - Art. 14 - Policy decisions g
2
E. Administrative Law-Judicial Review - Exclusion of Judicial Review

20
- Policy/Policy decision/Policy matter - OROP Policy dt. 17-11-2015 -

Challenge to - Scope of
- Held, adjudication by Court cannot serve as substitute for policy which
involve complex considerations of not only technical and economic factors but h
also require balancing competing interests for which democratic re conciliation
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA
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rather than adjudication more appropriate - Further, increased reliance on
a Judges to solve matters of pure policy diminishes role of other political organs
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in resolving contested issues of social and political policy, requiring democratic
dialogue - OROP Policy dt. 7-11-2015 can only be challenged on grounds of
manifest arbitrariness or capriciousness - However, neither ground is made
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out, and thus held, the said policy is valid - Armed Forces - Pension - One
Rank One Pension (OROP) Policy
b F. Constitution of India - Arts. 73 and 162 - Policy decision of
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Government - What amounts to - Parliamentary Committee Report -
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Koshyari Report on "OROP" - Nature of
- Held, was a report submitted to Rajya Sabha by Committee on Petitions
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and hence, cannot be enforced as statement of government policy - However,
it can be relied upon to indicate background of adoption of OROP - Further
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held, government policy formulated in terms of Art. 7 3 by the Union or Art. 162
of the Constitution by the State must be gauged from policy document of
Government, which in instant case was Communication dt. 7-11-2015 issued
O
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by Ministry of Defence to Chiefs of Army, Air Force and Naval Staff
- Parliament and State Legislatures - Parliamentary Committees
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d - Reports of - Nature of - Do not amount to policy decisions

of the Government - Administrative Law - Administrative Action -
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Administrative or Executive Function - Policy/Policy Decision/Policy Matter

- Armed Forces - Pension - One Rank One Pension (OROP) Policy
G. Administrative Law - Subordinate/Delegated Legislation - Primacy

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e of Parent Statute/Primary Statutes - Held, statutory provision has

precedence over delegated legislation in case of conflict between two -
Similarly, executive instructions cannot override statute or rules made
thereunder
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- Subordinate/Delegated Legislation - Primacy over Administrative

orders/Decisions/Executive Instructions/Orders/Circulars
D
f
A petition under Article 32 of the Constitution was filed challenging the
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manner in which the "One Rank One Pension" ("OROP") policy for ex-servicemen
of defence forces was implemented by Respondent 1 Uol. The OROP was
envisaged as a uniform pension to be paid to armed forces personnel retiring
2-
in the same rank with the same length of service, irrespective of their date of
g retirement, where any future enhancements in the rates of pension were to be
automatically passed on to the past pensioners. The intention was to bridge the
2
gap between the rate of pension of current pensioners and the past pensioners.
20
The petitioners alleged that the initial definition of OROP was altered by the first
respondent vide Letter dated 7-11-2015 issued to the Chiefs of Defence Forces and
instead of automatic revision of rates of pension, revision was now sought to be
made at periodic intervals which was arbitrary violating Articles 14 and 21 of the
h
Constitution.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Held:
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The adoption of OROP as a guiding statement of policy on 7-11-2015
was preceded by discussions both within and outside Parliament. The Koshyari a
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Committee submitted its Report on 10-12-2011. According to the Report of the
Committee, OROP implies that a "uniform pension be paid to the armed forces
personnel retiring in the same rank with the same length of service irrespective
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of their date of retirement and any future enhancements in the rate of pension
to be automatically passed on to the past pensioners". The concept, according to
the Report implied "bridging the gap between the rate of pension of the current
b
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pensioners and the past pensioners". (Para 19)
However, it needs to be understood that the Koshyari Committee Report is a
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report submitted to the Rajya Sabha by the Committee on Petitions. The Report
cannot be enforced as a statement of government policy. It can only be relied upon
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to indicate the background of the adoption of OROP. The Report furnishes the
historical background, the reason for the demand, and the view of the Parliamentary
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Committee which proposed the adoption of OROP for personnel belonging to
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the armed forces. Governmental policy formulated in terms of Article 73 by the
Union or Article 162 by the State has to be authoritatively gauged from the
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policy documents of the Government, which in present case is the communication
dated 7-11-2015. (Paras 21 and 26)
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Kalpana Mehta v. Union of India , (2018) 7 SCC l,followed

d
The adoption in principle of OROP followed by discussion on the modalities
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for implementing it eventually led to communication dated 7-11-2015 of the

Ministry of Defence to the Chiefs of the Army, Air Force and the Naval Staffs. The
policy communication of 7-11-2015 contained decision of the Indian Government
to implement OROP for ex-servicemen w.e.f. 1-7-2014 which envisaged payment
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of uniform pension to defence personnel retiring in the same rank with same
e
length of service regardless of date of retirement which was intended to bridge
the gap between the rates of pension of current and past pensioners at "periodic
intervals". (Paras 30 and 31)
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The fallacy in the submission of the petitioners is in argument that the

policy communication dated 7-11-2015 was contrary to the original decision
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which was taken by the Union Government to implement OROP. Implicit in the
submission of the petitioners is the premise that the original decision was based f
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on the Koshyari Committee Report followed by the statement on the floor of

the House by the Minister of Finance (dated 17-2-2014 and 10-7-2014) and the
minutes of the meeting convened by the Defence Minister (dated 26-2-2014).
However, an analysis of the underlying document indicates that while a decision
2-
to implement OROP was taken in principle, the modalities for implementation

were yet to be chalked out. Thus, there was no conscious policy decision on g
2
the part of the Union Government on the modalities for implementing OROP
until the communication dated 7-11-2015 came into being. The communication
20
of 7-11-2015 cannot be invalidated on the ground that it infringed the "original

understanding" of OROP. (Para 33)
A hierarchy in law exists between statutes and rules - a statutory provision
will have precedence over delegated legislation if the latter conflicts with the h
former. Similarly, executive instructions cannot override a statute or rules made
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA
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in pursuance of a statute. But in the present case the entire canvas is governed
a by a policy. The terms for implementing the policy were specified on 7-11-2015.
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Hence, that element of the policy cannot be challenged on the notion that there
is an inflexible notion of OROP couched in an original understanding. OROP is
itself a matter of policy and it was open to the makers of the policy to determine
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the terms of implementation. The policy is of course subject to judicial review on
constitutional parameters, which is a distinct issue. (Para 34)
b
While the petitioners have not adverted to the doctrine of legitimate
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expectations, they have implicitly relied on this principle. The doctrine of
legitimate expectations can be invoked if a representation made by a public body
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leads an individual to believe that they would be a recipient of a substantive
benefit. A part of the petitioners' grievance stems from the belief that an assurance
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made by State functionaries, the Ministers of the Union Government, did not
translate into a conscious policy decision, which is embodied in the communication
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dated 7-11-2015. The expression "automatically" meant that the revision in the
rates of pension would take place on an ongoing basis rather than at periodic
intervals, the question arises whether the doctrine of legitimate expectations can O
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be invoked in the present case. (Para 35)
In the instant case, there was no concrete government policy in existence
prior to 7-11-2015. There existed only certain assurances that were made by the
T
d Ministers, or which could be deduced from the minutes of a meeting that was
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chaired by the Minister of Defence. These assurances were also to the effect that
OROP has been accepted in principle. The implementation was yet to be worked
out. This eventually took place on 7-11-2015. The communication dated 7-11-2015
cannot, therefore, be assailed on the ground that it was contrary to the original
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intent of the policy formulated by the Union Government though it is undoubtedly

e open to be scrutinised on constitutional parameters. Thus, the doctrine of legitimate
expectation was inapplicable. (Paras 36 to 39)
State ofArunachal Pradesh v. Nezane Law House, (2008) 5 SCC 609 , affirmed
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State of Jharkhand v. Brahmputra Metallics Ltd., (2021) 18 SCC 536 : 2020 SCC OnLine
SC 968, considered
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As to the plea of discrimination, the submission of the petitioners on the

f violation of Article 14 of the Constitution is premised essentially on three aspects:
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(i) Fixation of the pension as of calendar year 2013 would result in

pre-2014 retirees getting less pension of one increment than a soldier retiring
after 2014.
2-
(ii) Fixing the pension based on the mean of minimum and maximum
g pension of 2013 would result in different pensions for the same ranks and same
length of service depending on whether the personnel retired before or after
2
31-12-2013. In effect, a higher ranked soldier would receive lesser pension on

20
comparison to a lower ranked soldier.

(iii) As a result of the process of equalisation every five years, persons
who have retired prior in point of time would be placed at a disadvantage as
their unequalised pension would be multiplied by a factor of 2.57 while those
h
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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who have retired after 1-1-2014 would get the benefit of higher pension which
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would be multiplied by 2.57. (Para 40)
a
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The central limb of the submission of the petitioners is that a revision of
OROP should be automatic. The three documents relied upon by the petitioners,
namely, (i) the Koshyari Committee Report; (ii) the minutes of the meeting
AT
chaired by the Defence Minister on 26-2-2014; and (iii) the communication
dated 26-2-2014 to CADA underscore that "any future enhancement in the rates
of pension to be automatically passed on to the past pensioners". The expression
"to be automatically passed on" immediately follows upon the words "any future b
L
enhancement in the rates of pension". When read together contextually, it signifies
that the rates of pension would be passed on to past pensioners without any
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administrative impediments. The expression "automatically passed on" cannot be
construed as a commitment with reference to any period of time for the computation
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of benefits. The manner in which and the period over which revisions should take
place of pensions, salaries and other financial benefits is a pure question of policy.
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The decision of the Central Government to revise the pension every five years
cannot be held to violate the precepts underlying Article 14.
The policy choices which have been made by the Union Government must
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(Para 53)
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also be understood in the context that the estimated budget allocation for defence
pensions is Rs 1,33,825 crores representing 28.39 per cent of the total defence
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budget estimate of Rs 4,71,378 crores for 2020-2021. This does not include budget
d
on salaries which is of the order of 34.89 per cent of the total defence budget
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estimates for 2020-2021. Salaries and pensions thus account for nearly 63 per cent
of the total defence budget estimates for 2020-2021. In making policy choices, the
Union Government is entitled to take into account priorities towards modernisation
of the armed forces and to modulate the grant of financial benefits so as to subserve
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and balance distinct priorities. (Para 54)

e
Furthermore, in instant case liberalised pension scheme was made applicable
to all retired army personnel, irrespective of date of retirement. The cut-off date was
only prescribed for determining the base salary used for computing the pension.
G
While for those who retired on or after 2014, the last drawn salary is used for
computing the pension; for those who retired prior to 2014, the average of the
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salary drawn in 2013 is used. This policy only seeks to protect those who retired
before 2014 since the last drawn salary of the prior retirees might be too low and f
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incomparable to the pay of the 2014 retirees. Moreover, if the maximum salary
drawn is to be used as the base value instead of taking the average salary, an
additional outlay of Rs 1,45,339.34 crores would be incurred. The executive is
therefore, well within its limits to prescribe a policy keeping in view the financial
2-
implications. (Para 58)

Indian Ex-Services League V. Union of India, (1991) 2 sec 104 : 1991 sec (L&S) 536; g
2
Krishena Kumar v. Union of India, (1990) 4 SCC 207: 1991 SCC (L&S) 112,followed
B.J. Akkara v. Union of India , (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529; K.L. Rathee v.
20
Union of India, (1997) 6 sec 7 : 1997 sec (L&S) 1253, affinned

Union of India v. SPS Vains, (2008) 9 SCC 125 : (2008) 2 SCC (L&S) 838, distinguished
D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145, clarified and
followed h
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA
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The canvass which is sought to be traversed in these proceedings under Article
a 32 of the Constitution trenches upon a domain which is reserved for executive
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policy. Most questions of policy involve complex considerations of not only
technical and economic factors but also require balancing competing interests
for which democratic reconciliation rather than adjudication is the best remedy.
AT
Further, an increased reliance on Judges to solve matters of pure policy diminishes
the role of other political organs in resolving contested issues of social and political
policy, which require a democratic dialogue. This is not to say that the Supreme
b
L
Court will shy away from setting aside policies that impinge on constitutional
rights. Rather it is to provide a clear-eyed role of the function that a court serves
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in a democracy. The OROP Policy may only be challenged on the ground that it is
manifestly arbitrary or capricious. (Para 68)
Lon L. Fuller and Kenneth I. Winston: "The Forms and Limits of Adjudication", Harvard Law
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Review, Vol. 92, No. 2 (Dec., 1978), pp. 353-409, referred to
C The principles governing pensions and cut-off dates under OROP can be
summarised as follows:
(i) All pensioners who hold the same rank may not for all purposes form
O
C
a homogeneous class. For example, amongst Sepoys differences do exist in
view of the MACP and ACP schemes. Certain Sepoys receive the pay of the
higher ranked personnel.
T
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(ii) The benefit of a new element in a pensionary scheme can be
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prospectively applied. However, the scheme cannot bifurcate a homogeneous

group based on a cut-off date.
(iii) The judgment of the Constitution Bench in D.S. Nakara, (1983) 1
SCC 305 cannot be interpreted to read the one rank one pension rule into it.
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It was only held that the same principle of computation of pensions must be
e
applied uniformly to a homogeneous class.
(iv) It is not a legal mandate that pensioners who hold the same rank
must be given the same amount of pension. The varying benefits that may be
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applicable to certain personnel would also impact the pension payable which
need not be equalised with the rest of the personnel. (Para 70)
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f Applying the above principles to the facts of the case, there is no constitutional
infirmity in the OROP principle as defined by the communication dated 7-11-2015
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for the following reasons:

(i) The definition of OROP is uniformly applicable to all the pensioners
irrespective of the date of retirement. It is not the case of the petitioners
2-
that the pension is reviewed "automatically" to a class of the pensioners and

g "periodically" to another class of the pensioners.
2
(ii) The cut-off date is used only for the purpose of determining the
base salary for the calculation of pension. While for those who retired after
20
2014, the last drawn salary is used to calculate pension, for those who retired
prior to 2013, the average salary drawn in 2013 is used. Since the uniform
application of the last drawn salary for the purpose of calculating pension
h would put the prior retirees at a disadvantage, the Union Government has taken
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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a policy decision to enhance the base salary for the calculation of pension.
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Such a decision lies within the ambit of policy choices.
(iii) While no legal or constitutional mandate of OROP can be read into a
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the decisions in D.S. Nakara case and SPS Vains, (2008) 9 SCC 125, varying
pension payable to officers of the same rank retiring before and after 1-7-2014,
either due to MACP or the different base salary used for the calculation of
AT
pension cannot be held arbitrary. (Para 71)
In terms of the communication dated 7-11-2015, the benefit of OROP was to
be effected from 1-7-2014. Para 3(v) of the communication states that "in future, b
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the pension would be re-fixed every five years". Such an exercise has remained
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to be carried out after the expiry of five years possibly because of the pendency
of the present proceedings. Hence, directed that in terms of the communication
dated 7-11-2015, a re-fixation exercise shall be carried out from 1-7-2019, upon
M
the expiry of five years. Arrears payable to all eligible pensioners of the armed
forces shall be computed and paid over accordingly within a period of three C
months.
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(Paras 72 and 73)
Indian Ex-Servicemen Movement v. Union of India, 2019 SCC OnLine SC 2143; Union of
India v. Balbir Singh Turn, (2018) 11 SCC 99 : (2018) 1 SCC (L&S) 866, referred to
C
Suchet Singh Yadav v. Union of India, (2019) 11 SCC 520 : (2019) 2 SCC (L&S) 557, cited
P-D/68712/CL
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d
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Huzefa Ahmadi, Senior Advocate [Balaji Srinivasan (Advocate-on-Record), Arunava

Mukherjee, Ms Garima Jain, Rohan Sharma, Ms Pallavi Sengupta, Ms Lakshmi Rao,
Ms Aakriti Priya, Md. Shahrukh, Prateek Yadav, Suhail Ahmed, Mayank Kshirsagar,
Ms Srishti Govil, Ms Vaishnavi Subrahmanyam, Abhishek Bharati and Aishwarya
Choudhary, Advocates], for the Petitioners;
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N. Venkataraman, Additional Solicitor General [Ms Priyanka Das, Akshay Amritanshu,

Apoorv Kump, Kartikey Singh, Ashutosh Jain, Rajat Nair, Ankur Talwar, Shyam e
Gopal, Ms Chinmayee Chandra, A.K. Sharma (Advocate-on-Record), Mukesh Kr.
Maroria (Advocate-on-Record), Raj Bahadur Yadav (Advocate-on-Record) and V.
Chandrashekara Bharathi, Advocates], for the Respondents.
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1. (2021) 18 SCC 536: 2020 SCC OnLine SC 968, State of Jharkhand
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v. Brahmputra Metallics Ltd. 35 l e-f

2. (2019) 11 sec 520: (2019) 2 sec (L&S) 557, Suchet Singh Yadav f
v. Union of India 343b
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3. 2019 SCC OnLine SC 2143, Indian Ex-Servicemen Movement v.

Union of India 335g, 335g-h
4. (2018) 11 sec 99 : (2018) 1 sec (L&S) 866, Union of India v.
Balbir Singh Turn 357e
2-
5. (2018) 7 SCC 1, Kalpana Mehta v. Union of India 345g-h, 346b-c,

346!, 347 a-b, 348a g
6. (2008) 9 sec 125 : (2008) 2 sec (L&S) 838 , Union of India v. SPS
2
Vains 336d, 337c-d, 340c,

341a, 342f-g, 366d-e,
20
366g-h, 367a-b , 367c, 369a-b

7. (2008) 5 SCC 609, State of Arunachal Pradesh v. Nezane Law House 352a-b
8. (2006) 11 sec 709 : (2007) 1 sec (L&S) 529, B.J. Akkara v. Union
of India 365e-f
9. (1997) 6 sec 7 : 1997 sec (L&S) 1253, K.L. Rathee v. Union of h
India 343a-b, 365a-b
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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UNION OF INDIA (Dr D.Y. Chandrachud, J.)
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10. (1991) 2 sec 104:
1991 sec (L&S) 536, Indian Ex-Services
League v. Union of India 343a, 364a-b, 364c-d
a
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11. (1990) 4 SCC 207: 1991 SCC (L&S) 112, Krishena Kumarv. Union
of India 362d-e, 362g-h
12. (1983) 1 sec 305 : 1983 sec (L&S) 145, D.S. Nakara v. Union of
India 340b-c, 343a, 343a-b,
AT
360d-e, 361a, 361b, 362b,
362g-h, 363a, 363e, 363e-f,
363f-g, 364b, 364b-c, 364c,
b 364c-d, 364g-h, 365a, 365a-b,
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365b, 365e, 368c-d, 369a-b
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DR D.Y. CHANDRACHUD, J.- This judgment has been divided into the
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following sections to facilitate analysis:
C INDEX
j Sl. Nos. \ Headings O Page Nos.

C
;......~: ..... JFactual .Background ......................................................... :.......... ~}.~ .......... J
\......~.: ...... \Submissions.of .counsel.................................................. !.......... ~}?........... j
T
d L.....c;;.:...... L~~~~r.~.~~...............................................................................1..........~.~~··········.l
\ \ C. l. \ Concept and genesis of OROP i 345 j
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.................•..............•.................................................................................•............................•
!................L C.2 ....l Plea of Discrimination ...................................... i.........}?.~...........1
L...............L............Lc.2.1.__j ACP-MACP ........................................ L........ ~.?.?...........1
L...............L............l.. C.2.2.__j Financial .Implications...................... i.........}?.~...........1
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e
L...............L............l.. C.2.3.__j Average .to Maximum....................... i.......... ~.?.~...........1
!...............................•...............
~
\ \ C.2.4. ·•··· \Periodic revision every five years i 359
.....................................................................................................................:
l
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A. Factual background
2. The petition under Article 32 of the Constitution addresses a challenge
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f to the manner in which the "One Rank One Pension" ("OROP") policy for ex-
servicemen of defence forces has been implemented by the first respondent
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(also referred as "the Union Government") through a Letter dated 7-11-2015

issued to the Chiefs of three defence forces. The Letter defines OROP as the
payment of uniform pension to armed services personnel retiring in the same
2-
rank with the same length of service, irrespective of the date of retirement.
g OROP, in terms of the Letter, aims to bridge the gap between the rate of pension
2
of current and past pensioners at periodic intervals. The petitioners contend

that in the course of implementation, the principle of OROP has been replaced
20
by "one rank multiple pensions" for persons with the same length of service.
The petitioners contend that the initial definition of OROP was altered by the
first respondent and, instead of an automatic revision of the rates of pension,
h the revision now would take place at periodic intervals. The petitioners submit
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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that the deviation from the principle of automatic revision of rates of pension,
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where any future enhancement to the rates of pension are automatically passed
on to the past pensioners, is arbitrary and unconstitutional under Articles 14 a
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and 21 of the Constitution.
3. The salient facts giving rise to the proceedings need to be stated.
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The demand for OROP by ex-servicemen of the defence forces was initially
examined by Parliament in 2010-11. On 19-12-2011, the Rajya Sabha
Committee on Petitions ("Koshyari Committee" ) presented its 142nd Report on
the Petition Praying for Grant ofOROP to Armed Forces Personnel ("Koshyari b
L
Committee Report"). The Committee recommended the implementation of
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OROP. The Committee defined OROP as a uniform pension to be paid to armed
forces personnel retiring in the same rank with the same length of service,
irrespective of their date of retirement, where any future enhancements in the
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rate s of pension were to be automatically passed on to the past pensioners. The
Committee noted that OROP was being implemented till 1973 when the Third c
Central Pay Commission took a decision to revoke it.
4. The relevant observations/recommendations of the Koshyari Committee O
C
are extracted below:
"11. The Committee takes note of the fact that a sum of Rs 1300
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crores is the total :financial liability for the year 2011-12 in case OROP is d
implemented fully for all the defence personnel in the country across the
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board. The Committee is informed that out of this Rs 1065 crores would
go to retirees belonging to Post Below Officer Ranks (PBOR) while the
Commissioned Officers would be getting the remaining i.e. Rs 235 crores.
The Committee feels that Rs 1300 crores is not a very big amount for a
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country of our size and economy for meeting the long pending demand e
of the armed forces of the country. The Committee understands that this
Rs 1300 crores is the expenditure for one year which might increase at
the rate of 10 per cent annually. Even if it is so, the Committee does
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not consider this amount to be high, keeping in view the objective for
which it would be spent. Needless for the Committee to point out here
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that our defence personnel were getting their pension and family pension f
on an entirely different criteria before the Third Central Pay Commission
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came into force. Till the recommendations of the Third Central Pay
Commission were implemented for the defence personnel of the country,
they were satisfied and happy with di spensation meant for their pension/
2-
family pension.
* * * g
2
11.4. . . . the Committee feels that the decision of the Government to

bring our defence personnel on the pattern of the civilians with regard
20
to their pay, pension, etc . (from Third Central Pay Commission onwards)
is not a considered decision which has caused hardship to the defence
personnel and has given birth to their demand for OROP. The Committee
understands that be fore the Third Central Pay Commission, the defe nce h
personnel were getting their pay/pension on the basis of a separate criteria
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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unconnected with the criteria devise d for the civilian workforce. That
a criteria acknowledged and covered the concept of OROP which has been
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given up after the Third Central Pay Commission.
11.5. The Committee is not convinced with the hurdles projected
AT
by the Ministry of Defence (Department of Ex-Servicemen Welfare) in
implementing of OROP for defence personnel. They have categorised the
hurdles into administrative, legal and financial. The financial aspect has
b already been dealt with by the Committee. So far as the administrative angle
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is concerned, the Committee is given to understand that all the existing
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pensioners/family pensioners are still drawing their pension/family pension
based upon the lawfully determined pension/family pension. In that case,
revision of their pension/family pension, prospectively, as a one-time
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measure should not pose any administrative hurdle. So far as the legal
C aspect is concerned, the Committee is not convinced by the argument put
forth against the implementation of OROP because the pension/family
pension is based upon the service rendered by personnel while in service O
C
and comparison of services rendered during two sets of periods does not
seem to be of much relevance. If seen from a strict angle, in each set of
periods, the army officer performed the duties attached to his post and it
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d may not be proper to infer that the officers who served at a later period
performed more compared to the officers of earlier period. On the contrary,
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facts tilt towards treating past pensioners/family pensioners on a par with

the more recent ones."
5. On 17-2-2014, the Finance Minister announced in his Budget Speech
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that the Union Government had in principle accepted OROP and it would be
e implemented prospective! y from Financial Year 2014-15. The Finance Minister
stated that an amount of Rs 500 crores has been transferred to the Defence
Pension Account to meet the budgetary expense. On 26-2-2014, the Defence
G
Minister chaired a meeting to discuss the implementation of OROP. The

Defence Secretary, the Secretary to the Department of Ex-Servicemen Welfare,
D
the Controller General of Defence Accounts ("CGDA"), the three Vice-Chiefs

f of Staff, and senior officers of the Service Headquarters along with the Joint
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Secretaries concerned attended the meeting. The minutes of the meeting refer
to OROP as a uniform pension to be paid to armed forces personnel that are
retiring in the same rank with the same length of service, irrespective of the
date of retirement, where any future enhancements in the rates of pension are
2-
to be automatically passed on to the past pensioners. The fourth respondent,

g CGDA, was directed to take necessary steps to give effect to the decision of
2
implementing OROP in consultation with the three defence forces, and the first
and second respondents.
20
6. By its Letter dated 26-2-2014 the first respondent directed CGDA

to work out the modalities of executing OROP. However, OROP was not
implemented at the time. On 10-7-2014 in his Budget Speech for the
h year 2014-2015, the Finance Minister reaffirmed the Union Government's
commitment to implement OROP and a further sum of Rs 1000 crores was set
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

apart to meet the requirement. In a written reply to a Member of Parliament on
N
2-12-2014, the Minister of State for Defence stated that OROP implies that a
uniform pension is paid to retired servicemen having the same rank with the a
IO
same length of service, irrespective of the date of retirement, with any future
enhancement in the rates being passed on to the past pensioners automatically.
7. The above sequence of events has been emphasised by the petitioners
AT
to highlight that OROP always entailed an automatic revision of the rates of
pension to bridge the gap in the pension being received by past and current
pensioners. However, according to the petitioners, a Letter dated 7-11-2015 of b
L
the Joint Secretary of the first respondent to the Chiefs of three defence forces
introduced a revised definition of OROP, where the revision between the past
PI
and current rates of pension was to take place at periodic intervals. Besides
stating that O ROP would take effect from 1-7-2014, the letter also highlighted
M
the salient features of OROP:
"3. Salient features of the OROP are as follows: C
O
(i) To begin with, pension of the past pensioners would be re-fixed on
the basis of pension of retirees of calendar year 2013 and the benefit will
C
be effective with effect from 1-7-2014.
(ii) Pension will be re-fixed for all pensioners on the basis of the
average of minimum and maximum pension of personnel retired in 2013
T
in the same rank and with the same length of service. d

(iii) Pension for those drawing above the average shall be protected.
EN
(iv) Arrears will be paid in four equal half-yearly instalments.

However, all the family pensioners including those in receipt of Special/
Liberalised family pension and Gallantry award winner shall be paid
arrears in one instalment.
EM
(v) In future, the pension would be re-fixed every 5 years." e

8. The above definition of OROP was also adopted by the first respondent
while implementing OROP by its Notification dated 14-11-2015. The rates
G
of pension w ere now to be revised every five years. The notification also
constituted a Committee headed by Justice L. N arasimha Reddy to examine
D
and make recommendations on the terms of reference received by the

Union Government on measures to remove anomalies that may arise in the f
JU
implementation of the Letter dated 7-11-2015.

9. By its Letter dated 25-1-2016 to the Defence Minister the first petitioner
objected to the revision of the definition of OROP highlighting that the
2-
deviation from the automatic revision of rates of pension to a revision at

periodic intervals changed the accepted meaning of OROP. It was submitted
g
that the revised definition would deprive the past pensioners of equal monetary
2
benefits, which militated against the principle of OROP. The letter urged that
20
the Committee headed by Justice L. Narasimha Reddy would be "inapt" in

making recommendations on the issue of OROP since the terms of reference
took into account the revised definition of OROP. The letter urged the Defence
Minister to revert to the original definition of OROP where the pension
h
of past pensioners would be automatically revised pursuant to any future
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
enhancements. The first petitioner also wrote to Justice L. N arasimha Reddy on
a 25-3-2016 highlighting the anomalies that will result from the implementation
IO
of the revised definition of OROP.
10. Meanwhile, the first respondent issued a letter to the Chiefs of the
three defence forces on 3-2-2016 regarding the implementation of OROP. On
AT
29-10-2016, the first respondent issued a letter to the Chiefs of the three defence
forces revising the pension ofpre-2016 defence forces' pensioners and family
b pensioners. The existing pension was to be revised upwards by implementing
L
the basic pension drawn on 31-12-2015 by a multiplication factor of2.57. The
petitioners have highlighted that owing to the periodic revision of the pension
PI
rate according to the revised definition, the pension of many ex -servicemen
would not be updated to 31-12-2015 level.
M
11. A post facto approval of the Union Cabinet for implementation of
OROP was received on 6-4-2016 and was conveyed by the Cabinet Secretariat
C
on 7-4-2016. The proposal, which was approved by the Union Cabinet is as
follows:
O
"9 .1. Ex post facto approval of the Cabinet is solicited for implementation
C
of One Rank One Pension as under.
9.1.1. The benefit will be given with effect from 1-7-2014.
T
d 9.1.2. Pension will be re-fixed for pre 1-7-2014 pensioners retiring in the
same rank and with the same length of service as the average minimum and
EN
maximum pension drawn by the retirees in the year 2013. Those drawing
pensions above the average will be protected.
9.1.3. The benefit would also be extended to family pensioners including
war widows and disabled pensioners.
EM
9.1 .4. Personnel who opt to get discharged henceforth on their own request
e under Rule 13(3)l(i)(b), Rule 13(3)l(iv) or Rule 16-B of the Army Rules, 1954
or equivalent Navy or Air Force Rules will not be entitled to the benefits of
OROP. It will be effective prospectively.
9.1.5. Arrears will be paid in four half-yearly instalments. However, all
G
the family pensioners including those in receipt of Special/Liberalised family

pension and Gallantry award winners shall be paid arrears in one instalment.
D
f 9.1.6. In future, the pension would be re-fixed every 5 years.

9.1.7. Constitution of Judicial Committee headed by Justice L. N arasimha
JU
Reddy, Retd. Chief Justice of the Patna High Court on 14-12-2015 which will
give its report in six months on references made by the Government of India."
12. Aggrieved by what the petitioners contend is a revision in the definition
2-
of OROP, the petition under Article 32 was instituted before this Court on
g 9-6-2016. On 1-5-2019 1, this Court took note of the anomalies which were
2
highlighted on behalf of the petitioners: (Indian Ex-Servicemen Movement

case 1 , SCC OnLine SC para 2)
20
"2 . ... 'Fixation of pension as per calendar year 2013 instead of FY

2014: Fixation of pension as per calendar year 2013 would result in past
h
l Indian Ex-Servicemen Movement v. Union of India, 2019 SCC OnLine SC 2143
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

retirees (pre 2014) getting less pension of one increment than the soldier
N
retiring after 2014.
Fixation of pension as mean of Min and Max pension: Fixing pension a
IO
as mean of Min and Max pension of 2013 would result in different pensions
for the same ranks and same length of service and the past retiree would
AT
get 1.5 increment lesser on account of such fixation.
For example, if 8(i) and (ii) are implemented, two soldiers who
have served for same length of years, holding the same rank will draw
different pension. A Sepoy (Group Y) who retired prior to 31-12-2013 b
L
will get Rs 6665 p.m. and another Sepoy (Group Y) who retired on
PI
and after 1-1-2014 would get Rs 7605 p.m. Further, on account of such
implementation, a higher rank Naik soldier who retired before 31-12-2013
would draw a lesser pension of Rs 7170 p.m., than a junior rank Sepoy
M
who retired after 1-1-2014 as his pension would be Rs 7605. This fact is
illustrated by a tabular chart which is enclosed. (See p. 1, CC). c
O
Therefore, implementation of this new definition of OROP defeats the
very principle of OPOP by creating a class within a class of the same
C
officers, which in practice tantamounts to one rank different pensions. This
is also contrary to the judgment by this Hon'ble Court in Union of India
v. SPS Vains 2 .
T
d
Another fallacy in the new definition of OROP which detracts from the
EN
principle of OROP is:

(iii) Pension equalisation every five years.
It is submitted that pension equalisation every five years would result
in the grave disadvantage to the past retirees.' "
EM
13. This Court directed the first respondent to scrutinise the grievances e
raised by the petitioners. Pursuant to the order, the first respondent filed
an affidavit on 5-12-2019 submitting that after extensive consultations with
G
experts and ex-servicemen, the Union Government decided that it is practical

and feasible to revise the pension under OROP every five years. The average
D
of the minimum and maximum pension in calendar year 2013 was decided
to be taken as the revised pension of all pensioners retiring in the same rank f
JU
and with the same length of service. At the same time, the first respondent
chose to protect the pensioners who were drawing pension above the average.
Thus, it was submitted, that the implementation of OROP has benefitted the
past pensioners, though the amount of financial benefit varies. It was urged on
2-
behalf of the first respondent that revising the rate of pension every year would
cause administrative difficulty and is impracticable to implement. g
2
14. Since the grievance of the petitioners remained unaddressed, it falls

20
on this Court to adjudicate upon whether the revision of the definition of

OROP and its implementation in the present form, is arbitrary and violative of
Articles 14 and 21 of the Constitution. Before we analyse the rival contentions,
we advert to the submissions of the counsel.
h
2 (2008) 9 sec 12s : (2008) 2 sec (L&S) 838
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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N
B. Submissions of Counsel
a 15. Mr Huzefa Ahmadi, Senior Counsel, appeared for the petitioners. The
IO
following submissions have been made on behalf of the petitioners during the
course of the proceedings:
AT
15.1. The Letter issued by the Joint Secretary of the first respondent to
the Chief of Air Staff on 7-11-2015 arbitrarily alters the definition of OROP
("new definition") by bridging the gap between the rates of pension of the
b current and the past pensioners at "periodic intervals" and not "automatically".
L
This definition is contrary to the definition arrived at in the meeting held on
26-2-2014 and the subsequent executive order issued on the same day.
PI
15.2. The implementation of the scheme with the new definition would lead
to a situation where the pension drawn by an ex-serviceman who retired on an
M
earlier date would be less than the pension drawn by an ex-serviceman who
C retired in 2014, until such time that a "periodic" review is conducted to correct
the anomaly.
15.3. The new definition creates a class within a class where ex-servicemen
who retired with the same rank and same length of service would receive
O
C
different pensions. In Union of India v. SPS Vains 2 , this Court has held that the
creation of a class within a class is unconstitutional.
T
d 15.4. Even if the differential pay is rectified by a periodic review, it would

cause injustice.
EN
15.5. The effective date of implementation of OROP was already fixed as

1-4-2014 and this date has been arbitrarily re-fixed to 1-7-2014 by the Letter
issued by the first respondent on 7-11-2015.
EM
15.6. According to the Letter dated 7-11-2015, the pension of the personnel
e retiring on or after 1-4-2014 will be fixed based on the last pay drawn on
retirement. However, the pension of soldiers who retired earlier than 2013
would be fixed on the basis of the pension of the retirees of the calendar year
2013. This would lead to a situation of one rank different pension:
G
D
Rank: Sepoy (Group Y)

f I II III
JU
j Length of service Pension of sepoys l Pension of sepoys l Difference between I i

who retired between i who retired in 2014 i and II multiplied by j
1965-2013 (as per l (as per Pension l 2.57 as per Report i
Notification j Payment Order of j of the Seventh Pay j
2-
dated 3-2-2016 which )2014 which applies )Commission j

g applies to this i to this category) i j
category with effect l l i
2
. from 1-7-2014) i i 1
i i
20
15 years )Rs 6665 (as on Rs 7605 1Rs 940 x 2.5= 1

i•.................................. i•.........................................................................................................................................................
1-7-2013) i iRs 2415 ,i
Figure 1
h
2 (2008) 9 sec 12s : (2008) 2 sec (L&S) 838
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

15.7. The pension of the past pensioners is further lowered by the re-
N
fixation of pension based on the average of the minimum and maximum pension
of personnel retiring in the calendar year 2013, as compared to personnel a
IO
retiring on or after 1-4-2014. In some cases, a past pensioner who retired before
2014 receives pension lower than personnel of a lower rank retiring on or after
2014. For instance, if the new definition is followed then a Sepoy who retired
AT
prior to 31-12-2013 will get a pension of Rs 6665 per month while another
Sepoy who retired on or after 1-1-2014 would get a pension of Rs 7605 per
month. Extracted below is a chart depicting the anomaly: b
L
PI
Rank: Sepoy (Group Y)
I II III
Length of service !who : Pension of between Naiks :(who Pension of in Naiks

2014 :\IDifference between
M
\=============:
retired retired and II multiplied

il965-2013 (as ped(as per Pension iby 7th CPC
j Notification j Payment Order of j multiplication factor C
i dated 3-2-2016 which i 2014 which applies i of 2.57
i applies
i category
to
w.e.f. i 6) O
this i to this category) (p. i
i
C
11-7-2014 leaving a 1 \.
1 jhiatus of one year) j :
: :(p. 4) : :
1········20 ·years ·········1 Rs ·····7f 70 ... (as ·····ont···· ...... Rs ·g295············1 Rs ....1125 ... x ··2 .57=·1
T
d
i ! 1-7-2013) ! !Rs 2891 !
.t ............................................................................ t ••••••••••••••••••••••••••••••••••••• .t ...................................... .
t ..............................................
EN
Figure 2
Rank: Group Captain

EM
I II III
e
Length of service iiwho
\===========:: Pension retiredofbetween
ones iiwhoPensionretiredofin 2014
ones :\IDifference between
and II multiplied
j 1965-2013 (as per i(as per Pension iby 7th CPC
i Notification j Payment Order of j multiplication factor
G
i dated 3-2-2016 which i2014 which applies i of 2.57

i applies to this i to this category) (p. i
j category w.e.f. 16) !
l
D
i 1-7-2014 leaving a i
1 !hiatus of one year) i I :
f
JU
. .(p. 8) . . .
1········ 32.years ·········t········· Rs.36,130··········t·········Rs·37,110··········1Rs····980 ····x···· 2.57=· 1
i ! ! !Rs 2518 !
\ ! ! \This has been i
2-
i ! ! i given by Government i
\ ! ! i whereas as per 7th g
i i i i CPC, their pension is
2
i i i ho be fixed with a
! 1 1 !multiplication
20
factor
i ! i i of 2.67 given in the
i................................ 1....................................... 1••••••••••••••••••••••••••••••••••••• \table below .................
Figure 3 h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
15.8. The difference in the pension as provided in the chart is not due to the
a Modified Assured Career Progression ("MACP"). Even according to the new
IO
definition, all personnel with the same rank and same length of service must
receive the same pension.
15.9. The Notification issued on 14-12-2015 adheres to the arbitrary
AT
definition of OROP as provided by the Letter issued on 7-11-2015. The
terms of reference of the Committee appointed under the notification are also
b restricted to the arbitrary new definition of OROP. The Letter issued by the first
L
respondent to the Chief of Army Staff, the Chief of Na val Staff, and the Chief
PI
of Air Staff on 3-2-2016 also defined OROP in new and arbitrary terms.
15.10. As noted by the Koshyari Committee, after the Sixth Central Pay
Commission, officers from the grade of Lt. Colonel and above fall within
M
one pay band of Rs 37,400 to Rs 67,000. Therefore, defence retirees before
C 2014 would get pension with reference to the minimum of the pay bracket,
irrespective of the fact that they held higher posts such as Major General and
Lt. General. O
C
15.11. All Havildars were granted the honorary rank of N aib Subedar. They
must thus be given the pension of N aib Subedar.
15.12. All personnel who retired as Major after thirteen years of service
T
d
as Commissioned Officers should be given the pension of Lt. Colonel since
EN
Commissioned Officers now automatically become Lt. Colonels after thirteen

years of service.
15.13. All veterans who retired before 2004 as Lt. Colonel should be given
the pension of Colonel since all Commissioned Officers now automatically
EM
retire as Colonel.
e
15.14. While the Government defines OROP as a "uniform pension to be
paid to the defence personnel retiring in the same rank, with the same length
of service regardless of the date of retirement", it creates a class within a class
G
based on the date of retirement.

15.15. The decision to define OROP in narrow terms is an executive act
D
f which can be judicially reviewed and is not a policy decision.

15.16. According to the Letter of the Union Government dated 7-11-2015,
JU
the pension of past pensioners would be fixed one-and-a-half year's behind

even if equalisation is done once in five years.
15.17. Under the Seventh Pay Commission, the basic pension of all
2-
pensioners is to be arrived at by multiplying basic pension as on 31-12-2015

g by a factor of 2.57. Since the basic pension of those who retired before
2
31-12-2013-14 has not been updated to 31-12-2015 (that is, Rs 7605 per month)
but has only been fixed based on the mean of the 2013 pension, that is Rs 6665
20
per month, a past pensioner will get Rs 2415 less than an officer with the same
rank and same length of service but who retired later.
15.18. The Union Government has stated that after the Seventh Pay
h
Commission, the basic pension of personnel in the Colonel and Brigadier ranks
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

will be arrived at by increasing the multiplication factor from 2.57 to 2.67.
N
However, this increase has been denied to the past pensioners on the ground
that the benefit will only be given in 2019 after the periodic equalisation as per a
IO
the new definition.
15.19. The ex-servicemen received the benefit of OROP till the Third
AT
Central Pay Commission. Subsequently, it was recommended that the pension
of ex-servicemen be reduced and to compensate them for such reduction,
they were to be absorbed in paramilitary forces, police forces or public sector
organisations. However, though the pension was reduced, the recommendation b
L
relating to their absorption was not implemented. The army personnel then
PI
demanded that OROP must be implemented.
15.20. The reliance placed by the respondents on D.S. Nakara v. Union of
lndia 3 is incorrect since it only deals with the general law applicable to civil
M
servants. The decision in SPS Vains 2 deals with the special law applicable to
ex-servicemen of the defence forces. C
15.21. The one-man Committee headed by Justice L. Narasimha Reddy

submitted its Report to the Union Government on 26-12-2016. Even after two O
C
years, the Government is still "studying" the Report and has not yet released
the Report.
T
15.22. If the respondents can calculate the enhancement of pension for d

every five years, there is no reason that it cannot be done every year.
EN
15.23. The rule of reduction in the pension if the service of the armed
personnel is less than twenty-six years was introduced in 1973. If a soldier has
served for less than twenty-six years then his pension would be reduced pro
rata of x (number of years served) % 26. The Government has not updated the
EM
basic pay of soldiers and did not bring it on a par with 31-12-2015 pay before e
multiplying it with the factor of2.57. At the same time, the pension was altered
from being rank based to 50% of the last drawn pay. This resulted in double
loss to ex-servicemen. This Court has also struck down the rule of reducing
G
pension if an employee has served less than twenty-six years.

15.24. While the respondents have submitted that an amount of Rs 10,795
D
crores has been paid as arrears for OROP in two years, it only amounts to an f
average increase of Rs 2131 per month per soldier. The Union Government
JU
is spending a higher amount of funds for Central Government employees and

pensioners.
15.25. The Union Government has spent Rs 32,385 crores for OROP in
2-
six years which is less than its spending of Rs 27,800 crores per year for the
scheme of Non-Functional Upgradation. The Union Government consistently g
2
has been spending less on the armed forces. For instance, the "High Altitude
Siachen Allowance" for Army personnel is Rs 31,500, while it is Rs 50,000
20
to 70,000 for all Central Cadre for serving in "hard areas" like Shillong.
h
3 (1983) 1 sec 305: 1983 sec (L&S) 145
2 Union of India v. SPS Vains, (2008) 9 SCC 125 : (2008) 2 SCC (L&S) 838
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
15.26. MACP Scheme should be given to all past retirees to comply with
a the judgment of this Court in SPS Vains 2 . Even if MACP has been given to the
IO
2013 retirees, the comparison made in the chart still holds correct.
15.27. While the Union Government states that the benefit of OROP is to
AT
be given to "past retirees", it has created a confusion by stating that the scheme
must be given prospective effect.
15.28. The MACP Scheme came into effect from 1-1-2016. Therefore, the
b figure of Rs 6665 referring to the pension receivable by a Sepoy should include
L
the benefits of the MACP Scheme.
PI
16. We have heard Mr Venkataramanan, the learned Additional Solicitor
General oflndia, for the respondents. The respondents have made the following
submissions during the course of the proceedings:
M
16.1. The budget for pension has been increased after the implementation
C
ofOROP with effect from 1-7-2014. The disbursement of arrears with respect to
OROP is approximately Rs 10,795.04 crores. The yearly recurring expenditure
on account of OROP is Rs 7123.38 crores. For the six years from 1-7-2014, the O
C
total recurring expenditure is approximately Rs 42,740.28 crores.
16.2. OROP seeks to bridge the gap by taking the maximum and minimum
T
d pension within the rank of pensioners holding the same rank and same length
of service to determine the average. Those who are below the average pension
EN
are brought to the average and those who are drawing a higher pension are
protected.
16.3. The OROP Scheme has been implemented prospectively with effect
from 1-7-2014. The benefits arising out of the scheme are to be paid after
EM
e 1-7-2014 to those who retired prior to 1-7-2014.

16.4. The OROP Scheme envisages revision of pension once in five years,
unlike civilian pension schemes which are revised once in ten years. The plea
G
of the petitioners to provide "automatic" adjustment cannot be acceded to as it

is impossible to implement it.
D
16.5. It is a settled principle of law that minutes, statements and inter-

f ministerial discussions with the Ministry and within the Ministry do not have
JU
the force of law. Therefore the reference made by the petitioners to the minutes
of the meeting to argue that the definition of OROP has been altered is
unsustainable.
16.6. The scheme/policy can be challenged on the grounds of arbitrariness
2-
but a demand to substitute the policy cannot be made.

g
16.7. The disparity alleged by the petitioners in the pensions of the defence
2
personnel with the same rank and same length of service has been wrongly
20
depicted on account of the OROP Scheme. An artificial disparity has been

shown by equating different classes of pensioners.
16.8. In Figure 1 of the chart produced by the petitioners, they have
h compared the pension payable to a Sepoy with 15 years of service under the
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

OROP Scheme and the pension of a Sepoy who retired before 2014 (before the
N
application of OROP) after fifteen years of service who is drawing pay in the
rank of Naik due to the MACP Scheme introduced pursuant to Circular No. 555 a
IO
dated 4-2-2016.
16.9. The pension figure of Rs 6665 is arrived at by taking the average
AT
pension of the maximum and minimum pension of 2013. However, the figure
of Rs 7605 is calculated on the basis of 50% of the last pay drawn before
retirement.
16.10. Under the MACP Scheme, a Sepoy who was originally getting b
L
Rs 2000 as grade pay would after eight years of service receive a next grade pay
PI
of Rs 2400. The grade pay of Rs 2400 corresponds to the grade pay of Naik.
Similarly after sixteen years of service, he would receive the higher grade pay
of Rs 2800, which corresponds to the grade pay of Havildar.
M
16.11. Similarly, the disparity shown in Figure 2 by the petitioners is due
C
to the implementation of the MACP Scheme rather than OROP. Figure 3 which
pertains to the rank of Group Captain quotes the pension amount of Group
Captain Daniel Victor who retired on 28-2-2015. The OROP Scheme is not O
C
applicable to Group Captain Victor.
16.12. The comparison drawn by the petitioners is a comparison between
non-comparables. The pension calculated based on the average pension in 2013
T
d
cannot be compared with the actual pension received based on the pension
EN
rules.
16.13. The MACP regime warranted a service of 6, 16 and 24 years of
service by the Sepoy for grouping with the rank of Naik, Havildar and Naib
Subedar. On the other hand, under the earlier Assured Career Progression
EM
("ACP") regime, the required service i s of 10, 20 and 30 years. e

16.14. For computation of O ROP, the Union Government has taken MACP
as the base and has applied it across the board to all retirees having the same
length of service. OROP is not calculated based on MACP and ACP regime.
G
No such differentiation is made.

16.15. An executive decision of the Union Government on the OROP can
D
only be challenged on legal principles. However, the petitioners are seeking f

the most beneficial interpretation of OROP to be implemented. It cannot be
JU
contended that the most beneficial interpretation of OROP is the only "true"
interpretation and that it must be implemented as a right.
16.16. In SPS Vains 2 , this Court held that pre and post 1996 retired Major
2-
Generals must be treated on a par to remove an anomaly in the pension of

pre-1996 retired Major Generals. The principle in that case was about the g
2
removal of anomaly between the ranks of Major General and Brigadier which
had arisen due to the implementation of the Fifth and the Sixth Central Pay
20
Commissions.
h
2 Unio n of India v. SPS Vains, (2008) 9 SCC 125 : (2008) 2 SCC (L&S) 838
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
16.17. In Indian Ex-Services League v. Union of lndia 4 , this Court has held
a that unless the claim of OROP can be treated to be flowing from the reliefs
IO
provided in N akara 3 , the reliefs claimed cannot be granted. It was also observed
that the decision in Nakara 3 cannot be enlarged to cover within it all the claims
AT
made by the pension retirees since the purpose of computation of the pension
is different. The decisions in K.L. Rathee v. Union of lndia 5 and Suchet Singh
Yadav v. Union of lndia 6 support this submission.
b 16.18. The Committee headed by Justice L. Narasimha Reddy submitted
L
its Report to the Union Government. The Internal Committee is examining the
PI
feasibility of the recommendations.
16.19. The recommendations of the Koshyari Committee were not
M
accepted by the Union Government and are thus not binding upon it. The
recommendations of the Committee cannot be termed as the decision of the
C
Union Government.
16.20. Since the Sixth Pay Commission, the length of service is no longer
a criterion for calculating pension. The pension is now determined by 50% of
O
C
the last pay drawn. However, due to demands, OROP rates have been prepared
based on the average pension of retirees in 2013.
T
d 16.21. It is not feasible to undertake an automatic revision. Though the

Government has accepted the principle of uniformity, it is not unreasonable to
EN
define periodicity for ensuring uniformity.

16.22. The argument that OROP should be approved with effect from
1-4-2014 because it was announced in the Budget of 2014 is erroneous.
EM
The scheme was proposed by the Ministry of Defence through the Letters
e dated 7-11-2015 and 3-2-2016.
16.23. The pension of O ROP beneficiaries who retired before 1-7-2014 was
revised by the multiplication factor of 2.57 according to the recommendations
G
of the Seventh Central Pay Commission. However, those who retired after
1-1-2016 received the benefit of only revision in emoluments in terms of the
D
recommendations of the Seventh Central Pay Commission.

f 16.24. The statement made by the Finance Minister on 17-2-2014 was not
JU
based on the decision of the Union Cabinet. The Cabinet Secretariat conveyed
the approval of the Prime Minister to the OROP Scheme on 7-11-2015.
The Ministry of Defence communicated this policy by a Notification
dated 7-11-2015. A post facto approval was conveyed by the Union Cabinet
2-
on 6-4-2016.
g
16.25. One of the qualifying conditions for the OROP Scheme is that the
2
personnel must have the "same length of service". One who had not put in the
20
same length of service is not eligible for an MACP. The total financial outflow
4 (1991) 2 sec 104: 1991 sec (L&S) 536: AIR 1991 SC 1182
h 3 D.S. Nakara v. Union of India, (1983) 1 SCC 305: 1983 SCC (L&S) 145
5 (1997) 6 sec 7: 1997 sec (L&S) 1253
6 (2019) 11 sec 520: c2019) 2 sec (L&S) 557
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

that is likely to be incurred by the Union Government for non-MACP to be
N
linked with MACP personnel would be in the range of Rs 42,776.38 crores.
16.26. The expression "automatically" used in the Koshyari Committee a
IO
Report, the minutes of the meeting held on 26-2-2014 and the executive order
dated 26-2-2014 defining the OROP Scheme follow the expression "in the rates
AT
of pension to be automatically passed on to the past pensioners". It must, thus,
be read as meaning that the rates of pension will be passed to the past pensioners
without any difficulties. The phrase "automatically" does not mean the time
period. b
L
C.Analysis
PI
17. Though, a significant number of factual and detailed issues were raised
in the course of the pleadings. Mr Huzefa Ahmadi, learned Senior Counsel
M
appearing on behalf of the petitioners brought focus upon and urged the
following specific submissions during the course of the hearing: C
17.1. The Union Government took an executive decision to implement
OROP as understood by the Koshyari Committee. This is evidenced by: O
C
(a) The statement of the Minister of Finance in the Lok Sabha on
17-2-2014;
(b) The decision taken on 26-2-2014 in the meeting convened by the
T
d
Union Minister for Defence;
EN
(c) The Letter dated 26-2-2014 of the Union Government to the CGDA;
(d) The Budget speech of the Minister of Finance on 10-7-2014; and
(e) The reply of 2-12-2014 of the Minister of State for Finance to the
EM
Member of Parliament.
17.2. The essential elements underlying the concept of OROP are: e
(a) Those retiring from the same rank with the same length of service
must receive the same pension irrespective of the date of retirement;
G
(b) Future enhancements of pension must be automatically passed on

to past pensioners; and
D
(c) Bridging of the gap between the rate of pension of present and past f
JU
pensioners.
17.3. In substitution of the above principle underlying OROP, the
communication dated 7-11-2015 of the Ministry of Defence modified the
2-
executive decision by stipulating that:

(i) The pension of past pensioners would be refixed on the basis of g
2
the pension of the retiree s of calendar year 2013, with the benefit being
effective from 1-7-2014;
20
(ii) Pension is to be revisited for all pensioners on the basis of the

average of the minimum and maximum pension of persons who retired in
2013 in the same rank and with the same length of service;
(iii) In the future pension would be revisited every five years and not h
automatically; and
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
(iv) Hence, the actual decision which was taken on 7-11-2015 deviate s
a from the principle of equality which OROP adopts.
IO
18. The submissions which have been urged by the pensioners are sought to
be buttressed by referring to the charts set out in the earlier part of this judgment
AT
and marked as Figures 1, 2 and 3 by which an attempt has been made to show
the disparity in the pension payable to persons of the same rank with the same
length of service, based on the date of retirement.
b
L
C.1. Concept and genesis of OROP
19. The adoption of OROP as a guiding statement of policy on 7-11-2015
PI
was preceded by discussions both within and outside Parliament. The Koshyari
Committee submitted its Report on 10-12-2011. The Committee formulated
M
an understanding of the concept of OROP. According to the Report of the
C Committee, OROP implies that a " uniform pension be paid to the armed forces
personnel retiring in the same rank with the same length of service irrespective
of their date of retirement and any future enhancements in the rate of pension to O
C
be automatically passed on to the past pensioners". The concept, according to
the Report implied "bridging the gap between the rate of pension of the current
pensioners and the past pensioners". This understanding of the concept of
T
d OROP in the Koshyari Committee Report was based on the norm that hierarchy
in the armed forces comprises of two elements, namely, rank and length of
EN
service. Ranks are conferred by the President and signify command, control and
responsibility. Ranks are allowed to be retained even after retirement. Hence
OROP, according to the Koshyari Committee postulates that two personnel
from the armed forces in the same rank and with the equal length of service
EM
e should get the same pension irrespective of their dates of retirement and any
future enhancement in the rates of pension must be automatically passed on to
past pensioners.
20. While proposing the adoption of OROP in principle, the Koshyari
G
Committee highlighted that:

D
(i) OROP was in vogue till 1973 when the Third Central Pay
f
Commission decided otherwise.
JU
(ii) Unlike civilian employees who retire by age, armed forces

personnel retire by rank.
(iii) The conditions of service of personnel from the armed forces are
2-
harsher than those of civilian employees and armed forces personnel cannot
g be equated with civilian employees of the Government.
2
21. Now it needs to be understood that the Koshyari Committee Report is a

report submitted to the Rajya Sabha by the Committee on Petitions. The Report
20
cannot be enforced as a statement of government policy. In Kalpana Mehta

v. Union of India 7, a Constitution Bench of this Court dealt, on the reference
under Article 145(3), with two issues, namely: (SCC p. 38, para 9)
h
7 (2018) 7 sec 1
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

"9 . ... '73.1. (i) Whether in a litigation filed before this Court either
N
under Article 32 or Article 136 of the Constitution of India, the Court can
refer to and place reliance upon the Report of the Parliamentary Standing a
IO
Committee?
73.2. (ii) Whether such a report can be looked at for the purpose of
AT
reference and, if so, can there be restrictions for the purpose of reference
regard being had to the concept of parliamentary privilege and the delicate
balance between the constitutional institutions that Articles 105, 121 and
122 of the Constitution conceive?' *" b
L
22. Dipak Misra, C.J. (speaking for himself and A.M. Khanwilkar, J.) held
PI
thus: (Kalpana Mehta case 7, SCC p. 86, para 159)
"Q. Conclusions
M
* * *
159.1. Parliamentary Standing Committee Report can be taken aid of c
O
for the purpose of interpretation of a statutory provision wherever it is so
necessary and also it can be taken note of as existence of a historical fact.
C
* * *
159.3. In a litigation filed either under Article 32 or Article 136 of
the Constitution of India, this Court can take on record the Report of
T
the Parliamentary Standing Committee. However, the report cannot be d

impugned or challenged in a court of law.
EN
159.4. Where the fact is contentious, the petitioner can always collect
the facts from many a source and produce such facts by way of affidavits,
and the Court can render its verdict by way of independent adjudication.
EM
159.5. The Parliamentary Standing Committee Report being in the

public domain can invite fair comments and criticism from the citizens as e
in such a situation, the citizens do not really comment upon any Member
of Parliament to invite the hazard of violation of parliamentary privilege."
G
23. One of us (D.Y. Chandrachud, J.) speaking for himself and Dr A.K.
Sikri, J. held that a Report of a Parliamentary Committee may have a bearing
D
upon diverse perspectives some of which were formulated thus: (Kalpana

f
Mehta case 7 , SCC p. 127, para 259)
JU
"259.l. The Report of a Parliamentary Committee may contain a

statement of position by Government on matters of policy;
259.2. The report may allude to statements made by persons who have
2-
deposed before the Committee;

g
259.3. The report may contain inferences of fact including on the
2
performance of Government in implementing policies and legislation;

20
259.4. The report may contain findings of misdemeanour implicating

a breach of duty by public officials or private individuals or an evasion of
law; or
h
* Ed.: As observed in Kalpana Mehta v. Union of India, (2017) 7 SCC 295, p. 322, para 73.
7 Kalpana Mehta v. Union of India, (2018) 7 SCC 1
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
259.5. The report may shed light on the purpose of a law, the social
a problem which the legislature had in view and the manner in which it was
IO
sought to be remedied."
24. The judgment elaborates that: (Kalpana Mehta case 7, SCC pp. 129-30,
AT
para 264)
"264. Committees of Parliament attached to ministries/departments
b of the Government perform the function of holding the Government
L
accountable to implement its policies and its duties under legislation. The
performance of governmental agencies may form the subject-matter of
PI
such a report. In other cases, the deficiencies of the legislative framework
in remedying social wrongs may be the subject of an evaluation by a
M
Parliamentary Committee. The work of a Parliamentary Committee may
C
traverse the area of social welfare either in terms of the extent to which
existing legislation is being effectively implemented or in highlighting the
lacunae in its framework. There is no reason in principle why the wide
jurisdiction of the High Courts under Article 226 or of this Court under
O
C
Article 32 should be exercised in a manner oblivious to the enormous
work which is carried out by Parliamentary Committees in the field. The
T
d work of the committee is to secure alacrity on the part of the Government

in alleviating deprivations of social justice and in securing efficient and
EN
accountable governance. When courts enter upon issues of public interest

and adjudicate upon them, they do not discharge a function which is
adversarial. The constitutional function of adjudication in matters of public
interest is in step with the role of Parliamentary Committees which is to
EM
e secure accountability, transparency and responsiveness in the Government.

In such areas, the doctrine of separation does not militate against the court
relying upon the Report of a Parliamentary Committee. The court does
not adjudge the validity of the report nor for that matter does it embark
G
upon a scrutiny into its correctness. There is a functional complementarity

between the purpose of the investigation by the Parliamentary Committee
D
f and the adjudication by the court. To deprive the court of the valuable
insight of a Parliamentary Committee would amount to excluding an
JU
important source of information from the purview of the court. To do so on

the supposed hypothesis that it would amount to a breach of parliamentary
privilege would be to miss the wood for the trees. Once the Report of the
2-
Parliamentary Committee has been published it lies in the public domain.

g Once Parliament has placed it in the public domain, there is an irony about
the executive relying on parliamentary privilege. There is no reason or
2
justification to exclude it from the purview of the material to which the

20
court seeks recourse to understand the problem with which it is required

to deal. The court must look at the report with a robust commonsense,
conscious of the fact that it is not called upon to determine the validity of
h the report which constitutes advice tendered to Parliament. The extent to

~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

which the court would rely upon a report must necessarily vary from case
N
to case and no absolute rule can be laid down in that regard."
a
IO
25. In a concurring judgment, Ashok Bhushan, J. observed: (Kalpana
Mehta case 7, SCC pp. 190-91, para 449)
"449. 7. Both the parties have not disputed that parliamentary reports
AT
can be used for the purposes of legislative history of a statute as well as
for considering the statement made by a minister. When there is no breach
of privilege in considering the parliamentary materials and reports of the b
L
Committee by the Court for the above two purposes, we fail to see any
valid reason for not accepting the submission of the petitioner that courts
PI
are not debarred from accepting the parliamentary materials and reports, on
record, before it, provided the court does not proceed to permit the parties
M
to question and impeach the reports."
26. The Koshyari Committee Report can be relied upon to indicate the C
background of the adoption of OROP. The Report furnishes the historical
background, the reason for the demand, and the view of the Parliamentary O
C
Committee which proposed the adoption of OROP for personnel belonging
to the armed forces. Beyond this, the Koshyari Committee Report cannot be
construed as embodying a statement of governmental policy. Governmental
T
policy formulated in terms of Article 73 by the Union or Article 162 by the State d
has to be authoritatively gauged from the policy documents of the Government,
EN
which in present case is the communication dated 7-11-2015. Prior to it, on

17-2-2014, a statement was made by the Union Minister of Finance in the
Lok Sabha while presenting the interim budget for 2014-15 stating that the
EM
Government had accepted the principle of OROP for the defence forces and
that the decision would be implemented from Financial Year 2014-15. The e
statement of the Union Minister of Finance reflects an in-principle decision to
adopt OROP for all personnel belonging to the armed forces. Evidently, the
G
modalities of implementing OROP were yet to be chalked out and were adopted
later.
D
27. On 26-2-2014, a meeting was held by the Minister of Defence to discuss

the modalities for implementing the decision to adopt OROP. Para 3 of the f
JU
minutes of the meeting elaborate that OROP implies that:

(i) Uniform pension be paid to armed forces personnel retiring in
the same rank with the same length of service irrespective of the date of
2-
retirement;
(ii) Any future enhancement in the rates of pension should be passed g
2
on to past pensioners;
(iii) The gap between the rates of pension of current and past pensioners
20
should be bridged; and

(iv) Future enhancements in the rates of pension should be
automatically based (sic passed) on to the past pensioners at that stage.
h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
28. The CGDA was directed to initiate steps in consultation with the
a Finance and Ex-servicemen Welfare Departments of the Ministry of Defence
IO
to give effect to the decision. The meeting which was held on 26-2-2014 was
part of the decision-making process of the Union Government for determining
the modalities for implementing OROP. On 26-2-2014, a communication was
AT
addressed by the Department of Ex-Servicemen Welfare to CGDA noting that
at the meeting chaired by the Minister of Defence, it had been decided to
b implement OROP for all ranks of the defence forces prospectively from the
L
Financial Year of 2014-15. Para 2 of the communication reads as follows:
PI
"Accordingly, CGDA may work out the modalities in consultation with
Service Hqrs., (who in turn may appropriately consult ex-servicemen),
Department ofESW and MoD (Fin.) and take necessary steps to implement
M
the same."
C
29. On 10-7-2014, the Minister of Finance in the course of his speech
while presenting the annual budget stated that the Union Government had
adopted the policy of OROP to address pension disparity and a further sum of
O
C
Rs 1000 crores was set aside to meet the requirement of the year. On 2-12-2014,
information on OROP was furnished by the Minister of State for Defence in a
T
d
reply to a Member of the Rajya Sabha.
30. The adoption in principle of OROP followed by the discussion on
EN
the modalities for implementing it eventually led to the communication

dated 7-11-2015 of the Ministry of Defence to the Chiefs of Army Staff, Air
Force Staff and Naval Staff. The communication indicates that:
EM
"2. It has now been decided to implement "One Rank One

e Pension" (OROP) for the ex-servicemen with effect from 1-7-2014. OROP
implies that uniform pension be paid to the Defence Forces Personnel
retiring in the same rank with the same length of service , regardless of their
G
date of retirement, which, implies bridging the gap between the rates of
pension of current and past pensioners at periodic intervals. [sic]"
D
Para 3 of the communication adverts to the salient features:

f
"3. Salient features of the OROP are as follows:
JU
(i) To begin with, pension of the past pensioner would be re-fixed

on the basis of pension ofretirees of calendar year 2013 and the be nefit
2-
will be effective with effect from 1-7-2014.

(ii) Pension will be re-fixed for all pensioners on the basis of the
g
average of minimum and maximum pension of personnel retired in
2
2013 in the same rank with the same length of service.

20
(iii) Pension for those drawing above the average shall be

protected.
(iv) Arrears will be paid in four equal half-yearly instalments.
h However, all the family pensioners including those in receipt of
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Special/Liberalised family pension and Gallantry award winners shall
N
be paid arrears in one instalment.
(v) In future, the pension would be re-fixed every 5 years." a
IO
The communication also indicated that personnel who opt to get discharged
henceforth would not be entitled to the benefit of OROP. Moreover, the Union
AT
Government had decided to appoint a committee to look into the anomaly in the
implementation of OROP and its report was to be submitted within six months.
31. The features of the policy communication of 7-11-2015 need to be b
L
noticed. First, it contains the decision of the Indian Government to implement
OROP for ex-servicemen. Second, it specifies the date with effect from which
PI
the decision would be implemented, namely, 1-7-2014. Third, it embodies the
understanding that OROP implies the payment of uniform pension to defence
M
personnel retiring in the same rank with the same length of service regardless of
the date of retirement. Fourth, it emphasises the need to bridge the gap between
C
the rates of pension of current and past pensioners at "periodic intervals".
O
32. A considerable amount of debate has taken place in these proceedings
on whether the expression "at periodic intervals" was in breach of the
C
original understanding that enhancements in the rates of pension would be
automatically passed on. While dealing with the submission, it is important
T
to note at the outset that right from the Koshyari Committee Report, it d
was envisaged that "any future enhancement in the rates of pension is to
EN
be automatically passed on to the past pensioners". The statement made by

the Union Minister of Finance in the Lok Sabha on 17-2-2014 propounded
in principle the decision to implement OROP. At the meeting chaired by
the Defence Minister on 26-2-2014, it was again envisaged that "any future
EM
enhancement in the rates of pension to be automatically passed on to the e

past pensioners". The reply furnished in writing by the Minister of State for
Defence to a Member of the Rajya Sabha also similarly indicates that "future
enhancement in the rate of pension to be automatically passed on to the past
G
pensioners". The legislative and other material prior to 7-11-2015 proposed

that future enhancements in the rates of pension would be automatically passed
D
on. The expression "automatically" was clearly not linked to a time period for f
the revision of pensions. None of the documents on the record prior to the
JU
communication dated 7-11-2015 suggests that the process of revising pensions

was to be continued on an ongoing basis as opposed to revision at periodic
intervals.
2-
33. The fallacy in the submission of the petitioners is in the argument that
the policy communication dated 7-11-2015 is contrary to the original decision g
2
which was taken by the Union Government to implement OROP. Implicit in

the submission of the petitioners is the premise that the original decision was
20
based on the Koshyari Committee Report followed by the statement on the

floor of the House by the Minister of Finance (17-2-2014 and 10-7-2014) and
the minutes of the meeting convened by the Defence Minister (26-2-2014).
Our analysis of the underlying document indicates that while a decision to h
implement OROP was taken in principle, the modalities for implementation
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
were yet to be chalked out. Thus, there was no conscious policy decision on the
a part of the Union Government on the modalities for implementing OROP until
IO
the communication dated 7-11-2015 came into being. The communication of
7-11-2015 cannot be invalidated on the ground that it infringed the "original
understanding" of OROP.
AT
34. A hierarchy in law exists between statutes and rules - a statutory
provision will have precedence over delegated legislation if the latter conflicts
b with the former. Similarly, executive instructions cannot override a statute or
L
rules made in pursuance of a statute. But in the present case the entire canvas is
PI
governed by a policy. The terms for implementing the policy were specified on
7-11-2015 . Hence, that element of the policy cannot be challenged on the notion
that there is an inflexible notion of OROP couched in an original understanding.
M
OROP is itself a matter of policy and it was open to the makers of the policy
C to determine the terms of implementation. The policy is of course subject to
judicial review on constitutional parameters, which is a distinct issue.
35. While the petitioners have not adverted to the doctrine of legitimate O
C
expectations, they have implicitly relied on this principle. The doctrine of
legitimate expectations can be invoked if a representation made by a public
body leads an individual to believe that they would be a recipient of a
T
d substantive benefit. A part of the petitioners ' grievance stems from the belief
that an assurance made by State functionaries, the Ministers of the Union
EN
Government, did not translate into a conscious policy decision, which is

embodied in the communication dated 7-11-2015. We have stated above
that the expression "automatically" was clearly not linked to a time period
EM
for the revision of pensions. But if it is to be assumed that the expression

e "automatically" meant that the revision in the rates of pension would take place
on an ongoing basis rather than at periodic intervals, the question arises whether
the doctrine of legitimate expectations can be invoked in the present case.
G
36. In State of Jharkhand v. Brahmputra Metallics Ltd. 8 , a two-Judge

Bench of this Court, of which one of us (D.Y. Chandrachud, J.) was a part,
D
clarified the doctrinal difference between the concepts of promissory estoppel

f and legitimate expectations. The Bench observed that the doctrine of legitimate
JU
expectations, a public law concept, is premised on the principles of fairness

and non-arbitrariness in State action. The doctrine of legitimate expectations
emerges as a facet of Article 14 of the Constitution. On the other hand,
promissory estoppel, being a private law concept, can be invoked if the State
2-
has entered into a private contract with another entity but is inapplicable where
g a representation has been made by the State in the discharge of its public
2
functions. The doctrine of legitimate expectations is applicable in the latter

20
situation. Noting that in India, the two doctrines have been conflated, this Court
went on to analyse if the change in an existing government policy violates the
legitimate expectations of those who were previously covered by such policy.
However, in the present case, there was no concrete government policy in
h
8 (2021) 18 SCC 536: 2020 SCC OnLine SC 968
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

existence prior to 7-11-2015. There existed only certain assurances that were
N
made by the Ministers, or which could be deduced from the minutes of a
meeting that was chaired by the Minister of Defence. These assurances were a
IO
also to the effect that OROP has been accepted in principle. The implementation
was yet to be worked out.
AT
37. In State of Arunachal Pradesh v. Nezone Law House 9 , a two-Judge
Bench of this Court held that when the views of various departments/Ministries
are involved, an oral promise by a Minister does not bind the Government. In
that case, a law publisher had contended that the then Law Minister had assured b
L
the publisher that certain books will be purchased from it. The document that
PI
was relied upon by the publisher was a departmental note which indicated that
the decision regarding the purchase was subject to the concurrence of other
departments and Ministries. This Court observed: (SCC p. 612, para 8)
M
"8. As noted above the factual scenario is interesting. The document
C
relied upon by the respondent and the High Court refers to some oral
O
expression of desire by the then Law Minister. When the views of several
departments were involved the question of any oral view being expressed
C
by a Minister is really not relevant. Further, the document relied upon
was nothing but a departmental note which itself clearly indicated that
the views of various departments/Ministries were to be taken and their
T
d
concurrence was to be obtained. Apart from that, undisputedly there was
EN
some factual dispute as to whether the intended purchase was of volumes

or of sets. There is conceptual difference between the two. The books were
not even printed at the relevant point of time. The High Court has noticed
only one volume had been printed. Further the need for the purchase of the
EM
books for the judicial officers was to be assessed in consultation with the
e
High Court. The Law Minister could not have, without taking the view of
the High Court, placed orders. In any event the dispute as to the volumes
or the sets and the interpolation in the documents were of considerable
G
relevance. Unfortunately the High Court has lightly brushed aside this
aspect. The doctrines of promissory estoppel and legitimate expectation
D
were not applicable to the facts of the case." (emphasis supplied)

f
38. In the present case, discussions took place within the Government and
JU
even as of 26-2-2014, the meeting chaired by the Minister of Defence set

out broad parameters of the decision, while leaving it to the CGDA to ensure
necessary steps in consultation with the three services and the Finance and
2-
ESW wings of MoD "to give effect to this decision". The meeting envisaged
that family pensioners and disabled pensioners would be included and that g
2
ex-servicemen may also be properly consulted as required by the service. All

this is clearly suggestive of the fact that in the evolving decisions which were
20
taking place within the Government, a formulation of the precise modalities

which were to be adopted was yet to take place. This eventually took place on
7-11-2015. The communication dated 7-11-2015 cannot, therefore, be assailed
on the ground that it is contrary to the original intent of the policy formulated h
9 c2oos) s sec 609
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
by the Union Government. The policy of the Union Government is what is
a embodied in the communication dated 7-11-2015. The statements made on
IO
the Floor of the House and minutes of ministerial committees are pointers to
the fact that the Union Government had in principle decided to implement
0 RO P but the precise framework of its implementation was a matter of evolving
AT
discussion within Government. The formulation of modalities which took place
in the communication dated 7-11-2015 represents the policy choices adopted
b by the Government.
L
39. While the communication dated 7-11-2015 is undoubtedly open to be
PI
scrutinised on constitutional parameters, there is no substance in the plea that
the decision which was taken on 7-11-2015 is somehow contrary to an original
policy decision of the Union Government. The policy and its modalities for
M
implementation are those which have been embodied in the communication
C dated 7-11-2015.
C.2. Plea of discrimination
40. The submission of the petitioners on the violation of Article 14 is
O
C
premised essentially on three aspects:
40.1. Fixation of the pension as of calendar year 2013 would result in
T
d pre-2014 retirees getting less pension of one increment than a soldier retiring
after 2014.
EN
40.2. Fixing the pension based on the mean of minimum and maximum
pension of 2013 would result in different pensions for the same ranks and same
length of service depending on whether the personnel retired before or after
EM
31-12-2013. In effect, a higher ranked soldier would receive lesser pension on

e comparison to a lower ranked soldier.
40.3. As a result of the process of equalisation every five years, persons
who have retired prior in point of time would be placed at a disadvantage as
G
their unequalised pension would be multiplied by a factor of 2.57 while those

who have retired after 1-1-2014 would get the benefit of higher pension which
would be multiplied by 2.57.
D
f 41. In the course of its comprehensive affidavit, the Union Government

JU
attempted to explain the disparity in the pension payable to a Sepoy with 15

years of qualifying service under OROP and the actual pension of a Sepoy
with 15 years of qualifying service who retired in 2014 before the application
of OROP. The following explanation was offered to the three tabular charts
2-
appended as Figures 1, 2 and 3 above:

g
"A. Tabular Chart 1:
2
(a) In this table, the comparison made by the petitioner is between pension
20
payable to a Sepoy with 15 years of qualifying service under OROP and the
actual pension of a Sepoy who retired in 2014 (before application of OROP)
after 15 years' qualifying service who is drawing pension in the rank of
h
Naik, due to operation of the Modified Assured Career Progression Scheme
[hereinafter referred to as 'MACP Scheme'].
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

(b) The figure of Rs 6666 is derived from the Table at p. 3 of the Note.
N
The figure of Rs 6665 denotes the weighted average pension of the minimum
and maximum pension of 2013 of Sepoys who retired in 2013 with 15 years a
IO
of qualifying service.
(c) The figure of Rs 7605 is derived from the Pension Payment Order
annexed at p. 5 of the Note. Pension is calculated on the basis of 50% of the
AT
last pay drawn before retirement. This can be arrived at by the following:
! Sl. No. : Particulars : Amount (in Rs) ! b
L
: 1. :Last pay :
, •••••••••••••••• $, •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,
10,510 :
: 2. :Grade pay : 2400 :
PI
1 3. [MSP ; 2000 :
1 4. 1Class allowance 1 300 :
1 5. 1Total 1 15,210 :
M
1.................................
6. [Pension (50% of last pay) l 7605 i
t ..................................................................................................................... \ ...................................
C
*Figures from p. 5 of the Note
(d) The difference in pension between the two pensions in Tabular Chart O
C
1 is due to the applicability of the MACP Scheme (implemented based on
the recommendations of the 6th Central Pay Commission). Under the MACP
Scheme, a defence personnel who has not been promoted for 8/16/24 years
T
of regular service, would be eligible for grant of next higher grade pay after d
completion of 8/16/14 years of regular service. In other words, a Sepoy who
EN
was originally getting Rs 2000 as grade pay would after 8 years of service
(without promotion) be granted the next higher grade pay of Rs 2400. The
grade pay of Rs 2400 ordinarily corresponds to the grade pay of Naik.
EM
(e) Similarly, after 16 years of service (without promotion), such Sepoy

would get the next higher grade pay of Rs 2800. The grade pay of Rs 2800 e
ordinarily corresponds to the grade pay of Havildar.
(j) As a logical corollary, the pay (and consequently pension) of different
G
Sepoys would differ/vary depending on whether benefit of the MACP Scheme

has been granted to such Sepoy or not.
D
(g) The applicability of the MACP Scheme on the pension of a retired

defence personnel has been dealt by Circular No. 555 dated 4-2-2016, wherein f
at Para ll(c), it has been stated:
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"11. The provisions of this circular shall be applicable to all Pre-1-7-2014

pensioners/family pensioners and their pension/family pension shall be
stepped up with reference to rank, group and qualifying service in which they
2-
were pensioned.
Note: (a)-(b) * * * g
2
(c) A JCOs/ORs pensioner, who has retired with a particular rank and
granted ACP-I will be eligible for revision of pension of a next higher rank;
20
if ACP-II has been granted, he will be eligible for revision of pension of next
higher rank of ACP-I; and if ACP-III has been granted, he will be eligible for
revision of pension of next higher rank of ACP-II w.e.f. 1-7-2014.
For example-A Sepoy granted ACP-I will be eligible for revision of h
pension of Naik rank, Sepoy granted ACP-II will be eligible for revision
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
of pension of H avildar rank and sepoy granted ACP-III will be eligible for
revision of pension of N aib Subedar rank [ ... ]"
a
IO
Therefore, the example of two Sepoys drawing different pension amount
is due to operation of MACP and is not due to operation of the OROP Scheme.
AT
(h) It is also important to point out that the MACP Scheme is only one such
factor which influences the pay drawn by a Sepoy. The other factors include
promotion, disciplinary proceedings, etc.
b B. Tabular Chart 2:
L
(a) In this chart, the pension of a Naik has been compared with a person
PI
drawing pension of Havildar by virtue of the MACP Scheme.
(b) The figure of Rs 7170 is derived from the Table at p. 4 of the Note.
The figure of Rs 7170 denotes the weighted average pension of the minimum
M
and maximum. pension of 2013.
C
(c) The figure of Rs 8295 is derived from the pension payment order
annexed at p. 6 of the Note. Pension is calculated on the basis of 50 % of the
last pay drawn before retirement. This can be arrived at by the following: O
C
i Sl. No . : Particulars : Amount (in Rs) i
:s••••••••••••••••
1. :Lastpay : 11,490 :
T
, ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• s•••••••••••••••••••••••••••••••••
d :s••••••••••••••••
2. Grade pay
:, .............................................................. :, •••••••••••••••••••••••••••••••••
2800 :
: 3. :MSP : 2000 :
EN
1 4. lClass allowance 1 300 i

1 5. lTotal 1 16,590 i
).................
6. l,...........................................................
Pension (50% of last pay) l,................................
8295 !.
EM
(d) Now, due to the operation of the MACP Scheme, the Naik (grade pay
e
of Rs 2400) is actually drawing the next higher grade pay of Rs 2800, which
corresponds to the grade pay of Hav ildar. This is the same principle, which
was the basis for difference in pension in Tabular Chart l.
G
C. Tabular Chart III:

(a) Tabular Chart III pertains to the rank of Group Captain. As p er Column
D
f II of this chart, the ex ample quoted is that of a 2014 retiree. However, the
pension amount quoted is of Group Captain Daniel Victor, who retired on
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28-2-2015. It is important to state that the OROP Scheme was not applicable
to Group Captain Daniel Victor.
(e) Therefore, the petitioner has misled this Hon'ble Court by relying
2-
on the pension of a recent retiree who has not been covered under the
OROP Scheme. The PPO Number of Group Captain Daniel Victor is
g
08/14/1/114/2015.
2
18. It is further submitted that the flaw in pointing out the alleged
20
disparities by referring to the Tables at p. 1 of the Note are due to the following
reasons, inter alia:
(i) The comparison as mentioned in the Table is a comparison between
h non-comparables. The weighted average pension of the minimum. and
maximum pension of 2013 can never be compared with the actual amount
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

being received by a defence personnel as pension fixed under the rules
N
applicable for retiring pension in the normal course.
(ii) The weighted average pension signifies the lowest/minimum a
IO
amount that a defence personnel retiring up to 2013 is entitled to get
as OROP pension. Whereas, the actual pension of the retired defence
personnel in 2014 (without effect of OROP) is based on pay last drawn.
AT
This amount of actual pension may be higher (due to various factors), but
cannot be lower than the weighted average pension, as in that case, pension
would be raised (protected) to the level of the weighted average pension
b
L
(OROP).
(iii) In other words, the pension amount of Rs 6665 is the minimum
PI
prescribed benchmark amount that any Sepoy (with 15 years' qualifying
service) would get under OROP as per Table 7 at p. 3 of the Note.
M
Therefore, no Sepoy with the same pay and same length of service
will get an amount less than Rs 6665 under OROP. The minimum
C
prescribed benchmark is fixed to ensure that all defence personnel retiring
O
pre-2013 are pulled up to receive at least the minimum prescribed
pension. The benchmarking to the average of the minimum and maximum
C
ensures upliftment of those receiving below the benchmark rate, whereas,
protection of those who are receiving a higher pension than the benchmark
rate.
T
(iv) The petitioner's interpretation is an attempt to equalise the d

EN
pension of every defence personnel with the highest pension drawn by a

defence personnel in the same rank with the same length of service. Such
an interpretation is completely arbitrary definition of how OROP should
be implemented."
EM
42. During the course of the hearing, the Union Government placed on e
record a further affidavit. The affidavit places on record the status of the grant
of MACP benefits to defence personnel across the three services. The sample
data for 2013 which was the base year for the calculation has been placed on
G
the record and is reproduced below:

" ... (v) Likewise, a Sepoy who gets promoted at the first instance as
D
Naik in its natural course but does not get promoted for the subsequent ranks f
(which may happen due to non-availability of vacancies or stagnation) would
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be entitled to the MACP upgradations of those ranks.

(vi) It is also respectfully submitted that the threshold condition to qualify
for MACP is the completion of the required length of service. Consequently,
2-
one who completed the required length of service would qualify for MACP
automatically unless otherwise barred due to disciplinary proceedings or g
2
performance.
(vii) It is also respectfully submitted that the threshold condition to qualify
20
for MACP is the completion of the required length of service. Consequently,

one who completes the required length of service would qualify for MACP
automatically unless otherwise barred due to disciplinary proceedings or
performance. h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
(viii) It is therefore self-evident that a Sepoy who does not complete the
a required length of service of 8 years and one who completed it, cannot be
IO
benchmarked together under any circumstances.
(ix) A Sepoy of 3 years and a Sepoy who had crossed 8 years qualifying
for MACP is not equated even for OROP purpose since they do not qualify the
AT
criteria of "same length of service." (emphasis supplied)
While explaining the difference in pensions of the two Sepoys , the Union
b Government stated that this was due to the applicability of the MACP Scheme.
L
In the subsequent affidavit, some of the issues which remained to be explained
PI
in the comprehensive affidavit have been attempted to be clarified.
C.2.1. ACP-MACP
M
43. In 2013, the ACP regime was put into place. In terms of the scheme, a
C Sepoy upon completion of ten years of service would be upgraded to a Naik for
the purpose of pay, pension and other special benefits. After completion of 20
years' service, there would be a further up gradation to the pay of a Havildar and
after 30 years' service, as a N aib Subedar. Though the scheme was implemented
O
C
from 2014, the benefit was extended retrospectively by applying the norms of
10 : 20 : 30 years of service, respectively. Hence, a Sepoy in 2013 with thirty
T
d years of service was grouped with a N aib Subedar for pay, pension and other
financial benefits. The ACP scheme thus covered defence personnel tracing
EN
back in time to 1973.

44. On 11-10-2008, by Army Instruction No. 1/S/2008, the MACP Scheme
was implemented. In terms of the scheme, the earlier timeline of 10 : 20 : 30
EM
years of service for up gradation was modified to 8: 16:24 years for conferment
e of benefits in terms of pay, pension and other financial benefits. In view
of the decision of this Court in Union of India v. Balbir Singh Turn 10 , the
MACP Scheme was made operational with effect from 1-1-2006. Though the
G
MACP Scheme was made operational from 1-1-2006, it had retrospective effect
as a result of which any person who was in service and qualified with the
threshold requirement of 8:16:24 years of service came to be grouped with
D
f the corresponding rank upgradations for the purpose of pay, pension and other
benefits. In the above backdrop, the Union Government has stated before this
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Court on affidavit that for the purpose of computing the OROP benefit, it has
taken MACP as the base and applied it across the board for all retirees having
the same length of service. In other words, OROP was not calculated in two
2-
parts comprising of the ACP regime and MACP regime.

g 45. In this context, reliance has been placed on Note VI appended to the
2
table for working out OROP calculations. Note VI reads as follows:

20
"Pension of JCO/ORS granted upgradation under ACP/MACP Scheme

shall be revised with reference to the rank for which ACP/MACP was granted."
h
10 (2018) 11 sec 99 : (2018) 1 sec (L&S) 866
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

46. On the above premises, it has been submitted that no disparity on the
N
ground of MACP/ACP has been introduced and the core value of uniform
pension for a person retiring in the same rank with the same length of service a
IO
is maintained without disparity.
C.2.2. Financial implications
AT
47. The Union Government has stated on affidavit that at the time when
OROP was implemented, the annual financial implication was in the amount
of Rs 7,123.38 crores. The actual arrears which had to be paid for the period of
b
L
1-7-2014 to 31-12-2015 stood in the amount of Rs 10,392.35 crores.
48. The table on the status of the grant of MACP benefits to defence
PI
personnel (2013) indicates that 96.4% Sepoys, 72.3% Naiks, 48.9% Havildars
and 90.9% Art 111-1 (Navy only) represent the percentage of retirees getting
M
MACP benefits. This indicates that MACP benefit forms a significant portion
of the retiring personnel in the above four ranks, the last one being relevant c
only for the Navy. The MACP factor is not of much impact in the case of N aib
Subedar, Subedar and Subedar Major, among whom 1.6% , 2.2% and 0.2% of
O
all retiring personnel are receiving MACP benefits. This is because they would
C
have reached those ranks by regular promotion.
49. When a Sepoy with eight years of service is upgraded as a Naik
T
and thereafter as a Havildar and Naib Subedar after sixteen and twenty-four d
years of service, other financial benefits attached to the higher ranks accrue
EN
automatically to an MACP beneficiary. However, if a Sepoy is promoted to

the rank of Naik in the natural course before eight years of service, such a
person doe s not qualify for MACP and the same principle applies to the further
upgradation. Where a Sepoy is promoted as a Naik in the usual course, but
EM
does not get promoted thereafter to subsequent ranks for non-availability of e

vacancies, such a Sepoy would be entitled to MACP upgradation only for those
ranks. The threshold requirement for the grant of MACP is completion of a
specified length of service. A Sepoy who does not complete the required length
G
of service cannot hence be benchmarked with someone who completes the

stipulated length of service for the grant of MACP benefits . In other words, a
D
Sepoy with three years of service and a Sepoy who has acquired eight years f
of service thereby qualifying for MACP are not equated even after OROP
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purposes since they did not both have the same length of service from the past
rank of Naib Subedar.
50. According to the Union Government, if non-MACP personnel are
2-
grouped with MACP personnel for the payment of OROP, the total financial
outflow from 2014 would be in the range of Rs 42,776.38 crores. Ifnon-MACP g
2
persons were required to be matched with MACP, the financial implication for
the period from 1-7-2014 to 31-12-2015 would stand at Rs 13,731.03 crores.
20
If such a benefit is given, the financial implication for 2021 under the Seventh
Pay Commission would require a conversion factor of 2.57 besides which 31 %
DR would be payable. As noted earlier, it has been stated that when OROP is
implemented, the annual financial implication was in the amount of Rs 7,123.38 h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
crores. Ifnon-MACP personnel had to be matched with MACP personnel, this
a figure would stand increased to Rs 9,411.71 crores.
IO
51. Based on this, the following tabulation has been submitted by the Union
Government on affidavit indicating a total outflow if non-MACP were to be
AT
matched with MACP:
!Difference of financial !Rs 9,411.71 - Rs 7123.38 i Rs 2288.33 crores i

b
iimplication per annum j crores j i
L
!Further arrears from 1-7-2014 !Rs 2288.33 er x 1.5 years i Rs 3432.49 crores i
!to 31-12-2015 i i i
PI
iconversion in 7th CPC iRs 2288.33 er x 2.57 times i Rs 5881.00 crores i
!Further arrears from 1-1-2016 ;Rs 5881.00 er x 6 years 1 Rs 35,286 crores :
!DR arrears from 1-1-2016 )Rs 5881 cr/12 x 8.28 ) Rs 4057.89 crores !
M
jto 31-12-2021 j i i
C i Total additional arrears i Rs 3432.49 + Rs 35,286.00 i Rs 42,776.38 i
!•..........................................................i+
C.2.3. Average to maximum

Rs 4057.89
O i crores i
• ..................................................................................................• ....................................................................,
C
52. The Court has been apprised of the fact that the CGDA Working
Committee considered four options for OROP in the year 2013. Of the four
T
d options, the fourth option was on the basis of the maximum pension of current
retirees, which was proposed by the services. The Committee noted that
EN
the financial implication of the fourth option (maximum pension of current

retirees) was Rs 14,898.34 crores per annum and the total arrears which would
be payable on this basis would have been in the amount of Rs 1,45,339.34
EM
crores, as is tabulated below:

e
!Difference of financial jRs 14,898.34 er - i Rs 7774.96 er i
jimplieation per annum: jRs 7123.38 er \ 1
!Further arrears from 1-7-2014 !Rs 7774.96 er x 1.5 years i Rs 11,662.44 er i
G
!to 31-12-2015 i i !
iconversion in 7th CPC iRs 7774.96 er x 2.57 times i Rs 19,981.60 er i
D
~................................................................................................................. i .................................................................................................... , ••••••••••••••••••••••••••••••••••• ..:

!Further arrears from 1-1-2016 !Rs 19,981.60 er x 6 years i Rs 119,889.60 er !
f !to 31-12-2021 i i i
i
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jDR arrears from 1-1-2016 iRs 19,981.60 er/12 x 8.28 i Rs 13,787.30 er

jto 31-12-2021 j \ 1
!Thus total additional arrears jRs 11,662.44 er + i Rs 145,339.34 er i
i )Rs 119,889.60 er +i i
2-
i.........................................................i Rs.13,787.30 ........................ .J................................... i

g
C.2.4. Periodic revision every five years
2
53. The central limb of the submission of the petitioners is that a revision
20
of OROP should be automatic. The Union Government has submitted that

besides lacking any prior precedent, in terms of the practice governing pay
scales, pensions and other financial emoluments of government servants,
h automatic revision would be impossible to implement. Quite apart from the
above consideration, it is evident that the three documents which have been
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

relied upon by the petitioners , namely, (i) the Koshyari Committee Report; (ii)
N
the minutes of the meeting chaired by the Defence Minister on 26-2-2014;
and (iii) the communication dated 26-2-2014 to CGDA underscore that "any a
IO
future enhancement in the rates of pension to be automatically passed on to the
past pensioners". The expression "to be automatically passed on" immediately
follows upon the words "any future enhancement in the rates of pension". When
AT
read together contextually, it signifies that the rates of pension would be passed
on to past pensioners without any administrative impediments. The expression
"automatically passed on" cannot be construed as a commitment with reference b
L
to any period of time for the computation of benefits. The manner in which
and the period over which revisions should take place of pensions, salaries and
PI
other financial benefits is a pure question of policy. The decision of the Central
Government to revise the pension every five years cannot be held to violate the
M
precepts underlying Article 14.
54. The policy choices which have been made by the Union Government C
O
must also be understood in the context that the estimated budget allocation for
defence pensions is Rs 1,33,825 crores representing 28.39% of the total defence
C
budget estimate of Rs 4,71,378 crores for 2020-2021. This does not include
budget on salaries which is of the order of 34.89% of the total defence budget
estimates for 2020-2021. Salaries and pensions thus account for nearly 63% of
T
the total defence budget estimates for 2020-2021. In making policy choices, d
the Union Government is entitled to take into account priorities towards
EN
modernisation of the armed forces and to modulate the grant of financial

benefits so as to subserve and balance distinct priorities.
55. In the decision of this Court in Nakara 3 , the Constitution Bench was
EM
deciding on the issue of whether the date of retirement would be a relevant

consideration for determining the application of a revised formula for the e
computation of pension. The liberalised pension scheme was made applicable
prospectively to those employees who retired on or after 31-3-1979 in the case
G
of government servants covered by the 1972 Rules and in respect of defence

personnel, those who became non-effective on or after 1-4-1979. Consequently,
D
those who retired prior to the date were not entitled to the benefits of the
liberalised pension scheme. It was held that payment of pension constitutes f
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a compensation for the service rendered in the past and as a measure of

social welfare for providing socio-economic justice to those who have rendered
service to the State. The Court noted that earlier, the measure of pension was
related to the average emoluments during a period of thirty-six months prior to
2-
retirement. By a liberalised scheme, the period was reduced to an average of

ten months preceding the date of retirement coupled with the above aspects. A g
2
slab system for computation was introduced and the ceiling was raised. This
Court held that there was no justification for arbitrarily selecting the criteria
20
for eligibility for the grant of be nefits under the scheme based on the date of
retirement. Hence, this Court held that all pensioners formed a homogeneous
h
3 D.S. Nakara v. Union of India, (1983) 1 SCC 305: 1983 SCC (L&S) 145
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

N
class and where an existing scheme of pension was liberalised, a distinction
a could not be made on the basis of a specified cut-off date.
IO
56. At the same time, it must also be noted that the decision in Nakara 3
noted that "the financial implication in such matters has some relevance". This
AT
Court struck down the portion of the memoranda by which the benefit of the
liberalised pension scheme was only confined to persons retiring on or after
the specified date which resulted in the benefit being extended to all retirees,
b irrespective of the date of retirement.
L
57. It was observed as follows: (Nakara case 3 , SCC pp. 343-44, para 63)
PI
"63. The financial implication in such matters has some relevance.
However in this connection, we want to steer clear of a misconception.
M
There is no pension fund as it is found either in contributory pension
C
schemes administered in foreign countries or as in insurance-linked
pensions. Non-contributory pensions under the 1972 Rules is a State
obligation. It is an item of expenditure voted year to year depending upon
the number of pensioners and the estimated expenditure. Now when the
O
C
liberalised pension scheme was introduced, we would justifiably assume
that the government servants would retire from the next day of the coming
T
d into operation of the scheme and the burden will have to be computed
as imposed by the liberalised scheme. Further Government has been
EN
granting since nearly a decade temporary increases from time to time to

pensioners. Therefore, the difference will be marginal. Further, let it not
be forgotten that the old pensioners are on the way out and their number
is fast decreasing. While examining the financial implication, this Court
EM
e is only concerned with the additional liability that may be imposed by

bringing in pensioners who retired prior to 1-4-1979 within the fold of
liberalised pension scheme but effective subsequent to the specified date.
That it is a dwindling number is indisputable. And again the large bulk
G
comprises pensioners from lower echelons of service such as Peons, LDC,

UDC, Assistant, etc. In a chart submitted to us, the Union of India has
D
f worked out the pension to the pensioners who have retired prior to the
specified date and the comparative advantage, if they are brought within
JU
the purview of the liberalised pension scheme. The difference up to the

level of Assistant or even Section Officer is marginal keeping in view that
the old pensioners are getting temporary increases. Amongst the higher
2-
officers, there will be some difference because the ceiling is raised and
g that would introduce the difference. It is however necessary to refer to
one figure relied upon by respondents. It was said that if pensioners who
2
retired prior to 31-3-1979 are brought within the purview of the liberalised
20
pension scheme, Rs 233 crores would be required for fresh commutation.

The apparent fallacy in the submission is that if the benefit of commutation
is already availed of, it cannot and need not be reopened. And availability
h of other benefits is hardly a relevant factor because pension is admissible
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

to all retirees. The figures submitted are thus neither frightening nor the
N
liability is supposed to be staggering which would deflect us from going
to the logical and of constitutional mandate. Even according to the most a
IO
liberal estimate, the average yearly increase is worked out to be Rs 51
crores but that assumes that every pensioner has survived till date and will
continue to survive. Therefore, we are satisfied that the increased liability
AT
consequent upon this judgment is not too high to be unbearable or such
as would have detracted the Government from covering the old pensioners
under the Scheme." (emphasis supplied) b
L
58. As opposed to the factual matrix in where the liberalised Nakara 3 ,
PI
pension scheme was not made applicable to employees who had retired prior
to the cut-off date, in this case the OROP principle is applicable to all retired
army personnel, irrespective of the date of retirement. The cut-off date is only
M
prescribed for determining the base salary used for computing the pension.
C
While for those who retired on or after 2014, the last drawn salary is used for
O
computing the pension; for those who retired prior to 2014, the average of the
salary drawn in 2013 is used. This policy only seeks to protect those who retired
C
before 2014 since the last drawn salary of the prior retirees might be too low
and incomparable to the pay of the 2014 retirees. Moreover, if the maximum
salary drawn is to be used as the base value instead of taking the average salary,
T
an additional outlay of Rs 1,45,339.34 crores would be incurred. The executive d

EN
is therefore, well within its limits to prescribe a policy keeping in view the
financial implications.
59. In Krishena Kumar 11 , a Constitution Bench of this Court decided on
the issue of whether the prescription of a cut-off date for the eligibility to a
EM
pension scheme was arbitrary and violative of Article 14. Before 1957, the only
e
scheme for retirement benefits in the Railways was the Provident Fund Scheme.
This scheme was replaced in 1957 by the Pension Scheme. All the employees
who served in the Railways on or after 1-4-1957 were automatically covered
G
by the Pension Scheme. Those who were in service before 1-4-1957 were given
the option to switch over to the pensionary benefits. It was the contention of
D
the appellants that till 1-4-1957, there was no difference between the benefits
f
receivable under the provident fund scheme and the pension scheme. However,
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it was contended that between 1957 and 1987, the pensionary benefits were
increased by various methods while the benefits under the provident fund
scheme were not enhanced.
2-
60. Dismissing the petitions, this Court held that neither the prescription
of a cut-off date nor the creation of two classes of retirees (pensioners and g
provident fund holders) was contrary to the decision of the Constitution Bench
2
in Nakara 3 . It was observed thus: (Krishena Kumar case 11 , SCC pp. 232-33,
20
paras 32 & 34)
h
11 Krishena Kumar v. Union of India, (1990) 4 SCC 207: 1991 SCC (L&S) 112
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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"32. In Nakara 3 it was never held that both the pension retirees and the
a PF retirees formed a homogeneous class and that any further classification
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among them would be violative of Article 14. On the other hand the Court
clearly observed that it was not dealing with the problem of a "fund". The
Railway Contributory Provident Fund is by definition a fund. Besides, the
AT
Government's obligation towards an employee under CPF Scheme to give
the matching contribution begins as soon as his account is opened and ends
b with his retirement when his rights qua the Government in respect of the
L
Provident Fund is finally crystallised and thereafter no statutory obligation
continues. Whether there still remained a moral obligation is a different
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matter. On the other hand under the Pension Scheme the Government's
obligation does not begin until the employee retires when only it begins
M
and it continues till the death of the employee. Thus, on the retirement of an
c employee government's legal obligation under the Provident Fund account
ends while under the Pension Scheme it begins. The rules governing the
Provident Fund and its contribution are entirely different from the rules O
C
governing pension. It would not, therefore, be reasonable to argue that
what is applicable to the pension retirees must also equally be applicable
to PF retirees. This being the legal position the rights of each individual
T
d PF retiree finally crystallised on his retirement whereafter no continuing

obligation remained while, on the other hand, as regard Pension retirees,
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the obligation continued till their death. The continuing obligation of the
State in respect of pension retirees is adversely affected by fall in rupee
value and rising prices which, considering the corpus already received by
the PF retirees they would not be so adversely affected ipso facto. It cannot,
EM
e therefore, be said that it was the ratio decidendi in Nakara 3 that the State's
obligation towards its PF retirees must be the same as that towards the
pension retirees. An imaginary definition of obligation to include all the
Government retirees in a class was not decided and could not form the
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basis for any classification for the purpose of this case. Nakara 3 cannot,
therefore, be an authority for this case.
D
f
* * *
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34. The next argument of the petitioners is that the option given to
the PF employees to switch over to the pension scheme with effect from a
specified cut-off date is bad as violative of Article 14 of the Constitution for
2-
the same reasons for which in Nakara 3 the notification were read down. We
have extracted the 12th option letter. This argument is fallacious in view of
g the fact that while in case of pension retirees who are alive the Government
2
has a continuing obligation and if one is affected by dearness the others may
20
also be similarly affected. In case of PF retirees each one's rights having

finally crystallised on the date of retirement and receipt of PF benefits and
there being no continuing obligation thereafter they could not be treated on
a par with the living pensioners. How the corpus after retirement of a PF
h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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retiree was affected or benefitted by prices and interest rise was not kept
N
any tack of by the Railways. It appears in each of the cases of option the
specified date bore a definite nexus to the objects sought to be achieved a
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by giving of the option. Option once exercised was told to have been final.
Options were exercisable vice versa." (emphasis supplied)
AT
61. In Indian Ex-Services League4 , it was contended that in view of the
decision in N akara 3 , all retirees who held the same rank irrespective of the date
of retirement must receive the same amount of pension. This Court observed
b
L
that there was nothing in N akara 3 that backed the claim of the appellants that
the same pension must be given to all retirees of the same rank. The Court
PI
observed that it was held in Nakara 3 that only the same formula for calculation
of pension was to be used and nowhere was the emoluments of the retirees
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revised.
62. The ratio decidendi in Nakara 3 was explained in the following words: C
(Indian Ex-Services League case 4 , SCC p. 113, para 12)

O
C
"/2. The liberalised pension scheme in the context of which the
decision was rendered in Nakara 3 provided for computation of pension
according to a more liberal formula under which "average emoluments"
T
were determined with reference to the last ten months' salary instead of d
36 months' salary provided earlier yielding a higher average, coupled
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with a slab system and raising the ceiling limit for pension. This Court
held that where the mode of computation of pension is liberalised from a
specified date, its benefit must be given not merely to retirees subsequent
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to that date but also to earlier existing retirees irrespective of their date
of retirement even though the earlier retirees would not be entitled to any e
arrears prior to the specified date on the basis of the revised computation
made according to the liberalised formula. For the purpose of such a
G
scheme all existing retirees irrespective of the date of their retirement, were
held to constitute one class, any further division within that class being
D
impermissible. According to that decision, the pension of all earlier retirees

f
was to be recomputed as on the specified date in accordance with the
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liberalisedformula of computation on the basis of the average emoluments

of each retiree payable on his date of retirement. For this purpose there
was no revision of the emoluments of the earlier retirees under the scheme.
2-
It was clearly stated that 'if the pensioners form a class, their computation
cannot be by different formula affording unequal treatment solely on the g
2
ground that some retired earlier and some retired later'. This according to
us is the decision in Nakara 3 and no more." (emphasis supplied)
20
4 Indian Ex-Services League v. Union of India, (1991) 2 sec 104: 1991 sec (L&S) 536 : AIR h
1991 SC 1182
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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It was observed that the effect of the judgment in Nakara 3 was that the same
a computation according to the liberalised formula must be applicable to pre and
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post 1-4-1979 retirees and that the decision cannot be construed to mean that
the same amount of pension must be receivable.
AT
63. In K.L. Rathee v. Union of India 5 , the decision in Nakara 3 was explained
in the following terms: (K.L. Rathee case 5 , SCC pp. 9-10, paras 6-7)
b "6 . ... Nakara case 3 dealt with the manner of calculation of pension on
L
the basis of average emoluments of a retired government employee. Prior
to the liberalisation of the formula for computation of pension made by
PI
the memorandum dated 25-5-1979, average emoluments of the last thirty
months of service of the employee provided that basis for calculation of
M
pension. The 1979 Memorandum provided that average emoluments must
C
be calculated on the basis of the emoluments received by a government
servant during the last ten months of the service. That apart, a new slab
system for computation of pension was introduced and the ceiling on
pension was raised ....
O
C
7. It is to be seen that the judgment did not strike down the definition
of "emoluments". It merely held that if pension was to be calculated on
T
d the basis of the last ten months' emoluments of a government servant,

after 1-4-1979, there is no reason why those who retired before 1-4-1979
EN
should get pension calculated on the basis of average of last thirty-six

months' emoluments. In other words, the rule of computation must be the
same. The Court did not hold that those who have retired before 1-4-1979
must be treated as having the same emoluments as those who retired on
EM
e or after 1-4-1979 for the purpose of calculation of pension. Therefore,

on the strength of Nakara case 3 , the petitioner is not entitled to ask for
computation of p e nsion with reference to emoluments which h e never got."
G
64. In B.J. Akkara v. Union of India 12 , this Court summarised the principles
relating to pension. R .V. Raveendran, J. writing for a two-Judge Bench
D
observed: (SCC pp. 724-25, para 20)

f
"20. The principles relating to pension relevant to the issue are well
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settled. They are:

(a) In regard to pensioners forming a class, computation of pension
cannot be by different formula thereby applying an unequal treatment
2-
solely on the ground that some retired earlier and some retired later. If
g the retiree is eligible for pension at the time of his retirement and the
2
relevant pension scheme is subsequently amended, he would become

eligible to get enhanced pension as per the new formula of computation
20
of pension from the date when the amendment takes effect. In such a
situation, the additional benefit under the amendment, made available
h 3 D.S. N akara V. Union of India , (1983) 1 sec 305: 1983 sec (L&S) 145
5 (1997) 6 sec 7: 1997 sec (L&S) 1253
12 c2006) 11 sec 709 : (2007) 1 sec (L&S) 529
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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to the same class of pensioners cannot be denied to him on the ground
N
that he had retired prior to the date on which the aforesaid additional
benefit was conferred. a
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(b) But all retirees retiring with a particular rank do not form a
single class for all purposes. Where the reckonable emoluments as on
the date of retirement (for the purpose of computation of pension) are
AT
different in respect of two groups of pensioners, who retired with the
same rank, the group getting lesser pension cannot contend that their
pension should be identical with or equal to the pension received by b
L
the group whose reckonable emolument was higher. In other words,
pensioners who retire with the same rank need not be given identical
PI
pension, where their average reckonable emoluments at the time of
their retirement were different, in view of the difference in pay, or in
view of different pay scales being in force.
M
* * * C
O
One set cannot claim the benefit extended to the other set on the
ground that they are similarly situated. Though they retired with the same
C
rank, they are not of the "same class" or "homogeneous group". The
employer can validly fix a cut-off date for introducing any new pension/
retirement scheme or for discontinuance of any existing scheme. What is
T
discriminatory is introduction of a benefit retrospective! y ( or prospective Iy) d

fixing a cut-off date arbitrarily thereby dividing a single homogeneous
EN
class of pensioners into two groups and subjecting them to different

treatment." (emphasis supplied)
65. The decision in SPS Vains 2 has been relied upon by the petitioners. The
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issue in that case was whether the officers of the rank of Major General, who
had retired prior to 1-1-1996, could be given the benefit of the provisions of the e
revised pay scale, though according to the policy only those who retired after
the said cut-off date would be entitled to such benefit. The rank of Brigadier
G
is a feeder post for the promotional rank of Major General. A Major General
always drew a higher pension than the pension payable to the officers holding
the rank of a Brigadier, as on the basis of the recommendation of the Fourth Pay
D
Commission, the pension was calculated on the basis of the salary drawn during f
the last ten months prior to retirement. An anomaly arose with the acceptance
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of the recommendation of the Fifth Pay Commission which created a situation

in which a Brigadier began drawing more pension and family pension than the
Major General. The Government increased the pension of Major Generals who
2-
had retired prior to 1996 so that they do not receive lesser pension than the
officers of the rank of Brigadier. g
2
66. The disparity which was noted in that case is evident from the following
extract of the judgment: (SPS Vains case 2 , SCC p. 131, para 23)
20
"23. From the submissions made the dispute appears to be confined

only to the question whether officers of the rank of Major General in the
army and of equivalent rank in the two other wings of the Defence forces, h
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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N
who had retired prior to 1-1-1996 have been validly excluded from the
a benefit of the revision of pay scales in keeping with the recommendations
IO
of the Fifth Central Pay Commission by virtue of the Special Army
Instruction 2/S/1998."
AT
67. This Court in SPS Vains 2 held that such a disparity in the pension
payable to two groups of officers occupying the same rank of Major General
based on those retiring before or after 1-1-1996 violated Article 14. It was in
b
L
this backdrop that this Court directed that the pay of all pensioners in the rank
of Major General and its equivalent rank in the other two wings of the Defence
PI
Services should be notionally fixed at the rate given to the similar officers of
the same rank after the revision of pay scales with effect from 1-1-1996, and
M
thereafter to compute the pensionary benefits with prospective effect from the
C
date of the writ petition. The decision in SPS Vains 2 thus involved a completely
different factual situation. The rank of Brigadier was a feeder post for the rank
of Major General. An anomaly had arisen as a result of which the pay and O
C
pension of Brigadier were higher than of the Major Generals. By increasing the
pension of Major General, distinction was made between those who had retired
before and after 1-1-1996. This was held to be violative of Article 14.
T
d 68. The canvass which is sought to be traversed in these proceedings

under Article 32 of the Constitution trenches upon a domain which is reserved
EN
for executive policy. We must remember that adjudication cannot serve as

a substitute for policy. Lon Fuller described public policy issues that come
up in adjudication as "polycentric problems", that is, they raise questions
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that have a "multiplicity of variable and interlocking factors, decisions on

e each one of which presupposes a decision on all others". Such matters,
according to Fuller, are more suitably addressed by elected representatives
since they involve negotiations, trade-offs and a consensus-driven decision-
G
making process. Fuller argues that adjudication is more appropriate for

questions that result in "either-or" answers. 13 Most questions of policy involve
D
f
complex considerations of not only technical and economic factors but also
require balancing competing interests for which democratic reconciliation
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rather than adjudication is the best remedy. Further, an increased reliance on

Judges to solve matters of pure policy diminishes the role of other political
organs in resolving contested issues of social and political policy, which require
2-
a democratic dialogue. This is not to say that this Court will shy away from
g setting aside policies that impinge on constitutional rights. Rather it is to
2
provide a clear-eyed role of the function that a court serves in a democracy.

The OROP Policy may only be challenged on the ground that it is manifestly
20
arbitrary or capricious. In this regard, we now evaluate the policy which has
been adopted by the Union Government.
h 2 Union of India v. SPS Vains , (2008) 9 SCC 125 : (2008) 2 SCC (L&S) 838
13 Lon L. Fuller and Kenneth I. Winston, "The Forms and Limits of Adjudication", Harvard Law
Review, Vol. 92, No. 2 (Dec., 1978), pp. 353-409.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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69. The policy of OROP adopted by the Union Government stipulates thus:
N
(i) The benefits will be effective from 1-7-2014;
a
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(ii) Pensions of past pensioners would be refixed on the basis of the
pension of retirees of calendar year 2013;
(iii) Pension for all pensioners would be protected; and
AT
(iv) In future , the pension would be refixed after every five years.
70. The principles governing pensions and cut-off dates can be summarised
as follows: b
L
70.1. All pensioners who hold the same rank may not for all purposes form
PI
a homogeneous class. For example, amongst Sepoys differences do exist in
view of the MACP and ACP Schemes. Certain Sepoys receive the pay of the
higher ranked personnel.
M
70.2. The benefit of a new element in a pensionary scheme can be
C
prospectively applied. However, the scheme cannot bifurcate a homogeneous
group based on a cut-off date.
O
C
70.3. The judgment of the Constitution Bench in Nakara 3 cannot be
interpreted to read the one rank one pension rule into it. It was only held that
the same principle of computation of pensions must be applied uniformly to a
T
homogeneous class. d
70.4. It is not a legal mandate that pensioners who held the same rank
EN
must be given the same amount of pension. The varying benefits that may be
applicable to certain personnel which would also impact the pension payable
need not be equalised with the rest of the personnel.
EM
71. Applying the above principles to the facts of the case, we find no
constitutional infirmity in the OROP principle as defined by the communication e
dated 7-11-2015 for the following reasons:
71.1. The definition of OROP is uniformly applicable to all the pensioners
G
irrespective of the date of retirement. It is not the case of the petitioners

that the pension is reviewed "automatically" to a class of the pensioners and
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"periodically" to another class of the pensioners.

f
71.2. The cut-off date is used only for the purpose of determining the base
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salary for the calculation of pension. While for those who retired after 2014,
the last drawn salary is used to calculate pension, for those who retired prior
to 2013, the average salary drawn in 2013 is used. Since the uniform application
2-
of the last drawn salary for the purpose of calculating pension would put the
prior retirees at a disadvantage, the Union Government has taken a policy g
2
decision to enhance the base salary for the calculation of pension. Undoubtedly,
the Union Government had a range of policy choices including taking the
20
minimum, the maximum or the mean or average. The Union Government

decided to adopt the average. Persons below the average were brought up to
h
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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N
the average mark while those drawing above the average were protected. Such
a a decision lies within the ambit of policy choices.
IO
71.3. While no legal or constitutional mandate of OROP can be read into
the decisions in Nakara 3 and SPS Vains 2 , varying pension payable to officers
AT
of the same rank retiring before and after 1-7-2014 either due to MACP or the
different base salary used for the calculation of pension cannot be held arbitrary.
71.4. Since the OROP definition is not arbitrary, it is not necessary for us
b to undertake the exercise of determining if the financial implications of the
L
scheme is negligible or enormous.
PI
72. In terms of the communication dated 7-11-2015, the benefit of OROP
was to be effected from 1-7-2014. Para 3(v) of the communication states that
M
"in future, the pension would be re-fixed every five years". Such an exercise
has remained to be carried out after the expiry of five years possibly because
C
of the pendency of the present proceedings.
73. We accordingly order and direct that in terms of the communication
dated 7-11-2015, a re-fixation exercise shall be carried out from 1-7-2019, upon
O
C
the expiry of five years. Arrears payable to all eligible pensioners of the armed
forces shall be computed and paid over accordingly within a period of three
T
d months.
74. The petition is disposed of in the above terms. Pending application(s),
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if any, shall stand disposed of.

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e
G
D
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2-
g
2
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h
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(BEFORE SURYA KANT AND J.B. PARDIWALA, JJ.)
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Amarendra Kumar Pandey … Appellant(s);
Versus
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Union of India and Others … Respondent(s).
Decided on July 14, 2022
AT
J.B. PARDIWALA, J.:— These appeals, by special leave, are directed against the
judgment and order passed by a Division Bench of the Guwahati High Court dated
21.12.2017 in the Writ Appeal No. 354 of 2017 by which the High Court allowed the
L
appeal filed by the Union of India & Ors. thereby setting aside the judgment and order
passed by a learned Single Judge of the High Court dated 19.01.2015 in the Writ
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Petition (C) 2783 of 2004 filed by the appellant herein.
2. The facts giving rise to this appeal may be summarized as under:
M
(i) The appellant herein (original writ petitioner) had joined the Assam Rifles as a
Rifleman in the year 1993. While he was in service, he came to be discharged
vide order dated 31.01.2004 passed by Lt. Col. Offg Comdt.
(ii) The order of discharge referred to above reads thus:
OFFICE OF THE COMMANDANT 24 ASSAM RIFLES, C/O 99 APO O
C
ORDER
2401637/AKP/2004
DATED 31.01.2004
T
1. WHEREAS it is considered that the conduct of No 2401637W Rfn/GD

Amrandra Kumar Pandey of which has led him getting four Red Ink entries is
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such as to render his further retention in the public Service undesirable being
a incorrigible offender and having shown no improvement during his service.
2. AND WHEREAS No. 2401637W Rfn/GD Amrandra Kumar Pandey was
afforded opportunity to show cause against the proposed action vide 24 AR
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letter No. 11014/A36-2003/635 dt. 02 Sep., 2003.

3. AND WHEREAS No 2401637W Rfn/GD Amrandra Kumar Pandey
submitted his replies vide letter No. Nil dated 01. Oct.2003. the same was
considered in terms of ROI 4/99 and was found unsatisfactory by the
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competent authority.
4. NOW WHEREFORE, In exercise of the powers conferred on me under AR
Act 1941 Sec 4(a) read with Para 24, Chapter VIII of AR Manual and Para 6 of
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ROI 4/99, the undersigned hereby discharge the said No. 2401637W Rfn/GD
Amrandra Kumar Pandey from the Assam Rifles being incorrigible offender
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soldier with effect from 31 Jan., 2004 (Afternoon) No. 2401637W Rfn/GD
Amrandra Kumar Pandey is entitled to get pension and gratuity as admissible
under rule.
s/d
2-
(Santosh Joseph)
Lt. Col. Offg Comdt
2
3. Thus, the aforesaid order of discharge was passed on the basis of the four Red-
20
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Ink entries received by him during his period of service. The four Red-Ink entries were
on the following grounds:
Entry 1 (1996) For staying back to take care of his ailing
mother - ‘without sufficient cause over
staying leave granted’. Sentenced to 14
days of rigorous imprisonment with
deduction in salary.
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Entry 2 (1998) For being on the way out to make a
phone call, but stopped before he could
IO
leave the compound - “visited out of
bound areas as specified in unit BRO Part
I Ser No 202 dated 30 Aug 96 without
AT
permission from his superior officers”.
Sentenced to 28 days of rigorous custody
and 14 days of Military Custody.
Entry 3 (1999) For losing his luggage while coming back
L
from home - “lost his identity card
bearing machine No. 078550 by neglect
PI
the property of the Government issued to
him for his use”. Sentenced to 28 days of
rigorous imprisonment and 14 days of
M
detention in AR custody.
Entry 4 (2004) For playing cards all alone by himself -
‘to obey unit standing orders and was
found Gambling in unit line’. Sentenced
to 28 days of rigorous imprisonment and
O
C
14 days of fine.
4. The appellant herein challenged the order of discharge before the Guwahati High
Court by filing the Writ Petition (C) No. 2738 of 2002. It appears from the materials on
T
record that a learned Single Judge of the Guwahati High Court decided the Writ
Petition filed by the appellant herein along with two other identical petitions of two
EN
similarly situated riflemen and by a common judgment and order dated 19.01.2015
allowed the same. The impugned order of discharge came to be set aside. The learned
Single Judge remitted the matter to the authorities concerned for a fresh decision in
the light of a Division Bench decision of the Guwahati High Court.
EM
5. The learned Single Judge while allowing the Writ Petition filed by the appellant
herein held as under:
“The issue regarding discharge from Assam Rifles on securing four Red Ink
entries was gone into by a Division Bench of this Court in Balwant Singh v. Union of
G
India, reported in (2011) 5 GLT 640. That was a case where a Rifleman was
discharged from the Assam Rifles on getting four Red Ink entries. Out of the four
Red Ink entries, three related to intoxication and one related to overstay of leave
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period. The Division Bench examined the provisions of Clause-5 of the Record
Branch Instruction (ROI) No. 1/2004. Clause-5 of ROI provides that under Chapter-
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VIII, Rule 24 of the Assam Rifles Manual power is conferred on the Commandant of
an Assam Rifles battalion to discharge any member of the Assam Rifles below the
rank of Naib Subedar in case he receives four or more Red Ink entries. The Division
Bench held that the use of the expression “four or more Red Ink entries” and also
2-
the use of the word “may” in Clause-5 indicates that discretion is vested in the
disciplinary authority to decide as to whether the person who is found to have
received the Red Ink entries ought to be discharged from service or not. It was held
2
that merely because a man receives four Red Ink entries, discharge is not
20
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automatic. Discretion is given to the Commanding Officer to consider discharge. The

severity and the nature of the misconduct will have to be weighed before recourse
is taken to exercise power conferred by Clause-5 of the ROI.
It is a settled position in law that when a discretion is vested in an authority to
exercise a particular power, the same is required to be exercised with due diligence,
and in reasonable and rational manner. Since order of discharge and the procedure
preceding such discharge is of a summary nature, it is necessary that the order of
N
discharge is a speaking order and must indicate how and in what manner the
authority exercised the discretionary power. The Hon'ble Supreme Court in a catena
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of decisions has reiterated time and again the necessity and importance of giving
reasons by the authority in support of its decision. It has been held that the face of
an order passed by a quasi-judicial authority or even by an administrative authority
AT
affecting the rights of parties must speak. The affected party must know how his
case or defence was considered before passing the prejudicial order. Coming back
to the three impugned orders, it is evident that none of the orders disclose how the
responses of the petitioners were considered and why discharge was necessary. As
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held by the Division Bench just because the petitioners incurred four Red Ink
entries, it does not ipso facto mean that they are to be discharged from the Assam
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Rifles. As pointed out by the Division Bench, the authority vested with the power to
discharge must examine the response of the concerned person and weigh the same
vis-à-vis the severity of the misconduct which led to incurring of the Red Ink entries
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in the service rolls. Such examination is not discernible from the impugned orders.
Having regard to the above, this Court is of the view that the impugned orders of
discharge cannot be sustained. Accordingly, the orders of discharge of the
petitioners are set aside and quashed. Matter is remanded back to the respondents
for a fresh decision in the light of the Division Bench judgment in Balwant Singh
O
C
(Supra) and the discussions made above. Respondents may consider imposition of
any lesser punishment on the petitioners balancing the interest of the organization
and also that of the petitioners subject to assessment of physical fitness of the
T
petitioners.
Writ petitions are allowed to the above extent. No costs.”
EN
6. The Union of India being dissatisfied with the judgment and order passed by the
learned Single Judge referred to above challenged the same by filing the writ appeal
before the Division Bench of the Guwahati High Court. The Division Bench allowed the
writ appeal filed by the Union of India and thereby set aside the order passed by the
EM
learned Single Judge referred to above. The Appeal Court while allowing the writ
appeal filed by the Union of India essentially took the view that neither the Assam
Rifles Act, 1941 under which the decision to discharge was taken nor the Assam Rifles
Act, 2006 requires the authority to record any reasons or the satisfaction in the order
of discharge itself. The Appeal Court took the view having regard to the provision of
G
Clause 5 of the ROI 1/2004 that the Commandant has the discretion to discharge a
person who has four or more Red Ink entries. All that is required is to serve a notice
D
on the individual affording an opportunity to explain. The provision of Clause 5 does

not require the Commandant to record the reasons of satisfaction in the order of
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discharge.
7. Being dissatisfied with the impugned order passed by the Appeal Court of the
High Court, the appellant herein (original writ petitioner) is here before this Court with
the present appeal.
2-
SUBMISSIONS:
8. The learned Counsel appearing for the appellant vehemently submitted that the
High Court committed a serious error in passing the impugned order. He would submit
2
that there was no good reason for the Appeal Court to disturb the order passed by the
20
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learned Single Judge of the High Court.

9. The learned Counsel has broadly classified his submissions as under:
(a) Discharge is not mandatory even after four Red entries.
(b) There is a difference between cases of major misconducts and minor
misconducts.
(c) In the order of discharge no reasons have been assigned.
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(d) The plea of malafide raised against the authority has not been considered.
10. The learned Counsel appearing for the appellant invited the attention of this
IO
Court to the Record Office Instruction No. 4 of 1999 which provides for the procedure
for discharge/retirement from service of Assam Rifles personnel. The same reads thus:
RECORD OFFICE INSTRUCTION NO. 4/99
AT
PROCEDURE FOR DISCHARGE/RETIREMENT FROM SERVICE ASSAM RIFLES
PERSONNEL
1. A comprehensive instruction, containing all existing orders on the subject has
been compiled in the form of this ROI for guidance and strict compliance by all
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concerned.
*** *** ***
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*** *** ***
*** *** ***
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6. Discharge/Disposal of Undesirable/Inefficient Personnel
Chapter VIII, Rules 24 of the Assam Rifles Manual invests powers to the
Commandant of Assam Rifles Battalions to ‘dismiss’ or ‘remove’ any member of the
Assam Rifles below the rank of Nb/Sub. This power may be invoked by a
Commandant in case where a person has got four red ink entries. As far as O
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practicable, however, discharge under this provision should be avoided as personnel
sent on discharge on this account are not eligible for pension. In case it is necessary
to send an individual on discharge under this provision, a notice will be served on
the individual to give opportunity to explain his case. Complete case will be
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forwarded to Range HQ alongwith the notice and reply received from the individual,
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for the approval of the DIGAR. The documents will be sent to this Directorate
Records (Doc)/UPAO (And the individual to Depot Coy (No. 1 Constr Coy))……
11. The learned Counsel also invited the attention of this Court to the Assam Rifles
Manual. The relevant clause of the Assam Rifles Manual reads thus:
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ASSAM RIFLES MANUAL

“24. A Commandant may dismiss any member of the Assam Rifles below the
rank of Jemadar.
The word “dismissal” should be restricted to the case of an officer removed with
disgrace. In other cases “removal” is the proper word to be used. A “dimissed”
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officer may not be re-employed.

Dismissal is the last resource, and should not ordinarily be ordered until all other
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means of punishment have been tried and failed. For incorrigible offenders;
confirmed bad characters, confirmed drunkards, for offences involving moral
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disgrace, fraud and dishonesty, continued and willful disobedience or neglect, it is

generally the only appropriate punishment”
12. The principal argument of the learned Counsel appearing for the appellant is
that the discharge from service is not automatic or mandatory after four Red entries.
2-
Four Red entries are only a minimum requirement and cannot be the sole ground to
order discharge. It is argued that the Rule itself states that the power “may be
invoked” and that “as far as practicable, however, discharge under this provision
2
should be avoided as the Personnel sent on discharge on this account are not eligible
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for pension”. The submission is that the provision can be pressed into service only
when “continued and willful disobedience or neglect” comes on record.
13. The learned Counsel with a view to fortify his aforesaid submission placed
strong reliance on the decisions of this Court in the case of Virendra Kumar Dubey v.
Chief of Army Staff, (2016) 2 SCC 627, and Vijay Shankar Mishra v. Union of India,
(2017) 1 SCC 795, respectively.
14. In such circumstances referred to above, the learned Counsel prays that there
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being merit in his appeal the same be allowed and the impugned judgment and order
passed by the High Court may be set aside including the order of discharge and the
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appellant may be ordered to be reinstated in service with all Full Back Wages and all
other statutory benefits.
15. On the other hand, this appeal has been vehemently opposed by the learned
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Counsel appearing for the respondents. The learned Counsel would submit that no
error not to speak of any error of law could be said to have been committed by the
High Court in passing the impugned judgment and order. She would submit that the
High Court was absolutely justified in taking the view that it was not necessary for the
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authority concerned to assign any reasons for the purpose of passing an order of
discharge. The four Red Ink entries were sufficient for the authority to arrive at the
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subjective satisfaction that the appellant herein was not fit to be retained in service
and more particularly being a Rifleman with the Assam Rifle.
16. It is argued that before passing the order of discharge, notice to show cause
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was issued to the appellant herein and an opportunity of hearing was given to him.
17. The learned Counsel submitted that all that the appellant did was to tender an
apology for his mistakes. No other ground was raised in his reply to the show cause
notice except that he hails from a poor family and his parents and children are
dependent on him. Having regard to the reply the authority concerned rightly formed
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an opinion that the appellant was a habitual offender. She invited the attention of this
Court to Para 6 of the impugned judgment of the High Court wherein the High Court
has noted that the appellant failed to offer any explanation in the reply to the show
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cause notice except the family circumstances.

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18. The learned Counsel further submitted that the decision of this Court in the
case of Union of India v. Balwant Singh, (2015) 14 SCC 389, has not been referred to
in the case of Virendra Kumar Dubey (supra).
19. In the last the learned Counsel placed reliance on the decision of this Court in
the case of Satgur Singh v. UOI reported in (2019) 9 SCC 205, more particularly, the
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observations made in Para 6 and 7 respectively. Para 6 & 7 respectively are as under:
“6. We do not find any merit in the present appeal. Para 5(a) of the circular
dated 28-12-1988 deals with an enquiry which is not a court of inquiry into the
allegations against an army personnel. Such enquiry is not like departmental
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enquiry but semblance of the fair decision-making process keeping in view the reply
filed. The court of inquiry stands specifically excluded. What kind of enquiry is
required to be conducted would depend upon facts of each case. The enquiry is not
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a regular enquiry as Para 5(a) of the Army Instructions suggests that it is a

preliminary enquiry. The test of preliminary enquiry will be satisfied if an
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explanation of a personnel is submitted and upon consideration, and order is passed

thereon. In the present case, the appellant has not offered any explanation in the
reply filed except giving vague family circumstance. Thus, he has been given
adequate opportunity to put his defence. Therefore, the parameters laid down in
2-
Para 5(a) of the Army Instructions dated 28-12-1988 stand satisfied….

7. In reply to the show-cause notice, the appellant has not given any explanation
2
of his absence from duty on seven occasions. He has been punished on each
occasion for rigorous imprisonment ranging from 2 days to 28 days. A member of
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the Armed Forces cannot take his duty lightly and abstain from duty at his will.
Since the absence of duty was on several different occasions for which he was
imposed punishment of imprisonment, therefore, the order of discharge cannot be
said to be unjustified. The Commanding Officer has recorded that the appellant is a
habitual offender. Such fact is supported by absence of the appellant from duty on
seven occasions.”
20. In such circumstances referred to above the learned Counsel appearing for the
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respondents pray that there being no merit in this appeal, the same may be
dismissed.
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ANALYSIS
21. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the only question that falls for our consideration is
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whether the Division Bench of the High Court committed any error in passing the
impugned order?
22. We must first look into the decision of this Court rendered in the case of
Virendra Kumar Dubey (supra). In the said case, the appellant Virendra Kumar Dubey
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was enrolled as an operator in the corps of Artillery of Indian Army on 27.09.1980.
Having served in that capacity for nearly twelve years, he received a show cause notice
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pointing out that he had been awarded four Red Ink entries for various offences set
out in the notice and that Virendra Kumar Dubey had become a habitual offender,
thereby setting a bad example of indiscipline in the army. Virendra Kumar Dubey
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ultimately came to be discharged from service by an order dated 14.12.1992. He
preferred a departmental appeal, which failed. He, thereafter, went to the High Court
of Madhya Pradesh at Jabalpur, however, the High Court declined to entertain the
petition on the ground of lack of territorial jurisdiction. He, thereafter, preferred an
appeal before the Appeal Court and the writ appeal was ultimately ordered to be
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transferred to the Armed Forces Tribunal Regional Bench, Lucknow. The Tribunal
ultimately dismissed the transferred petition which gave rise to the appeal before this
Court.
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23. This Court in Virendra Kumar Dubey (supra) held as under:

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“19. It is common ground that a red ink entry may be earned by an individual for
overstaying leave for one week or for six months. In either case the entry is a red
ink entry and would qualify for consideration in the matter of discharge. If two
persons who suffer such entries are treated similarly notwithstanding the gravity of
the offence being different, it would be unfair and unjust for unequals cannot be
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treated as equals. More importantly, a person who has suffered four such entries on
a graver misconduct may escape discharge which another individual who has
earned such entries for relatively lesser offences may be asked to go home
prematurely. The unfairness in any such situation makes it necessary to bring in
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safeguards to prevent miscarriage of justice. That is precisely what the procedural

safeguards purport to do in the present case.”
24. Taking the aforesaid view, this Court ultimately passed the following order:
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“21. In the result this appeal succeeds and is hereby allowed. The order of
discharge passed against the appellant is hereby set aside. Since the appellant has
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already crossed the age of superannuation, interest of justice will be sufficiently

served if we direct that the appellant shall be treated to have been in service till the
time he would have completed the qualifying service for grant of pension. No back
wages shall, however, be admissible. Benefit of continuity of service for all other
2-
purpose shall be granted to the appellant including pension. Monetary benefits

payable to the appellant shall be released expeditiously but not later than four
2
months from the date of this order. No Costs.”

25. In Vijay Shankar Mishra (supra), the appellant therein was enrolled in the Army
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Medical Corps on 23.06.1984. On 03.10.1997, a notice to show cause was issued to

him to explain why he should not be discharged from service under Rule 13(3) Table
(III)(v) of the Army Rules, 1954 on the ground that his conduct and service had not
been found satisfactory. He ultimately came to be discharged from service. By that
time, he had rendered service of thirteen years and eight months. The minimum
qualifying service for earning pension under Rule 132 of the Pension Regulations for
the Army, 1961 is fifteen years. He filed a writ petition before the Madhya Pradesh
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High Court which was dismissed on 21.11.2006. In appeal, a Division Bench directed
reconsideration of the case of the appellant. Pursuant to the order of the High Court,
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an order was issued rejecting his claim for pension on the ground that he had not put
in fifteen years of service and had been discharged for the reason that he was unlikely
to become an efficient soldier. He again filed a writ petition before the Madhya Pradesh
High Court which was transferred to the Armed Forces Tribunal. The Tribunal
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dismissed the matter. Thereafter, Mishra came before this Court. The very same
argument was canvassed before this Court on behalf of Vijay Shankar Mishra that the
mere fact that he had been punished while in service on nine occasions inclusive of six
Red entries was no ground to exercise the power under the relevant rule for the
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purpose of discharge. The Court relied upon Vijay Shankar Mishra (supra) and
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ultimately held as under:
“9. In the present case, it is evident that there was no application of mind by the
authorities to the circumstances which have to be taken into consideration while
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exercising the power under Rule 13. The mere fact that the appellant had crossed
the threshold of four red entries could not be a ground to discharge him without
considering other relevant circumstances including : (i) the nature of the violation
which led to the award of the red ink entries; (ii) whether the appellant had been
exposed to duty in hard stations and to difficult living conditions; (iii) long years ofO
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service, just short of completing the qualifying period for pension. Even after the
Madhya Pradesh High Court specifically directed consideration of his case bearing in
mind the provisions of the circular, the relevant factors were not borne in mind. The
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order that was passed on 26-2-2007 failed to consider relevant and germane
circumstances and does not indicate a due application of mind to the requirements
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of the letter of Army Headquarters dated 28-12-1988 and the Circular dated 10-01-
1989.
10. For these reasons, we are of the view that the Armed Forces Tribunal was in
error in rejecting the application. The orders of the Tribunal dated 23-9-2010 Vijay
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Shankar Mishra v. Union of India, 2010 SCC OnLine AFT 1127 and 15-9-2011 are
set aside. Since the appellant would have attained the age of superannuation, the
ends of justice would be met if he is treated to have been in service till the time he
would have completed the qualifying service for grant of pension. No back wages
shall however be admissible. The benefit of continuity of service for all other
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purposes shall be granted to the appellant including pension. The monetary benefits
payable to the appellant shall be released within a period of four months from the
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date of this order.”

26. In both the aforesaid decisions, this Court took into consideration the fact that
there was no application of mind by the authority to the relevant aspects which were
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taken into consideration while exercising the power under Rule 13 of the Rules. In
both the aforesaid cases, this Court took the view that the mere fact that the
Personnel had crossed the threshold of few Red Ink entries could not have been made
2-
a ground to discharge them without considering other relevant circumstances, more

particularly, the nature of the violation which led to the award of the Red Ink entries.
The crux of the ratio of the decision of this Court in the case on Veerendra Kumar
2
Dubey (supra) is that the only safeguard against arbitrary exercise of power by the
authority would be to ensure that there is an enquiry, howsoever, summary and a
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finding about the defence set up by the individual besides consideration of the factors
made relevant under the procedure.
27. The reliance placed by the learned Counsel appearing for the respondents on
the decision of this Court in the case Satgur Singh (supra) is of no avail. It was a case
in which the appellant failed to furnish any explanation of his absence from duty on
seven occasions. On facts, this Court took the view that as the absence from duty was
on several different occasions for which he was imposed punishment of imprisonment,
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the order of discharge could not be said to unjustified.
28. We may elaborate the aforesaid a little further.
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29. Where an Act or the statutory rules framed thereunder left an action dependent
upon the opinion of the authority concerned, by some such expression as ‘is satisfied’
or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’, the
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opinion of the authority is conclusive, (a) if the procedure prescribed by the Act or
rules for formation of the opinion was duly followed, (b) if the authority acted bona
fide, (c) if the authority itself formed the opinion and did not borrow the opinion of
somebody else and (d) if the authority did not proceed on a fundamental
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misconception of the law and the matter in regard to which the opinion had to be
formed.
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30. The action based on the subjective opinion or satisfaction, in our opinion, can
judicially be reviewed first to find out the existence of the facts or circumstances on
the basis of which the authority is alleged to have formed the opinion. It is true that
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ordinarily the court should not inquire into the correctness or otherwise of the facts
found except in a case where it is alleged that the facts which have been found
existing were not supported by any evidence at all or that the finding in regard to
circumstances or material is so perverse that no reasonable man would say that the
facts and circumstances exist. The courts will not readily defer to the conclusiveness of
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the authority's opinion as to the existence of matter of law or fact upon which the
validity of the exercise of the power is predicated.
31. The doctrine of reasonableness thus may be invoked. Where there are no
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reasonable grounds for the formation of the authority's opinion, judicial review in such
a case is permissible. [See Director of Public Prosecutions v. Head, [1959] A.C. 83
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(Lord Denning).
32. When we say that where the circumstances or material or state of affairs does
not at all exist to form an opinion and the action based on such opinion can be
quashed by the courts, we mean that in effect there is no evidence whatsoever to form
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or support the opinion. The distinction between insufficiency or inadequacy of evidence

and no evidence must of course be borne in mind. A finding based on no evidence as
opposed to a finding which is merely against the weight of the evidence is an abuse of
the power which courts naturally are loath to tolerate. Whether or not there is evidence
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to support a particular decision has always been considered as a question of law. [See
Reg. v. Governor of Brixton Prison, Armah, Ex Parte, [1966] 3 WLR 828 at p. 841].
33. It is in such a case that it is said that the authority would be deemed to have
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not applied its mind or it did not honestly form its opinion. The same conclusion is
drawn when opinion is based on irrelevant matter. [See Rasbihari v. State of Orissa,
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(1969) 1 SCC 414 : AIR 1969 SC 1081].

34. In the case of Rohtas Industries Ltd. v. S.D. Agarwal, (1969) 1 SCC 325 : AIR
1969 SC 707, it was held that the existence of circumstances is a condition precedent
to form an opinion by the Government. The same view was earlier expressed in the
2-
case of Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295.
35. Secondly, the court can inquire whether the facts and circumstances so found
2
to exist have a reasonable nexus with the purpose for which the power is to be
exercised. In other words, if an inference from facts does not logically accord with and
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flow from them, the Courts can interfere treating them as an error of law. [See Bean v.
Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this Court
can see whether on the basis of the facts and circumstances found, any reasonable
man can say that an opinion as is formed can be formed by a reasonable man. That
would be a question of law to be determined by the Court. [See Farmer v. Cotton's
Trustees, [1915] A.C. 922]. Their Lordships observed:
“……….. in my humble judgment where all the material facts are fully found, and
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the only question is whether the facts are such as to bring the case within the
provisions properly construed of some statutory enactment, the question is one of
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law only.”
[See also Muthu Gounder v. Government of Madras, (1969) 82 Mad LW 1].
36. Thirdly, this Court can interfere if the constitutional or statutory term essential
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for the exercise of the power has either been misapplied or misinterpreted. The Courts
have always equated the jurisdictional review with the review for error of law and have
shown their readiness to quash an order if the meaning of the constitutional or
statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) v. Minister
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of Housing and Local Govt., [1962] 2 Q.B. 147; Iveagh (Earl of) v. Minister of Housing
and Local Govt. (1964) 1 AB 395].
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37. Fourthly, it is permissible to interfere in a case where the power is exercised for
improper purpose. If a power granted for one purpose is exercised for a different
purpose, then it will be deemed that the power has not been validly exercised. If the
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power in this case is found to have not been exercised genuinely for the purpose of
taking immediate action but has been used only to avoid embarrassment or wreck
personal vengeance, then the power will be deemed to have been exercised
improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481].
38. Fifthly, the grounds which are relevant for the purpose for which the power can
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be exercised have not been considered or grounds which are not relevant and yet are
considered and an order is based on such grounds, then the order can be attacked as
invalid and illegal. In this connection, reference may be made to Ram Manohar v.
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State of Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR 1957 SC 164
and Motilall v. State of Bihar, AIR 1968 SC 1509. On the same principle, the
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administrative action will be invalidated if it can be established that the authority was
satisfied on the wrong question : [See [1967] 1 A.C. 13].
39. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016.
We are conscious of the fact that these regulations do not apply to the case on hand as
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the order of discharge is of 2004. However, we deem fit to reproduce the relevant
regulations, more particularly, 107(c) and 108 respectively, as these regulations seem
to have been enacted and brought into force having regard to the ratio of the decision
of this Court in the case of Veerendra Kumar Dubey (supra). Regulation 107(c) reads
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thus:
“107. Removal of undesirable, incorrigible and inefficient Subordinate
Officers, Under Officers and other enrolled persons.
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(a) …………
(b) …………
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(c) The procedure for dismissal/discharge of unsuitable subordinate officer/under

officer/enrolled person will be as under:—
(i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person
2-
concerned, subject to the exception mentioned therein, shall be served with

a Show Cause Notice against the contemplated action.
(ii) Preliminary enquiry. Before recommending discharge or dismissal of an
2
individual the authority concerned will ensure that an impartial enquiry (not
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necessarily a Court of Inquiry) has been made into the allegations against
him and that he has had adequate opportunity of hearing.
(iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the
Assam Rifles Units/establishment to discharge any subordinate
officer/under officer/enrolled persons of Assam Rifles. However, the power
of discharge by the Commandant shall be exercised with prior approval of
immediate superior officer not below Sector Commander in case of Under
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Officers and other enrolled person and that of Inspector General Assam
Rifles in case of Subordinate Officers.
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(iv) After compliance of the provisions enumerated above, a show cause notice
will be served on the individual affording him an opportunity to explain his
case. Thereafter, the complete case file will be forwarded to next superior
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authority/Sector Headquarters for approval of the superior authority/Sector
Commander.
(v) The authority competent to sanction the dismissal/discharge of the
individual will before passing orders re-consider the case in the light of the
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individual reply to the show cause notice. A person who has been served a
show cause notice for proposed dismissal may be ordered to be discharged
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if it is considered that discharge would meet the end of justice. If the
competent authority accepts the reply of the individual to the show cause
notice as entirely satisfactorily, he will pass orders accordingly.
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108. Discharge on ground of red ink entries. A Subordinate Officer, Under
Officer or other enrolled person who has incurred four or more red ink entries may
be recommended for discharge from the service on the ground of unsuitability,
subject to the following conditions:—
(a) After an individual has earned three red ink entries, he shall be warned in
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writing that his service will be liable to be terminated by the competent
authority if he earns one more red ink entry. Such a warning letter shall be
issued to him by the concerned Sector Commander through Commandant of
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the individual.
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(b) Each case of individuals having earned four or more red ink entries shall be
examined on its own merit depending upon the nature and gravity of the
offences and the aggravating circumstances under which these were
committed. The authority competent to sanction discharge under this para
shall record reasons for ordering the discharge, or otherwise.
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(c) A person who has put in eighteen years of qualifying service for pension may
be allowed to complete the required qualifying service for grant of pension
before he is recommended for discharge on ground of four or more red ink
entries, unless there are compelling reasons to sanction his discharge before
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completion of the qualifying service for pension, which must be specified in

the discharge order.
(d) Before taking the final decision to order the discharge, the person concerned
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shall be informed through a show cause notice that his retention in the service
is considered undesirable for having incurred four or more red ink entries,
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thereby also calling upon him to show cause as to why he should not be
discharged from the service for being considered unsuitable for the service in
the Assam Rifles. The individual shall be given minimum fifteen days, after
receipt of Show Cause Notice, to submit his reply.
2-
(e) After receipt of the individual's reply, if any, the case shall be put up to the
authority competent to sanction the discharge alongwith recommendations of
2
the Commandant of the unit concerned. Before passing the discharge order,
the authority competent to sanction the discharge under this para may seek
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the advise of the Law Officer concerned.

(f) An order of discharge under this para shall be passed by an officer not less
than a Sector Commander in the case of Under Officer or other enrolled
persons and an officer not less than Inspector General Assam Rifles/Additional
Director General Assam Rifles in case of Subordinate Officers.”
40. Having regard to the nature of the misconduct alleged against the appellant we
are of the view that the ends of justice would be met if we set aside the order of
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discharge and treat the appellant herein to have been in service till the time, he could
be said to have completed the qualifying service for grant of pension. We are inclined
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to pass such an order with a view to do substantial justice as there is nothing on
record to indicate that the nature of the misconduct leading to the award of four Red
Ink entries was so unacceptable that the competent authority had no option but to
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direct his discharge to prevent indiscipline in the force.
41. The order of discharge passed against the appellant herein is hereby set aside.
The appellant shall be treated to have been in service till the time he would have
completed the qualifying service for grant of pension. We are informed that only six
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months were left for the qualifying service to be completed before the appellant came
to be discharged. No back wages shall, however, be admissible. The benefit of
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continuity of service for all other purpose shall be granted to the appellant including
pension. The monetary benefits payable to the appellant shall be released
expeditiously but not later than four months from the date of this order.
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42. The appeals are allowed in the aforesaid terms. No order as to costs.
43. Pending application, if any, stands disposed of.
———
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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BRIJESH CHANDRA DWIVEDI v. SANYA SAHAYAK 189

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M.R. SHAH AND B.V. NAGARATHNA, JJ.)
(BEFORE
a
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BRIJESH CHANDRA DWIVEDI
(DEAD) THROUGH LEGAL REPRESENTATIVES Appellants;
Vers us
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SANYA SAHAYAK AND OTHERS Respondents.
Civil Appeal No. 7382 of 2021 t , decided on January 25, 2022
b
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Armed Forces - Penalty/Punishment - Substitution of punishment of
dismissal with compulsory retirement - Peculiar circumstances of the case
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- Employee (deceased) posted in Military alleged to have driven truck
under influence of liquor, while carrying PAC personnel, causing accident by
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dashing backside of jeep - Fact that he was driving vehicle under influence
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of alcohol established in departmental enquiry and even medical examination
conducted on same day
- Held, driving truck carrying PAC personnel under influence of alcohol

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is serious misconduct and such indiscipline cannot be tolerated and that too
in disciplined Military - Further held, merely because there was no major
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d loss and it was minor accident cannot be ground to show leniency - Besides,
driving vehicle under influence of alcohol is not only a misconduct but an
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offence also - However, considering: (i) statement of employee that he

had not consumed liquor while reporting for duty but had done so after
accident to suppress fear, which is a possible explanation; (ii) 25 yrs of
long service; (iii) minor accident only causing loss to vehicle; and (iv) death
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e of employee in meantime, held, punishment of dismissal may be too harsh

which substituted with punishment of compulsory retirement - Death-cum-
retirement benefits as well as family pension directed to be disbursed to his
legal heirs (Paras 8 to 13)
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Brijesh Chandra Dwivedi v. Sanya Sahayak, 2018 SCC OnLine All 6106 , modified
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Appeal partly allowed P-D/68504/CL

f
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Manohar Pratap and Ms Pallavi Shanna (Advocate-on-Record), Advocates, for the

Appellants;
Sanjay Kr. Tyagi (Advocate-on-Record) and Rajesh Mani Tripathi, Advocates, for the
Respondents.
2-
g Chronological list of cases cited on page(s)

1. 2018 SCC OnLine All 6106, Brijesh Chandra Dwivedi v. Sanya
2
Sahayak 190a, 190d-e, 190e

20
h
t Arising from the Judgment and Order in Br~;esh Chandra Dwivedi v. Sanya Sahayak, 2018 SCC
OnLine All 6106 (Allahabad High Court, Writ-A No. 35483 of 2002, dt. 16-11-2018) [Modified]
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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M.R. SHAH, J.- Feeling aggrieved and dissatisfied with the impugned
judgment and order 1 passed by the High Court of Judicature at Allahabad a
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in Civil Miscellaneous Writ Petition No. 35483 of 2002 by which the High
Court has dismissed the said writ petition refusing to set aside the order of
dismissal passed by the disciplinary authority, the employee (now the heirs of
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the deceased employee) has preferred the present appeal.
2. That the employee Brijesh Chandra Dwivedi (since deceased) was a
driver posted at the 12th Battalion, PAC at Fatehpur. While he was on duty b
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driving a truck carrying the PAC personnel from Fatehpur to Allahabad on
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Kumbh Mela duty, it was involved in a motor accident with a jeep. He was
charged for having caused the accident by dashing his truck on the back
side of the jeep while driving under the influence of alcohol. On medical
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examination conducted on the same date i.e. 2-2-2000, he was found to have
been under the influence of alcohol. A departmental enquiry was initiated C
against him. On completion of the departmental enquiry, the enquiry officer

proposed punishment of dismissal. Second show-cause notice was issued by O
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the disciplinary authority and after considering his reply thereto the punishment
of dismissal was awarded which was confirmed by the appellate authority.
3. Feeling aggrieved and dissatisfied with the award of punishment of
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dismissal, the employee filed a writ petition before the High Court being Civil d
Miscellaneous Writ Petition No. 35483 of 2002. Before the High Court, it
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was also submitted that punishment of dismissal is disproportionate to the

misconduct proved. By the impugned judgment and order 1 , the High Court has
dismissed the writ petition and has also held that in the facts and circumstances
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of the case, a punishment of dismissal cannot be said to be disproportionate

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to the misconduct committed. Feeling aggrieved and dissatisfied with the
impugned judgment and order 1 passed by the High Court, the employee had
preferred the present appeal. During the pendency of the proceedings before
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this Court, the employee has died and thereafter his heirs were brought on
record and the present appeal is being prosecuted by the heirs of the deceased.
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4. The learned counsel appearing on behalf of the appellant(s) has f

submitted that considering the fact that it was a minor accident, which resulted
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into some loss to the vehicle and considering his 25 years' long service, the
order of dismissal is disproportionate to the misconduct proved. It is, therefore,
requested to take the lenient view and to convert the dismissal into compulsory
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retirement.
5. The learned counsel appearing on behalf of the respondent(s) has g
submitted that the aspect of disproportionate punishment imposed has been
2
considered by the High Court in detail and having considered the past record
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and the misconduct committed by the deceased employee in the past and having
found that he was a habitual consumer of liquor and he was remaining absent
and even in the year 1987, when he was appointed in the 33rd Battalion in
PAC Jhansi, he misbehaved with the senior officers and was punished with h
l Br/iesh Chandra Dwivedi v. Sanya Sahayak, 2018 SCC OnLine All 6106
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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BRIJESH CHANDRA DWIVEDI v. SANYA SAHAYAK ( M.R. Shah, J.) 191

one parininda lekh, the award of punishment of dismissal cannot be said to be
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disproportionate.
a 6. It is submitted that driving the vehicle carrying the soldiers under
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the influence of alcohol cannot be tolerated and it can be said to be gross
indiscipline. It is submitted that it was fortunate that nobody died in the accident
because of the good luck of those soldiers, who were travelling in the vehicle.
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It is submitted that accident could have been fatal if somebody had died. It is
submitted that driving a vehicle under the influence of alcohol is not only a
b misconduct but it is an offence also. It is therefore submitted that the deceased
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employee is not entitled to any leniency.
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7. Heard the learned counsel for the respective parties at length.
8. At the outset, it is required to be noted that in the disciplinary
proceedings, the misconduct of driving the vehicle under the influence of
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alcohol and when the employee was driving the vehicle under the influence
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of alcohol the vehicle met with an accident has been held to be proved and
therefore the disciplinary authority awarded the punishment of dismissal. The
only prayer on behalf of the appellant(s) is that the punishment of dismissal is O
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disproportionate to the misconduct proved and leniency may be shown and the
order of dismissal be converted into compulsory retirement.
9. However, it is required to be noted that the employee was the driver
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posted in the Military and he was posted at the 12th Battalion, PAC at Fatehpur.
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The allegation against the employee is at the time when the employee was
driving the vehicle under the influence of liquor, the truck/vehicle was carrying
PAC personnel and the said vehicle/truck met with an accident with a jeep.
His defence that due to the break failure, the accident took place and the
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truck dashed to the backside of the jeep has been disbelieved. The fact that he
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was driving the truck under the influence of alcohol has bee n established and
proved, even on the medical examination conducted on the same date. Driving
a truck carrying the PAC personnel under the influence of alcohol is a very
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serious misconduct and such an indiscipline cannot be tolerated and that too in
the disciplined Military.
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f 10. Merely because there was no major loss and it was a minor accident
cannot be a ground to show leniency. It was sheer good luck that the accident
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was not a fatal accident. It could have been a fatal accident. When the employee
was driving a truck carrying the PAC personnel, the lives of those PAC
personnel who were travelling in the truck were in the hands of the driver.
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Therefore, it can be said that he played with the lives of those PAC personnel,
g who were on duty and travelling from Fatehpur to Allahabad on Kumbh Mela
duty.
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11. Even otherwise, driving a vehicle under the influence of alcohol is not
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only a misconduct but it is an offence also. Nobody can be permitted to drive the
vehicle under the influence of alcohol. Such a misconduct of driving a vehicle
under the influence of alcohol and playing with the life of the others is a very
h serious misconduct. There are also other misconducts earlier committed by the
employee.
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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12. However, at the same time, considering the statement of the employee at
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the time of the enquiry and the explanation given by him that on going to duty on
taking the vehicle from battalion, he had not consumed the liquor and after the a
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accident with the objective to suppress the fear on coming to battalion and on
parking the vehicle, he went directly to bus terminal, Ghazipur and consumed
100 ml of country-made wine, though has not been accepted but that might be
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plausible and considering his 25 years of long service and fortunately it was a
minor accident which resulted into some loss to the vehicle and considering the
fact that the employee has since died, we find that the punishment of dismissal b
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can be said to be too harsh and may be treated one for compulsory retirement.
13. In view of the above and for the reasons stated hereinabove and in
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the peculiar facts and circumstances of the case, narrated hereinabove, the
award of punishment of dismissal can be said to be too harsh, the punishment
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of dismissal is directed to be converted into compulsory retirement of the
employee. As the employee has since died, and on converting the punishment c
of dismissal to that of compulsory retirement, death-cum-retirement benefits
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as also the benefit of family pension, if any, shall be paid to the legal heirs
of the deceased employee in accordance with law and bearing in mind that
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punishment of dismissal has now been converted into one of compulsory
retirement. The present appeal is partly allowed to the aforesaid extent.
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However, there shall be no order as to costs. d

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(BEFORE ABHAY S. OKA AND M.M. SUNDRESH, JJ.)
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K.S. Sahu … Appellant;
Versus
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Union of India and Others … Respondent(s).
Decided on August 5, 2022
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ABHAY S. OKA, J.:— This is an appeal under Section 31 of the Armed Forces
Tribunal Act, 2007 by which, an exception has been taken to the judgment and order
dated 27th August 2013 passed by the Armed Forces Tribunal (for short, ‘the said
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Tribunal’), Regional Bench, Kochi.
2. On 31st July 2002, the appellant joined Indian Navy as a sailor. The appellant
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was selected by the Service Selection Board to undergo training for being
commissioned as an officer. He underwent initial training at INS Mandovi at Goa for a
period of two years from 7th July 2002. On 21st June 2009, he was sent for training at
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Indian Naval Academy, Ezhimala (for short, ‘INA’). He was required to complete 5th
and 6th terms of training at INA. On 1st December 2010, a communication was issued
by the Integrated Headquarters of the Ministry of Defence (Navy), Government of
India informing that the competent authority has accorded approval to the withdrawal
of the appellant from INA and revert him to his original rank and branch as a sailor
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without loss of seniority. Being aggrieved by the said decision, the appellant filed
Original Application under Section 14 of the Armed Forces Tribunal Act, 2007 before
the said Tribunal. By the impugned judgment, the Original Application has been
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dismissed.
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SUBMISSIONS OF THE APPELLANT

3. The learned senior counsel appearing for the appellant pointed out the order
dated 27th August 2013, passed by the said Tribunal by which leave has been granted
under sub-Section (1) of Section 31 of the Armed Forces Tribunal Act, 2007 as three
questions of general public importance were involved. The first question was whether
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the appellant who was a service cadet could be withdrawn from the course in INA
without following the principles of natural justice. The second question was whether
Regulation 216 of the Navy (Discipline and Miscellaneous Provisions) Regulations,
1965 (for short ‘the said Regulations’) could be invoked against a service cadet. The
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third question was whether, after completion of the course and receipt of the
certificates, the applicant could be withdrawn.
4. The learned senior counsel submitted that the withdrawal of the appellant from
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the course is contrary to the Rules in the Enclosure-1 of Naval Headquarters' letter
dated 11th November 1988, which provide that the final authority for withdrawal of a
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cadet from the course vests in the Government. He pointed out that in this case, the
decision is made not by the Government, but by a subordinate authority. He also
pointed out that the same enclosure provides that a cadet is to be dispatched home on
leave, pending the acceptance of the proposal for his withdrawal if it is made on the
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eve of summer/winter break. He submitted that even after the recommendation was
made for the withdrawal of the appellant from the course, he was not sent home but
2
was permitted to pursue the course. He also pointed out that the Naval authorities
have contended on one hand that the withdrawal is on the disciplinary grounds and on
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the other hand, the withdrawal is on the ground that the appellant was found deficient
in basic character and other officer like qualities and graded as ‘unacceptable’ in spite
of written warnings. He submitted that both the grounds are distinct grounds. The
learned senior counsel further submitted that the officers of the Navy have victimised
the appellant due to the fact that he comes from a very poor family and his father is
working as a carpenter in a Naval establishment. The learned senior counsel further
submitted that the appellant was influenced to sign the documents accepting his
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mistake under a threat of disciplinary action. He submitted that the entire theory of
recovery of articles from the appellant's room is very doubtful. He submitted that the
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Navy forwarded an invitation to the appellant's parents for attending the valedictory
ceremony on 6th December 2010 and they were never informed about the withdrawal
of the appellant. The learned senior counsel submitted that the said Tribunal has
completely ignored important questions of public importance involved in the
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application preferred by the appellant.
SUBMISSIONS OF THE RESPONDENT
5. Ms. Aishwarya Bhati, the learned Additional Solicitor General of India firstly
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submitted that Regulation 216 of the said Regulations has not been invoked in the
case of the appellant and therefore, there is no question of following the principles of
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natural justice. She pointed out that the Rules governing resignation, withdrawal,
relegation and reexamination of (10+2) Executive Cadets undergoing training at Naval
Academy, were issued by the Integrated Headquarters of Ministry of Defence (Navy),
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New Delhi vide letter dated 11th November 1988. She pointed out that grounds for
withdrawal have been set out in the said Rules. In this case, Ground ‘c’ was invoked as
the appellant was found deficient in basic character and other officer like qualities. She
pointed out that the written warnings were issued to the appellant on 16th July 2009
and 11th May 2010. The appellant was called upon to submit his explanation while
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issuing the warnings. She pointed out that though the proposal for withdrawal was
submitted on 24th August 2009, on 6th November 2009, the appellant was only
relegated. She pointed out that on the basis of the proposal dated 26th June 2010,
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ultimately the action of withdrawal was taken. She pointed out that all these aspects
and the conduct of the appellant have been taken into consideration by the said
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Tribunal. She urged that the impugned judgment of the Tribunal does not call for any
interference.
CONSIDERATION OF SUBMISSIONS
6. In the present case, impugned action which was the subject matter of challenge
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before the said Tribunal, was of the withdrawal of the appellant from the course which
he was undergoing in INA. Regulation 216 of the said Regulations deals with the
termination of service of an officer by the Government on the ground of misconduct.
Clause (1) of Regulation 216 contemplates the issuance of show cause notice to the
officer. Clause (2) of the Regulation 216 requires information to be given to the officer
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about all reports adverse to him and to give an opportunity to him to submit his
explanation and defence in writing. However, the action of withdrawal of the appellant
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from the course was not taken in terms of Regulation 216. The said Regulation is
applicable to termination of service. In this case, the service of the appellant has not
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been terminated.
7. The Integrated Headquarters of Ministry of Defence (Navy) vide letter dated 11th
November 1988 forwarded to the Chiefs of the Western as well as Eastern Naval
Commands, the Rules governing resignation, withdrawal, relegation and reexamination
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of (10+2) Executive Cadets undergoing training in INA. Rule 4 provides for the
relegation of a cadet on the grounds specified therein, subject to approval by the
Naval Headquarters. Rule 4 reads thus.:
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“4. Subject to approval by naval Headquarters (DNT) a cadet may be relegated

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on any of the following grounds:-

(a). Fails to achieve the minimum standards in academic and service subjects in
spite of a written warning and re-examination. (Reexamination is permitted
only upto 3 subjects).
(b). Possesses the basic qualities required of an Officer but requires more time to
develop them (requisite Officer Like Qualities).
(c). Misses more than 10 weeks continuous training owing to illness or other
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medical grounds.
(d). On disciplinary grounds.
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(e). Fails to achieve minimum standards in outdoor training in spite of written
warning.
(f)(i) Mines more than 40% of course duration due to hospitalization/sick
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leave/any medical grounds.
(ii) mines more than 40% of ODT (games/PT and various PT tests) due to
hospitalization/sick leave/medical grounds.
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(Corrected vide: HQ&NC letter TR/8238/ Policy dated 13 September 04).”
8. There is a specific provision in Rules dealing with the withdrawal of a cadet from
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the course in INA. It reads thus.:
“Final authority for the withdrawal of a cadet read the Government. Withdrawal
on medical grounds will be regulated in accordance with regulation 218, Regulation
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for the Navy Part II (Statutory). A cadet may be recommended for withdrawal
on any of the following grounds:-
a. Fails to make the grade in academic subjects inspite of relegations and written
warning for withdrawal.
b. Fails to achieve the minimum standards in services, subjects, inspite of
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relegation(s) and written warning for withdrawal.
c. Found deficient in basic character and other Officer Like Qualities and
graded unacceptable in spite of written warnings.
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e. Disciplinary grounds
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f. Medical grounds.
10. Except for disciplinary or medical grounds, a cadet will normally be
recommended for withdrawal at the end of a term. Recommendations for
withdrawal on disciplinary grounds will be made after the cadet has been given
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adequate written warnings and opportunity to explain his conduct in terms of

regulations 216, Regulation for the Navy Part II, Statutory.”
(emphasis added)
9. It is in the light of the aforesaid provision of the Rules that the controversy will
have to be examined. It appears that on the basis of irregularities in the conduct of
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the appellant reported on 19th April 2010 by Lt. Praveen Kumar, an investigation was
made. After carrying out the investigation and questioning the appellant, his cabin
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was checked. In his cabin, various objectionable articles were found that were taken
into the custody of Squadron's office. On 9th July 2009, the appellant was questioned
on the charge that on 5th July 2009, he was found in possession of a large number of
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items which were government property and some were belongings of other cadets.
While answering the questions, the appellant accepted that his cabin was checked on
5th July 2009. The appellant accepted that he was found in possession of pornographic
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magazines, cigarettes, a lighter and a mobile phone. He was also found in possession
of Garuda Pay office stamp and a large number of seamens' knives. He was in
possession of a stabilizer, a multimeter as well as a BSNL phone. He accepted that a
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bedsheet of another cadet was found in his possession. In response to question no.
24, the appellant stated that he has committed a wrong for the first time and was
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ready to take any punishment.

10. Based on the investigation carried out, a notice dated 16th July 2009 was issued
to the appellant. In the notice, it was stated that the appellant was found in the
custody of government property, such as a stabilizer, a multimeter, BSNL landline
phone, INS Garuda Pay office stamp, etc. He was found in possession of pornographic
material apart from the possession of prohibited items like cigarettes, a lighter and
mobile phone, etc. Moreover, he was found in possession of a large number of items
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belonging to other cadets. By the said notice, a warning was issued to the appellant
and he was called upon to explain why action should not be taken against him. The
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appellant replied in writing on 16th July 2009, in which he claimed that the stabilizer,
multimeter and cables were already in his room when he occupied it. He claimed that
the INS Garuda Pay office stamp does not belong to him and he does not know how it
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was found in his cabin. He accepted that he was in possession of 5 Seamens' knives,
16 bedsheets, 9 buckles of a drill, and a bedsheet of cadet Mr. Kunal Saini. He claimed
that the mobile phone, MP3 player, etc. were his personal belongings. He accepted
that he was in possession of cigarettes. He accepted that he was in possession of
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pornographic magazines. But shockingly, he claimed that the magazines were used for
making greetings.
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11. INA submitted a proposal on 24th August 2009 to the Headquarters
recommending withdrawal of the appellant. The proposal contains all details of what
was found during the investigation. The proposal refers to the fact that the appellant
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was found in the custody of prohibited items, such as a mobile phone, cigarettes,
lighter, etc. as well as pornographic material. It refers to the warning issued to the
appellant. Though the proposal lastly refers to Regulation 216, it also mentions that
the record shows that the appellant lacks basic character and officer like qualities.
Instead of withdrawal from the course on 6th November 2009, the appellant was only
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relegated.
12. Another show cause notice was issued to the appellant on 11th May 2010, which
is based on the investigation carried out by Lt. Commodore Ashutosh Bobade. In the
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Notice, it was stated that the appellant was found guilty of tampering with an official
document (Squadron Sick Report Book). Apart from articles of the other cadets, he
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was found in possession of hammers, pliers and ante-room magazines.

13. INA submitted another proposal dated 26th June 2010 to the Naval
Headquarters, which records that after the appellant was relegated on 6th November
2009, he indulged in tampering with the said official document. Moreover, he
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remained absent from the classes. It is also mentioned that the appellant has been so
far subjected to 52 restrictions and he has accumulated 260 negative points. INA
recommended action of withdrawal against the appellant on the ground of lack of basic
character and officer like qualities. It is on the basis of this proposal that a decision
was taken by the Naval Headquarters to grant approval to the proposal for withdrawal
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of the appellant from INA. The Headquarters communicated the same to the Flag
Officer Commanding-in-Chief, Headquarters Southern Naval Command, Kochi on 1st
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December 2010. We may note here that in response to the show cause notice issued
on 16th July 2009, the appellant had accepted that he was found in possession of
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objectionable articles and requested the authorities to forgive him by stating that it
was his first ever offence.
14. Before we deal with the legal submissions, we may note here that on 14th
January 2011, the appellant's father made a representation to the Chief of the Naval
2-
Staff for reconsideration of the action of withdrawal. He requested on behalf of the

family that one more opportunity may be granted to the appellant. He assured that if
the appellant was given one more chance, there won't be any complaint against him.
2
By the letter dated 8th March 2011, the Commodore of Integrated Headquarters of the
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Ministry of Defence (Navy) informed the appellant's father that the case of the
appellant was reconsidered and after reconsideration of the entire case, the request
made by the appellant's father could not be accepted on the grounds mentioned
therein. It was mentioned therein that the appellant was offered every opportunity to
improve. In fact, feedback on his progress at INA was communicated to the
appellant's father and he was requested to guide the appellant and encourage him to
show progress. The said communication recorded that as the appellant met the
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mandatory educational requirement of the University of Goa, in the Graduation
ceremony conducted on 27th November 2010, a B.Sc Degree of Goa University was
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granted to the appellant. By another letter dated 18th February 2011, the Commander
and Training Captain clarified that the invitation for the passing out parade to be held
on 5th December 2010 was dispatched to the appellant's father on 22nd October 2010
as a procedural norm. The appellant's father was informed on 2nd December 2010
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about the decision of the Headquarters of approving the proposal for withdrawal of the
appellant. He specifically stated that on 2nd December 2010, Lt. Commodore Ashutosh
Bobade informed the appellant's father over telephone about the said decision and
requested him to avoid attending passing out parade. It is stated in the said letter
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that the appellant never participated in the passing out parade. We may also note here
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that an appeal was thereafter preferred by the appellant to the Central Government on
7th July 2011.
15. Regulation 216 deals with the dismissal of an officer from service on
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disciplinary grounds. The appellant has not been dismissed from service. On the
contrary, his service as a sailor was protected and even his seniority was protected.
The withdrawal did not affect his service in any manner. In this case, we are not
dealing with disciplinary action, but the action of withdrawal of the appellant from the
course on the ground that the appellant was found deficient in basic character and O
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other officer like qualities. As narrated above, based on the search of his cabin, a show
cause notice was issued way back on 16th July 2009 to the appellant calling for his
explanation. The appellant accepted that he was in possession of objectionable articles
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including pornographic magazines. Though a recommendation was made for

withdrawal on 6th November 2009, the appellant was only relegated and was given one
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more opportunity to improve. Even thereafter, the appellant indulged in tampering

with the record which led to the issuance of a fresh show cause notice and warning to
the appellant on 11th May 2010. Only thereafter, on 26th June 2010 that a proposal was
submitted to the Naval Headquarters for grant of approval to the proposed action of
withdrawal.
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16. We are dealing with a very disciplined force like the Navy. The appellant who
was already in Naval service as a sailor was given an opportunity to undergo training.
While assessing whether the appellant was found deficient in basic character and other
officer like qualities, the conduct of the appellant, which is reflected from the Inquiry
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Report, two show cause notices and his own statement, has been taken into
consideration. We have already quoted relevant Rules which provide that only the
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withdrawal on medical grounds will be governed by Regulation 216 of the said

Regulations. There are four other grounds mentioned therein, on the basis of which,
withdrawal can be made. As can be seen from the said Rules and considering the fact
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that the question was of continuing training of the appellant, the competent authority
could have always taken the decision of withdrawal on the basis of its subjective
satisfaction of the existence of one of the grounds for withdrawal provided in the
Rules. In this case, the subjective satisfaction of the competent authority is on the
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basis of material on record. At least on two occasions, the appellant was put to notice
and warning and was given an opportunity to explain his conduct. While taking action
2
of withdrawal of the appellant from training, the competent authority made the
assessment of the performance and conduct of the cadet in INA during his training.
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There was material on record to come to a subjective satisfaction that the appellant
was deficient in basic character and officer like qualities. Two show cause notices were
served upon the appellant before taking the action of withdrawal. There was an
opportunity given on two occasions to the appellant to explain his conduct and
improve his conduct. His conduct as reflected from record, certainly supports the
conclusion that he lacked the qualities which an officer of Navy must possess.
17. As regards the argument that the power of withdrawal could have been
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exercised only by the Government, in the counter affidavit, reliance has been placed
on the letter dated 17th August 2001 of the Ministry of Defence of the Government of
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India. The Chief of Personnel (COP) has been delegated the powers of withdrawal of
officers and cadets under training. Hence, no fault can be found with the action of
withdrawal on the ground that the approval of the Government was not taken.
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18. A perusal of the impugned judgment of the Tribunal shows that the entire
material has been carefully examined by the Tribunal. The Tribunal consisted of an
administrative member who is an expert in the field as he was a Lieutenant General.
The entire conduct of the appellant during training at INA has been considered in the
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context of the qualities which an officer of the Navy must possess and the discipline
required to be maintained in the Navy. While taking action of withdrawal, the
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competent authority has ensured that the service of the appellant with Navy is not
affected in any manner and even the Degree of University of Goa has been conferred
on the appellant.
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19. We find that the appeal is devoid of merit and therefore, it must fail.
Accordingly, appeal is dismissed with no order as to costs.
———
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(BEFORE M.R. SHAH AND B.V. NAGARATHNA, JJ.)
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Union of India and Others … Appellants;
Versus
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Anil Prasad … Respondent.
Decided on May 20, 2022
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Service Law — Reemployment — Central Civil Services (Fixation of Pay of Re-employed
Pensioners) Order, 1986 — Para 8 — Scope of — Held, does not guarantee parity of pay
with last drawn pay on reemployment
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M.R. SHAH, J.:— Feeling aggrieved and dissatisfied with the impugned judgment
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and order dated 05.10.2021 passed by the High Court of Delhi at New Delhi in Writ
Petition (C) No. 2135 of 2020 by which the High Court has allowed the said writ
petition preferred by the respondent herein and has held that the respondent - original
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writ petitioner being retired Army Force Personnel upon re-appointment in the
government service, would be entitled to his basic pay being fixed at par with his last
drawn pay, the Union of India and others have preferred the present appeal.
2. The respondent - original writ petitioner was a Major in the Indian Army and was
discharged from service on 15.07.2007. He was appointed as an Assistant O
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Commandant (Medical Officer) in the Central Reserve Police Force, in the pay scale of
Rs. 15600 - 39100 with grade pay of Rs. 5400. The respondent - original petitioner
claimed that as on the date of his discharge from the Indian Army, he was drawing
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pay of Rs. 28340 with grade pay of Rs. 6600, the same was entitled to be protected in
terms of Para 8 of the Central Civil Services (fixation of Pay of Re-employed
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Pensioners) Order, 1986 (hereinafter referred to as ‘CCS Order’). The original writ
petitioner made a representation which came to be rejected by an order dated
24.04.2019. Thereafter the original writ petitioner preferred the writ petition before
the High Court claiming that he would be entitled to his basic pay being fixed at par
with his last drawn pay. Before the High Court heavy reliance was placed on the
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decision of the Division Bench of the High Court in the case of Government of India v.
Captain (Retd.) Kapil Chaudhary in Writ Petition (C) No. 2331 of 2012. By the
impugned judgment and order, the High Court has allowed the said writ petition and
has directed the appellants to rework the pay fixation of the original writ petitioner by
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holding that upon reappointment in government service the original writ petitioner
being a retired Armed Force Personnel would be entitled to his basic pay being fixed at
par with his last drawn pay.
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3. Feeling aggrieved and dissatisfied with the impugned judgment and order
passed by the High Court in holding that on reappointment in the government service
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the original writ petitioner would be entitled to his basic pay being fixed at par with
his last drawn pay, the Union of India and others have preferred this appeal.
4. Ms. Aishwarya Bhati, learned ASG, appearing on behalf of Union of India -
2-
appellant herein has vehemently submitted that the impugned judgment and order
passed by the High Court is on a misreading of Para 8 of CCS Orders.
5. It is submitted that as per Para 8 of the CCS Order on reappointment, an
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Emergency Commissioned Officer and Short Service Commissioned Officer who join
the government service will be granted advance increments equal to the completed
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years of service rendered by him in Armed Forces on the basic pay scale which will be
equal to or higher than the pay scale of the re-employed organization i.e. the civil
post/the government post and not on the last drawn pay by the personnel in the
Armed Forces.
6. It is submitted that Para 8 of the CCS Order does not speak about retaining of
the last drawn basic pay or fixation at the rate of last drawn pay.
7. It is submitted that if the claim made by the respondent is allowed and it is held
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that on re-employment his pay fixation should be the last drawn pay in that case it
violates the statutory provision of Para 8 of the CCS Order.
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8. Making above submission, it is prayed to allow the present appeal.
9. Present appeal is vehemently opposed by Shri Vinay Kumar Garg, learned Senior
Advocate appearing on behalf of the respondent. It is vehemently submitted by Shri
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Garg, learned Senior Advocate for the respondent that the impugned judgment and
order passed by the High Court is absolutely in consonance with Para 8 of the CCS
Order.
10. It is submitted that the respondent was working as a Captain in the Army
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Medical Corps of the Indian Army. In the year 2007, CRPF issued advertisement
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inviting applications for the post of Assistant Commandant (Medical Officer) to which
the respondent applied. In the meantime, vide order dated 15.07.2007, the
respondent was released from the Indian Army. It is submitted that at the time of his
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discharge from the Indian Army in the rank of Major, his last pay was in the pay scale
of Rs. 15600 - 39100 and was drawing Rs. 28340 as basic pay and grade pay at Rs.
6600. It is submitted that subsequently he was appointed as Assistant Commandant
(Medical Officer) in the year 2009 in the pay scale of Rs. 15600-39100 with grade pay
at Rs. 5400. It is contended that on re-employment his pay scale was required to be O
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fixed at par with the pay scale he was drawing while in the Indian Army Service and
as per the last drawn pay. It is submitted that as per Para 8 of CCS Order, though the
appellants granted six increments i.e. for the number of years the respondent served
in the Indian Army, however, the same was granted on the pay wrongly fixed by the
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appellants which ought to have been fixed at Rs. 28340 i.e. the pay last drawn by the
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respondent in the rank of Major in the Army.

11. It is submitted that his grade pay was also fixed at Rs. 5400 instead of Rs.
6600, which was lower than what the respondent was receiving at the time when he
was in the Indian Army. It is urged submitted that on a true interpretation of Para 8 of
CCS Order, the High Court rightly observed and held that the respondent shall be
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entitled to the pay scale as per last drawn salary while working in the Indian Army.
Hence, no error has been committed by the High Court in holding so is the
submission.
12. Making the above submissions, it is prayed to dismiss the present appeal.
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13. We have heard learned counsel for the respective parties at length.
14. The short question which is posed for consideration before this Court is whether
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on re-employment in the government service, an employee who was serving in the

Indian Army/in the Armed Forces shall be entitled to his pay scales at par with his last
drawn pay?
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15. While answering the aforesaid question Para 8 of CCS Order which is relevant
for our purpose is required to be referred to which is as follows:
“8. Emergency Commissioned Officers and Short Service Commissioned Officers:
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Emergency Commissioned Officers and Short Service Commissioned Officers who

joined pre-officers who joined pre-commissioned training or were commissioned
after 10.01.1968 may, on their appointment in Government service to unreserved
2
vacancies, may be granted advance increments equal to the completed years of

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service rendered by them in Armed Forces on a basic pay (inclusive of deferred pay
but excluding other emoluments) equal to or higher than the minimum of the scale
attached to the civil post in which they are employed. The pay so arrived at should
not, however, exceed the basic pay (including the deferred pay but excluding other
emoluments) last drawn by them in the Armed Forces.”
16. On a plain reading of the above provision an Emergency Commissioned Officer
and a Short Service Commissioned Officer working in the Armed Forces on his
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employment to a civil post shall be entitled to advance increments equal to the
completed years of service rendered in the Armed Forces on a basic pay equal to or
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higher than the minimum of the scale attached to the civil post in which they are
employed. However, the pay arrived at should not exceed the basic pay last drawn by
them in the Armed Forces. Therefore, on a true interpretation of Para 8 on re-
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employment in the government service, an employee working with the Armed Forces,
on re-employment shall be entitled to advance increments equal to the completed
years of service rendered by him in the Armed Forces on a basic pay equal to or higher
than the minimum of the scale attached to the civil post in which he is employed.
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17. Para 8 of the CCS Order makes a reference to two rates of pay in case of
emergency commissioned officers and short-service commissioned officers being
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appointed in the government service: First, they may be granted advance increment
equal to the completed years of service rendered by them in the armed forces on a
basic pay equal to or higher than the minimum of the scale attached to the civil posts
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in which they are employed. The pay is to be fixed with reference to the scale attached
to the civil posts in which they are employed; Second, while computing the pay in the
aforesaid manner it should not exceed the basic pay last drawn by them in the armed
forces. In another words, while computing the pay of the said officers who joined the
civil posts their pay cannot exceed last drawn pay by them in the armed forces. In
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case it exceeds then it is capped to the last drawn pay in the armed forces. Therefore,
a claim for the last drawn pay in the armed forces is not a matter of right.
18. Applying the above in the present case, it is noted that the respondent was
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fixed at the entry level of PB-3 (Rs. 15,600-Rs. 39,100) in the armed forces and six
advance increments equal to the number of years the respondent served in the Indian
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Army was added to the basic pay i.e. Rs. 15,600/- = Rs. 19,600/-. The Grade Pay
fixed in the civil post is Rs. 5,400/- and hence a total of Rs. 25,080/- was the
computed pay in the civil post. The said pay of Rs. 25,080/- does not exceed the pay
last drawn by the respondent in the armed forces. Hence, the pay so computed is just
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and proper.
19. Para 8 of the CCS Order does not indicate that the pay last drawn by the
respondent in the armed forces should be the pay to be computed when he joined the
civil post. There is no entitlement of pay protection under para 8 of the CCS. The
manner of computation of pay as envisaged under para 8 also clearly stipulates that
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the pay so arrived at should not exceed the basic pay (including the deferred pay but
excluding other emoluments) last drawn by the respondent in the armed force. That
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does not mean that the respondent is entitled to a pay equal to what was last drawn
by him in the armed force.
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20. Also, para 8 of the CCS Order makes a reference to the civil post in which the
personnel of armed force is to be employed with reference to the minimum scale of
pay attached to the civil post and while computing the pay scale the last drawn pay in
the armed force has no relevance in the sense that there is no pay protection that can
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be sought by the ex-personnel of armed force. The reference to the last drawn pay in
the armed forces is only to ensure that the pay computed in the civil post in the
manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the
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deferred pay but excluding other emoluments) last drawn by the personnel in the
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armed forces. For example, if the minimum of the scale attached to the civil post is
higher than the last drawn pay of the personnel in the armed force and while
computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds
then possibly the last drawn pay in the armed forces could be paid. The said Rule
proscribes fixation of a pay exceeding the basic pay (including the deferred pay but
excluding other emoluments) last drawn by the personnel in the armed forces in
respect of the civil post to which an ex-armed force personnel is appointed. Thus, in a
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case where computation of pay exceeds last drawn pay in the armed forces then, in
such a situation possibly the last drawn pay of such a personnel can be fixed.
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21. In the present case while serving in the Armed Forces respondent was in the
pay scale of Rs. 15600 - 39100. The post on which he was re-employed in the
government service also carries the pay scale of Rs. 15600 - 39100 and he has been
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allowed advance increments of six years as he completed six years of service in the
Armed Forces. However, his grade pay has been fixed at Rs. 5400 being the grade pay
which is available for the civil post.
22. Therefore, the pay fixation of the respondent in the government service was
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absolutely in consonance with para 8 of the CCS Order 1986. Para 8 does not provide
that on re-employment in Government Services a retired Armed Force personnel would
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be entitled to his basic pay being fixed at par with his last drawn pay. Holding so will
violate para 8 of the CCS Order. Under the circumstances the High Court has
committed a grave error in observing and holding that the retired Armed Forces
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personnel on re-appointment in the government service would be entitled to the last
drawn pay as Armed Forces personnel. Therefore, the impugned judgment and order
passed by the High Court is unsustainable being contrary to para 8 of the CCS Order,
1986.
23. In view of the above and for the reason stated above, present appeal succeeds.
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The impugned judgment and order passed by the High Court is hereby quashed and
set aside. Consequently, the writ petition preferred by the respondent before the High
Court is dismissed. However, in the facts and circumstances of the case, there shall be
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no order as to costs.
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(BEFORE I NDIRA BANERJEE AND A.S. BOPANNA, JJ.)
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Union of India and Others … Appellant(s);
Versus
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Brigadier Javed Iqbal … Respondent(s).
Decided on May 17, 2022
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A.S. BOPANNA, J.:— The appellants/Union of India & Ors. are before this Court in
this appeal, assailing the order dated 07.01.2022 passed by the Armed Forces
Tribunal, Regional Bench, Lucknow (for short, ‘AFT’) in OA No. 619 of 2021. Through
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the said order the AFT has allowed the OA and held that the respondent is entitled to
promotion to the post of Additional Major General (Litigation) in the Judge Advocate
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General's Branch with all consequential benefits from the date of declassification of No.
1 Selection Board's result on 05.05.2021. The order was directed to be implemented
forthwith.
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2. The brief facts are; the respondent is an officer of the 1989 Batch and is
presently serving as Brigadier in the Judge Advocate General (for short, ‘JAG’) branch
of the Military. He has put in 33 years of service. The respondent is presently
designated as the Deputy Judge Advocate General. The promotion to which the
respondent claims entitled is to the rank of Major General which corresponds to the
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post of Additional Judge Advocate General. The rank of Major General in the JAG
Branch had fallen vacant on 01.12.2020. The No. 1 Selection Board comprising of (i)
Chief of the Army Staff, (ii) Vice Chief of the Army Staff (iii) 06 Army Commanders
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and (iv) the Military Secretary, on consideration in its meeting on 26.10.2020

recommended the respondent for promotion. It is the case of the respondent that after
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clearance by the Selection Board the Chief of Defence Staff secured all information
relating to the respondent, including that he had scored 94.482 marks which was the
highest. With regard to the query relating to the medical status of the respondent, it
was intimated to the Chief of Defence Staff that the re-categorisation Medical Board on
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12.02.2021 had indicated that medical status is the same as was in the previous pre-
categorisation Medical Board proceedings held on 14.08.2018. The respondent at that
stage had been classified as SHAPE-2 COPE-2. The Chief of the Defence Staff was also
informed that the respondent despite such classification continues to perform the
duties of Deputy JAG of the entire command which involves heavy workload. The Chief
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of Defence Staff on considering all aspects, including the medical condition, cleared
the respondent for promotion as the medical condition indicated would not be a
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hurdle. Pursuant thereto the competent authority also granted its approval for
promotion of the respondent. The respondent contends that the Central Government
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had also cleared but at that stage, the Military Secretary who has no such power had
introduced the rider interfering with the promotion of the respondent. The respondent
contends that the No. 1 Selection Board had considered the medical condition in detail
and the Chief of Defence Staff as also the competent authority had accepted the
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recommendation of the No. 1 Selection Board. However, despite all this since the
benefit of promotion was not accorded, the respondent filed an application before the
AFT seeking for the relief.
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3. The case of the appellant is that in the Indian Army, every staff selection,
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whether it is an appointment or promotion is done by following a prescribed procedure

under the Rules. The appointment/promotion is always subject to meeting the medical
criteria. An individual in the Indian Army is selected to the higher post subject to
medical fitness irrespective of the Branch in which she/he is required to serve. Even if
selected, the promotion would be available only if the medical criteria is satisfied. In
the instant case, the respondent was placed in low medical category for ‘Hypertension’
P2 (P) with COPE Coding C201P1El which is provided for in the Adjutant General's
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Branch policy letter dated 16.02.2018 as non-promotable category. However, the
Board considered him and recommended for promotion keeping in view that he was
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placed in low medical category on 14.08.2018 during Annual Medical Examination and
the next Medical Board was due in August 2020, which could not be held due to Covid-
19. It is contended that the empanelment pursuant to recommendation of the
Selection Board cannot be claimed as unconditional, since it is always subject to
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meeting medical criteria.
4. With regard to the medical condition of the respondent, it is contended that since
he was suffering with ‘Hypertension’ the Annual Medical Board in 2018 advised him to
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take two drugs daily to control his blood pressure within the permissible parameters.
Although re-categorisation Medical Board held on 12.02.2021 found the respondent's
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blood pressure within the permissible parameters at 130/90, his medical category
remained the same i.e., P2(P) with COPE coding C201P1El as he was still on
medication. He had been advised to continue on one drug i.e., ‘Telmisartan 40 mg’, to
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be taken twice daily. Regarding the Re-medical board, it is contended that it was held
based on the orders of the Chief of Army Staff on the request made by the respondent.
In Re-medical Board, the respondent's blood pressure was found within the
permissible parameters and his medical category was approved to be upgraded to
SHAPE-I as he had informed the medical specialist that he was not on any medication. O
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The appellant contends that the respondent though was on medication had falsely
stated that he is not on medication. In fact, he had stated in his appeal dated
07.05.2021 that he was only on, one drug medication. In that view, it is contended
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that since the applicant's medical category was still P2(P) with COPE coding C201P1El
he is not fit for promotion despite empanelment. It is contended that the guidelines
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are applicable to all, irrespective of the Corps and Branch, more particularly when the
duties are to be discharged in high altitude areas between 9000 feet to 14000 feet,
which the respondent was required to perform at least on certain occasions if he was
promoted to the post of Major General. It was contended that the respondent was not
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entitled to be promoted when his medical condition is admittedly in SHAPE-2.

5. The AFT having adverted to the rival contentions and also on making detailed
reference to the documents which were placed before it has arrived at the conclusion
that the No. 1 Selection Board had taken all aspects into consideration and had
thereafter empaneled the respondent. Further, AFT had also taken into consideration
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that the medical category of the respondent was upgraded to SHAPE-1 by a Re-
Medical Board held on 21.09.2021 after his blood pressure was found within the
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permissible parameters. Hence, taking into consideration the facts evolving in this
case, the AFT has allowed the application and directed grant of promotion.
6. We have heard Ms. Madhavi Divan, learned Additional Solicitor General appearing
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on behalf of the appellants, Mr. Devadatt Kamat, learned senior counsel appearing on
behalf of the respondent and perused the appeal papers.
7. The factual aspects insofar as the No. 1 Selection Board recommending on
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26.10.2020 the case of respondent for promotion on obtaining 94.482 marks and at
that stage, the respondent was in SHAPE-2 medical category is not in dispute. The
position is also that the Chief of Defence Staff on securing details on 12.02.2021 had
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declassified the results on 05.05.2021.

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8. The learned ASG placed strong reliance on the circular dated 14.12.2012 relating
to, system of Medical classification of Army Officers and consequent eligibility for
promotion to select Ranks, which read as hereunder:—
“9. Promotion to Select Ranks of Colonel and Above. Subject to meeting all other
laid down conditions, officers in following permanent medical categories are eligible
for promotion to select ranks of Colonel and above:—
Ser No Statement of Medical Implications
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Classification
(a) Overall medical Promotable medical
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classification of SHAPE-1 categories, irrespective of
and SHAPE-1B, irrespective CODE Coding:—
of number of medical (a) SHAPE-1
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disabilities, ie, x, y, z or (b) SHAPE-1B
CODE Coding.
(b) Overall medical Promotable medical
classification of SHAPE-2 categories, irrespective of
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(irrespective of number of COPE Coding:—
medical disabilities, i.e, x, y, (a) S1H2A1P1E1
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z), with disability profile H2 (b) S1H1A1P2E1(dental
or P2 (for dental condition only)
only) or E2, which will be (c) S1H1A1P1E2
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considered at par with
SHAPE-1 for promotion
(c)
purposes, irrespective of the
overall COPE Coding.
Overall medical Promotable medical
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classification of SHAPE-2 categories, only if overall
(irrespective of number of COPE Coding is COPE-0 OR
medical disabilities, i.e, x, y, COPE-1:—
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z), with disability profile A2 (a) S1H1A2P1E1

or P2 (other than for dental (b) S1H1A1P2E1 (other
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condition only) or H2E2, if than dental)

overall COPE coding is COPE (c) S1H2A1P1E2
-0 or COPE-1.
12. Officers in permanent medical classifications, other than those mentioned in
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Para 9 above, are NOT eligible for promotion to select ranks, less those eligible for
consideration by Special Review Medical Board or granted Battle Casualty (War
Wounded) status as covered subsequently.”
9. In that backdrop it is also necessary to take note of Defence Service Regulations
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for the Army, relied on by the learned senior counsel for respondent, which in the
preface clarifies that departmental orders and instructions are based on, and take their
authority from the said regulations. Regulation 67 of the Regulation for the Army
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relating to substantive promotion by selection, more particularly 67(b) thereof

provides as hereunder:—
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“67. Substantive Promotion by Selection - (A) xxxxxxx

(a) xxxxxxxxxxxxxx
(b) Substantive promotion by selection to the rank of Lt. Col and above will be
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subject to the medical fitness of the officer concerned for active service and
the permanent medical classification of an officer not being other than S1 H1
A1 P1 E1, S1 H2 A1 P1 E1 or S1 H1 A1 P1 E2. An officer whose permanent
2
classification is S1 H1 A2 P1 E1, S1 H1 A1 P2 E1 or S1 H2 A1 P1 E2 may

also be considered for promotion provided the following conditions are
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fulfilled:—
(i) Such promotion would be in the public interest.
(ii) In the opinion of a Medical Board:—
(aa) the officer is capable of performing the normal active
service duties of the rank to which he is, being promoted, in his
present medical category.
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(ab) any defect, disability, or disease, from which the officer is
suffering, is not likely to be aggravated by service conditions, provided
he is employed on duties compatible with this medical category and
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within the restrictions placed by the Board.”
(emphasis supplied)
10. The case of the respondent was in the medical classification S1H1A1P1E2
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referred to therein. It was subject to review and the regular Review Medical Board had
not happened in the routine period of two years due to Covid-19 restrictions. The
Regulation 67 of Regulations for the Army provides that an officer who is in the
classification S1H1A1P1E2 also can be considered for promotion provided the
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conditions the fulfilled. Hence, Regulation 67(b)(ii)(aa) noted above provides that
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there is no absolute bar from being considered for promotion. Consideration could be
made subject to the other criteria being met and the Selection Board will have to keep
in perspective these aspects. Though the assessment made by the Selection Board is
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only a recommendation, the approval to be granted by the competent authority would
be relevant. However, the nature of the post for which the selection is made and the
consideration made by the Selection Board would also remain relevant. In that
circumstance, the nature of consideration made by the No. 1 Selection Board forms a
relevant basis more particularly in a circumstance where in the instant case after O
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recommendation by the No. 1 Selection Board, the Chief of Defence Staff had also
taken note of the medical status of the respondent and taking into consideration the
nature of duties to be performed as Deputy JAG had cleared the respondent for
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promotion.
11. The AFT having gone through the No. 1 Selection Board Proceedings, Records
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and file noting sheets of the Army, DMA, MoD, noted the observations contained
therein which enabled the AFT in arriving at its ultimate conclusion. Since the
sequence of nature of consideration made by the authorities concerned as noted by
AFT becomes relevant, we find it expedient to reproduce and notice the same which
read as hereunder:—
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“(i) No. 1 Selection Board considered the applicant for promotion to the post of
Additional Major General (Litigation) in JAG Branch. His complete details, including
medical status, and restrictions arising from this medical status were available to
the Board.
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(ii) The Military Secretary's policy letter on medical category restrictions dated
14.12.2012 was available to the Board.
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(iii) No. 1 Selection Board recommended applicant for the rank of Additional
Major General in JAG Branch after him being found fit in all respects for the rank.
When Board recommended the applicant for promotion it was aware that he was
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placed in low medical category P2(P) for Hypertension with COPE Coding C201 Pl El.
(iv) No. 1 Selection Board recommended the applicant for empanelment to the
higher rank of Major General without any rider.
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(v) After applicant being recommended by the No. 1 Selection Board the file was
processed in Department of Military Affairs and perused at the level of the then
Chief of the Defence Staff(CDS)/Secretary DMA. The then CDS, had, after going
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through the file raised two queries. The first query on 19.11.2020 was the “case
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needs to be bench marked with past boards”. It was answered in the negative
stating that there was no such bench mark. While answering the query it was also
stated that when Brig Umesh Gupta, Brig Devendra Singh and Brig Rakesh were
considered for promotion in their turn to Major General in JAG Branch the “cut off”
marks were 91 and now the same was 93.5 whereas applicant has scored 94.482
marks. This shows that applicant is on a better footing than those officers who had
been promoted earlier to the post in the past.
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(vi) After the first query being replied the then CDS had raised another query on
12.02.2021 regarding medical status of the applicant, and in response to that query
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the CDS was informed on file that in the re-categorization medical board report
dated 12.02.2021 his medical category was the same as that which existed on
14.08.2018 during his Annual Medical Examination, i.e. P2 (P) for Hypertension
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with COPE Coding C201 P1 E1. It was informed by Army HQ that “the officer has
become low medical category (LMC) for Primary Hypertension on 15.04.2018 and
the officer was performing the duties of DJAG at HQ Eastern Command, which
involved heavy work load of all legal and HQ cases of the entire Command. In spite
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of LMC the officer continues to perform the duties of DJAG of the Command”. The
then CDS, after considering all aspects and finding applicant's medical category P2
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(P) with COPE Coding C201 PI EI would not be a hurdle in his promotion, had
cleared the file for approval by the Competent Authority of MOD/Govt of India.
There was nothing on file to infer from any corner that applicant's approval for
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promotion to the rank of Major General was subject to meeting medical criteria.
(vii) After No. 1 Selection Board's decision recommending applicant for
promotion to the rank of Major General being cleared by the then CDS/Secy DMA
without any rider, the same was also approved by the Competent Authority of Govt
of India.”
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12. The learned ASG would however contend that the medical opinion during April
2018 records that the respondent is diagnosed with primary hypertension and the
classification was indicated as SHAPE-2, which continued ever since. Insofar as the
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employability of the officer with COPE coding C201P1E1 it was noted that the officer is
unfit for high altitude i.e., 9000 feet and above. It is pointed out that in the re-
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classification by the Medical Board on 12.02.2021 it was again stated that the serving
officer was detected to have hypertension during AME and ‘Telmisartan 40 mg’ tablet
had been advised and the disability profile is P2 (P). The learned ASG further
contended that as on the date of declassification of result on 05.05.2021, it was
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indicated that latest AME/RME/RMB etc. is to be forwarded within 15 days, which

discloses that the medical fitness was an essential factor to be taken into account. It is
in that regard contended that the respondent also being aware of this requirement had
filed an appeal dated 07.05.2021 wherein the respondent himself has admitted to
these aspects of the matter and had sought consideration since the respondent
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assumed that he would not be required to serve in high altitude area for which he was
otherwise unsuitable. Further, the representation dated 17.05.2021 was made by the
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respondent seeking grant of waiver since he was aware about his disability.
Subsequent thereto, on 31.08.2021 the respondent requested for reexamination of his
medical category so that it could be upgraded if found fit. Such medical re-
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examination was sanctioned and through the medical opinion dated 20.09.2021 it was
opined that the respondent is ‘asymptomatic’ and he is not on any medication for
‘Hypertension’. The opinion recorded in the column, ‘diagnosis’ was that the officer is
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upgraded to SHAPE-1. Though the medical opinion is to that effect, the learned ASG
sought to dispute the same by referring to the observations contained in the
communication dated 22.09.2021 stating that the opinion dated 20.09.2021 is not
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reliable since it was based on the statement of the respondent himself which was
made to the doctor that he is not on any medication though the earlier records
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indicate that he was on medication.

13. Having taken note of the contentions, the facts involved herein appear to be
peculiar to the case on hand. Firstly, as noted from regulation 67(b), an officer in
SHAPE-2 also can be considered for promotion provided the Medical Board finds the
officer to be capable of performing the normal active service duties. In the instant
case, the respondent is the JAG officer and even if promoted would generally perform
his duties in the headquarters. It cannot be disputed that as contended by the learned
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ASG the services may require him to occasionally go to high altitude areas. In that
regard, a consideration of the Medical Board opinion during April 2018 records that the
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respondent is unfit for high altitude employability i.e., 9000 feet and above. As on the
date of consideration by No. 1 Selection Board, undisputedly the respondent was in
SHAPE-2 medical condition. Apart from the fact that we have taken note of the
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observations of the AFT from the records of the selection process we have referred to
the circular dated 06.05.1987 relating to selection process. It is noted that as per the
composition of the Selection Board for the various ranks, it is indicated that No. 1
Selection Board would consider the cases for promotion from the rank of Brigadier to
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Major General which is relevant in the instant case and No. 1 Selection Board consists
of the cream of officers in the Rank. In the guidelines for conduct of Selection Board,
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the aspects to be taken into consideration is delineated and provides for the eligibility
of the officer to be considered. Among the aspects indicated therein, the medical
classification of the officer is one of the aspects. Further, while providing for objectivity
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in the selection process, apart from the overall performance of the officer, the
employability of the officer in the next higher rank is to be kept in view by the
Selection Board. The regulations while providing for the consideration empowers the
Chief of Army Staff to ultimately take a decision. The role of the Military Secretary is
only to bring to the notice of the Chief of the Army Staff if the officer concerned has O
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been graded against the guidelines in the board grading.
14. In the background of the above, even if the primary aspect of the respondent
officer being classified as SHAPE-2 as on the date of consideration by the No. 1
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Selection Board and as on the date of declassification on 05.05.2021 to which detailed

reference as made by the learned ASG is taken note of, as rightly observed by the AFT
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the medical records were available before the No. 1 Selection Board and a conscious
decision was taken to recommend for promotion. As noted, the guidelines provide for
the Selection Board to take note of the medical classification of the officer. That apart,
for an objective selection, the guideline requires the Selection Board to keep in view
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the employability of the officer in the next higher rank. In a matter of the present
nature where the selection was being made to a high rank from that of Brigadier to
Major General and that too in JAG branch, the employability of such officer and the
nature of duties was also to be kept in view. In the instant case, the only disability of
the officer concerned while in SHAPE-2 also is with regard to the risk in high altitude
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service and the No. 1 Selection Board has kept in view the normal nature of work to be
performed as JAG (Litigation). In that view, the No. 1 Selection Board should be
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credited of having applied its mind before recommending the case of the respondent.
Further, after clearance by the No. 1 Selection Board, the Chief of Defence Staff had on
12.02.2021 taken note of the medical status of the respondent and had approved the
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recommendation. When officers of such high rank have applied their mind in the
instant case and approved the case of respondent for promotion the repeated objection
by the Military Secretary is not justified.
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15. The other aspect of the matter is that the respondent having filed an appeal
and having made a request for waiver initially and thereafter for medical re-
examination cannot be held against the respondent. Though the Selection Board had
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already recommended the candidature of the respondent which had been approved by
the Chief of Army Staff, the respondent had sought for re-examination which is to his
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credit and was rightly allowed. The Medical Board in the opinion dated 20.09.2021
(ANNEXURE A/10) has recorded as hereunder:—
“This 57 year old serving officer was detected to have hypertension during AME
in Apr 2018. He was evaluated and diagnosed to have Primary Hypertension. He
was advised medication BP control was adequate. Subsequently the officer
has discontinued medicine for last one year as recorded by AMS and BP has
remained within normal limits (Photocopy of BP recordings by AMA
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attached). He is being observed in LMC P2 (Permanent). He has reported for
remedial exam/Board as per directions of the COAS vide integrated HQ, MoD letter
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no. 76086/Gen/DGMS-5A dated 13 Sep. 2021. He is presently asymptomatic. He
is not on any medication for Hypertension.
3. DIAGNOSIS : Primary Hypertension
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Opinion : This 57 year old serving officer is a case of primary hypertension. He
has adequate blood pressure control with life style modification for one
year. BP control remains adequate. He has no target organ damage. In view
of the above, the officer is a candidate for upgradation to SHAPE-I (as per
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DGAFMS memorandum No. 182 of 2012 Para 17 d)”
(emphasis supplied)
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16. As noted, the learned ASG disputed the same by referring to the treatment and
follow up booklet which is produced along with the additional documents by the
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respondent himself to indicate that the observation recorded in the chart as, - ‘not on
medication’ on various dates is based only on the oral statement of respondent made
to the doctor which cannot be given credence. On this aspect, it is necessary to note
that the medical records are of the ‘Command Hospital’ itself and not of a private
practitioner. The first date on which it is recorded as, - ‘not on medication’ is on O
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25.06.2020 and the same is continued thereafter. The observations extracted above
would indicate that the doctor has categorically recorded that the blood pressure has
been controlled with lifestyle modification and the BP control remains adequate. When
the opinion has been tendered by the competent medical experts, merely because the
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Military Secretary is not satisfied with the same will not entail either the AFT or this
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court to sit as a medical expert and reassess the opinion given by the Medical Board.
17. Be that as it may, when the No. 1 Selection Board had taken note of the
medical records as it existed earlier, in the background of nature of employability of
the respondent, which was approved by the Chief of Army Staff and further when
there is medical record to indicate that the medical condition of the respondent has
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improved for the better and the AFT while arriving at its conclusion has kept in view all
aspects of the matter, such consideration would not call for interference.
18. The learned ASG further referred to the circular dated 07.09.2016, more
particularly to para 3 thereof which read as hereunder:—
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“3. Post declassification of Selection Board results the empanelled officers are
promoted in their turn based on availability of vacancies, performance & medical
fitness. Given the time lag between the declassification of Selection Board results
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and physical promotion of an officer, there is a need to ensure that only ‘those
officers who are in acceptable medical category are promoted to the next higher
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rank. The actions to be taken by the officers and their Reporting chain on
empanelment and during physical assumption of next higher rank are enumerated
in succeeding paragraphs.”
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19. In that regard, it is contended that given the time lag between declassification
of the Selection Board results and the physical promotion of an officer, it should be
ensured that only those officers who are in acceptable medical category are promoted
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to the next higher rank. The said requirement also cannot act as a bar in the instant
case, since as noted above, firstly there is an improvement in the health condition and
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the respondent is opined to be in SHAPE-1 by the Medical Board. Even otherwise as

noted, the medical condition was kept in view by the No. 1 Selection Board and all
competent authorities, in the backdrop of employability and there is no other
additional medical disability acquired by the respondent during the period of time lag,
if any.
20. For all the aforestated reasons, we see no reason to interfere with the order
passed by the AFT impugned herein, which shall therefore be implemented forthwith.
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The appeal being devoid of merit stands dismissed with no order as to costs.
21. All pending applications, if any, stand disposed of.
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(BEFORE ABHAY S. OKA AND M.M. SUNDRESH, JJ.)
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Versus
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Ex. Naik Ram Singh … Respondent.
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ABHAY S. OKA, J.:— The appellants, Union of India and three others, have taken an
exception to the judgment and order dated 23rd December 2010 of the Armed Forces
Tribunal, Chandigarh Bench at Chandimandir (for short, ‘the Tribunal’).
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2. By the impugned judgment and order, the appellants were directed to release
the disability pension quantified at 80% disability for life to the respondent from the
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date of his discharge from military service. The appellants were directed to pay arrears
of disability pension restricted to a period of three years immediately preceding filing
of the application by the respondent before the Tribunal. Interest @10% per annum
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was granted on the arrears.
3. The respondent was enrolled in the Army on 4th June 1965. After rendering
colour service for 10 years and 88 days, he was transferred to reserved establishment
on 30th August 1975. During his reserve period, he voluntarily got himself enrolled in O
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Defence Security Corps on 7th January 1976. On 6th November 1999, the respondent
was granted annual leave. He proceeded to Kishanpura on the same day. While on
leave, on 8th November 1999, he suffered an accident. While crossing the road, he was
hit by a speedy scooter. As a result of the accident, he sustained head injury and
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became unconscious. The Medical Board assessed the percentage of the disability of
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the respondent at 80%. The Medical Board placed the respondent in low medical
category (EEE). On that ground, he was invalidated out of service from 28th September
2000.
4. The respondent made an application to the Armed Forces Tribunal praying for
grant of disability pension. In the impugned judgment, the Tribunal relied upon its
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decision dated 15th December 2010 in T.A. No. 237 of 2010 (Ex. NK. Raj Pal v. Union
of India). The Tribunal held that if an individual sustains an injury during the period of
any kind of authorized leave and his act was not inconsistent with Military service, his
disability is deemed to be attributable to Military service.
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5. On 6th December 2013, this Court issued notice to the respondent. After service
of notice, the respondent did not appear. While granting leave on 10th October 2014, a
fresh notice was issued to the respondent which has been duly served. The respondent
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did not enter appearance even thereafter.

6. Shri K.M. Nataraj, learned Additional Solicitor General urged that there has to be
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a reasonable connection between the injuries sustained by a member of Armed Forces

resulting in disability and the Military service. He invited our attention to Regulation
173 of the Pension Regulations for the Army, 1961 (for short, ‘the Pension
Regulations’). He also invited our attention to Rule 12 of the Entitlement Rules for
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Casualty Pensionary Awards, 1982. He submitted that the accident occurred couple of
days after the respondent travelled from the place of his duty to leave station. He
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would submit that the respondent was disentitled to disability pension. He fairly
pointed out that the decision of the Tribunal in T.A. No. 237 of 2010 relied upon in the
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impugned judgment, was challenged by the Union of India. However, the special leave
petition was dismissed summarily. He submitted that what holds the field is the
decision of this Court in the case of Union of India v. Vijay Kumar No. 3989606 P, Ex-
Naik1 .
7. On facts, it is an admitted position that the respondent was granted annual leave
on 6th November 1999. He proceeded on the same day to leave station. On 8th
November 1999, when he was crossing the road, he suffered an accident. As noted
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earlier, his disability was assessed at 80%. Regulation 173 of the Pension Regulations
reads thus.:
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“173. Primary conditions for the grant of disability pension.-Unless
otherwise specifically provided a disability pension consisting of service element
and disability element may be granted to an individual who is invalidated out of
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service on account of disability which is attributable to or aggravated by military
service in non-battle casualty and is assessed at 20% or over.”
(underline supplied)
8. The Entitlement Rules, 1982 and in particular Rule 12, defines ‘Duty’. Clause (d)
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of Note 2 which is a part of Rule 12 clarifies that personnel while travelling between
the place of their duty to leave station and vice-versa, shall be treated on duty. It is
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not the case made out by the respondent that the accident occurred when he was
travelling to leave station. It happened after he reached the leave station. Unless the
disability is attributable to or aggravated by military service and is more than 20%,
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the entitlement to disability pension does not arise.
9. This Court in the case of Vijay Kumar1 , after considering Regulation 173 of the
Pension Regulations and Rule 12 of the Entitlement Rules, 1982, in paragraph 14 held
thus.: O
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“14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial
in nature and ought to be liberally construed. In terms of Rule 12, the disability
sustained during the course of an accident which occurs when the personnel of the
armed forces is not strictly on duty may also be attributable to service on fulfilling
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of certain conditions enumerated therein. But there has to be a reasonable causal

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connection between the injuries resulting in disability and the military service.”
(underline supplied)
10. What is held above, is the binding precedent. In the present case, as noted
earlier, two days after the respondent reached the leave station, he met with an
accident on a public road. There is absolutely no nexus between the Military service
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and injuries sustained by the respondent. There is not even a causal connection. The
Tribunal has completely overlooked this aspect which goes to the root of the matter.
Hence, the respondent was not entitled to the disability pension.
11. Accordingly, Civil Appeal is allowed. Impugned Judgment dated 23rd December
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2010 is hereby set aside. O.A. No. 944 of 2010 filed by the respondent stands
dismissed. No order as to costs.
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———
1 (2015) 10 SCC 460
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(BEFORE I NDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.)
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Union of India and Others … Appellant(s);
Versus
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Ex. Sep. R. Munusamy … Respondent(s).
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INDIRA BANERJEE, J.:— This appeal is against a judgment and order dated 18th
February 2020 passed by the Chennai Regional Bench of the Armed Forces Tribunal
allowing the application being O.A. No. 53 of 2018 filed by the Respondent about 20
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years after he was discharged from the Indian Army, and holding that the Respondent
was entitled to disability pension. The arrears were restricted to a period of three years
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prior to the date of application before the Tribunal.
2. The Respondent was enrolled in the Army on 26th March 1987. By an order dated
5 April 1997, the Respondent was discharged from service on administrative
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grounds, as an undesirable Soldier under Rule 13(3) III(v) of the Army Rules, 1954.
The Respondent had rendered service for nine years seven months and one day
excluding 161 days of non-qualifying service. Annexed to the appeal is a copy of the
Order/Certificate of the Commandant dated 12th October 1996 regarding the proposal
to discharge the Respondent. As per the certificate of the Commandant, service of the
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Respondent was no longer required. The cause of discharge was shown in paragraph
20 as “Undesirable Soldier under Rule 13 III(V) of Army Rules, 1954”.
3. At the time of discharge, the Respondent was in low medical category. A meeting
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of the Release Medical Board held on 30th January 1997 found “Right Partial Seizure
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with Secondary Generalization 345” neither attributable to nor aggravated (NANA) by

military service. The disability was assessed @ 20% for two years.
4. The Respondent did not challenge his discharge under Rule 13(3) III(v) of the
Army Rules, 1954 as an undesirable soldier. The Respondent, however, made an
application claiming disability pension. By order No. G-3/85/318/11-97 dated 19th May
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1998, the Office of the Chief CDA(P), Allahabad rejected the claim of the Respondent
for disability pension. Relevant part of the said order reads as under:—
“3. Accordingly, for clauses (i) & (ii) of Para 1 above, no disability pension is
admissible under the existing rules. The above decision may pl. be communicated
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to the individual under registered post alongwith MA(P)'s findings, and a clause
may also be added therein that he may appeal against the decision not later than
six months from the date of issue of this letter, on such grounds as he may deem fit
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to put forth, if desired by him.

4. A sum of Rs. 10450 on account of invalid gratuity and a sum of Rs. 15711 on
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account of dcrg has been admitted. In case, the individual dies before receiving
dcrg amount it should not be paid to his heirs & the matter referred to g-4 section
of this office.”
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5. On 6th October 1998, the Respondent filed an appeal against the rejection of
disability pension. The Appellate Authority rejected the appeal. By a communication
dated 11th January 2000, the Respondent was informed that his appeal against
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rejection of disability pension had been rejected by the first Appellate Authority.
6. On 25th August 2017 i.e. almost 20 years after his discharge and over seventeen
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and a half years after the dismissal of his appeal against the rejection of disability
pension, the Respondent sent a legal notice claiming disability pension on the ground
of parity with one Dharamvir Singh and one Rajbir Singh.
7. The case of the Respondent appears to be distinguishable since the Respondent
was not discharged on medical grounds, unlike Rajbir Singh or Dharamvir Singh. It
appears that in course of his career, the Respondent had earned red ink entries in his
service records on seven occasions, as per the particulars given hereinbelow:—
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“S. No. Date of Offence Punishment Sec of Army Remarks
awarded Act 1950
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(a) 25 Oct 1990 28 days 39(b) Red Ink entry
Imprisonment
in military
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custody while
serving with
4002 Field
Ambulance
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(b) 25 Apr 1991 14 days 39(b) Red Ink entry
detention in
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military
custody while
serving with
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Command
Hospital
(Western
Command)
Chandimandir
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(c) 05 Sep 1993 28 days 39(b) Red Ink entry
Rigorous
Imprisonment
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in military
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custody while
serving with
166 Military
Hospital, c/o
56 APO
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(d) 30 May 1994 28 days 39(b) Red Ink entry

Rigorous
Imprisonment
in military
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custody while
serving with
166 Military
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Hospital, c/o
56 APO
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(e) 22 Jun 1995 28 days 39(b) Red Ink entry

Rigorous
Imprisonment
in military
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custody while
serving with
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155 Base
Hospital C/o 99
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APO
(f) 12 Sep 1995
28 days 39(b) Red Ink entry
Rigorous
Imprisonment
in military
custody while
serving with
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155 Base
Hospital, c/o
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99 APO
(g) 14 Feb 1996 28 days 39(b) Red Ink entry”
Rigorous
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Imprisonment
in military
custody while
serving with
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155 Base
Hospital c/o 99
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APO
8. The Appellants contend that the Respondent was a habitual offender who kept
breaching military discipline, notwithstanding repeated counseling and advice given by
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his superiors. He proved to be an inefficient soldier. Be that as it may, the fact remains
that, for 20 years, the Respondent did not question his discharge.
9. By a communication dated 27th October 2017, the Appellant No. 3 replied to the
said notice stating:— O
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“You have been discharged under Army Rule 13(3) III (v) being undesirable
soldier and not invalidated out from service as mentioned in your above legal
notice. Hence, disability pension is not admissible as per existing rules in force”
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10. Being aggrieved, the Respondent filed O.A. No. 53 of 2018 before the Tribunal
claiming disability pension and benefits under Regulation 183 of the Army Pension
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Regulation, 1961. The application has been allowed by the judgment and order
impugned.
11. At the cost of repetition, it is reiterated that the Respondent was discharged
under Rule 13(3) III(v) of the Army Rules, 1954 on administrative grounds as an
undesirable soldier and not on the ground of medical disability. Any opinion of the
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Release Medical Board held on 30th January 1997 with regard to the ailment of the
Respondent does not entitle the Respondent to disability pension, as the ailment did
not lead to his discharge. In any case, even as per the opinion of the Release Medical
Board, the disability, if any, of the Respondent was not attributable to military service.
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The Tribunal recorded that the Release Medical Board had in Paragraph 3(d) stated
“Disability constitutional in origin, unrelated to service”.
12. For over 20 years from the date of the discharge, the Respondent did not
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challenge his discharge on the administrative ground of being an undesirable soldier.

His discharge on administrative grounds could not have been challenged after two
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decades.
13. In the considered opinion of this Court, the Tribunal fell in error in passing its
order dated 2nd November 2018 directing the Appellants to convene a
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Resurvey/Review Medical Board at the Military Hospital, Chennai or a designated

hospital for the purpose of examining the applicant and assessing the degree of
disability due to “Right Partial Seizure with Secondary Generalisation 345” and the
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probable duration of disability. The tenor of the order itself shows that even the
Tribunal realized that accurate medical opinion could not have been obtained after
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lapse of 30 years from the date of recruitment of the Respondent and after 20 years
from the date of his discharge. The Tribunal, therefore, sought assessment of ‘probable
duration of disability’.
14. Be that as it may, the Appellants, in compliance of the order of the Tribunal,
convened a Review Medical Board as directed and submitted a report. The Tribunal
noted:—
“7. From the Resurvey Medical Board dated 11.4.2019 held pursuant to our order
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dated 02.11.2018 placed before us, it is seen that the applicant's disease “Right
Partial Seizure with Secondary Generalisation 345” has now been considered as
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‘Remained Static’ and the degree of the disability has been assessed @ 20% for life
with effect from 08.04.2019. The Board also assessed the degree of disability for
the intervening period from 27.03.1989 and 25.03.1989 @ 20%. The applicant has
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prayed for grant of disability pension.”
15. Significantly, even the Resurvey Medical Board did not opine that the disability,
if any, of the Respondent was either caused or aggravated by military service. Even
otherwise, the question of entitlement of soldier to disability pension cannot be
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determined on the basis of medical examination conducted 20 years after his
discharge.
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16. The Tribunal does not sit in appeal over the expert opinion of a Medical Board
holding that the disability suffered by a soldier was not attributable to or aggravated
by military service. There was no reason for the Tribunal not to accept the opinion of
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the Release Medical Board held on 30th January 1997 and no reasons have been
disclosed. In the absence of any finding of infirmity in the decision making process
adopted by the Release Medical Board, there could be no reason to direct the
constitution of a Resurvey Medical Board, and in any case, not after two decades from
the date of discharge.
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17. The Tribunal relied on the judgment of this Court dated 13th February 2015 in
Civil Appeal No. 2904 of 2011 (Union of India v. Rajbir Singh1 ) heard and disposed of
along with 23 other appeals. In the aforesaid case, this Court dismissed appeals
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arising out of orders passed by the Armed Forces Tribunal and upheld directions for
grant of disability pension to the concerned ex-soldiers.
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18. In Rajbir Singh (supra), it was not in dispute that the Respondents in all the
appeals had been invalidated out of service on account of medical disability as shown
in the chart set out in the judgment. The judgment in Rajbir Singh (supra) was
rendered in the context of invalidation from service on medical grounds, having regard
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to the provisions of the Entitlement Rules for Casualty Pensionary Awards, 1982,
hereinafter referred to as “the Entitlement Rules”.
19. Rule 14 of the Entitlement Rules, referred to in Rajbir Singh (supra) is
extracted hereinbelow for convenience:
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“14. Diseases.- In respect of diseases, the following rule will be observed -

(a) Cases in which it is established that conditions of military service did not
determine or contribute to the onset of the disease but influenced the
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subsequent courses of the disease will fall for acceptance on the basis of
aggravation.
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(b) A disease which has led to an individual's discharge or death will ordinarily
be deemed to have arisen in service, if no note of it was made at the time of
the individual's acceptance for military service. However, if medical opinion
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holds, for reasons to be stated, that the disease could not have been detected
on medical examination prior to acceptance for service, the disease will not be
deemed to have arisen during service.
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(c) If a disease is accepted as having arisen in service, it must also be

established that the conditions of military service determined or contributed to
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the onset of the disease and that the conditions were due to the
circumstances of duty in military service.
(emphasis supplied)”
20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh (supra) is not
attracted in this case, because the Respondent was not discharged on account of any
disease, ailment or disability, but for administrative reasons. The Rule is only attracted
when a disease leads to an individual's discharge or death. Such disease is ordinarily
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to be deemed to have arisen in service, if no note of it was made at the time of the
individual's acceptance for military service, but not always. In any case, the
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presumption under Rule 14(b) of the Entitlement Rules is rebuttable. If medical
opinion holds, for reasons to be stated, that the disease could not have been detected
on medical examination prior to acceptance for service, the disease will not be deemed
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to have arisen during service. There was no direction on the Review Medical Board to
give any opinion as to the question of whether the ailment of the Respondent could or
could not have been detected at the time of his recruitment. Furthermore, the mere
fact that an ailment or disease may have arisen in service does not mean that the
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ailment or disease is attributable to service conditions.
21. In the instant case, as observed above, the discharge of the Respondent was
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not on account of any disability or disease but on administrative grounds and such
discharge was not questioned for two decades. The judgment in Rajbir Singh (supra)
or the judgments relied upon in Rajbir Singh (supra) have no application in the facts
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and circumstances of this case. The learned Tribunal noted red ink entries in the
service records of the Respondent on the ground of unauthorized absence, but arrived
at the purported finding in effect that the absence of the Respondent was only on
account of his ailment/disability. Such finding is patently conjectural, and not based
on any materials on record.
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22. Moreover, even in the case of discharge on account of any disability or disease,
the authorities might dispute that such disability or disease was caused or aggravated
by military service. The Medical Board might, for reasons to be stated, give an opinion
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that the disease could not have been detected on medical examination prior to
appointment, in which case the disease/disability would not be deemed to have arisen
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during service.
23. Moreover, as provided in Rule 14(c) of the Entitlement Rules, if a disease were
accepted as having arisen in service, it must also be established that the conditions of
military service determined or contributed to the onset of the disease and that the
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conditions were due to the circumstances of duty in military service.

24. Even though, the Tribunal accepted that there might be cases, where an
ailment/disease could be wholly unrelated to military service and the denial of
disability pension could be justified on that ground, the Tribunal overlooked the
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mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey
Medical Board, as extracted in the impugned judgment and order, it does not appear
that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14
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(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis
of which the Tribunal could have been satisfied that, the conditions of service of the
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Respondent contributed to his disability and/or ailment. The Review Medical Board
only assessed the extent of the disability of the Respondent and the approximate
duration of the disability, but not the cause thereof.
25. What exactly is the reason for a disability or ailment may not be possible for
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anyone to establish. Many ailments may not be detectable at the time of medical
check-up, particularly where symptoms occur at intervals. Reliance would necessarily
2
have to be placed on expert medical opinion based on an in depth study of the cause
and nature of an ailment/disability including the symptoms thereof, the conditions of
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service to which the soldier was exposed and the connection between the
cause/aggravation of the ailment/disability and the conditions and/or requirements of
service. The Tribunal patently erred in law in proceeding on the basis of a
misconceived notion that any ailment or disability of a soldier, not noted at the time of
recruitment but detected or diagnosed at the time of his discharge or earlier, would
entitle the soldier to disability pension on the presumption that the disability was
attributable to military service, whether or not the disability led to his discharge, and
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the onus was on the employer to prove otherwise, which the Appellants in this case
had failed to do.
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26. In this case, since the discharge was on administrative grounds and not
medical grounds, there was no occasion for the Release Medical Board or for that
matter, the Resurvey Medical Board to give any opinion as to cause and nature of the
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ailment of the Respondent of “Right Partial Seizure with Secondary Generalisation
345” as diagnosed, whether such disability/ailment could reasonably have gone
undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of
the Entitlement Rules. The Appellants did not get the opportunity to show that the
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ailment was not caused or aggravated by military service in terms of Rule 14(b) and
14(c) of the Entitlement Rules referred to above. The claim of the Respondent for
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disability pension should not have been entertained and that too, 20 years after his
discharge.
27. The appeal is, therefore, allowed. The impugned judgment and order is set
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aside. There shall be no order as to costs.
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1
(2015) 12 SCC 264
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(BEFORE D.Y. CHANDRACHUD, C.J. AND HIMA KOHLI, J.)
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Arising out of
Petitions for Special Leave to Appeal (Civil) No. 3524-25 of 2022
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Versus
Subrata Nath … Respondent.
And
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Arising out of
Petitions for Special Leave to Appeal (Civil) No. 11021-22 of 2022
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Subrata Nath … Appellant;
Versus
Civil Appeal Nos. 7939-7940 of 2022, Petitions for Special Leave to
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Appeal (Civil) No. 3524-25 of 2022, Civil Appeal Nos. 7941-7942 of
2022 and Petitions for Special Leave to Appeal (Civil) No. 11021-22
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of 2022
Decided on November 23, 2022
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HIMA KOHLI, J.:— By this order, we propose to decide two appeals
preferred by the Union of India and the connected appeals preferred by
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the private respondent against the common judgment and order dated
9th September, 2021 passed by the Division Bench of the High Court at
Calcutta in FMA No. 679 of 2019 and FMA No. 680 of 2019.
2. For the sake of convenience, the facts stated in the Civil Appeals
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shall be referred to. The respondent joined the Central Industrial

Security Force1 as a Constable on 26th February, 1994. On 7th
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November, 2007, the respondent was detailed for ‘C’ shift duty from
21 : 00 hours on 7th November, 2007 to 05 : 00 hours on 8th November,
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2007 at Alif Nagar Scrap yard situated in the Garden Reach area of the
Kolkata Port. On the next day, i.e., on 8th November, 2007, the local
police intercepted a Tata-407 truck loaded with approximately 800 kg.
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(approx.) of copper wires outside the port premises and informed the
CISF about the said incident on learning that the copper wires had
2
been removed from the Kolkata Port Trust area. It transpired that the
said copper wires had been removed from the scrap yard of Alif Nagar
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Kolkata Port in the duration when the respondent was on duty. The
respondent was placed under suspension and charge sheeted, vide
Memorandum dated 7th December, 2007. Following are the two articles
of charge framed against the respondent:
“STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST NO.
941400817
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CONSTABLE SUBRATA NATH OF CISF UNIT KoPT KOLKATA.
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Article of Charge-I
That the said No. 941400817 Constable Subrata Nath of CISF Unit
KoPT Kolkata (“C” Coy) while perforating “C” Shift duty from 2100
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hrs on 07.11.2007 to 0500 hrs on 08.11.2007 at Alif Nagar Scrap
Yard with Arms and Ammunition has failed to prevent theft of copper
wire weighing about 800 Kgs which were laying with other bundles
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of copper wire at Alif Nagar Scrap Yard of KoPT under the security
coverage of the said No. 941400817 Constable Subrata Nath.
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The above act on the part of No. 941400817 Constable Subrata
Nath amounts to gross negligence and dereliction of duty being
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member of a disciplined Force.
Article of Charge-II
That the said No. 941400817 Constable Subrata Nath of CISF Unit
KoPT Kolkata during the period of his 13 years sendee in CISF has
O
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been involved himself in various delinquencies and thereby awarded
08 (Eight) punishments. Even then he did not mend himself and has
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developed an incorrigible character.”

3. An Inquiry Officer was appointed to conduct the inquiry in respect
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of the above charges. During the inquiry, eight prosecution witnesses

were examined. However, the respondent did not produce any witness
in his defence. After examining the evidence and the defence of the
respondent, the Inquiry Officer held that both the charges framed
EM
against the respondent were duly proved. The Disciplinary Authority

issued a Notice to Show Cause to the respondent in relation to the
inquiry report, in response whereto, he submitted a representation.
G
Vide order dated 27th November, 2008, the Disciplinary Authority,

namely, the Commandant rejected the representation of the
D
respondent. It was observed that the statements of the prosecution

witnesses corroborated with the scene of the crime and established that
JU
theft of copper wires from the Alif Nagar Scrap Yard had taken place
when the respondent was on duty at the duty post. Further, the
prosecution witnesses had proved that the respondent was found to be
alert at the duty post by nine different checking officers, who had
2-
checked him in the intervening night on 7th/8th November, 2007,

despite which, he did not report the criminal activities in his duty area.
2
4. Rejecting the plea taken by the respondent that the FIR had
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recorded the occurrence of the offence at 1530 hours on 8th November,

2007 which indicated that the theft had not taken place during his duty
hours, the Disciplinary Authority held thus:
“12. After taking into account all the above aspect, I am of the
opinion that prosecution witnesses by virtue of corroborative
statements supported by documentary and circumstantial evidences
N
has established, the Articles of charge-I proved against the charged
official. On the other hand, the charged official could not come up
IO
with any convincing materials in his representation to disprove the
Article of charge-I. Even he could not produce any defence witness.
AT
The defence documents produced by him during enquiry could not
prove anything in his favour. The FIR copy produced by him
(Defence Exhibit-6) showing occurrence of offence at about 1530
hours on 08.11.2007 by which he wanted to refute all claims of theft
L
happening during his duty hours was examined in depth
PI
* * *
The above complain shows that the recovery of the copper wire
M
was made by the complainant at 1515 hours on 08.11.2007 whereas
the FIR shows the occurrence of offence at 1530 hours on
08.11.2007 and the offence described as theft of a vehicle TATA-407
loaded with some coils of copper wire and recovery vehicle was laid
at Alif Nagar KMC Sweeper Quarters. Thus, it means that the
O
C
recovery of copper wire was made before the theft occurred, which is
improbable and absurd indeed. It was further observed that FIR
T
shows time of information received at 2200 hours on 08.11.2007,

occurrence of theft at 1530 hours while complaint shows recovery
EN
was made at 1515 hours on same day. All these reveal that the
recovery was made well before receiving information by the
concerned police official of West Port Police station and even before
EM
occurrence of theft……..….. Taking all these facts together it is clear

that the FIR corroborates the fact of recovery of copper wire loaded
in TATA- 407 vehicle and the statement of PW1, PW2 & PW8
corroborates the fact that the seized vehicle was held in police
G
custody in the morning of 08.11.2007. In totality of all the above it

is established that the theft of copper wire from Alif Nagar scrap yard
D
has occurred in the night of 07/08.11.2007 during the duty period of

the charged official and the said copper wire was later recovered by
JU
West Port police and kept at their custody loaded in TATA-407

vehicle well before the visit of PW1, PW2 and PW8 at the west port
police station in the morning of 08.11.2007……….…As regards Article
2-
of Charge-II, I find that statement of PW4 and documentary

evidences held on record clearly establish that the charged official
has developed into incorrigible character who even after awarding 08
2
punishments for various delinquencies in his 13 years of service in

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CISF has not reformed himself. From the fact and factual position as
assessed, discussed and evaluated above over the prosecution
version and defence version, I find that the findings drawn by the
enquiry officer are fair, reasoned and judicially justified in all respect.
I, therefore, fully agree with the findings of the enquiry officer and
hold the charged official guilty of the Article of Charge-I and Article
N
of Charge-II.”
5. In view of the above findings and in exercise of the powers
IO
conferred under Rule 32 read with Schedule-I and Rule 32 (1) of the
Central Industrial Security Force Rules, 20012 , the Disciplinary
AT
Authority imposed a penalty of dismissal from service on the
respondent. Aggrieved by the order dated 27th November, 2008 passed
by the Disciplinary Authority, the respondent preferred an appeal,
which was dismissed on 3rd February, 2009 with the following
L
observations:
PI
“5. I have carefully considered the appeal preferred by the
appellant, the departmental proceeding files, findings of the enquiry
officer and other related documents held on record and I have
M
applied my mind to the case. I find that the Articles of charge
leveled against the appellant were held proved on the basis of
overwhelming evidence held on record. The enquiry officer had
conducted the enquiry in a fair and judicious manner and afforded
O
C
him all reasonable opportunities to rebut the adverse evidence and
to submit sufficient material in support of his defence. He, however,
T
failed to do so. There is also no material irregularity or miscarriage of

justice in this case. The Disciplinary Authority has passed the final
EN
order after considering all aspects of the case held on records and
awarded the penalty of “Dismissal from service” to the appellant vide
Final Order No. V-15014/Maj-04/KoPT/Disc/SN/08/8271 dated
27.11.08 for his failure to prevent theft of copper wire weighing
EM
about 800 kgs which were laying with other bundles of copper wire
at Alif Nagar scrap yard of KoPT under the security coverage of the
appellant while he was performing ‘C’ shift duty from 2100 hrs on
G
7.11.2007 to 0500 hrs on 08.11.2007 at Alif Nagar Scrap yard duty

post and non-improving his conduct as expected from a member of
D
disciplined force, in spite of having been penalized/punished earlier

on 08 (Eight) occasions for his incorrigible habits during his short
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span of 13 years' service is commensurate to the gravity of offence.

The appellant has not come up with any cogent and logical reason
that warrants consideration. Many other pleas put forth by the
2-
appellant in his appeal do not have any merit.

6. As such, I do not find any mitigating circumstances to interfere
with the order of penalty dated 27.11.2008 passed by the
2
Disciplinary Authority, i.e., Commandant CISF Unit KoPT Kolkata.

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Hence, the appeal dated 05.12.2008 preferred by the appellant is

rejected being devoid of merit.”
6. This was followed by a Revision Petition submitted by the
respondent in the Office of the Inspector General, CISF/NES, which was
dismissed vide order dated 19th May, 2009, holding inter alia that the
charges levelled against him had been proved beyond doubt; that he
N
had been afforded all the reasonable opportunities to defend himself;
that there were no procedural irregularities in conducting the
IO
disciplinary inquiry by the Inquiry Officer or on the part of Disciplinary
Authority in dealing with the case of the respondent and that principles
AT
of natural justice had been complied with.
7. Dissatisfied by the order passed by the Revisional Authority
upholding the orders of the Disciplinary Authority and the Appellate
Authority, the respondent filed a writ petition in the High Court of
L
Calcutta, registered as WP No. 14102 (W) of 2009. The said petition
PI
was disposed of by the learned Single Judge, vide order dated 25th
June, 2018 and the punishment of dismissal imposed on the
respondent was converted to that of compulsory retirement primarily on
M
the ground that the authorities had failed to preserve the relevant
records pertaining to the case and one of the vital documents of the
inquiry, namely, the Beat Book, which recorded the time when the
respondent had taken charge from his reliever and the items available
O
C
on the spot and the time when he handed over charge to his successor,
required examination. Observing that the authorities ought to have
T
maintained the relevant records of inquiry in view of pendency of the

writ petition, the learned Single Judge set aside the punishment of
EN
dismissal from service imposed on the respondent and compulsorily

retired him from service w.e.f. 27th November, 2008 alongwith all
consequential benefits.
EM
8. The aforesaid order was challenged by the appellants - Union of

India in two sets of appeals (FMA No. 679 of 2019 and FMA 680 of
2019), that were disposed of by the Division Bench, vide the impugned
judgment dated 9th September, 2021 whereby, the decision of the
G
learned Single Judge of substituting the punishment of dismissal

imposed on the respondent with one of compulsory retirement, was
D
quashed and set aside. Instead, it was directed that the respondent
would be entitled to be reinstated in service along with full back wages
JU
from the date of his dismissal. The Disciplinary Authority was further
directed to issue a fresh order of punishment in respect of the
respondent that should commensurate to his negligence and dereliction
2-
of duty, other than a punishment of dismissal, removal from service or

compulsory retirement.
9. Questioning the aforesaid judgment, the present appeals have
2
been filed by the appellants - Union of India. The respondent has also
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preferred Petitions for Special Leave to appeal being aggrieved by the

directions issued by the High Court calling upon the Disciplinary
Authority to issue a fresh order of punishment qua him upon
reinstatement on a plea that there was no occasion for the Division
Bench to have interfered with the order passed by the learned Single
Judge whereby the punishment of removal from service had been set
N
aside and the respondent was directed to be compulsorily retired from
service.
IO
10. Appearing for the appellants - Union of India, Ms. Aakanksha
Kaul, learned counsel has argued that the impugned judgment is
AT
unsustainable for the reason that the High Court has acted as an
Appellate Authority by directing reinstatement of the respondent, which
runs contrary to the law laid down by the Supreme Court in B.C.
Chaturvedi v. Union of India3 ; that the High Court while exercising the
L
powers vested in it under judicial review, ought not to have stepped
PI
into the shoes of the Appellate Authority and reappreciated the
evidence to arrive at independent findings on the evidence adduced;
that no grievance was raised by the respondent that the rules of natural
M
justice had been violated or the inquiry had not been conducted in a
proper manner or that the findings arrived at by the Disciplinary
Authority were based on no evidence. Learned counsel asserted that in
the instant case, the inquiry was conducted by a competent officer,
O
C
rules of natural justice were duly complied with and the findings arrived
at by the Inquiry Officer were based on sufficient evidence. Stating that
T
having regard to the fact that the charges against the respondent had
been proved in a properly conducted departmental inquiry after giving
EN
a reasonable opportunity to the respondent to defend himself, there

was no good reason for the learned Single Judge to have converted the
punishment of dismissal from service imposed by the Disciplinary
Authority and upheld by the Appellate Authority, to compulsory
EM
retirement and for the Division Bench to have further interfered by

reassessing the evidence and directing reinstatement of the respondent
in service with full back wages and only thereafter, pass a fresh order of
punishment.
G
11. Citing the decision in State of Orissa v. Bidyabhushan

D
Mohapatra4 , it was contended that keeping in mind the gravity of the

established misconduct, the Disciplinary Authority has the power to
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impose a punishment on the delinquent officer and such a punishment

is not open for review by the High Court under Article 226 of the
Constitution of India. It was also sought to be urged on behalf of the
appellants that the past conduct of the respondent can be taken into
2-
consideration while awarding penalty, subject to the condition that the

same is made a part of a separate charge, as was done in the instant
2
case. In support of the said submission, learned counsel cited Central

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Industrial Security Force v. Abrar Ali5 .

12. The only submission made by Mr. Ranjan Mukherjee, learned
counsel for the respondent is that the learned Single Judge having
directed reinstatement of the respondent with full back wages, the
Division Bench was not justified in passing an order directing that a
fresh order be passed by the Disciplinary Authority commensurate to
N
the negligence and dereliction of duty on the part of the respondent.
Instead, the appeals preferred by the appellants - Union of India ought
IO
to have been dismissed outright in which event, the punishment of
compulsory retirement imposed by the learned Single Judge would
AT
have been restored and attained finality thereby entitling the
respondent to claim his retiral benefits.
13. The point that arises for our consideration is whether in the
given facts of the case, the learned Single Judge and the Division
L
Bench ought to have interfered with the punishment imposed on the
PI
respondent by the Disciplinary Authority and upheld by the Appellate
Authority as also by the Revisional Authority.
M
14. It is well settled that courts ought to refrain from interfering
with findings of facts recorded in a departmental inquiry except in
circumstances where such findings are patently perverse or grossly
incompatible with the evidence on record, based on no evidence.
However, if principles of natural justice have been violated or the
O
C
statutory regulations have not been adhered to or there are malafides
attributable to the Disciplinary Authority, then the courts can certainly
T
interfere.
15. In the above context, following are the observations made by a
EN
three-Judge Bench of this Court in B.C. Chaturvedi (supra):

“12. Judicial review is not an appeal from a decision but a review
of the manner in which the decision is made. Power of judicial review
EM
is meant to ensure that the individual receives fair treatment and not
to ensure that the conclusion which the authority reaches is
necessarily correct in the eye of the court. When an inquiry is
conducted on charges of misconduct by a public servant, the
G
Court/Tribunal is concerned to determine whether the inquiry was

held by a competent officer or whether rules of natural justice are
D
complied with. Whether the findings or conclusions are based on

some evidence, the authority entrusted with the power to hold
JU
inquiry has jurisdiction, power and authority to reach a finding of

fact or conclusion. But that finding must be based on some evidence.
Neither the technical rules of Evidence Act nor of proof of fact or
2-
evidence as defined therein, apply to disciplinary proceeding. When

the authority accepts that evidence and conclusion receives support
2
therefrom, the disciplinary authority is entitled to hold that the

delinquent officer is guilty of the charge. The Court/Tribunal in its
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power of judicial review does not act as appellate authority to

reappreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere
where the authority held the proceedings against the
delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the
N
mode of inquiry or where the conclusion or finding reached by
the disciplinary authority is based on no evidence. If the
IO
conclusion or finding be such as no reasonable person would
have ever reached, the Court/Tribunal may interfere with the
AT
conclusion or the finding, and mould the relief so as to make it
appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
L
coextensive power to reappreciate the evidence or the nature
PI
of punishment. In a disciplinary inquiry, the strict proof of
legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be
M
permitted to be canvassed before the Court/Tribunal. In Union
of India v. H.C. Goel6 this Court held at p. 728 that if the conclusion,
upon consideration of the evidence reached by the disciplinary
authority, is perverse or suffers from patent error on the face of the
O
C
record or based on no evidence at all, a writ of certiorari could be
issued.
T
* * *
* * *
EN
18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the
EM
evidence with a view to maintain discipline. They are invested with

the discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal,
while exercising the power of judicial review, cannot normally
G
substitute its own conclusion on penalty and impose some other

penalty. If the punishment imposed by the disciplinary authority or
D
the appellate authority shocks the conscience of the High

Court/Tribunal, it would appropriately mould the relief, either
JU
directing the disciplinary/appellate authority to reconsider the

penalty imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment with
2-
cogent reasons in support thereof.”

[Emphasis laid]
2
16. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya7 , a

two Judge Bench of this Court held as below:
20
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“7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is
possible on the material on record. If the enquiry has been
fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the
N
reliable nature of the evidence will not be grounds for
IO
interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact
recorded in departmental enquiries, except where such
AT
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a tribunal
acting reasonably could have arrived at such conclusion or finding,
L
on the material on record. The courts will however interfere with the
findings in disciplinary matters, if principles of natural justice or
PI
statutory regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
M
considerations. (Vide B.C. Chaturvedi v. Union of India8 , Union of
India v. G. Ganayutham9 , Bank of India v. Degala Suryanarayana10
and High Court of Judicature at Bombay v. Shashikant S. Patil11 ).
O [Emphasis laid]
C
17. In Chairman & Managing Director, V.S.P. v. Goparaju Sri
Prabhakara Hari Babu12 , a two Judge Bench of this Court referred to
several precedents on the Doctrine of Proportionality of the order of
T
punishment passed by the Disciplinary Authority and held that:

EN
“21. Once it is found that all the procedural requirements have

been complied with, the courts would not ordinarily interfere with
the quantum of punishment imposed upon a delinquent employee.
The superior courts only in some cases may invoke the doctrine of
EM
proportionality. If the decision of an employer is found to be within

the legal parameters, the jurisdiction would ordinarily not be invoked
when the misconduct stands proved.”
18. Laying down the broad parameters within which the High Court
G
ought to exercise its powers under Article 226/227 of the Constitution

of India and matters relating to disciplinary proceedings, a two Judge
D
Bench of this Court in Union of India v. P. Gunasekaran13 held thus:

“12. Despite the well-settled position, it is painfully
JU
disturbing to note that the High Court has acted as an

appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry officer.
2-
The finding on Charge I was accepted by the disciplinary

authority and was also endorsed by the Central Administrative
2
Tribunal. In disciplinary proceedings, the High Court is not

20
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and cannot act as a second court of first appeal. The High Court,
in exercise of its powers under Articles 226/227 of the Constitution
of India, shall not venture into reappreciation of the evidence. The
High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in
N
that behalf;
IO
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair
AT
conclusion by some considerations extraneous to the evidence
and merits of the case;
(e) the authorities have allowed themselves to be influenced by
L
irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and
PI
capricious that no reasonable person could ever have arrived at
such conclusion;
M
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had erroneously
inadmissible evidence which influenced the finding; O admitted
C
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High
T
Court shall not:

(i) reappreciate the evidence;
EN
(ii) interfere with the conclusions in the enquiry, in case the same
has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
EM
(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings
can be based.
(vi) correct the error of fact however grave it may appear to be;
G
(vii) go into the proportionality of punishment unless it shocks its

conscience.”
D
19. In Union of India v. Ex. Constable Ram Karan14 , a two Judge

Bench of this Court made the following pertinent observations:
JU
“23. The well-ingrained principle of law is that it is the

disciplinary authority, or the appellate authority in appeal, which is
to decide the nature of punishment to be given to the delinquent
2-
employee. Keeping in view the seriousness of the misconduct

committed by such an employee, it is not open for the courts to
2
assume and usurp the function of the disciplinary authority.

20
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24. Even in cases where the punishment imposed by the

disciplinary authority is found to be shocking to the conscience of the
court, normally the disciplinary authority or the appellate authority
should be directed to reconsider the question of imposition of
penalty. The scope of judicial review on the quantum of punishment
is available but with a limited scope. It is only when the penalty
N
imposed appears to be shockingly disproportionate to the nature of
misconduct that the courts would frown upon. Even in such a case,
IO
after setting aside the penalty order, it is to be left to the
disciplinary/appellate authority to take a call and it is not for the
court to substitute its decision by prescribing the quantum of
AT
punishment. However, it is only in rare and exceptional cases where
the court might to shorten the litigation may think of substituting its
own view as to the quantum of punishment in place of punishment
L
awarded by the competent authority that too after assigning cogent
PI
reasons.”
20. A Constitution Bench of this Court in State of Orissa (supra) held
that if the order of dismissal is based on findings that establish the
M
prima facie guilt of great delinquency of the respondent, then the High
Court cannot direct reconsideration of the punishment imposed. Once
the gravity of the misdemeanour is established and the inquiry
conducted is found to be consistent with the prescribed rules and
O
C
reasonable opportunity contemplated under the rules, has been
afforded to the delinquent employee, then the punishment imposed is
T
not open to judicial review by the Court. As long as there was some
evidence to arrive at a conclusion that the Disciplinary Authority did,
EN
such an order becomes unassailable and the High Court ought to

forebear from interfering. The above view has been expressed in Union
of India v. Sardar Bahadur15 .
21. To sum up the legal position, being fact finding authorities, both
EM
the Disciplinary Authority and the Appellate Authority are vested with
the exclusive power to examine the evidence forming part of the inquiry
report. On finding the evidence to be adequate and reliable during the
G
departmental inquiry, the Disciplinary Authority has the discretion to

impose appropriate punishment on the delinquent employee keeping in
D
mind the gravity of the misconduct. However, in exercise of powers of

judicial review, the High Court or for that matter, the Tribunal cannot
JU
ordinarily reappreciate the evidence to arrive at its own conclusion in

respect of the penalty imposed unless and until the punishment
imposed is so disproportionate to the offence that it would shock the
conscience of the High Court/Tribunal or is found to be flawed for other
2-
reasons, as enumerated in P. Gunasekaran (supra). If the punishment

imposed on the delinquent employee is such that shocks the conscience
2
of the High Court or the Tribunal, then the Disciplinary/Appellate

20
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Authority may be called upon to re-consider the penalty imposed. Only

in exceptional circumstances, which need to be mentioned, should the
High Court/Tribunal decide to impose appropriate punishment by itself,
on offering cogent reasons therefor.
22. Applying the law laid down above to the instant case, we are of
the view that the High Court ought not to have interfered with the
N
findings of fact recorded by the Disciplinary Authority. Charge-1
levelled against the respondent pertained to negligence and dereliction
IO
of duty attributed to him for having failed to prevent theft of 800 kgs of
copper wires lying at Alif Nagar scrap yard under his security cover
AT
while performing duty in the late hours of 7th November, 2007 upto the
early hours of 8th November, 2007. Records reveal that the Disciplinary
Authority has minutely examined the entire evidence brought on record
including the deposition of eight prosecution witnesses each of whom
L
have corroborated the charges levelled against the respondent, duly
PI
supported by documentary and circumstantial evidence for arriving at
the conclusion that the Articles of Charge-I stood proved against the
respondent. Pertinently, the respondent did not produce any defence
M
witness and the documents produced by him did not prove anything in
his favour.
23. The contention of the respondent that the FIR registered against
him mentioned the time of the occurrence as 15 : 30 hours on 8th
O
C
November, 2007, when he was not on duty, was also analyzed in depth
by the Disciplinary Authority, who referred to the fact that the FIR was
T
lodged suo moto by the West Port Police Station on the basis of a
complaint submitted by the Office-Incharge of the Police Station who
EN
had recovered the copper wires loaded in a commercial vehicle which

was brought to the police station and kept at the police station
compound. The complaint recorded that recovery of copper wires was
made by the complainant at 15 : 15 hours on 8th November, 2007
EM
whereas, the FIR showed the time of the information received as 22 :

00 hours on 8th November, 2007, and the time of the occurrence of the
theft as 15 : 30 hours. Noting the discrepancies in the FIR which were
G
in contradiction with the depositions of PW1, PW2 and PW8 who had
stated that the information of the theft was received long before 22 :
D
00 hours on 8th November, 2007, the Disciplinary Authority discarded

the version of the respondent as unacceptable and went on to hold that
JU
the evidence fairly established that the theft of the copper wires had
occurred in the intervening night of 7th/8th November, 2007, during the
duty hours of the respondent. Accordingly, the Disciplinary Authority
concluded that Charge-I was proved against the respondent.
2-
24. As for Charge-II, the Disciplinary Authority noted the statement

of SI/Min. A.K. Dua (PW-4) who was working as incharge of the
2
Document Section of the Unit and had been summoned to prove copies
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of the service documents related to the respondent and on going

through the said documentary evidence, noted that the respondent had
been awarded eight punishments over a period of thirteen years of
service for various delinquencies but he had not reformed himself. In
view of his continuous misconduct in the past coupled with the serious
offence of theft of 800 kgs. copper wires, subject matter of Charge-I,
N
the Disciplinary Authority opined that the respondent was unfit to be
retained in a disciplined force and therefore, directed his dismissal from
IO
service.
25. We have noted above that the findings of the Disciplinary
AT
Authority had met with the approval of the Appellate Authority and the
Revisional Authority. However, the learned Single Judge overturned the
order of dismissal from service and converted the same to compulsory
retirement on the sole ground of non-availability of the original record,
L
more specifically, the Beat Book, while giving a go-by to the extract of
PI
the Beat Book that was produced before the Inquiry Officer and the fact
that the respondent had admitted the said document. The learned
Single Judge also ignored the fact that the Beat Book was not the only
M
piece of document produced before the Inquiry Officer. There were
depositions of other witnesses produced by the department to prove
the charges levelled against the respondent and the said witnesses had
corroborated the version of the Department. At no stage, did the
O
C
learned Single Judge observe that the departmental inquiry was
vitiated on account of violation of the rules of natural justice or that the
T
inquiry had been conducted in gross violation of the statutory rules.

26. The Division Bench went a step further and proceeded to
EN
reappreciate the evidence and observed that it was not persuaded to

conclude that such a major theft of 800 kgs comprising of 42 bundles
of copper wires could have happened “in the blink of an eyelid” despite
holding that the view of the learned Single Judge regarding non-
EM
production of the original Beat Book was unsustainable. The Court held
that the allegation of connivance in the theft levelled against the
respondent was presumptive and there wasn't enough evidence to
G
conclude that theft of such a magnitude could have happened during

the duty period of the respondent alone, yet charge-I pertaining to
D
negligence and dereliction of duty on the part of the respondent was

sustained. At the same time, the order passed by the learned Single
JU
Judge directing substitution of the punishment of dismissal with that of

compulsory retirement was set aside and the respondent was directed
to be reinstated in service with full back wages, while giving liberty to
the Disciplinary Authority to issue a fresh order of punishment
2-
commensurate to the negligence and dereliction of duties on his part,

except for punishment of dismissal or removal from service or
2
compulsory retirement.
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27. We are unable to commend the approach of the learned Single

Judge and the Division Bench. There was no good reason for the High
Court to have entered the domain of the factual aspects relating to the
evidence recorded before the Inquiry Officer. This was clearly an
attempt to reappreciate the evidence which is impermissible in exercise
of powers of judicial review vested in the High Court under Article 226
N
of the Constitution of India. We are of the opinion that both, the
learned Single Judge as well as the Division Bench, fell into an error by
IO
setting aside the order of dismissal from service imposed on the
respondent by the Disciplinary Authority and upheld by the Appellate
Authority.
AT
28. We find ourselves in complete agreement with the findings
returned by and conclusion arrived at by the Disciplinary Authority,
duly confirmed by the Appellate Authority and upheld by the Revisional
L
Authority in respect of both the Articles of Charge levelled against the
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respondent and the punishment imposed on him. The respondent being
a member of the disciplined force, was expected to have discharged his
duty diligently. His gross negligence and dereliction of duty has
M
resulted in theft of 800 kgs. copper wires from the spot where he was
performing his duty. Further, the records reveal that the respondent did
not mend his ways during thirteen years of service rendered by him
and was awarded eight punishments for various delinquencies out of
O
C
which, three punishments included stoppage of increment on two
occasions for one year without cumulative effect twice and stoppage of
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increment for two years without cumulative effect on one occasion. In

such circumstances, the desirability of continuing the respondent in the
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Armed Forces is certainly questionable and the Disciplinary Authority

could not be expected to wear blinkers in respect of his past conduct
while imposing the penalty of dismissal from service on him.
29. Therefore, it is deemed appropriate to quash and set aside the
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impugned judgment and order dated 9th September, 2021 passed by

the Division Bench of the High Court of Calcutta in FMA No. 679 of 2019
and FMA No. 680 of 2019 and the order dated 25th June, 2018 passed
G
by the learned Single Judge in WP No. 14102 (W) of 2009, while

restoring the findings and the conclusion arrived at by the Disciplinary
D
Authority, as elaborated in the order dated 27th November, 2008, duly

upheld by the Appellate Authority, vide order dated 3rd February, 2009
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and endorsed by the Revisional Authority, vide order dated 19th May,
2009. In our view, the penalty of dismissal from service imposed on the
respondent is commensurate with the gross negligence and dereliction
of duty on his part.
2-
30. As a result, both the appeals preferred by the Union of India

(arising out of Petitions for Special Leave to Appeal (C) Nos. 3524-
2
25/2022) are allowed and appeals @ Petitions for Special Leave to

20
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Appeal (Civil) Nos. 11021-22/2022 filed by the private respondent are

dismissed, while leaving the parties to bear their own expenses.
———
1 For short ‘CISF’
2 For short ‘CISF Rules, 2001’
N
3
(1995) 6 SCC 749
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4 AIR 1963 SC 779
5 (2017) 4 SCC 507
AT
6
(1964) 4 SCR 718
7 (2011) 4 SCC 584
L
8 (1995) 6 SCC 749
PI
9
(1997) 7 SCC 463
M
10 (1999) 5 SCC 762
11
(2000) 1 SCC 416
12
(2008) 5 SCC 569 O
C
13 (2015) 2 SCC 610
14 (2022) 1 SCC 373

T
15
(1972) 4 SCC 618
EN
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
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disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
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this text must be verified from the original source.

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2
20
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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502 SUPREME COURT CASES (2022) s sec
® (2022) 8 Supreme Court Cases 502
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(BEFORE B.R. GAVAI AND HIMA KOHLI, JJ.)
a
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Ex-Ct. MAHADEV Appellant;
Versus
AT
DIRECTOR GENERAL, BORDER SECURITY
FORCE AND OTHERS Respondents.
Civil Appeal No. 2606 of 2012t, decided on June 14, 2022
b
L
A. Human and Civil Rights - Police/Armed Forces Inaction/Atrocities/
Fake Encounters/False Implication/Custodial Deaths and Violence/Illegal
PI
Detention - Alleged case of atrocity by paramilitary force (BSF) - Alleged
wrongdoer shot dead - Trajectory of the bullets indicating that firing took
place from a higher position vis-a-vis the deceased - Inference that may
M
be drawn therefrom - Terrain/sloping ground where incident took place -
Relevance of - Constitution of India, Art. 21 C
B. Penal Code, 1860 - S. 302 or S. 304 [S. 300 Exception 2] and Ss. 96
to 103-Alleged smuggler shot dead by BSF Constable on patrol duty in self- O
C
defence, when armed intruders (of whom deceased was a member) advanced
menacingly towards him ready to launch assault on him
- Trajectory of the bullets indicating that firing took place from a higher
T
position vis-a-vis the deceased - Inference that may be drawn therefrom - d

Terrain/sloping ground where incident took place - Relevance of
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- Right of private defence whether attracted, and if so, whether exceeded

by said BSF Constable
- Appellant, a Constable in BSF allegedly killed a civilian in a rubber
EM
garden, situated near border of Bangladesh, by firing two shots at him from his e
INSAS rifle - Factum of rampant smuggling in the area not disputed by either
side and the border fencing in the area in question found erected just a few
months before the incident in question - Material also indicated that deceased
G
used to indulge in smuggling activities and his name mentioned in the list of
smugglers maintained by the BSF
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- Testimony of eyewitness, another Constable o f the BSF and on the patrol f

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duty with the appellant at the time of occurrence, indicated that the appellant
was suddenly confronted by a group of intruders, who had come menacingly
close to him, were armed with weapons and ready to launch an assault on him
- Thus, right of private defence held available to him and, he fired two shots
2-
at the deceased in order to save his life

g
- Held, though trajectory of the bullets indicated that the firing took place
2
from a higher position vis-a-vis the deceased, but that does not necessarily
20
mean that the appellant summoned the deceased and made him crouch on the
ground before shooting at him, as assumed by High Court while confirming
conviction under S. 302 - Uneven terrain of the rubber plantation with slopes
h
t Arising from the Judgment and Order in Mahadev v. Union of India, 2011 SCC OnLine Del 1106
[Delhi High Court, WP (C) No. 6709 of 2008, dt. 3-3-2011] [Modified]
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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MAHADEV v. BORDER SECURITY FORCE 503

and undulating surface, held, would offer a plausible alternate explanation for
N
the trajectory of the bullets fired by the appellant at the deceased - However,
a appellant, held, had exceeded right of private defence by firing two shots at the
IO
deceased
- Resultantly, considering provisions of Ss. 96 to 103 and S. 300
AT
Exception 2, appellant was liable only for culpable homicide and not murder
and, thus, proper conviction would be under S. 304
b
- Armed Forces - Border Security Force Act, 1968 - S. 46 - Evidence
L
Act, 1872, S. 105
PI
Held:
Section 105 of the Evidence Act, 1872 states that the burden of proof rests
with the accused who takes up the plea of self-defence. In the absence of proof,
M
the court will not be in a position to assume that there is any truth in the plea of
C self-defence. (Para 14)
O
Where the right of private defence is pleaded, the defence must be a reasonable
and probable version satisfying the court that the harm caused by the accused was
C
necessary for either warding off the attack or for forestalling the further reasonable
apprehension from the side of the accused. The burden of establishing the plea
of self-defence is on the accused and the burden stands discharged by showing
T
d preponderance of probabilities in favour of that plea on the basis of the material

on record. The accused need not prove the existence of the right of private defence
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beyond reasonable doubt. It is enough for him to show as in a civil case that the
preponderance of probabilities is in favour of his plea. (Para 14)
A conjoint reading of the provisions of Sections 96 to 103 and Exception 2 to
Section 300 IPC leaves no manner of doubt that culpable homicide is not murder if
EM
e the offender, in the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence, provided that such
right is exercised without premeditation and without any intention of doing more
G
harm than is necessary for the purpose of such defence. (Para 20)
Whether or not a right of private defence of person or property was available
D
f to the offender is the very first question that must be addressed in a case of the
present kind while determining the nature of the offence committed by the accused,
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whether or not a right of private defence was available to an offender is, in turn,
a question of fact or at least a mixed question of law and fact to be determined in
the facts and circumstances of each individual case that may come up before the
2-
court. (Para 20)

g Constable (PW 1) has deposed that when he and the appellant were patrolling
in the area on the relevant date, they had seen three persons crossing the
2
international border from Bangladesh side at 8.00 a.m. On noticing the intruders,
20
they had challenged them to stop at a distance of 50 m. But the intruders ran away
in the direction of Bangladesh. At this, PW 1 and the appellant had turned back and
while continuing with their patrolling duty, they saw 6-7 persons rushing towards
them from the side of Bangladesh, carrying weapons like "dah", "bhala" and "lathi"
h in their hands. They managed to surround the appellant, who was closer to them.
Apprehending an imminent and real threat to his life, the appellant had fired from
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

his rifle at the intruders in self-defence and the deceased who was a part of the
N
group, sustained bullet injuries and had fallen on the ground. The trajectory of
the bullets indicates that the :firing took place from a higher position vis-a-vis the a
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deceased. But that does not necessarily mean that the appellant had summoned the
deceased and made him crouch on the ground before shooting at him, as assumed
by the High Court. The uneven terrain of the rubber plantation with slopes and
AT
undulating surface would offer a plausible alternate explanation for the trajectory
of the bullets fired by the appellant at the deceased. If the former was positioned at
an elevated spot, then it was inevitable that the bullets would have hit the chest of
the deceased who was down below the slope, and made a path downwards in the b
L
body. Thus the preponderance of probabilities would swing in favour of the plea
PI
of self-defence taken by the appellant. (Para 24)
The right of private self-defence would be available to the appellant keeping
in mind preponderance of probabilities that leans in favour of the appellant. In a
M
fact situation where he was suddenly confronted by a group of intruders, who had
come menacingly close to him, were armed with weapons and ready to launch an C
O
assault on him, he was left with no other option but to save his life by firing at them
from his rifle and in the process two of the shots had pierced through the deceased,
causing his death. Hence, the appellant ought not to have been convicted for having
C
committed the murder of the deceased. Rather, the offence made out is of culpable
homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby
T
attracting the provisions of Section 304 IPC. (Para 25)

d
Rizan V. State of Chhattisgarh, (2003) 2 sec 661 : 2003 sec (Cri) 664; State of M.P. V.
EN
Ramesh, (2005) 9 SCC 705: 2005 SCC (Cri) 1443; James Martin v. State of Kerala, (2004)
2 SCC 203 : 2004 SCC (Cri) 487; Munshi Ram v. Delhi Admn., AIR 1968 SC 702; State
of Gujarat v. Bai Fatima, (1975) 2 SCC 7 : 1975 SCC (Cri) 384; State of U.P. v. Mohd.
Musheer Khan, (1977) 3 SCC 562 : 1977 SCC (Cri) 565 ; Mohinder Pal Jolly v. State of
Punjab, (1979) 3 sec 30 : 1979 sec (Cri) 635; Salim Zia v. State of U.P., (1979) 2 sec
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648: 1979 sec (Cri) 568; Dharam v. State of Haryana , (2007) 15 sec 241 : (2010) 4 sec
(Cri) 617; Buta Singh v. State of Punjab, (1991) 2 SCC 612: 1991 SCC (Cri) 494; Bhanwar e
Singh v. State of M.P., (2008) 16 sec 657 : (2010) 4 sec (Cri) 378; Raj Singh v. State of
Haryana, (2015) 6 sec 268 : (2015) 4 sec (Cri) 135,followed
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C. Penal Code, 1860 - S. 100 - Right of private defence of body -

Circumstances stretching such right to the extent of voluntarily causing death
- Held, to claim such a right, the accused must be able to demonstrate
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that the circumstances were such that there existed a reasonable ground to f
apprehend that he would suffer grievous hurt that would even cause death -
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Thus, necessity of averting an impending danger, held, is the core criteria for
exercising such a right (Para 11)
D. Penal Code, 1860- Ss. 96 to 103 - Doctrine of right of private defence
2-
- Principles underlying such doctrine, summarised

g
Held:
2
The basic principle underlying the doctrine of the right of private defence is that
20
when an individual or his property is faced with a danger and immediate aid from
the State machinery is not readily available, that individual is entitled to protect
himself and his property. That being so, the necessary corollary is that the violence
which the citizen defending himself or his property is entitled to use must not be
h
unduly disproportionate to the injury which is sought to be averted or which is
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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MAHADEV v. BORDER SECURITY FORCE 505

reasonably apprehended and should not exceed its legitimate purpose. However,
N
the means and the force a threatened person adopts on the spur of the moment
a to ward off the danger and to save himself or his property cannot be weighed in
IO
golden scales. It is neither possible nor prudent to lay down abstract parameters
which can be applied to determine as to whether the means and force adopted by
the threatened person was proper or not. (Para 19)
AT
Bhanwar Singh v. State of M.P., (2008) 16 SCC 657 : (2010) 4 SCC (Cri) 378,followed
Courts must keep in mind that the extent of the violence used by the accused
b for defending himself or his property should be in proportion to the injury
L
apprehended. This is not to say that a step to step analysis of the injury that was
apprehended and the violence used is required to be undertaken by the court; nor
PI
is it feasible to prescribe specific parameters for determining whether the steps
taken by the accused to invoke private self-defence and the extent of force used
M
by him was proper or not. The court's assessment would be guided by several
circumstances including the position on the spot at the relevant point in time,
C
the nature of apprehension in the mind of the accused, the kind of situation that
the accused was seeking to ward off, the confusion created by the situation that
had suddenly cropped up resulting in the knee-jerk reaction of the accused, the O
C
nature of the overt acts of the party who had threatened the accused resulting in
his resorting to immediate defensive action, etc. The underlying factor should be
that such an act of private defence should have been done in good faith and without
T
d malice. (Para 21)

Mahadev v. Union of India, 2011 SCC OnLine Del 1106, modified
EN
Mahadev v. Union of India, 2016 SCC OnLine SC 1961, referred to

SK-D/69000/CR
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Adeel Ahmed (Advocate-on-Record) and Lalit Kumar, Advocates, for the Appellant;
e Ms Aishwarya Bhati, Additional Solicitor General [B . Krishna Prasad (Advocate-on-
Record), Advocate], for the Respondents.
G
1. 2016 SCC OnLine SC 1961, Mahadev v. Union of India 515f

2. (2015) 6 SCC 268 : (2015) 4 SCC (Cri) 135, Raj Singh v. State of Haryana 512f-g
3. 2011 SCC OnLine Del 1106, Mahadev v. Union of India 506a,
D
506b, 5l5e-:f
f 4. sec 657 : (2010) 4 sec (Cri) 378, Bhanwar Singh v.
(2008) 16
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State of M .P. 511!, 512c

5. (2007) 15 SCC 241 : (2010) 4 SCC (Cri) 617, Dharam v. State of
Haryana 510c, 512f
6. (2005) 9 SCC 705 : 2005 SCC (Cri) 1443, State of M.P. v. Ramesh 509a-b
2-
7. (2004) 2 sec 203: 2004 sec (Cri) 487 , James Martin V. State of
Kerala 509e, 511a
g 8. (2003) 2 sec 661 : 2003 sec (Cri) 664, Rizan v. State of Chhattisgarh 509a
2
9 . (1991) 2 SCC 612: 1991 SCC (Cri) 494, Buta Singh v. State of Punjab 510g
10. (1979) 3 SCC 30 : 1979 SCC (Cri) 635, Mohinder Pal Jolly v. State
20
of Punjab 510a
11. (1979) 2 sec 648 : 1979 sec (Cri) 568, Salim Zia v. State of U.P. 510a-b
12. (1977) 3 SCC 562 : 1977 SCC (Cri) 565, State of U.P. v. Mohd.
Musheer Khan 510a
h 13. (1975) 2 SCC 7: 1975 SCC (Cri) 384, State of Gujarat v. Bai Fatima 509g-h
14. AIR 1968 SC 702, Munshi Ram v. Delhi Admn. 509g-h
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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N
HIMA KOHLI, J.- The appellant is aggrieved by the judgment
dated 3-3-2011 1 passed by the Division Bench of the High Court of Delhi a
IO
dismissing a writ petition filed by him , registered as WP (C) No. 6709 of 2008,
wherein he had challenged the order dated 19-3-2008 passed by Respondent 4
herein convicting him to life imprisonment for an offence committed under
AT
Section 46 of the Border Security Force Act, 1968 (for short "the BSF Act" ),
that is to say for murder punishable under Section 302 of the Penal Code, 1860
(for short "IPC"). By the impugned order 1 , the Division Bench has upheld the b
L
order passed by Respondent 2-the appellate authority, whereby the statutory
appeal filed by the appellant was dismissed and the order dated 10-3-2007
PI
passed by the General Security Force Court was upheld (for short "GSFC").
2. The brief facts of the case are that the appellant, who was serving in the
M
BSF, was tried by the GSFC in the year 2007, for committing an offence under
Section 46 of the BSF Act, that is to say murder punishable under Section 302 C
IPC and the charges framed against him were as follows:
O
"Accused 89131037, Const. Mahadev, of131 Bn. BSF is charged with:
C
BSF ACT SECTION 46 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY
MURDER, PUNISHABLE UNDER SECTION 302 IPC
T
d
In that he,
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In a rubber garden located between BP

No. 2007/S-3 and BP No. 2008/MP in AOR of
BOP Bamutia, on 5-6-2004 at about 08:15 hrs
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by firing shots from his INSAS Rifle bearing

Butt No. 503, Body No. 16397/159 caused e
the death of a civilian, namely, N andan Deb
s/o Shri Atinder Dev r/o Village Rangotia,
G
PS Sidhal, Distt. West Tripura and thereby

committed murder."
D
3. On the appellant pleading not guilty to the charge framed against him, f
the prosecution proceeded to examine seventeen witnesses. The appellant
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did not produce any witness. However, he made an oral statement in his
defence. The plea of private defence taken by the appellant was rejected and
on 10-3-2007, the GSFC held him guilty of the charge and sentenced him to
2-
suffer imprisonment for life besides dismissing him from service. Vide order
dated 4-4-2007, the Convening Officer confirmed the findings and the sentence g
imposed on the appellant. Aggrieved by the said order, the appellant preferred
2
a statutory petition, which was dismissed by Respondent 1 Union oflndia, vide

20
order dated 19-3-2008 that has been upheld by the High Court.
4. For arriving at the aforesaid conclusion, the High Court has primarily
relied on the testimony of Dr Ranjit Kumar Das (PW 10), who had conducted
the post-mortem on the body of the deceased and deposed that he had died due
h
l Mahadev v. Union of India, 2011 SCC OnLine Del 1106
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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MAHADEV v. BORDER SECURITY FORCE (Hima Kohli, J.) 507

to firearm injuries and two bullets had pierced his body. It was noticed that
N
PW 10 had deposed that having regard to the nature and place of the injurie s,
a the position of the firer as against that of the deceased was such that the one who
IO
would have fired the shot, must have been on an elevated position compared to
the victim since the direction of the bullets were from above the chest, going
downwards and backward. Going by the said testimony read along with the
AT
testimony of SI Shanti Bhushan Bhuiya (PW 13), who had deposed that when
he saw the dead body, both the legs were in a folded position, the High Court
arrive d at the conclusion that the appellant had made the deceased to crouch
b
L
down and thereafter, had fired two shots at him.
5. Mr Lalit Kumar, learned counsel for the appellant argued that the High
PI
Court has erred in concurring with the findings of the GSFC and discarding
the defence taken by the appellant that he was compelled to exercise his right
M
of private defence to save his life when suddenly confronted with intruders
C who were armed with weapons and had "gheraoed" him. He alluded to the
topography of the rubber plantation where the incident had taken place, which
was admittedly uneven with depressions and undulations, to urge that merely O
C
because the deceased was found with his legs in a folded position, could not be
a ground to indict the appellant having regard to the fact that even as per the
version of Ct H. Vijay Kumar (PW 1 ), the eyewitness who was patrolling in
T
d the area along with the appellant, the latter was positioned at a higher level vis-
EN
a-vis the deceased and therefore, it was but natural that on his firing from his
rifle, the bullets would have hit the deceased on the upper part of his body as he
was positioned at a lower level. It is in this manner that the learned counsel for
the appellant has sought to explain the path of the bullets that had pierced the
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body of the deceased and indicated that the shots were fired by the appellant
e
taking a downward angle and not face to face.
6. The learned counsel for the appellant also referred to the testimony of
Sapan Das (PW 2) and other prosecution witnesses to submit that villagers in
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the area being close to the border of Bangladesh, used to regularly indulge in
smuggling activities and even the deceased used to do so. He pointed out that
D
f
this fact had not only been deposed by PW 1, but also by SI (M) Suresh Kumar
Dagar (PW 17), who during his cross-examination, had stated in so many words
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that since the deployment of 131 Battalion, B SF and prior to the incident in
question, transborder criminals had attacked BSF personnel seven times and
most of the times, they had to use force by opening fire in self-defence and the
2-
defence of property. In fact , the deceased had been apprehended for indulging in
g smuggling activities and his name features in the list of smugglers maintained
by the BSF. He also adverted to the fact that currency worth 24,700 Bangladeshi
2
Takas was recovered from the shirt pocket of the deceased along with a "Dah"
20
that was found lying at the spot next to his body. The point sought to be made
was that in the above backdrop, the High Court ought not to have discarded the
testimony of PW s 1 and 17 to arrive at a conclusion that this was a case of cold-
h
blooded murder committed by the appellant whereas he had acted in the heat
of the moment, purely in his self-defence.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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7. Per contra, Ms Aishwarya Bhati, learned Additional Solicitor General,
N
appearing for the responde nt Union oflndia, has stoutly defended the findings
returned by the GSFC and upheld by the High Court. She submitted that a
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the High Court cannot be faulted for disbelieving the testimony of PW 1, an
eyewitness to the incident who was on duty at the rubber plantation along with
the appellant on the fateful day. It is her contention that the findings of the GSFC
AT
are sound and reliance has rightly been placed on the testimonies of the local
villagers, namely, Sapan Das (PW 2), another witness by the name of Sapan
Das (PW 3), Tapan Das (PW 4) and Sunil Das (PW 5), who had stated that
the appellant had summoned the deceased and then shot at him twice without b
L
any provocation. She submitted that the testimony of the doctor (PW 10) was a
PI
clincher and left no manner of doubt that the appellant had made the deceased
to kneel down and thereafter fired two shots directly at him, causing his death.
8. We have carefully considered the arguments advanced by the learned
M
counsel for the parties and perused the records, particularly, the testimony of
the material witnesses and the statement of defence made by the appellant. C
O
9. The singular question that requires to be examined in the present appeal
is whether the appellant was entitled to exercise the right of private defence in
C
the given facts and circumstances of the case.
10. We may commence the discussion by first observing that the instinct of
self-preservation is embedded in the DNA of every person. The doctrine of the
T
right to private defence is founded on the very same instinct of self-preservation d

that has been duly enshrined in the criminal law. The provisions that deal with
EN
the right of private defence have been enumerated in Sections 96 to 106 IPC
and fall under Chapter IV that deals with General Exceptions. Section 96 IPC
states that nothing is an offence which is done in the exercise of the right of
private defence. Whether a person has legitimately acted in exercise of the right
EM
of defence given a particular set of facts and circumstances, would depend on

the nuance of each case. For arriving at any conclusion, the court would be e
required to examine all the surrounding circumstances. If the court finds that
the circumstances did warrant a person to exercise the right of private defence,
G
then such a plea can be considered. Section 97 IPC states that every person has
a right of defence of person as well as of property. Section 99 IPC refers to the
acts against which there is no right of private defence and the extent to which
D
the said right can be exercised. On a perusal of the aforesaid provision, it is f

apparent that the rights vested under Sections 96 to 98 and 100 to 106 IPC are
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broadly governed by Section 99 IPC.

11. Section 100 IPC throws light on the circumstances in which the right
of private defence of body can be stretched to the extent of voluntarily causing
2-
death. To claim such a right, the accused must be able to demonstrate that the
circumstances were such that there existed a reasonable ground to apprehend g
that he would suffer grievous hurt that would even cause death. The necessity
2
of averting an impending danger is the core criteria for exercising such a right.
20
Both Sections 100 and 101 IPC define the circumstances in which the right
of private defence of the body extends to causing death or causing any harm
other than death. Provisions of Sections 102 and 105 IPC stipulate the stage
of commencement and continuance of the right of private defence of the body
and property, respectively and state that the said right commences as soon as a h
reasonable apprehension of danger to the body arises from an attempt or threat
~cccc®
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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to commit the offence, though such an offence may not have been committed.
N
The provisions state that it continues as long as such an apprehension or danger
a to the body continues.
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12. In Rizan v. State of Chhattisgarh 2 , this Court has observed that the
accused need not prove the existence of private self-defence beyond reasonable
doubt and that it would suffice if he could show that the preponderance of
AT
probabilities is in favour of his plea, just as in a civil case.
13. In State of M.P. v. Ramesh 3 , it was observed that: (SCC pp. 710-11,
b para 11)
L
"11 . ... A plea of right of private defence cannot be based on surmises
and speculation. While considering whether the right of private defence is
PI
available to an accused, it is not relevant whether he may have a chance to
inflict severe and mortal injury on the aggressor. In order to find whether the
M
right of private defence is available to an accused, the entire incident must
be examined with care and viewed in its proper setting ... To claim a right
C
of private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable grounds
for apprehending that either death or grievous hurt would be caused to him. O
C
The burden is on the accused to show that he had a right of private defence
which extended to causing of death. Sections 100 and 101 IPC define the
limit and extent of right of private defence."
T
d
14. Section 105 of the Evidence Act, 1872 states that the burden of proof
EN
rests with the accused who takes up the plea of self-defence. In the absence of
proof, the court will not be in a position to assume that there is any truth in
the plea of self-defence. Thus, it would be for the accused to adduce positive
evidence or extract necessary information from the witnesses produced by the
EM
prosecution and place any other material on record to establish his plea of
e private defence. In James Martin v. State of Kerala 4 , it has been observed by
this Court as under: (SCC pp. 212-13, para 13)
"l 3 . ... An accused taking the plea of the right of private defence
G
is not necessarily required to call evidence; he can establish his plea by

reference to circumstances transpiring from the prosecution evidence itself.
D
The question in such a case would be a question of assessing the true effect
f of the prosecution evidence, and not a question of the accused discharging
JU
any burden. Where the right of private defence is pleaded, the defence
must be a reasonable and probable version satisfying the court that the
harm caused by the accused was necessary for either warding off the attack
or for forestalling the further reasonable apprehension from the side of
2-
the accused. The burden of establishing the plea of self-defence is on the

g accused and the burden stands discharged by showing preponderance of
2
probabilities in favour of that plea on the basis of the material on record.

(See Munshi Ram v. Delhi Admn. 5, State of Gujarat v. Bai Fatima 6 , State of
20
2 (2003) 2 sec 661 : 2003 sec (Cri) 664

3 (2005) 9 sec 705 : 2005 sec (Cri) 1443
h 4 (2004) 2 sec 203: 2004 sec (Cri) 487
5 AIR 1968 SC 702
6 (1975) 2 sec 7: 1975 sec (Cri) 384
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

U.P. v. Mohd. Musheer Khan 7 and Mohinder Pal Jolly v. State of Punjab 8
N
... The accused need not prove the existence of the right of private defence
beyond reasonable doubt. It is enough for him to show as in a civil case a
IO
that the preponderance of probabilities is in favour of his plea."
15. In the captioned decision, reliance has been placed on the observations
AT
made by this Court in Salim Zia v. State of U.P. 9 , wherein it has been held as
under: (SCC p. 654, para 9)
"9. . . . It is true that the burden on an accused person to establish
b
L
the plea of self-defence is not as onerous as the one which lies on the
prosecution and that while the prosecution is required to prove its case
PI
beyond reasonable doubt, the accused need not establish the plea to the
hilt and may discharge his onus by establishing a mere preponderance of
M
probabilities either by laying basis for that plea in the cross-examination
of prosecution witnesses or by adducing defence evidence."
C
16. In Dharam v. State of Haryana 10 , this Court had the occasion to
examine the scope of the right of private defence and had made the followingO
C
pertinent observations: (SCC pp. 246-47, para 18)
"18. Thus, the basic principle underlying the doctrine of the right
of private defence is that when an individual or his property is faced
T
with a danger and immediate aid from the State machinery is not readily d
available, that individual is entitled to protect himself and his property.
EN
That being so, the necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be averted or which is
EM
reasonably apprehended and should not exceed its legitimate purpose. We

may, however, hasten to add that the means and the force a threatened e
person adopts at the spur of the moment to ward off the danger and to save
himself or his property cannot be weighed in golden scales. It is neither
possible nor prudent to lay down abstract parameters which can be applied
G
to determine as to whether the means and force adopted by the threatened

person was proper or not. Answer to such a question depends upon a host
D
of factors like the prevailing circumstances at the spot, his feelings at the f
relevant time, the confusion and the excitement depending on the nature of
JU
assault on him, etc. Nonetheless, the exercise of the right of private defence
can never be vindictive or malicious. It would be repugnant to the very
concept of private defence."
2-
17. In Buta Singh v. State of Punjab 11 , this Court had emphasised that a
person who is apprehending death or bodily injury, cannot weigh in golden g
2
scales on the spur of the moment and in the heat of circumstances, the number
of injuries required to disarm the assailants who were armed with weapons.
20
1 (1977) 3 sec 562: 1911 sec (Cri) 565

8 (1 979) 3 sec 30 : 191 9 sec (Cri) 635
9 (1979) 2 sec 648: 1919 sec (Cri) 568 h
10 (2001) 15 sec 241 : c2010) 4 sec (Cri) 617
11 (1991) 2 sec 612: 1991 sec (Cri) 494
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Referring to the said decision, this Court had made the following observations
N
in James Martin 4 : (James Martin case4 , SCC pp. 214-15, paras 17 & 20)
IO
a "17 . ... In moments of excitement and disturbed mental equilibrium
it is often difficult to expect the parties to preserve composure and use
exactly only so much force in retaliation commensurate with the danger
AT
apprehended to him. Where assault is imminent by use of force, it would
be lawful to repel the force in self-defence and the right of private
defence commences, as soon as the threat becomes so imminent. Such
b situations have to be pragmatically viewed and not with high-powered
L
spectacles or microscopes to detect slight or even marginal overstepping.
PI
Due weightage has to be given to, and hypertechnical approach has to be
avoided in considering what happens on the spur of the moment on the
spot and keeping in view normal human reaction and conduct, where self-
M
preservation is the paramount consideration. But, if the fact situation shows
c that in the guise of self-preservation, what really has been done is to assault
the original aggressor, even after the cause of reasonable apprehension
has disappeared, the plea of right of private defence can legitimately be O
C
negatived. The court dealing with the plea has to weigh the material to
conclude whether the plea is acceptable. It is essentially, as noted above,
a finding of fact.
T
d * * *
20. The right of private defence is essentially a defensive right
EN
circumscribed by the governing statute i.e. IPC, available only when the
circumstances clearly justify it. It should not be allowed to be pleaded
or availed as a pretext for a vindictive, aggressive or retributive purpose
EM
of offence. It is a right of defence, not of retribution, expected to repel

e unlawful aggression and not as a retaliatory measure. While providing for
exercise of the right, care has been taken in IPC not to provide and has not
devised a mechanism whereby an attack may be a pretence for killing. A
right to defend does not include a right to launch an offensive, particularly
G
when the need to defend no longer survived."

D
18. The situation in which the plea of a right to private defence would be
f available to the accused was discussed by this Court in Bhanwar Singh v. State
JU
of M.P. 12 and it was held thus: (SCC pp. 676 & 681, paras 50 & 60)
"50. The plea of private defence has been brought up by the appellants.
For this plea to succeed in totality, it must be proved that there existed a
2-
right to private defence in favour of the accused, and that this right extended
to causing death. Hence, if the court were to reject this plea, there are
g
two possible ways in which this may be done. On one hand, it may be
2
held that there existed a right to private defence of the body. However,
20
more harm than necessary was caused or, alternatively, this right did not
extend to causing death. Such a ruling may result in the application of
Section 300 Exception 2, which states that culpable homicide is not murder
h
4 James Martin v. State of Kerala, (2004) 2 SCC 203: 2004 SCC (Cri) 487
12 c2008) 16 sec 657 : c2010) 4 sec (Cri) 378
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

if the offender, in the exercise in good faith of the right of private defence
N
of person or property, exceeds the power given to him by law and causes
the death of the person against whom he is exercising such right of defence a
IO
without premeditation, and without any intention of doing more harm than
is necessary for the purpose of such defence. The other situation is where,
on appreciation of facts, the right of private defence is held not to exist at all.
AT
* * *
60. To put it pithily, the right of private defence is a defence right. It
is neither a right of aggression or of reprisal. There is no right of private b
L
defence where there is no apprehension of danger. The right of private
defence is available only to one who is suddenly confronted with the
PI
necessity of averting an impending danger not of self-creation. Necessity
must be present, real or apparent."
M
19. The principles underlying the doctrine of right to private defence have
been neatly summed up in the captioned case in the following words: (Bhanwar c
Singh case 12 , SCC pp. 681-82, para 61)
O
"61. The basic principle underlying the doctrine of the right of private
C
defence is that when an individual or his property is faced with a danger
and immediate aid from the State machinery is not readily available, that
individual is entitled to protect himself and his property. That being so, the
T
necessary corollary is that the violence which the citizen defending himself d
or his property is entitled to use must not be unduly disproportionate to the
EN
injury which is sought to be averted or which is reasonably apprehended

and should not exceed its legitimate purpose. We may, however, hasten to
add that the means and the force a threatened person adopts on the spur
EM
of the moment to ward off the danger and to save himself or his property
cannot be weighed in golden scales. It is neither possible nor prudent to e
lay down abstract parameters which can be applied to determine as to
whether the means and force adopted by the threatened person was proper
or not. Answer to such a question depends upon a host of factors like the
G
prevailing circumstances at the spot, his feelings at the relevant time; the
confusion and the excitement depending on the nature of assault on him,
D
etc. Nonetheless, the exercise of the right of private defence can never be f
vindictive or malicious. It would b e repugnant to the very concept of private
JU
defence. (See Dharam v. State of Haryana 10 )"

20. In Raj Singh v. State of Haryana 13 , supplementing the view of R.
Banumathi, J. who had authored the decision on behalf of a three-Judge Bench,
2-
T.S. Thakur, J. had the following to state on the application of the provisions
of Exception 2 to Section 300 IPC where an accused sets up the right to private g
2
defence : (SCC pp. 280-81, paras 32-33)

"32. A conjoint reading of the provisions of Sections 96 to 103 and
20
Exception 2 to Section 300 IPC leaves no manner of doubt that culpable

homicide is not murder if the offender, in the exercise in good faith of the
12 Bhanwar Singh V. State of M.P. , (2008) 16 sec 657 : (2010) 4 sec (Cri) 378 h
10 c2001) 15 sec 241 : c2010) 4 sec (Cri) 617
13 (2015) 6 sec 268 : c2015) 4 sec (Cri) 135
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

right of private defence of person or property, exceeds the power given
N
to him by law and causes the death of the person against whom he is
a exercising such right of defence, provided that such right is exercised
IO
without premeditation and without any intention of doing more harm than
is necessary for the purpose of such defence. A fortiori in cases where an
accused sets up right of private defence, the first and the foremost question
AT
that would fall for determination by the court would be whether the accused
had the right of private defence in the situation in which death or other
harm was caused by him. If the answer to that question is in the negative,
b
L
Exception 2 to Section 300 IPC would be of no assistance. Exception 2
presupposes that the offender had the right of private defence of person
PI
or property but he had exceeded such right by causing death. It is only in
case answer to the first question is in the affirmative viz. that the offender
had the right of defence of person or property, that the next question viz.
M
whether he had exercised that right in good faith and without premeditation
C and without any intention of doing more harm than was necessary for the
purpose of such defence would arise. Should answer to any one of these
O
questions be in the negative, the offender will not be entitled to the benefit
C
of Exception 2 to Section 300 IPC.
33. Absence of good faith in the exercise of the right of private defence,
premeditation for the exercise of such right and acts done with the intention
T
d of causing more harm than is necessary for the purpose of such defence
would deny to the offender the benefit of Exception 2 to Section 300
EN
IPC. The legal position on the subject is fairly well settled by a long line
of decisions of this Court to which copious reference has been made by
Banumathi, J. No useful purpose would, therefore, be served by referring
to them over again. All that need be said is that whether or not a right of
EM
e private defence of person or property was available to the offender is the

very first question that must be addressed in a case of the present kind while
determining the nature of the offence committed by the accused, whether
or not a right of private defence was available to an offender is, in turn, a
G
question of fact or at least a mixed question oflaw and fact to be determined

in the facts and circumstances of each individual case that may come up
D
before the court." (emphasis in original)

f
21. To sum up, the right of private defence is necessarily a defensive right
JU
which is available only when the circumstances so justify it. The circumstances
are those that have been elaborated in the IPC. Such a right would be available
to the accused when he or his property is faced with a danger and there is
2-
little scope of the State machinery coming to his aid. At the same time, the
g courts must keep in mind that the extent of the violence used by the accused
2
for defending himself or his property should be in proportion to the injury

apprehended. This is not to say that a step to step analysis of the injury that was
20
apprehended and the violence used is required to be undertaken by the court;

nor is it feasible to prescribe specific parameters for determining whether the
steps taken by the accused to invoke private self-defence and the extent of force
h used by him was proper or not. The court' s assessment would be guided by
several circumstances including the position on the spot at the relevant point
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

in time, the nature of apprehension in the mind of the accused, the kind of
N
situation that the accused was seeking to ward off, the confusion created by the
situation that had suddenly cropped up resulting in the knee-jerk reaction of the a
IO
accused, the nature of the overt acts of the party who had threatened the accused
resulting in his resorting to immediate defensive action, etc. The underlying
factor should be that such an act of private defence should have been done in
AT
good faith and without malice.
22. Being mindful of the aforestated parameters, we may examine the plea
of self-defence raised by the appellant in the attending facts and circumstances b
L
of the case. The factum of rampant smuggling in the area has not been disputed
by either side. The records reveal that border fencing in the area in question had
PI
been erected just a few months before the incident had taken place. Prior to that,
many villagers used to freely indulge in smuggling activities by crossing over
M
to the Bangladesh side and vice versa. A couple of months after the fencing
had been fixed along the international border with Bangladesh, there was an
C
incident where smugglers had assaulted one of the m embers of the Battalion
O
when he was trying to prevent them from crossing the border. That the deceased
used to indulge in smuggling activities and his name was mentioned in the list
C
of smugglers maintained by the BSF, is also a matter of record.
23. Viewed in the above setting, we may proceed to examine the statement
T
by way of defence made by the appellant which has been extracted at some
d
length in the impugned judgment. He has stated at the relevant time, that
EN
he was posted at BOP Bamutia, Tripura, which is adjoining to the border

of Bangladesh. While on patrolling duty in the early hours of 5-6-2004, he
admitted to have fired from his rifle at one N andan Deb, who died as a result
of the firearm injuries. The version of the appellant was that when he was
EM
patrolling along with Ct H. Vijay Kumar (PW 1), in the rubber plantation, an
area with depressions and undulations on the ground surface, he had noticed e
6-7 persons crossing over from Bangladesh by cutting across the international
border. They had tried to "gherao" him and PW 1. They were armed with
G
weapons like "bhala", "dah" and "lathi". Seeing himself cornered, the appellant
started to retreat. But the intruders kept closing him and were in or at a
D
distance often yards. Faced with such a precarious situation where the appellant
gathered an impression that the intruders were going to attack him any minute, f
JU
fearing for his life, the appellant fired two rounds in the air. This did not deter
the intruders who kept on inching closer to the appellant. When one of the
intruders, namely, N andan Deb came as close as 3-4 yards from him and tried
to attack him by raising his "Dah", apprehending an imminent and perceptible
2-
threat to his life, the appellant fired at him due to which he fell on the ground.
While, the other miscreants fled away to Bangladesh, N andan Deb collapsed g
2
at the spot and was declared dead.

24. Having scanned the testimony of the prosecution witnesses, we are
20
of the opinion that the testimony of Ct H. Vijay Kumar (PW 1) cannot be

completely discarded, as done by the GSFC. He has deposed that when he and
the appellant were patrolling in the area on the relevant date, they had seen three
persons crossing the international border from Bangladesh side at 8.00 a.m. h
On noticing the intruders, they had challenged them to stop at a distance of 50
~cccc®
IONLINEf
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

meters. But the intruders ran away in the direction of Bangladesh. At this, PW 1
N
and the appellant had turned back and while continuing with their patrolling
a duty, they saw 6-7 persons rushing towards them from the side of Bangladesh,
IO
carrying weapons like "dah", "bhala" and "lathi" in their hands. They managed
to surround the appellant, who was closer to them. Apprehending an imminent
and real threat to his life, the appellant had fired from his rifle at the intruders
AT
in self-defence and the deceased who was a part of the group, sustained bullet
injuries and had fallen on the ground. The trajectory of the bullets indicates
that the firing took place from a higher position vis-a-vis the deceased. But that
b
L
does not necessarily mean that the appellant had summoned the deceased and
made him crouch on the ground before shooting at him, as assumed by the High
PI
Court. The uneven terrain of the rubber plantation with slopes and undulating
surface would offer a plausible alternate explanation for the trajectory of the
M
bullets fired by the appellant at the deceased. If the former was positioned at
an elevated spot, then it was inevitable that the bullets would have hit the chest
C
of the deceased who was down below the slope, and made a path downwards
in the body. Thus the preponderance of probabilities would swing in favour of
the plea of self-defence taken by the appellant. O
C
25. On a broad conspectus of the events as they had unfolded, we are
of the opinion that the right of private self-defence would be available to the
appellant keeping in mind preponderance of probabilities that leans in favour
T
d of the appellant. In a fact situation where he was suddenly confronted by a

EN
group of intruders, who had come menacingly close to him, were armed with
weapons and ready to launch an assault on him, he was left with no other
option but to save his life by firing at them from his rifle and in the process
two of the shots had pierced through the deceased, causing his death. We are
EM
therefore of the opinion that the appellant ought not to have been convicted
e for having committed the murder of the deceased. Rather, the offence made
out is of culpable homicide not amounting to murder under Exception 2 to
Section 300 IPC, thereby attracting the provisions of Section 304 IPC.
G
26. In view of the aforesaid discussion, the appeal is partly allowed and the
impugned judgment 1 is modified to the extent that the appellant is held guilty
D
for the offence of culpable homicide, not amounting to murder as contemplated

f under Exception 2 to Section 300 IPC. Records reveal that by the time the
JU
appellant was granted bail by this Court on 4-7-2016 14, he had already suffered
incarceration for a period of over eleven years, which given the peculiar facts
and circumstances of the present case, is considered sufficient punishment
for the offence. The appellant is accordingly set free for the period already
2-
undergone and the bail bonds stand discharged.

g 27. The appeal is disposed of on the above terms.
2
20
h
l Mahadev v. Union of Ind ia, 2011 SCC OnLine Del 1106
14 Mahadev v. Union of India, 2016 SCC OnLine SC 1961

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544 SUPREME COURT CASES (2022) 6 sec

officer (Paras 21 and 22) d

Avadhesh Prakash v. Union of India, (2022) 6 SCC 559, explained

B. Armed Forces - Discharge/Dismissal/Removal from service/

Termination of service - Concurrent findings of fact with regard to charges

- AFT by impugned judgment reducing sentence of three years of RI and

Reiterated that there are inherent limitations on jurisdiction of Supreme Court

ignored or appreciation of evidence was erroneous f

- On facts held, findings recorded by GCM which were affirmed by

Impugned judgment set aside - Respondent, held, entitled to all pensionary

- (i) Respondent alleged to have agreed to proposal for addition of two

more tendering stations in addition to existing 14 tendering stations with intent

UNION OF INDIA v. S.K. SAHNI 545

or below standard - Moreover, CL 6(a)(iv) in tender enquiry of APO which is

e of India, 2011 SCC OnLine AFT 79, considered

Sanjay Jain, Additional Solicitor General and R. Balasubramanian, Senior Advocate

1. (2022) 6 SCC 559, Avadhesh Prakash v. Union of India 549g,550c,551a

2. 2016 SCC OnLine SC 1952, Union of India v. S.K. Sahni 549e

546 SUPREME COURT CASES (2022) 6 sec

The Judgment of the Court was delivered by

(ii) Rigorous imprisonment for three years subject to confirmation. e

4. The respondent was commissioned in the Indian Army on 16-12-1967 f

in May 2003. The respondent was thereafter appointed as Director General,

5. An anonymous complaint was received in the Directorate of Supplies

priority for perusal of the Directorate. It is contended by the respondent that he

UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 547

(vii) Any irregularity with regard to permitting a civil contractor to

e 7. The court of inquiry only recommended for award of recordable censure

f 24-6-2006, and thereafter, the GOC-in-C directed a disciplinary action against

8. As contended by the respondent, the GOC-in-C, despite

acts of :financial consideration qua the respondent. The respondent, on attaining

548 SUPREME COURT CASES (2022) 6 sec

13. On 30-7-2010, a convening order, directing assembly of the GCM f

Advocate General (hereinafter referred to as "JAG") was allegedly junior to

UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 549

Punjab and Haryana at Chandigarh to this Court.

18. We have heard Shri R. Balasubramanian, learned Senior Counsel

f appearing on behalf of the respondent.

of this Court in Avadhesh Prakash v. Union of India 6 . He submitted that from

the respondent. He therefore submitted that the GCM, which is constituted in

1 S. K. Sahni v. Union of India, 2013 SCC OnLine AFT 467

550 SUPREME COURT CASES (2022) 6 sec

objections, it will be relevant to refer to sub-rule (2) of Rule 40 of the Army

authority suffers from arbitrariness, irrationality or unreasonableness, it would

UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 551

d in Criminal Appeal No. 2169 of 2014) be dismissed.

filed by the appellants be dismissed.

AFT and the materials placed on record.

552 SUPREME COURT CASES (2022) 6 sec

Narsingpur, Madhya Pradesh and Narsingpur in Madhya Pradesh in addition

with an intent to defraud.

the Chief Director of Purchase (hereinafter referred to as "CDP"), APO. The

UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 553

Exhibit Page Para

was categorical in his statement that he was aware of the Consolidated

Trade & Investment Facilitation Corporation Ltd. for "procurement of 1000

MT Gram Crushed (Kibbled) against A/T even no dated 5-12-2007 from

554 SUPREME COURT CASES (2022) 6 sec

No. 3 of 1987 permitted inclusion of additional tendering station subject to

that on account of addition of two tendering stations, neither any monetary

UNION OF INDIA v. S.K. SAHNI (B.R. Gavai, J.) 555

at the place, date and time to be fixed by the Presiding Officer to