101. Keeping in view the discussion made hereinabove to sum up –
(1) The applicant was not permitted to participate in BOI proceeding in utter disregard of principle of natural justice and regulation.
(2) No time was granted to him to the extent of 96 hours in pursuance of Regulation 167. The Regulation is mandatory and its violation amounts to violation of principle of natural justice and affect the right of the accuse to avail reasonable opportunity.
(3) The allegation that the Prosecutor and the President belong to the same establishment/unit which may result likelihood of bias has not been considered in the light of Prithi Pal Singh (supra) and Ranjeet Kumar (supra). Hon'ble Supreme Court held that minimum requirement of natural justice is that Court Martial proceedings must contain impartial persons acting fairly without bias. Likelihood of bias may be tested with reasonableness of the apprehension in that regard in the mind of party.
(4) The objection raised by the applicant should have not been rejected lightly without taking into account the judgment of the Hon'ble Apex Court (supra). No reasonable finding was recorded in view of clear chit given by the divers at Goa and later on Sea Hawk State II stage. Why the same diver at Sea Hawk State II after under water checking between 08 to 12 Dec. has recorded the finding that everything was in order and later on changed his views while diving on 15.12.2008 with contrary report is an important question. No action has been taken against the diver Pradeep Kumar or S. P. Singh for their report given on respective dates.
(5) Report of the Dry Dockyard Agency who repaired the propeller has not been brought on record to assess the actual damage caused to the propeller. Photograph does not seem to be genuine evidence when the propeller was repaired by the competent technicians and later on used in the ship in question. Report of the technician who repaired the propeller is an important piece of evidence which has not been taken into record. The charges framed against the applicant seems to be vague and covered the period from 27/11 to 15/12. Accordingly, charge-sheet seems to suffer from vagueness and is not in true spirit of Regulation 155 (supra).
(6) Charge Nos. 2 to 6 seem to correlate to each other and it is not understandable why the charge have been broken up though it has been stated that being Captain of the ship he was responsible to navigate the ship in accordance with the order/guidelines passed from time to time which as alleged to be not complied with and how and in what manner the applicant may be held guilty of negligence in the light of interpretative law has not been dealt with (supra).
(7) There is variation with regard to damage caused to the propeller. A close scrutiny of letter sent by the convening authority to Vice Admiral of Navy seeking approval for Court Martial and subsequent evidence led by the parties shows the degree of damage differently. Once the repair done by the Dry Dockyard Agency of the same propeller was available then Vice Admiral should have been informed according to the report of the technicians with regard damage cause but the same has not been done. Commander Ramesh Kumar seems to forward the letter in a hasty manner.
(8) Keeping in view the Presidential notification dt. 21.04.2009 with regard to applicant's promotion to the post of Commander and also keeping with the fact that he was being paid salary of the Commander and holding the said post from 01.04.2009, it was not justified on the part of the Court Martial to treat the applicant as Lt Commander and prosecute him.
(9) Subordinate authority has not been empowered to demote the applicant in view of the Presidential notification. Accordingly, order oral or written passed by them in contravention of notification or the decision taken by the Government of India suffers from jurisdictional error and is nullity in law.
(10) It is humiliating to note that in a customary stripe vetting on INS Agray the promotion Genform dated 01.04.2009 was issued by the INS Agray after having duly promoted to the substantive rank of Commander. The related pleading in Para 4.9 and para 4.38 has not been categorically denied. Para 4.38 contains categorical pleading that in view of the notification dated 21.04.2009 and Genform of 01.04.2009 the applicant permitted for withdrawing the full pay and allowances of Commander rank. Accordingly the trial of Commander should have been done in accordance with the provisions contained in sub-section (15) of section 97 of the Navy Act and not otherwise. This goes to very root of the issue.
(11) The Court Martial with a majority or unanimously have not discussed the findings keeping in view the letter and spirit of section 115, 116 and 117 read with Sec. 124 (supra) assigning reason. The order is cryptic and unreasoned merely relying upon the prosecution sum up by the TJA. Accordingly, verdict in the present case by the Court Martial suffers from vice of arbitrariness and not sustainable in view of settled proposition of law(supra).
(12) As held, the procedure contained in the Regulation (supra) with regard to navigational trial seems to has not been followed by passing a reasoned order while recording finding by the Court Martial which hits the root of the charges. Hence the entire proceeding by the Court Martial suffers from substantial illegality and vitiates.India is overdue for a stem-to-stern overhaul of its military and naval justice system. Perhaps decisions like this will cause the light to go on for those in charge.
102. While parting with the case we would like to observe that the JAG Branch of all the three wings of the Armed Forces seems to be not equipped with broader knowledge of constitution and law as it stands. It further appears that they are not well versed with interpretative jurisprudence as well as administrative law. Hence it shall be appropriate that JAG Branch of all the three wings of the Armed Forces must be trained with aid of eminent lawyers and judges to cope with the litigation in Tribunal or Court. [Emphasis added.]
Hat-tip to contributor Major (R) Navdeep Singh for calling attention to this important decision.
The observations of the Tribunal as under deserves attention: -
ReplyDeleteWhile parting with the case we would like to observe that the JAG Branch of all the three wings of the Armed Forces seems to be not equipped with broader knowledge of constitution and law as it stands. It further appears that they are not well versed with interpretative jurisprudence as well as administrative law. Hence it shall be appropriate that JAG Branch of all the three wings of the Armed Forces must be trained with aid of eminent lawyers and judges to cope with the litigation in Tribunal or Court.
The unique feature is that even criminal appeals like the present one is heard by a AFT bench having one judicial member and one administrative member. The administrative member, as in the present case, is not even required to possess the basic qualification in law let alone define and distinguish amongst constitutional law, administrative law and criminal jurisprudence etc. Thus on merits also the observation falls short of desired judicial eloquence.
There is no dispute that all orders decisions etc have to be bound by reasons. Similarly there is no dispute that further training would refine the JAG's Department and will further the cause of dispensing justice and on merits this might be abad case for prosecution. But the Hon'ble Tribunal advocating for training ought to have also notice the judgment of the Constitution Bench of Supreme Court S.N. Mukherjee v. Union of India(1990) 4 SCC 594 negativing the requirement for recording reasons by court-martial. This judgment is a research work on administrative law and the least the Tribunal was expected to know and note.
Its a personal view, unfortunately, the AF Tribunal experience has been sad and better could be having only judicial members adjudicating.
Ajeen (ajeenkumark@gmail.com)