In W.P.(C) 4307/2022-DEL HC- Proceedings before Courts of Inquiry are in nature of “fact finding enquiry” conducted at pre-investigation stage and not adversarial proceedings: Delhi HC Justices Suresh Kumar Kait & Saurabh Banerjee [03-06-2022]

Read Order:  COL JPS BAKSHI AND COL PUNEET SHARMA Vs. UNION OF INDIA AND ORS 

Mansimran Kaur

New Delhi, June 8, 2022:  The Delhi High Court has dismissed the petitions instituted by the petitioners(Officers) against the impugned order  passed by the Armed Forces of Tribunal and observed that proceedings before the Courts of Inquiry are in the nature of fact finding enquiry conducted at a pre-investigation stage and are not adversarial proceedings. 

The Division Bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee opined that furnishing the petitioners-Officers, the copy of disciplinary proceedings or each and every document produced before the Presiding Officer during Court of Inquiry, was not mandatory, as the proceedings under the Court of Inquiry were in the nature of preliminary enquiry.

Factual background of the case was such that the petitioner – COL Bakshiand petitioner- COL Puneet sharma took over the command of 236 Engineer Regiment when the regiment was deployed in Counter Insurgency  Operations in Guwahati.  The Regiment was allotted six additional (special) construction works of constructing security wall/fence around various Military Units/Installations in the Corps zone of HQ 11. It was the case of the petitioners that the deadline for execution of the aforesaid work was stipulated without consulting them and since they both were also in the process of familiarizing with the location, the short period of six months created huge pressure and stress on the unit of petitioners.

 However, through a letter the respondents alleged financial impropriety by the petitioner’s unit. In pursuance of the same, the petitioners were directed to refund the excess amount received by them.  Thereafter, an attachment order was also issued removing the petitioners from their permanent place of posting and attaching those to different units at a faraway place. The same was assailed by the petitioners by stating that the Chief of Army Staff was the only competent authority to issue the attachment orders and as the same have not been issued by him and therefore, be declared illegal and nullity under law. Subsequently, the inquiry was also challenged on the ground of it being in violation of principles of natural justice and the impugned order of the Armed Force Tribunal was also challenged. 

After hearing the submissions of parties at length and after pursuing all the material on record, the Court  took into consideration Section 22 and Section 180 of the Army Rules, 1954. In view of the same, the Court stated that the contention of the petitioners was that out of list witnesses, only few witnesses were permitted to be examined and also 50 % of the questions put by them in cross – examination were declared irrelevant. 

 The Bench noted that in a plethora of decisions the Apex Court has held that proceedings before the Courts of Inquiry are in the nature of fact finding enquiry conducted at a pre-investigation stage and are not adversarial proceedings. The petitioners shall have complete right to examine and cross-examine the witnesses which they deem necessary, during disciplinary proceedings. 

Next, the Court dealt with the contention of the petitioners pertaining to the fact that copies of the key documents or inspection thereof were provided to them  and opined that furnishing the petitioner the copy of disciplinary proceedings or each and every document produced before the Presiding Officer during Court of Inquiry, was not mandatory , as the proceedings under the Court of Inquiry were in the nature of preliminary enquiry for the purpose of collecting evidence and report and not final in nature. Thus, there appeared to be no violation of provisions of Section 22 or Section 180 of the Army Rules, 1954, the Court noted. 

In view of the aforesaid findings, the Court observed that there was no reason found to intervene with the impugned order and accordingly, the petitions were dismissed.