Devinder Gupta, J.@mdashThe petitioners are Junior Commissioned Officers and are presently posted in Detachment Base Workshop Group EME No. 16 (Inspection) at Delhi Cantt. Their case is that between February, 1998 to October, 1998 there were two inquiries held in the Unit, based on their complaint made against their immediate superior (respondent No. 7). They were called as witnesses and during this period were attached to another Unit within Delhi. On 7.11.1998 some proceedings under Army Rule 22 were initiated against them by respondent No. 6, who framed charge sheet against them under Sections 63, 64 and 65 of the Army Act. They were neither supplied with the copy of the charge sheet nor other connected documents. They were made to sign some papers. The matter was thereafter adjourned to 9.11.1998 for purposes of recording summary of evidence under Army Rule 23. Four applications were submitted by the petitioners on 8.11.1998. The petitioners claimed that as the proceedings against them were being held in violation of Army Act, Army Rules and Regulations, they had no option but to approach this Court for appropriate directions. The petitions were filed on 8.11.1998 and came up before the Court on 10.11.1998 when notice was directed to be issued to the respondents. Relevant record was directed to be kept ready in Court. Learned Counsel for the parties were heard on 18.11.1998.
2. GOC-in-C, Delhi Area passed an order for convening of Court of Inquiry against Lt.Col.(T.S) N.I. Singh to investigate the allegations made by some Junior Commissioned Officers and Other Ranks (JCO''s/OR''s) of Detachment No. 16, Technical Group EME, Delhi Cantt. which they had directly sent to the defense Minister. Record further reveals that the petitioners were amongst the other signatories in the complaint and they were examined as witness Nos. 1 and 7 during Court of Inquiry Proceedings conducted against the said Lt. Col. (TS) N.I. Singh. Report of the Court of Inquiry was placed before GOC-in-C, Delhi Area, who, on 29.8.1998 forwarded the same to GOC-in-C, Western Command with his directions/ recommendations. On 16.9.1998 after perusing of record and report of the Court of inquiry proceedings along with the the recommendations/directions of the GOC-in-C Delhi Area concurred with the directions/recommendations and directed that disciplinary action be taken against the petitioners for the following lapses:
"(a) Inciting JCO''s and men for collective in-subordination.
(b) Levelling false charges against JC-31942X Lt.Col (TS) N.I. Singh.
(c) Violating the laid down channel while seeking redressal of their grievances."
3. Pursuant to the aforementioned directions/ recommendations of GOC-in-C, Western Command, it appears that the Commanding Officer on and from 7.11.1998 proceeded with the hearing of the charge as per the procedure laid down in Chapter V of Army Rules, 1954. The Commanding Officer appears to have dispensed with the procedure laid down in Sub-rule (1) of Rule 22 of hearing of the charge in the presence of the accused and of examining the witnesses in his presence. He straightaway proceeded to direct that the summary of evidence be recorded. Rule 22 of the Army Rules, 1954, as amended by Amendment Rules, 1993 reads:
"22. Hearing of charge.--(1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross examine any witness against him, and to call such witness and make such statement as may be necessary for his defense:
Provided that where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub-rule (1).
(2) The Commanding Officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed and may do so if he is satisfied that the charge ought not to be proceeded with;
Provided that the Commanding Officer shall not dismiss a charge which he is debarred to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein.
(3) After compliance of Sub-rule (1), if the Commanding Officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time-
(a) dispose of the case u/s 80 in accordance with the manner and form in Appendix III; or
(b) refer the case to the proper superior Military Authority; or
(c) adjourn the case for the purpose of having the evidence reduced to writing; or
(d) if the accused is below the rank of Warrant Officer, order his trial by Summary Court Martial:
Provided that the Commanding Officer shall not order trial by a Summary Court Martial without a reference to the officer empowered to convene a District Court Martial or on active service a Summary General Court Martial for trial of the alleged offender unless -
(a) the offence is one which he can try by a Summary Court Martial without any reference to that officer; or
(b) he considers that there is grave reason for immediate action and as such reference cannot be made without detriment to discipline.
(4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the Commanding Officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge."
4. During course of hearing, learned Counsel for the respondents frankly and rightly so conceded that as the petitioners were not allowed any opportunity to cross examine the witnesses, whose statements were recorded during the Court of Inquiry proceedings, as per requirement of Rule 180 of the Army Rules, it was not permissible for the Commanding Officer to have dispensed with the requirement of Sub-rule (1) of Rule 22. According to instructions it was stated that in the case of petitioners Sub-rule (1) of Rule 22 will be duly complied with including the hearing of charges by the Commanding Officer in the presence of the petitioners with full opportunity to them to cross examine witness against them and to call such witnesses and make such statements as may be necessary for their defense.
5. Learned Counsel for the petitioners vehemently contended that the statutory right, which is available to the petitioners under Rule 180 has been denied to them. No opportunity was afforded to them of being present throughout the Court of Inquiry and of making statement or of giving evidence and to cross examine the witnesses, whose evidence affected the petitioners character or military reputation. They were also denied opportunity of producing evidence. As such all proceedings ta ken thereafter are void. In case any action is proposed to be taken, the petitioners will have to be afforded opportunity at the stage of Court of Inquiry proceedings and also subsequent thereto.
Army Rule 180, which is in Chapter VI, reads as under:
"180. Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross examining any witness whose evidence, in his opinion, affects his character of military reputation. The Presiding Officer of the Court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified, receives notice of and fully understands his rights, under this rule."
7. Needless to add that convening of the Court of Inquiry was not against the petitioners but was only to investigate the allegations, which had been leveled by the Junior Commanding Officers and others ranks of the petitioners'' unit including the petitioners. The petitioners were examined as witnesses therein. This Court of Inquiry had not been convened to look into the conduct or military reputation of the petitioners but to go into the allegations made in the complaint against their superior officer. Only as a result of the evidence collected during the Court of Inquiry proceedings and when the same proceedings were presented before the Convening Authority that he formed an opinion that action deserves to be taken against the petitioners, which recommendations were forwarded to the higher authorities, namely, GOC-in-C, Western Command, who concurred with the recommendations and directions. Pursuant to those directions, the Commanding Officer proceeded to hear of charge against the petitioners. Obviously the Commanding Officer, while hearing charge is required to comply with Rule 22. The respondents have frankly stated that hearing of charges will be in the presence of the petitioners during which the petitioners will have full and ample opportunity to cross examine witnesses, make such statement, as may be deemed fit and necessary, and lead their evidence.
8. Learned Counsel for the petitioners placing reliance upon the decisions of the Supreme Court in
9. We are of the view that in the light of the amendment to the Army Rules 22 and 182 by Army (Amendment) Rules, 1993 on and from 6.12.1993 and in view of the decision of the Supreme Court in
10. In Major A. Hussain''s case (supra), considering the scope of Rules 180 and 184, it was held that the proceedings of Court of Inquiry are in the nature of preliminary inquiry and rules of natural justice are not applicable during the proceedings of the Court of Inquiry. A Court of Inquiry can be set up to collect evidence and to report, if so required, with regard to any matter, which may be referred to it. Rule 177 does not mandate that a Court of Inquiry must invariably be set up in each and every case prior to recording of summary of evidence or convening of a Court Martial.
11. Proceedings of Court of Inquiry are not admissible in evidence as per Rule 182 of the Army Rules. As noticed above, Court of Inquiry was not convened against the petitioners. It was convened to look into the allegations made in the complaint directed against superior officer of the petitioners. In those proceedings opportunity was afforded to the said superior officer. There was no occasion in those proceedings to afford an opportunity to any one else much less the petitioners, who were complainants and were examined as witnesses. As convening of Court of Inquiry is not sine qua non for initiating proceedings against the petitioners and when Court of Inquiry was not convened against the petitioners, submissions made on behalf of the petitioners have no force. The petitioners admittedly have been served with relevant copies as required under law and charges will now be heard against them in accordance with the procedure laid down in Rule 22 with full opportunity to them to cross examine the witnesses against them and to call such witnesses and make such statement, as may be necessary, for their defense. We do not find any force in these petitions, which are hereby dismissed.
