UNION OF INDIA & ORS. versus P. S. GILL on 27 November 2019

[2019] 17 S.C.R. 405

UNION OF INDIA & ORS.

v.

P. S. GILL

(Criminal Appeal No. 404 of 2013)

NOVEMBER 27, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Armed Forces Tribunal Act, 2007: ss.14 and 15 – Allegationspertaining to irregularities in procurement of ration – Investigation– Prima facie case against 12 Army Personnel including therespondent – A hearing of the charge under r.22 against theRespondent was convened – The Commanding Officer of theRespondent i.e. General Officer Commanding (GOC), 15 InfantryDivision found no prima facie case made out against theRespondent – The said view was approved by the GOC, 15 Corps– Meanwhile, Respondent retired on attaining the age ofsuperannuation – However, appellants invoked s.123 of the ArmyAct, 1950 to continue the proceedings against him – The GOC-in-C, Western Command disagreed with the recommendations madeby the GOC, 15 Infantry Division and GOC, 15 Corps and arrivedat a conclusion that a prima facie case was made out againstRespondent – General Court Martial convened – Respondent filedO.A. under ss.14 and 15 assailing the validity of the orderconvening the General Court Martial – Tribunal held that a primafacie case to proceed against the Respondent by a General CourtMartial was not made out – Aggrieved appellant filed instantappeal – Appellant contended that jurisdiction is conferred on theTribunal only for adjudication of complaints and disputes regardingservice matters and appeals arising out of the verdicts of the CourtMartial and as such, an order by which the General Court Martialwas convened cannot be the subject matter of an appeal beforethe Tribunal – Held: s.15 confers jurisdiction and power on theTribunal to entertain appeal against any order, decision, findingor sentence passed by a Court Martial – The order challenged inthe OA in this case is a proceeding by which the General CourtMartial was convened – As there was no order, decision, findingor sentence by the Court Martial, an appeal under s.15 per se was

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Anot maintainable – As regards the maintainability of s.14, the saidsection enables a person aggrieved to make an application to theTribunal in any service matter – ‘Service matters’ are defined ins.3(o) to mean all matters relating to the conditions of their service,which shall include termination of service – ‘Conditions of service’mean those conditions which regulate the holding of a post by anyBperson right from the time of his appointment till his retirement andeven after his retirement including pension etc. – Therefore,conditions of service also include dismissal from service – s.14 ofthe Act which confers jurisdiction over service matters of the Armypersonnel should receive wide construction – The object with whichCthe Act was made is to provide adjudication of complaints anddisputes regarding service matters and not only appeals againstthe verdicts of the Court Martial – It is trite law that statement ofobjects and reasons can be used as a tool for interpretation – Theimpugned judgment of the Tribunal did not suffer from lack ofjurisdiction – Regarding the charges sought to be framed againstDthe Respondent, there was no error in the approach of the Tribunal– The material on record was perused by the Tribunal to come toa conclusion that no prima facie case is made out against theRespondent – No reason to interfere with the said findings.

Dismissing the appeal, the CourtE

Conclusion

Dismissing the appeal, the CourtE

HELD: 1.1 The O.A. was filed both under Sections 14 and15 of the Act. Section 15 confers jurisdiction and power on theTribunal to entertain appeal against any order, decision, findingor sentence passed by a Court Martial. Section 15(2) of the Actprovides for an appeal which can be filed by the person aggrievedFby an order, decision, finding or sentence passed by a CourtMartial. The order challenged in the OA in this case is aproceeding by which the General Court Martial was convened.As there was no order, decision, finding or sentence by theCourt Martial, an appeal under Section 15 per se is notGmaintainable. Section 14 enables a person aggrieved to makean application to the Tribunal in any service matter. ‘Servicematters’ are defined in Section 3(o) to mean all matters relatingto the conditions of their service, which shall include terminationof service, inter alia. Any matter relating to the conditions ofHservice falls within the definition of ‘service matters’ under Section 3(o) of the Act and can be the subject matter of anapplication filed before the Tribunal. ‘Conditions of service’ meanthose conditions which regulate the holding of a post by anyperson right from the time of his appointment till his retirementand even after his retirement including pension etc. Therefore,conditions of service also include dismissal from service. [Paras13-16] [419-E-H; 420-A-B]

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1.2 The words ‘relating to’ appearing before the words‘conditions of service’ in the definition of ‘service matters’ inSection 3 (o) of the Act should be given a wide interpretation.Any proceeding which leads to an order of termination. wouldfall within the expression ‘relating to conditions of service’. Inany event, the proceedings initiated against the Respondentcannot be said to be not related to his service. A final order tobe passed by the General Court Martial, apart from theimposition of other penalties, might have led to the terminationof the service of the Respondent. Section 14 of the Act whichconfers jurisdiction over service matters of the Army personnelshould receive wide construction. An interpretation whichconfers jurisdiction should be preferred over an interpretationwhich takes away jurisdiction. [Paras 17, 18, 19] [420-C-E-F]

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State of Maharashtra v. Marwanjee Desai (2002) 2SCC 318 ; Mansukhlal Dhanraj Jain v. Eknath Ogale(1995) 2 SCC 665 : [1995] 1 SCR 996 ; MantriTechnozone v. Forward Foundation (2019) SCCOnline SC 322 – relied on.

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S.S. Bola v. B.D. Sharma (1997) 8 SCC 522 – relied on.

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 404 of 2013.

From the Judgment and Order dated 24.05.2011 of the ArmedForces Tribunal (Principal Bench), New Delhi in O.A. No. 147 of 2010/order dated 30.05.2012 in M.A. No. 203 of 2012.

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Ms. Diksha Rai, Rajesh Ranjan, Ms. Snidha Mehra, HemantArya, Ishan Bisht, Ms. Palak Mahajan, Mukesh Kumar Maroria, Advs.for the Appellants.

Manoj K. Ramesh, Ms. Archana Ramesh, Vibhuti Sushant Gupta,Ram Naresh Yadav, Advs. for the Respondent.C

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. The Union of India is in Appeal against the judgment of theArmed Forces Tribunal, Principal Bench, New Delhi (hereinafter, ‘theDTribunal’) quashing the order dated 23.02.2010, by which General CourtMartial was convened against the Respondent.

2. In the year 2005, the Chief of the Army Staff directed aninvestigation by the Court of Inquiry into the allegations pertaining toirregularities in procurement of ration, as a result of which the qualityEof supplies for the troops was compromised. A Court of Inquiry wasconvened on 10.10.2005 by the General Officer Commanding-in-Chief(GOC-in-C) Western Command to identify the Army personnelresponsible for the aforementioned irregularities. Twenty-three witnesseswere examined by the Court of Inquiry. The Court of Inquiry identifiedFTwelve Army personnel who were prima facie responsible for the saidimproprieties. The Respondent who was working as the Chief Directorof Purchase (CDP), Army Purchase Organisation, Ministry of Defencewas one out of the twelve persons against whom a prima facie casewas found. Disciplinary action was also initiated against the Respondentby the GOC-in-C, Western Command on 14.06.2006 which wasGchallenged by the Respondent by filing a Writ Petition in the High Courtof Delhi. By an order dated 11.01.2007, the High Court quashed theCourt of Inquiry on the ground that Rule 180 of the Army Rules, 1954(hereinafter, ‘the Army Rules’) was violated. However, an option wasgiven to the Appellants to either hold a fresh Court of Inquiry afterHcomplying with Rule 180 of the Army Rules or to proceed directly under Rule 22 by hearing the charge without relying on the Court of Inquiry.The Court of Inquiry was re-constituted pursuant to the option givenby the High Court. Later, the Appellants sought a modification of theorder dated 29.07.2008 and informed the High Court that proceedingswould be initiated under Rule 22 of the Army Rules since most of theofficers involved had already retired and that it would be difficult tore-constitute a Court of Inquiry. The High Court permitted the Appellantsto proceed under Rule 22 with the condition that no reliance can beplaced on the old Court of Inquiry. The order of the Chief of the ArmyStaff by which cognizance was taken of the offences and theattachment order issued on 26.09.2008 were the subject matter ofanother Writ Petition filed by the Respondent in the High Court of Delhi,which was dismissed on 03.10.2008.

3. A hearing of the charge under Rule 22 against the Respondentwas convened on 08.12.2008 and recording of summary of evidenceunder Rule 23 of the Army Rules was ordered against the Respondenton 24.12.2008. The Commanding Officer of the Respondent i.e. GeneralOfficer Commanding (GOC), 15 Infantry Division found that no offencewas prima facie made out against the Respondent. The said view wasapproved by the GOC, 15 Corps on 28.04.2009. In the meanwhile,the Respondent retired on attaining the age of superannuation on31.05.2009. However, Section 123 of the Army Act, 1950 was invokedby the Appellants to continue the proceedings against the Respondent.The GOC-in-C, Western Command examined the matter and therecommendations made by the GOC, 15 Infantry Division and GOC,15 Corps. He disagreed with the views taken by the GOC, 15 InfantryDivision and GOC, 15 Corps and arrived at a conclusion that a primafacie case was made out against the Respondent. An attempt wasmade by the Respondent to challenge the findings of the GOC-in-C,Western Command, but in vain. The General Court Martial wasconvened by a letter dated 23.02.2010. The Respondent filed O.A.No.147 of 2010, assailing the validity of the order convening the GeneralCourt Martial. He also sought for quashing the proceedings of the Courtof Inquiry, summary of evidence and the conclusion of the GOC-in-C,Western Command holding him prima facie guilty. He furtherquestioned the invocation of Section 123 of the Army Act against himto continue the proceedings even after his retirement. He also soughtpromotion to the rank of Major General along with his batchmates.

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A4. The Tribunal held that a prima facie case to proceed againstthe Respondent by a General Court Martial was not made out. TheTribunal was of the opinion that even if the entirety of evidence of theprosecution is taken to be true, no offence was made out against theRespondent. The Appellants made an attempt to obtain leave to AppealBunder Section 31 of the Armed Forces Tribunal Act, 2007 (hereinafter,‘the Act’) to approach this Court, which was not entertained. Aggrievedby the judgment of the Tribunal, the above Appeal is filed.

5. The Charges against the Respondent are as follows:

“First Charge

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AA Sec 52 (f) SUCH AN OFFENCE AS IS MENTIONED INCLAUSE (f) OF SECTION 52 OF THE ARMY ACT, WITHINTENT TO DEFRAUD in that he, at New Delhi, on 15 Mar2005, which came to the knowledge of the authoritycompetent to initiate action on 25 Sep 2008, while performingthe duties of Chief Director of Purchase, Army PurchaseOrganization, Ministry of Defence, contrary to ArmyPurchase Organization, Ministry of Defence, Department ofDefence Consolidated Order no.3 of 1987, with intent todefraud, approved addition of two more tendering stations(namely Gadarwara, District Narsingpur (MP) andNarsingpur (MP) in Acceptance of Tender for Risk PurchaseContract No.J-13028/1/4-03/45- RP/2005-PUR III dated 28Feb 2005 for Masur Whole awarded to M/s. GREEN FED(Gujrat Co-operative Grain Grower’s Federation Ltd.,) afterissue of Acceptance of Tender on the last day of DeliveryPeriod.

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Second Charge

AA Sec 63 (Alternative to first charge) AN ACTPREJUDICIAL TO GOOD ORDER AND MILITARYDISCIPLINE in that he, at New Delhi, on 15 Mar 2005,which came to the knowledge of the authority competent toinitiate action on 25 Sep 2008, while performing the dutiesof Chief Director of Purchase, Army Purchase Organization,Ministry of Defence, contrary to Army PurchaseOrganization, Ministry of Defence, Department of DefenceConsolidated Order no.3 of 1987, improperly approved G

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addition of two more tendering stations (namely Gadarwara,District Narsingpur (MP) and Narsingpur (MP) inAcceptance of Tender for Risk Purchase Contract No. J-13028/1/4-03/45-RP/2005- PUR III dated 28 Feb 2005 forMasur Whole awarded to M/s. GREEN FED (Gujrat Co-operative Grain Grower’s Federation Ltd) after issue ofAcceptance of Tender on the last day of Delivery Period.

THIRD CHARGE

AA SEC. 52(f) SUCH AN OFFENCE AS IS MENTIONED INCLAUSE (f) OF SECTION 52 OF THE ARMY ACT, WITHINTENT TO DEFRAUD in that he, at New Delhi, on or about29 July 2005, which came to the knowledge of the authoritycompetent to initiate action on 25 Sep 2008, while performingthe duties of Chief Director of Purchase, Army PurchaseOrganization, Ministry of Defence, and being aware thatpara 4(VI) of No. J11011/1/2000-CDN, Govt of India, Minof Def, APO Guidelines to prevent legal complications dt 30Mar 2000 prohibited any deviation from ASC Specificationand Price reduction in Risk Purchase contracts, with intentto defraud acquiesced with decision of Director General ofSupply and Transport vide letter No.69642/5/1-05/163-RP/05/Q/ST-7 dt 29 Jul 2005 granting relaxation to M/s PunjabState Civil Supplies Corporation Ltd in a Risk PurchaseContract Acceptance Tender No. J-13075/5/163/2005-PURIII dt 27 Jun 2005 for 350/400 grains per 100 gms of KabliChana on price reduction of 0.5% instead of 300-350 grainsper 100 gms as stipulated in Revised ASC specification No.97.

FOURTH CHARGE

AA SEC. 63 (Alternative to third charge) AN OMISSIONPREJUDICIAL TO GOOD ORDER AND MILITARYDISCIPLINE in that he, at New Delhi, on or about 29 July2005, which came to the knowledge of the authoritycompetent to initiate action on 25 Sep 2008, while performingthe duties of Chief Director of Purchase, Army PurchaseOrganisation, Ministry of Defence and being aware that para4(VI) of No. J- 11011/1/2000/CDN, Govt of India, Min ofDef, APO Guidelines to prevent legal complications dt 30

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Mar 2000 prohibited any deviation from ASC Specificationand Price reduction in Risk Purchase contracts, improperlyacquiesced with decision of Director General of Supply andTransport vide letter No. 69642/5/1-05/163-RP/05/Q/ST-7 dt29 Jul 2005 granting relaxation to M/s Punjab State CivilSupplies Corporation Ltd in a Risk Purchase ContractAcceptance Tender No. J-13075/5/163/2005-PUR III dt 27Jun 2005 for 350-400 grains per 100 gms of Kabli Chanaon price reduction of 0.5% instead of 300-350 grains per100 gms as stipulated in Revised ASC specification No. 97.

FIFTH CHARGE

AA SEC. 52(f) SUCH AN OFFENCE AS IS MENTIONED INCLAUSE (f) OF SECTION 52 OF THE ARMY ACT, WITHINTENT TO DEFRAUD in that he, at New Delhi, on or about23 Aug 2005, which came to the knowledge of the authoritycompetent to initiate action on 25 Sep 2008, while performingthe duties of Chief Director of Purchase, Army PurchaseOrganization, Ministry of Defence, and being aware thatpara 4(VI) of No. J11011/1/2000-CDN, Govt of India, Minof Def, APO Guidelines to prevent legal complications dt 30Mar 2000 prohibited any deviation from ASC Specificationand Price reduction in Risk Purchase contracts, with intentto defraud acquiesced with decision of Director General ofSupply and Transport vide letter No.69644/7/4-05/165-R/05/Q/ST-7 dt 23 Aug 2005 granting relaxation to M/s MMTCin a Risk Purchase Contract Acceptance Tender No. J13075/7/165/2005-PUR III dt 27 Jun 2005 for 350-400 grains per100 gms of Kabli Chana on price reduction of 0.5% insteadof 300-350 grains per 100 gms as stipulated in Revised ASCspecification No. 97.

SIXTH CHARGE

AA SEC. 63 (Alternative to fifth charge) AN OMISSIONPREJUDICIAL TO GOOD ORDER AND MILITARYDISCIPLINE in that he, at New Delhi, on or about 23 Aug2005, which came to the knowledge of the authoritycompetent to initiate action on 25 Sep 2008, while performingthe duties of Chief Director of Purchase, Army PurchaseOrganisation, Ministry of Defence and being well aware that

para 4(VI) of No. J11011/1/2000/CDN, Govt of India, Minof Def, APO Guidelines to prevent legal complications dt 30Mar 2000 prohibited any deviation from ASC Specificationand Price reduction in Risk Purchase contracts, improperlyacquiesced with decision of Director General of Supply andTransport vide letter No. 69644/7/4-05/165-R/05/Q/ST-7 dt23 Aug 2005 granting relaxation to M/s MMTC in a RiskPurchase Contract Acceptance Tender No. J-13075/7/165/2005-PUR III dt 27 Jun 2005 for 350-400 grains per 100gms of Kabli Chana on price reduction of 0.5% instead of300-350 grains per 100 gms as stipulated in Revised ASCspecification No. 97.”

6. The Tribunal, being aware of the law that it is only theprobative value of the material on record that has to be looked into atthe time of framing of charge, proceeded to decide as to whether aprima facie case is made out. In respect of the first charge which isrelated to the addition of two more tendering stations namely Gadarwaraand Narsingpur, Madhya Pradesh, the Tribunal examined the exhibitsthat were placed on record in support of the said charges. The Tribunalheld that the addition of two tendering stations was not within thejurisdiction of the Respondent. Brigadier P.P.S. Bal of CDP, ArmyPurchase Organisation, Army Headquarters, New Delhi in his testimonystated that he was aware of the consolidated order No.3 of 1987permitting the inclusion of two additional tendering stations. Moreover,a decision was taken by the competent authority that there should beadditional tendering stations for which there was no objection from theaudit authorities or by the Principal Controller of Defence Accounts(PCDA). The Tribunal further held that no monetary benefit wasderived by the Respondent by adding two tendering stations and therewas no extra expenditure borne out by the Appellants due to the additionof two new stations.

7. In so far as the second charge is concerned, which deals withthe extension of the delivery period and the issue of final performancenotice, the Tribunal was of the opinion that there is nothing on recordto substantiate any act or omission on the part of the Respondent bywhich the supplier was benefited. Moreover, evidence suggested thatextra expenditure was incurred by the supplier for transportation. TheTribunal opined that there was no violation of any Governmentinstructions. The evidence of DW-1, Mr. P.V.D. Prasada Rao, Deputy AB

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ASecretary to the Government of India, Ministry of Agriculture,Department of Agriculture & Cooperation, New Delhi was recordedin the summary of evidence and was perused by the Tribunal. It wasconcluded that there was no foundation even to prima facie show thelapses on the part of the Respondent.

B8. Deviation from ASC specifications and price reduction in riskpurchase contract was the subject matter of charges Nos.3 to 6. Afterpursuing the evidence of PW-1, Brigadier PPS Bal and PW-2, Col.Ambrish Malhotra, the Tribunal accepted the contention of theRespondent that Director General of Supplies and Transport (DGST)was the sole authority to grant relaxation of specifications and theCRespondent who was a CDP did not have the power to over-rule thedecision of DGST. For the aforesaid reasons, the submission of theAppellants that the Respondent was under an obligation to protest theviolation of guidelines by the DGST was not accepted by the Tribunal.Even the seventh charge pertaining to the issuance of letters onD02.08.2005, 12.09.2005 and 13.09.2005 without taking into account theexisting guidelines regarding the price reduction in R.P. contracts washeld in favour of the Respondent by the Tribunal. On the basis of theabove evidence, the Tribunal found that no prima facie case was madeout against the Respondent and the charges framed against him wereEfound unsustainable. Consequently, the charges were quashed.

9. Ms. Diksha Rai, learned counsel appearing for the Appellantcontended that the judgment of the Tribunal is vitiated due to ajurisdictional error. According to her, the O.A. in this case was filedunder Sections 14 and 15 of the Act against an order by which theFCourt Martial was convened. The Tribunal, according to Ms. Rai, didnot have jurisdiction to entertain the O.A. at the interlocutory stage.She relied on the statement of objects and reasons of the Act to submitthat jurisdiction is conferred on the Tribunal only for adjudication ofcomplaints and disputes regarding service matters and appeals arisingout of the verdicts of the Court Martial. According to her, a verdict isGa final judgment or order passed by the Court Martial and as such, anorder by which the General Court Martial was convened cannot be thesubject matter of an appeal before the Tribunal. On the merits of thecase, she contended that the Tribunal has transgressed its limit by delvingdeep into the merits of the case which can be done only by the CourtHMartial.

10. Mr. K. Ramesh, learned counsel for the Respondent arguedthat Section 14 of the Act provides that the Tribunal shall exercise alljurisdiction, powers and authorities exercisable by all Courts (exceptthe Supreme Court or the High Courts exercising jurisdiction underArticles 226 and 227 of the Constitution), in relation to service matters.Mr. Ramesh further submitted that according to Section 14 (2), anyperson aggrieved by an order pertaining to any service matter may makean application to the Tribunal. He submitted that jurisdiction of theTribunal cannot be curtailed on pedantic grounds and the order by whichGeneral Court Martial was convened was rightly set aside by theTribunal.

11. Sections 14 and 15 of the Armed Forces Tribunal Act, 2007which are relevant for adjudication of the dispute in this case are asfollows:

“14. Jurisdiction, powers and authority in service matters.—(1) Save as otherwise expressly provided in this Act, theTribunal shall exercise, on and from the appointed day, allthe jurisdiction, powers and authority, exercisableimmediately before that day by all courts (except the SupremeCourt or a High Court exercising jurisdiction under articles226 and 227 of the Constitution) in relation to all servicematters.

(2) Subject to the other provisions of this Act, a personaggrieved by an order pertaining to any service matter maymake an application to the Tribunal in such form andaccompanied by such documents or other evidence and onpayment of such fee as may be prescribed.

(3) On receipt of an application relating to service matters,the Tribunal shall, if satisfied after due inquiry, as it maydeem necessary, that it is fit for adjudication by it, admit suchapplication; but where the Tribunal is not so satisfied, it maydismiss the application after recording its reasons in writing.

(4) For the purpose of adjudicating an application, theTribunal shall have the same powers as are vested in a CivilCourt under the Code of Civil Procedure, 1908 (5 of 1908),while trying a suit in respect of the following matters,namely—

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(a) summoning and enforcing the attendance of anyperson and examining him on oath; (b) requiring the discovery and production ofdocuments;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124of the Indian Evidence Act, 1872 (1 of 1872),requisitioning any public record or document orcopy of such record or document from any office; (e) issuing commissions for the examination of witnessesor documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding itex parte; (h) setting aside any order of dismissal of anyapplication for default or any order passed by it exparte; and

(i) any other matter which may be prescribed by theCentral Government.

(5) The Tribunal shall decide both questions of law and factsthat may be raised before it.

15. Jurisdiction, powers and authority in matters of appealagainst court martial. —

(1) Save as otherwise expressly provided in this Act, theTribunal shall exercise, on and from the appointed day, allthe jurisdiction, powers and authority exercisable under thisAct in relation to appeal against any order, decision, findingor sentence passed by a court martial or any matterconnected therewith or incidental thereto.

(2) Any person aggrieved by an order, decision, finding orsentence passed by a court martial may prefer an appeal insuch form, manner and within such time as may be prescribed.

(3) The Tribunal shall have power to grant bail to anyperson accused of an offence and in military custody, with UNION OF INDIA & ORS. v. P. S. GILL

[L. NAGESWARA RAO, J.]

or without any conditions which it considers necessary:Provided that no accused person shall be so released if thereappears reasonable ground for believing that he has beenguilty of an offence punishable with death or imprisonmentfor life.

(4) The Tribunal shall allow an appeal against convictionby a court martial where—

(a) the finding of the court martial is legally notsustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a questionof law; or

(c) there was a material irregularity in the course of thetrial resulting in miscarriage of justice, but, in anyother case, may dismiss the appeal where theTribunal considers that no miscarriage of justice islikely to be caused or has actually resulted to theappellant: Provided that no order dismissing theappeal by the Tribunal shall be passed unless suchorder is made after recording reasons therefor inwriting.

(5) The Tribunal may allow an appeal against conviction,and pass appropriate order thereon.

(6) Notwithstanding anything contained in the foregoingprovisions of this section, the Tribunal shall have the powerto—

(a) substitute for the findings of the court martial, afinding of guilty for any other offence for which theoffender could have been lawfully found guilty bythe court martial and pass a sentence afresh for theoffence specified or involved in such findings underthe provisions of the Army Act, 1950 (46 of 1950)or the Navy Act, 1957 (62 of 1957) or the Air ForceAct, 1950 (45 of 1950), as the case may be; or (b) if sentence is found to be excessive, illegal or unjust,the Tribunal may—

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(i) remit the whole or any part of the sentence, withor without conditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any lesserpunishment or punishments mentioned in theArmy Act, 1950 (46 of 1950), the Navy Act, 1957(62 of 1957) and the Air Force Act, 1950 (45 of1950), as the case may be; B

(c) enhance the sentence awarded by a court martial:Provided that no such sentence shall be enhancedunless the appellant has been given an opportunityof being heard; C

(d) release the appellant, if sentenced to imprisonment,on parole with or without conditions; (e) suspend a sentence of imprisonment; D

(f) pass any other order as it may think appropriate.

(7) Notwithstanding any other provisions in this Act, for thepurposes of this section, the Tribunal shall be deemed to bea criminal court for the purposes of sections 175, 178, 179,180, 193, 195, 196 or 228 of the Indian Penal Code (45 ofE1860) and Chapter XXVI of the Code of Criminal Procedure,1973 (2 of 1974).”

12. It is also relevant to examine Section 3 (o) of the Act whichdefines ‘service matters’ which is as under:

“(o) “service matters”, in relation to the persons subject tothe Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of1957) and the Air Force Act, 1950 (45 of 1950), mean allmatters relating to the conditions of their service and shallinclude—

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(i) remuneration (including allowances), pension andGother retirement benefits;

(ii) tenure, including commission, appointment,enrolment, probation, confirmation, seniority,training, promotion, reversion, premature retirement,superannuation, termination of service and penaldeductions; H

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(iii) summary disposal and trials where the punishmentof dismissal is awarded;

(iv) any other matter, whatsoever, but shall not includematters relating to—

(i) orders issued under section 18 of the Army Act,B1950 (46 of 1950), sub-section (1) of section 15of the Navy Act, 1957 (62 of 1957) and section18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change ofplace or unit on posting whether individually oras a part of unit, formation or ship in relationto the persons subject to the Army Act, 1950 (46of 1950), the Navy Act, 1957 (62 of 1957) andthe Air Force Act, 1950 (45 of 1950); C

(iii) leave of any kind;

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(iv) summary court martial except where thepunishment is of dismissal or imprisonment formore than three months;

13. At the outset, it is relevant to note that the O.A. was filedboth under Sections 14 and 15 of the Act. Section 15 confersjurisdiction and power on the Tribunal to entertain appeal against anyorder, decision, finding or sentence passed by a Court Martial.

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14. Section 15 (2) of the Act provides for an appeal which canbe filed by the person aggrieved by an order, decision, finding orsentence passed by a Court Martial. The order challenged in the OAin this case is a proceeding by which the General Court Martial wasconvened. As there was no order, decision, finding or sentence bythe Court Martial, an appeal under Section 15 per se is not maintainable.

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15. Section 14 enables a person aggrieved to make an applicationto the Tribunal in any service matter. ‘Service matters’ are defined inSection 3 (o) to mean all matters relating to the conditions of theirservice, which shall include termination of service, inter alia. Thereare some matters which are excluded from the purview of the definitionof ‘service matters’. There is no dispute in this case that the saidexclusions do not come into play.

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A16. Any matter relating to the conditions of service falls withinthe definition of ‘service matters’ under Section 3 (o) of the Act andcan be the subject matter of an application filed before the Tribunal.‘Conditions of service’ mean those conditions which regulate the holdingof a post by any person right from the time of his appointment till hisBretirement and even after his retirement including pension etc.Therefore, conditions of service also include dismissal from service.[1]

17. The words ‘relating to’ appearing before the words ‘conditionsof service’ in the definition of ‘service matters’ in Section 3 (o) of theAct should be given a wide interpretation.[2] In Mansukhlal DhanrajCJain v. Eknath Ogale (supra) this Court referred to Blacks’ LawDictionary where ‘relate’ was defined as under:

“to stand in some relation; to have bearing or concern; topertain; refer; to bring into association with or connectionwith; ‘with to’.”D

18. It is clear from the above that any proceeding which leadsto an order of termination would fall within the expression ‘relating toconditions of service’. In any event, the proceedings initiated againstthe Respondent cannot be said to be not related to his service. A finalEorder to be passed by the General Court Martial, apart from theimposition of other penalties, might have led to the termination of theservice of the Respondent.

19. We have no doubt in our mind that Section 14 of the Actwhich confers jurisdiction over service matters of the Army personnelFshould receive wide construction. This Court had held that aninterpretation which confers jurisdiction should be preferred over aninterpretation which takes away jurisdiction[3].

20. We are also conscious that the object with which the ActGwas made is to provide adjudication of complaints and disputes regardingservice matters and not only appeals against the verdicts of the CourtMartial. It is trite law that statement of objects and reasons can be H

1 State of Maharashtra v. Marwanjee Desai, (2002) 2 SCC 318

2 Mansukhlal Dhanraj Jain v. Eknath Ogale, (1995) 2 SCC 665

3 Mantri Technozone v. Forward Foundation, 2019 SCC Online SC 332 (3JB)

UNION OF INDIA & ORS. v. P. S. GILL

[L. NAGESWARA RAO, J.]

used as a tool for interpretation[4]. The sequitur of the above discussionis that the impugned judgment of the Tribunal does not suffer from lackof jurisdiction.

21. Regarding the charges sought to be framed against theRespondent, we do not find any error in the approach of the Tribunal.The material on record was perused by the Tribunal to come to aconclusion that no prima facie case is made out against the Respondent.We do not see any reason to interfere with the said findings.

22. Accordingly, the Appeal is dismissed.

Devika Gujral

Appeal dismissed.

4 S.S. Bola v. B.D. Sharma (1997) 2 SCC 522, State of Maharashtra v. Marwanjee F.Desai, (2002) 2 SCC 318

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