UNION OF INDIA & ORS. versus LT COLONEL DHARAMVIR SINGH on 15 February 2019

1. Leave granted.

2. The respondent is a Lieutenant Colonel in the Indian Army. On20 September 2016, as an officer of the Intelligence Corps, he wasCposted to 3 Corps Intelligence and Surveillance Unit[1]. On 30 June 2018he was posted from 3 CISU as an Officer Commanding 2 Detachmentin Imphal to Nanded in Maharashtra. His successor, Lt Colonel RPNanda addressed two letters on 30 June 2018 and 2 July 2018 to hisCommanding Officer implicating breaches of discipline, violations ofDthe Arms Act 1959, and security and administrative lapses by therespondent. According to the petitioners, on being directed to report toUnit Headquarters by his Commanding Officer at 3 CISU, the respondentmoved to Dimapur. On 4 July 2018 a Habeas Corpus Petition[2] wasinstituted before the High Court of Manipur by his spouse. On 5 July2018, the High Court directed the authorities to ensure the presence ofEthe respondent. In compliance with the order of the High Court, therespondent appeared in Court, when an order was passed, recordingthat:

“Prima facie as on today, Lt.Col.Dharamvir Singh is not inillegal custody or in the custody of any of the Officers ofFthe respondent/department.”

On 5 October 2018 an order was issued attaching the respondentto Hq 56 Artillery Brigade Unit for initiating disciplinary action underArmy Instructions 30/86. He instituted a Writ Petition before the HighCourt of Manipur under Article 226 of the Constitution, seeking to Gchallenge the validity of the attachment order dated 5 October 2018issued by the Additional Directorate General, Discipline and Vigilance,Adjutant General’s Branch, Integrated HQ of the Ministry of Defence(Army), New Delhi. The order of attachment reads thus :

1 [“3 CISU”]H2 Habeas Corpus Petition No 11 of 2018

“Attachment Order :

1. Ref. HQ Eastern Comd Letter No.201940/157/A1(Dv-2) dated29 Sep 2018 (copy enclosed for ready reference).

2. IC 57196X Lt. Col. Dharamvir Singh ex OC No.2 FID, 3 CISUpresently posted to 52 Maharashtra NCC Bn, Nanded,Maharashtra is hereby attached to 56 Arty Bde/56 Inf Div/3 Corpsunder the provisions of AI 30/86.

3. The offr be directed to report to 56 Arty Bde/56 Inf Div/3Corps forthwith and compliance report to this effect may pleasebe fwd to this HQ.”

3. The order of attachment was followed by a communicationdated 2 November 2018 of HQ DG NCC, Ministry of Defence and asimilar communication of the NCC Directorate, Maharashtra requiringthe respondent to report to 56 Arty Bde/56 Inf Div/3 Corps.

4. The Writ Petition which was instituted before the High Courtof Manipur on 5 November 2018, specifically called into question thelegality of these orders. The prayers in the petition are extracted below:

“ii. Issue a Writ in the nature of Certiorari for quashing (i) theletter dated 5.10.2018 issued by the Additional DirectorateGeneral, Discipline and Vigilance, Adjutant General’s Branch,Integrated HQ of MOD (Army), New Delhi 110011, (ii) letterdated 2.11.2018 issued by the HQ DGNCC, Ministry of Defence,West Block-IV, RK Puram, New Delhi – 110066 and (iii) letterdated 2.11.2018 issued by NCC Directorate, Maharashtra AFIBuilding, Bombay Hospital Lane, Dhobi Talao, Mumbai – 400020.”

5. A learned Single Judge of the High Court entertained the WritPetition on 5 November 2018. A submission was made before the HighCourt that an order of attachment, as prescribed under Army InstructionNo.30 of 1986, can be ordered only when a disciplinary action has beencontemplated and when the order of attachment was issued on 5 October2018, a tentative charge-sheet had not been furnished to the officer.

6. An objection was raised to the jurisdiction of the High Court toentertain the Writ Petition, since the respondent at the time of the initiationof the action of attachment was based at Nanded in Maharashtra and A

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Athe orders were issued by the Headquarters at New Delhi. Yet the HighCourt proceeded to entertain the Writ Petition on the submission whichwas urged before it that the order of attachment had been issued for thepurpose of holding an enquiry in respect of incidents which had takenplace at Imphal when the respondent was posted there. The hearingwas adjourned to 23 November 2018 to consider the objection to theBmaintainability of the Writ Petition. Until then the orders impugned werestayed.

7. On 24 January 2019, the High Court confirmed the earlierad-interim order. While doing so, the High Court adverted to a file whichCwas placed in a sealed cover before it. The High Court noted that theorder of attachment was ordered pursuant to a communication dated29 September 2018 of the Lieutenant General and General OfficerCommanding (GOC) enclosing a report dated 2 July 2018 of Lt Col R PNanda, who was transferred in place of the respondent. It is at thatstage that the High Court also noted that the order of attachment appearedDto have been issued after the respondent had filed an affidavit on 20 July2018 in Writ Petition (Crl.) No. 11 of 2018. The High Court observedthat the subject of the said Criminal Writ Petition pertained to an allegationagainst certain members of the 3 Corps Intelligence Unit going back to18 August 2011. The High Court took note of the fact that an SIT hasEbeen constituted by the Guwahati High Court in Writ Petition (C) 2481of 2014. On the basis that nothing appears to have been done by anyauthority in respect of the alleged incidents which took place on 18 August2011, the High Court proceeded to confirm its interim order dated5 November 2018.

F8. Notice was issued by this Court in the present proceedings on8 February 2019. In the meantime, further proceedings before the HighCourt and the impugned orders dated 5 November 2018 and 24 January2019 were stayed.

9. On service of notice, on the request of Mr Colin Gonsalves,Glearned Senior Counsel appearing on behalf of the respondent, the SpecialLeave Petition was directed to be listed on 15 February 2019 since itwas apprehended that in view of the interim order of this Court thedisciplinary jurisdiction would be invoked.

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10. We have accordingly heard Mr Aman Lekhi, learned AdditionalSolicitor General of India (ASG) with Mr R Balasubramanian, learnedCounsel and Mr Colin Gonsalves, learned Senior Counsel with Mr ShreejiBhavsar, learned Counsel.

11. The submission which has been urged on behalf of theappellants by Mr Aman Lekhi, learned ASG is that in entertaining theWrit Petition, the High Court has encroached upon an area which fallswithin the discipline of the Army. The respondent, it has been submitted,is an officer governed by the Army Act 1950. The provisions of theArmed Forces Tribunal Act 2007 govern all matters relating to theconditions of service including discipline and other issues. In thecircumstances, it was urged that there was no justification for the ManipurHigh Court to entertain the Writ Petition. At the relevant time, beforethe order of attachment was issued, the respondent had been posted toNanded in Maharashtra. The ASG submitted that the exercise of thejurisdiction by the High Court virtually pre-empts the disciplinaryjurisdiction of the competent authority in respect of an officer governedby the Army Act 1950.

12. Mr Colin Gonsalves, learned Senior Counsel submitted thatthe respondent had addressed a communication on 9 September 2016 tothe GOC-in-C, Eastern Command making allegations in regard to certainincidents which took place in 2011. Learned Counsel urged that therespondent was pressurized by the then CO, 3 CISU to withdraw hisletter dated 9 September 2016 which he did on 20 September 2017. Acomplaint, he submits, was addressed to the Chief of the Army Staff on1 July 2018. Mr Gonsalves submitted that the learned Single Judge ofthe High Court was justified in entertaining the Writ Petition since therespondent, in an affidavit filed in Writ Petition No. 11 of 2018, has madeserious allegations in regard to the conduct of the members of 3 CorpsIntelligence and Surveillance Unit in regard to the death of threeindividuals from Manipur in 2010-2011. In the alternative, Mr Gonsalves,submitted that attachment of the respondent may be altered to anotherunit so as to ensure fair dealing.

13. In our view, the High Court was manifestly in error in enteringupon an area which relates to the exercise of the disciplinary jurisdictionof the Army under the Army Act 1950. The admitted position is that the A

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Arespondent was posted at Nanded in Maharashtra. The learned SingleJudge had no reasonable basis to exercise jurisdiction. Mr Gonsalveshas adverted to the fact that the spouse of the respondent initiated apetition for habeas corpus initially before the High Court of Manipur.Significantly, the challenge in the Writ Petition which was instituted bythe respondent before the High Court related exclusively to the order ofBattachment dated 5 October 2018, which was followed by twocommunications dated 2 November 2018 requiring him to proceed to theplace of attachment. An officer subject to the discipline of the Army Act1950 must abide by the regulations, if the disciplinary jurisdiction is soughtto be invoked. It was manifestly inappropriate for the High Court to takeCupon itself the task of pre-empting the exercise of that jurisdiction andtaking over the essential function of determining whether or not recourseto the disciplinary jurisdiction was warranted.

14. Mr Colin Gonsalves has placed reliance on a communicationwhich was issued by the respondent to Lt Gen Praveen Bakshi, GOC-Din-C, Eastern Command on 9 September 2016. There was no materialbefore the High Court to link the initiation of the disciplinary enquiry tothe grievance which was made by the respondent as far back as on20 September 2016.

15. The assumption of jurisdiction by the High Court in a WritEPetition under Article 226 of the Constitution was misconceived. We arealso of the view that having regard to the definition of the expression“service matters” in Section 3(o) of the Armed Forces Tribunal Act2007 and the jurisdiction of the Armed Forces Tribunal under Section 14,such a Writ Petition ought not to have been entertained by the HighCourt. The learned Single Judge should have exercised caution and oughtFto have been circumspect before he proceeded to stay an order ofattachment. Such pre-emptive judicial strikes are unwarranted. Thecourse of action followed by the Single Judge has serious repercussionsfor the maintenance of discipline in the Army. Discipline is the essenceof the organisation and structure of an Armed Force. Before concluding,Gwe make it clear that we have expressed no opinion on the merits of theallegations, in the exercise of the disciplinary jurisdiction which shall bedealt with in accordance with law. There is no merit in the alternatesubmission. This Court cannot take over the function of determiningwhich unit the respondent should be assigned, pending the disciplinaryproceedings.H

UNION OF INDIA v.LT COLONEL DHARAMVIR SINGH[DR DHANANJAYA Y CHANDRACHUD, J.]

16. We allow the appeal and set aside the impugned orders of theHigh Court dated 5 November 2018 and 24 January 2019. Inconsequence, Writ Petition (Civil) 1031 of 2018 filed by the respondentbefore the High Court of Manipur shall stand dismissed. There shall beno order as to costs. Pending applications are accordingly disposed of.

Devika Gujral

Appeal allowed.

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