From my blog indianmilitary.info DISPATCHES FROM THE SUPREME COURT- RECENT DECISIONS IN MILITARY RELATED CASES Navdeep Singh THURSDAY, NOVEMBER 7, 2013 Dispatches from the Supreme Court- recent decisions in military related cases There was some action in the Hon’ble Supreme Court in October, as far as military related cases are concerned. A lowdown: Union of India Vs Col Sanjay Jethi: The Armed Forces Tribunal (AFT) had set aside an additional Court of Inquiry initiated against an Army officer on account of bias and conflict of interest of its members. The AFT had also directed the constitution of another Court of Inquiry with a different Presiding Officer and independent members. The verdict was challenged by the Government before the Supreme Court. The Apex Court has however upheld the judgement of the AFT and has passed a detailed judgement on the subject. Though the Apex Court has sustained the same, it has still made some observations regarding the decision rendered by the AFT. Some parts of the Supreme Court decision are worth reproducing: “…On a bare perusal of the same one can easily say that the Technical Members have expressed their opinion after analysis of the documents. They have, in detail, scrutinized the documents, drawn their inferences and made their observations. This document has been marked as Ext XLIX. By no stretch of imagination it can be said that it is an arrangement of documents or pagination of documents. True it is, they are not the authors of the original documents but their analysis and inference have been used against the respondent in the earlier COI and in the Additional COI. It cannot be brushed aside by saying that Technical Members did not sign the final report. Once they have given an opinion, the possibility to support the same cannot be totally discarded. That is where the real likelihood of bias comes into play. As has been stated in number of authorities which we have reproduced hereinbefore if one has something substantial, relevant or material to do with the case he is disqualified. In the case at hand, we find that the Technical Members had compiled the documents, adopted the methodology, made observations, drawn inferences and expressed the view and, above all, they had prepared the report which has been brought on record as a document. To say, they had not played any role would tantamount to blinking at reality. In our considered view, their inclusion as the Technical Members is not legally permissible. It is so as the said respondent is bound to be prejudiced…” “…We are compelled to repeat here that once a COI has been constituted to inquire into the allegations relating to a persons character and military reputation subject to the Act it should not be done by the persons who have expressed their views in writing behind the back of the person and assume the role of the recommending authority which is statutory in nature to take disciplinary action. Law does not countenance the same. In the present case it is irrefragably clear that the recommendation of the COI was the sole basis on which the disciplinary action has been initiated. Nothing else had come on record as observed by the tribunal on earlier occasion as well as by the impugned order and the said finding is unassailable. That being the position, we find in fitness of things, the Presiding Officer should have recused himself to preside over the COI…” “…Before parting with the case, we think and we are constrained to think that we should say something about the order of the tribunal. Section 14 of the Armed Forces Tribunal Act, 2007 occurs in Chapter III of the said Act and deals with jurisdiction, powers and authority of the tribunal in service matters. Under sub-section (5) of Section 14 the tribunal is required to decide both questions of law and facts that may be raised before it. The respondent had approached the tribunal under Section 14 of the said Act. In the Statement of Objects and Reasons it has been spelt out for constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the court martial to provide for quicker and less expensive justice to the members of the said armed forces of the Union. The Preamble of the Act provides for adjudication or trial by the tribunal of justice and compliance in respect of many a matter. As we find the tribunal has been conferred powers to deal with the cases in promptitude. Promptitude does not ostracize or drive away the apposite exposition of facts and necessary ratiocination. A seemly depiction of factual score, succinct analysis of facts and law, pertinent and cogent reasoning in support of the view expressed having due regard to the rational methodology, in our considered opinion, are imperative. We have said so as we find that the tribunal by the impugned order has not adverted to the necessitous facts. We say so despite sustaining the verdict…” Union of India Vs Brig TS Sekhon: A senior retired military veteran, Brig Sekhon, had to undergo an emergency procedure while visiting Germany. The cost of emergency treatment even at Indian rates was not reimbursed under the Ex-Contributory Health Scheme (ECHS) on the pretext that the emergency had occurred outside India. The AFT had however directed the Govt to reimburse the veteran according to Indian emergency rates as applicable under the policy. The AFT also took support of clear-cut decisions of the Supreme Court laying down the law in this regard. However rather than accepting the well rounded, balanced and logical verdict of the AFT, the Ministry of Defence filed an appeal before the Supreme Court. The Apex Court has however dismissed the appeal filed by the Ministry. Union of India Vs Atul Batra: Atul Batra was a sailor who was released from service before completion of his contractual terms in the Navy, on disciplinary grounds. He was not issued a show-cause notice since the rules did not prescribe issuance of the same. The AFT had however reached the conclusion that principles of natural justice had been circumvented and that a show-cause notice was mandatory even if not provided under the relevant regulations. The discharge was set-aside. The Navy had challenged the AFT verdict before the Supreme Court but the appeal has been dismissed by the Apex Court thereby upholding the judgement of the AFT. Posted by Navdeep / Maj Navdeep Singh
Posted on: Fri, 08 Nov 2013 12:47:40 +0000
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