Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

 Civil Appeal Nos. 9223- 9224 of 2019

Brigadier L.I. Singh YSM  .... Appellant(s)

Versus

Union of India & Ors.     …. Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. The refusal of the Armed Forces Tribunal, Principal

Bench, New Delhi (for short “the Tribunal”) to interfere

with  the  disciplinary  action  initiated  against  the

Appellant is the subject matter of these Appeals.   

2. The Appellant was commissioned in the Jammu &

Kashmir Light Infantry, Indian Army on 17.12.1983.  He

was  the  Commander  of  164  Mountain  Brigade  from

01.12.2012 to 29.03.2012.  Brigadier R.K. Jha took over

[1]

as  the  Commander  of  164  Mountain  Brigade  on

30.03.2012.  After  taking over,  Brigadier R.K.  Jha was

informed that the property of the Flag Staff House was

not  properly  accounted  for  and  certain  items  were

missing  as  they  were  taken  away  by  the  Appellant.

Brigadier R.K. Jha made inquiries with Major Amit Slathia

and  Havildar  Yongendra  Bahadur  Gurung.   On  being

satisfied that certain items were missing, Brigadier R.K.

Jha  directed  Colonel  S.S.  Sidhu,  the  then  Deputy

Commander to undertake a physical check of the Flag

Staff  House  property.   According  to  the  inquiry

conducted  by  Major  Siddharth  Virmani  and  Havildar

Yogendra  Bahadur  Gurung.   Two  Heat  Pillars,  three

carpets  and two flower pots  were taken away by the

Appellant  along with his  luggage by being treated as

unserviceable.   

3. When Brigadier R.K. Jha visited unit 4/1 GR along

with  Major  Ishani  Maitra,  Education  Officer  of  164

Mountain  Brigade,  he  was  informed  by  her  that  Mrs.

[2]

Nirmala  Singh,  wife  of  the  Appellant  had  borrowed

money which was subsequently not returned.  Having

learnt  about  the  excess  commission  and omission  by

the  Appellant,  the  General  Officer  Commanding  17

Mountain  Division  directed  a  discrete  investigation

against the Appellant.  After an investigation, Brigadier

R.K. Jha found the following acts and omissions on the

part of the Appellant :

“(i) It  was reported by the then Deputy

Commander,  Colonel  (Now  Brigadier)  S.S.

Sidhu that Mrs. Sidhu had got a call from Mrs.

L.I. Singh requesting for some money which as

per the Officer, was politely declined.   

(ii) It was reported by Major Amit Slathia,

SC that he was under severe duress to obtain

money  for  the  Appellant  from  Civil  Hired

Transport  contractors.   As  reported  by  the

Officer,  since  he  could  not  withstand  the

pressure and humiliation, he gave Rs.20,000/-

[3]

(Rupees twenty thousand only) out of his own

pocket to the Appellant, by withdrawing money

from an ATM at Pedong.  

(iii) Major  Akhil  Mendhe,  Second-in-

Command of 6 RAJ RIF who happened to be in

the Brigade Headquarters on a particular day

when Brigadier  R.K.  Jha  was  interacting  with

the officers, informed Brigadier R.K. Jha that a

loan  of  Rs.1.00.000/-  (Rupees  one lakh  only)

was arranged for Brigadier L.I. Singh, YSM from

his Unit Wet Canteen Contractor.   

(iv) Colonel  M.  Ravi  Shanker,

Commanding Officer 4/1 GR informed Brigadier

R.K.  Jha  that  when  the  Appellant  was  the

Commander,  a  loan of  Rs.2,00,000/-  (Rupees

two lakhs only) was arranged from his Unit Wet

Canteen  Contractor  for  the  Appellant,  which

was subsequently returned.  

[4]

(v) Lieutenant Colonel V.S. Parmar, Admn

Comdt  of  Station  Headquarters,  Pedong

reported  that  the  Appellant  had  taken  some

favours  from  the  vendors  dealing  with  the

Station Headquarters, Pedong.”  

4.  Brigadier  R.K.  Jha  reported  accordingly  to  the

General Officer Commanding 17 Mountain Division who

in return reported to the GOC 33 Corps. Before ordering

an  investigation,  it  was  decided  that  a  preliminary

investigation/ one man inquiry should be held. With a

view  to  find  out  the  correctness  of  the  allegations

against the Appellant, the General Officer Commanding

27  Mountain  Division  was  asked  to  carry  out  the

preliminary investigation.   

5. On  the  basis  of  the  report  submitted  in  the

preliminary  investigation  (One  Man  Inquiry)  and  the

verbal  complaints  made  by  officers  and  non-

commissioned officers to Brigadier R.K. Jha, a Court of

Inquiry was convened on 09.06.2012.               The

[5]

terms of reference given to the Court of Inquiry are as

follows:  

“(i) Borrowing  of  money  from  the  wet

canteen  contractors  of  units  under  his

command.  

(ii) Pressurizing  IC-59235K  Maj.  Amit

Slathia,  SC,  AA&QMG,  Headquarters  164

Mountain  Brigade  to  obtain  Rs.45,000/-  from

the  Civil  Hired  Transport  contractor  for  him

(Brigadier L.I. Singh, YSM).  

(iii) Illegally taking away official property

of  the Flag Staff House prior  to relinquishing

his appointment.  

(iv) Accepting  items  viz.,  Laptop  worth

Rs.62,000/-  and  Cannon  Camera  worth

Rs.56,000/-  from M/s.  United  Enterprises  and

M/s. Narbada Enterprises respectively.  

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(v) Any other misdemeanour or financial

impropriety which may have been committed.”

6. The General Inquiry Commander 33 Corps recorded

a finding against the Appellant for the following acts and

omissions:

“(i) Borrowing Rs.2,00,000/- from the Unit

Canteen Contractor of 4/1 GR Sri Paramanand

Agarwal  and  his  manager  Sri  Om  Prakash

Agarwal through Col.  Kapil  Sood then CO 4/1

GR in Jan. 2011.

  (ii) Borrowing Rs.1,00,000/- from the Unit

Canteen  Contractor  of  6  RAJ  RIF  Sri  Shiv

Prakash  Agarwal  through  Col.  H.S.  Baidwan,

SC, Commanding Officer 6 RAJ RIF in Dec.2011.

(iii) Borrowing  Rs.35,000/-  from  Hav.

Rajendra Singh of  6  RAJPUT through his  wife

Mrs. Nirmala Singh in Aug.2011.

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(iv) Directing  IC-59235K  Maj.  Amit

Slathia,  SC,  AA&QMG  of  Headquarters  164,

Mountain  Brigade to  obtain  a  gratification  of

Rs.45,000/-  from  the  Civil  Hired  Transport

Contractor for himself and thereafter accepting

Rs.20,000/-  from  Maj.  Amit  Slalthia,  SC  who

paid the same from his own pocket so as to

avoid his repeated demands.  

(v) Misappropriating  the  following

property of the Government given him for his

own use at his Flag Staff House:-

 (aa) Heat Pillar - 02

(ab) Carpet 6”  x  4” -

01

(ac) Carpet 3” x  2” -

02

(ad) Crystal Flower Pot (Medium) - 01

(ae) Crystal Flower Pot (Big) - 01

(vi) Accepting  illegal  gratification  in  the

form of a Laptop (Dell Model No.552 (XPX 15 R)

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worth  Rs.62,000/-  from  M/s.  United  Station

Headquarters,  Pedong and  Headquarters  164

Mountain Brigade.  

 (vii) Accepting  illegal  gratification  in  the

form of Canon Digital Camera (SLR EoS 60 D)

and  4  GB  card  worth  Rs.56,000/-  from  M/s.

Narbada  Enterprises,  a  firm  carrying  out

business of supplying stores with Headquarters

164 Mountain Brigade.  

(viii) Transferring  Rs.97,211/-  in  three

transactions to his daughter then studying in

New  Zealand  through  Mr.  Ramesh  Gurung

brother of No.5349475F Nk Dinesh Gurung of

3/ 4 GR so as to avoid any detection of transfer

of money from his account.  

(ix) Issuing  directions  to  IC-47865X

Lieutenant Colonel T.S. Kadian, SM to procure

items for Pedong Sainik Institute through M/s.

Narbada Enterprises only, thereby influencing

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the  entire  tendering  process  and  in  turn

obtaining items at a high rate such as Sharp

Video Projection System at Rs.95,000/- though

the prevailing market rate and DGS&D rate are

Rs.40,000/- and Rs.26,500/- respectively, thus

causing wrongful loss to the State.  

(x) Committing  financial  impropriety

leading to misappropriation of Regimental Fund

of Headquarters 164 Mountain Brigade by way

of directing IC-47865X Lieutenant Colonel T.S.

Kadian,  SM to  clear  his  personal  expenditure

incurred in the Flag Staff House and during his

visit by making false handmade bills.  Such a

practice  was  also  in  contravention  to  rules/

regulations on proper utilization of Regimental

Funds.”  

7. A prima facie case was made against the Appellant

and he was attached to the Headquarters, 20 Mountain

Division  in  accordance  with  the  provisions  of  Army

[10]

Instructions 30 of 1986.  The Appellant filed O.A. No.85

of 2013 in the Armed Forces Tribunal, Principal Bench,

New Delhi challenging the order of attachment, which

was dismissed by the Tribunal at the admission stage.

Aggrieved  by  the  said  order  of  the  Tribunal,  the

Appellant filed a Writ Petition in the High Court of Delhi.

In  the  meanwhile,  the  disciplinary  proceedings  were

initiated against the Appellant by commencing hearing

of charge in terms of Rule 22 of the Army Rules, 1954

(for  short  “the  Army  Rules”)  on  the  basis  of  the

tentative charge sheet.  During the hearing of charge,

17 witnesses were examined and the Appellant cross-

examined two witnesses.   

8. By  an  order  dated  29.04.2013,  the  High  Court

stayed further proceedings against the Appellant.  The

Writ  Petition  was  dismissed  by  an  order  dated

20.03.2015, giving liberty to the Appellant to pursue his

remedies under Section 30 and 31 of the Armed Forces

Tribunal  Act,  2008.  A  Review  Application  filed  by  the

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Appellant  was allowed by  the  Tribunal  on  27.01.2016

and the Original Application was admitted. The order by

which  the  Review  Application  was  admitted  by  the

Tribunal  was  challenged by  the Respondent-  Union of

India in this Court, unsuccessfully.  By an order dated

06.02.2019, O.A. No.85 of 2013 was finally disposed of

by directing the Respondent- Union of India to supply a

copy of the one man inquiry report to the Appellant and

to commence the disciplinary proceedings against the

Appellant.  Applications filed by the Appellant for Review

and Leave to Appeal to this Court were dismissed by the

Tribunal.   The  judgment  and  the  order  by  which

application for review was dismissed are assailed by the

Appellant in these Appeals.  

9. Consequent  upon  the  dismissal  of  O.A.  No.85  of

2013  by  the  Tribunal,  the  Appellant  reported  to  the

Headquarters, 21 Mountain Division on 17.01.2019.  A

copy of the one man inquiry was handed over to the

Appellant  and  recording  of  summary  evidence  which

[12]

commenced on 26.03.2016 was in progress.    In the

meanwhile,  the  Appellant  retired  from  service  on

30.04.2019.   Thereafter,  Section 123 of the Army Act

was  invoked  to  continue  the  disciplinary  proceedings

against the Appellant.  As the interim order passed by

this Court on 06.02.2019 was operative, the disciplinary

proceedings could not proceed.     

10. Before the Tribunal,  the Appellant contended that

initiation  of  disciplinary  proceedings  against  him  was

vitiated by mala fide.  He further contended that there

was infraction of Rule 180 of the Army Rules.  The main

submission of the Appellant before the Tribunal was that

a copy of the one man inquiry report was not furnished.

As  the  one  man  inquiry  report  was  the  basis  for

initiation  of  the  Court  of  Inquiry  proceedings,  it  was

contended  that  the  Appellant  was  deprived  of  an

opportunity  to  defend  himself  effectively  before  the

Court of Inquiry.  The Appellant further complained that

an opportunity  as  provided  by  Rule  180 of  the  Army

[13]

Rules was not extended to him during the course of the

inquiry  proceedings.   The  Tribunal  rejected  his

submission  of  any  mala  fide made  against  the

Appellant.   However,  the  Tribunal  held  that  the

Appellant was wrongfully denied a copy of the one man

inquiry report during the inquiry proceedings. Insofar as

the complaint of an opportunity not being given to the

Appellant  as  per  Rule  180  of  the  Army  Rules,  the

Tribunal  observed  that  the  Appellant  was  present

throughout the proceedings of the Court of Inquiry and

that he avoided the opportunity of cross-examining the

witnesses as well.   The allegation of  violation of  Rule

180 made by the Appellant  was not  accepted by the

Tribunal.   The Tribunal  took  note  of  the fact  that  the

disciplinary  proceedings  were  stalled  due  to  cases

pending in courts.   While  directing that  the one man

inquiry report shall be handed over to the Appellant, the

Tribunal  directed  the  Respondents  to  complete  the

process of disciplinary proceedings.   

[14]

11. Mr.  Sudhanshu  S.  Pandey,  learned  counsel

appearing  for  the  Appellant  made  a  valiant  effort  to

convince  us  that  the  initiation  of  disciplinary

proceedings  against  the  Appellant  was  due  to

extraneous  considerations.   He  submitted  that  the

records have been concocted to show compliance of the

procedure  provided  in  Rule  180  during  the  Court  of

Inquiry.  According to him, there is a clear violation of

Rule 180 of the Army Rules as the Appellant was not

given  sufficient  opportunity  to  defend  himself.   He

submitted that the Appellant is being tormented with an

ulterior  motive  in  spite  of  his  retirement  after  a

meritorious record of service.            He urged that the

entire  disciplinary  proceedings  should  be  quashed  as

the  Appellant  has  been  victimized  on  the  basis  of

certain frivolous complaints even after his retirement.   

12. Mr.  R.  Balasubramanian,  learned  Senior  Counsel

appearing  for  the  Respondents  produced  the  original

record  of  the  Court  of  Inquiry.   Mr.  Balasubramanian

[15]

submitted that there is no truth in the allegation that

the records have been manipulated by the Respondents.

He submitted that the one man inquiry was only in the

nature of a preliminary investigation to verify the facts

before  the  Court  of  Inquiry  was  ordered  against  the

Appellant.  He argued that there was no violation of the

Rule 180 of the Army Rules as held by the Tribunal.  He

submitted  that  full  opportunity  was  given  to  the

Appellant during the course of the proceedings before

the Court of Inquiry.  He stoutly defended the judgment

of  the  Tribunal  by  commending  for  our  consideration

non- interference with the judgment of the Tribunal.     

13. In view of the order we propose to pass, it is not

required  to  take  into  consideration  the  submissions

made  on  behalf  of  the  Appellant  regarding  the

allegation  of  mala  fides.   Admittedly,  the  one  man

inquiry report was not furnished to the Appellant.  There

is  no dispute that  the basis  for  the convening of  the

Court  of  Inquiry  is  the  one  man  inquiry  report.  The

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Tribunal directed the Respondents to provide a copy of

the  one  man  inquiry  report  to  the  Appellant  before

continuing with the disciplinary proceedings against the

Appellant. Though, we are not disturbing the findings of

the Tribunal regarding the compliance of Rule 180 of the

Army  Rules,  we  are  of  the  considered  opinion  that

the direction given by the Tribunal requires modification.

Without the report of the one man inquiry, the Appellant

was  certainly  disabled  from  effectively  defending

himself in the Court of Inquiry.  The Appellant is entitled

to  an  opportunity  to  cross  examine  the  witnesses

against him after examining the one man inquiry report.

Further, the Appellant raised the issue of the one man

inquiry report not being provided to him at the earliest

possible time.  Therefore, the directions issued by the

Tribunal  that  disciplinary  proceedings  be  conducted

afresh requires to be modified.  The Court of Inquiry has

to  be  conducted  afresh.   The Appellant  is  entitled  to

cross-examine witnesses and produce witnesses in his

favour.   

[17]

14. For  the  aforementioned  reasons,  we  affirm  the

judgment  of  the  Tribunal  with  the  modification

mentioned above.  The Court of  Inquiry shall  be held

against  the  Appellant  afresh.   As  the  Appellant  has

retired  from  service,  the  Court  of  Inquiry  may  be

initiated  and  completed  expeditiously.   Further

proceedings,  if  any,  may  be  conducted  without  any

delay.   

15. The Appeals are disposed of accordingly.   

                          ..

…………….........................J.                                                                    [ L.

NAGESWARA RAO]        

                                                       ..…………..

……...................J.                                                                 [ AJAY

RASTOGI ]

New Delhi, December 17, 2019.

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