REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLANTE JURISDICTION

CIVIL APPEAL No.1714 OF 2019 (Arising out of SLP(C) No.3480 of 2019)

UNION OF INDIA & ORS              APPELLANTS

VERSUS

LT COLONEL DHARAMVIR SINGH              RESPONDENT

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 The  respondent  is  a  Lieutenant  Colonel  in  the  Indian  Army.  On  20

September 2016,  as an officer of the Intelligence Corps, he was posted to 3

Corps Intelligence and Surveillance Unit1. On 30 June 2018 he was posted from

3  CISU  as  an  Officer  Commanding   2  Detachment  in  Imphal  to  Nanded  in

1[“3 CISU”]  

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Maharashtra.  His successor, Lt Colonel RP Nanda addressed two letters on 30

June 2018 and 2 July 2018 to his Commanding Officer implicating breaches of

discipline,   violations of  the  Arms Act  1959,   and security  and administrative

lapses by the respondent.  According to the petitioners,   on being directed to

report  to  Unit  Headquarters  by  his  Commanding  Officer  at  3  CISU,  the

respondent moved to Dimapur. On 4 July 2018 a Habeas Corpus Petition2 was

instituted before the High Court of Manipur by his spouse. On 5 July 2018, the

High Court directed the authorities to ensure the presence of the respondent. In

compliance with the order of the High Court, the respondent appeared in Court,

when an order was passed, recording that:

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

On 5 October  2018 an order  was issued attaching the respondent  to  Hq 56

Artillery  Brigade  Unit  for  initiating  disciplinary  action  under  Army  Instructions

30/86. He instituted a Writ Petition before the High Court of Manipur under Article

226 of the Constitution, seeking to challenge the validity of the attachment order

dated 5 October 2018 issued 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 :

“Attachment Order : 1. Ref. HQ Eastern Comd Letter No.201940/157/A1(Dv-2) dated

29 Sep 2018 (copy enclosed for ready reference). 2. IC 57196X Lt. Col. Dharamvir Singh ex OC No.2 FID, 3 CISU

presently  posted  to  52  Maharashtra  NCC  Bn,  Nanded, Maharashtra is hereby attached to 56 Arty Bde/56 Inf Div/3 Corps under the provisions of AI 30/86.

2 Habeas Corpus Petition No 11 of 2018

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

3 The  order  of  attachment  was  followed  by  a  communication  dated  2

November  2018  of  HQ  DG  NCC,  Ministry  of  Defence  and  a  similar

communication of the NCC Directorate, Maharashtra requiring the respondent to

report to 56 Arty Bde/56 Inf Div/3 Corps.

4 The Writ Petition which was instituted before the High Court of Manipur on

5 November 2018, specifically called into question the legality of these orders.

The prayers in the petition are extracted below:

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

5 A learned Single Judge of the High Court entertained the Writ Petition on 5

November 2018. A submission was made before the High Court that an order of

attachment, as prescribed under Army Instruction No.30 of 1986, can be ordered

only when a disciplinary action has been contemplated and when the order of

attachment  was issued on 5  October  2018,  a  tentative  charge-sheet  had not

been furnished to the officer.

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6 An objection was raised to the jurisdiction of the High Court to entertain the

Writ Petition, since the respondent at the time of the initiation of the action of

attachment was based at Nanded in Maharashtra and the orders were issued by

the Headquarters at New Delhi. Yet the High Court proceeded to entertain the

Writ  Petition  on  the  submission  which  was  urged  before  it  that  the  order  of

attachment had been issued for the purpose of holding an enquiry in respect of

incidents  which  had taken  place  at  Imphal  when the  respondent  was  posted

there. The hearing was adjourned to 23 November 2018 to consider the objection

to the maintainability of the Writ Petition. Until then the orders impugned were

stayed.  

7 On 24 January 2019, the High Court confirmed the earlier ad-interim order.

While doing so, the High Court adverted to a file which was placed in a sealed

cover before it. The High Court noted that the order of attachment was ordered

pursuant  to  a  communication  dated  29  September  2018  of  the  Lieutenant

General and General Officer Commanding (GOC) enclosing a report dated 2 July

2018 of Lt Col R P Nanda, who was transferred in place of the respondent. It is at

that stage that the High Court also noted that the order of attachment appeared

to have been issued after the respondent had filed an affidavit on 20 July 2018 in

Writ Petition (Crl.) No. 11 of 2018. The High Court observed that the subject of

the said Criminal Writ Petition pertained to an allegation against certain members

of the 3 Corps Intelligence Unit going back to 18 August 2011. The High Court

took note of the fact that an SIT has been constituted by the Guwahati High Court

in Writ Petition (C) 2481 of 2014. On the basis that nothing appears to have been

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done by any authority in respect of the alleged incidents which took place on 18

August  2011,  the  High  Court  proceeded to  confirm its  interim order  dated  5

November 2018.

8 Notice was issued by this Court in the present proceedings on 8 February

2019.  In  the  meantime,  further  proceedings  before  the  High  Court  and  the

impugned orders dated 5 November 2018 and 24 January 2019 were stayed.

9 On service of notice, on the request of Mr Colin Gonsalves, learned Senior

Counsel appearing on behalf of the respondent, the Special Leave Petition was

directed to be listed on 15 February 2019 since it was apprehended that in view

of the interim order of this Court the disciplinary jurisdiction would be invoked.  

10 We have accordingly  heard Mr Aman Lekhi,  learned Additional  Solicitor

General  of  India (ASG) with Mr R Balasubramanian, learned Counsel and Mr

Colin  Gonsalves,  learned  Senior  Counsel  with  Mr  Shreeji  Bhavsar,  learned

Counsel.  

11 The submission which has been urged on behalf of the appellants by Mr

Aman Lekhi, learned ASG is that in entertaining the Writ Petition, the High Court

has encroached upon an area which falls within the discipline of the Army. The

respondent, it has been submitted, is an officer governed by the Army Act 1950.

The provisions of the Armed Forces Tribunal Act 2007 govern all matters relating

to  the  conditions  of  service  including  discipline  and  other  issues.  In  the

circumstances, it was urged that there was no justification for the Manipur High

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Court  to  entertain  the  Writ  Petition.  At  the  relevant  time,  before  the  order  of

attachment  was  issued,  the  respondent  had  been  posted  to  Nanded  in

Maharashtra. The ASG submitted that the exercise of the jurisdiction by the High

Court virtually pre-empts the disciplinary jurisdiction of the competent authority in

respect of an officer governed by the Army Act 1950.     

12 Mr  Colin  Gonsalves,  learned  Senior  Counsel  submitted  that  the

respondent had addressed a communication on 9 September 2016 to the GOC-

in-C, Eastern Command making allegations in regard to certain incidents which

took place in 2011. Learned Counsel urged that the respondent was pressurized

by the then CO, 3 CISU to withdraw his letter dated 9 September 2016 which he

did on 20 September 2017. A complaint, he submits, was addressed to the Chief

of the Army Staff on 1 July 2018. Mr Gonsalves submitted that the learned Single

Judge of the High Court was justified in entertaining the Writ Petition since the

respondent, in an affidavit filed in Writ Petition No. 11 of 2018, has made serious

allegations in regard to the conduct of the members of 3 Corps Intelligence and

Surveillance Unit in regard to the death of three individuals from Manipur in 2010-

2011.  In  the  alternative,  Mr  Gonsalves,  submitted  that  attachment  of  the

respondent may be altered to another unit so as to ensure fair dealing.

13 In our view, the High Court was manifestly in error in entering upon an area

which relates to the exercise of the disciplinary jurisdiction of the Army under the

Army  Act  1950.  The  admitted  position  is  that  the  respondent  was  posted  at

Nanded in Maharashtra. The learned Single Judge had no reasonable basis to

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exercise jurisdiction. Mr Gonsalves has adverted to the fact that the spouse of the

respondent initiated a petition for habeas corpus initially before the High Court of

Manipur. Significantly, the challenge in the Writ Petition which was instituted by

the  respondent  before  the  High  Court  related  exclusively  to  the  order  of

attachment dated 5 October 2018, which was followed by two communications

dated 2 November 2018 requiring him to proceed to the place of attachment. An

officer  subject  to  the  discipline  of  the  Army  Act  1950  must  abide  by  the

regulations,  if  the  disciplinary  jurisdiction  is  sought  to  be  invoked.  It  was

manifestly inappropriate for the High Court to take upon itself the task of pre-

empting the exercise of that jurisdiction and taking over the essential function of

determining  whether  or  not  recourse  to  the  disciplinary  jurisdiction  was

warranted.  

14 Mr Colin Gonsalves has placed reliance on a communication which was

issued  by  the  respondent  to  Lt  Gen  Praveen  Bakshi,  GOC-in-C,  Eastern

Command on 9 September 2016. There was no material before the High Court to

link the initiation of the disciplinary enquiry to the grievance which was made by

the respondent as far back as on 20 September 2016.

15 The assumption of jurisdiction by the High Court in a Writ Petition under

Article 226 of the Constitution was misconceived. We are also of the view that

having regard to the definition of the expression “service matters” in Section 3(o)

of the Armed Forces Tribunal Act 2007 and the jurisdiction of the Armed Forces

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Tribunal  under  Section  14,  such  a  Writ  Petition  ought  not  to  have  been

entertained by the High Court. The learned Single Judge should have exercised

caution and ought to have been circumspect before he proceeded to stay an

order  of  attachment.  Such  pre-emptive  judicial  strikes  are  unwarranted.  The

course of action followed by the Single Judge has serious repercussions for the

maintenance  of  discipline  in  the  Army.  Discipline  is  the  essence  of  the

organisation and structure of  an Armed Force. Before concluding, we make it

clear that we have expressed no opinion on the merits of the allegations, in the

exercise of the disciplinary jurisdiction which shall be dealt with in accordance

with law. There is no merit in the alternate submission. This Court cannot take

over the function of determining which unit the respondent should be assigned,

pending the disciplinary proceedings.   

16 We allow the appeal and set aside the impugned orders of the High Court

dated 5 November 2018 and 24 January 2019. In consequence, Writ  Petition

(Civil) 1031 of 2018 filed by the respondent before the High Court of Manipur

shall stand dismissed. There shall be no order as to costs. Pending applications

are accordingly disposed of.

……..…….……………………………………….J    [Dr DHANANJAYA Y CHANDRACHUD]  

                      …….…..…….………………………………….J     [HEMANT GUPTA]

NEW DELHI  FEBRUARY 15, 2019

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