IC-56663X COL ANIL KUMAR GUPTAversusUNION OF INDIA & ORS.

700                      [2022]REPORTS
               SUPREME COURT    9 S.C.R. 700               [2022] 9 S.C.R.


A                       IC-56663X COL ANIL KUMAR
                                    GUPTA
                                        v.
                          UNION OF INDIA & ORS.
B                        (Civil Appeal No. 8968 of 2019)
                             NOVEMBER 07,2022
        [UDAY UMESH LALIT, CJI AND BELA M. TRIVEDI, J.]
             Army Act, 1950: s.122 – Limitation – In terms of s.122 of the
C     Army Act, no trial by Court Martial of any person subject to the
      Army Act, for any offence could be commenced after the expiration
      of a period of three years, and such period would commence on the
      date of offence or where the commission of the offence was not
      known to the person aggrieved by the offence or to the authority
      competent to initiate action, the first day on which such offence
D
      comes to the knowledge of such person or authority, whichever is
      earlier – In the instant case, aggrieved army officer wrote a letter
      to concerned authority that he was aware that appellant-army
      officer was sending indecent messages to his wife which were
      sexually explicit in nature and that he had reasonable cause to
E     believe that the appellant and his wife had indulged in illegitimate
      physical relationship with each other – The date on which letter
      was written would be the crucial date on which the aggrieved person
      had the knowledge about the commission of the alleged offence –
      The time started running from the said date for the purpose of s.122
      of the Act – Hence for the purpose of s.122, the two dates will be
F
      relevant i.e., the date when the alleged offence comes to the
      knowledge of the person aggrieved and the date on which the
      authority competent to initiate action comes to know about the
      alleged offence – Trial by the General Court Martial began after
      three years and therefore was clearly barred under s.122 of the Act
G     – The said proceedings are quashed – However, as per the well
      settled legal position, the power of judicial review in the matter of
      disciplinary proceedings is extremely limited – It is circumscribed
      by the limits of correcting errors of law or procedural errors leading
      to manifest injustice or violation of principles of natural justice –
      The power of judicial review is an evaluation of the decision-making
H
                                       700
 IC-56663X COL ANIL KUMAR GUPTA v. UNION OF INDIA &                     701
                        ORS.

process and not of the merits of the decision itself – Therefore, the   A
disciplinary proceedings initiated against the appellant pursuant
to the chargesheet shall continue in accordance with law –
Administrative law – Judicial review.
      Partly allowing the appeal, the Court
      HELD: 1. For the purpose of Section 122, the two dates            B
will be relevant i.e., the date when the alleged offence comes to
the knowledge of the person aggrieved and the date on which
the authority competent to initiate action comes to know about
the alleged offence. As per Section 3(xvii) “offence” means any
act or omission punishable under the said Act and includes a civil      C
offence as defined in Section 3(ii) which means an offence triable
by a criminal court. Chapter-VI of the Army Act deals with the
offences. Section 45 which falls under the said Chapter states
that Army officer, junior commissioner officer or warrant officer
who behaves in a manner unbecoming his position and the
character expected of him shall be liable to suffer punishment as       D
prescribed therein. [Para 8][706-F-H; 707-A]
       2. In the instant case, having regard to the contents of the
letter dated 13.08.2015 written by the aggrieved person to the
concerned authority, it clearly transpires that he was aware of
the alleged act of the appellant having stolen the affection of his     E
wife on the date of the said letter. He had specifically mentioned
in the said letter that it was for bringing to the notice of the
concerned authority about the appellant’s act of stealing affection
of his wife. He had further alleged therein that the appellant was
sending indecent messages to his wife which were sexually               F
explicit in nature and that he had reasonable cause to believe
that the appellant and his wife had indulged in illegitimate physical
relationship with each other. Therefore, the date 13.08.2015
would be the crucial date on which the aggrieved person had the
knowledge about the commission of the alleged offence.
Therefore the time had started running from the said date for the       G
purpose of Section 122 of the said Act. The Convening Authority
having directed the trial by General Court Martial vide order
dated 22.11.2018, the same was clearly beyond three years and
therefore barred under Section 122 of the Act. However, as per
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702            SUPREME COURT REPORTS                         [2022] 9 S.C.R.


A     the well settled legal position, the power of judicial review in the
      matter of disciplinary proceedings is extremely limited. It is
      circumscribed by the limits of correcting errors of law or
      procedural errors leading to manifest injustice or violation of
      principles of natural justice. The power of judicial review is an
      evaluation of the decision-making process and not of the merits
B
      of the decision itself. It is therefore clarified that the disciplinary
      proceedings initiated against the appellant pursuant to the
      chargesheet issued on 19.11.2018 shall continue in accordance
      with law. [Paras 9, 11][707-B-D, F; 708-A-B]
            Regional Manager, UCO Bank and Anr. v. Krishna
C           Kumar Bhardwaj (2022) 5 SCC 695 – relied on.
                              Case Law Reference
      (2022) 5 SCC 695                 relied on                Para 11
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8968
D     of 2019.
            From the Judgment and Order dated 30.09.2019 of the Armed
      Forces Tribunal, Principal Bench, New Delhi in OA No.32 of 2019 with
      MA No. 645 of 2019.
            Indra Sen Singh, Abhishek Singh, Aditya Bari, Elvin Joshy, Ujjawal
E
      Verma, J. Amal Anand, Ms. Alisha Sharma, Sarvesh Singh, Advs. for
      the Appellant.
           R. Balasubramanian, Sr. Adv., Kanu Agrawal, Praneet Pranav,
      Ms. Neela Kedar Gokhale, Arvind Kumar Sharma, Advs. for the
      Respondents.
F
            The Judgment of the Court was delivered by
            BELA M. TRIVEDI, J.
             1. The present appeal filed by the appellant under Section 30(1)
      of the Armed Forces Tribunal Act, 2007 is directed against the impugned
G     judgment and order dated 30.09.2019 passed by the Court No. 2 Armed
      Forces Tribunal, Principal Bench, New Delhi (hereinafter referred to as
      “the Tribunal”) in O.A. No. 32 of 2019 with M.A. No. 645 of 2019,
      whereby the Tribunal has dismissed the said O.A. filed by the appellant.
      The O.A. No. 32 of 2019 was preferred by the appellant before the
H     Tribunal challenging the charge-sheet dated 19.11.2018 containing three
 IC-56663X COL ANIL KUMAR GUPTA v. UNION OF INDIA &                          703
               ORS. [BELA M. TRIVEDI, J.]

charges pertaining to the appellant having behaved in a manner               A
unbecoming his position and the character expected of him, under Section
45 of the Army Act, 1950, and challenging the order dated 22.11.2018
passed by Convening Authority directing the trial of the appellant by
way of General Court Martial (GCM).
       2. The short facts leading to the present appeal are that the         B
appellant was commissioned as an officer in the Indian Army in 14
battalion of the Rajputana Rifles (Infantry) on 07.12.1996. On 13.08.2015,
Col. Ramneesh Pal Singh, a close friend and colleague of the appellant
wrote a letter to Brig. Ajav Vig which is reproduced hereunder:
                         “CONFIDENTIAL                                       C
      Colonel Ramneesh Pal Singh 14th Battalion The Rajputana
      Rifles
      Commanding Officer                           PIN-912014
                                                   C/o 56 APO
                                                                             D
      RPS156206/Pers                                       13, Aug 15
      Brig Ajav Vig
      Cdr
      79Mtn Bde
      Pin-908079                                                             E

      C/o 56 APO
    COMPLAINT IN R/O IC 56663 COL ANIL K GUPTA
      1. I am writing, this letter to bring to your notice an act of
      stealing brother officer’s affection by LC 56663, Col Anil             F
      K Gupta. The officer is presently posted at HQ DG NCC in
      New Delhi, tenanting the appt of Dir NCC (PLU) COORD.
      2. The offr has been sending indecent msgs to my wife,
      which sexually explicit in nature and there is reasonable
      cause to believe it they have indulged in illegitimate physical        G
      relationship My wife, Mrs. Sugandhi Aggarwal has been
      equally involved and has reciprocated positively to these
      msgs. The offr vis my house in Delhi on 13th Jul 2015, after
      lying to his wife about some official social engagement and
      was present there from 2030H, for approx. two hours.
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704            SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A           3. With regard to my marriage, I intend initiating divorce
            proceedings in the civ court, based on charges of infidelity.
            However, I would request you to initiate suitable inquiry
            into the incident and take up case for disep action against
            the offr, as deemed fit. May I also request you to initiate
            the process for forthwith posting out of Col AK Gupta from
B
            Delhi.
                                                          With warm regards
                                                                     Sd/-
                                CONFIDENTIAL
C
            Sd/-31.10.15           Sd/-31.10.15          Sd/-31/10 XV”
             3. Consequent to the said letter, a Court of Inquiry was conducted
      by the HQ Delhi Area to investigate into the complaint made by Col.
      Ramneesh Pal Singh. The said Court of Inquiry was finalized on
D     11.11.2016 with the directions of GOC Delhi Area to initiate disciplinary
      proceedings against the appellant. After the hearing of the Charge in
      terms of Army Rule 22, on 24.07.2017 directions were given for recording
      the Summary of Evidence. On the completion of Summary of Evidence,
      a prima facie case was made out against the Appellant and accordingly,
      three charges were framed against the appellant with regard to he having
E     behaved in the manner unbecoming his position and character expected
      of him, under Section 45 of the Army Act vide the charge-sheet dated
      19.11.2018. Consequent thereto, on 22.11.2018 the Convening Authority
      directed the trial by General Court Martial.
              4. The appellant vide his letter dated 04.01.2019 addressed to the
F     Convening Authority, raised an issue pertaining to the period of limitation
      in terms of Section 122 of the Army Act, however, since the directions
      for trial were given, he was advised to raise the issue before the General
      Court Martial. The appellant, thereafter on 07.01.2019, filed an Original
      Application being no.32/2019 before the Tribunal under Section 14 of
      the Armed Forces Tribunal Act, 2007, challenging the charge-sheet dated
G
      19.11.2018 as well as the order dated 22.11.2018 passed by the Convening
      Authority directing trial of the appellant by General Court Martial. The
      said OA having been dismissed by the Tribunal vide the impugned
      judgment and order, the present appeal is filed. This Court vide the order
      dated 02.12.2019, while issuing a notice to the respondents, had stayed
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 IC-56663X COL ANIL KUMAR GUPTA v. UNION OF INDIA &                          705
               ORS. [BELA M. TRIVEDI, J.]

the disciplinary proceedings as well as the General Court Martial            A
proceedings.
       5. The learned counsel appearing for the appellant relying upon
Section 122 of the Army Act submitted that the trial by Court Martial
was vitiated being barred by the period of limitation prescribed under the
said provision. According to him the aggrieved person i.e. Col. Ramneesh     B
Singh knew about the commission of the alleged offence when he wrote
the letter on 13.08.2015 and the Convening Authority had passed the
order directing the trial by the General Court Martial on 22.11.2018 i.e.
three years after the letter written by Col. Ramneesh Singh. Hence the
period of three years having already expired as contemplated in Section
122 of the Army Act, the Tribunal had committed an error in not quashing     C
the order dated 22.11.2018 passed by the Convening Authority and
consequently the trial proceedings. He also submitted that the charge-
sheet dated 19.11.2018 framing three charges against the appellant under
Section 45 of the Army Act, based on the said allegations was also
required to be quashed and set aside.                                        D

appearing for the respondents vehemently submitted that from the letter
dated 13.08.2015 written by the aggrieved person Col. Ramneesh Singh
it could not be construed that he had the knowledge about the commission
of the alleged offence by the appellant. According to him, after the         E
completion of Summary of Evidence, a prima facie case was made out
against the appellant and hence the charge-sheet was issued on
19.11.2018 and consequently the Convening Authority had directed the
trial by the General Court Martial vide order dated 22.11.2018. He also
drew the attention of the Court to the letter dated 03.11.2000 written by
the Lt. General, Adjutant General’s Branch, Army Headquarters DHQ            F
PO, New Delhi containing the policy dealing with disciplinary aspect of
matrimonial affairs of officers, which mentioned as to what constituted
the alleged misbehavior amounting to adultery, to submit that it was only
after conducting a court inquiry, it could be concluded that an alleged
offence of stealing the affection of the officer’s wife has been committed   G
by the officer or not, and in the instant case, the said offence was prima
facie made out only after the completion of Summary of Evidence. He
further submitted that since the department has initiated the departmental
proceedings against the appellant for the charges which are of serious
nature, the Tribunal had rightly not interfered with the said proceedings.
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706             SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A            7. In order to appreciate the rival contentions raised by the learned
      counsel for the parties, it would be apposite to reproduce the relevant
      provision contained in Section 122 of the Army Act, which reads as
      under:
            “122. Period of Limitation for trial – (1) Except as provided
B           by sub-section (2), no trial by court-martial of any person
            subject to this Act for any offence shall be commenced after
            the expiration of a period of three years and such period
            shall commence-
            (a) on the date of the offence or,
C           (b) where the commission of the offence was not known to
            the person aggrieved by the offence or to the authority
            competent to initiate action, the first day on which such
            offence comes to the knowledge of such person or authority,
            whichever is earlier or
D           (c) where it is not known by whom the offence was
            committed, the first day on which the identity of the offender
            is known to the person aggrieved by the offence or to the
            authority competent to initiate action, whichever is
            earlier…”
E            8. From the bare reading of the said provision, it clearly transpires
      that no trial by Court Martial of any person subject to the Army Act, for
      any offence could be commenced after the expiration of a period of
      three years, and such period would commence on the date of offence or
      where the commission of the offence was not known to the person
F     aggrieved by the offence or to the authority competent to initiate action,
      the first day on which such offence comes to the knowledge of such
      person or authority, whichever is earlier. Hence for the purpose of Section
      122, the two dates will be relevant i.e., the date when the alleged offence
      comes to the knowledge of the person aggrieved and the date on which
      the authority competent to initiate action comes to know about the alleged
G     offence. As per Section 3(xvii) “offence” means any act or omission
      punishable under the said Act and includes a civil offence as defined in
      Section 3(ii) which means an offence triable by a criminal court. Chapter-
      VI of the Army Act deals with the offences. Section 45 which falls
      under the said Chapter states that Army officer, junior commissioner
      officer or warrant officer who behaves in a manner unbecoming his
H
 IC-56663X COL ANIL KUMAR GUPTA v. UNION OF INDIA &                             707
               ORS. [BELA M. TRIVEDI, J.]

position and the character expected of him shall be liable to suffer            A
punishment as prescribed therein.
        9. In the instant case, having regard to the contents of the letter
dated 13.08.2015 written by the aggrieved person i.e., Col. Ramneesh
Singh to the concerned authority, it clearly transpires that he was aware
of the alleged act of the appellant having stolen the affection of his wife     B
on the date of the said letter. He had specifically mentioned in the said
letter that it was for bringing to the notice of the concerned authority
about the appellant’s act of stealing affection of his wife. He had further
alleged therein that the appellant was sending indecent messages to his
wife which were sexually explicit in nature and that he had reasonable
cause to believe that the appellant and his wife had indulged in illegitimate   C
physical relationship with each other. Therefore, the date 13.08.2015
would be the crucial date on which the aggrieved person had the
knowledge about the commission of the alleged offence. Therefore the
time had started running from the said date for the purpose of Section
122 of the said Act. In that view of the matter, the submission of the          D
learned senior advocate appearing for the respondents that date of
aggrieved person’s knowledge about the commission of the alleged
offence by the appellant, should be construed as the date when the
respondents prima facie concluded after the Court of Inquiry that the
appellant had committed the offence, cannot be accepted. The date
13.08.2015 therefore would be the date on which the aggrieved persons           E
i.e., Col. Ramneesh Pal Singh had the knowledge about the commission
of the alleged offence by the appellant. The Convening Authority having
directed the trial by General Court Martial vide order dated 22.11.2018,
the same was clearly beyond three years and therefore barred under
Section 122 of the Act.                                                         F
      10. We are therefore of the opinion that the trial by the General
Court Martial directed vide the order dated 22.11.2018 was clearly barred
under Section 122 of the Army Act. The said proceedings deserve to be
quashed and set aside and are accordingly set aside.
       11. However, we hasten to add that as per the well settled legal         G
position1, the power of judicial review in the matter of disciplinary
proceedings is extremely limited. It is circumscribed by the limits of
correcting errors of law or procedural errors leading to manifest injustice
1
  Regional Manager, UCO Bank and Anr. vs. Krishna Kumar Bhardwaj, (2022) 5
SCC 695                                                                         H
708              SUPREME COURT REPORTS                             [2022] 9 S.C.R.


A     or violation of principles of natural justice. The power of judicial review
      is an evaluation of the decision-making process and not of the merits of
      the decision itself. It is therefore clarified that the disciplinary proceedings
      initiated against the appellant pursuant to the chargesheet issued on
      19.11.2018 shall continue in accordance with law.
B            12. The appeal stands partly allowed accordingly.


      Devika Gujral                                              Appeal partly allowed.



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