Holding

The Supreme Court held that the non‑examination of witnesses for charges 1‑3 violated natural justice and Rule 43, making the convening order for those charges perverse and therefore set aside.

Summary

Rajiv Arora, a commissioned officer of the Indian Air Force, applied for premature retirement and received a good conduct certificate, but a disciplinary proceeding was later initiated against him with seven charges. A General Court Martial was convened, but the witnesses for the first three charges were not examined, leading Arora to file a writ petition seeking quash of the proceedings, which the Delhi High Court dismissed. On appeal, the Supreme Court examined whether the non‑examination of these witnesses violated the principles of natural justice and Rule 43 of the Air Force Rules, which require the convening officer to be satisfied that evidence justifies a trial. The Court held that the failure to examine the prime witnesses amounted to a gross violation of natural justice and rendered the convening order for charges 1‑3 perverse. Consequently, the judgments on charges 1‑3 were set aside, while the Court Martial was allowed to continue on charges 4‑7. The appeal was therefore partly allowed.

Issues considered

Whether the non‑examination of witnesses for charges 1‑3 in a General Court Martial violates the principles of natural justice and Rule 43 of the Air Force Rules.
Whether the High Court erred in holding that no prejudice was caused and in not exercising its jurisdiction of judicial review.
Whether the convening officer satisfied the legal requirement of having evidence justifying a trial before issuing the convening order.

Legislation cited

Air Force Act, 1950s. 40(a), s. 45, s. 47, s. 48, s. 65
Indian Evidence Act, 1872

Subjects

Court MartialNatural JusticeAir Force RulesRule 43EvidenceNon‑examination of witnessesMilitary lawDisciplinary proceedings

Judgment

..
[2008] 12 S.C.R. 1026

A RAJIV ARORA
"1c--
V.
UNION OF INDIA & ORS.
(Civil Appeal No.5306 of 2008)
AUGUST 29, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
~
Air Force Rules; R.43:-
Court Martial - Charges of misconduct - Non-
c examination of witnesses - Effect of - Held: No reason has
· been assigned as to why the named witnesses who only could
prove the charge had not been examined in the Court Martial
proceedings - Since there has been a gross violation of the
principles of natural justice, the High Court should have
D exercised its power of judicial review - Before convening a
Court Martial proceeding, legal requirement therefor must be
satisfied - Satisfaction must be based on a finding that :-r·
evidence justified a trial on these charges - An order passed
without any evidence must be held to be perverse - Hence,
"
E. the impugned order in regard to Charge Nos. 1, 2, 3 cannot be
sustained as witnesses have not been examined to prove
these charges - Evidence - Principles of natural justice -
Compliance - Discussed.
Appellant, a commissioned Officer in the Indian Air
F Force, applied for premature retirement. A good conduct
certificate was issued by the office. However, a -+
,I..
disciplinary proceeding was initiated against him and a
charge-sheet was issued leveling 7 charges against him.
Later, a convening order was issued for trial by a General
G Court Martial. He filed an application for substitution of
the Judge Advocate. The application was rejected by the ·k
authority. In the Court Martial proceedings the witness
named in respect of first three charges have not been
examined. Aggrieved, the employee filed a writ petition
H 1026
RAJIV ARORA v. UNION OF !NOIA & ORS. 1027

-1·
for quashing the proceedings before the Court Martial, A
which was dismissed by the High Court. Hence the
present appeal.
Partly allowing the appeal, the Court
HELD: 1.1A plea that no prejudice has been caused 8
.. to the petitioner due to non-examination of the said
witnesses has been raised by respondents on the premise
that a report had been furnished, inter alia, in respect of
charge No.2 and the same has been produced in the
summary of evidence. Whether prejudice has been c
caused by non-examination of witnesses named in the
charge-sheet is essentially a question of fact. An inference
is required to be drawn having regard to the facts and
circumstances obtaining in each case. The charges
framed as against the appellant were specific. The
0
misconducts said to have been committed are in relation
' ;. to the persons named therein. No explanation has been
offered as to why the such witnesses could not be
examined. PW-7 was the custodian of the report. He was
not the maker thereof. Effective cross-examination could
have been done as regards the correctness or otherwise E
of the report, if its contents were to be proved. The
principles analogous to the provisions of the Indian
Evidence Act as also the principles of natural justice
demand that the maker of the report should be examined,
t.
. save and except in cases where the facts are admitted or F
the witnesses are not available for cross-examination or
similar situation. No reason has been assigned as to why
the named witnesses who only could prove the charge
had not been examined. Indisputably, they were the prime
,..,. witnesses. (Paras - 11,12,13) [1033,C-H; 1034,A-B] G
1.2 The High Court in its impugned judgment
proceeded to consider the issue on a technical plea that no
prejudice has been caused to the appellant by such non-
examination. If the basic principles of law have not been
H
1028 SUPREME COURT REPORTS [2008] 12 S.C.R.

.....-
A complied with or there 'has been a gross violation of the
principles of natural justice, the High Court should have
exercised its jurisdiction of judicial review. [para 14] [1034,C]
. -
1.3 Before a court martial proceeding is convened,
legal requirements therefor must be satisfied. Satisfaction
B of the officer concerned must be premised on a finding
-{-
that evidence justified a trial on those charges. Such a
satisfaction cannot be arrived at without any evidence. If
an order is passed without any evidence, the same must
be held to be perverse. The High Court was not correct
c in opining that the appellant did not raise any objection
in tll~ said proceedings. Hence, the impugned judgment
in regard to the charge Nos.1, 2 and 3 cannot be sustained.
~
They are set aside accordingly. Since witnesses for proving
charge Nos.4 to 7 have been examined, the General Court
D Martial Proceedings shall continue in respect of charge
NosA to 7. (Paras - 14, 15 & 16) [1034,C-F] · !

CIVILAPPELLATE.JURISDICTION: Civil Appeal No. 5306 "
·of 2008
E From the final Judgment and Order dated 16.11.2006 of ·
the High Court of Delhi at New Delhi in WP ~C) No. 10271 of
2006
WITH

F - ~- C.A. No. 5307 of 2008 :+ .
/>.
Major K. Ramesh (for Dr. Kailash Chand) for the Appellant.
Mohan Parasaran, ASG., P.. Narasimhan and B. Krishna
. .
Prasad for the Respondents.
·G The J'1dgment of the Court was delivered by ~

S.B.SINHA,_ J. 1.. Leave
. . granted. f
I
2. While appeal arising OJ.Jt of SLP (C) No. 3385 of 2007
is_ directed against a judgment and· order dated 16.11.2006
H passed by the Div1sion Bench o'f the High Courfof Delhi whereby
RAJIV ARlSRA v. UNION OF ·INDIA & ORS. 1029
[S.B.SINHA, J.]

and whereunder a writ petition filed by the appellant herein A ,
questioning the validity of a Court Martial proceeding has been
dismissed, appeal arising out of SLP (C) No.5916 of 2007 is
directed against the order dated 19th December, 2006 passed
in the review petition.
,, 3. We may, before adverting to the contentions raised by 8
th.e parties, notice the admitted fact of the matter.
4. Appellant was commissioned in the Indian Air Force on
_ or about 6.12.1985. He filed an application for posting to MOFT
Unit so as to enable him to fly MIG 21 Fighter Aircrafts. The c
said application was rejected. He applied for premature
retirement. A good conduct certificate was issued in his favour.
However, a disciplinary proceeding was initiated against him
on or about 20.1.2006 in respect whereof a charge-sheet was

"FIRST AN ACT PREJUDICIAL TO GOOD D
CHARGE ORDER AND AIR FORCE
SECTION 65 DISCIPLINE
AIR FORCE
ACT, 1950 In that he
- At New Delhi on the night of 28/29 Apr. 05, E
improperly introduced himself as husband
of Mrs. Ambika Singhania to Head
Constable Ranbir and Constable
· Dharmendeer, Police Personnel of Delhi
' '
Police, knowing such statement.to.!>~ false. F
SECON.D · BEHAVING IN A MANNER
CHARGE. · UNBECOMING THE POSITION AND
SECTION 45 CHARACTER OF AN OFFICER
AIR,,FORCE In that he,
ACT, 1950 G
At New Delhi on the night of 28/29 Apr
05, used offensive language to Sh .
. Dependra Pathak, Deputy Commissioner r
of Police, South West District, New D.elhi
and behaved in a riotous manner. H
1030 SUPREME COURT REPORTS " (2008] 12 S.C.R.

A THIRD INTOXICATION
CHARGE
In that he
SECTION 48
AIR FORCE AT New Delhi on the night of 28/29 Apr
ACT, 1950 05, was found in a state of intoxication.
B
FIFTH ASSAULTING HIS SUPERIOR
CHARGE OFFICER
SECTION·
40(a) AIR In that he,
FORCE ACT, At Gandhinagar (Gujarat), on 06 Jan.06,
c 1950 assaulted Gp.Capt. SS Kothari (16788)
F (P) of Headquarter South Western Air
Command, Indian Air Force.
SEXTH BEHAVING IN A MANNER
D CHARGE UNBECOMING THE POSITION AND
SECTION 45 CHARACTER OF AN OFFICER
AIR FORCE
ACT, 1950 In that he,
At Gandhinagar (Gujarat), on 06 Jan.06
E at Officers' Mess Headquarter South
Western Air Command, Indian Air Force,
used offensive language to 707519
Sergeant Narender Kumar, Catering
Assistant of Headquarter South Western
F Air Command, Indian Air Force and
behaved in a riotous manner.
SEVENTH ILL TREATING A PERSON SUBJECT
CHARGE TO THE AIR FORCE ACT BEING HIS
SECTION 47 SUBORDINATE IN RANK
G AIR FORCE
In that he,
ACT, 1950
(ALTERNATIVE At Gandhinagar (Gujarat), on 06 Jan.06,
tl
TO SIXTH at the Officers' Mess Headquarter South
CHARGE) Western Air Command, Indian Air Force,
H ill-treated 707518 Sergeant Narender
RAJIV ARORA v. UNION OF INDIA & ORS. 1031
[S.B.SINHA, J.]
-~
Kumar Catering Assistant of Headquarter A
South Western Air Command, Indian Air
Force."

issued on 1.4.2006, the details whereof are as under :
5. A convening order was issued for trial by a General s
)..
Court Martial on 8.5.2006.
6. A contention was raised as regards sustainability of the
first three charges, inter alia, on the ground that as the witnesses
named therein were not produced for cross-examination, the c
purpose of continuing the General Court Martial proceedings
became frustrated. The same was rejected.
7. He filed an application for substitution of the Judge
Advocate. It was also disallowed.
D
): 8. On the aforementioned premise, the writ petition was
filed.
:.I.

,._:_ ..... '
9. Indisputably, the witnesses named in respect of first
three charges were not examined. Was it violative of Rule 43
~
of the Air Force Rules is the question. E
It reads as under :
"43. Convening of General and District Courts-martial :
(1) An officer before convening a general or district courts-
martial shall first satisfy himself that the charges to be F
~,.
tried by the court-martial are for offences within the meaning
-(
of the Act, and framed in accordance with Law, and that
the evidence justifies a trial on those charges, he may
amend the charges if he deems fit, and if not so satisfied
order release of the accused, or refer the case to superior
G
..... authority.
(2) He shall also satisfy himselfthat the case is a proper
one to be tried by the description of court-martial he
p~~poses to convene.
H'
1032 SUPREME COURT REPORTS [2008] 12 S.C.R.

A (3) The officer convening the court-martial shall appoint or
detail the officers to form the court and may also appoint
or detail such waiting officers as he thinks expedient. He
may also where he considers the services of an interpreter
to be necessary, appoint or detail an interpreter to the
B court.
~--
(4) After the convening officer has appointed or detailed
the officers to form a court-martial under Sub-rule (3),
convening order of the court-martial and endorsement on
the charge sheet for trial of the accused by the court-
c martial may either be signed by the convening officer or
by a staff officer on his behalf. The charge sheet on which
the accused to be tried, the summary of the evidence and
convening order for assembly of court-martial shall then
be sent to the senior officer of court-martial and the Judge
D Advocate, if appointed."
Rule 57 of the Rules enables the accused to object to the
charge, inter alia, on the ground that it does not disclose an
offence under the Act or is not in accordance with these Rules.
E 10. It is not in dispute that such an objection was taken by
the petitioner, stating :
"It would be ironical and amazing to state that the cause
of action relating to first three charges pertain to when I
was posted at AIR HQ at New Delhi and for the last one
F year no cognizable action was taken against me. Now in
the absence of any Court of Inquiry or formal marshaling
of evidence in the Summary of Evidence, I am being
prejudiced by facing these charges which have cropped
up for the first time in the Court: Martial itself which is in
G violation of all the aforementioned AF Rules and the
principles of Natural Justice. Inter alia, the Fourth to Seventh
Charges hv.ve been made out after analyzing the evidence
in the Summary of Evidence but in the First three charges
not a single prosecution witness had deposed in the
H Summary of Evidence which is open to verification. I was
RAJIV ARORA v. UNION OF INDIA & ORS. 1033
It [S.B.SINHA, J.]

-:y also given a Good Conduct Certificate by my CO. A
3. Therefore, I pray in all humility that the Convening orde~s
of the General Court Martial is not only based on sum ma~
of evidence but it also lacks jurisdiction as the only
competent authority to convene the GCM is an officer ~f
the rank of Air Marshal in the appointment of AOC-in-C B
~~ and this power and the warrant cannot be delegated to
any Staff Officer as has been done in this instant case fof
which there are enough case laws on the subject which
the respected Judge Advocate is well aware of."
c
11. Respondents never denied or disputed the said
contentions. It is, however, urged that no prejudice has been
caused to the petitioner due to non-examination of the said
witnesses during the summary of evidence. Such a plea has
been raised on the premise that a report had been furnished~
D
inter alia, in respect of charge No.2 by Shri Dipendra Pathak
)-
and the same has been produced in the summary of evidence
~ by Sq. Ldr. T.S. Reddy who was the custodian thereof.
12. Whether prejudice has been caused by non-
examination of witnesses named in the charge-sheet is E
essentially a question of fact. An inference is required to be
drawn having regard to the facts and circumstances obtaining
in each case. The charges framed as against the appellant ·
were specific. The misconducts were said to have been
committed are in relation to the persons named therein. In the F
~ ,. proceedings, seven witnesses were examined, namely, Air
Commander M. Bhandari, Sgt. Narender Kumar, Flight
Lieutenant S. Dasgupta, Gp. Captain S.S. Kothari, Gp. Captain
P.W. Amberkar, Gp. Captain S.C. Kabra and Sqn. Leader T.S.
Reddy.
G
-+ 13. No exp!anation has been offered as to why the
concerned witnesses could not be examined. Shri Reddy, PW-
7 was the custodian of the report. He was not the maker thereof.
Effective cross-examination could have been 'done as regards
the correctness or otherwise of the report, if the contents of H
1034 SUPREME COURT REPORTS [2008] 12 S.C.R.
,.,.
A them were proved. The principles analogous to the provisions
v- I
of the Indian Evidence Act as also the principles of natural
justice demand that the maker of the report should be examined,
save and except in cases where the facts are admitted or the ;-
-...c:_. - #

witnesses are not available for cross-examination or similar ...
B situation. No reason has been assigned as to why the named
witnesses who only could prove the change had not been ~
examined. Indisputably, they were the prime witnesses.
14.The High Court in its impugned judgment proceeded
to consider the issue on a technical plea, namely, no prejudice
c. has been caused to the appellant by such non-examination. If
the basic principles of law have not been complied with~_or
·there has been a gross violation of the principles of nafural
justice, the High Court..should have exercised its jurisdiction of
. judicial review. Before a court martial proceeding is convened,
D legal requir:ements therefor must be satisfied. Satisfaction of
toe officer concerned must be premised on a finding that
,,_ I

evidence justified a trial on those charges. Such a satisfaction ;..

cannot be arrived at without any evidence. If an order is passed
without any evidence, the same must be held to be perverse.
E 15.The High Court was also not correct in opining that the
appellant did not raise any objection in the said proceedings. .•
16. We, therefore, are of the opinion that the impugned )
judgment in regard to the charge Nos.1, 2 and 3 cannot be
F. sustained. The,y are set aside accordingly. It has not been -f,
...
disputed that witnesses for proving charge Nos.4 to 7 have
been examined. The General Court Martial Proceedings shall
~
continue in respect of charge Nos.4 to 7 and ·not in respect of
charges No.1 to 3. Appeals are allowed to the above extent
with costs. Counsel's fee. assessed at Rs.50,000/-.
G
~
S.K.S. Appeal partly allowed.

·r.
,.

..r
I
I