UNION OF INDIA & ORS.versusLT COLONEL DHARAMVIR SINGH

582                      [2019]REPORTS
               SUPREME COURT    4 S.C.R. 582               [2019] 4 S.C.R.


A                         UNION OF INDIA & ORS.
                                        v.
                     LT COLONEL DHARAMVIR SINGH
                         (Civil Appeal No.1714 of 2019)
B                            FEBRUARY 15, 2019
             [ DR. DHANANJAYA Y. CHANDRACHUD AND
                       HEMANT GUPTA, JJ.]
             Army Act, 1959 – Order of attachment of respondent for
      initiating disciplinary action under Army Instructions 30/86 –
C
      Communications were intimated to the respondent to report to the
      unit of attachment – Writ petition before Manipur High Court by
      respondent challenging the legality of these orders – Jurisdiction
      of the Manipur High Court challenged on the ground that the
      respondent at the time of the initiation of the action of attachment
D     was based at Nanded in Maharashtra and the orders were issued
      by the Headquarters at New Delhi – High Court proceeded to
      entertain the Writ Petition on the submission 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
E
      to consider the objection to the maintainability of the writ petition
      and until then the orders impugned were stayed – On 24.01.2019,
      High Court confirmed the earlier ad-interim order – On appeal,
      held: High Court was manifestly in error in entering upon an area
      which related to the exercise of the disciplinary jurisdiction of the
F     Army under the Army Act, 1950 – The admitted position was that
      the respondent was posted at Nanded in Maharashtra – Manipur
      High Court had no reasonable basis to exercise jurisdiction – The
      challenge in the writ petition which was instituted by the respondent
      before the High Court related exclusively to the order of attachment
      which was followed by two communications requiring him to proceed
G
      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
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                                      582
   UNION OF INDIA v. LT COLONEL DHARAMVIR SINGH                            583


of determining whether or not recourse to the disciplinary                 A
jurisdiction was warranted – Service law – Armed Forces –
Jurisdiction – Armed Forces Tribunal Act 2007 – s.3(o).
      Allowing the appeal, the Court
      HELD: 1. The High Court was manifestly in error in
entering upon an area which relates to the exercise of the                 B
disciplinary jurisdiction of the Army under the Army Act 1950.
The admitted position is that the respondent was posted at Nanded
in Maharashtra. The Single Judge had no reasonable basis to
exercise jurisdiction. [Para 13] [587-H; 588-A]
      2.1 The challenge in the Writ Petition which was instituted          C
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              D
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. [Para 13]
[588-B-C]                                                                  E
      2.2 The assumption of jurisdiction by the High Court in a
Writ Petition under Article 226 of the Constitution was
misconceived. Also, 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
                                                                           F
Tribunal under Section 14, such a Writ Petition ought not to have
been entertained by the High Court. 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. [Para 15]
[588-E-G]                                                                  G
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1714
of 2019.
       From the Judgment and Order dated 05.12.2018 and 24.01.2019
of the High Court of Manipur at Imphal in Writ Petition (Civil) No. 1031
of 2018.                                                                   H
584                SUPREME COURT REPORTS                        [2019] 4 S.C.R.


A           Aman Lekhi, ASG, R. Bala, Ms. Priyanka Das, Ms. Uttara Babbar,
      Arvind Kumar Sharma, Ms. Bhavana Duhoon, Advs. for the Appellants.
             Colin Gonsalves, Sr. Adv., Shreeji Bhavsar, Satya Mitra, Advs.
      for the Respondent.
                The Judgment of the Court was delivered by
B
                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
C     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 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
D     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
E     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
F               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
G     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 :
      1
          [“3 CISU”]
      2
H         Habeas Corpus Petition No 11 of 2018
   UNION OF INDIA v. LT COLONEL DHARAMVIR SINGH                                   585
        [DR DHANANJAYA Y CHANDRACHUD, J.]

       “Attachment Order :                                                        A
       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           B
       under the provisions of AI 30/86.
       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.”
                                                                                  C
       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            D
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,
                                                                                  E
       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.”
                                                                                  F
       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.             G
       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

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586             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     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
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      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
C     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
D     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
E     been constituted by the Guwahati High Court in Writ Petition (C) 2481
      of 2014. On the basis that nothing appears to have been 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.

F           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,
G     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.

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   UNION OF INDIA v. LT COLONEL DHARAMVIR SINGH                               587
        [DR DHANANJAYA Y CHANDRACHUD, J.]

       10. We have accordingly heard Mr Aman Lekhi, learned Additional        A
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          B
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           C
circumstances, it was urged that there was no justification for the Manipur
High 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     D
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            E
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      F
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.                                            G

       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
                                                                              H
588             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     respondent was posted at Nanded in Maharashtra. The learned Single
      Judge had no reasonable basis to 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
B
      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
C     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-
D     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
E     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 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
F
      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,
G     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.
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    UNION OF INDIA v. LT COLONEL DHARAMVIR SINGH                            589
         [DR DHANANJAYA Y CHANDRACHUD, J.]

      16. We allow the appeal and set aside the impugned orders of the      A
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.
                                                                            B
                                                                            B
Devika Gujral                                             Appeal allowed.




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