Court of inquiry must to investigate culpability of defence personnel: Armed Forces Tribunal

The Armed Forces Tribunal (AFT) has held that a holding court of inquiry (CoI) is mandatory to initiate disciplinary action against Armed forces personnel in cases of alleged wrongdoing and action against them cannot be taken only on the basis of findings of a technical board of officers (TBO).

Terming a censure awarded to a Major General by the Western Command — which had resulted in the officer losing out on promotion to the rank of Major General — as “illegal”, the tribunal ruled that relevant Army rules clearly state that the culpability of military personnel can only be investigated by mandatorily holding a CoI.

The officer, from the Corps of Engineers, had been involved in the construction of a Cardiothoracic and Vascular Surgery project at Army Research and Referral Hospital, Delhi, which commenced in 2009, when he was a Brigadier. In 2019, he was issued a show-cause notice by the Southwestern Command on the basis of the findings of a TBO, to which he submitted his reply.

In 2020, an anonymous complaint was received by the Army that there were alleged irregularities in the project and he was issued a show-cause notice for three different lapses, following which he was awarded a censure by Western Command. He filed a statutory complaint which, according to his petition, was not disposed of by the Army despite a request that it be done before the Special Selection Board to be held that year.

His counsel, Col Indra Sen Singh (retd) also contended that the proceedings of the TBO were in complete violation of instructions since the presiding officer of the board was an electrical engineer who did not possess the requisite knowledge and experience to comment on the specialized nature of works that the officer was engaged in.

He also averred that the censure order was based on the TBO findings as well as an anonymous complaint, which was contrary on the mandate issued by the Central Vigilance Commission as well as Chief of the Army Staff that no cognizance should be taken on anonymous complaints.

“A TBO is legal necessity in order to proceed against only civilian officials under the provisions of CCS Rules, 1965, which means based only on the findings of the TBO, disciplinary action cannot be initiated against an Armed Forces officer,” the Bench of Justice Rajendra Menon and Vice Admiral Dhiren Vig said in the November 12 order.

Observing that a draft order for convening a court of inquiry was approved by the GOC-in-C, Western Command, the Bench said that the rationale for change over from instituting a CoI to proceed against the officer purely based on the findings of the TBO has not been brought out on the relevant file and is in violation of the Army Rules. “It is not sustainable in the eyes of the laid down law,” the Bench ruled.

Observing that there were two vacancies for Lieutenant General and the officer was second in the merit list with an otherwise unblemished career record who could not pick up his next rank due to the censure, the Bench directed that he be considered for promotion with the next batch. Since he retired in 2023, he be promoted notionally if found fit, the Bench said.