Court-martial proceedings can be initiated even after resorting to other disciplinary process, rules AFT

Vijay Mohan
Chandigarh, February 7

 The Armed Forces Tribunal has held that court-martial proceedings can be initiated against an officer even as he has been served a show-cause notice for administrative action in a case of alleged wrongdoing.

Declining relief to a brigadier from the Army Medical Corps who is facing trial by a court-martial for alleged misappropriation in medical stores, the Tribunal observed that executive instructions issued by the government are in the nature of guidelines and do not have statutory force. The same has been upheld by the Supreme Court in a different case.

The petitioner had contended that a policy letter issued by Army Headquarters prohibited initiation of disciplinary proceedings once the competent authority decides to initiate administrative action after having applied its mind to the facts of the case gathered through earlier proceedings like the court of inquiry and summary of evidence.

In the armed forces, disciplinary action implies trial by a court-martial, which is akin to a trial by a civilian sessions court in criminal matters and, depending upon the gravity of the offence, it can award any punishment under Indian law, including the death penalty. Administrative action, on the other hand, is akin to departmental action that does not involve a trial but where punishment can include a censure, loss of seniority, fine or termination of services.

 The Tribunal referred to an earlier judgement in the case of Lt Gen Avdhesh Prakash vs Union of India, the Tribunal, which stated, “It is always open for a competent authority, if it is satisfied on the complete facts brought to the notice that the administrative action will not meet the ends of justice, then in that case it can resort to court-martial or any other mode subsequently.”

The Tribunal observed that in the present case only a show-cause notice was issued to the petitioner and no administrative action was taken against him. “Therefore the policy letter, which is only a guideline and is not mandatory, does not come in the way of the respondents for initiating disciplinary action against the petitioner,” the Tribunal ruled.

The Tribunal also observed that the order in Lt Gen Prakash’s case was not challenged and he had appeared before a general court-martial for the completion of disciplinary proceedings and hence the earlier orders had attained finality.

According to the order in Lt Gen Prakash’s case, no administrative action was initiated against him on the basis of the court or inquiry and only notice was served, asking him to show cause why administrative action should not be taken. If the competent authority realised at the stated serving a notice that it was a case in which a court martial should be initiated, then there was no prohibition.