Bombay High Court sets aside disciplinary proceedings against a Colonel of the Indian Army

In hard hitting decision, the Nagpur Bench of the Bombay High Court has quashed the disciplinary proceedings against an officer of the rank of Colonel.

During the fag end of the officer’s service, the process for taking administrative action for termination of his services had been initiated for allegations of certain malpractices. However, on the date of his superannuation, the Army midway jettisoned the process and invoked Section 123 of the Army Act against him for taking disciplinary action (Court Martial) instead of administrative action. Section 123 entitles the Army to invoke action under the Army Act against any person even after retirement in case the alleged offence had occurred while the person was in service, with an outer limitation of three years.

The officer had then approached the High Court seeking quashing of the proceedings against him. The government had taken an objection in the High Court that the proper forum for the officer to approach was the Armed Forces Tribunal (AFT) since it was a ‘service matter’, besides contesting the matter on merits.

The High Court however overruled the objection related to its jurisdiction and held that the relief claimed by the Petitioner was related to his fundamental rights and did not fall within the purview of the definition of ‘service matters’ as defined in the AFT Act. The High Court also held that as far as an appeal to the AFT from a Court Martial was concerned, it would only apply after a person is convicted by a Court martial. The Court also held that there were no fetters on the powers of the High Court and Supreme Court to hear such matters, being Constitutional Courts. The High Court set aside the initiation of disciplinary proceedings on the ground that once the authorities had taken the decision to proceed against the officer administratively by stating that a Court Martial was not expedient, they could not midway change the course and start disciplinary proceedings for a Court martial.

The High Court has set aside all proceedings against the officer and has ruled that he would be deemed to have retired from service on the date of superannuation.

A press report on the case from The Times of India is available here.