ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A. No. 215 OF 2013

FRIDAY, THE 21ST DAY OF NOVEMBER, 2014/30TH KARTHIKA, 1936

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

APPLICANT:

MR.T.A. BIJOY,741652-T, SERGEANT,HQ SAC AIR FORCE,AKKULAM,TRIVANDRUM-695 031.

BY ADV. SRI. SURESH KUMAR C.R.

versus

RESPONDENTS:

1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI – 100101.

2. CHIEF OF AIR STAFF, AIR HQ VAYU BHAVAN, NEW DELHI,

PIN – 100101.

3. AIR OFFICER COMMANDING, 23 WING, AIR FORCE, C/O 56 APO

4. PRINCIPAL DIRECTOR, AIR FORCE SOCIETY,

AIR FORCE GIS BHAVAN, SUBRATO PARK, NEW DELHI-110010.

BY ADV. SMT. E.V.MOLY, CENTRAL GOVERNMENT COUNSEL.

O.A. No. 215 of 2013 - 2 -

ORDER

Shrikant Tripathi, Member (J):

The applicant, Sergeant T.A. Bejoy, No. 741652-T, has filed the

Original Application for quashing the punishment of admonition

imposed on him under Section 82 of the Air Force Act. It is alleged

that on 4th January 2011, the applicant was posted on the strength of

the Unit 311 TRU C/o. 23 Wing Air Force. On the said date a Swaraj

Mazda 3 Ton vehicle No. BA 00AF 52257 belonging to the aforesaid

unit proceeded to Operational location along with 09 Air Warriors, 04

DSC personnel on temporary duty and other ration/stores. The

vehicle was being driven by Corporal Aditya, No. 781970. The

applicant was also in the vehicle as a senior passenger, who had

already signed the Commanding Officer's directive on vehicle

movement and was thus in charge of the convoy of the vehicle.

When the vehicle was about 7 kms short of Bhamla, it took a right

turn and toppled to the left while straightening out of the turn, so the

front wind shield of the vehicle had broken. The driver, along with

the applicant, came out through the broken opening of the wind

shield. No person sustained injury, except two passengers, who

suffered only minor injuries. It is alleged that the applicant, after

having signed the Commanding Officer's directive, was responsible to

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ensure the safety of the vehicle and its contents. But he failed to do

so. A Court of Inquiry was convened with effect from 6th January

2011, but the Court apportioned the blame on the design of the

vehicle. But the manufacturing company of the vehicle refuted the

finding and filed documentary proof that the vehicle could not be

unstable. So, the Court of Inquiry was re-convened to find out the

root cause of the accident. The additional Court of Inquiry team

conducted practical test on the same vehicle to ascertain whether the

vehicle was unstable at low speed with load. The conclusion brought

out that the only reason for the vehicle to topple would be over

speeding. Accordingly, the driver and the applicant were held

responsible for the accident. It is alleged that if the applicant had

controlled the driver to drive the vehicle with normal speed, the

accident would not have taken place. More so, as per the

Commanding Officer's directive signed by him, it was his responsibility

to control the speed of the vehicle. But he failed to do so.

Consequently, a disciplinary action was initiated and accordingly the

following charge was framed against him:

“While detailed to proceed on TD from 311 TRU to

Ops location, being the convoy IC of service vehicle BA No.

00AFS 52257 Swaraj Mazda 3 Ton at about 1630h near

O.A. No. 215 of 2013 - 4 -

Bhamla, for not ensuring correct/safe speed of the vehicle

while negotiating a turn, which resulted in a road accident

and loss to service property”

2. During the inquiry, the applicant denied the charge. He had,

however, opportunity to cross examine the witnesses interrogated

during the Court of Inquiry and additional Court of Inquiry. The

witnesses who had been examined were as follows:

1. 781970-K Cpl A Kumar MTD of 2232 Sqn. AF.

2. 906899-K Cpl K.K. Rai ADSO of 2 AFMLU

3. 782469-K Cpl P Tomar MT Fit of 11 BRD

4. 772215-S Sgt VKV Nair IAF/P of 5 BRD

5. 774791-N Sgt UK Kaushik Cat Asst of 12 AFH

3. After the summary trial and also after observance of the

relevant procedure, the AOC, 23rd Wing, Air Force passed the

punishment of admonition against the applicant, who thereafter

submitted an application dated 29th April, 2013 to the Commanding

Officer, Headquarters, SAC(U), Air Force for review of the

punishment. The said application was given due consideration and a

detailed order No. WAC/C 2801/6/Discip dated 29th October 2013 was

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rendered and it was found that the applicant's aforesaid application

dated 29th April, 2013 had no merit. After the rejection of the said

application, he filed the instant Original Application.

4. We have heard the learned counsel for the parties and

perused the record.

5. The learned counsel for the applicant submitted that the

accident in question took place all of a sudden on a turn so the

applicant could not perceive the accident in advance. He next

contended that there was no evidence that the vehicle was being

driven rashly and negligently with excessive speed. Merely on

account of the accident, negligent driving of the vehicle could not be

inferred. The learned counsel next contended that the applicant had

no authority to control the driver. So he could not be held responsible

for the mistake of the driver.

6. The learned counsel for the applicant next contended that

the punishment of admonition has a serious implication on the service

career of the applicant, so the same, being passed on surmises and

conjunctures, was liable to be quashed.

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7. The learned counsel for the respondents, on the other hand,

submitted that there was no occasion for toppling of the vehicle if the

vehicle had not been driven with excessive speed, particularly at the

place of turn. So, the applicant, who was the senior most passenger

in the vehicle, should have controlled the driver, so the applicant's

liability was rightly fixed during the summary trial and disposal.

8. Before we proceed to examine the merits of the case, we

consider it just and expedient to narrate the legal position as to how

vehicular accidental matters have to be dealt with during a trial.

The burden to prove the charges beyond all reasonable doubts, as per

the settled criminal jurisprudence, is on the prosecution. So long as

the accused is not held guilty, he is presumed to be innocent. It is

well settled that the maxim “res ipsa loquitur”, which means “things

speak themselves”, is not applicable in criminal trials except by way

of an aid in assessment of evidence. The Apex Court had occasion to

consider the question of applicability of the maxim in criminal cases,

in the matter of Syad Akbar v. State of Karnataka, (1980) 1

SCC 30, and held that in criminal cases, because of the rules of

burden of proof, presumption of innocence and proof beyond

reasonable doubt, “res ipsa loquitur” can only be an aid in the

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evaluation of evidence, “an application of the general method of

inferring one or more facts in issue from circumstances proved in

evidence”. Accordingly the Apex Court further held that the maxim

can be used only as a convenient ratiocinative aid in assessment of

evidence, in drawing permissive inferences under Section 114 of the

Evidence Act from the circumstances of a particular case, including

the constituent circumstances of the accident, established in

evidence, with a view to come to a conclusion at the time of

judgment, whether or not in favour of the alleged negligence, among

other ingredients of the offence with which the accused stands

charged, such a high degree of probability, as distinguished from a

mere possibility has been established which will convince reasonable

men with regard to the existence of that fact beyond reasonable

doubt. The Apex Court further proceeded to hold that the said

general mode of inferring a fact in issue from another circumstantial

fact, is subject to all the principles, the satisfaction of which is

essential before an accused can be convicted on the basis of

circumstantial evidence alone. These are: Firstly, all the

circumstances including the objective circumstances constituting the

accident, from which the inference of guilt is to be drawn must be

firmly established. Secondly, those circumstances must be of a

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determinative tendency pointing unerringly towards the guilt of the

accused. Thirdly, the circumstances should make a chain so complete

that they cannot reasonably raise any other hypothesis save that of

the accused's guilt. The Apex Court further held that where

negligence is an essential ingredient of the offence, the negligence to

be established by the prosecution must be culpable or gross and not

negligence merely based upon an error of judgment. Besides laying

down the aforesaid principles, the Apex Court further observed in

para 32 that the circumstance of taking the vehicle suddenly to the

extreme right of the road, did not bespeak negligence or dereliction

of duty to exercise due care and control, on the part of the accused

in clear and unambiguous voice. Nor could it be said, that the cause

of swerving the vehicle to the right, was unknown. The accused

gave a reasonably convincing explanation of his conduct in doing so,

so the Court declined to apply the doctrine “res ipsa loquitur”.

9. A three Judge Bench of the Apex Court in Jacob Mathew

vs. State of Punjab and another (2005) 6 SCC 1 reiterated the

aforesaid principle and held that the doctrine of “res ipsa loquitur” is a

rule of evidence which in reality belongs to the law of Torts.

Inference as to negligence may be drawn from proved circumstances

O.A. No. 215 of 2013 - 9 -

by applying the rule if the cause of the accident is unknown and no

reasonable explanation as to the cause is coming forth from the

defendant. In criminal proceedings, the burden of proving negligence

as an essential ingredient of the offence lies on the prosecution. Such

ingredient cannot be said to have been proved or made out by

resorting to the said rule. The Apex Court, therefore, held that the

doctrine cannot be pressed into service for determining per se the

liability for negligence within the domain of criminal law. The doctrine

has, if at all, a limited application in trial on a charge of criminal

negligence. The Apex Court, while interpreting the term “negligence”

further propounded that the jurisprudential concept of negligence

differs in civil and criminal law. What may be negligence in civil law

may not necessarily be negligence in criminal law. For negligence to

amount to an offence, the element of mens rea must be shown to

exist. For an act to amount to criminal negligence, the degree of

negligence should be much higher i.e. gross or of a very high degree.

Negligence which is neither gross nor of a higher degree may provide

a ground for action in civil law but cannot form the basis of

prosecution.

O.A. No. 215 of 2013 - 10 -

10. Recently in the matter of Naresh Giri vs. State of

Madhya Pradesh, (2008) 1 SCC 791, the Apex Court reiterated

the principle laid down in Syad Akbar vs. State of Karnataka

(supra) and held that simple lack of care as such will constitute civil

liability, is not enough; for liability under the criminal law a very high

degree of negligence is required to be proved.

11. The witnesses interrogated during the Court of Inquiry

nowhere stated that the vehicle had been driven with excessive speed

in a rash and negligent manner. They further stated that the cause of

the accident was not known. But it took place at a curve. The Court

of Inquiry vide its finding dated 18th January 2011 opined that the

vehicle had been moving at a normal speed of approximately 20 kmph

on a slightly uphill surface, which had maneuvered a right curve and

was in the process of straightening out and preparing for a left curve

immediately thereafter as the road was an 'S' bend. In our view, the

speed of approximately 20 kmph was not an excessive speed. There

does not appear to be any evidence as to what were the exact

reasons of the accident. It appears that the vehicle capsized or

toppled due to the curve of 'S' shape at the place of occurrence. In

absence of any evidence that the vehicle was being driven rashly and

O.A. No. 215 of 2013 - 11 -

negligently with excessive speed and the same could be perceived

before the accident, the vicarious liability of the applicant could not be

fixed.

12. The applicant has been held responsible only on the ground

that a practical test regarding movement of a vehicle with the same

amount of load at low speed had been done, which gave occasion to

the authorities to form the opinion that the accident would not have

occurred if the vehicle had not been driven with excessive speed. In

our view, no correct conclusion could be drawn only on the basis of

the practical test undertaken by the respondents. It is not always

necessary that when a vehicular accident takes place at a particular

place due to a loaded vehicle, driven with a particular speed, the

driver's due care, caution and alertness, including the degree of

negligence attributable on his part, may not be exactly the same

while holding a practical test, in the same manner at any other

point of time. The degree of alertness, precaution and care as also

negligence are likely to vary every time. As such a possibility cannot

be ruled out that at the time of the practical test the driver knowing

well that it is a practical test, was more alert and cautious than the

driver, who caused the accident in a sudden manner, so only on the

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basis of the practical test it was quite improper and unsafe to fix the

responsibility of the applicant. But the respondents did so, which

resulted in causing grave injustice to the applicant.

13. In our view, it was not very material whether or not the

applicant had any directive to supervise the safe driving of the

vehicle? In fact what was relevant was to find out as to whether the

applicant had any occasion to control the driver before the accident or

he, under the facts and circumstances of the case, would have

perceived the accident in advance. All these questions cannot be

given affirmatively on the basis of the materials collected during the

Court of Inquiry.

14. On the basis of the reasons stated herein before, we

arrive at the conclusion that the applicant was not responsible in

any way for the toppling of the vehicle, especially when there is no

evidence to show that the vehicle had been driven rashly and

negligently with excessive speed at the time of the accident and the

applicant had knowledge of that fact. He could not be held

responsible only on the basis of the fact that the vehicle had toppled

or capsized. The punishment of admonition was not only uncalled for,

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but also has a serious civil consequence on the service prospects of

the applicant. So, a judicial interference seems to be necessary to set

at right the mistake committed by the respondents in punishing he

applicant.

15. The learned counsel for the respondents tried to raise that

the Armed Forces Tribunal has no jurisdiction in the matter of

summary disposal and trials unless the punishment of dismissal had

been awarded. According to the learned counsel for the respondents,

the punishment of admonition was a mere minor punishment, so the

same could not be brought within the “service matters”, as defined in

Section 3(o) of the Armed Forces Tribunal Act, 2007 (hereinafter

referred to as 'the Act') and as such the instant Original Application

was not maintainable.

16. In order to consider the aforesaid submission, we have to

examine the relevant provisions of the Act. Section 3(o) of the Act,

which defines 'service matters', is reproduced as follows:

“3(o) “service matters”, in relation to the persons subject to the

Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and

the Air Force Act, 1950 (45 of 1950), mean all matters relating to the

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conditions of their service and shall include –

(i) remuneration (including allowances), pension and

other retirement benefits;

(ii) tenure, including commission, appointment, enrolment,

probation, confirmation, seniority, training, promotion,

reversion, premature retirement, superannuation, termination

of service and penal deductions;

(iii) Summary disposal and trials where the punishment of

dismissal is awarded;

(iv) “any other matter, whatsoever,”

but shall not include matters relating to--

(i)orders issued under section 18 of the Army Act, 1950 (46 of

1950), sub-section (1) of section 15 of the Navy Act, 1957 (62

of 1957) and section 18 of the Air Force Act, 1950 (45 of

1950); and

(ii) transfers and postings including the change of place or unit

on posting whether individually or as a part of unit, formation

or ship in relation to the persons subject to the Army Act, 1950

(46 of 1950), the Navy Act 1957 (62 of 1957) and Air Force Act

1950 (45 of 1950)

(iii) Leave of any kind;

(iv) Summary Court Martial except where the punishment isof dismissal or imprisonment for more than three months;”

O.A. No. 215 of 2013 - 15 -

17. The definition of “service matters” as excerpted above has

virtually three parts. The first part, being the main definition clause,

defines the “service matters” to mean all matters relating to the

conditions of service of the persons subject to the Army Act, the

Navy Act and the Air Force Act. The expression “all matters relating

to the conditions of service” is very comprehensive, which by itself

includes every matter whatsoever relating to the conditions of service

unless expressly excluded. What could not be brought in any way

within the domain of 'the conditions of service' on interpretation,

could be brought within the domain of 'service matters' only by

addition of an 'inclusive clause' to the main definition. It appears

that the Legislature with that intention enacted the second part of the

definition clause in Section 3(o) of the Act in the form of inclusive

clause, which provides for inclusion of the matters specified in sub

clauses (i), (ii), (iii) and (iv) of Section 3(o) also within the definition

of 'service matters'. Obviously the definition of 'service matters' by

addition of the inclusive clause in the aforesaid manner was an

expansion of the definition to include other matters not technically

falling within the category of conditions of service as defined in the

first part of the definition. Even clause (iv) of Section 3(o), which

includes 'any other matter whatsoever' has made the definition of

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'service matters' more comprehensive. The third part of the

definition being in the form of “exclusion clause” provides for

exclusion of the following matters from the purview of the “service

matters.”

(i)orders issued under section 18 of the Army Act, 1950(46 of 1950), sub-section (1) of section 15 of the Navy Act,1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45of 1950); and (ii) transfers and postings including the change of place or unit

on posting whether individually or as a part of unit, formation

or ship in relation to the persons subject to the Army Act, 1950

(46 of 1950), the Navy Act 1957 (62 of 1957) and Air Force Act

1950 (45 of 1950)

(iii) Leave of any kind;

(iv) Summary Court Martial except where the punishment isof dismissal or imprisonment for more than three months;”

18. What is, therefore, apparent is that the matters which are

not expressly excluded by the aforesaid “exclusion clause” shall

be deemed to have been brought within the domain of “service

matters” as defined in Section 3(o). The punishment of admonition

imposed in any summary trial and disposal, which has not

been expressly excluded from the definition of ”service matters”,

can be brought within the domain of the definition with the aid of the

O.A. No. 215 of 2013 - 17 -

comprehensive sub-clause (iv) of section 3(o), which provides for

inclusion of any other matter whatsoever. It is true that summary

disposal and trials, where the punishment of dismissal is awarded, has

also been brought within the meaning of ”service matters”, by virtue

of sub clause (iii) of Section 3(o). But this specific provision cannot

be taken as a ground to hold that other punishments awarded in any

summary disposal and trial have been excluded, especially when the

third part of the definition i.e. the exclusion clause is silent on this

point. In absence of any such express exclusion clause, there

cannot be any presumption of exclusion, only on the basis of the

aforesaid provision of sub-clause (iii) of Section 3(o). So the

punishments, other than dismissal, awarded in any summary disposal

and trial, apparently fall within the domain of “any other matters

whatsoever” contained in sub-clause (iv) of Section 3(o).

19. In the matter of 'severe reprimand', which is almost equal

to the punishment of 'admonition', the Hon'ble High Court of

Judicature at Allahabad, Lucknow Bench, had occasion to

consider the question of jurisdiction of the Armed Forces Tribunal

while deciding Writ Petition No. 8051 of 1989, Major Kunwar

O.A. No. 215 of 2013 - 18 -

Ambreshwar Singh v. The Union of India, which was decided

on 20th February, 2014. The Division Bench held that the punishment

of 'severe reprimand' falls within the category of 'service matters' as

defined by Section 3(o) of the Act. This proposition was laid down on

the ground that the aforesaid penalty would fall within the expression

“any other matters whatsoever” occurring in sub clause (iv) of

Section (o) of the Act. It was argued on behalf of the respondents

before the Allahabad High Court that the punishment of 'admonition'

had not been included in any of the categories specified in sub

clauses (i), (ii) and (iii) of Section 3(o) of the Act, so such

punishment would fall within the category of “any other matters

whatsoever” as defined in sub clause (iv) of the said Section 3(o).

The Division Bench of Allahabad High Court, while interpreting the

meaning of the expression “any other matters whatsoever” held that

the punishment of 'severe reprimand' also come within the category

of “any other matters whatsoever”.

20. The learned counsel for the respondents referred to the

order dated 1st December, 2010, rendered by the Jaipur Bench of the

Armed Forces Tribunal, in O.A.No. 164 of 2010, S.S. Rathore v.

Union of India & others and contended that the Jaipur Bench held

O.A. No. 215 of 2013 - 19 -

that summary disposal and trial matters could fall within the category

of service matters if punishment of dismissal was awarded. In our

view, after the decision of the Division Bench of the Allahabad High

Court in the aforesaid matter, the order of the Jaipur Bench is of no

help to the respondents, especially when the Division Bench of the

Allahabad High Court had proceeded to decide the question of

jurisdiction in that matter due to the reason that the Principal Bench

of the Armed Forces Tribunal, New Delhi had passed the order that

the Tribunal had no jurisdiction, which was questioned before the

High Court. The Division Bench quashed the order of the Tribunal and

held as aforesaid. We, therefore, hold that the Armed Forces

Tribunal has jurisdiction to decide the instant Original Application.

21. For the reasons stated above, the Original Application is

allowed. The punishment of admonition inflicted on the applicant is

quashed. He is, accordingly, exonerated of the charge levelled against

him, with consequential benefits.

22. There will be no order as to costs.

23. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI,

MEMBER (A) MEMBER (J)

O.A. No. 215 of 2013 - 20 -

24. After pronouncement of the order Mr.K.M. Jamaludheen,

appearing for the respondents, submitted that the question of

jurisdiction of the Armed Forces Tribunal is involved in the matter,

which is an important point of law of general public importance, so

leave to the Supreme Court be granted as per Section 31 of the

Armed Forces Tribunals Act.

25. In our view, the following point of law of general public

importance is involved in the decision:

“Whether the punishment of admonition inflicted

on an Armed Forces personnel after his summary trial

falls within the category of “any other matter,

whatsoever”, specified in sub clause (iv) of clause (o) of

Section 3 of the Armed Forces Tribunal Act, 2007 and is

accordingly a “service matter” ?

26. There does not appear to be any authoritative

pronouncement of the Apex Court on the aforesaid question.

O.A. No. 215 of 2013 - 21 -

27. The respondents are, therefore, granted leave to appeal to

the Supreme Court.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)tm.

True Copy/ Prl. Private Secretary