RAJIV ARORA versus UNION OF INDIA & ORS.

Citation: [2008] 12 S.C.R. 1026 · Decided: 29-08-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

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[2008] 12 S.C.R. 1026 
A 
RAJIV ARORA 
"1c--
V. 
UNION OF INDIA & ORS. 
(Civil Appeal No.5306 of 2008) 
B 
AUGUST 29, 2008 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
~ 
Air Force Rules; R.43:-
Court Martial -
Charges of misconduct -
Non-
c examination of witnesses - Effect of - Held: No reason has 
· been assigned as to why the named witnesses who only could 
prove the charge had not been examined in the Court Martial 
proceedings - Since there has been a gross violation of the 
principles of natural justice, the High Court should have 
D exercised its power of judicial review - Before convening a 
Court Martial proceeding, legal requirement therefor must be 
satisfied -
Satisfaction must be based on a finding that 
:-r· 
evidence justified a trial on these charges - An order passed 
" 
without any evidence must be held to be perverse - Hence, 
E. the impugned order in regard to Charge Nos. 1, 2, 3 cannot be 
sustained as witnesses have not been examined to prove 
these charges - Evidence - Principles of natural justice -
Compliance - Discussed. 
F 
Appellant, a commissioned Officer in the Indian Air 
Force, applied for premature retirement. A good conduct 
certificate was issued by the office. However, a 
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,I.. 
disciplinary proceeding was initiated against him and a 
charge-sheet was issued leveling 7 charges against him. 
Later, a convening order was issued for trial by a General 
G Court Martial. He filed an application for substitution of 
the Judge Advocate. The application was rejected by the 
·k 
authority. In the Court Martial proceedings the witness 
named in respect of first three charges have not been 
examined. Aggrieved, the employee filed a writ petition 
H 
1026 
RAJIV ARORA v. UNION OF !NOIA & ORS. 
1027 
-1· 
for quashing the proceedings before the Court Martial, A 
which was dismissed by the High Court. Hence the 
present appeal. 
Partly allowing the appeal, the Court 
HELD: 1.1A plea that no prejudice has been caused 8 
.. 
to the petitioner due to non-examination of the said 
. 
witnesses has been raised by respondents on the premise 
that a report had been furnished, inter alia, in respect of 
charge No.2 and the same has been produced in the 
summary of evidence. Whether prejudice has been c 
caused by non-examination of witnesses named in the 
charge-sheet is essentially a question of fact. An inference 
is required to be drawn having regard to the facts and 
circumstances obtaining in each case. The charges 
framed as against the appellant were specific. The 0 
' 
misconducts said to have been committed are in relation 
;. 
to the persons named therein. No explanation has been 
offered as to why the such witnesses could not be 
examined. PW-7 was the custodian of the report. He was 
not the maker thereof. Effective cross-examination could 
have been done as regards the correctness or otherwise 
E 
of the report, if its contents were to be proved. The 
principles analogous to the provisions of the Indian 
Evidence Act as also the principles of natural justice 
t. 
demand that the maker of the report should be examined, 
.. 
save and except in cases where the facts are admitted or F 
the witnesses are not available for cross-examination or 
similar situation. No reason has been assigned as to why 
the named witnesses who only could prove the charge 
had not been examined. Indisputably, they were the prime 
,..,. 
witnesses. (Paras - 11,12,13) [1033,C-H; 1034,A-B] 
G 
1.2 The High Court in its impugned judgment 
proceeded to consider the issue on a technical plea that no 
prejudice has been caused to the appellant by such non-
examination. If the basic principles of law have not been H 
1028 
SUPREME COURT REPORTS 
[2008] 12 S.C.R. 
A complied with or there 'has been a gross violation of the 
..... -
principles of natural justice, the High Court should have 
exercised its jurisdiction of judicial review. [para 14] [1034,C] 
. 
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1.3 Before a court martial proceeding is convened, 
B legal requirements therefor must be satisfied. Satisfaction 
of the officer concerned must be premised on a finding 
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that evidence justified a trial on those charges. Such a 
satisfaction cannot be arrived at without any evidence. If 
an order is passed without any evidence, the same must 
be held to be perverse. The High Court was not correct 
c in opining that the appellant did not raise any objection 
in tll~ said proceedings. Hence, the impugned judgment 
in regard to the charge Nos.1, 2 and 3 cannot be sust

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