Holding

In the absence of the convening authority's records, the court cannot determine whether the competent authority applied its mind, and therefore the High Court's order setting aside the convening of the General Court Martial stands.

Summary

The Union of India appealed against a Delhi High Court order that set aside the convening of a General Court Martial against former Major Sudershan Gupta. The High Court had held that the Army could not produce records of the convening authority because they were destroyed under a rule mandating a seven‑year retention period, even though the writ petition was filed before the expiry of that period and the matter was sub‑judice. The Supreme Court noted that without those records it was impossible to determine whether the competent authority had applied its mind before issuing the convening order. Consequently, the Court upheld the High Court’s decision and dismissed the appeal. The Court also rejected the respondent’s request for adverse inference against the Department for the missing records and directed the appellant to pay consequential benefits within three months.

Issues considered

Whether the destruction of the convening authority's records, despite the pending litigation, precludes assessment of the legality of the General Court Martial convening order.
Whether an adverse inference can be drawn against the Department for its inability to produce the records.
Whether the order of convening the General Court Martial can be set aside in the absence of the convening authority's records.

Subjects

Court MartialGeneral Court Martialconvening orderrecord destructionadverse inferencesub-judicemilitary lawprocedural fairness

Judgment

(2009] 9 S.C.R. 584
:J .....
A UNION OF INDIA & ANR.
v.
EX. MAJOR SUDERSHAN GUPTA ""'
{Civil Appeai No.4418 of 2004)
MAY 20, 2009
B
[DR. MUKUNDAKAM SHARMA AND DR. B.S.
.,
CHAUHAN, JJ.] -t

Armed Forces - Court martial - Order of convening the
c General Court Martial - Legality/validity of - Held: Records
of the Convening Authority were not available, and as such it
could not be decided whether the competent Authority applied
its mind while passing the convening order- Army Authorities
destroyed the records pursuant to the prevailing Rule that
D records of. all court martial proceedings should be retained
.
~
only for a period of seven ye~.rs - However, writ petition was
filed before expiry of seven years and since matter was sub-
judice, Army Authorities were required to preserve the records
to make them available to decide the issue - Thus, order of
E High Court setting aside the order of convening the General
Court Martial, upheld.
>(

Union of India and Ors. vs. Harish Chandra Goswami AIR
1999 SC 1940, referred to. r

F Case Law Reference:
AIR 1999 SC 1940 Referred to. Para 1
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4418 of 2004.
A
G
From the Judgment & Order dated 10.3.2003 of the High ,.-
Court of Delhi in C.W.P. 486 of 1991.

S.K. Dubey, Gaurav Aggarwal, Ajay Sharma, B.K. Prasad

H 584
..
UNION OF INDIA & ANR. v. EX. M_AJOR 585
SUDERSHAN GUPTA
t,

and Sushma Suri for the Appellants. A

Sushil Kumar Jain and Pratibha Jain for the Respondent

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. This appeal js B
directed against the judgment and order dated 10.03.2003,
.. passed by the Division Bench of the Delhi High Court setting
aside quashing the order of convening the General Court
Martial. While doing so and coming to the conclusions leading
to the said order the High Court applied the ratio of the decision c
of this Court in Union of India & Ors. vs. Harish Chandra
I
Goswami, reported in AIR 1999 SC 1940. While allowing the
aforesaid writ petition, the High Court has observed in
paragraph 4, in the following manner:
D
"We have given ample opportunities to the respondents to
~ produce the records as to whether the convening order
passed by Maj. Mehta was passed after the same. was
endorsed by the Major General concerned, so that it could
have been observed whether the competent authority under
the law has applied its mind before convening the General E
Court Martial or not. In spite of various opportunities
granted !o the Respondents, the respondents have not
~
been in a position to produce the records before us."
i
2. When the present appeal is taken up for final hearing F
and on our query, it is pointed out that the records of the
Convening Authority are not available as the same has been
destroyed by the Army Authorities. We are informed that the
same has been done pursuant to the prevailing Rule that
records of all Court Martial proceedings should be retained only G
).
for a period of 7 years. However, the records disclose that the
writ petition was filed in the Delhi High Court by the respondent
before the expiry of 7 years period and since the matter was
sub-Judice before the Court, the Army Authorities were required
to preserve the records so as to make the same available to
H
586 SUPREME COURT REPORTS [2009] 9 S.C.R.

A the Court to effectively decide the issue with regard to the
.ii
---
legality or validity of the order of Convening the General Court
Martial. It would not be possible to decide the issue raised, as
has been rightly held by the High Court, namely, as to whether
or not there was proper application of mind by the competent
B authority while passing the Convening Order.
3. Learned counsel appearing for the respondent has
stated that adverse inference should be drawn against the
inability of the Department to produce the records. However,
in view of non-availability of records, we find no reasonable
c ground to interfere with the order of the Division Bench of the
High Court. In our considered .ppinion legality and the validity I.

,,
(
of the order of Convening the Gl9neral Court Martial cannot now
be decided in the absence of.the records which the appellant
is required to produce before us. We, therefore, find no merit
D in this appeal which is accordingly dismissed leaving the
parties to bear their own costs. )<.

4. At this stage, learned counsel for the respondent states
that in view of the order passed today the respondent shall have
E to be paid all the consequential benefits. We grant three
months time to the appellant to comply with the order and to
give all consequential benefits.
'(

N.J. Appeal dismissed.
r