The Armed Forces Tribunal (AFT) has dismissed a petition filed by an Army major, whose services were terminated by the President, seeking copies of the Courts of Inquiry held against him. The major had filed an application in the principal bench of the AFT seeking a direction to the Army to supply certified copies of the proceedings of the Court of Inquiry held against him and also to supply the forensic report of his digital devices. While hearing the matter on November 3, the AFT bench of Justice Rajendra Menon and Lt Gen PM Hariz (retd) issued notice to the respondents and asked them to show cause why the documents should not be supplied. After the matter was taken up on November 28, the government counsel informed the bench that considering the sensitivity of the matter and the security issues related to the case, the matter be taken up “in chamber”. Accordingly, the matter was taken up “in chamber”. The government counsel added that based on the same documents that have been sought by the major, the President of India in exercise of the powers conferred upon her under Section 18 of the Army Act 1950, read with Article 310 of The Constitution of India, has passed an order terminating the major’s services. The government counsel said that once an order is passed under Section 18 of the Army Act, the tribunal does not have the jurisdiction to deal with the matter. Under the Armed Forces Tribunal Act, this tribunal has been conferred powers to deal with service matters as are defined under Section 3(o). Section 3(o) sub-clause (iv)(i) excludes the matters which are beyond the purview of this tribunal and clearly indicates that an order passed under Section 18 of the Army Act is beyond the jurisdiction of this tribunal and it cannot be subjected to a judicial scrutiny under the Armed Forces Tribunal Act. Therefore, the tribunal does not have the jurisdiction to deal with the subject matter and the issue raised by the major, the counsel submitted. “Even though the prayer made is to supply certified copies of the documents, but if based on the said documents the Hon’ble President of India has taken any action which is admitted by the applicant in the application, we are of the considered view that the issue of supplying of the documents is also hit by the provisions and meaning of “service matters” as contained in Section 3(o) sub-clause (iv)(i). Therefore, the objections raised by the respondents are tenable. We uphold the same and dismiss the application on account of the fact that it is not maintainable before us,” the bench said in its order. The order of the AFT bench further said the major's counsel emphasised that under the provisions of Army Rule 184, he was entitled to copies of a Court of Inquiry/Proceedings of a Board of Officers unless ordered otherwise by the Chief of Army Staff for reasons recorded by him in writing. “Since these documents were placed before the Hon’ble President and the President took an action under Section 18, it is the pleasure of the President which ultimately resulted in the impugned action and the prayer made by the applicant cannot be granted for the simple reason that the final order passed under Section 18 is beyond our jurisdiction and all actions taken are incidental and ancillary which culminated in the Hon’ble President’s passing the order under Section 18 is also thus beyond the jurisdiction of this Tribunal” the bench said in its order. In March 2022, the Military Intelligence Counter Intelligence Unit of Strategic Forces Command found the major to be in contact with a Pakistani intelligence operative named Aarushi Akash on Facebook. The intelligence officers confiscated and seized two mobile phones, a laptop and a hard drive from the major. A forensic digital examination of these devices was carried out and he was asked to declare all digital devices, and social media accounts with mobile numbers, usernames and passwords. It was initially suspected that the major was in contact with four to five Pakistani intelligence operatives. However, subsequent questioning of the officer showed he was in touch with only one suspected Pakistani operative. On his part, the officer had claimed he was not aware if the contact was the suspected PIO named Aarushi Akash. Subsequently, two Courts of Inquiry were convened against the officer. As per the details available, the first convening order of the Court of Inquiry was to establish the “sadistic behaviour and hypersexuality” of the officer. The second order was for an inquiry to investigate his contact with any Pakistani operative and any security lapses. This inquiry was initiated after a month of the initiation of the first one. Both inquiries were completed by September and October 2022. During the proceedings of these Courts of Inquiry, the major was suspended in May 2022. On October 2, 2023, he was handed over the President’s order terminating his services and was asked to vacate the artillery regiment that he was posted to at that time.
