Doabia, J.
1. Appellant was enroled in the army as Sepoy on 21st June' 68. He submits that he had worked with sincerity and earned three promotions. In Sept' 84, he applied for premature retirement. This was approved. He reported in the Depot Coy JAK RIF Regiment for completion of discharge formalities. The final settlement account and other formalities were completed on 25th Oct' 85. He was to proceed to his home town on 31st Oct' 85 with sixty days leave commencing from 1st Nov' 85. These facts are stated not only in the writ petition but are also disputed by the respondent Union of India. Though, he was all set to leave for his home town but the destiny distined otherwise. A signal is said to have received from 215 Transit Camp. There was a direction from Army Headquarters to with-hold his discharge as he was required for interrogation. This led to an order of cancellation of his discharge and the appellant was sent to Transit Camp. The appellant was confined in the lock-up of 167 Field Regiment C/o 56 APO. In para 6 of the petition, the appellant submits that he was lodged in the Quarter Guard confinement of 167 Field Regiment and remained in confinement upto 8th April' 86. It is further submits that he was being shifted everyday from the said Regiment to Interrogation Section (South) DET No. 4 Liasion Unit Northern Command C/o 56 APO. He submits that he was being pressurised to give something in writing. He, however, did not comply with this, He submits that in order, to get of the merciless beatings and torture from the persons incharge of interrogation wrote a statement which the above named officers had been dictating to him wherein the petitioner was made to write certain things against himself and against the officer Commanding Maj. Hardev Singh. It is further submitted that due to the physical torture to which he was subjected during the interrogation, his left ear drum was damaged and he lost power of hearing. 'The appellant's eyesight too had been permanently damaged due to focusing of high intensity light upon the eyes of the appellant. He submits that he was given some treatment by army doctors. Such is the submission made in para 6 of the petition. It is submitted that during this long period of detention of six months, he was not put to trial in any forum which are provided under the Army Act. It is submitted that he was not given any chance to prove his innocence. He never came to be convicted by an Criminal court and even the court material was not conducted. Ultimately, it is submitted that he was discharged. This was done under Rule 17 of the Army Rules. The assertion that appellant was subjected to merciless beating and torture and that he lost hearing power and also his eye sight on account of this torture, as indicated above, has been made in para 6 of the petition, For facility of reference, this para is being reproduced below:-
'That after the petitioner was arrested on 1st of November, 1985 at Jabalpur the petitioner was shifter from there on the same day to respondent No. 3 location. On reaching the location of respondent No. 3 the petitioner was lodged in the Quarter-Guard confinement, of 167 Field Regiment C/o 56 APO and the petitioner remained in confinement at the same place upto 8th April, 1986. From 3rd of November, 1985, the petitioner was every-day shifter from 167 Field Regiment C/o 56 APO Quarter Guard to Interrogation Section (South) DET No 4 Liasion Unit Northern Command C/o 56 APO and was interrogated daily till 7th of April, 1986. The petitioner despite the fact had put in unblemished service in the Army during his tenure of service till the day he was to proceed on pre-mature retirement for his home could not understand as to why he has been subjected to this un-warranted and uncalled for treatment. During the interrogation the petitioner was again and again forced to say by the Officers who were incharge of the Interrogation of the petitioner namely Maj. Mohinder Singh and Naib Subedar HR Verma were forcing the petitioner that he should give a statement against his earlier Commanding Officer Maj Hardev Singh OC 215 Transit Camp, increminating him for certain his acts of commission and omission. The petitioner however refused to comply with the illegal demand of the officers mentioned hereinabove who interrogated the petitioner despite the fact that he was subjected to merciless beating and physical torture. The petitioner due to the physical torture to which he was subjected during the interrogation his left ear-drum was also damaged and he has lost the power of hearing from that ear. The petitioner's eye sight too has been permanently damaged due to the focussing of high intensity light upon the eyes of the petitioner. The petitioner was even treated for such injuries by the Army Doctors also'.
2. The reply submitted to this para be also noticed:-
'Contents of para 6 are categorically denied. While admitting the petitioner's legal detention in military custody for the purpose of investigation, it is denied that he was forced as alleged in the paragraph, to depose against the Commanding Officer. Although the allegations of torture attributable to Maj Mohinder Singh and N/Sub. H.R Verma cannot be gone into, appropriately by this Hon'ble Court in the absence of Maj Mohinder Singh and N/Sub H.R Verma, being parties to the petition yet it is submitted that the petitioner was not, as alleged by him, tortured. The investigation visions of Law. Petitioner's allegations regarding damage to his eye-sight and his treatment by Army Doctor is denied as false. It is also denied that petitioner's left ear-drum was damaged because of the alleged torture.'
3. A perusal of the reply filed by the respondents makes it apparent that they themselves are not sure as to whether the appellant was tortured by the Investigating Officers i.e Maj Mohinder Singh and N/Sub HR Verma. On the one hand, it is stated that the question as to whether they were tortured by the above said Investigating Officers or not cannot be gone into in the absence of the said persons and on the other hand, they are denying that the appellant was tortured. In these circumstances, it would be apt to direct the respondent Union of India to constitute a Medical Board and examine the appellant. The said Medical Board would examine the disability suffered by the appellant. The appellant is also left free to get himself examined from civil medical authorities. The appellant in this regard would approach the Principal Government Medical College, Jammu, who would take necessary steps for getting the appellant examined from the concerned doctors. A report in this regard would be made available to the appellant within a period of one month from the date, the appellant approaches the Principal, Government Medical College Hospital, Jammu. As indicated above, the appellant would also be examined by the medical board to be constituted by the army authorities. This would be done within a period of two months from the date, a copy of this order is made available to respondent Union of India. The army Medical Board would take noticed of the report to be given by the civil authorities and in case a contrary conclusion is arrived at by them, then, specific reasons would be given by them in arriving at that conclusion.
4. The other aspect of the matter is as to whether the order passed in exercise of power conferred under Army Rule 17, without giving any opportunity to the appellant is sustainable or not.
5. Before going into the above aspect of the matter, it would be apt to notice the provisions of Section 20(1) of the Army Act and Rule 17 of the Army Rules. These provisions in-so-far-as relevant are being reproduced below:-
'20(1): The Chief of the Army Staff may dismiss or remove from the service any person subject to this, other than an officer.'
'Rule 17:- Dismissal or removal by Chief of Army Staff and by other officers-Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court martial, no person shall be dismissed or removed under Sub-section (1) or Sub-section (3) of Section 20, Unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service;
Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.'
6. At this stage, the order which has been conveyed to the petitioner on 24th Oct' 87 is also required to be taken note of. This is also being reproduced below:-
'I have been directed to convey to you that under the provisions of Army Act Section 20(1) read in conjunction with Army Rule 17 of the Chief of the Army Staff has dismissed you from the service. The dismissal is to be effective from 24 Oct' 1987.'
7. Before the learned Single Judge, the plea put across was that if an opinion has to be formed in terms of Rule 17, then this opinion ha to be formed not on the basis of merits of controversy but on the basis as to whether the circumstances are such that it is not possible to comply with the provisions of Rule 17. This argument was repelled by the learned Single Judge. A view was expressed that the Chief of Army Staff had an option either to issue a show cause notice or to dispense with the requirement of the same if it is not expedient or reasonably practicable to comply with the provisions of the rule. The learned Single Judge took note of the term 'it is not expedient or reasonably practicable to comply with the provisions of this rule', and was of the view that these provision are not similar to those which are contained in Article 311(2)(c) of the constitution of India. A notice of the decision given by the Supreme Court of India in the case of AIR 1985 SC 1416, Union of India v. Tulsiram Patel, was also taken by the learned Single Judge. However, a distinction was made between the provisions contained in Rule 17 and the Judgment given in Tulsiram's case above on the reasoning that so far as army rules are concerned, it makes use of the word 'opinion' and so far as the Constitution of India is concerned, it use the word 'satisfaction'. It was concluded that the dictionary meaning of the word 'satisfaction' is of a wider connotation as compared to the word 'opinion'. It was accordingly held that when opinion is expressed in terms of Rule 17, then, this opinion is not to be placed at the same pedestal as the 'satisfaction' recorded in terms of Article 311 of the constitution. It was in these circumstances stated that judicial review in these matters stands excluded.
8. Before proceeding further, it would be apt to examine as to whether different approach has to be adopted when the words used are 'opinion' and 'satisfaction'. So far as Army rules are concerned, the word used is 'in the opinion' and so far as Article 311 of the Constitution is concerned, the word used is 'satisfaction'. The learned Single Judge, as indicated above, was of the opinion that so far as word 'satisfaction' is concerned, this has different implication, and therefore decision given under Article 311 would not be relevant. The Supreme Court in the case reported as AIR 1959 SC 914, Dolgobinda Paricha v. Nimai Charan Misra and Ors., expressed a views that the word 'opinion' would mean 'judgement or belief that is a belief or a conviction resulting from what one thinks on a particular question.' This view was expressed while interpreting Section 50 of the Evidence Act. A Full Bench of Punjab High Court in the case reported as AIR 1963 Punjab 280, Joginder Singh v. The State of Punjab, had an occassion to consider the meaning of the words in the opinion of the State Government. These words occurred in Section 16(1) of the Punjab Minicipal Act. This Section proved that. 'The State Government may, by notification, remove any member of a committee.....if in the opinion of the State Government he has flagrantly abused his position as a member of the Committee.... The question arose as to whether in forming this opinion, the State Government has to observe all those norms which are being observed by a Judicial or quasi-judicial authority. It was observed that the State Government has to form an opinion whether a particular member has or not flagrantly abused his position as a member of the Committee but there is no requirement that in forming that opinion, the State Government has to observe all those norms which are supposed to the observed by a Judicial or quasi-judicial authority. The expression has also been interpreted in 29 Mad 95. What was required to be seen was as to what would be meant by opinion of the jury. It was observed that the ordinary meaning is the formal decision of a Judge, an umpire, a counsellor or other party officially called upon to consider and decide upon a difficulty or dispute. The dictionary meaning of the word 'opinion' according to the Concise Oxfor English Dictionary is 'Judgment or belief based on grounds short of proof. See Lalai Singh Yadav v. State of U.P. 1971 Cr. LJ 1519.
9. So far as the word 'satisfaction' is concerned, this word was interpreted in AIR 1957 Punjab 303, Faqir Chand Sultani Ram and Anr. v. Bhana Ram Mansa Ram and Ors.. In the above case, in para 4 of the judgement, it was observed that the words 'satisfied' is a term of considerable expansiveness. The term 'satisfied' has been understood to mean, free from anxiety, doubt, perplexity, suspense or uncertainty; In this context it is synonymous with, 'convine the understanding; or 'convince beyond a reasonable doubt'. The learned Judge in the above case proceeded to give meaning to the word satisfaction and was of the view that when judicial determination is done, then this satisfaction must depend on sufficiency of facts placed before the judicial officer. It was observed 'no doubt the satisfaction is to be of the Magistrate resting on the discretion vested in him; but such discretion is not arbitrary and must be a sound judicial discretion and which should be regulated according to known rules of law. In its nature, it is more a legal than a personal discretion. It is essentially objective in its character i.e depending on the facts and material before the Magistrate rather than subjective and resting upon his caprice or predilection. Before passing the initiatory order and in order to confer jurisdiction there should be sufficient material justifying apprehension of a breach of the peace, which was the sole purpose before the mind of the Legislature'. Therefore, to say that there is material difference in the two terms, so far as the provisions under reference are concerned, would not be apt. In both the cases, view that to be formed and this view has to be formed in such a way that it should be relatable to some material on record.
10. The term 'opinion' would, therefore, mean a belief or conclusion held with confidence. A formal statement given by a legal expert about a particular case would also be covered by the term opinion. A formal statement made by a Judge or jury and conclusions given would also be covered by this term. So far as term 'satisfaction' in the context it has been used in Article 311 is concerned, it would mean 'coming to a conclusion on the basis of a material as is sufficient to believe that a particular state of affairs exists. Whenever satisfaction in terms of Article 311 is recorded, it has to be on the basis of something which exists. Some reasoning has to exist; a view has to be formed and if the above two terms are taken not of in the context noticed above, then even for arriving at a satisfaction, some opinion has to be formed. Therefore, to say that the term 'opinion' excludes a decision which requires a person to satisfy himself for arriving at a satisfaction would be an argument which cannot be accepted at least when Army Act and Rules are interpreted. The fine distinction pointed out by the learned Single Judge, in our opinion is not correct, whenever, an opinion is expressed by someone, then that authority has to be satisfied on the material which exists. As such, we do not concur with the view expressed by the learned Single Judge and hold that the terms 'opinion' and 'satisfaction' do not have any material difference in the net result when some ultimate conclusion is drawn. The distinction is fine but nevertheless, if that fine distinction is kept in view, then an opinion can be recorded only after satisfying or recording satisfaciton.
11. The scope of Article 311 of the Constitution was considered by a Division Bench of this court in the case of State of J&K; and Ors. v. S. Kehar Singh, 1999 Srinagar Law Journal 77. The decision given by the Supreme Court of India in the case reported as Jawant Singh v. State of Punjab, AIR 1991 SC 385 was taken note of an ultimately in paragraph 22 of the judgement, it was observed as under:-
A scrutiny of the relevant provisions and judicial precedents noted above lead to the coming to the following conclusions:-
i/ That enquiry can be dispensed with when a finding is recorded that in the facts and circumstances of the case, it is not possible to hold an enquiry.
ii/ That in the interest of security of the State it is not expedient to hold an enquiry.
iii/ The decision to not hold the enquiry is not final, this decision is open to judicial review.
The exercise of power under this provisions would be bad :-
a/ Where the authority whose satisfaction is in question has totally failed to apply its mind to relevant considerations.
b/ Where the satisfaction is based on extraneous or irrelevant considerations.
c/ Where the satisfaction is arrived at by the application of a wrong test.
d/ Where the satisfaction is based on material which are of no rationally probative value.
e/ What is required to be seen is that there should be some independent material apart from the allegations which are being looked into to record the finding that it is not possible to hold an enquiry and that the holding of enquiry would not be in the interest of the State.
12. Therefore, we are of the opinion that there is no distinction between the scope of judicial review vis-a-vis Article 311 or Rule 17 of the Rules. If this be the situation, then what is required to be seen is that there should be some independent material apart from the allegations which are being looked into to record a finding that it is not possible to hold an enquiry and that it would not be in the interest of State. In the present case, nothing has been said as to what is the material independently of the charge which stood in the way of Union of India in holding an enquiry into the matter. Therefore, prima facie, order of dismissal which does not even make mention of the fact that holding of enquiry is being dispensed with in view of the security reasons is liale to be set aside and is accordingly set aside.
13. In the present case, the decision taken by the Chief of the Army Staff stands reproduced above. It nowhere makes mention of the fact that action is required to be taken under the proviso to Rule 17 because it is not expedient or reasonably practicable to comply with the provisions of this Rule. As a matter of fact, this aspect of the matter has not been adverted to at all. Again, if the scope of word 'satisfaction' as occuring in Article 311 of the Constitution as interpreted by the Supreme Court and as noticed by this Court in several decision is taken note of, then it is apparent that what is required to be seen is that there should be some independent material apart from the allegations which are being looked into to record a finding that it is not possible to hold an enquiry.
14. As indicated above, the appellant came to this Court with a plea that he was tortured by the army authorities and as a result of this, he lost his hearing power and also his eye sight. An assertion has also been made that some medical treatment was also given to him by the army doctors with a view to rectify the injury caused to him.
15. The union of India, in this regard, as indicated above has taken a contradictory stand. On the one hand it has been stated that the question regarding torture of the appellant cannot be gone into the absence of Investigation Officers and on the other, as indicated above, the assertions of the appellant made regarding torture have been denied. In this regard, it would be apt to mention that custodial violence whether it is by the army authorities or by the Police, is something which cannot be upheld in an atmosphere where law is still supreme.
16. We are accordingly of the view :-
i) That the view expressed by the learned Single Judge that there is material difference in the wording of Army Act and rules framed there under and the Constitution of India in as much as Army Rule 17 uses the word 'opinion' and the Constitution of India using the word 'satisfaction', and therefore different norms are to be applied is a view which is not correct;
ii) That serious consequences ensue so far as the persons affected are concerned and therefore, the inbuilt safeguards as indicated in the various decisions which have been noticed in the case of Kehar Singh's case (supra) are required to be followed;
iii) That the ultimate opinion which has to be expressed is to be expressed not on the basis of merits of controversy but by taking into consideration some independent material which may justify the conclusion that it is not possible to hold an enquiry. Such is not the position in this case;
iv) That the appellant's allegation that he was tortued by the army authorities has not been denied in its entirety; conflicting stands have been taken by the respondent Union of India. It is precisely for this reason, a direction has been given to respondents to get the appellant examined by the Medical Board;
v) That the appellant, as indicated above, also be at liberty to get himself examined from civil medical authorities and place that conclusion before the medical board to be constituted by the army authorities;
vi) That in the event of a finding being recorded in favour of the appellant that the damage suffered by the appellant pertains to the period during which he was under detention, the respondent Union of India would pay a sum of Rs. 2 lakhs as compensation to the appellant within a period of two months from the date, finding is recorded by the medical board. This would, however, depend upon the outcome of the medical examination to be conducted by the concerned authorities and a finding being recorded in this regard by them.
17. The above observations have been made so that the appellant does not have to come again before a judicial forum in order to get his claim for compensation determined and adjudicated in case a finding is recorded in his favour.
Disposed of as such.