Whatsapp Group: MI Officers Move SC Seeking Review Of Its Order On Suspension
New Delhi: Four Military Intelligence officers suspended for allegedly being part of a WhatsApp group with a Pakistani agent as a member have approached the Supreme Court on Friday seeking review of its order dismissing a challenge to their suspension.
The officers had approached the Supreme Court claiming that they were not given any hearing before being suspended pending the Court of Inquiry against them.
The officers' petition was rejected by the Supreme Court which disagreed with their contention that before suspending them pending the Court of Inquiry, an opportunity of hearing was required to be afforded to them.
"Even under Regulation 349 also, there is no requirement of such a procedure to be followed. The petitioners can be suspended pending the Court of Inquiry, which as stated by Tushar Mehta, learned Solicitor General, has already been constituted and inquiry is going on," the bench of Justices M R Shah and B V Nagrathna held on July 14.
The officers have now filed a review petition claiming that inquiry and investigation are two different procedures according to army law.
They said the Court of Inquiry (COI) is "a fact finding tool" which is "a pre-stage to disciplinary proceedings".
On the basis of conclusions reached by the COI, the commanding officer can decide to proceed with disciplinary proceedings and carry out investigation under Army Rule 22 and while doing so he can decide to suspend the soldiers under his jurisdiction pending investigation and not during Court of Inquiry, the petition said.
They said COI is an action administrative in nature to assist the decision making process at the prior stage on making any conclusions with regards to suspension, military custody or arrest.
They said investigation is a post-stage requirement when a decision related to military custody has been originated through the Court of Inquiry conclusions.
Both the procedures under inquiry and investigations give statutory protection and safeguards to person subject to the Army Act of rights of being heard, it said.
"Thus this Hon'ble Court has erred in its decision that the suspension of petitioners as correct and legal pending the Court of Inquiry proceedings which was not even concluded.
Thus, the order of convening the Court of Inquiry itself becomes illegal under the Acts and Rules once the suspension order is passed and the competent authority under the Acts and rules are required to proceed for investigation under the procedure stipulated under Army Rule 22 and onwards, the petition said.
Terming their suspension orders illegal and suffering from procedural infirmity , the officers said the decision making process of the competent authority was against law and arbitrary by denying them opportunities of being heard.
The Solicitor General has made a submission of very serious allegation which is not justified with the suspension orders placed on records, it said.
The officers were suspended in May this year. They have claimed that they were ordered by their superiors to hand over their personal mobile phones which they did without any hesitation and cooperated with the investigation.
They were told that there was one officer who is part of a WhatsApp group in which a Pakistani Intelligence Operative is active hence all digital assets belonging to them need to be checked, they had said in their first petition.