WA/1402/2008 of Leiutement Colonel Kuldeep Singh (Hindu) Vs The Union of India., rep.by its Secretary, on 30 December 2008

HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICEAnd HON'BLE SRI JUSTICE R.SUBHASH REDDY

WRIT APPEAL Nos.1336 and 1402 of 2008

COMMON JUDGMENT:(per Hon’ble Sri Justice R.SubhashReddy)

These two writ appeals are filed by the petitioner inwrit petition Nos.18241 and 10987 of 2008, aggrieved bythe common order dated 15[th] October 2008, passed bythe learned single Judge in those two writ petitions.

2. Writ petition No.18241 of 2008 was filed seeking awrit of Mandamus to declare order No.2043/3Comp/A3,dated 22[nd] August 2006, constituting the Court of Inquiryas illegal and arbitrary, whereas writ petition No.10987 of2008 was filed questioning the attachment orderNo.A1607, dated 14[th] May 2008, and to declare thedisciplinary action initiated against the petitioner as illegal. By the common order dated 15[th] October 2008 passed bythe learned single Judge, both the writ petitions aredismissed.

3. The petitioner i.e. Major in Indian Army (nowLeiutenent Colonel), was the officer in charge of MilitaryFarm at Jammu from 01.01.2001 to 28.02.2004. Acomplaint was received from M/s.KMJ Milk Foods Limited(Formerly Rahul Dairy and Allied Products) of Gazipur,New Delhi in February 2006, complaining that payment forsupply of 54 Metric tons of skimmed milk powder sent to Military Farm at Jammu, had not been received. Basedon the said complaint, a one-man investigation was doneby Colonel Sudhir Kashyap under the aegis of DeputyDirector General of Military Farms. The said investigatingofficer has found that there was no receipt of skimmedmilk powder from M/s.KMJ Milk Foods Limited, but therewere large number of other irregularities in purchase andtransfer of skimmed milk powder. The investigating officerhas recommended further investigation through a Court ofInquiry. Accordingly, a Court of Inquiry was convened byCommander 71, Sub Area, through Convening OrderNo.2043/3/Comp/A3, dated 22[nd]August 2006, toinvestigate in to the irregularities in procurement ofskimmed milk powder at Military Farm, Jammu. On theground that the detailed investigation conducted by theCourt of Inquiry has revealed the involvement of someofficers including the petitioner, further proceedings weretaken up to record the summary of evidence. Onconclusion of investigation by the Court of Inquiry, whenthe involvement of petitioner was noticed, an order ofattachment was passed for the purpose of further inquiryin the matter.

4. On conclusion of the Court of Inquiry and when theattachment orders were issued, the petitioner had comeup with the aforementioned two writ petitions with theprayers mentioned therein, by raising several grounds.

5. Heard Sri J.V.Suryanarayana, learned Senior Counsel for the appellant and Sri A.Rajasekhar Reddy,Assistant Solicitor General and Sri K.JagadeeshwarReddy, for the respondents.

6. In these appeals, it has been mainly contended bySri J.V.Suryanarayana, learned Senior Counsel for theappellant that the Court of Inquiry was convened contraryto the provisions of Army Act, 1950 and Army Rules,1954. It is submitted that the appellant was not evenserved with a copy of reference order, and further, he wasalso not provided with the opportunity of cross-examiningthe witnesses, as such, the entire proceedings werevitiated as they were conducted in violation of theprocedure contemplated in the Army Rules, 1954. It issubmitted that as much as the very initiation of Court ofInquiry is per se illegal, the consequential order ofattachment also is without any basis. It is submitted thatthough there was no material to proceed against theappellant/petitioner, only at the instance of some officerswho are inimical towards him, such proceedings wereinitiated at a belated stage, only to harass the appellant,though such proceedings were barred under law,particularly under Section 122 of the Army Act, 1950.

7. On the other hand, it is submitted by SriA.Rajasekhar Reddy, learned Assistant Solicitor Generaland learned counsel Sri K.Jagadeeshwar Reddy,appearing for the respondents that at the stage of Court ofInquiry, no inquiry will be conducted against the named individual, as such, no right of the appellant is violated. Itis submitted that still the proceedings are at the stage ofrecording summary of evidence which is a stage forgathering evidence with reference to the findings recordedin the Court of Inquiry, to place the same before thecompetent authority for passing appropriate orders. It issubmitted that as much as it has come to light in the Courtof Inquiry that certain illegalities were committed by theappellant and other officers, to take up furtherproceedings in the matter, the attachment orders wereissued as per the Army instructions. It is further submittedthat though the appellant was given opportunity, he didnot choose to participate in the Court of Inquiryproceedings, and as such, it is not open for him to interdictthe proceedings at this stage.

8. Upon a perusal of the various provisions of theArmy Act, 1950 and the Army Rules, 1954, it is evidentthat the Court of Inquiry is constituted to inquire into theillegalities in procurement of skimmed milk powder duringthe period when the appellant was in charge of the MilitaryFarm at Jammu. It is not brought to our notice by thelearned counsel for the appellant, any provision, whichrequire an order convening such Court of Inquiry is to beserved on any officer/employee. The Court of Inquiry is inthe nature of a general inquiry with reference to theirregularities alleged to have taken place in supply ofskimmed milk powder during the period when the petitioner was working as in charge of the Military Farm atJammu. In any event, even at the stage of Court ofInquiry, it is evident from the counter affidavit and theadditional counter affidavit filed in the writ petitions thatinspite of giving opportunity, the appellant/petitioner didnot choose to cross-examine the witnesses and onconclusion of inquiry, he has come up with those two writpetitions, questioning the very convening of the Court ofInquiry. As much as no further action has been takenfor trial of the appellant/petitioner by Court Marshall and asmuch as proceedings are at the stage of recordingsummary of evidence, no right of the appellant is violated,much less any right in violation of the provisions under theArmy Act, 1950 and Army Rules, 1954. Even theattachment order which is issued, is pursuant to the primafacie findings recorded in the Court of Inquiry and to takeup further proceedings in the inquiry, which is inaccordance with the provisions of the Army instructionsand Rules made thereunder.

9. Army instructions for attachment of officers to otherunits for disciplinary purposes is placed before us, which reads as under :

“Officers against whom disciplinary action iscontemplated may, where necessary, be attached toother units, at the discretion of Army Headquartersor GOC-in-C Command concerned for the purpose ofinvestigation and progress of the disciplinary case. However, such attachment will be ordered only whena prima facie case against him is established and notduring investigation stage by a Court of Inquiry, even for officers whose character and military reputationis likely to be a material issue at the Court ofInquiry. In exceptional cases where as Officer’scontinued retention in his appointment say as CO, isnot desirable, he may be attached to another unit orformation even at the commencement of Court ofInquiry.”

From a perusal of the aforesaid instructions, it clearlyempowers the authorities to pass such attachment orderswhen a prima facie case against an officer is establishedduring the investigation by the Court of Inquiry. In thatview of the matter, the order of attachment is in conformitywith the instructions issued in this regard.

10. Though it is submitted by the learned seniorcounsel appearing for the appellant that the appellant wasnot provided with the material and list of witnesses etc.,but at the stage of Court of Inquiry, which is an inquiryconstituted not with reference to any individual officer, nospecific material need be supplied at that stage. Further, itis evident from the counter affidavit that the appellantwould be provided with an opportunity during the processof recording summary of evidence. From the provisions ofthe Army Act, 1950 and the Army Rules, 1954, it is clearthat even the proceedings of recording summary ofevidence, are in the nature of preliminary investigationand after recording such summary of evidence,proceedings will be placed before the competent authorityeither to take further action by constituting further CourtMarshall or to let-off the officer at that stage.

11. Though the appellant has relied on the provisioncontained under Section 122 of the Army Act, 1950 insupport of his submission that proceedings are barred bylimitation also, but it is to be seen that the said limitationprescribed is only with regard to Court Marshall and thesame is subject to certain conditions. Particularly underSection 122-B of the Army Act, 1950, where thecommission of offence was not known to the personaggrieved of the offence or to the authority competent toinitiate action, the first day on which such offence comesto the knowledge of such person or authority, shall be thedate for reckoning the period of limitation prescribed underthat Act. In any event, further proceedings were notinitiated to try the appellant/petitioner through a CourtMarshall and the proceedings are only at the stage ofrecording summary of evidence on conclusion of Court ofInquiry, it cannot be said that the proceedings are barredby limitation.

12. It is also relevant to note here that the Court ofInquiry was convened pursuant to an order dated 22[nd]August 2006 and till the conclusion of the findingsrecorded in the Court of Inquiry, at no point of time, theappellant/petitioner did approach this Court and at thisbelated stage, once his name was indicted in the Court ofInquiry proceedings, it appears the aforementioned twowrit petitions were filed with an intention to interdict thefurther proceedings. In that view of the matter, this Court is of the view that in conducting Court of Inquiryproceedings, nor in issuing further consequential order ofattachment, the respondents have not committed anyillegality with reference to the provisions of the Army Act,1950 and the Army Rules, 1954.

13. For the aforesaid reasons, we are in agreement withthe view taken by the learned single Judge and we do notfind any merit in these writ appeals, warranting anyinterference. Accordingly, both these writ appeals aredismissed. No order as to costs.

December 2008.

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ANIL R.DAVE, CJ

ajr

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R.SUBHASH REDDY, J