J.M. Panchal, J. - (1.) The instant appeal is directed against Judgment dated March 15, 2002 rendered by the High Court of Delhi in C.W.P. No. 5451 of 1998 by which (1) the order dated October 30, 1996 invoking Section 123 of the Army Act and taking the respondent in close custody (2) the findings recorded by General Court Martial holding the respondent guilty of some of the charges and imposing punishment of forfeiture of 8 years past service of the respondent for the purposes of the pension vide order dated April 3, 1997 (3) the order dated June 14, 1997 passed by Mr. K.K. Verma, the then Major General, General Officer Commanding, 22 Infantry Division, directing the General Court Martial to re-assemble in open Court at Meerut on June 28, 1997 for reconsidering its findings on the first, second, third, fourth, sixth, seventh and eighth charges levelled against the respondent and the adequacy of the sentence of forfeiture of 8 years of past service for the purpose of pension awarded to him by the General Court Martial (4) the revised order dated July 2, 1997 passed by General Court Marital adhering to its earlier findings but revoking its earlier order of sentence and imposing sentence of forfeiture of 11 years past service for the purposes of pension and severe reprimand subject to he confirmation by Major General, General Officer Commanding and (5) the communication dated April 8, 2000 addressed by Col. Dy. CDR Mr. P.K. Sharma promulgating the order of the Confirming Authority by which sentence of forfeiture of 11 years past service of the respondent for the purposes of pension, was confirmed and (6) the communication dated May 15, 2000 by DDA and QMG Mr. G. Vinod for CDR mentioning that the promulgation order carried out on May 15, 2000 was handed over to the respondent and order dated April 17, 2000 promulgating punishment of forfeiture of 8 years past service of the respondent for the purposes of pension and severe reprimand was de-promulgated and cancelled, are set aside, on the ground that trial of the respondent by Court Martial was time barred in view of the provisions of Section 122(1)(b) of the Army Act, 1950.
(2.) The facts emerging from the record of the case are as under: The respondent i.e. Mr. V.N. Singh who was Lt. Col. was posted as Officiating Commandant in 4 Reserved Petroleum Depot ('4 RPD' for short), Delhi Cantonment. During the inspection of 4RPD, certain irregularities were noticed with regard to local purchase of the Hygiene and Chemicals in the month of May 1993. Therefore, by a letter dated May 5, 1993, the then Lt. Col. P. Oomen, who was Additional Director, Supply and Transport, Delhi area was directed by the then Brigadier Mr. K.S. Bharucha, who was holding the post of Deputy Director, Supply and Transport, Headquarters Delhi area ('DDST' for short), to carry out preliminary investigation of local purchase of Hygiene and Chemicals as well as other fuel oils and lubricant items by 4 RPD, during the year 1992-93. Accordingly, preliminary investigation was carried out by Lt. Col. P. Oomen. On May 17, 1993 he submitted his report to Brigadier K.S. Bharucha, DDST, who in turn forwarded the report on May 27, 1993 to Major General of Army Supply Corps ('A SC ' for short) Headquarters Western Command, Chandimandir. In that report, the DDST recommended closure of the case. The Major General, A SC , Headquarters Western Command, did not consider the case appropriate for closure. He therefore, forwarded the papers to the Headquarters Western Command. The Headquarters suggested to the Major General by letter dated June 12, 1993 to seek explanation of the respondent. The Major General A SC therefore issued a show-cause notice dated June 18, 1993 to the respondent and sought his explanation on the point of procedural lapses in local purchase. The respondent in his reply dated July 6, 1993 admitted certain procedural lapses on the part of 4 RPD and regretted the same, since such lapses were due to practical problems. Thereafter, the DDST accepted the explanation given by the respondent and again recommended the Headquarters Western Command (ST) Chandigarh to treat the case as closed if deemed fit by communication dated July 9, 1993. On September, 9, 1993, the Major General A SC , Headquarters Western Command, endorsed certain remarks in the pen picture of the respondent while writing his ACR. On January 8, 1994 a Technical Court of Inquiry was convened by Brigadier Narsimhan, who had replaced Brigadier K.S. Bharucha, as DDST. The Lt. Col. Ram Darshan of 226 Company A SC Supplies was asked to act as the Presiding Officer. The report along with the proceedings of Technical Court of Inquiry were forwarded to the DDST. The DDST recommended to the Major General A SC , Headquarters Western Command, vide communication dated March 3, 1994 to go for a thorough investigation by Staff Court of Inquiry. Therefore, on May 7, 1994 a Staff Court of Inquiry was convened pursuant to the orders of the General Officer Commanding-in-Chief, ('GOC-in-C' for short) Western Command. Before Staff Court of Inquiry, ('S.C.I.' for short) witnesses were examined and documents produced. The Staff Court of Inquiry concluded its proceedings and submitted its recommendations on August 31, 1994 blaming the respondent specifically along with few other personnel for irregularities, in the local purchase of Hygiene and Chemicals during the period 1992-93. After examining the recommendations of SC I, the GOC, Delhi area, Major General A.R.K. Reddy, recommended on October 19, 1994, disciplinary action against the respondent. Thereafter, the GOC-in-C Western Command, Lt. Gen. R.K. Gulati, directed to initiate disciplinary action against the respondent vide communication dated December 3, 1994. On August 23, 1995 the disciplinary action was commenced against the respondent by way of hearing of parties as required by Rule 22 of the Army Rules and a direction for recording of summary of evidence was ordered by the Commanding Officer i.e. Commander 35 Infantry Brigade under whom the respondent was working at the relevant time. The Commanding Officer, vide order dated October 30, 1996 invoked the provisions of Section 123 of the Army Act 1950, and took the respondent into close custody as superannuation of the respondent was due on October 31, 1996 and it was apprehended that the respondent would flee the course of justice. The respondent filed Criminal Writ Petition 726 of 1996 before the Delhi High Court challenging the order dated October 30, 1996 on the ground that Section 123 of the Army Act was wrongly invoked and trial if any by GCM was barred by limitation under Section 122 of the Army Act. The respondent also prayed to direct the authority to pay compensation at the rate of Rs. 50,000/- for each day of illegal detention. By an order dated December 3, 1996, the High Court stayed the operation of order dated October 30, 1996 and directed the respondent to raise the points mentioned in his Writ Petition, before General Court Martial. On December 11, 1996, the General Officer Commanding, 22 Infantry Division issued an order convening General Court Martial ('GCM' for short). Accordingly, GCM was convened. By order dated April 3, 1997, the GCM found the respondent guilty of some charges and not guilty of some other charges. By the said order, the GCM imposed the punishment of forfeiture of 8 year's past service for the purpose of pension on the respondent subject to the confirmation of the same by the Major General, General Officer Commanding. This report of the GCM was sent to the Confirming Authority. The Confirming Authority vide order dated June 14, 1997, sent back the report to GCM, under the provisions of Section 160 of the Army Act to revise/reconsider the exoneration of the respondent from some of the charges and decide whether the punishment imposed on the respondent was lenient or not. Thereupon, the respondent filed Writ Petition No. 5451 of 1997 challenging aforementioned order dated June 14, 1997 as well as validity of Sections 153, 154 and 160 of the Army Act, 1950. Writ Petition No. 5451 of 1997 was filed by the respondent without prejudice to the contentions and averments made in Criminal Writ Petition No. 726 of 1996. In view of the directions from the Confirming Authority, GCM was convened. The GCM submitted its report dated July 2, 1997. The report indicates that the GCM adhered to its earlier finding but passed a fresh order of sentence forfeiting 11 years of past service of the respondent for the purpose of pension as well as the punishment of severe reprimand. A copy of the order dated July 2, 1997 was also forwarded to the respondent. On receipt of the order dated July 2, 1997 the respondent brought to the notice of the Court hearing Criminal Writ Petition No. 726 of 1996, the subsequent developments which had taken place. The Court noticed that order dated June 14, 1997 passed by the Competent Authority, was subject matter of challenge, in Writ Petition No. 5451 of 1997 which was pending. On subsequent events being brought to the notice of the Court, the Court was of the opinion that keeping Criminal Writ Petition No. 726 of 1996 pending was of no use and ends of justice would be met if liberty is reserved to amend memorandum of Writ Petition No. 5451 of 1997 and to raise all questions in the said pending Writ Petition. After reserving necessary liberty to the respondent, the Court disposed Criminal Writ Petition No. 726 of 1996 by an order dated August 19, 1998. The order dated July 2, 1997 passed by GCM was considered by the Confirming Authority. The Confirming Authority approved the finding of GCM and imposition of sentence of forfeiture of 11 years past service of the respondent for the purpose of pension. However, the Confirming Authority did not approve/confirm the punishment of severe reprimand imposed by the GCM on the respondent. By communication dated April 8, 2000 the order of the Confirming Authority was promulgated. Thereafter, vide communication dated May 15, 2000 promulgation of order was handed over to the respondent. Thereafter, the respondent moved an application for amendment of Writ Petition No. 5451 of 1997 which was allowed. By way of amendment the respondent challenged validity of orders dated April 3, 1997, July 2, 1997, October 30, 1996, April 8, 2000 and May 15, 2000 over and above claiming compensation. The High Court by Judgment dated March 15, 2002 has allowed the Writ Petition and quashed GCM proceedings as well as the sentence imposed upon the respondent after holding that GCM proceedings were initiated after expiry of the period of limitation prescribed by Section 122(1)(b) of the Army Act, 1950, which has given rise to the instant appeal.
(3.) This Court has heard Ms. Indira Jaisingh, the Learned Additional Solicitor General for the appellants and Mr. Yatish Mohan, the learned advocate for the respondent at great length and in detail. This Court has also considered the documents forming part of the instant appeal.;