- (1.) The petitioner has approached this Court under Article 226 of the Constitution challenging order dated 5.9.2003 (Annexure P-2) issuing a direction for his attachment at Chandimandir by orders of Head Quarters, Western Command. The apprehension of the petitioner is that the attachment order under Army Instructions 30 of 1986 has been issued as he is required to be tried by Court Martial. Under the Instructions the officer against whom disciplinary action is contemplated may, where necessary, be attached to other units at the discretion of the Army Head Quarters or GOC-in-C Command concerned for the purpose of investigation and progress of the disciplinary case. The petitioner has sought quashing of order dated 5.9.2003 (Annexure P- 2) primarily on the ground that the allegation for which he is sought to be attached for taking disciplinary action has become barred by limitation under Section 122 of the Army Act, 1950 as a period of three years has elapsed between the alleged date of offence and the date of trial.
(2.) Brief facts, which are necessary for the decision of this case are that the petitioner was posted as Commandant, Supply Depot, Chandimandir from 1999-2000. On 19.11.1999 when the Deputy Director, Supplies and Transport was on inspection to the unit commanded by the petitioner, a surprise check was conducted by CBI on the supplies depot, FOL (Fuel Oil Lubricant) in the presence of GOC. Incharge of FOL. The CBI team detected certain discrepancies in the rates and quantity of vegetables/fruits available at the fresh point as per the inspection register. It was also observed by the CBI team that 506 liters of petrol and 1000 liters of diesel was found in excess in FOL Report. The statements of the petitioner, NOC IC, JCO IC and SO were recorded by CBI in the month of May 2000. There were neither any allegations against the petitioner nor any other officer. An investigation by way of 'Court of Inquiry' was also ordered by the army authorities in which the petitioner and the others had made statements. The Court of Inquiry did not find any blame against the petitioner and it had recommended administrative action against the SO, JCO Incharge and the NCO Incharge of the fresh. Neither Core Commander nor Army Commander directed any disciplinary action against the petitioner. The petitioner was posted out of Chandimandir in routine. While he was serving at HQ 16 Crops for almost three years, he did not hear any thing raising a presumption that the matter had been closed and there was nothing to be processed further. When the matter had already been settled down and no irregularity or illegality had been found in the gap period of about three years, all of a sudden a signal No. A 1660 through a letter dated 5.9.2003 intimating that the case had been taken up by the Head Quarter Western Command with Army Head Quarter for attachment of the petitioner at Chandimandir. The validity of order dated 5.9.2003 (Annexure P-2) has been challenged by the petitioner mainly on the following grounds :- (i) The impugned order of attachment has been issued in contemplation of disciplinary proceedings against the petitioner for the purpose of making him to face trial by court martial as per Army Instructions 30 of 1986. Proposed action of trial by court martial is barred by limitation in terms of Section 122 of the Army Act as the inspection had been conducted by CBI on 20.11.1999 and the petitioner could be tried by court material within three years from the date of offence. The period of three years expired on 19.11.2002, as such the action of attachment for proposed court martial proceedings is violative of Section 122 of the Army Act. (ii) The action of attachment/disciplinary proceedings is not permissible in view of para 12 of letter No. 01086/122/AG/DV-1(P) dated 12.4.2001, which lays down that in cases investigated by CBI the period of limitation would commence from the date of receipt copy of preliminary inquiry, registration report or that of FIR, as the case may be, by the authority competent to initiate action against the accused, provided it discloses the offence and the identity of the offender. In cases where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence only from the date of receipt final report by the CBI, if containing such disclosure. (iii) There is clear violation of statutory provisions of law and action is being initiated in the absence of jurisdiction warranting interference in exercise of writ jurisdiction.
(3.) Pursuant to the notice of motion issued to the respondents, written statement has been filed contesting the claim of the petitioner mainly on the ground that the writ petition is premature at the stage of finalisation of Court of Inquiry, which is a mere fact finding body. A direction has been issued by the competent authority to initiate disciplinary action. The disciplinary proceedings are yet to be initiated and the petitioner is yet to be attached for disciplinary proceedings in terms of Army Instructions 30 of 1986. Reliance has been placed on Army Rules 22, 23 and 24 to contend that the operation of Section 122 of the Army Act would come into play only with the commencing of the trial at Court martial. The period of limitation is to be reckoned from the date of the final report given by the CBI as the identity of the offender was finally established by the CBI when the "final report" dated 13.11.2001 was submitted by the CBI to the Army Head Quarters holding the petitioner along with others, namely, Capt. R.K. Dahiya, Nb. Sub. Mohan Dass, Hav. Janak Raj, liable for disciplinary action by the army authorities. The final report of CBI has been placed on the record as Annexure R-2.;