- (1.) THIS writ petition has been filed against the order dated March 30, 1993 passed by the Commanding Officer Brig. Mohan Singh invoking the provisions of Section 123 of the Army Act. In the writ petition, the petitioner has claimed following prayers: i) Quash the entire proceedings taken up against the petitioner in the court of Enquiry as well as summary of Evidence. ii) Quash the order dated 30. 3. 93 passed by respondent No. 3 invoking Section 123 of the Army Act and set it aside. If during the pendency of the writ petition, the petitioner is arrested or kept in military custody the respondents directed to release him immediately. iii) In the alternative the entire case be transferred before the appropriate forum under the civil authorities and the case be taken from the military authorities; iv) Personal compensation to the tune atleast 1 lac be awarded to the petitioner for tarnishing of his military character and humiliation.
(2.) BRIEF facts of the case are that the petitioner was working as Golonel and was posted as Project Officer in Army Welfare Housing Organisation (For short, 'awho') during the period July, 1989 to 24. 05. 1992. A contract was given to M/s. V. K. Construction Works Ltd. for construction of Housing accommodation. The said firm was to commence the work by 27. 11. 1989 and complete it up to 26. 05. 1991. According to the terms of contract, a bill was to be prepared by the contractor on the basis of 95% of the total construction and also 85% of the total costs of the material lying at the site. After verification, 75% of the amount of the bill was to be released by the petitioner and 25% of the amount was to be released by the Head Quarters of AWHO. The work of the contractor continued upto 8. 01. 1991 without any problem, but he stopped the work on 9. 01. 1991. The time for completion of work was extended from 26. 05. 1991 to 15. 10. 1991. Another application for extension was also submitted by the Contractor and the work was done up to 3. 11. 1991. The last bill which was submitted by the petitioner was for the work done up to 10. 10. 1991. It is submitted that on account of non-payment of this bill, the Contractor stopped the work on 3. 11. 1991 and, therefore, another notice was sent to him cancelling the contract vide letter dated 15. 11. 1991. By a letter dated 1 8 Prithi Pal Singh vs. Union of India, AIR 1982 SC 1413 uarters AWHO, New Delhi for preparation of inventories of the items lying in the various stores and it was further directed that the Project Manager Jaipur will take over the complete and incomplete works and the materials lying. It is admittedly by the petitioner that M/s V. K. Construction Limited knowing about cancellation of contract took away several items lying at the site, which were under his care and custody as per condition 56 of the contract and the petitioner could not stop him on account of non-availability of staff or assistance either from military or the civil authorities. A letter dated 20. 11. 1991 to the Station House Officer of Police Station Vishwakarma Industrial Area, Road No. 5 Jaipur was written by the petitioner, in which after informing that the Contractor has stopped the work and that inventory is to be prepared, it was mentioned to safe guard the project stores and building as also to complete the work assigned to the Board Officers. Neither it was mentioned in this letter that the material which was lying at the site has been stolen or is likely to be stolen or for what purpose the assistance or help is required. It is worth-while to point out that in the letter written to the Commander, Head Quarters 61 (1) Sub Area, Jaipur on 18. 11. 1991 it was mentioned that the firm has been resorting to number of unscrupulous means in the recent past and it was anticipated that they may create certain law and order problem at the site by way of making forcible entry, damage AWHO property or remove stores which rightfully belongs to AWHO. The letter which was written after 2 days i. e. on 20. 11. 1991 to the S. H. O. has no such reference nor any specific request was made therein nor the names of the persons were mentioned. It is submitted that the F. I. R. was not registered. Thereafter another letter dated 29. 11. 1991 was sent to the S. H. O. that at 0100 hours on 29. 11. 1991 Shri S. K. Jain, representative of M/s. V. K. Construction Works along with 50 persons arrived at the project site and threatened the petitioner with dire consequences in case any resistence whatsoever is offered by him or by the Chawkidar during breaking of the building and removing the articles from there. After sending this report of theatening with the names of persons, who could be identified the petitioner sent the F. I. R. on 30. 11. 1991 to the S. H. O. by name regarding trespass, stealing the stores in Autorickshaw and also tres-passing of about 50 persons. It is submitted, that when nothing was done, the petitioner had to employ private chawkidars of Rajasthan Security Agency to safe guard the assets. The Board of Officers started preparing of inventory and when inventory was prepared it was found that the list of the items' which had not been utilised for the construction and were not available at the site was to the extent of 4,21,001. 56. The FIR No. 41/92 was lodged by the petitioner on 21. 02. 1992. In the meantime, the Contractor filed a civil suit before the Additional Civil Judge, Jaipur City along with an application under Order 39 Rules 1 and 2 CPC, which was allowed and injunction was granted. Against the order passed by the Additional Civil Judge, a revision was filed, which was rejected by this Court. On 17. 02. 1993,, a letter was written to the petitioner that a court of Enquiry to investigate the deficiencies of stores in Project AWHO will be held in AWHO Office, Jaipur at 1000 Hours on 18. 02. 1992. The petitioner reported himself before the Presiding Officer of the Court of Enquiry. He requested to supply him the copy of the convening order in respect of court of enquiry, vide letter dated 12. 3. 93. The petitioner was called in the office of respondent No. 3 and 3 charges were read over to him by the Commanding Officer and a summary of evidence was ordered. The respondent No. 4 was detailed as Officer-in-Charge for recording of summary of evidence by order dated 15. 03. 1993. 'copy of the charge sheet was however not provided to the petitioner. The grievance of the petitioner is that he was not involved in the purchase of stores and if any bill was found to be from a bogus firm, the petitioner could not be held responsible as his responsibility was limited to the extent of verifying the physical verification of the stock lying with the site with the bill so prepared by the Contractor and recommended by the Architect. It is alleged that all material was lying at the site except those for which FIR was lodged. The Contractor was summoned but inspite of the efforts of the Officer Incharge, he avoided his presence. Vide letter dated 30. 03. 1993 invoking the provisions of Section 123 of the Army Act, 1950, the petitioner was detained w. e. f. 31. 3. 1993. In the said letter it was mentioned that "since you are to retire from service on 31. 03. 1993 (AM) AA Sec. 123 in your case is invoked with effect from aforesaid date i. e. 31st Mar. 93 (AM) to finalise pending disciplinary case against you. "
(3.) LEARNED counsel fox the petitioner has submitted that Section 125 of the Army Act contemplates discretion to be exercised and no proper discretion has been exercised by the competent authority and for that purpose he has relied upon the decision of Ram Swaroop Vs. Union of India (1), wherein it has been held by the Apex Court that Section 123 itself does not contain anything which can be said to be a guide for the exercise of the discretion of the military officers concerned in deciding as to which court should try a particular accused. But there is sufficient material in the Act which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance there with law. It has further been held that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court Martial or by an ordinary Criminal Court, and therefore, it becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the offence and the person against whom the offence is committed. The decision of Barium Chemicals Ltd. vs. Company Law Board (2) has been relied upon to show that in order to have the satisfaction of the authority for. exorcising the power under Section 125 directing person to be tried by Court Martial and for invoking the power under Sec 123 detaining the petitioner should be exercised when the said,authority is satisfied and. the satisfaction should be on the basis of. material available on record. The decision of Rohtas Industries vs. S. D. Agrawal (3), has also been. relied upon to show that there must be real exercise of power. The authority must form requisite opinion honestly and after applying its mind to the relevant material before it. In exercising the discretion the authority must have regard only to circumstances suggesting one or more of the matters specified in various sub clauses. It must act reasonably and not arbitrarily. It was further observed in this case that if it is established that there were, no materials upon which the authority could form the requisite opinion, the court may infer that the authority did not apply its mind to the relevant fact. The requisite opinion is then lacking and the condition precedent to the. exercise of the power under Section 237 (b) is not fulfilled. ;