COLLECTOR E PADMANABHAN RETD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, an officer of the Indian Army in the rank of Colonel who was due to retire with effect from 30th September, 1993 on attaining the age of super annuation, was placed under close arrest with immediate effect by an order dated 30th September, 1993 passed by Respondent No.3 in exercise of power under Section 101 of the Army Act (for short the 'Act'). By a separate order passed on the same date under Section 123 of the Act it was directed that in view of disciplinary proceedings pending against him and his retirement from service with effect from 30th September, 1993 the petitioner shall continue to remain subject to the Act. A tentative charge sheet was served on the petitioner on the same day, inter-alia, alleging that the petitioner has committed grave acts of misappropriation of government stores while in service. During the relevant period the petitioner was posted as the Commanding Officer of 32EMEBn. Missamari, Assam. The challenge in this writ petition is to the order dated 30th September, 1993 placing the petitioner under close arrest and his continued detention.

(2.) In support of the petition the three grounds urged are:- 1. The continued detention of the petitioner for more than two months without the sanction of the Chief of the Army Staff and for more than three months without the approval of the Central Government is contrary to the Army Rule 27. 2. The Presiding Officer of the court of enquiry should be an officer one rank above the person alleged to have committed the offence and in this case the Presiding Officer was Lt. Colonel (Time Scale) while the petitioner is a Colonel and thus the Presiding Officer waslone rank lower than the petitioner. 3. The Court of Enquiry proceedings were held in violation of Army Rule 180 inasmuch as certain witnesses were not allowed to be cross examined by the petitioner.

(3.) In support of the first contention, learned counsel for the petitioner contends that the petitioner was not in active service and under the Army Rule 27(3) it was incumbent on the respondent to obtain the sanction of the Chief of Army Staff for detention of the petitioner in military custody beyond two months and to obtain the approval of the Central Government for continued detention for a period beyond three months and the same having not been obtained the continued detention of the petitioner is illegal. Army Rule 27(3) reads as under:-