COL. E. PADMANABHAN (RETD.) Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule D.B. The petitioner, an officer of the Indian Army in the rank of Colonel who was due to retire with effect from 30th Sept., 1993 on attaining the age of superannuation, was placed under close arrest with immediate effect by an order dated 30th Sept., 1993 passed by Respondent No. 3 in exercise of power under Sec. 101 of the Army Act (for short the 'Act'). By a separate order passed on the same date under Sec. 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 Sept., 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 32 EME Bn. Missamari, Assam. The challenge in this writ petition is to the order dated 30th Sept., 1993 placing the petitioner under close arrest and his continued detention.

(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 was one 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.