COL PUNIT SETHI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY means of this writ petition, the petitioner has prayed for the following reliefs: - A) To issue writ order or direction in the nature of the certiorari to quash the charges emerging from the courts of inquiry held against the petitioner at HQ 22 Artillery Bridage at Meerut and at HQ 98 Armed Brigade at Patiala. B) To issue writ order or direction in the nature of certiorari to quash the order of recording the summary of evidence passed by Respondent No. 4 against the petitioner without supplying the copy of charge sheet to the petitioner and without hearing the charge as mandatorily required vide Rule 22 of the Army Rules 1954. C) To restrain Respondent Nos. 3 & 4 from initiating any action against the petitioner on the above charges during the pendency of this writ petition. D) To award exemplary cost and compensation to the petitioner as against the respondents for infringement of petitioners Fundamental Rights as also for subjecting him to immense mental, physical and financial harassment. E) To grant any other relief which the Court may deem fit, proper and equitable on the facts and circumstances of the case.

(2.) THE petitioner was granted commission as an Officer by the President of India, in the Corps Engineers of the Regular Army. The petitioner has acquired various qualifications and achievements between the years August 1981 to 2001. The petitioner was posted in the prestigious appointment of Commander Works Engineer (CWE), Ambala Cantt., where the respondent No. 5 i.e. Brigadier DC Katoch, VSM was posted as Station Commander, Ambala Cantt. The petitioner was to be sent on deputation in National Highways Authority of India (NHAI) as General Manager (Technical). Before he could move to join the NHAI, a court of inquiry was ordered against the petitioner by Head Quarter, Western Command vide their Convening Order dated 10th January, 2004 and by subsequent orders to investigate into the allegations arising against him in the complaint made by one Sri Ashwani Kumar. The petitioner has stated in para 16 to the writ petition that it appeared that the said court of inquiry had absolved the petitioner from all allegations arising from the said complaint which had been disowned by Sri Ashwani Kumar. The movement order was issued to the petitioner to join the NHAI vide movement order dated 21st February, 2004 as General Manager (Technical), with an endorsement that there was no disciplinary/vigilance/criminal inquiry pending against the petitioner. After six months from the date of his joining on deputation, the Army Headquarters while exercising its powers under Army Instruction 30/86 at the instance of GOC -in -C Western Command, vide its letter dated 27th July, 2004, ordered the petitioners attachment with HQ 116 Infantry Brigade till finalisation of disciplinary case pending against him. The disciplinary case was for the period when the petitioner was posted as Commander Works Engineer, Ambala Cantt. An another disciplinary case was also pending at HQ 22 Meerut, Artillery Brigade against the petitioner. The petitioner after this attachment at HQ 116 Infantry Bridage was sent to attend the court of inquiry proceedings held against him at Meerut as well as at Patiala. After publication of the inquiry pertaining to the petitioner in the court of inquiry proceedings held under Army Rules 177 and under Army Rules 179, the petitioner was sent back to HQ116 Infantry Brigade. Army Rule 177 provides that a court of inquiry is an assembly of officers or of officers and junior commissioned officers or warrant officers or non -commissioned officers directed to collect evidence, and if so required, report with regard to any matter which may be referred to them. Army Rule 179 provides that the court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the character of the information required. They shall also state whether a report is required or not. Sub -rule 3 of Army Rule 179 provides that previous notice should be given of the time and place of the meeting of a court of inquiry, and of all adjournments of the court, to all persons concerned in the inquiry except a prisoner of war is still absent. Sub -Rule 4 of Army Rule 179 provides that the court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth. Sub -Rule 5 of Army Rule 179 provides that the court may be re -assembled as often as the officer who assembled the court may direct, for the purpose of examining additional witnesses, or further examining any witness, or recording further information. Sub -Rule 5 (A) provides that any witness may be summoned to attend by order under the hand of the officer assembling the court. The summons shall be in the Form provided in Appendix III. Sub -Rule 6 provides that the whole of the proceedings of a court of inquiry shall be forwarded by the presiding officer to the officer who assembled the court. Thus, it is clear that the court of inquiry report is a fact finding report.

(3.) IT is not disputed that the petitioner was attached at both the stations i.e. at Meerut as well as Patiala to participate in the court of inquiry proceedings. Learned counsel for the respondents submitted that the petitioner was sent on temporary duty there in order to enable him to participate in court martial proceedings.