COLONEL DD PAWAR Vs. COMMANDER HQ

JUDGEMENT

(1.) A common question as to the interpretation of Section 122 of the Army Act, 1950 ('the Act' for brevity) falls for consideration in both these appeals and hence they are being disposed of by this common judgment. The appellant in Writ Appeal No.687 of 2001 (hereinafter referred to as the first appellant) is a Colonel in Indian Army whereas the appellant in Writ Appeal No.688 of 2001 (hereinafter referred to as the second appellant) is a Captain. They filed Writ Petitions being W.P. No.3859 of 1999 and 6583 of 1999 respectively challenging the order of the second respondent directing that the officers be tried by General Court Martial! in relation to an office (sic. offence) as contemplated by the Act. The main contention before the learned Single Judge is that the General Court Martial ordered by the second respondent is barred by limitation in terms of Section 122 of the Act. The learned Single Judge dismissed both the Writ Petitions placing reliance on Rule 53 of the Army Rules 1954 (hereinafter called 'the Rules'). The common judgment and order of the learned Single Judge dated 25-4-2001 is assailed in these Writ Appeals.

(2.) The facts of the case as culled out from the pleadings and records placed before us are as follows. The first appellant at the relevant time was Commandant of the Supply Depot 60 ASC Coy, Secunderabad. The second appellant was also posted to 60 Coy. ASC (Supply) Type 'G', Trimulgherry, Secunderabad. The Commandant of the Supply Depot, Secunderabad was informed by the Local Audit Officer, Secunderabad about certain irregularities in relation to a consignment of 12,000 litres of petrol. The first appellant ordered investigation by Court of Inquiry by Captain Nirbhay Kumar. After receiving report from the first appellant on 31-8-1995 on the same day the first respondent, who is the Commander of Andhra Sub Area Headquarters ordered Board of Inquiry on 23-9-1995. The first respondent also ordered Staff Court of Inquiry headed by Colonel P.K.S. Nair who submitted report on 6-1-1996. On 16-1-1996 the first appellant, who was till then Commandant of 60 Coy ASC (Supply) Type 'G', Trimulgherry, Secunderabad was ordered to proceed on attachment duty to Station Headquarters, Secunderabad. It appears that the report of Court of Inquiry submitted on 6-1-1996 along with the recommendations of the first respondent was placed before the second respondent who on consideration of the Court of Inquiry proceedings and additional statements of officers and others of the 60 ASC Coy came to opinion that facts are inadequate to arrive at a definite conclusion and need further investigation and therefore ordered a fresh Court of Inquiry for further investigation into the matter. The relevant portion from the communication dated 26-2-1996 from the second respondent reads as under: OPINION OF THE GENERAL OFFICER COMMANDING ANDHRA, TAMILNADU, KARNATAKA, KERALA AND GOA AREA ON THE COURT OF INQUIRY PROCEEDINGS TO INVESTIGATE INTO THE IRREGULARITY IN FOL ACCOUNTING BY 60 COY ASC SUP TYPE 'G' SECUNDERABAD WHEREIN 12,000 LITRES OF 87 MT. ISSUED BY IOC VIDE THEIR ISSUE VOUCHER NO.1366 DATED 13 MAR., 95 HAS NOT BEEN TAKEN INTO THE LEDGER CHARGE AND HQ ANDHRA SUB AREA LETTER NO.4202/01/C OF 1 DATED 20 FEB., 95 CONTAINING WRITTEN STATEMENTS OF VARIOUS OFFRS/ ORS THE UNIT REVEALING ADDITIONAL FACTS OF THE CASE.

(3.) In furtherance thereof yet another Court of Inquiry was convened and a report was submitted on 30-9-1996. After receiving the report of the Second Court of Inquiry as well as the recommendations of the first respondent, the second respondent by order dated 21-11-1997 ordered penal recovery (under Section 90 of the Act) from the appellants and others. By a subsequent order dated 28-1-1999 and 29-1-1999 which were impugned in the Writ Petitions, the second respondent ordered that the appellants be tried by General Court Martial. These facts are not denied before us.