MAJOR AJAY BHARDWAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) The sole question which falls for consideration in this writ petition is whether the respondent authorities can convene a Court of Inquiry in respect of the complaint lodged against the petitioner, for which he has already been counselled/reproved in terms of the provision of Regulation 327 of the Book of Defense Service Regulation, 1987? The controversy arose on the following facts and circumstances.

(2.) The petitioner is holding the rank of Major in the Army, and is currently on deputation to the Assam Rifles. He was married to one Major Poonam Sharda (respondent No. 6) on 02.10.2006, but the marriage was apparently on the rocks soon thereafter, which prompted him to institute a divorce suit i.e. HMA Petition No. 16-S/3/2010 the Court of the Additional District Judge, Solan in the State of Himachal Pradesh. From their wedlock, they have one daughter, who is now 3 year old, and is presently under the custody of the respondent No. 6. During the pendency of the divorce proceeding, the respondent No. 6 lodged a complaint with the Army Wives Welfare Association (AWWA) charging the petitioner with adultery i.e. having extra marital affairs with one Captain Mary Joy of the Army Medical Corps. The complaint was forwarded by AWWA to the General Officer Commanding, who made an enquiry and thereafter issued the counselling letter dated 11.08.2010 advising the petitioner to avoid interacting with the said Captain Mary Joy and required him to apprise himself of the provisions contained in ADG DV letter No. 79333/AG/DV-1(P) dated 03.11.2000 regarding discipline with reference to the officers matrimonial affairs vide Annexure 4. Apparently, aggrieved by this letter of counselling, the respondent No. 6 pursued the matter with the respondent authorities whereupon the impugned convening order dated 22.12.2011 was issued from the Office of the Deputy Inspector General, Assam Rifles Headquarters, Manipur Range Assam Rifles. This is how this writ petiion came to be filed by the petitioner. There is no dispute at the Bar that the Court of Inquiry being held in terms of the impugned convening order is with respect to the same set of allegations contained in the complaint lodged by the respondent No. 6, for which the petitioner has already been counselled. It is the contention of Mr. M. Singh, the learned counsel for the petitioner that once counseling has been done by no less an Officer than a Lieutenant General in the Army in accordance with the said Regulations, the impugned order convening the Court of Inquiry with respect to the same set of allegations is unwarranted and illegal.

(3.) Resisting the writ petition, the respondent authorities, in their affidavit-in-opposition, take the stance that the Court of Inquiry held against the petitioner is in accordance with the provisions of Army Act and the Rules framed thereunder as he is, by a written complaint of his wife, accused of indulging in extra marital affairs with another Commissioned Officer of the Indian Army. It is further contended by the respondent authorities that the counselling letter issued by the Lieutenant General is merely advisory and does not bar the respondent authorities from proceeding against the petitioner under the Army Act for committing gross matrimonial misconduct. According to the respondent authorities, the fact that the counselling letter was merely advisory in nature and that such an informal inquiry could not bar the respondent authorities from convening the Court of Inquiry is evident from the letter dated 2-8-2010 of Colonel A (D & V) for GOC addressed to the Headquarters Eastern Command (DV) (Annexure/R-1). The respondent authorities also refutes the contention of the learned counsel for the petitioner that the Court of Inquiry so ordered would influence the divorce proceedings before the Additional District Court inasmuch as the subject matter of the two proceedings are different: one for dissolution of the marriage between the petitioner and respondent 6 and the other is for an inquiry into the complaint of the misconduct against the petitioner under the Army Act. These are the sum and substance of the contentions of the respondent authorities in their affidavit-in-opposition.