COLONEL S M MEHTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed against the order dated March 30, 1993 passed by the Commanding Officer Brig. Mohan Singh invoking the provisions of Section 123 of the Army Act. In the writ petition, the petitioner has claimed following prayers: i) Quash the entire proceedings taken up against the petitioner in the court of Enquiry as well as summary of Evidence. ii) Quash the order dated 30. 3. 93 passed by respondent No. 3 invoking Section 123 of the Army Act and set it aside. If during the pendency of the writ petition, the petitioner is arrested or kept in military custody the respondents directed to release him immediately. iii) In the alternative the entire case be transferred before the appropriate forum under the civil authorities and the case be taken from the military authorities; iv) Personal compensation to the tune atleast 1 lac be awarded to the petitioner for tarnishing of his military character and humiliation.

(2.) BRIEF facts of the case are that the petitioner was working as Golonel and was posted as Project Officer in Army Welfare Housing Organisation (For short, 'awho') during the period July, 1989 to 24. 05. 1992. A contract was given to M/s. V. K. Construction Works Ltd. for construction of Housing accommodation. The said firm was to commence the work by 27. 11. 1989 and complete it up to 26. 05. 1991. According to the terms of contract, a bill was to be prepared by the contractor on the basis of 95% of the total construction and also 85% of the total costs of the material lying at the site. After verification, 75% of the amount of the bill was to be released by the petitioner and 25% of the amount was to be released by the Head Quarters of AWHO. The work of the contractor continued upto 8. 01. 1991 without any problem, but he stopped the work on 9. 01. 1991. The time for completion of work was extended from 26. 05. 1991 to 15. 10. 1991. Another application for extension was also submitted by the Contractor and the work was done up to 3. 11. 1991. The last bill which was submitted by the petitioner was for the work done up to 10. 10. 1991. It is submitted that on account of non-payment of this bill, the Contractor stopped the work on 3. 11. 1991 and, therefore, another notice was sent to him cancelling the contract vide letter dated 15. 11. 1991.

(3.) LEARNED counsel fox the petitioner has submitted that Section 125 of the Army Act contemplates discretion to be exercised and no proper discretion has been exercised by the competent authority and for that purpose he has relied upon the decision of Ram Swaroop Vs. Union of India (1), wherein it has been held by the Apex Court that Section 123 itself does not contain anything which can be said to be a guide for the exercise of the discretion of the military officers concerned in deciding as to which court should try a particular accused. But there is sufficient material in the Act which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance there with law. It has further been held that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court Martial or by an ordinary Criminal Court, and therefore, it becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the offence and the person against whom the offence is committed.