Writ Petition No. 18241 of 2008 · Andhra Pradesh High Court

(per Hon’ble Sri Justice R.Subhash Reddy) These two writ appeals are filed by the petitioner in writ petition Nos.18241 and 10987 of 2008, aggrieved by the common order dated 15th October 2008, passed by the learned single Judge in those two writ petitions.

Writ petition No.18241 of 2008 was filed seeking a writ of Mandamus to declare order No.2043/3Comp/A3, dated 22nd August 2006, constituting the Court of Inquiry as illegal and arbitrary, whereas writ petition No.10987 of 2008 was filed questioning the attachment order No.A1607, dated 14th May 2008, and to declare the disciplinary action initiated against the petitioner as illegal. By the common order dated 15th October 2008 passed by the learned single Judge, both the writ petitions are dismissed.

The petitioner i.e. Major in Indian Army (now Leiutenent Colonel), was the officer in charge of Military Farm at Jammu from 01.01.2001 to 28.02.2004. A complaint was received from M/s.KMJ Milk Foods Limited (Formerly Rahul Dairy and Allied Products) of Gazipur, New Delhi in February 2006, complaining that payment for supply of 54 Metric tons of skimmed milk powder sent to Military Farm at Jammu, had not been received. Based on the said complaint, a one-man investigation was done by Colonel Sudhir Kashyap under the aegis of Deputy

Director General of Military Farms. The said investigating officer has found that there was no receipt of skimmed milk powder from M/s.KMJ Milk Foods Limited, but there were large number of other irregularities in purchase and transfer of skimmed milk powder. The investigating officer has recommended further investigation through a Court of Inquiry. Accordingly, a Court of Inquiry was convened by Commander 71, Sub Area, through Convening Order No.2043/3/Comp/A3, dated 22nd August 2006, investigate in to the irregularities in procurement of skimmed milk powder at Military Farm, Jammu. On the ground that the detailed investigation conducted by the Court of Inquiry has revealed the involvement of some officers including the petitioner, further proceedings were taken up to record the summary of evidence. On conclusion of investigation by the Court of Inquiry, when the involvement of petitioner was noticed, an order of attachment was passed for the purpose of further inquiry in the matter.

On conclusion of the Court of Inquiry and when the attachment orders were issued, the petitioner had come up with the aforementioned two writ petitions with the prayers mentioned therein, by raising several grounds.

Heard Sri J.V.Suryanarayana, learned Senior Counsel for the appellant and Sri A.Rajasekhar Reddy, Assistant Solicitor General and Sri K.Jagadeeshwar Reddy, for the respondents.

In these appeals, it has been mainly contended by Sri J.V.Suryanarayana, learned Senior Counsel for the appellant that the Court of Inquiry was convened contrary to the provisions of Army Act, 1950 and Army Rules,

1954. It is submitted that the appellant was not even served with a copy of reference order, and further, he was also not provided with the opportunity of cross-examining the witnesses, as such, the entire proceedings were vitiated as they were conducted in violation of the procedure contemplated in the Army Rules, 1954. It is submitted that as much as the very initiation of Court of Inquiry is per se illegal, the consequential order of attachment also is without any basis. It is submitted that though there was no material to proceed against the appellant/petitioner, only at the instance of some officers who are inimical towards him, such proceedings were initiated at a belated stage, only to harass the appellant, though such proceedings were barred under law, particularly under Section 122 of the Army Act, 1950.

On the other hand, it is submitted by Sri A.Rajasekhar Reddy, learned Assistant Solicitor General learned counsel Sri K.Jagadeeshwar Reddy, appearing for the respondents that at the stage of Court of Inquiry, no inquiry will be conducted against the named individual, as such, no right of the appellant is violated. It is submitted that still the proceedings are at the stage of recording summary of evidence which is a stage for gathering evidence with reference to the findings recorded in the Court of Inquiry, to place the same before the competent authority for passing appropriate orders. It is submitted that as much as it has come to light in the Court of Inquiry that certain illegalities were committed by the appellant and other officers, take up further proceedings in the matter, the attachment orders were issued as per the Army instructions. It is further submitted that though the appellant was given opportunity, he did not choose to participate the Court of Inquiry proceedings, and as such, it is not open for him to interdict the proceedings at this stage.

Upon a perusal of the various provisions of the Army Act, 1950 and the Army Rules, 1954, it is evident that the Court of Inquiry is constituted to inquire into the illegalities in procurement of skimmed milk powder during the period when the appellant was in charge of the Military Farm at Jammu. It is not brought to our notice by the learned counsel for the appellant, any provision, which require an order convening such Court of Inquiry is to be served on any officer/employee. The Court of Inquiry is in the nature of a general inquiry with reference to the irregularities alleged to have taken place in supply of skimmed milk powder during the period when petitioner was working as in charge of the Military Farm at Jammu. In any event, even at the stage of Court of Inquiry, it is evident from the counter affidavit and the additional counter affidavit filed in the writ petitions that inspite of giving opportunity, the appellant/petitioner did not choose to cross-examine the witnesses and on conclusion of inquiry, he has come up with those two writ petitions, questioning the very convening of the Court of Inquiry. As much as no further action has been taken for trial of the appellant/petitioner by Court Marshall and as much as proceedings are at the stage of recording summary of evidence, no right of the appellant is violated, much less any right in violation of the provisions under the Army Act, 1950 and Army Rules, 1954. Even the attachment order which is issued, is pursuant to the prima facie findings recorded in the Court of Inquiry and to take further proceedings inquiry, which accordance with the provisions of the Army instructions and Rules made thereunder.

Army instructions for attachment of officers to other units for disciplinary purposes is placed before us, which reads as under :

Officers against whom disciplinary action contemplated may, where necessary, be attached to other units, at the discretion of Army Headquarters or GOC-in-C Command concerned for the purpose of investigation and progress of the disciplinary case. However, such attachment will be ordered only when a prima facie case against him is established and not during investigation stage by a Court of Inquiry, even for officers whose character and military reputation is likely to be a material issue at the Court of Inquiry. In exceptional cases where as Officer’s continued retention in his appointment say as CO, is not desirable, he may be attached to another unit or formation even at the commencement of Court of Inquiry.

From a perusal of the aforesaid instructions, it clearly empowers the authorities to pass such attachment orders when a prima facie case against an officer is established during the investigation by the Court of Inquiry. In that view of the matter, the order of attachment is in conformity with the instructions issued in this regard.

Though it is submitted by the learned senior counsel appearing for the appellant that the appellant was not provided with the material and list of witnesses etc., but at the stage of Court of Inquiry, which is an inquiry constituted not with reference to any individual officer, no specific material need be supplied at that stage. Further, it is evident from the counter affidavit that the appellant would be provided with an opportunity during the process of recording summary of evidence. From the provisions of the Army Act, 1950 and the Army Rules, 1954, it is clear that even the proceedings of recording summary of evidence, are in the nature of preliminary investigation and after recording such summary of evidence, proceedings will be placed before the competent authority either to take further action by constituting further Court Marshall or to let-off the officer at that stage.

Though the appellant has relied on the provision contained under Section 122 of the Army Act, 1950 in support of his submission that proceedings are barred by limitation also, but it is to be seen that the said limitation prescribed is only with regard to Court Marshall and the same is subject to certain conditions. Particularly under Section 122-B of the Army Act, 1950, where commission of offence was not known to the person aggrieved of the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, shall be the date for reckoning the period of limitation prescribed under that Act. In any event, further proceedings were not initiated to try the appellant/petitioner through a Court Marshall and the proceedings are only at the stage of recording summary of evidence on conclusion of Court of Inquiry, it cannot be said that the proceedings are barred by limitation.

It is also relevant to note here that the Court of Inquiry was convened pursuant to an order dated 22nd August 2006 and till the conclusion of the findings recorded in the Court of Inquiry, at no point of time, the appellant/petitioner did approach this Court and at this belated stage, once his name was indicted in the Court of Inquiry proceedings, it appears the aforementioned two writ petitions were filed with an intention to interdict the further proceedings. In that view of the matter, this Court is of the view that in conducting Court of Inquiry proceedings, nor in issuing further consequential order of attachment, the respondents have not committed any illegality with reference to the provisions of the Army Act, 1950 and the Army Rules, 1954.

For the aforesaid reasons, we are in agreement with the view taken by the learned single Judge and we do not find any merit in these writ appeals, warranting any interference. Accordingly, both these writ appeals are dismissed. No order as to costs. December 2008. _____________________ ANIL R.DAVE, CJ _____________________ R.SUBHASH REDDY, J