*THE HON’BLE Mr. JUSTICE L.NARASIMHA REDDY W.P.Nos.18241 & 10987 of 2008 % 15.10.2008 W.P.No. 18241 of 2008 Between: Leiutenent Colonel Kuldeep Singh …Petitioner A n d The Union of India, Rep. By its Secretary, Ministry of Defence, New Delhi and others …Respondents W.P.No.10987 of 2008 Between: Leiutenent Colonel Kuldeep Singh …Petitioner A n d The Union of India, Rep. By its Secretary, Ministry of Defence, New Delhi and others …Respondents ! COUNSEL FOR THE PETITIOENR: Sri T. Lakshminarayana ^ COUNSEL FOR THE RESPONDENTS: Sri A. Rajasekhar Reddy < Gist: > Head Note: ? CITATIONS: THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION NoS. 18241 & 10987 of 2008 COMMON ORDER: These two writ petitions are ﬁled by the same petitioner. Hence, they are disposed of through a common order. For the sake of convenience, the parties are referred to as arrayed in W.P.No.10987 of 2008. The petitioner is functioning as a Leiutenent Colonel, in the Indian Army, in the corps of Military Farms. Between 01.01.2001 and 28.02.2004, he worked at Military Farm, Jammu, in the capacity of Major. Through an order, dated 22.08.2006, the Commander 71, Sub Area, the sixth respondent, constituted a Court of Inquiry into certain allegations of fraud, in the matter of procurement of skimmed milk powder at the Military Farm, Jammu. The petitioner was issued an intimation to participate in it. He participated with certain objections and reservations. After conclusion of Court of Inquiry, the petitioner was attached vide proceedings, dated 14.05.2008, issued by the Adjutant General, Army Head Quarters. W.P.No.10987 of 2008 is ﬁled challenging the order of attachment, dated 14.05.2008, and W.P.No.18241 of 2008 is ﬁled questioning the proceedings, dated 22.08.2006, through which the Court of Inquiry was constituted. The petitioner contends that Brigadier P.K.Tikoo, the seventh respondent herein, was inimical to him while both of them worked at Jammu and at his instance, a complaint was said to have been made by M/s.KMJ Milk Foods Limited, the eighth respondent herein, alleging that substantial amount towards cost of skimmed milk powder was not paid and that the petitioner is responsible for the same. It is stated that though the allegations as to the irregularities in procurement of skimmed milk powder were inquired into and were found to be untrue, the Court of Inquiry was constituted. He submits that he was not furnished the order of reference, much less, the supporting material, pertaining to Court of Inquiry. He further submits that though the eighth respondent virtually has withdrawn his allegation, the matter was proceeded with. Another contention of the petitioner is that the Court of Inquiry was constituted contrary to Regulation 518 of the Defence Service Regulations, on the ground that an Oﬃcer who is inferior in rank to him was made part of the Court of Inquiry. He submits that when the constitution as well as the continuation of Court of Inquiry is defective, the attachment vide order, dated 14.05.2008, cannot be sustained in law. Placing reliance upon Section 122 of the Army Act,1950(for short ‘the Act’) he contends that even if the alleged fraud is true, the proceedings are barred by limitation. Supporting documents are also filed. A detailed common counter-aﬃdavit is ﬁled by respondents 1 to 6. Extensive reference is made to the circumstances that led to the constitution of Court of Inquiry, the proceedings that have taken place before it and the steps, that ensued, as a sequel to the report of Court of Inquiry. The allegations made by the petitioner are denied. Sri T.Lakshminarayana, the learned counsel for the petitioner submits that the proceedings instituted against the petitioner suﬀer from more inﬁrmities than one. He contends that the very basis for constitution of the Court of Inquiry was defective, since the person who submitted the complaint, has resiled from it. He further contends that despite the request made by the petitioner, the respondents did not furnish the order of reference and that the same is contrary to Rules 177,178, 180 and 184 of the Army Rules, 1954 (for short ‘the Rules’). He also submits that the proceedings are barred by time, stipulated under Section 122 of the Act. Other contentions are also urged. Sri A.Rajasekhar Reddy, the learned Assistant Solicitor General appearing for respondents 1 to 6 submits that no irregularity has taken place either in the constitution or conducting of Court of Inquiry. He contends that the petitioner participated in the Court of Inquiry and did not raise any objection at any point of time, and that the writ petitions are ﬁled only after conclusion of the Court of Inquiry. The learned counsel further submits that what is in progress is only summary of evidence where the petitioner would be provided with opportunity not only to cross examine the witnesses examined on behalf of the military administration, but also to examine his own witnesses. It is also submitted that the purport of Section 122 of the Act does not arise at this stage, since the Court Martial has not yet commenced. He pleads that the petitioner can put forward all his objections or contentions in the ongoing or further proceedings. In the context of initiating any disciplinary proceedings against the personnel of Army, three stages are contemplated, as provided for under the Act and the Rules made thereunder. As and when any irregularity, either of general or speciﬁc in nature is noticed, the competent authority is conferred with the power to constitute a Court of Inquiry. The manner in which the Court of Inquiry is to be constituted is provided for under the Regulations. It is almost a step to gather the preliminary and basic material before an opinion is formed as to the involvement of any official. However, constitution of Court of Inquiry is not mandatory in every case. If the circumstances warrant or permit, the next step can be straight away resorted to. The step subsequent to Court of Inquiry is summary of evidence. At this stage, the charges would be framed and the charged oﬃcial would be provided with an opportunity to cross-examine the witnesses examined on behalf of the military administration as well as to examine his own witnesses. The summary of evidence, in turn, would be scrutinized by the competent authority and depending upon the outcome of the scrutiny, it would be decided as to whether the accused oﬃcial be subjected to Court Martial, or be let off. The ﬁnal stage is convening of Court Martial. Though this step is preceded by enquiry of one form or the other, punishment would not be inﬂicted straight away. The accused oﬃcial would be given an opportunity to plead legal and factual grounds and the nature of action to be taken would depend upon the ﬁndings, to be recorded in the course of Court Martial. The Court of Inquiry in the instant case was constituted through proceedings, dated 22.08.2006. No individual is named in it and the object was only to inquire into the truth or otherwise of the allegations about the irregularities in the procurement of skimmed milk powder. Since the reputation of the petitioner was at stake, he was issued a notice and accordingly he participated. It is, no doubt, true that the petitioner made a request to furnish a copy of the order of reference. The respondents categorically pleaded that the order, dated 22.08.2006, was shown to the petitioner and that he was given full opportunity to cross- examine the persons, who deposed before the Court of Inquiry. The record discloses that the petitioner refused to cross-examine the persons, who deposed in the Court of Inquiry. This Court would have examined the contentions as to the validity of the constitution of Court of Inquiry, had the petitioner ﬁled these two writ petitions at the relevant point of time. For all practical purposes, he participated in the Court of Inquiry without any demur. Therefore, he cannot be permitted to challenge the constitution of Court of Inquiry, after the same was concluded. It is not as if that it was constituted with reference to the petitioner alone. At any rate, defect as to the constitution is too trivial and is not so serious as to render the Court of Inquiry, void. The second objection of the petitioner is about the manner in which the Court of Inquiry was conducted. He pleads that he was not furnished a copy of the order of reference. In none of the Rules relied upon by him, it is mentioned that order of reference is to be furnished to any person participating in the Inquiry. The Rule only ensures that the persons facing inquiry must be given adequate opportunity to cross-examine the witnesses and to put forward their contentions. That, admittedly, was extended to the petitioner. The third ground urged on behalf of the petitioner is about the legality of attaching the petitioner for summary of evidence. This Court is not able to ﬁnd any serious defect or illegality in the order, dated 14.05.2008, through which the petitioner is attached for summary of evidence. The relevant Rules provide adequate safeguards to an Oﬃcer facing these proceedings. Though the summary of inquiry is preceded by a Court of Inquiry, Rule 182 of the Rules clearly mandates that the record in the Court of Inquiry cannot be treated as evidence. Further, sub-rule (1) of Rule 22 of the Rules provides for suﬃcient safeguards in favour of the person facing the proceedings. The apprehension of the petitioner that the respondents may dispense with sub-rule (1) of Rule 22 of the Rules, in exercise of powers under sub- rule (2) can be alleviated by directing that in view of the facts and circumstances of the case, the respondents shall not deny the beneﬁt of sub-rule (1) of Rule 22 of the Rules to the petitioner. Another point urged on behalf of the petitioner is about bar to the proceedings on the basis of Section 122 of the Act. It is, no doubt, true that Section 122 bars Court Martial in relation to any oﬀence or incident, which has taken place three years prior to the date of commencement. That again is subject to certain conditions. Be that as it may, the bar is only as to the Court Martial and that stage is yet to arrive in respect of the petitioner. Further, Rule 53 of the Rules confers a right upon the petitioner to raise any objection based on Section 122 of the Act, in case he is sought to be proceeded in Court Martial. Therefore, this Court is not inclined to interfere with the proceedings assailed in the writ petitions. The writ petitions are accordingly dismissed. It is, however, directed that the petitioner shall be given adequate opportunity, be it in the summary of evidence or in the event of any Court Martial being ordered against him; and that the beneﬁt of sub-rule (1) of Rule 22 of the Rules shall be extended to him. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY,J Dt:15.10.2008. Note: L.R.Copy to be marked. (B/o) kdl