(PER : AVINASH G. GHAROTE, J.)

1. Rule. Rule made returnable forthwith.

2. In Criminal Writ Petition No.289/2020 the following relief is sought :-

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3. In Writ Petition No.2113/2020, the following reliefs are sought :-

4. Writ Petition No.1796/2020, the following reliefs are sought :-

42060/LC/TA-4 dated 16.04.2020 (Ann 23) peruse the same; and

(b) Hold and declare that the entire action on the basis of complaint of respondent no.7, starting with convening order, dated 01.02.2019 to Court of inquiry proceeding and show cause notice, dated 16/04/2020 is malafide exercise of power so as to defame and injure the petitioner as such it is null and void in the eyes of law. Consequently no action can be taken based upon the report of Col. Udai Barawkar- complainant.

(c) Issue notice to Attorney General of India as quashment of Central Act is prayed for ;

(d) Quash and set aside Section 19 of the Army Act, 1950 and Rule 14 (2) of the Army, Rules, 1954; being ultra vires to Section 71 of Army Act, 1950 and Article 14 and 21 of the constitution of India;

(e) Quash and set aside the inquiry, convened vide convening order dated 01.02.2019 issued by TA Group Headquarter, Southern Command Pune, which is at Annexure 14 and show cause notice, dated 16.04.2020 issued by respondent no.3 - Director General Territorial Army on behalf of Chief of Army Staff which is at Annexure 23."

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Cri. WP 289 of 2020.odt 7 In all the above petitions, interim reliefs, have also been sought. In Writ Petition No.1796/2020 though a challenge, is raised to the validity of Section 19 of the Army Act, 1950 and Rule 14 (2) of the Army Rules, 1954, being ultra vires to Section 71 of Army Act, 1950 and Article 14 and 21 of the Constitution of India, the same is given up on instructions by the learned Senior Counsel for the petitioner.

5. The petitioner was employed with the respondents and as on the date of cropping up of the dispute, was holding the rank of Colonel and was stationed at Dibrugarh.

6. The sequence of events as narrated by the petitioner, in a compilation placed on record on 15/12/2020, which as to the factual position, is not disputed by the respondents, though the allegations and imputations based thereupon are denied, for the sake of ready reference, is reproduced as under :- ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

Barawkar and his companions (Gdr. Amol Patil) during the recruitment rally as well as regarding misappropriation of temple funds, misuse of manpower etc. 03 19/01/2018 A Staff Court of Inquiry was convened on the basis of the complaints made by the petitioner against Colonel Barawkar. The petitioner was prosecution witness No.1.

04 23/04/2018 The Staff Court of Inquiry ordered against Colonel Barawkar was cancelled without assigning any reasons.

05 01/02/2019 A Departmental Court of Inquiry was convened against the petitioner, to investigate issues pertaining to misuse of authority, facilities and manpower from 20/07/2014 to 13/06/2018. The copy of the complaint against the petitioner has not been provided to the petitioner till date. 06 25/02/2019 The petitioner submitted various objections in 25/03/2019 writing to the conduct of enquiry against him 25/03/2029 highlighting the fact that the petitioner is being 12/02/2020 made a scapegoat in an illegal Departmental Court of Inquiry for the sole reason that he raised objections and complained against the corrupt practices of the higher officers. However, petitioner fully cooperated in said Departmental Court of Inquiry.

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Cri. WP 289 of 2020.odt 9 07 25/02/2019 Departmental Court of Inquiry against the to petitioner was conducted at 116 Infantry Battalion 07/03/2019 (TA) Para, Deolali. However, no action thereafter was taken against the petitioner for almost 13 months.

08 16/04/2020 A show-cause-notice was issued under Section 19 read with Army Rule 14 of the Army Rules, 1954 to the petitioner as to why his services should not be terminated. The show-cause-notice was issued to the petitioner without deciding his various representations dated 25/02/2019 (Annexure 16), 25/03/2019 (Annexure17), 25/03/2019 (Annexure-18), 14/02/2020 (Annexure 19), 12/02/2020 (Annexure20), 19/04/2020 (Annexure- 21) & 23/04/2019 (Annexure - 22). 09 18/04/2020 The petitioner submitted his representation to show-cause-notice and stated that complete set of Court of Inquiry, copy of complaint on basis of which the enquiry was held, copy of findings recommendations, directions and opinion of the Court of Inquiry were not supplied along with the show-cause-notice dated 16/04/2020.

10 The petitioner assailed the show-cause-notice dated 16/04/2020 before this Court vide Writ Petition No.1796/2020 (LD-VC-CW No.17/2020). 11 30/04/2020 This Court issued notice in the matter and directed respondent nos.1 to 4 not to pass any adverse order against the petitioner in pursuance of the show-cause-notice dated 16/04/2020.

12 28/05/2020 The respondents filed an application seeking appropriate directions.

13 30/05/2020 The petitioner filed his reply to the application filed by the respondents.

14 03/06/2020 The petitioner reported for duty at Headquarter 2, Mountain Division, Dibrugarh, Assam. The petitioner was sent for mandatory 21 days quarantine in view of COVID-19 guidelines of Army.

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Cri. WP 289 of 2020.odt 10 15 05/06/2020 This Court clarified that the respondents are at liberty to proceed with the enquiry according to law against the petitioner.

16 06/06/2020 The respondents called upon the petitioner to submit his reply to the show-cause-notice dated 16/04/2020 but did not conduct any further proceedings contemplated under Rule 14 of the Army Rules.

17 09/06/2020 As the petitioner was quarantined in Military Cantonment till 24/06/2020, the petitioner addressed a handwritten letter to the respondents reiterating that in order to submit his reply he needs copies of documents which have not been supplied despite Court's order dated 30/04/2020. 18 30/06/2020 The petitioner retired from service on attaining the age of superannuation. All formalities in so far as handing over of charge were completed by 12:00. It is pertinent to note that there was no disciplinary enquiry/proceedings pending against the petitioner on the date of his superannuation. 19 30/06/2020 At around 20:06 PM a communication was received by the 166 Infantry Battalion (TA) (H&H) Assam, instructing invocation of Section 123 of the Army Act against the petitioner.

20 01/07/2020 The respondents invoked Section 123 of the Army Act and took petitioner in military custody. The petitioner was detained at Military Station Thakurbari, near Tezpur Assam.

21 01/07/2020 The petitioner made a representation seeking release from military custody. The petitioner pointed out that no fresh enquiry on same charges can be initiated.

22 04/07/2020 The petitioner made another representation informing the respondents that invoking Section 123 against the petitioner is illegal and therefore he ought to be released.

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Cri. WP 289 of 2020.odt 11 Mr. Arnold Singh son of the petitioner filed a petition seeking a writ of Habeas Corpus for release of the petitioner from illegal detention vide Criminal Writ Petition No.289/2020 (LD-VC- Criminal Writ Petition No.690/2020).

23 10/07/2020 This Court issued notices in the Criminal Writ Petition No.289/2020 and the same was made returnable on 24/07/2020.

The petitioner filed Writ Petition No.2113/2020 (LD-VC-CW No.570/2020) challenging the action of the respondents in invoking Section 123 of the Army Act against the petitioner.

24 20/07/2020 This Court issued notices in the matter and directed that the petition will be heard along with Writ Petition No.1796/2020.

25 24/07/2020 This Court by an interim order directed the respondents to release the petitioner from military custody upon furnishing an undertaking to the respondents as well as to this Court that the petitioner would make himself available for trial. 26 23/09/2020 The respondents addressed three communications to the petitioner, informing the petitioner that the subject matter of the tentative charges at this stage would be on the basis of action of misconduct which have been averred in the show-cause-notice served upon the petitioner earlier.

Thus for the first time the charges on basis of which Section 123 of the Army Act have been invoked, has been communicated to the petitioner on 23/09/2020.

7. The crux of the argument, advanced by learned Senior Counsel Mr. S.P. Dharmadhikari is as under :- ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

(ii) The allegations contained in show-cause-notice dated 16/04/2020 do not constitute any offence. The term 'Offence' has been defined in Section 3 (xvii) which reads "Offence" means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined. Section 3 (ii) defines "civil offence"

Mr. S.P. Dharmadhikari, learned Senior Counsel for the petitioner thus contends that for the aforesaid reasons, the impugned order dated 30/06/2020 (Criminal Writ Petition ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 16 No.2113/2020) is liable to be quashed and set aside, and the petition of the petitioner seeking writ of Habeas Corpus (Criminal Writ Petition No.289/2020) is required to be allowed. He also contends that for deliberate and wilful disobedience of the order dated 30/04/2020, charge under Section 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India is required to be framed against the respondents.

8. In support of his above submissions, learned Senior Counsel relies upon the following judgments :-

9. Mr. Ulhas Aurangabadkar, learned Assistant Solicitor General of India (ASGI) submits as under :-

(ix) Despite the aforesaid order, the petitioner herein has willfully avoided taking part in the enquiry, has been impeding the administration of justice by filing various petitions, ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 21 representations and sending legal notices to obstruct and delay the investigation against him. The petitioner is in abuse of the process of law wherein he has not acted upon the undertaking submitted in this Court to cooperate with the authorities by non-reporting to 140 Armoured Brigade.

(x) That disciplinary proceedings against the petitioner are being initiated under the framework provided under the Army Act and Army Rules and as a corollary, entitlement of the petitioner to various documents and with regard to putting up his defence would also be governed by the statutory provisions thereunder.

(xi) The relevant provisions which govern the rights of an accused regarding entitlement to documents and preparation of his defence are prescribed under Rule 180 and 184 of the Army Rules during the Court of Inquiry stage, which have already been duly complied.

(xii) Thereafter, upon initiation of disciplinary action, as is the present stage, provisions of Rule 22 and 23 of the Army Rules would be applicable wherein an accused person gets all due opportunities to participate in the proceedings, cross-examine ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 22 witnesses, produce own witnesses and evidence and make any statement or produce relevant documents in his defence.

(xiii) Thereafter, in case any decision is taken to try him by GCM (General Court-Martial), then the rights in his defence as specified in Rule 33 and 34 of the Army Rules will be available to him.

(xiv) Further every stage of the GCM is also governed by due procedure specified in the Army Rules, which fully caters for the accused to put up his defence at each stage.

(xv) That at present stage, the Commanding Officer will take an independent decision based on the proceedings being conducted under Rule 22 of the Army Rules whether to proceed ahead with the disciplinary process or otherwise. Thereafter, in case Summary of Evidence is recorded in terms of Rule 23 of the Army Rules, then again authorities will examine the Summary of Evidence to decide whether to proceed further or not for convening of the Court-Martial. As of now, only the Court of Inquiry, which is the fact finding body, has taken place wherein competent authorities have come to a prima facie decision to proceed with disciplinary action against the petitioner. At the present stage, no rights of the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 23 petitioner are affected and in the course of the disciplinary proceedings, all due procedure prescribed by the Army Act and Army Rules shall be duly followed, enabling the petitioner to exercise his rights therein. After the conclusion of the Court of Inquiry, under Rule 177 of the Army Rules, the petitioner was entitled to get the statement of witnesses and exhibits under Rule 184 of the Army Rules, which have already been provided to him.

(xvi) That the invocation of Section 123 of the Army Act is merely an enabling provision to ensure progress of the disciplinary cases in situation where a person who has ceased to be subject to the Act. He relies on the following decisions :-

Cri. WP 289 of 2020.odt 24

10. The foremost issue to be considered is the preliminary objection as has been raised by Mr. Ulhas Aurangabadkar, learned ASGI to the effect, that in view of the express provisions of the AFT Act, 2007 , the questions raised in these petitions, cannot be entertained by this Court, as they relate to the service matter of the petitioner. He invites our attention, to Sections 2 (o) , 14 , 15 and 33 of the AFT Act, 2007, to contend that a bar of jurisdiction has been created due to which, it would not be permissible for this Court to entertain and decide these petitions. Learned ASGI for this purposes places reliance upon Union of India and others Vs. Major General Shri Kant Sharma and another , (2015) 6 SCC 773; Union of India and Ors. Vs. P. S. Gill, Criminal Appeal No.404 of 2013, decided on 27.11.2019 (Supreme Court of India).

10.1. Mr. S.P. Dharmadhikari, learned Senior Counsel, opposes the preliminary objection. He invites our attention to the language of Section 14 (1) of the AFT Act, 2007, to contend, that the jurisdiction, power and authority of the Tribunal under the AFT Act, 2007 cannot curtail the power of this Court to entertain and try the present petitions. He lays stress on the expression "except the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 25 Supreme Court or High Court exercising jurisdiction under Articles 226 and 227 of the Constitution", as occurring in Section 14 (1) of the AFT Act, 2007 to contend, that the jurisdiction of this Court is not ousted. Further relying upon Olga Tellis (supra), he submits that even otherwise, any action on part of the respondents to deprive the petitioner of his liberty, can always be looked into by this Court in its power under Article 226 of the Constitution. He further relies upon Balkrishna Ram Vs. Union of India and another , (2020) 2 SCC 442. 10.2. In so far as the preliminary objection is concerned, we are with the learned Senior Counsel for the petitioner. This is so for the reason that none of the prayers as made in these petitions, as reproduced above are for a relief, which could be related to what has been stated in Section 3(o) (i) to (iv) of the AFT Act, 2007 , in respect of service matters, in view of which Section 14 of the AFT Act, 2007 is clearly not attracted. So also, as of date, there has been no Court-Martial against the petitioner, in which, he could be said to have been awarded any punishment, in light of which, Section 15 of the AFT Act, 2007 is also not attracted.

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Cri. WP 289 of 2020.odt 26 10.3. In Major General Shri Kant Sharma (supra), the Armed Forces Tribunal, was approached by the officers for adjudication or trial of disputes and complaints with respect to conditions of service, which having ruled against them, the High Court was approached under Article 226 of the Constitution, it is in which context, the Hon'ble Apex Court held that since remedy of appeal directly to the Supreme Court was provided under Section 30 of the AFT Act, 2007, the petitions before the High Court by invoking Article 226 of the Constitution were not maintainable.

10.4. In P. S. Gill (supra), the Hon'ble Apex Court held that Section 14 of the AFT Act, 2007, should receive a wide construction and an interpretation, which confers jurisdiction, should be preferred over an interpretation which takes away jurisdiction, relying upon Mantri Technozone Vs. Forward Foundation , (2019) SCC OnLine SC 322. There cannot be any dispute with the above proposition, however, on facts of the present case, as pointed above, none of the reliefs claimed in the present petitions, can be said to fall within Section 3 (o) of the AFT Act, 2007, for which reason, the reliance upon P. S. Gill (supra) is misplaced. ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

Cri. WP 289 of 2020.odt 27 10.5. In fact, in Balkrishna Ram (supra), the Hon'ble Apex Court while dilating upon the scope and ambit of the jurisdiction of the Armed Forces Tribunal under Section 14 (1) of the AFT Act, 2007 and that of the High Court under Article 226 of the Constitution after considering Major General Shri Kant Sharma (supra), and placing reliance on the decisi0n of the Constitution Bench in L. Chandra Kumar Vs. Union of India and others , (1997) 3 SCC 261, held as under :-

In respect of Major General Shri Kant Sharma (supra), it was held as under :-

It is thus apparent, that the jurisdiction, power and authority of the High Court, is not in any way curtailed by the provisions of Section 14 (1) of the AFT Act, 2007, rather on the contrary, is saved as is held above, and is also apparent from the use of the expression "(except the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution)", as occurring in Section 14 (1) of the AFT Act, 2007. 10.6. That apart, the position in the present matters, is quite different, in as much as, as stated above, the challenges raised in the present petitions, do not fall within the meaning of the expression "service matters" as defined in Section 3 (o) of the AFT Act, 2007. The preliminary objection, therefore, to the maintainability of the petitions before this Court, is therefore rejected.

ALTERNATE REMEDY

11. The respondents have also raised a plea of an alternate remedy, in view of provisions of Section 27 of the Army Act of ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 30 making a complaint/representation to the Central Government in the manner as specified in this regard.

11.1. In Whirlpool Corporation (supra) relied upon by Mr. S.P. Dharmadhikari, learned Senior Counsel for the petitioner, while considering the existence of an alternative remedy, it was held that the power to issue prerogative writs under Article 226 of the Constitution was plenary in nature and was not limited by any other provision of the Constitution and could be exercised apart from for issuing of the writs and also for enforcement of any of the fundamental rights, contained in Part III of the Constitution, also for "any other purpose" and the rule of availability of an efficacious and effective alternate remedy would not operate as a bar, where the writ petition has been filed for the enforcement of any of the fundamental rights, or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of the Act is challenged. Similar is the statement of law as made in para 12 of M.P. State Agro Industries Development Corpn. Ltd. (supra). ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

Cri. WP 289 of 2020.odt 31 11.2. The contention of availability of an alternate remedy may not detain us long, in view of the nature of reliefs as are sought in the writ petitions, which are beyond the purview of Section 27 of the Army Act, and the fact that none of the reliefs as claimed in the present petitions, can form the subject matter of any representation/ complaint under Section 27 of the Army Act. The plea of availability of alternate remedy, is therefore rejected.

ABSENCE OF AUTHORITY

12. The contention by Mr. S.P. Dharmadhikari, learned Senior Counsel, for the petitioner that under the communication dated 23/3/2007, the Competent Authority to decide as to whether or not provisions of Section 123 of the Army Act should be invoked, in respect of the petitioner, who was holding the rank of Colonel was the GOC-in-C Command Concerned, as against which, the communication dated 30/6/2020 indicated that the same had been invoked by the COAS, and therefore, the invocation, was by an Officer below the rank as specified in para 4 (b) (i) of the communication dated 23/3/2007, and for this reason, was legally incompetent and infirm, cannot be accepted, for the reason, that the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 32 communication dated 30/6/2020 invoking Section 123 of the Army Act, against the petitioner, makes a mention of the Competent Authority having perused the case of the petitioner, had directed that Section 123 be invoked. The Competent Authority, in terms of para 4 (b) (i) of the instructions dated 23/3/2007, was the GOC-in- C Command Concerned, which has to be related to the Competent Authority, as indicated in the letter dated 30/6/2020. Even otherwise, para 5 of the instructions dated 23/3/2007, indicates, that after action under Section 123 of the Army Act, is directed by the Competent Authority, as mentioned in para 4 (b) (i) of the instructions dated 23/3/2007, the orders invoking Section 123 of the Army Act will be issued by the Commanding Officer of the Unit where the accused last served or the Unit where he may be attached consequent to the decision of the Competent Authority to invoke the said section for its trial or by a Superior Officer. It is not a case as if the General Officer Commanding-in-Chief did not have any authority in law to invoke Section 123 of the Army Act, as such authority is there, however, as discussed hereinafter, it was invoked under a misconception that in the given fact situation, it could be done.

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Cri. WP 289 of 2020.odt 33

13. Section 123 of the Army Act, being material is reproduced below :-

Section 123 (1) of the Army Act is permissible to be invoked where

(a) an offence under the Act had been committed by any person while subject to the Act and (b) he has ceased to be so subject, in which case such person, is liable to be taken into and kept in military custody and tried and punished for such offence as if he continued to be so subject. The offences punishable under the Army Act are listed in Chapter-VI Sections 34 to 70 thereof. The communication dated 30/6/2020, invoking Section 123 of the Army Act against the petitioner, does not specify, as to which of the offences, as listed in Chapter-VI of the Army Act , are alleged to have been committed by the petitioner, while subject to the Army Act , for ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 34 which he was required to be tried and punished. Even if, there is an absence of the mention of the offence, which the petitioner is alleged to have been committed, for which the provisions of Section 123 of the Army Act were invoked in the communication dated 30/6/2020, even in the reply, submissions filed by the respondents on record from time to time, there is no whisper about which offence has been committed by the petitioner, out of those listed in Chapter -VI of the Army Act. It is trite to say that when Section 123 (1) of the Army Act being a penal provision, requiring a person to be taken into and kept in military custody, thereby depriving such person of his liberty, more so, when in the instant case, the petitioner had already superannuated by the noon of 30/6/2020, was invoked, it was thus necessary for the communications, invoking Section 123 of the Army Act, to make a mention of the specific offence, which was alleged to be committed by the petitioner, while subject to the Army Act . The absence of any such mention in the communications dated 30/6/2020, is telling. The petitioner or for that matter, any officer, subject to the provisions of the Army Act is entitled, to be made aware, as to which offence, is being alleged against him, when the provisions of ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 35 Section 123 of the Army Act are invoked against him, as the invocation, leads to curtailment of his freedom, guaranteed under the Constitution. Thus, an officer, cannot be left in the dark, as to the nature of the offence alleged against him, for which his liberty is being sought to be curtailed by taking him into military custody, and it is necessary for the notice invoking Section 123 of the Army Act to mention which of the offence as contained in Chapter-VI of the Army Act is being alleged against him.

13.1. The communication dated 23/3/2007, in this regard, issued by the office of the Additional Directorate General, Discipline and Vigilance, Adjutant General's Branch, Integrated HQ of MOD (Army) New Delhi, addressed to the Headquarters and all Commands of the Army indicates, the circumstances under which Section 123 of the Army Act, can be invoked. It says that Section 123 of the Army Act is an extraordinary provision to cater for exceptional circumstances, keeping the need of discipline in mind and that the spirit of the enabling provision should be maintained by invoking it judicially after having examined each case from all possible angles and in any case Section 123 of the Army Act cannot ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 36 be invoked, if formal cognizance has not been taken. It also states that Section 123 of the Army Act may be invoked in respect of service persons alleged to have committed serious offences, which warrant a sentence of dismissal or above. Again, the invocation of Section 123 of the Army Act is related to the commission of an offence, which would necessarily indicate the disclosure of the nature of the offence, which is absent in the communication dated 30/6/2020 in the present matter.

13.2. The entire crux of the matter depends upon the answer to the question as to whether once an action under Rule 14 (1) (b) and 14 (2) of the Army Rules, 1954, is taken, would it be permissible for the respondents, to go back to the stage of conducting a Court-Martial enquiry, that too, without withdrawing the action under the above rules and for that purpose to invoke Section 123 of the Army Act. In the instant case, it is not in dispute, that on 1/2/2019, a Departmental Court of Inquiry was convened against the petitioner, which was conducted between 25/2/2019 to 7/3/2019. After 7/3/2019, nothing has been placed on record to show what has happened thereafter till 16/4/2020, when a show- ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

Cri. WP 289 of 2020.odt 37 cause-notice was issued to the petitioner, and the petitioner was informed that the Chief of Army Staff was of the opinion that the further retention of the petitioner in the territorial army was not desirable and in accordance with the directions of the Chief of Army Staff the petitioner was so informed in terms of Rule 14 of the Army Rules and on behalf of the Chief of Army Staff, the petitioner was called upon to submit an explanation and defence as to why his services should not be terminated under the provisions of Rule 14 of the Army Rules 1954 read with Rule 14 (c) of the T.A. (Amendment) Rules 1964. It was also stated that in case no explanation was submitted by the petitioner during the stipulated period, it shall be presumed that the petitioner had no ground to urge in favour of his retention in the service. A copy of the Court of Inquiry was enclosed with the letter dated 16/4/2020. What is material to note is that the copy of the Court of Inquiry as enclosed with the letter dated 16/4/2020, indicates, that the court was assembled on 25/2/2019 and subsequent days, in which witnesses were examined pertaining to the issues and period as relevant vide the convening order and since the character and military reputation of the petitioner was involved the provisions of Rule 180 of the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 38 Army Rules, 1954 were invoked and the proceedings of the Court of Inquiry as enclosed with the letter dated 16/4/2020 contains a certificate regarding compliance of Rule 180 of the Army Rules, which states that an adequate opportunity was provided to the petitioner, to make a statement, to give any evidence, to produce any witness in his defence, to cross-examine/cross-question any witness and to remain present throughout the proceedings of the Court of Inquiry. It is thus evident that the Court of Inquiry was convened and conducted in respect of the charges against the petitioner, on 25/2/2019 and subsequent days, which was pursuant to the order dated 1/2/2019, as amended by the letters dated 1/2/2019 and 28/2/2019.

13.3. Rule 14 of the Army Rules, 1954, being material is reproduced as under :-

"14. Termination of service by the Central Government on account of misconduct .-(1) When it is proposed to terminate the service of an officer under section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in sub-rule (2) against such action-

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Cri. WP 289 of 2020.odt 39 Provided that this sub-rule shall not apply-

(a) where the service is terminated on the ground of misconduct which has led to his conviction by a Criminal Court; or

(b) where the Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.

(2) When after considering the reports on an officer's misconduct, the Central Government, or the Chief of the Army Staff is satisfied that the trial of the officer by a Court-Martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Chief to the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence:

It is thus apparent that Rule 14 (1) of the Army Rules, is invoked, when it is proposed to terminate the service of an officer ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 41 on account of misconduct, for which a show-cause-notice is required to be given to such officer. The proviso to Rule 14 (1), however, says that such a show-cause-notice would not be necessary, in case (a) the termination is on the ground of misconduct which has led to his conviction by a Criminal Court or (b) where the Central Government is satisfied for reasons to be recorded that it is not expedient or reasonably practicable to give an opportunity to show- cause. In the instant case, a show-cause-notice was given, which mentioned Rule 14 of the Army Rules, 1954, which could only relate to Rule 14 (2) of the Army Rules, 1954. A perusal of Rule 14 (2) of the Army Rules, 1954, indicates, that the same can be invoked only when the Central Government or the Chief of Army Staff is satisfied that the trial of the officer by a Court-Martial is inexpedient or impracticable, and is also of the opinion that the further retention of the officer is undesirable, in which case the Chief of Army Staff is required to so inform the officer, together with all reports adverse to him and to submit in writing his explanation and defence. It is thus apparent, that when provisions of Rule 14 (2) of the Army Rules, 1954 were invoked in the instant case, in pursuance to which the show-cause-notice dated 16/4/2020 was issued, the opinion of the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 42 Chief of Army Staff, to the effect that the trial of the officer/petitioner by a Court-Martial was inexpedient and impracticable, was already formed, and it is only after this, that the decision to invoke the provisions of Rule 14 (2) of the Army Rules, 1954, was taken. In fact, a plain reading of para 3 of the show- cause-notice dated 16/4/2020 clearly indicates that such an opinion as required by Rule 14 (2) of the Army Rules, 1954 that the trial of the petitioner by a Court-Martial, was inexpedient or impracticable and that the further retention of the said officer in the service was undesirable, was the basis for issuance of the show-cause-notice dated 16/4/2020, which also makes a reference in the preceding paragraphs therein about the proceedings of the Court of Inquiry. 13.4. It is thus, evident, that the invocation of Rule 14 (2) of the Army Rules, 1954, was only upon the satisfaction of the Chief of Army Staff, as regards the requirements of Rule 14 (2) of the Army Rules and not otherwise. What is necessary to be noted, is the difference, of termination in pursuance to a Court of Inquiry and termination by invoking the powers under Rule 14 (2) of the Army Rules, 1954. The nature of a termination by invoking Rule 14 (2) of ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 43 the Army Rules, read with Section 19 of the Army Act, is an administrative termination, as against which termination in pursuance to a Court-Martial is a penal termination. The administrative nature of the termination under Section 19 of the Army Act read with Rule 14 (2) of the Army Rules, is clearly indicated from the very fact, that in spite of a Court of Inquiry having been commissioned, an opinion is formed by the Chief of Army Staff, that the trial by Court-Martial is inexpedient or impracticable, thereby doing away with the further process of the Court-Martial, apart from which, this is so indicated by the communication dated 30/9/2003, by Additional Directorate General, Disciplinary and Vigilance, Adjutant General's Branch, Army Headquarters, New Delhi, the relevant portion of which reads as under :-

Martial is considered inexpedient or impracticable. The disciplinary authority has to justify his decision to recommend invoking of AA Section 19 read with AR 14 (2).

(b) The disciplinary authority makes his recommendation to the COAS to invoke AA Section 19 read with AR 14 (2).

(c) The COAS considers the recommendations and if satisfied makes his opinion to invoke the said provisions and causes issuance of a SCN to that effect to such an Officer concerned.

(d) The reply of the Officer alongwith recommendations/comments of the Cdrs in Chain of Command are considered and appropriate orders are issued by the COAS or the Central Government as the case may be.

8. In view of the foregoing, it has now been decided that in all such cases where the directions of the COAS to terminate the services of an Officer in terms of AA Section 19 read with AR 14 (2) are to be obtained, the formation concerned would also forward a detailed justification duly recommended by Cdrs in Chain of Command on format appended herewith, which should ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 45 include the reasons as to why trial of the Officer by Court- Martial is impractical or inexpedient as detailed in the preceding paragraphs alongwith the case/records and reasons recommending termination of the services of an Officer.

9. The contents of this letter may please be widely disseminated."

13.5. It is thus apparent, that the entire idea of proceeding ahead with the Court-Martial, against the petitioner, came to be dropped, by invoking the provisions of Rule 14 (2) of the Army Rules, 1954, by the respondents, in view of the opinion as formed by the Chief of Army Staff, which was the position as it stood on 16/4/2020. It was thus expected, considering that the respondents were aware that the date of superannuation of the petitioner was 30/6/2020, for the respondents, to act in consonance with Rule 14 (4) of the Army Rules, 1954, i.e. to submit to the Central Government the recommendation of the Chief of Army Staff, as to whether the officer/petitioner should be (a) dismissed from service; or (b) removed from service; or (c) compulsorily retired from service, consequent to which as per sub-rule 5 of Rule 14 of the Army Rules, 1954, the Central Government after considering the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 46 reports and the defence of the officer, and the recommendation of the Chief of Army Staff could either (a) dismiss or remove the officer with or without pension or gratuity or (b) compulsorily retire the officer from service with pension and gratuity, if any, admissible to him.

13.6. In the instant matter, nothing is placed on record by the respondents as to any action, which is required to be taken under Rule 14 (4) and (5) of the Army Rules, 1954, which was necessary, in view of the fact, that the show-cause-notice dated 16/4/2020 invoked Section 19 of the Army Act, in conjunction with Rule 14 (2) of the Army Rules, 1954 categorically indicating that the petitioner was intended to be dismissed or removed from service. In our considered opinion, if this was the intention, to either remove or dismiss the petitioner from the service, as was indicated by invocation of the powers under Section 19 of the Army Act read with Rule 14 (2) of the Army Rules, 1954, it was necessary for the respondents to have acted in consonance with the requirements of Rule 14 (4) and (5) of the Army Rules, 1954, before 30/6/2020, the date on which the petitioner was to superannuate. However, nothing ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 47 in this regard appears to have been done, till 30/6/2020, as is apparent, from the absence of any material in this regard being placed on record. So also, nothing has been placed on record, as to why, in spite of the fact, that the action under Rule 14 (2) of the Army Rules, 1954, not having been reversed, how and in what manner, and under what authority or powers, the petitioner, was being sought to be proceeded ahead with the Court of Inquiry/Court-Martial. In our considered opinion, to justify such an action, it was necessary for the respondents, to place on record, something which would have indicated, the withdrawal of the action under Rule 14 (2) of the Army Rules, read with Section 19 of the Army Act, however, there is absolutely nothing. When a specific query was made in this regard, as to whether there were any additional charges levied against the petitioner, the response was that the enquiry as initiated upon the original charges as contained in the show-cause-notice dated 16/4/2020 which was prior to the action under Rule 14 (2) of the Army Rules read with Section 19 of the Army Act, was being continued without there being any, change or addition in the nature of charges. This is clearly inexplicable, for the reason, that once the Chief of Army Staff, in exercise of the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 48 powers as conferred upon him under Rule 14 (2) of the Army Rules, 1954 forms an opinion that any trial by Court-Martial was inexpedient or impracticable, and at the same time is of the opinion that the further retention of the said officer in the service is undesirable, then the course to follow would be as laid down in Rules 14 (4) and 14 (5) of the Army Rules, 1954. No provision, Rule has been pointed by the learned ASGI, Mr. Ulhas Aurangabadkar, to indicate otherwise, or for that matter, that the further course of action, as indicated in Rules 14 (4) and 14 (5) of the Army Rules, 1954, can be abandoned at the drop of a hat and the course reverted back, to a trial by Court-Martial, that too without there being any additional material being considered. This is so, for the apparent reason, that while forming the opinion under Rule 14 (2) of the Army Rules, 1954, the Chief of Army Staff has already considered the basis of the allegations made, charges leveled, material available, and the reports on an officer's misconduct, which would include the report of the Court of Inquiry, and after applying his mind to all this, has come to the conclusion that the trial of the officer by Court-Martial on the basis of the material which is available, is inexpedient or impracticable. Thus, when the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 49 charges/allegations/report remain the same, which were duly considered for forming of the opinion under Rule 14 (2) of the Army Rules, 1954, then unless, it is demonstrated, that something additional has been found, which has a material bearing upon the charges/allegations leveled against the officer or affects the efficacy of the report of the Court of Inquiry, the clock cannot be turned back, to prosecute the officer by a trial by Court-Martial. No such plea has been made in the submissions as placed on record by the respondents, which clearly indicates that the action now of reverting back from the position of Rule 14 (2) of the Army Rules, 1954, as was taken earlier, is clearly unsustainable in law. After all, a decision taken in terms of sub-rule 1 & 2 of Rule 14 of the Army Rules 1954, seeking administrative termination has civil consequences and, therefore, if any other action than prescribed in this rule is proposed to be taken, it would amount to review of the decision, which is not permissible, unless there is conferred in the rules express power of review or there are available on record new circumstances or new grounds which have emerged subsequent to taking of the decision under sub-rule 1 & 2 of Rule 14 of the Army Rules 1954. In the present case, both of these factors are absent. ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::

Cri. WP 289 of 2020.odt 50 13.7. It is further trite to note that Rule 22 and 23 of the Army Rules, 1954 indicate the conduct of an enquiry, which can be said to be in the nature of a preliminary enquiry, based upon the findings of which, the Commanding Officer, may choose to adopt any of the courses of action as indicated in Clause (a) to (c) of Rule 24, which includes remanding the accused for trial by a Court- Martial. It is thus apparent that the Army Act and the Rules framed thereunder, contemplate a preliminary enquiry, under Rule 22 or Rule 177 of the Army Rules 1954, based upon the findings of which, the decision whether to initiate a Court-Martial, has to be taken. In the instant case, as is evident, a Court of Inquiry duly convened under the letter dated 1/2/2019 had held its sittings from 25/2/2019 to 7/3/2019, in pursuance to which, a report was submitted. This report and other material placed before the Chief of the Army Staff, was considered inexpedient for directing the trial of the officer by Court-Martial, in view of which, in our considered opinion, it would not have been permissible for the invocation of Rule 22 (1) of the Army Rules, 1954, for the reason, that the proviso thereto, requires the Commanding Officer, to consider the report of the Court of Inquiry, which in the present matter, having already ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 51 been considered by the Chief of the Army Staff, who upon due consideration, having come to an opinion, that the trial by Court- Martial, was inexpedient and impracticable, based upon the material before him, the Commanding Officer, being an Officer Subordinate to the Chief of the Army Staff, would be bound by the opinion of his ultimate superior. It is in light of the above position that the action of invoking Section 123 of the Army Act, is to be considered as when once a decision to invoke Rule 14 (2) of the Army Rules 1954, was taken considering the factual position and the material available on record, the invocation of Section 123 of the Army Act, clearly appears to be under some misconception that the same could have been done, on account of a purported enquiry under Section 22 of the Army Act, which was never commenced.

13.8. The reliance on Ex-Capt. Ashwani Kumar Katoch (supra) by Mr. Ulhas Aurangabadkar, learned ASGI to contend that in case of invocation of Rule 14 (2), it is permissible for the show- cause-notice to be waived off by the Central Government, upon being satisfied that it is inexpedient or impracticable, for reasons to be recorded in writing, is of no assistance to the contention as ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 52 advanced by him, for the reason, that in the instant matter, a show- cause-notice under Rule 14 (2), was indeed issued to the petitioner on 16/4/2020.

13.9. Similarly, the judgment of the Armed Forces Tribunal in Lt. Gen. Avadhesh Prakash (retd.) (supra) also does not assist the learned ASGI, for the reason, that what was in challenge therein was an order convening of the Court of Inquiry and its proceedings along with findings and opinion, leading to invocation of the provisions of Section 123 of the AFT Act, 2007 against the petitioners in that case, as against which there is no such challenge raised in the present petitions.

13.10. It is not in dispute, that on 30/6/2020, the petitioner retired from service on attaining the age of superannuation. The petitioner avers that all formalities in so far as handing over of charge, were completed by 12:00 noon, which is not disputed by the respondents. It is only on 30/6/2020, that the provisions of Section 123 of the Army Act, were invoked against the petitioner, the e-mail message in respect of which is placed on record at ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 53 Annexure-32/pg.30 of compilation, which is addressed to the 116, INF BN (TA) (H & H) Assam, the timing of receipt of which is 20:06:51, by which time the petitioner already stood superannuated. The communication about invocation of Section 123 of the Army Act, was hand delivered to the petitioner on 1/7/2020 at 12.20 hours which is apparent from the endorsement made upon the communication in this regard dated 30/6/2020 (Annexure- 32/ pg.28 of the compilation). The communication about invocation of Section 123 of the Army Act, cannot halt the superannuation of the petitioner, which occurred on 30/6/2020. Even otherwise, Section 123 of the Army Act, does not have any effect, upon the superannuation of any person subject to the Army Act . The petitioner, therefore, would be entitled to a declaration that he stood superannuated on 30/6/2020. In view of the averment of the petitioner, that all formalities in so far as handing over of charge, were completed by 12:00 noon, which is not disputed by the respondents, the effect of which is that the petitioner stood relieved from the post, the question of issuing any direction in this regard does not arise at all.

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Cri. WP 289 of 2020.odt 54 13.11. Writ Petition No.2113/2020, therefore will have to be allowed in terms of prayer clause (b) and part of prayer clause (c) as indicated above and is so allowed.

14. In view of what we have stated above, regarding the action initiated under Section 19 of the Army Act, read with Rule 14 (2) of the Army Rules, 1954, and the consequent action require to be taken in pursuant thereto as contemplated by Rules 14 (4) and (5) of the Army Rules, 1954, we do not think, that the any enquiry, based upon the original charges, as contained in the show-cause- notice dated 16/4/2020 can be permitted to be continued, in absence of any fresh material or any fresh charges, particularly, in view of the admission by the respondent nos.1 to 4, that the subsequent action would be initiated on no new grounds, but only on the grounds as contained in the earlier show-cause-notice dated 16/4/2020, in respect of which already an opinion has been rendered by the Chief of Army Staff, of proceeding under Rule 14 (2) of the Army Rules, 1954, for the purpose of administratively terminating the services of the petitioner. In that light of the matter, ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 55 Writ Petition No.1796/2020 is allowed in terms of prayer clause (e) alone, as notices have been issued only to the respondent nos.1 to 4.

15. The question of liberty of a citizen, as guaranteed under Articles 19 and 21 of the Constitution of India has always been very close to the heart of the Apex Court and the High Courts, who have zealously guarded this liberty throughout. No doubt, reasonable fetters can always be placed upon such liberty, but even the reasonableness of such fetters, can always be tested by the Courts. The issue has been considered by the Courts in various judgments, time and again, including those cited by Mr. S. P. Dharmadhikari, learned Senior Counsel for the petitioner. The position in this regard as spelt out is that if the detention is under judicial orders or is traceable to a power conferred under a provision of a statute, the same cannot be termed as illegal, unless, it is demonstrably per se illegal or without jurisdiction.

15.1. The plea of deprivation of right to liberty, as raised in the Criminal W.P. No.289/2020, is on account of invocation of Section 123 of the Army Act, which resulted in the detention of the ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 56 petitioner at military station Thakurbari near Tezpur Assam on 1/7/2020 till 23/7/2020, on account of his release on 24/7/2020, as directed by this Court by an interim order dated 24/7/2020, upon furnishing an undertaking that he would make himself for available for trial.

15.2. It would be apparent that Section 123 of the Army Act, empowers and authorizes, a person, who is alleged to have committed an offence, while being subject to the Army Act , but has ceased to be subject to the Army Act , to be kept in military custody and tried and punished for such offence, as if he continued to be so subject. Thus, any detention of a person by the respondents, directly relates, to the power as conferred in this regard under Section 123 of the Army Act. In our considered opinion, till such time the detention can be related to any order by an Authority flowing from a statute, the same cannot be illegal. However if the order is found to be without jurisdiction or illegal, then the detention would of course have to be declared as illegal too.

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Cri. WP 289 of 2020.odt 57 15.3. In the instant matter it is upon invocation of Section 123 of the Army Act, that the petitioner was taken into custody. The custody of the petitioner, is therefore directly traceable to the power under Section 123 of the Army Act and thus cannot be said to be without authority. The purpose of custody of the petitioner, as is now apparent, was for ensuring the presence of the petitioner, in the enquiry, which was proposed to be held. Thus, the custody of the petitioner for the above duration cannot be held to be illegal or for that matter without authority. It is a different case altogether that the invocation has now been found to be not proper upon the interpretation of the factual position upon the touchstone of rule 14 (2) of the Army Rules. This being the case Criminal Writ Petition No.289/2020, therefore fails.

16. Since the petitioner has already been enlarged from custody by an interim order of this Court dated 24/7/2020, and we have allowed Writ Petition No.2113/2020 and Writ Petition No.1796/2020 to the extent as indicated above, there is now no further need for any custody of the petitioner and no further orders need to be passed in that regard, except that the petitioner who is ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 ::: Cri. WP 289 of 2020.odt 58 already released, under this Courts order dated 24/7/2020, now stands a free man.

All applications stand disposed of accordingly. Rule made absolute in the aforesaid terms. No order as to costs.

(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.) Wadkar ::: Uploaded on - 08/05/2021 ::: Downloaded on - 10/09/2021 17:29:19 :::