1. The petitioner who was working as Director General of Supply and Transport of the Army Service Corps, filed a writ petition before Delhi High Court under Article 226 of the Constitution of India for quashing and setting aside of proceedings and recommendations of the court of inquiry in terms of order dated 26th May, 2005 and order directing attachment of petitioner dated 18 July, 2006. A court of inquiry which was initiated against the petitioner under Rule 180 of Army Rules (hereinafter referred to as Rules) for certain omission and commission. The said court of inquiry was challenged by petitioner by filing a writ petition in Delhi High Court which was ultimately allowed and it was held that
“We are of the considered view that the respondents have not complied with the provisions of Rule 180 of the Rules, as such they cannot take any further proceedings against the petitioner on the basis of the Court of Inquiry held in furtherance to the order of the competent authority dated 26.09.2005. However, the respondents are at liberty to give notice to the petitioner and continue with the proceedings under Rule 180, or in the alternative, even to take recourse to the provisions of Rule 22, or exercise any other power available to them under the Act, in so far as they do not rely upon the proceedings of the aforesaid Court of Inquiry.”
2. After delivery of this judgment, the respondents instead of complying the order of giving opportunity to the petitioner as required under Rule 180, they switched over to Rule 22 and issued afresh notice and passed order on 31.08.2007 of attachment under section 123 of the Army Act (hereinafter referred to as Act) as incumbent has since then retired from service and he was served with charge sheet on 26.10.2007 under Rule 22. Therefore, petitioner filed a second petition before Delhi High Court seeking quashing of the order dated 31.08.2007. This petition was pending before Hon'ble High Court and now transferred to this Tribunal.
3. Learned counsel for petitioner submitted that the respondent has not complied the direction of the Division Bench of the Delhi High Court given in judgment dated 11.01.2007 and in violation of that they have resorted to Rule 22 and passed order under Section 123 and directed the petitioner to face the charges framed under Rule 22.
4. Petition was opposed by the respondents. Respondents have taken the plea that the High Court has permitted to resort to Rule 22 and emphasised that full liberty was given to resort to other Rules. In this connection, our attention was invited that some persons who were also charged alongwith petitioner, approached the Delhi High court individually by filing a writ petition and in that a similar order was passed and that order was challenged by way of SLP before the Hon'ble Supreme court which was dismissed (WP (C) 7259/08 filed by Brig. PS Gill). In this connection our attention was invited to order passed by Hon'ble High Court on application subsequently moved by petitioner which reads as under:—
“An application was subsequently filed by the respondents being CM 12871/2008 that on re-examination of the matter they would like to follow the second course of action and proceed under Rule 22 of the said rules. This was permitted by the order dated 12.09.2008 once again making it clear that no part of court of inquiry could be used for proceedings under rule 22 of the said Rules.”
5. Therefore, it was submitted by the learned counsel for the respondent that Hon'ble High Court has permitted to resort to Rule 22.
6. We have bestowed our best of consideration to rival submissions.
7. In fact when the respondent initiated court of inquiry under Rule 180 of the Rules Division Bench has clearly laid down that respondent can resort to Rule 22 or other method but no part of court of inquiry shall be used for proceedings under Rule 22. The order of Division Bench of Delhi High Court made it clear that if the respondent wanted to proceed with other provision of law including under Rule 22 but no part of court of inquiry proceeding which was subjected to Rule 180 can be used.
8. Finding of Division Bench subsequently is also very clear that respondent can resort to Rule 22 but no part of court of inquiry which was subjected to Rule 180, shall be used. We have seen the reference made to the court of inquiry Rule 180 as well as the charges which have been framed under Rule 22. Both the charges are almost paramateria with change of words. The subject matter of court of inquiry under Rule 180 was procurement of moong, massur and kabuli channa. The gravamen of charge under Rule 22 is same as was the subject of court of inquiry. Therefore, it is clear that in spite of the clear mandate by the Division Bench of Delhi High Court that no proceeding of court of inquiry pertaining to Rule 180 shall be used for framing of charges under rule 22, despite that they have framed the charges by changing the language but substratum of the matter was same the procurement of moong, massur and kabuli chana. Therefore, this device adopted by the respondent is not proper, once the Division Bench had categorically said that proceeding under Rule 180 i.e. court inquiry shall not be used, respondent by pass the order and resorted to Rule 22. This in our opinion is violation of mandate of Division Bench of Delhi High Court. We are very clear that once you start inquiry under Rule 180 i.e. court of inquiry then you cannot change the course in mid stream. If this is permitted then incumbent is likely to be prejudiced as he is preparing for his defence and wanted to put his point of view and suddenly resort to rule 22 will amount to prejudging the matter. The very purpose of initiating the court of inquiry is to find out a truth of the matter after hearing the other side. This is a very salient provision in the Indian Army Act, normally in other domestic primary inquiry such benefit is not given to the incumbent but in the Rule 180 it has been clearly mandated that whenever any inquiry is initiated the incumbent is entitled to give his reply and to give him full opportunity to represent throughout the inquiry making any statement or giving any evidence he may wish to make or cross examine any witnesses whose evidence in his opinion affects his character or military reputation. Therefore, this rule is very significant defence to incumbent and denying him will be a great injustice to incumbent and it will be breach of principle of natural justice. This was discussed in detail by the Division Bench and ultimately came to the conclusion that petitioner was not given full opportunity despite this mandate of law. In fact the respondent has suddenly taken the recourse to Rule 22 whereas it should have given opportunity to incumbent under Rule 180 as directed by the Division Bench. Though Division Bench permitted the respondent to resort to any other law permissible under law with a rider that no proceeding of court of inquiry shall be used, this is nothing but trying to over reach the court.
9. In view of above, we are of opinion that resorting to rule 22 was totally unwarranted and illegal. We set aside the order dated 31.08.2007, attachment order dated 27.09.2007 and 26.10.2007 and respondent is directed to resort to court of inquiry and permit the petitioner to summon the witnesses whom he wants to cross examine and permit ??? to produce the witnesses which he wishes to do so. To cut short the time we directed the petitioner to give us list of persons whom he wants to cross examine and persons whom he wish to produce in his defence, he has given list of persons today and shown that he wants to cross examine four witnesses namely Maj. Gen. B.P.S. Mander (retired), Brig. P.S. Gill (retired), Brig. Handa (retired) and Col. Pramod Kumar and these witnesses be summoned for cross examination of petitioner. He may be permitted to produce his witnesses namely Maj. Gen. Katewa, Brig. Ram Kohli, Lt. Col. Clement (retired) and Lt. Gen. Sudhir Sharma and Maj. Gen. V.K. Dutta. It will also be open to petitioner to file his defence if not filed or additional defence within two weeks. Thereafter the court of inquiry may prepare its report and further action be taken in accordance with law.
10. We have been informed that the person who was conducting the court of inquiry has since been retired. It will be open to the respondents to appoint new inquiry officer to complete this court of inquiry. The court of inquiry shall be completed as far as possible within eight weeks. The incumbent shall fully cooperate and in case he does not cooperate, it will be open for the presiding officer of the court of inquiry to proceed ex-parte against him. The period of limitation will not come in the way. Petition is allowed. No order as to costs.