JUDGMENT : B.K. MEHTA, J. 1. Two short but important questions arise in this Letters Patent Appeal. What is the restraint on the power of transfer of Army Personnel from Command before completion of the disciplinary case as prescribed in Regn. 452-A Defence Service Regulations and, consequently, when a disciplinary case is said to have commenced? It is on the answer of these - two questions that the fate of this appeal depends. 2. A few broad facts need be noticed in order to appreciate the rival contentions urged in course of the hearing of this appeal before us. It should be emphasised at this stage that there is some controversy about some details in course of hearing but in our opinion these details have not much relevance for the purpose of answering the questions arising in this appeal. 3. The appellant petitioner is holding rank of Major and was posted to 152 Air Defence Regiment stationed at Baroda and was at the relevant time Second Officer in Command of the Unit which was commanded by the Officer commanding Lt.Col. P.R. Bajaj. This regiment was under a higher formation namely 769 Independent A.D. Brigade at Jodhpur which in turn is under Southern Command. It is claimed by the appellant petitioner that during the pendency of the disciplinary case against him he was posted away from his formation command to 715 Independent Air Defence Brigade at Ludhiana which in turn is under Western Command. The petitioner, therefore, moved this Court on Aug. 5, 1985 for appropriate writs, orders and directions for impugning and setting aside his movement order as violative of Regn. 452-A. 4. In response to the notice issued by the learned single judge (Coram S. A. Shah, J.) reply affidavit of one Major Harbir Singh who was serving as Adjutant to E.M.E School at Baroda Dated August, 1985 was filed on behalf of the respondents resisting the petitioner, inter alia, on the ground that what Regn No. 452-A prohibits is that no officer against whom disciplinary case is pending should be posted away from the his unit/formation. The unit of the petitioner, namely, 152 AD regiment was wholly shifted and transferred to Ludhiana and, therefore, consequently the petitioner was liable to be transferred along with the unit, and that in any case it was not in the interest of the administration to conduct the disciplinary case against the petitioner at Vadodra when almost all the witnesses belonging to the Unit are at Ludhiana and, therefore, it would cause great inconvenience if the inquiry is held at Baroda and in any event no disciplinary case, in fact, was initiated against the petitioner and therefore Regn. 452-A was not attracted. What has been done against the petitioner was, according to the respondents, that the Staff Court of Inquiry was held and the matter was at the stage of investigation and did not reach the stage of trial and, therefore, having regard to the Regulation and other provisions in their juxta position, the petitioner was not justified in invoking the prohibition contained in Regn. 452 A. The learned single Judge, on reading this affidavit directed Rule to be issued and in response to the Rule nisi no additional affidavit was filed since the Rule was heard immediately. The second contention advanced on behalf of the respondents found favour with the learned single Judge who rejected the petition in limine with a speaking order on the ground that it was premature inasmuch as it was the case of the respondents that no disciplinary case had in fact been initiated against the petitioner. He, therefore dismissed the petition by his order dated Sept. 16, 1985 which is the subject matter of this appeal before us. 5. Being aggrieved by this order of the learned single Judge, the petitioner has filed this appeal in person on Sept. 27, 1985. This Court admitted the appeal by its order of Oct. 1, 1985. It should be noted that on Sept. 27, 1985 the petitioner moved this Court personally for interim relief. This Court pending admission granted ad interim stay of the impugned order of transfer on the condition that the petitioner would continue to be on leave up to Sept. 30, 1985 and the respondents shall sanction the leave accordingly. When the appeal was admitted on Oct. 1, 1985, the Court directed the status quo to be maintained. 6. This Court pending admission granted ad interim stay of the impugned order of transfer on the condition that the petitioner would continue to be on leave up to Sept. 30, 1985 and the respondents shall sanction the leave accordingly. When the appeal was admitted on Oct. 1, 1985, the Court directed the status quo to be maintained. 6. We have referred the above aspects since the appellant petitioner has sought some directions in this behalf and also moved this Court for contempt of the interim orders of this Court in as - much as the status quo directed to be maintained was sought to be disturbed by the respondents since by another movement order of Nov. 18, 1985 Which was intimated to the petitioner under the cover of the letter of Jan. 7, 1986, he was shifted from 152 A.D. Regiment to another unit, namely, 147 A.D. Regiment under Eastern Command. We will refer in details as to what was the accusation against the appellant-petitioner and how it was investigated and/or inquired into while determining the rival contentions advanced before us. 7. Three questions arise for our consideration. Firstly whether the condition precedent or bar on transfer contained in Regn. 452-A is satisfied. Secondly, if answer to question - 1 is in the affirmative, whether infraction of Regn. 452-A would render the impugned action as without jurisdiction and, therefore, non est for all purposes. Thirdly, if question 2 is answered in the negative, is the petitioner entitled as a matter of course to a writ of man- damus restraining the authorities from posting away from his unit formation? Re : Question No. 1 8. Before we set out and refer to the rival contentions urged in this behalf, it would be profitable to shortly refer to the relevant provisions of the Army Act, 1950, Army Rules, 1954 and the particular Regn. No. 452-A, and its preceding and succeeding regulations. At the outset it may be noted that two types of actions are contemplated under the Act and the Rules. It can be either administrative and for what type of lapses such action is contemplated under provision in the Act, Rules or Regulations so as to clearly indicate what would be purely the administrative action in the context of the lapses alleged against the army personnel. It can be either administrative and for what type of lapses such action is contemplated under provision in the Act, Rules or Regulations so as to clearly indicate what would be purely the administrative action in the context of the lapses alleged against the army personnel. Some indication as to what this administrative action can be is to be found in Chap. VII in Part II, Para 327, of the Regulations, relating to discipline. Chapter VIII of the Regulations which provides for discipline in general contains para 327 which deals with the administration of reproof. This para 327 is reconstructed in 1977. Before its reconstruction it provided that reproof should not be administered in presence of subordinates unless it is necessary for making an example that the reproof be public, and in no circumstances should reproof take the form of insult or abuse; it may be strong, but it should be directed to the actual fault committed and the language used should not be intemperate or offencive. After its reconstruction, it reads as under : "327. Administration of Reproof - Reproof can be in the form of a censure or a Warning. Award of a reproof will be governed by the instructions issued on the subject from time to time. Reproof should not be administered in the presence of subordinates unless it is necessary for the purpose of making an example that the reproof be public. In no circumstances should reproof take the form of insult or abuse. It may be strong, but it should be directed to the actual fault committed and the language used should not be intemperate or offencive." 9. Chapter VIII of Part II deals with summary and minor punishment and Chap. X deals with the Courts Martial. The Army Head - quarters have issued a fetter bearing No. 32908/80-PS(1) dated April 18, 1979 which gives an indication that this reproof in the nature of censure or warning is an administrative action. The aim of the letter, as is clear from the para of the letter, is to lay down the procedure and policy regarding the award of censure in the Army. Para 2 lends support to the view which we are inclined to take. It reads as under : "2. The aim of the letter, as is clear from the para of the letter, is to lay down the procedure and policy regarding the award of censure in the Army. Para 2 lends support to the view which we are inclined to take. It reads as under : "2. The award of censure to an officer or a Ko is an administrative action, in accordance with the custom of the service, not governed by any rules and regulations. It takes the form of conveying the 'Severe Displeasure' (either recordable or otherwise) or the 'Displeasure' of the officer awarding the censure, as specified in succeeding paras, either in writing or verbally. All verbal censures should normally be in the presence of an officer of an equivalent or higher rank to the officer being censured and should be followed by written confirmation." 10. By another letter bearing reference No. 32908/AG/OVI dated 30th Aug. 1980 issued by the Army Headquarters reference was made to para 327 of the Defence Service Regulations and to the aforesaid letter from which we have extracted the relevant para Para 2 of the letter of August 30, 1980 refers to warning. It reads as under : "2. Warning is a form of minor censure which may be awarded verbally or in writing to service personnel by his Officer Commanding or by an other superior authority to such an Officer commanding. A censure in the form of a warning will not be recorded in the service documents of person concerned." 11. It should be noted at this stage that the dictionary meaning of the word, "reproof" is censure, rebuke or reprimand. The word, "reprimand" means sharply or severely rebuking or censuring. The scheme of disciplinary action as contained in the Act, Rules and the Regulations indicates that reprimand has been considered to be a minor penalty which goes to indicate that a censure or warning is in nature of administrative action rather than disciplinary action. 12. In order to understand what is disciplinary action, a detailed reference to certain provisions is necessary. Section 3(2), Army Act, 1950, defines "civil offence" as an offence which is triable by a criminal court. By section 69 of the Act, civil offences have been also made offences under the Act. Section 70 provides for what types of civil offences would not be triable by a Court Martial. Section 3(2), Army Act, 1950, defines "civil offence" as an offence which is triable by a criminal court. By section 69 of the Act, civil offences have been also made offences under the Act. Section 70 provides for what types of civil offences would not be triable by a Court Martial. Shortly stated, a person subject to the Act committing an offence of murder or of culpable homicide not amounting to murder or of rape in relation to such a person not subject to Military, naval or Air Force law, except while on active service, or at any place outside India, or at a frontier post specified by the Central Government by notification in this behalf, would not be triable by Courts Martial. The next set of important provisions to which reference should be made are Sections 79 to 85 of the Act. Section 79 reads as under : "79. Punishments otherwise than by Court-Martial Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a Court-Martial and in the manner stated in Sections 80, 83, 84 and 85." Section 80 deals with punishments of persons other than officers, junior Commissioned Officers and Warrant Officers and, therefore, need not be referred to for the present petition. Section 81 provides the maximum limit of punishments under section 80. and, therefore, need not be referred to section 82 provides for additional punishments over and above the punishments under section 80. Section 83 provides for punishment of officers, junior Commissioned Officers and Warrant Officers by Brigade Commanders and others. The punishments specified are severe reprimands or reprimand or stoppage of pay and allowances until any proved loss or damage, for a certain period. It should be noted that the disciplinary authority is an officer having power not less than Brigade or an equivalent Commander or such other Officer with consent of Central Government as is specified by the Chief of the Army Staff. It should be noted than a officer of the rank of major cannot be dealt with under to Section 83 (see Note 6 (a) to section 83 in the Manual of Military Law, Vol II, 1983). Section 84 provides for punishment of officers, Junior Commissioned Officers and Warrant Officers by area Commanders and W/O others. It should be noted than a officer of the rank of major cannot be dealt with under to Section 83 (see Note 6 (a) to section 83 in the Manual of Military Law, Vol II, 1983). Section 84 provides for punishment of officers, Junior Commissioned Officers and Warrant Officers by area Commanders and W/O others. The punishments which have been prescribed are, inter alia, forfeiture of seniority simpliciter or for purposes of promotion, severe reprimand or reprimand, and stoppage of pay and allowances for a certain period. Section 71 is another important provision which enumerates what different types of punishments can be awarded by Courts Martial. Broadly stated, the Courts Martial can award different types of punishments enumerated in the Act. We need not refer to different types of Courts Martial which are specified in section 108 of the Act and the consequential provision as to who can convene different Courts Martial. Section 191 of the Act provides for the power to make rules, while section 192 provides for power to make regulations. 13. Chapter V of the Army Rules, 1954 is an important Chapter which provides for investigation of charges and trial by Court Martial. Chapter V is divided into 7 sections in the sense of parts. Section 1 of Chap. V deals with investigation of charges and remand for trial. Section 2 provides for General and District Courts Martial. Section 3 provides for summary Court Martial. Section 4 contains general provisions. Section 5 deals with summary General Courts-Martial. Section 6 provides as to how the services are to be executed and section 7 provides for field punishment. 14. Chapter VI of the Rules provides for Courts of Inquiry. The relevant rules which we should set out in extenso are Rules 22, 23, 24, 25, 26, 28, 29, 30, 33 and 34. We need not refer to other rules contained in the Rules. These Rules are set out as under:- "22. Hearing of charge -- (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence. These Rules are set out as under:- "22. Hearing of charge -- (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence. (2) The commanding officer shall dismiss a charge brought before him, if in his opinion the evidence does not show that an offence under the Act has been committed, and may do so, if in his discretion he is satisfied that the charge ought not to be proceeded with. (3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall without unnecessary delay - (a) Dispose of the case summarily under section 80 in accordance with the manner and form in Appendix 111; or (b) Refer the case to the proper superior military authority; or (c) Adjourn the case for the purpose of having the evidence reduced to writing; or (d) If the accused is below the rank of warrant officer, order his trial by a summary court martial : Provided that the commanding officer shall not order trial by a summary court martial without a reference to the officer empowered to convene a district Court - Martial or on active service a summary general court martial for the trial of the alleged offender unless either : (a) The offence is one which he can try by a summary court martial without any reference to that officer; or (b) He considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. 23. Procedure for taking down the summary of evidence:- (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked "Do you wish to make any statement? You are not obliged to say any thing unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including if he so desires any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. 24. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. 24. Remand of accused -- (1) The evidence and statement (if any) taken down in writing in pursuance of R. 23 (hereinafter referred to as the "summary of evidence") shall be considered by the commanding officer, who thereupon shall either - (a) Remand the accused for trial by a court martial; or (b) Refer the case to the proper superior military authority; or (c) If he thinks it desirable, rehear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a court martial, the commanding officer shall without unnecessary delay either assemble a summary court martial (after referring to the officer empowered to convene a district court martial or on active service a summary general court martial when such reference is necessary) or apply to the proper military authority to convene a court martial, as the case may require. 25. Procedure on charge against officer - (1) Where an officer is charged with an offence under the Act, the investigation shall, if he requires it, be held, and the evidence, if he so requires, be taken in his presence in writing, in the same manner as nearly as circumstances admit, as is required by R. 22 and R. 23 in the case of other persons subject to the Act. (2) When an officer is remanded for- the summary disposal of a charge against him or is ordered to be tried by a court martial, without any such recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charge as provided in sub-rule (7) of R. 33. 26. (2) When an officer is remanded for- the summary disposal of a charge against him or is ordered to be tried by a court martial, without any such recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charge as provided in sub-rule (7) of R. 33. 26. Summary disposal of charges against officer, Junior com- missioned Officer or Warrant Officer -- (1) Where an officer, a Junior Commissioned Officer or a Warrant Officer is remanded for the disposal of a charge against him by an authority empowered under Section 83, 84 or 85 to deal summarily with that charge, the summary of evidence or (in the case of an officer where there is no summary of evidence) and abstract of the evidence to be adduced shall be delivered to him, free of charge, with a copy of the charge as soon as practicable after its preparation and in any case not less than twenty four hours before the disposal. (2) Where the authority empowered under section 83, 84 or 85 decides to deal summarily with a charge against an officer, Junior Commissioned Officer or Warrant Officer, he shall unless he dismisses the charge, or unless the accused has consented in writing to dispense with the attendance of the witnesses, hear the evidence in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make a statement in his defence. (3) The proceedings shall be recorded as far as practicable in accordance with the form in Appendix IV and in every case in which punishment is awarded the proceedings together with the conduct sheet, summary or abstract of evidence and written consent to dispense with the attendance of witnesses (if any) of the accused, shall be forwarded through the proper channel to the superior military authority as defined in Section 88. 28. Charge-sheet and charge -- (1) A charge-sheet shall contain the whole issue or Issues to be tried by a court martial at one time. (2) A charge means an accusation contained in a charge- sheet that a person subject to the Act has been guilty of an offence. (3) A charge-sheet may contain one charge or several charges. 29. Commencement of charge-sheet. (2) A charge means an accusation contained in a charge- sheet that a person subject to the Act has been guilty of an offence. (3) A charge-sheet may contain one charge or several charges. 29. Commencement of charge-sheet. Every charge-sheet shall begin with the name and description of the person charged, and state his number, rank, name and the corps or department (if any) to which he belongs. When the accused person does not belong to the regular Army, the charge-sheet shall show by the description of him, or directly by an express averment, that he is subject to the Act in respect of the offence charged. 30. Contents of charge -- (1) Each charge shall state one offence only, and in no case shall an offence be described in the alternative the same charge. (2) Each charge shall be divided into two parts-- (a) Statement of the offence; and (b) Statement of the particulars of the act, neglect or omission constituting the offence. (3) The offence shall be stated, if not a civil offence as nearly as practicable in the words of the Act, and if a civil of- fence, in such words as sufficiently describe in technical words. (4) The particulars shall state such circumstances respecting the alleged offence as will enable the accused to know what act neglect or omission is intended to be proved against him as constituting the offence. (5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge and in that case so much of the latter particulars as are so referred to shall be deemed to form part of the first mentioned charge as well as of the other charge. (6) Where it is intended to prove any facts in respect of which any deduction from pay and allowance can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge. 33. Rights of accused to prepare defence. -- (1) Correspondence between the accused and his legal advisers shall not be liable to be censored. The accused shall inform his commanding officer of the names of such advisors, and shall also inform him of any distinctive marks that such correspondence will bear. 33. Rights of accused to prepare defence. -- (1) Correspondence between the accused and his legal advisers shall not be liable to be censored. The accused shall inform his commanding officer of the names of such advisors, and shall also inform him of any distinctive marks that such correspondence will bear. (2) An accused person shall have the right to interview any witnesses whom he may wish to call in his defence. The provisions of R. 137 shall apply to procuring the attendance of such witnesses. (3) If the accused so desires, the 'commanding officer of the accused shall take such steps as the circumstances of the case permit to obtain a written statement from a witness whom the accused may wish to call in his defence. The statement shall be obtained in a closed envelope which shall be given to the accused person unopened. (4) If the accused person gives to his commanding officer the name of any person whom he wishes to call in his defence, no person shall interview such witness with reference to the charges against the accused except in the presence of the accused, unless the accused agrees to disperse with his presence in writing. Similarly if the accused wishes to interview a witness whom the prosecutor intends to call, the interview shall be in the presence of an officer detailed by the commanding officer of the accused person. (5) The commanding officer of the accused person or the officer responsible for his custody shall take adequate precantions so that no conversation which the accused person may have with his legal advisers or witnesses is liable to be overheard. (6) The accused person shall have the right to address an application to the Deputy or Assistant Judge Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence. (6) The accused person shall have the right to address an application to the Deputy or Assistant Judge Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence. (7) As soon as practicable after an accused has been remanded for trial by a general or district court martial, and, in any case not less than ninety six hours or on active service twenty four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, or in the case of an officer where there is no summary of evidence an abstract of the evidence and explain to him his rights under these rules as to preparing his defence and being assisted or represented at the trial, and shall ask him to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should he available. The convening officer shall be informed whether or not the accused so elects. 34. Warning of accused for trial. (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty four hours. (2) The officer at the time of so informing the accused shat give him a copy of the charge sheet and shall, if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court, and where officers in waiting are named, also of those officers in court martial other than Summary Court Martial. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court, and where officers in waiting are named, also of those officers in court martial other than Summary Court Martial. (4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced." 15. Chapter X, Defence Services Regulations, deals with Court Martial and Regn. 452-A is contained in this Chapter. Regulation 452-A reads as under : "452-A. Transfer of personnel from a command before completion of disciplinary cases - (a) No individual against whom a disciplinary case is pending should be posted away from his unit/formation until disposal of the disciplinary cases against him. (b) If the offence alleged to have been committed by an individual comes to light after his transfer to a unit/formation at another station he should be recalled and disciplinary action against him should be completed at the earliest possible date. Before recalling the formation concerned should satisfy itself that a prima facie case exists and that disciplinary action is definitely possible, as otherwise such recall will result in unnecessary expense to the State. In cases where disciplinary action is not possible, that is, it is doubtful that the individual will be convicted, his new CO should be informed of the full details of the case." 16. It is in the context of these provisions that we have to answer the first question. According to the learned Advocate for the petitioner, Regn. 452-A squarely applies in the facts and circumstances of the case. In his submission, having regard to these provisions which we have referred hereinabove and particularly the Rules which we have set out in extenso, the disciplinary proceedings would comprise proceedings from the stage of so-called preliminary investigation to the final order of penalty. The learned Advocate for the petitioner urged that when the decision was taken to set up the Court of Inquiry and to record summary of evidence and to finalise it, it implied necessarily that disciplinary case had commenced against the petitioner and, therefore, Regn. 452-A, is clearly attracted. The learned Advocate for the petitioner urged that when the decision was taken to set up the Court of Inquiry and to record summary of evidence and to finalise it, it implied necessarily that disciplinary case had commenced against the petitioner and, therefore, Regn. 452-A, is clearly attracted. He drew our pointed attention to the wider expression employed in Regn.452-A, namely, disciplinary case in respect of the Court Martial. In his submission therefore this would include both the proceedings in nature of summary inquiry and also regular trial at Court Martial. 17. On the other hand, these contentions were sought to be repelled on behalf of the respondents by urging that Regn. 452-A is not attracted on the facts and in the circumstances of the present case, inasmuch as there was no initiation of disciplinary case or action against the petitioner which can be said to have been initiated when a formal charge is framed under Rule 28 and is furnished to the accused. This stage of framing the charge and tendering it to the accused person having not arrived, the present petition by invoking the bar contained in Regn.452-A is premature as has been rightly held by the learned single Judge. 18. The neat question which, therefore, arises on these rival contentions is that what is the condition precedent prescribed in Regn. 452-A for application of the bar contained therein. As far as the fact of shifting from the unit/formation is concerned, it is not capable of any elaborate discussion since admittedly the petitioner has been moved from his original unit, that is, 152 A.D.- Regiment which is under the formation 769 Independent A.D. Brigade at Jodhpur which in turn was of the larger part of the Southern Command to Ludhiana under 715 (Independent) A.D. Brigade which is a part of the larger formation of the Western Command on August 7, 1985. It is also not in dispute that by order of Nov. 18, 1985 forwarded to the appellant-petitioner under the cover of the letter No. Jan 7, 1986 he was shifted from 152 A.D. Regiment to another unit namely 147 A.D. Regiment which is formation command of the Independent A.D. Brigade in Eastern command. The bar, therefore, prohibiting the transfer of any personnel from his unit and/or formation is apparently attracted. 19. 18, 1985 forwarded to the appellant-petitioner under the cover of the letter No. Jan 7, 1986 he was shifted from 152 A.D. Regiment to another unit namely 147 A.D. Regiment which is formation command of the Independent A.D. Brigade in Eastern command. The bar, therefore, prohibiting the transfer of any personnel from his unit and/or formation is apparently attracted. 19. The crux of the problem which confronts us is whether the condition precedent prescribed for operation of the bar is satisfied or not. To recall the condition precedent is that only such personnel against whom a disciplinary case is pending should not be posted away from his unit/formation until the disposal of the disciplinary case against him. The problem, therefore, is that in such a disciplinary case pending against the appellant petitioner. In other words, when a disciplinary case is said to have commenced is a problem which we have to resolve. Before we refer to the relevant provisions in this behalf as contained in the Rules, we may shortly set out as to what lapse is attributed to the petitioner, and how was he dealt with. 20. It appears that on April 30, 1984 Santries were posted at the petitioner's residence which the petitioner claims as virtually house-arrest the immediate alleged cause for posting the Santries was that a car battery of the vehicle (Army's) was found from the petitioner's residence. It appears that Unit Court of Inquiry was ordered to be set up on April 30, 1984. The convening order which is to be found at Annexure "I" to the additional affidavit of Major V.B. Patil filed on behalf of the respondents discloses that a Court of Inquiry composed of Major Premendra singh as a Presiding Officer and Capt. R.R. Bapat and Capt. L.K. Porwal as members was convened in 152 A.D. Regiment on a date and time to be fixed by the Presiding Officer to investigate the circumstances under which battery 12 Volts 60 AH Regd. No.MA 5606 (MEC) belonging to Truck 1 ton BA No.74C 6999Y of 152 AD Regt. was missing from the said vehicle and the proceedings duly completed in all respects were to be submitted to commending officer by May 1, 1984. It appears further that mere summary of evidence was, ordered on May 1, 1984 by the Commanding Officer Lt. Col. P.R. Bajaj in respect of the alleged misconduct. was missing from the said vehicle and the proceedings duly completed in all respects were to be submitted to commending officer by May 1, 1984. It appears further that mere summary of evidence was, ordered on May 1, 1984 by the Commanding Officer Lt. Col. P.R. Bajaj in respect of the alleged misconduct. The Commanding Officer Lt. Col. Bajaj directed the summary of evidence to be recorded after considering and agreeing with the opinion of the Unit Court of Inquiry. Lt. Col. Bajaj has also in his further affidavit in reply dated March 8, 1986 clearly admitted that he received the report of the Unit Court of Inquiry on May 1, 1984 and based on the opinion of the Court he directed summary of evidence to he recorded. According to the petitioner, a Staff Court of Inquiry was ordered by the officer commanding the formation, that is 769 (Independent) Air defence Brigade of the petitioner on May 31, 1984. The GOC-in-C, Southern Command had agreed with the opinion as recommended by the Staff Court of Inquiry and directed finalisation of summary of evidence by his order of November 25, 1984. It should he noted at this stage since there is some dispute about what transpired between the decision of the Lt. Col. Bajaj on May 1, 1984 directing summary. of evidence to be recorded and the decision of the GOC-in-C, southern Command for finalisation of the summary of evidence on Nov. 25, 1984 because it appears that another court of Inquiry was set up in respect of the investigation of the circumstances under which battery 12 Volt 60 AH Regd. No. MA 5606 (MEC) was found in the premises of the appellant-petitioner. However, there is one fact which is to be noted that on Sept. 29, 1984 Brigade Commander one Ram Pratap who was commanding 769 (Independent) Air Defence Brigade while agreeing with the opinion of the Court based on the evidence produced before the Court established, as stated above, directed that the disciplinary action be initiated against the appellant-petitioner for the act, inter alia, having been found to be in improper possession of the empty battery 12 Volt 60 All Regd. No.MA 5606(MEC) the Government property and using the said battery on his car from December 1983 to first week of April 1984 and 24/25th April,1984 to 1st May, 1984. He also recommended administrative action against Lt. Col. No.MA 5606(MEC) the Government property and using the said battery on his car from December 1983 to first week of April 1984 and 24/25th April,1984 to 1st May, 1984. He also recommended administrative action against Lt. Col. Bajaj for certain lapses. It further appears that this was placed before GOC-in-C, Southern Command who by his direction of Nov. 25, 1984 having agreed with the opinion and recommendation of Brigade Commander of Air Defence 769 directed that action against Lt. Col. Bajaj be kept pending till finalisation of the summary of evidence against the appellant-petitioner. The difference in version between the petitioner on one hand and the respondents on the other is relating to what transpired in between the two dates, that is 1st May 1984 and 25th Nov. 1984. According to the petitioner, a Staff Court of Inquiry was appointed which recorded evidence and submitted to the Brigadier who in his turn submitted it to GOC-in-C, Southern Command. On the other hand, the version advanced on behalf of the respondents is that another Court of Inquiry was set up since the appellant-petitioner was, dissatisfied with the conduct of the proceedings by the first Court of Inquiry and made certain allegations against the Commanding Officer Bajaj and therefore, another Court of Inquiry was established in between which it submitted its opinion to the Brigadier since that Court of Inquiry was also required to inquire into the lapses of Commanding Officer Bajaj and the Brigade Commander directed disciplinary action against the petitioner and recommended for administrative action against Lt. Col. Bajaj. That is how the entire matter was placed before the GOC-in-C, Southern Command who passed the order of Nov. 25, 1984 as stated above. For the purpose of this petition this difference in versions is not a matter of much consequence. The broad question with which we are faced is as to when under the Rules the disciplinary case could be said to have commenced. It is no doubt true that the purpose of setting up of the Court of Inquiry is to collect evidence and to report with regard to any matter which may be referred to the Court (see Rule 177). It is no doubt true that the purpose of setting up of the Court of Inquiry is to collect evidence and to report with regard to any matter which may be referred to the Court (see Rule 177). The procedure before such Court is to be guided by the written instructions of the authorities who assembled the Court, and the instructions should be full and specific and would state the general character of the information required, and whether the report is required or not. The Court of Inquiry has to give previous notice of the time and place of the meeting of the Court of Inquiry, and of all adjournments of the Court to all persons concerned in the inquiry except a prisoner of war who is still absent, and the Court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth. The whole of the proceedings of a Court of Inquiry would he forwarded by the Presiding Officer to the Officer who assembled the Court. The Court can be assembled by the officer in command of any body of troops (see Rule 179). Rule 180 is very important for the purpose of this petition which throws a deal of light on the immediate question with which we are concerned. Rule 180 deals with procedure when character of a person subject to the Act is involved. It reads as under: "180. Procedure when character of a person subject to the Act is involved. Save in the case of prisoner of war who is still absent whenever any inquiry affects the character or military reputation of, a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion affects his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights under this rule." The rule obliges that whenever an inquiry affects the character of a person subject to the Act full opportunity is to he afforded to such person of remaining present throughout the inquiry, making any statement, giving any evidence he may wish to give and cross- examining any witnesses whose evidence is relevant for the purpose for which the Court is established, and for producing any defence witnesses, if he so desires. The court of Inquiry is under an obligation to administer an oath or affirmation, inter alia, when so directed by the Officer assembling the Court (See Rule 181). 21. Rule 22 applies to persons other than officers. It is no doubt true that Rule 22(1) does not in terms oblige that the evidence should be recorded in writing. The only obligation is that it should be heard in presence of the accused who will have an opportunity to cross-examine. Rule 22(2) empowers the Commanding Officer to dismiss a charge if, in his opinion, the evidence does not warrant it, or if the officer is satisfied that the charge ought not to be proceeded with. In case the Commanding Officer feels that the charge should be proceeded with, he can dispose of the case summarily under section 80 or refer the case to superior military authority or adjourn the case for purposes of having the evidence reduced into writing or direct for a summary Court Martial in case of the accused below the rank of Warrant Officer. Rule 22 does not apply in the present case and, therefore, we need not dilate any further about the discussion which has taken place as to whether disciplinary case in case of a person other than officers commences at the stage when the proceedings, are taken under Rule 22. Rule 23 is a machinery provision which prescribes the procedure for recording of evidence. Rule 24 empowers Commanding Officer when the evidence is recorded in writing under Rule 23 to remand the accused for trial by Court Martial or refer the case to proper military authority or rehear the case himself and then dismiss the charge or dispose it of summarily. Rule 24 empowers Commanding Officer when the evidence is recorded in writing under Rule 23 to remand the accused for trial by Court Martial or refer the case to proper military authority or rehear the case himself and then dismiss the charge or dispose it of summarily. It is R. 25 which is material for our purposes. Rule 25 has been set out above. The gist of the rule is that an officer charged with an offence under the Act can insist for recording the evidence in writing in his presence in the same manner as nearly as the circumstances admit as is required by Rule 22 and Rule 23 in case of other persons subject to the Act. In other words, Rules 22 and 23 will apply to persons other than officers. A mere look at Rule 22(3)(c) and Rule 23(1) makes the position clear. Rule 23(3)(c) permits the Commanding Officer at the conclusion of the hearing of a charge to adjourn the case for purposes of having evidence reduced into writing, and the opening part of Rule 23(1) says that where the case is adjourned for purposes of the evidence having been reduced into writing, the procedure followed therein should be adopted. This procedure of adjourning the case for recording of evidence and recording the evidence as prescribed in R. 23 would not he available in case of officers. This view has found favour with one of us in cases referred (G.T. Nana - vati, J.) in Virandrarai J. Kharod v. Union of India, 1985 Gujarat Law Harold 704. Therefore, when a charge of an offence against an officer is to he investigated, the procedure prescribed in R. 25 is to be followed, and if the charge affects the character of such officer, the procedure prescribed in R. 180 has to be adopted. The effect of R. 25 is that if an officer charged with an offence insists for recording of evidence in writing, the procedure mentioned in Rules 22 and 23, as far as possible, has to be followed. But if it affects his character, the additional procedural safeguards are provided in R. 180. The effect of R. 25 is that if an officer charged with an offence insists for recording of evidence in writing, the procedure mentioned in Rules 22 and 23, as far as possible, has to be followed. But if it affects his character, the additional procedural safeguards are provided in R. 180. The conjoint reading of Rules 22, 23, 25 and 180 appears to us to be that if a person other than an officer is charged and the Commanding Officer feels that the circumstances are clear enough, he may proceed with the charge and after following the procedure prescribed in Rules 22(I) and 23, if necessary, dispose of the matter as provided in Rule 24. But if the person charged is an officer the procedure though as prescribed in Rules 22 and 23 may be adopted as far as possible, however, if it affects his character, the procedure prescribed in Rule 180 has to be followed. If. therefore, a Court of Inquiry is established and the accusation against the officer affects his character, the conclusion which is inescapable on reading of these relevant Rule 25 read with Rule 180, is that the disciplinary case is initiated at this stage. If it is in the nature of merely preliminary investigation, it would be difficult to conceive of a provision of a mandatory character requiring the inquiry Officer or the Court of Inquiry to record the evidence in writing in the presence of the officer, permit him to cross-examine and allow him to lead defence evidence. The submission, therefore, urged on behalf of the respondents that till a specific charge is framed against an officer, it cannot be said that the disciplinary case is commenced does not command to us for the reasons which we have stated above. It is no doubt true that even in a case of an officer as that of other person, the charge must come before the Commanding Officer so that he may determine whether it should be dismissed or the case be referred to a superior authority for summary disposal under section 83 or section 84 or for trial by Court Martial. It is also true that even where an officer is charged, the Commanding Officer can dispense with a formal and a detailed investigation unless the officer charged demands one. It is also true that even where an officer is charged, the Commanding Officer can dispense with a formal and a detailed investigation unless the officer charged demands one. But if the accusation against the officer affects his character, the procedure which is to be adopted is a full-fledged procedure as prescribed in Rule 180. It is on this consideration that we are inclined to take the view as we do that the disciplinary case must be deemed to have commenced immediately when the Court of Inquiry was established for purposes of investigating the accusation against the officer involving his character. In the present case, we have no doubt on facts that the accusation against the petitioner was one affecting his character. The circumstances which lend support to our view are speaking circumstances. The first circumstance is that a complaint was lodged at the concerned police station in Vadodara against the present petitioner for, having committed the offence of theft in respect of battery No.12 Volts 60 AH Reg. No.MA 5606 (MEC) which was in truck bearing 1 Ton BA No.74C 6999Y. The petitioner was suspended on June 29, 1984 and in the suspension order it has been, inter alia, stated that as already intimated to him his character, conduct as an officer and gentleman have been impugned and the investigation was in progress, and that besides his other activities are potentially arduous to both security and morale of the unit. The convening order of May 16, 1984 clearly requires the procedure prescribed in R. 180 to be followed. No doubt the first Court of Inquiry which has been established on April 30, 1984 merely requires investigation of circumstances of the loss of battery MA 5606 (MEC). But the convening order of 16th May, 1984 clearly requires the investigation into the alleged acts of misconduct against the petitioner including for the loss of battery of the aforesaid truck. It is in this background of the rules and facts that we have observed that the difference in the versions as to what transpired between Ist May, 1984 and Nov. It is in this background of the rules and facts that we have observed that the difference in the versions as to what transpired between Ist May, 1984 and Nov. 25, 1984 is not of much consequence since the establishment of the Court of Inquiry for the lapses alleged against the petitioner, including for the loss of battery in the background, clearly indicates that the procedure of Rule 180 is to be followed, and if that is so, there cannot be any escape from the conclusion that the disciplinary case is commenced. The views which who have taken are supported by the Special Army Order issued by the Chief of Army Staff dated 15th Nov. 1983. Para 25 of the said order reads as under: "25. An officer will be considered to be subject to a disciplinary case with effect front the earlier of the following two dates: (a) The date on which a Court of Inquiry is ordered involving his character or military reputation; or (b) The date on which formal cognizance of an offence is taken against him." Since the first contingency prescribed in para 25 has occurred, the petitioner would be considered to be subject to disciplinary case. An attempt was made on behalf of the respondents to persuade us that this para is for a limited purpose of writing confidential reports of officers involved in disciplinary cases. We are not basing our view on this para 25 but the view which we have taken independently on the construction of the rules and facts gets support from para 25. 22. Apart from this, it is difficult to agree with the contentions urged on behalf of the respondents for obvious reason that the point of commencement of the disciplinary case for purposes of writing confidential and for other purposes would be different. If that contention is accepted, it would result into such anomalous and absurd situation which would be difficult to comprehend and, therefore, need not be elaborated. 23. It has been urged on behalf of the respondents in the alter - native that assuming without admitting that a disciplinary case can be said to have been initiated, in exercise of the power under Rule 22 or Rule 23 so far as the present case is concerned, that stage had not been reached and the matter was at the stage of investigation. We are of the opinion that this contention is not well founded since with respect it begs the question. The problem is that when the disciplinary case is said to have commenced. If it commences with the setting up of the Court of Inquiry exercising its power under Rule 25 read with Rules 22 and 23, the disciplinary case is deemed to have been commenced and if that is so which, in our opinion, is clear enough on construction of the rules, the condition precedent in Regn.452-A is satisfied. The learned Counsel for the Union Government, therefore, urged that having regard to the juxta-position of Regn.452-A which is in Chap.X dealing with Court Martial, the Court should be slow in holding that the bar contained in Regn. 452-A applies at earlier stage. We are afraid that this contention is not well conceived. The reason for our view is that Regn. 452-A prohibits transfer of personnel against whom disciplinary case is pending. On plain reading of clause (a) of Regn. 452-A the condition precedent is in terms of widest amplitude namely, pendency of disciplinary case. If the Regulation making power had intended that this prohibition should operate only at the stage of trial before the Court Martial, it would have appropriately expressed itself, and it would not have employed the words of such wider amplitude. It should be noted that the disciplinary case would not be pending merely before the Court Martial alone. The disciplinary case can be commenced and concluded before the other authorities under the Act and the Rules. Therefore, also we are not inclined to agree with this submission. 24. Thee learned Counsel for the Union Government, therefore, urged that on the view, which the Court is inclined to take the prohibition contained in Regn. 452-A would not be squarely applicable in the case of the petitioner since the unit to which he belongs has been transferred and, therefore, it cannot be urged that he is shifted from the unit. It is no doubt true that the whole unit including the petitioner has been shifted to Ludhiana but that by itself is not the prohibition in Regn.452-A. The prohibition is not only against shifting a person from the unit but is also directed against shifting of a person from his formation. It is no doubt true that the whole unit including the petitioner has been shifted to Ludhiana but that by itself is not the prohibition in Regn.452-A. The prohibition is not only against shifting a person from the unit but is also directed against shifting of a person from his formation. We have said that the formation of which 152 Air Defence Regiment was part, namely 769 (Independent) Air Defence Brigade, Jodhpur, and 152 Air Defence Regiment was placed under new formation, namely 750 (independent) Air Defence, Ludhiana, the larger formation, namely Southern Command is also changed that the unit is now under Western Command. The matter does not rest there since by the subsequent order of 18th Nov. 1985, the petitioner was shifted from his Regiment namely 152 Air Defence Regiment to 147 Air Defence Regiment which is not independent Air Defence Brigade under eastern Command. This contention of the learned Counsel, therefore, does not commend to us. In that view of the matter we must answer question 1 in the affirmative, that the condition precedent for the operation of the bar is satisfied. 25. The second question which arises is that what is the consequences of the violation of the prohibition contained in Regn. 452-A. We do not think it necessary to go into the larger question as to what would be the consequences of breach of the mandatory provision assuming that the provision contained in Regn. 452-A is mandatory as urged by the learned Advocate for the petitioner. Reliance was sought to be derived from the decision of the Supreme Court in Smt. Juthika Bhattacharaya v. State of Madhya Pradesh (1976) 4 SCC 96 , where the Court has ruled that the use of the word "should" in a given statute would not conclude that the provision is directory and it depends on the object and purpose of the provision of a particular statute, whether it is directory or mandatory. As we have observed, we need not go into the question as to what provision would be mandatory or directory, and what would be the consequences of the breach of the mandatory provision, and whether breach of every mandatory provision would render the order non est. As we have observed, we need not go into the question as to what provision would be mandatory or directory, and what would be the consequences of the breach of the mandatory provision, and whether breach of every mandatory provision would render the order non est. The reason for our disinclination to go into the larger question is that we can alway grant a relief of a writ of certiorari by quashing and setting aside the order, if we find that there is an infraction of law. Since we find in the present case that Regn.452-A clearly violated, we can grant the relief of writ of certiorari, or a writ, order of direction in the nature of certiorari. It is axiomatic to say that a party aggrieved cannot by waiver confer jurisdiction on Court which acts without inherent jurisdiction. A directory provision can obviously be waived where the Court is not wanting in jurisdiction. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. Ordinarily the safest guide to determine what is an irregularity and what is penalty is to see whether the party can waive its objection. If he can waive it, it amounts to an irregularity; if it is not, it is a penalty see Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300 . The only question which now remains to be answered is that what should be the appropriate relief in this case. It has been urged on behalf of the respondents that the Court should be slow in granting the relief when the entire unit of the petitioner is transferred and is posted at its sensitive area, and the petitioner cannot be permitted to sit idle at a place where there is no work for him. We do appreciate this contention. But persons subject to Army Act do not cease to be citizens and they are entitled to agitate their causes when there is an infraction of their rights, fundamental or statutory: see Prithi Pal Singh v. Union of India, AIR 1982 SC 1413 . 26. We do appreciate this contention. But persons subject to Army Act do not cease to be citizens and they are entitled to agitate their causes when there is an infraction of their rights, fundamental or statutory: see Prithi Pal Singh v. Union of India, AIR 1982 SC 1413 . 26. We are, therefore, of the opinion that the appeal and the petition should be allowed and the impugned movement order dated 7th Aug, 1985 and also the order dated 18th Nov, 1985 are quashed and set aside by issuance of a writ of certiorari and the respondents are directed to desist from transferring the petitioner from his present station to any formation or commend other than 769 (Independent) Air Defence Brigade in Southern Command pending the disposal of disciplinary cases against the petitioner. The respondents are directed to permit the petitioner to resume his duties at E.M.E. School, Vadodara and regularise his services and release pay and allowances for the period after 7th Aug. 1985 till the petitioner is allowed to resume the duties. It is, however, clarified that the respondents shall have liberty to proceed with the Staff Court of Inqury from the Stage where the matter is standing at present or proceed with the Court Martial against the petitioner or under section 83 as they may be advised, which will be without prejudice to the rights and contentions of the petitioner about compliance of the procedural rules. In case they decide to drop the inquiry against the petitioner, the respondents shall give a fresh posting order to whatever unit and formation, they think fit. 27. The result is that the order under appeal is set aside and the Rule is made absolute as aforesaid in the petition. There should be no order as to costs throughout. Having regard to the main order passed in the appeal, Civil Application No.3608/85 for interim relief does not survive. It is disposed of accordingly with no order as to costs. Miscellaneous Civil Application No.40/86 which is for purposes of initiation of contempt proceedings also would not now survive since the appeal and petition have been disposed of in favour of the petitioner. It is disposed of accordingly. 28. We must express sour appreciation for the assistance rendered by Mr. M.D. Pandya on behalf of the petitioner acting as amicus curiae at the request of the Court. Order accordingly.