JUDGMENT Bhawani Singh, J.—The petitioner joined National Defence Academy in July, 1957 and completed the course at the Indian Military Academy on 17th December, 1961 whereupon he was commissioned as a Second Lieutenant in the Armoured Corps of the Indian Army in the Regiment known as the 20 Lancers’. After serving in various capacities from time to time, he is holding the rank of a Brigadier. In 1986, he was transferred from Babina to the Armoured Corps Centre and School in Ahmednagar. On 8th December, 1986, two money claims were submitted by him to the Controller of Defence Accounts (Officers) Pune. Through one, he claimed reimbursement of the expenses incurred by him for his transfer from Babina to Ahmednagar and the second claim related to the expenses of an air journey undertaken by him and his family members under the Leave Travel Concession facility during 1986. Through letter of December 17, 1986, the Controller of Defence Accounts (Officers) Pune, asked the petitioner to furnish appropriate documentary proof by way of railway receipts or air tickets or a certificate from the Airlines in support of these claims (Annexure P-l). Accordingly, the petitioner resubmitted the claims to the Controller of Defence Accounts (Officers) Pune, on 4th January, 1986. Certain irregularities were found by the Controller of Defence Accounts (Officers) Pune, while processing the permanent duty move claim preferred by the petitioner. By a letter of 22-1-1987, the Controller of Defence Accounts requested the Vigilance Branch of the Headquarters, Southern Command, Pune, to investigate the matter (Annexure P-2) Through communication of 28-1-1987. Headquarters Southern Command, Pune. requested the Commandant of Armoured Corps Centre and School, Ahmednagar, under whom the petitioner was serving and who was then the Commanding Officer of the petitioner and as such the only authority to investigate the matter, to carry out investigation and give his comments and recommendations by 23th February, 1987 (Annexure P-3). 2. At the relevant time, Lt. General G. S. Kler, AVSM, was the Commandant of the Armoured Corps Centre and School He conducted the preliminary investigations into the matter on 29-1-1987 by calling the petitioner and asking him to tender his explanation. The petitioner gave oral as well as written explanation. He substantially admitted that the claims submitted by him were incorrect (Annexure P-4). The petitioner was given a written and verbal warning on 29-1-1987 by the Commanding Officer. The petitioner gave oral as well as written explanation. He substantially admitted that the claims submitted by him were incorrect (Annexure P-4). The petitioner was given a written and verbal warning on 29-1-1987 by the Commanding Officer. By a letter of dated 29-1-1987, Lt General Kler, AVSM, informed the petitioner that his claims in respect of permanent duty move and the Leave Travel Concession had been incorrectly prepared and preferred. The petitioner was warned that such an action on the part of a senior officer was likely to have severe repercussions and may dilute discipline (Annexure P-5). 3. The petitioner further submits that since he had been administered warning—oral as well as written—by the Commanding Officer, the matter stood concluded under Para 327 (d) of the Army Regulations, 1962, hence under this regulation, it was not open to any superior authority to reopen the case against the petitioner either by instituting disciplinary proceedings or otherwise. Para 327 of the Army Regulations, 1962 says: "327. Reproof.—(a) Reproof may be verbal or in writing or both. (b) In no circumstances should reproof take the form of insult or abuse It may be strong but should be directed to the actual fault committed and the language used should not be intemperate or offensive A reproof should not be administered in the presence of subordinates unless, for the purpose of making an example, it is necessary that reproof be public. (c) Warning, a minor censure may take the form of reproof and be administered verbally or in writing to service personnel by the Officer Commanding or by an authority superior in command to the Officer Commanding. A warning will not be recorded in the service documents of the person concerned. (d) It should be ensured that before administering reproof by way of a warning or otherwise, the competent authority applies its mind to the case and comes to a conclusion that ends of justice would be met by closing the case with reproof. Once a decision has been arrived at and the case closed by administration of reproof by a competent authority, no superior authority can re-open the case." 4. Once a decision has been arrived at and the case closed by administration of reproof by a competent authority, no superior authority can re-open the case." 4. According to the petitioner, the matter relating to the Leave Travel Concession claim stood closed as per the verbal directions of the petitioners Commanding Officer which is also clear by the statement of Lt General G. S. Kler, AVSM, as a witness before the Court Martial where he stated on oath that he had awarded verbal as well as written warning to the petitioner for the Leave Travel Concession claim. 5. However, by notice of 5th March, 1987, the Headquarters. Southern Command, Pune, called upon the petitioner to show cause as to why administrative action should not be initiated against him for submitting a false claim for permanent duty move from Babina to Ahraed-nacar At this stage, the Headquarters, Southern Command, Pune, was fully aware of the petitioners lapses since they had mentioned that the petitioner had accepted his guilt vide his statement of dated 29-1-1987 mentioning two claims (Annexure P-7). It is clear from this show-cause notice that the Headquarters Southern Command, Pune, was in the know of both the lapses of the petitioner. However, the show-cause notice referred to one claim only thereby demonstrating that the matter relating to the Leave Travel Concession claim was closed as it had been appropriately dealt with by the competent authority. Thus, the act of reopening the case in relation to the Leave Travel Concession at this belated stage is an afterthought of the Southern Command. By his reply dated 1st April 198? the petitioner drew attention to his written explanation of 29-1-1987 wherein he had owned the responsibility for the lapses (Annexure P-8) By an order of 18th April, 1987, Lt. General Depinder Singh General Officer Commanding-in-Chief, Southern Command, directed that a "Severe Displeasure" (to be recorded) against the petitioner (Annexure P-9). This punishment was accepted by the petitioner since. It was the outcome of the investigations and directions of Lt. General G.S. Kler, AVSM, of 29-1-1987 when he had specifically told the petitioner that the case in respect of permanent duty move lclaim was being forwarded to Headquarters Southern Command. So far as the case relating to the Leave Travel Concession claim was concerned, it had a ready been disposed of by Lt. General G. S. Kler, AVSM, by his warning dated 29-1-1987. So far as the case relating to the Leave Travel Concession claim was concerned, it had a ready been disposed of by Lt. General G. S. Kler, AVSM, by his warning dated 29-1-1987. The petitioner had also requested the Controller of Defence Accounts (Officer) Pane, to treat the claim of the petitioner relating to Leave Travel Concession as cancelled vide his letter dated 10-7-1987. The petitioner also demanded the documents from Controller of Defence. Accounts (Officer) Pune under intimation to Armoured Corps Centre and School, Ahmednagar. Accordingly, by a letter of 1st August, 1987, the Headquarters Armoured Corps Centre and School, Ahmednagar, forwarded certain documents in connection with the Leave Travel Concession claim submitted by the petitioner to the Headquarters Southern Command, Pune, for disposal. The Command was requested to dispose of the said claim on the ground that the case against the petitioner had already been disposed of (Annexure P-10). 6. The petitioner further contends that Lt. General G. S. Kler, AVSM, as Commanding Officer had unhindered power to dismiss the charge or to dispose of the same in any manner in exercise of his discretion under Rule 22 read with Rule 25 of Army Rules. Rule 22 of the Army Rules envisages that: "He may dismiss it, if he considers that the evidence is doubtful or the case is trivial or, in the exercise of his discretion, for any reason, e. g, the good character of the accused." "8. There is no offence which a C. O. is compelled by the A. A. or A R to send before a court martial and each case should be considered on its merits." 7. It was in the exercise of his judicial discretion that Lt. General G. S Kter, AVSM, did not deem it necessary to refer the case for trial and decided to dispose of the same by award of reproof in the form of warning and censure. The award of censure, as would be evident from the Army Headquarters letter No. 32908/AG/PS1 dated 18th April, 1979 is a mode of disposal of a case (Annexure P-11). The award of censure, as would be evident from the Army Headquarters letter No. 32908/AG/PS1 dated 18th April, 1979 is a mode of disposal of a case (Annexure P-11). Although the controversy relating to these claims had been finally set at rest, however, it was sought to be raised afresh when by a letter of August 30, 1987 the second respondent sought the permission of Army Headquarters, New Delhi, for the attachment of the petitioner to Armoured Corps Centre and School, Ahmednagar, in order to face a disciplinary proceeding in connection with Leave Travel Concession claim (Annexure P-12). Consequently, the petitioner was directed to leave Shimla, where he was at that time posted, and report at the Armoured Corps Centre and School, Ahmednagar, to face disciplinary action. The petitioner challenged ft through writ petition No. 410 of 1987 in this Court. He stated, inter alia, that since warning had already been administered to him with regard to the claim, initiation of fresh disciplinary proceedings was violative of para 327 of the Army Regulations. On 24th May, 1988, the Division Bench of this Court dismissed the writ petition with the following observations: "We are not inclined to interfere in the matter at the present stage. We refrain ourselves from expressing any opinion on the question whether the order communicated to the petitioner vide letter dated June 29, 1987 (Annexure P-l) was a final action within the meaning of Clause (d) of Para 327 relating to reproof to an officer or not or whether the respondents were entitled to proceed against the petitioner in the matter of the false claim of ITC preferred by the petitioner after the aforesaid order. We leave the pleas which are being raised by the petitioner in the present petition in this respect open to him in case some orders adverse to the petitioner are passed in the proceedings now initiated against him and the petitioner comes to challenge them later. The petition shall stand dismissed in the aforesaid terms.” 8. The petitioner reported to the Armoured Corps Centre and School at Ahmednagar on 17th June, 1988. There on 25-6-1988 Maior General H. N. Hoon, Commandant of the Armoured Corps Centre and School, directed that a summary of evidence be recorded in the disciplinary proceedings against the petitioner. The petition shall stand dismissed in the aforesaid terms.” 8. The petitioner reported to the Armoured Corps Centre and School at Ahmednagar on 17th June, 1988. There on 25-6-1988 Maior General H. N. Hoon, Commandant of the Armoured Corps Centre and School, directed that a summary of evidence be recorded in the disciplinary proceedings against the petitioner. By an application dated 5-6-1988 (Annexure P-15) the petitioner contended that the disciplinary case against him bad already been disposed of by Lt. General G.S. Kler, AVSM, who was the Commandant at the relevant time, therefore, a fresh investigation was not admissible against him in law. However, despite this protest. The summary of evidence was recorded and the proceedings were closed on 5-7-1988. Major Genera. H. N. Hoon was under obligation satisfy himself, before ordering further action against the petitioner, whether the previous Commanding Officer of the petitioner, Lt. General G.S Kler AVSM had disposed of the matter or not. Anyhow, the petitioner demanded holding of preliminary investigation in accordance with Rule 22 of the Army Rules. This Rule enjoins that the Commanding Officer should ascertain the correctness of the allegations before proceeding further in the matter. Notes 4 and 5 appended to Rule 22 of the Army Rules say that: "4. He must also consider whether having regard to the limitation of time prescribed by Army Act section 122, the accused is liable to be proceeded against. 5. The C.O. must dismiss the charge if there is no evidence of any offence under the Army Act having been committed or if the accused has been previously acquitted or convicted of the alleged offence by any court, military or civil, or has been summarily dealt with under sections 80, 83, 84 or 85 or the charged previously been dismissed under Army Act Section 121 or Army Rules, Rule 53 (1) (a).” 9. Major General H. N. Hoon did not comply with these requirements since he did not call and examine Lt. General G.S Kler AVSM before ordering summary of evidence against the petitioner. It is mandatory requirement that compliance of Rule 22 in case of other ranks and Rule 25 in case of officers, should be there otherwise it is fatal to the jurisdiction of court martial. General G.S Kler AVSM before ordering summary of evidence against the petitioner. It is mandatory requirement that compliance of Rule 22 in case of other ranks and Rule 25 in case of officers, should be there otherwise it is fatal to the jurisdiction of court martial. Army Order No. 70 of 1984 says that: "Disciplinary process under the Military Law commence with a Rule 22 which lays down that every charges against a person subject to the Army Act, other than an officer, shall in the presence of accused. The accused shall have full liberty to cross-examine any witness against him. This is a mandatory requirement and its non-observance will vitate any subsequent disciplinary proceedings. In the case of officers, the rule he comes equally mandatory if the accused officer requires if observance under Army Rule 25." 10. Requirement of the situation was that the matter should have been dropped in view of the disposal of the matter by Lt. General G. S. Kler, AVSML The petitioner raised objection before the court martial also, however, it was over-ruled. Note 2 to Army Rale 25 records that f "2. In the case of an officer, as in that of o her persons, the charge must come before the C.O. in order that the latter may determine whether it shall be dismissed or the case referred to a superior authority for summary disposal under Army Act sections 83 and 84, or for trial by court martial. Under this rule, the C.O can dispense with a formal and detailed investigation, unless the accused officer demands one It does not preclude the C.O from calling the officer and investigating the case as he may deem necessary The officer can only demand formal investigation of his case by the C.O.; he has no right under this rule to demand a court of inquiry” 11. Major General H.N. Hoon had not examined any witness and thus it is clear that he had not heard the charge. The question in response to which the petitioner had signed that he did not require the charge to be heard in accordance with Rule 2 (1), did not preclude the CO. from calling the witnesses and investigating the case The provision does not dispense with the holding of a preliminary inquiry It terminates the hearing being done in the presence of the concerned officer. from calling the witnesses and investigating the case The provision does not dispense with the holding of a preliminary inquiry It terminates the hearing being done in the presence of the concerned officer. As such, no preliminary inquiry was held and further action of the Commanding Officer was wrong, vitiating consequential proceedings and the decision Secondly, when Lt General G S Kler, AVSM, appeared as a witness before the court martial and stated that he had exercised the powers of Commanding Officer and held preliminary investigations in respect of both the claims on 29-1-1987 and also stated that the petitioner was given verbal as well as written warning, no further proceedings could be initiated since he was the competent authority to exercise the power in that behalf. It could not be reopened in any manner by Major General H. N Hoon on 25-6-1988 for want of a provision in that behalf Even though the summary of evidence could not have been validly ordered, yet Lt General G. S. Kler, AVSM, was called as a defence witness in the course of the summary of evidence proceedings. He deposed that he bad disposed of the disciplinary case against the petitioner in respect of Leave Travel Concession claim by administering a written and verbal warning Be further deposed that he had disposed of the Leave Travel Concession claim with a warping since no money bad, in fact, been paid to the petitioner who had accepted the responsibility at the first available opportunity. The petitioner submits that it was Lt General G. S Kler, AVSM, his Commanding Officer at the relevant time who could depose as to the exact position on this aspect and none else and the statement given by Lt. General G S. Kler, AVSM, supports the plea of the petitioner (Annexure P-16). The petitioner moved Civil Writ Petition No 630 of 1988 and challenged the initiation of court martial proceedings against him alleging that the same were illegal and without jurisdiction. General G S. Kler, AVSM, supports the plea of the petitioner (Annexure P-16). The petitioner moved Civil Writ Petition No 630 of 1988 and challenged the initiation of court martial proceedings against him alleging that the same were illegal and without jurisdiction. It was disposed of on December 12, 1988 (Annexure P-17) end a direction was given to the first respondent that the statutory complaint preferred by the petitioner against the order directing his trial by the General Court Martial be disposed of and the General Court Martial was also asked to entertain and decide the plea of the petitioner that proceedings against him could not be reinitiated Toe petitioner raise-ed certain objections during the court martial proceedings and one of them was plea-in-bar since the matter had already been disposed of. The General Court Martial accepted the plea and came to the conclusion that plea-in-bar offered by the petitioner was established (Annexing P-21). The matter was referred to the Headquarters Southern Command which refused to accept the judicial verdict of the Court Martial arrived at by the consensus of five senior officers, The second respondent did not confirm the proceedings (Annexure P-23) and as such, another writ petition was filed in this Court seeking a direction against the reassembly of the Court Martial in the light of Section 121 of the Army Act read with Army Rule 53, Note to Army Rule 22 and para 327 of the Regulations for the Army. A matter once decided could not be reopened in the public interest as well as in view of the contents of letter No. 3/S/61/JAG, dated 29th December, 1964. 12. The further case of the petitioner is that the Court Martial lacked jurisdiction in deciding the case. Further, this charge-sheet had not been signed by the Commanding Officer of the accused, as required However, these objections were overruled and the Court Martial proceeded with the matter. The petitioner was attached for the purpose of these proceedings and was sought to be reverted to the substantive rank of Colonel. However, this Court directed that the rank of the petitioner would continue to be maintained and the petitioner is still holding the rank of Brigadier and is posted in active duty. The petitioner was attached for the purpose of these proceedings and was sought to be reverted to the substantive rank of Colonel. However, this Court directed that the rank of the petitioner would continue to be maintained and the petitioner is still holding the rank of Brigadier and is posted in active duty. The Court Martial concluded its proceedings and inflicted the following punishment on the petitioner: (a) To take rank and precedence as if his appointment as substantive Colonel bore dated the 3rd May, 1988. (b) To forfeit 9 years past service for the purpose of pension. (c) To be severely reprimanded. 13. The operation of this sentence has been stayed by this Court by an order dated 24-7-1989. The petitioner has also sought the quashing of Army instructions No. SAI-l/S/74, as amended by corrigenda AI 31/86 as well as orders of 2-9-1987 and 6-6-1988 being arbitrary, harsh, whimsical, illegal and unconstitutional. He has also sought the quashing of the court martial proceedings and the sentence imposed on him by it. 14. Respondents Nos. 1 to 3 have filed the reply through Lt. Colonel S. B. Mathur, VSM, Administrative Commandant, Station Headquarters, Shimla. It has been stated that the petitioner has admitted the two lapses committed by him. It has been dedied that the case of the petitioner is covered under para 327 of the Regulations for the Army, 1962 on the ground that he has already been proceeded against and punished by Lt. General G. S. Klcr, AVSM. According to the respondents, no such warning or reproof was issued to the petitioner relating to the charge which is the subject-matter of the General Court Martial proceedings. Letter No. 5340/GSK/DlSC-Officcrs, dated 29th January, 1987 (Annexure P-5) does not close the case since the petitioner has been Informed by Lt. General G. S. Kler, AVSM (Retired), the then Commandant Armoured Corps Centre and School, Ahmednagsr, that the explanation rendered by the petitioner was not convincing and that the matter was referred to the Headquarters, Southern Command Para 327 (d) of the Army Regulations, 1962 applies only when a decision has been arrived at and the case is closed by reproof by the competent authority and it is only then that no superior authority can reopen the case. The issue that was under process related to the claim of permanent duty move and the information as to Leave Travel Concession claim was released by the petitioner voluntarily in the reply to the show-cause notice dated 1st April, 1987 (Annexure P-8). The petitioner had only applied and referred to the travelling allowance/ dearness allowance claim and at no time mentioned about the Leave Travel Concession claim and in case be had mentioned that he had already been punished/warned by the Commandant, Armoured Corps Centre and School, Ahmednagar, vide letter dated 29th January, 1987 (Annexure P-4), clear mention of the same could have been given by the petitioner. This indicates that the Leave Travel Concession claim had not been dealt with and closed Although Lt. General G. S. Kler, AVSM, gave his statement before the General Court Martial that he had taken the disciplinary action against the petitioner, but no record of it existed. Thus, the petitioners contention regarding the disposal of the Leave Travel Concession claim is neither correct nor supported by any document since reference is to travelling allowance/dearness allowance claim and not to Leave Travel Concession claim (See: Annexure P2, P3, P7, R-2, P-8, R-l, P-9 etc. etc)- The lapse relating to Leave Travel Concession claim was under process and had not been decided, as contended by the petitioner. 15. The farther case of the respondents is that the power of the Commanding Officer under Army Rule 22 is not as wide as the petitioner has tried to show. The provisions of Army Rule 22 are primarily a part of preliminary investigations during which the Commanding Officer would be well within his right to summarily dispose of minor case against a non-Commissioned Officer and below and decide other cases whether or not to proceed further on the available evidence before him. There is no provision in Army Rule 22 which permits an offence to be disposed of by an award of censure, The award of censure is independent of Army Rule 22 and has to be made by following the procedure laid down in Army Headquarters letter No 32908/AG/DV-l, dated 5th January, 1989 (Annexure R-7). There is nothing on the record to show that Lt General G S. Kler, AVSM, (Retired) had either condoned the offence under Army Rule 22 or independently disposed it of by award of censure. There is nothing on the record to show that Lt General G S. Kler, AVSM, (Retired) had either condoned the offence under Army Rule 22 or independently disposed it of by award of censure. The documents mentioned by the petitioner to sustain his plea of disposing of his case by censure seems to have been prepared as an afterthought. In case Lt. General G S. Kler had really disposed of the case, the only mode was to condone it. Before condoning, the approval of the Chief of the Army Staff was required in accordance with Army Order 288 of 1972 (Annexure R-8). Moreover, he was required to maintain a record of the proceedings in accordance with the provisions of Army Order 70 of 1984 (Annexure R-9). However, do such sanction of the Chief of the Army Staff was ever obtained for condonation of the offence of the petitioner. These facts go to show that Lt. General G. S Kler, AVSM, (Retired), did not actually condone the offence of the petitioner in respect of the Leave Travel Concession claim, as contended by the petitioner, who probably succeeded in persuading Lt. General G. S. Kler, AVSM, (Retired) to save him by fabricating evidence in the form of documents which the petitioner is forwarding in support of his claim. Therefore, the plea that the controversy relating to two claims for permanent duty move and Leave Travel Concession claim had been set at rest is wrong Filing of Civil Writ Petitions Nos. 410 of 1987 and 630 of 1988 has been admitted. 16. The summary of evidence was ordered in accordance with Army Rule 22 as at no stage was the case disposed of On 25-9-08