Colonel S. M. Mehta v. Union of India — 1993 DIGILAW 343 (RAJ)

Honble SINGHAL J. — This writ petition has been filed against the order dated March 30, 1993 passed by the Commanding Officer Brig. Mohan Singh invoking the provisions of Section 123 of the Army Act. In the writ petition, the petitioner has claimed following prayers: i) Quash the entire proceedings taken up against the petitioner in the court of Enquiry as well as summary of Evidence. ii) Quash the order dated 30.3.93 passed by respondent No. 3 invoking Section 123 of the Army Act and set it aside. If during the pendency of the writ petition, the petitioner is arrested or kept in military custody the respondents directed to release him immediately. iii) In the alternative the entire case be transferred before the appropriate forum under the civil authorities and the case be taken from the military authorities; iv) Personal compensation to the tune atleast 1 lac be awarded to the petitioner for tarnishing of his military character and humiliation. (2) Brief facts of the case are that the petitioner was working as Golonel and was posted as Project Officer in Army Welfare Housing Organisation (For short, AWHO) during the period July, 1989 to 24.05.1992. A contract was given to M/s. V.K. Construction Works Ltd. for construction of Housing accommodation. The said firm was to commence the work by 27.11.1989 and complete it up to 26.05.1991. According to the terms of contract, a bill was to be prepared by the contractor on the basis of 95% of the total construction and also 85% of the total costs of the material lying at the site. After verification, 75% of the amount of the bill was to be released by the petitioner and 25% of the amount was to be released by the Head Quarters of AWHO. The work of the contractor continued upto 8.01.1991 without any problem, but he stopped the work on 9.01.1991. The time for completion of work was extended from 26.05.1991 to 15.10.1991. Another application for extension was also submitted by the Contractor and the work was done up to 3.11.1991. The last bill which was submitted by the petitioner was for the work done up to 10.10.1991. It is submitted that on account of non-payment of this bill, the Contractor stopped the work on 3.11.1991 and, therefore, another notice was sent to him cancelling the contract vide letter dated 15.11.1991. (3). The last bill which was submitted by the petitioner was for the work done up to 10.10.1991. It is submitted that on account of non-payment of this bill, the Contractor stopped the work on 3.11.1991 and, therefore, another notice was sent to him cancelling the contract vide letter dated 15.11.1991. (3). By a letter dated 18.11.1991 a Board of Officers was ordered by the Head Quarters AWHO, New Delhi for preparation of inventories of the items lying in the various stores and it was further directed that the Project Manager Jaipur will take over the complete and incomplete works and the materials lying. It is admittedly by the petitioner that M/s V.K. Construction Limited knowing about cancellation of contract took away several items lying at the site, which were under his care and custody as per condition 56 of the contract and the petitioner could not stop him on account of non-availability of staff or assistance either from military or the civil authorities. A letter dated 20.11.1991 to the Station House Officer of Police Station Vishwakarma Industrial Area, Road No. 5 Jaipur was written by the petitioner, in which after informing that the Contractor has stopped the work and that inventory is to be prepared, it was mentioned to safe guard the project stores and building as also to complete the work assigned to the Board Officers. Neither it was mentioned in this letter that the material which was lying at the site has been stolen or is likely to be stolen or for what purpose the assistance or help is required. It is worth-while to point out that in the letter written to the Commander, Head Quarters 61(1) Sub Area, Jaipur on 18.11.1991 it was mentioned that the firm has been resorting to number of unscrupulous means in the recent past and it was anticipated that they may create certain law and order problem at the site by way of making forcible entry, damage AWHO property or remove stores which rightfully belongs to AWHO. The letter which was written after 2 days i.e. on 20.11.1991 to the S.H.O. has no such reference nor any specific request was made therein nor the names of the persons were mentioned. It is submitted that the F.I.R. was not registered. The letter which was written after 2 days i.e. on 20.11.1991 to the S.H.O. has no such reference nor any specific request was made therein nor the names of the persons were mentioned. It is submitted that the F.I.R. was not registered. Thereafter another letter dated 29.11.1991 was sent to the S.H.O. that at 0100 hours on 29.11.1991 Shri S.K. Jain, representative of M/s. V.K. Construction Works along with 50 persons arrived at the project site and threatened the petitioner with dire consequences in case any resistence whatsoever is offered by him or by the Chawkidar during breaking of the building and removing the articles from there. After sending this report of theatening with the names of persons, who could be identified the petitioner sent the F.I.R. on 30.11.1991 to the S.H.O. by name regarding trespass, stealing the stores in Autorickshaw and also tres-passing of about 50 persons. It is submitted, that when nothing was done, the petitioner had to employ private chawkidars of Rajasthan Security Agency to safe guard the assets. The Board of Officers started preparing of inventory and when inventory was prepared it was found that the list of the items which had not been utilised for the construction and were not available at the site was to the extent of 4,21,001.56. The FIR No. 41/92 was lodged by the petitioner on 21.02.1992. (4) In the meantime, the Contractor filed a civil suit before the Additional Civil Judge, Jaipur City along with an application under Order 39 Rules 1 and 2 CPC, which was allowed and injunction was granted. Against the order passed by the Additional Civil Judge, a revision was filed, which was rejected by this Court. (5). On 17.02.1993,, a letter was written to the petitioner that a court of Enquiry to investigate the deficiencies of stores in Project AWHO will be held in AWHO Office, Jaipur at 1000 Hours on 18.02.1992. The petitioner reported himself before the Presiding Officer of the Court of Enquiry. He requested to supply him the copy of the convening order in respect of court of enquiry, vide letter dated 12.3.93. The petitioner was called in the office of respondent No. 3 and 3 charges were read over to him by the Commanding Officer and a summary of evidence was ordered. He requested to supply him the copy of the convening order in respect of court of enquiry, vide letter dated 12.3.93. The petitioner was called in the office of respondent No. 3 and 3 charges were read over to him by the Commanding Officer and a summary of evidence was ordered. The respondent No. 4 was detailed as Officer-in-Charge for recording of summary of evidence by order dated 15.03.1993.Copy of the charge sheet was however not provided to the petitioner. (6). The grievance of the petitioner is that he was not involved in the purchase of stores and if any bill was found to be from a bogus firm, the petitioner could not be held responsible as his responsibility was limited to the extent of verifying the physical verification of the stock lying with the site with the bill so prepared by the Contractor and recommended by the Architect. It is alleged that all material was lying at the site except those for which FIR was lodged. The Contractor was summoned but inspite of the efforts of the Officer Incharge, he avoided his presence. Vide letter dated 30.03.1993 invoking the provisions of Section 123 of the Army Act, 1950, the petitioner was detained w.e.f. 31.3.1993. In the said letter it was mentioned that "since you are to retire from service on 31.03.1993 (AM) AA Sec. 123 in your case is invoked with effect from aforesaid date i.e. 31st Mar. 93 (AM) to finalise pending disciplinary case against you." (7). Learned counsel fox the petitioner has submitted that Section 125 of the Army Act contemplates discretion to be exercised and no proper discretion has been exercised by the competent authority and for that purpose he has relied upon the decision of Ram Swaroop Vs. Union of India (1), wherein it has been held by the Apex Court that Section 123 itself does not contain anything which can be said to be a guide for the exercise of the discretion of the military officers concerned in deciding as to which court should try a particular accused. But there is sufficient material in the Act which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance there with law. But there is sufficient material in the Act which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance there with law. It has further been held that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court Martial or by an ordinary Criminal Court, and therefore, it becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the offence and the person against whom the offence is committed. (8).The decision of Barium Chemicals Ltd. vs. Company Law Board (2) has been relied upon to show that in order to have the satisfaction of the authority for.exorcising the power under Section 125 directing person to be tried by Court Martial and for invoking the power under Sec 123 detaining the petitioner should be exercised when the said,authority is satisfied and.the satisfaction should be on the basis of.material available on record. (9). The decision of Rohtas Industries vs. S.D. Agrawal (3), has also been. relied upon to show that there must be real exercise of power. The authority must form requisite opinion honestly and after applying its mind to the relevant material before it. In exercising the discretion the authority must have regard only to circumstances suggesting one or more of the matters specified in various sub clauses. It must act reasonably and not arbitrarily. It was further observed in this case that if it is established that there were, no materials upon which the authority could form the requisite opinion, the court may infer that the authority did not apply its mind to the relevant fact. The requisite opinion is then lacking and the condition precedent to the. exercise of the power under Section 237 (b) is not fulfilled. (10). The decision of Khudiram Das vs. State of West Bengal (4), has also been relied upon wherein it was held that the satisfaction of the detaining authority is not immune from judicial reviewability. The requisite opinion is then lacking and the condition precedent to the. exercise of the power under Section 237 (b) is not fulfilled. (10). The decision of Khudiram Das vs. State of West Bengal (4), has also been relied upon wherein it was held that the satisfaction of the detaining authority is not immune from judicial reviewability. The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of power would not be fulfilled and the exercise of the power would be bad. (11). Reliance has been placed on the decision of Maj. Sidhu Hardeep Singh vs. Union of India (5), wherein the disciplinary authority having already expressed his opinion while proposing disciplinary action, it was held that the enquiry would be void being in clear violation of canons of fair play and natural justice... In this case, it has been observed that "before parting with the judgment, we may state that the Court feels discipline is the bed rock upon which the entire edifice of the Army has been built, it being the most powerful and potent, equipment for the armed forces. As such in the matters relating to discipline in the Army power given under Article 226 of the Constitution is to be exercised most sparingly only in appropriate cases where there is blatent violation of the principles of natural justice or the order is against the canons of fair play or the impugned order is irrational or the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. Reliance has also been placed on the decision of Calcutta High Court in A.K. Dutta vs. Union of India (6), wherein it has been held, that a writ can be issued during the stage of departmental enquiry If the enquiry is in violation of the provisions of the rules. The proceedings in such a case can be quashed. Reliance has also been placed on the decision of Calcutta High Court in A.K. Dutta vs. Union of India (6), wherein it has been held, that a writ can be issued during the stage of departmental enquiry If the enquiry is in violation of the provisions of the rules. The proceedings in such a case can be quashed. Reliance has also been placed on the decision of State of West Bengal vs. Nripendra Nath (7), wherein it has been held that suspension for the purpose of conducting departmental enquiry is not proper and extension of service beyond the date of compulsory retirement for this purpose is illegal. (13). The decision of Calcutta High Court in Dayanand vs. Union of India (8) has also been relied upon to show that a writ petition is maintainable even if no finality has been reached in the departmental enquiry if the High Court finds that the findings are perverse. In this case it was observed that no interference can or should ordinarily be made by the Court in writ jurisdiction against a Second Show Cause Notice because by issue of such show cause notice, no finality of the proceeding is reached. But there may be exceptional circumstances when an application against the second show cause notice may be entertained. The very basis of such interference would be total lack of jurisdiction to initiate the proceedings as a consequence whereof the second show cause notice is issued or if such notice is issued on total non application of mind or such notice issued on perverse findings arrived at in the enquiry. If the initiation of the proceedings by the issue of charge sheet is initially invalid for the reasons or particulars as above stated then the subsequent issue of the second show cause notice on the basis of such proceeding or enquiry as conducted there under would be void. (14). On the other hand, learned counsel for the respondents has submitted that the entire proceedings have been taken in accordance with law and he has relied upon that decision reported in Gh. Mohad. Dhar vs. Union of India (10) wherein it has been observed as under : — "This ground is totally misconceived. Admittedly, no cognizance of the offence was at any stage taken by any other criminal court. Mohad. Dhar vs. Union of India (10) wherein it has been observed as under : — "This ground is totally misconceived. Admittedly, no cognizance of the offence was at any stage taken by any other criminal court. The rules, called the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, framed by the Central Government vide SRO 709 dated 17.4.1952 under S. 475 of the Code of Criminal Procedure (Central Act No. 2 of 1974) which corresponds to S. 549 of the old Code had, therefore, no application to the case. On the other hand, S. 125 of the Army Act gave an upper hand to the G.O.C. to decide as whether the petitioner should be tried by an ordinary criminal court or by a Court Martial. He decided to have him tried by a Court Martial. His decision is, therefore, unassailable. In the result this ground also fails." (15). It has further been submitted that unless there is conflict of jurisdiction, the power under Sec. 125 is not to be interpretated in a manner that there must be a discretion of the authority. It is the decision of the Commanding Officer which is the paramount and no right has been conferred on the petitioner for trial. He has not been given option. In order to maintain discipline and for speedy trial, the Army Act and the rules framed thereunder provide sufficient machinery which in itself is a self sufficient code. It has further been submitted that the M.P. High Court in Gopinathan Vs. State of M.P. (11), has interpreted the word charge and has held that the expression charge has been used both in the Army Act as well as in the Code of Criminal Procedure in two senses, viz. as meaning accused or charge sheeted i.e. formally accused by the drawing up of a written accusation. Whether it has been used in one sense or the other has to be gathered by considering the context in which it has been used. It was held that in S. 69 of the Army Act it has been used in the sense of accused and not in the sense of charge sheeted. Whether it has been used in one sense or the other has to be gathered by considering the context in which it has been used. It was held that in S. 69 of the Army Act it has been used in the sense of accused and not in the sense of charge sheeted. If charged therewith under this section occuring in S. 69 of the Army Act, therefore, means if an offence which is an Army Act offence because of the legal fiction created by S. 69." It has further been observed in this case that it is in the interest of the Army discipoline that a charge against an Army personnel is investigated and tried with expedition and that the somewhat dilatory procedure of the ordinary criminal court is avoided. It has also to be borne in mind that a Court Martial can so regulate its procedure as to best subserve the interest of the Army, while the procedure before the ordinary criminal court can be abused by a person subject to the Army Act as to destroy the Army discipline. For instance, take the case of an army personnel who is on orders of immediate transfer which he is interested in avoiding. All that he has to do is to get a criminal complaint filed against him in an ordinary Criminal Court of a civil offence. In spite of the fact that the civil offence is deemed to be an Army Act offence under S. 69 of the Army Act, if the contention of the learned counsel for the non-applicant be correct, it cannot be sent for trial to a Court Martial from the court" of the Magistrate where the complaint was filed, unless and until the charge has been investigated or framed against him under the Army Act. This would result in successfully avoiding his transfer which could never have been intent of the Army Act and Sec. 549 of the Code of Criminal Procedure which are specifically designed to avoid the conflict of jurisdction in such a situation. (16). The decision of this court in Capt. This would result in successfully avoiding his transfer which could never have been intent of the Army Act and Sec. 549 of the Code of Criminal Procedure which are specifically designed to avoid the conflict of jurisdction in such a situation. (16). The decision of this court in Capt. Paramjeet Singh vs. Union of India (11), has also been relied upon to show that in a writ petition under Article 226 of the Constitution, the court will ordinarily not interfere with the proceedings of G.C.O. or any action taken in connection with convening of G.C.M. by issuing a writ before the finalisation of the proceedings. The court may interfere if it finds that very initiation of the proceedings is without jurisdiction. The observation has been made in this case that the court can interfere where initiation of proceedings is without jurisdiction as held in the case of Chief of Army Staff vs. Maj. Dharampal Kukerety (13), wherein it was held by the Apex Court as under : — "If the respondents contention with respect to the jurisdiction of the Chief of Army Staff to issue the said notice were correct, the respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the respondent would have them suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the courts protection. If on the other hand the Chief of the Army Staff had the power in law to issue the said notice it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature." In an unreported case of Krishnamoorty M.K. Brig. vs. G.O.C. ATNK and K Area (13), the Madras High Court held that the specific invokation of Section 123 meant that for all legal purposes and aident the petitioner had not retired. (17). vs. G.O.C. ATNK and K Area (13), the Madras High Court held that the specific invokation of Section 123 meant that for all legal purposes and aident the petitioner had not retired. (17). This court has also considered this aspect in the case of Hari Narain vs. Union of India (14) and has held that Section 123 envisages that the proceedings having been initiated once will continue even after retirement in view of the specific provisions contained in Section 123(1). (18). I have considered over the matter. The power under Article 226 ,of the Constitution which could be exercised in the present case has been considered by the Supreme Court in S.N. Muktiarjee vs. Union of India (15), as under: - "Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of Army Forces. Article 33 empowers the Parliament to make law determining the extent to which any of the rights conferred by Part III shall, in their application totalmembers of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause. (2) of Article 136 the appellate jurisdiction of this court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any court of tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over, any court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of Courts Martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution of India or if the said proceedings suffer from a jurisdictional error of any error of law apparent on the face* of the record." (19). Now the various grounds which have beep raised by the learned counsel for the petitioner are being considered in the light of the submissions of the respective parties arid the law, I. Whether the trial of the petitioner could be by Civil Authorities or. under the Court Martial? (20). From a perusal of the various provisions of the Army Act, it is evident that when the offence is committed by an Officer, then the said Act has categorised the offences, in 3 categories, namely (i) certain offences are to be tried by Court Martial under the Army Act exclusively e.f. mutiny, desertion, absence without leave etc., (ii) other offences are exclusively triable by the ordinary criminal courts, e.g. murder/culpable homicide/rape of civilian; and (iii) there are certain offences which are triable by ordinary Criminal Courts as well as by Court Martial.In respect of IIIrd category mentioned above, both the courts have concurrent jurisdiction. Section 549 (1) of Cr.P.C. resolves the conflict of jurisdiction. The provision refers to the initial jurisdiction to take cognizance of the case, which could be possible only when a complaint is filed or the cognizance thereof is taken by either of the two authorities, namely the ordinary Criminal Court or the Court Martial. This matter was, considered by the Apex Court in Superintendent & Legal Rememberancer vs. Usha Ranjan (16), wherein it was held that it is evident that the ordinary criminal courts would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the rules have not been complied with. The initial lack of jurisdiction to take cognizance and try the accused would be the logical necessity vitiating the trial and the order of conviction and the sentence would be liable to be quashed as a result thereof. In this case, the question was with regard to jurisdiction of ordinary criminal court and the jurisdiction could have been acquired by the said court only by following the procedure laid down in the Rules. (21). In this case, the question was with regard to jurisdiction of ordinary criminal court and the jurisdiction could have been acquired by the said court only by following the procedure laid down in the Rules. (21). The provisions of Section 125 which are applicable in a case where a criminal court or a Court Martial are having concurrent jurisdiction, then it is in the discretion of the Officer Commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide as to which court the proceedings shall be instituted and if that officer decides that they should be instituted before Court Martial, to direct that the accused person shall be detained in military custody.. In this case after reading over the charge on 3.03.1993 to the petitioner by the Commanding Officer, a message was sent to the Core Head Quarters arid advise was given by the Core Head Quarters to take action as under : (i) Section 123 of the Army Act which requires to be done will be done a day prior to the date of retirement of accused, (ii) S. 123 will be invoked by the CO of the Unit of accused. The CO will be informed on March 30th, (iii) The procedure as laid down in Army Head Quarters letter no. 01G86/AG/DV-1 dated 14.12.90 was advised to be strictly complied with; (iv) Confirmation by SIG after invoking Army Act Sec. 123 with copy to all concerned as stated in above fetter, (v) 12 Infantary Division to provide guard of IJCO, 2NCO and 6 other ranks to ensure safe custody of accused. The guard to be provided to 61 Sub Area on the request being required. The guard will be attached with 61(1) Sub Area till finalisation of case. According to the scheme of S. 125, the question of application of mind would arise after hearing of charge and summary of evidence and threafter the matter is referred to the Independent Brigade. This means compliance of Rules 22, 23 & 24 of the Army Rules have to be made. If the Sub Area Commandar of the Independent Brigade; which is in the present case is 61 Independent Sub Area is satisfied with the report & evidence sent to him, then he has to. pass order for trial by the Court Martial. This means compliance of Rules 22, 23 & 24 of the Army Rules have to be made. If the Sub Area Commandar of the Independent Brigade; which is in the present case is 61 Independent Sub Area is satisfied with the report & evidence sent to him, then he has to. pass order for trial by the Court Martial. The jurisdiction u/s 125 refers to the initial jurisdiction as has been interpreted by Apex Court in AIR 1972 SC 254 , wherein it has been observed that the word jurisdiction in Sec. 125 really signifies the initial jurisdiction to take cognizance of a case to put it in other words, it refers to the stage in which the proceedings are instituted in a court or not, the jurisdiction of original criminal court arid the Court! Martial is to decide the case on merits. From the above position of law, it is evident that the respondents have already referred the matter to 61 Independent Sub Area, which is equivalent to Independent Brigade as specified u/s. 125 and that authority shall take decision whether offence which appears to have been committed should be tried by Court Martial or by ordinary criminal court. That stage has yet to come and, therefore, at the stage of invoking provisions of s. 123 it is not necessary that firstly there should be the decision u/s 125 to try the Army Officer by Court Martial. If this view is taken then it would mean that hearing of charge & summary of evidence has no value and the mind in made earlier before hearing of charge & summary of evidence that on offence has been committed and is to be tried. In order to apply the principles of natural justice, the proceedings required to be taken for hearing of charge & summary of evidence after invoking provisions of s. 123 vide safe guard and a decision has to be taken by the CO. of Independent Brig. Thereafter of s. 125 as to where the case is to be tried, and it has been submitted by the learned counsel for respondents that papers have already been sent and therefore, I do not find any irregularity or illegality committed in this respect. of Independent Brig. Thereafter of s. 125 as to where the case is to be tried, and it has been submitted by the learned counsel for respondents that papers have already been sent and therefore, I do not find any irregularity or illegality committed in this respect. (22) The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 which have been framed under Section 475 of the Cr.P.C. provides that a person subjected to military law is brought before a Magistrate and charged with the offence for which he is liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the court of Sessions unless (a) he is moved to that effect by a competent military authority and (b) he is of the opinion of the reasons to be recorded that he should so proceed without being moved thereto by such authority. (23). Rule 3 comes into play when a person is brought before a Magistrate and charged with the offence. Rule 4 requires a written notice to the Commanding Officer of the accused. Section 127 refers to even a case where a person has been convicted or acquitted by a Court Martial, may with the previous sanction of the Central Government be tried by a criminal court for the same facts and there is no violation of the provisions of Article 20 of the Constitution in such a case, as Section 127 of the Army Act has been enacted in pursuance of the powers conferred by Article 33 of the Constitution. If the matter has not gone to the criminal court or by Court Martial, it is the discretion of the Officer Commanding the Army, Army Corps, Division or independent Brigade in which the accused person is serving or such other officer as may be prescribed to decide as to which court the proceedings should be instituted. (24). In the above context, learned counsel for the petitioner has submitted that the petitioner was on deputation and has relied upon the decision of Delhi High Court in N.C. Rastogi vs. Union of India (17), wherein it has been held that the Army Welfare Housing Organisation registered under the Societies Registration Act, 1986 is not an instrumentality or agency of Government. This decision has no application to the facts of the present case. This decision has no application to the facts of the present case. The order of posting dated 24.02.1989 which has been produced before this court, refers to posting and not to deputation. Besides this, a copy of the letter dated 1.11.1985 has also been submitted which reads as under : "To, The Chief of the Army Staff, New Delhi. Subject : FILLING UP THE POSTS OF ARMY OFFICERS IN AWHO ON TENURE BASIS. Sir, I am directed to say that the question of filling up of various posts in-AWHO, which are manned by the Army Officers on deputation has been under consideration of the Government for some time. The President is now pleased to decide that the posting of Army Officers to the AWHO will be on ERE attachment instead of on deputation. 2. In view of the above decision, the following amendment may be carried out in this Ministrys letter no. 33262/AWHO/MS/3B 1708- II/D (Pay/- Service), dated 11.5.1982, as amended from time to time :– "For the term Deputation, wherever occuring Read Extra Regimental Employment attachment 3. The above amendment will come into force from the date of issue of this letter. 4. This letter issues with the concurrence of the Ministry of Defence (Finance) vide their U.O.Ke.2263-PS of 1985. Yours faithfully, Sd/- Under Secretary to the Govt. of India (Tel : 3012739)" From a perusal of the above letter, it is evident that the petitioner was on deputation and the posting has to be considered as Extra Regimental Employment Attachment. It was only before this order that the persons were considered on deputation, but since 1985 it could not be considered that the petitioner was on deputation and, therefore, the contention of the learned counsel for the petitioner in this regard has no force and the Regulation 409 of the Defence Service Regulations is not applicable. II. Whether power under Section 123 could be invoked? (25). The exercise of power to detain the petitioner under Section 123 could be exercised where a person is to be tried and punished for an offence. (26). The provisions of Section 123 are applicable to a person who has committed offence under the Act while he was subject to the Act and ceased to be so. (25). The exercise of power to detain the petitioner under Section 123 could be exercised where a person is to be tried and punished for an offence. (26). The provisions of Section 123 are applicable to a person who has committed offence under the Act while he was subject to the Act and ceased to be so. A deeming fiction has been created by this section for application of the provisions of this Act by considering that while trying and punishing for the offence it shall be deemed as if he is continuing to be subject to the Act. The provisions of Section 123 can be invoked on there being a prima facie satisfaction of the authority that an offence had been committed. Section 101 is to be exercised when both these conditions are fulfilled whereas, for invoking Section 123 prima facie satisfaction of the authority is sufficient without there being a requirement of the charge. The object of Section 123 is to cover those persons in order to maintain discipline in the Army. This section is subject to number of other conditions. The power to detain a person is on fulfillment of the conditions mentioned in the Section. The submission of the learned counsel for the petitioner that power under Section 123 could not have been exercised as the petitioner was discharged on 2.04.1993 with all benefits or retirement benefits and even a certificate was issued to him in this respect. The relinquishment of the charge was submitted and, therefore, the provisions of Section 123 could not have been invoked. The contention of the learned counsel for the petitioner has no force because the proceedings before the Court Martial itself is a disciplinary proceeding and the language, which has beea used in the order dated 30.03.1993 that the provisions of Section 123 are invoked to finalise the pending disciplinary case is not illegal. The entire proceedings which are taken by the Court Martial are win the category of disciplinary proceedings and, therefore, for use of the Words disciplinary proceedings no. objection can be raised. Similarly, by issuing a discharge certificate, it could not be said that action under Section 123 cannot be taken. The provisions of this section contemplate taking of action within a period of three years and that period had not expired and, therefore, action could not be said to be without jurisdiction. (27). objection can be raised. Similarly, by issuing a discharge certificate, it could not be said that action under Section 123 cannot be taken. The provisions of this section contemplate taking of action within a period of three years and that period had not expired and, therefore, action could not be said to be without jurisdiction. (27). The action with regard to invoking of provisions of Section 123 instead of Sec. 101, I am of the opinion that this contention has also no force because if the authority has an inherent jurisdiction, then mentioning of even a wrong section would not vitiate the proceedings. The proceedings have to be read as initiated under Section 101 read with section 123 of the Act. A similar question had arisen in an unreported judgment of Madras High Court in the case of Brig. A.K. Malhotra vs. Union of India (18), where also the petitioner was to retire on 31.05.1990 and the provisions of Section 123 of the Army Act were invoked on 30.05.1990 to finalise the pending disciplinary proceedings. An objection was taken that power under Section 123 of the Army Act could be invoked only during pendency of trial and not thereafter. It was held that once section 123 of the Act is invoked a proceeding is commenced before retirement of an officer can be continued. III. Whether power under Sec. 123 of the Act could be invoked without recording summary evidence? (28) In this regard an objection has been taken that after recording of summary evidence the Commanding Officer has to apply his mind in accordance with the provisions of Rule 24. Since that stage has not come nor has been brought on record or challenged before this court, I would not go into this question as to whether there is an. application of mind by the Commanding Officer or not. It has also been submitted that the summary of evidence, according to the provisions of rule 23 could not be recorded as the contractor has not come and in the absence of recording of summary of evidence the proceedings could not be taken and nothing has been shown that an offence has been committed. It has also been submitted that there is no material for prima facie satisfaction that offence has been committed because after recording of summary of evidence, satisfaction has to be recorded under Rule 24. It has also been submitted that there is no material for prima facie satisfaction that offence has been committed because after recording of summary of evidence, satisfaction has to be recorded under Rule 24. The proceedings under rules 22 to 24 have to be taken only after power under Sec. 123 has been exercised and it is not vise versa. For detaining an officer and the time of retirement the only prima facie satisfaction that an offence has been committed, is the only requirement, it does not include that the procedure for recording of summary of evidence as contemplated in Rules 22 to 24 has to be first complied with and only then power under Sec. 123 could be exercised. If that interpretation is taken then it may frustrate the very object for which the provisions of Sec. 123 have been enacted. Thus this contention of the learned counsel for the petitioner has no force. IV. Whether charge sheet was required to be given or was only to be read over under rule 22? (29). Rule 22 of the Army Rules 1955 provides procedure in which after hearing the charge, it has to decide as to whether the charge ought not be proceeded further or ought to be proceeded further, then a procedure has been given for that. Rule 25 gives an option to an officer for application of the provisions of Rules 22 and 23. If an officer requests the compliance of the said provisions, then only the procedure has to be followed and otherwise in the absence of request, not following the compliance of rules 22,23 and 24 would not vitiate the trial. (30). Attention was also invited by the learned counsel for the petitioner with regard to the contents of Chapter VI of Mannual of Military Law, Vol. I, wherein under clause (3) it was provided that though a wide power of trial by Court Martial is given, it is not as a rule expedient to exercise the power universally. (30). Attention was also invited by the learned counsel for the petitioner with regard to the contents of Chapter VI of Mannual of Military Law, Vol. I, wherein under clause (3) it was provided that though a wide power of trial by Court Martial is given, it is not as a rule expedient to exercise the power universally. It has also been provided that as a general rule it is desirable to try by a civil (criminal) court a civil offence committed by a person subject to Army Act if the offence is one which relates to the property or person of a civilian or is committed in conjunction with a civilian, or if the civil authorities intimate a desire to bring the case before a Civil Court. It has also been mentioned that certain civil offences e.g. complicated frauds, are not suitable for trial by Court Martial and it would be better if they are relegated to the civil court as should also any case where intricate questions of law are likely to arise. According to the submission of the learned counsel for the petitioner, since the matter relates to the alleged fraud and intricated questions are likely to arise, therefore, the discretion has not properly been exercised. (31). Firstly, I would like to mention that the Mannual is not having the statutory force, inasmuch as these instructions are not the part of the Army Act or the Rules framed thereunder and, therefore, cannot over ride the provisions of the Act or the Rules. Secondly, the said provision does not exclude the jurisdiction or making trial by a Court Martial as illegal on that account. It is only advisory in character. The discretion of the authorities have to be exercised in accordance with the Army Act and the Rules framed there under. If the Criminal Court considers that proceedings ought to be instituted before it then it may require the Military authority to deliver the offender or to post-pone the proceedings pending, a reference to the Central Government, except for all civil offences as specified under Sections 69 and 70, the Court Martial can try all other civil offences and the Act does not prohibit or makes the exercise of jurisdiction as invalid on the ground that it could be exercised by a criminal court. V. Whether the provisions of Section 123 after a person ceased to be subject to this Act? (32). It has been submitted by Mr. Lodha, learned counsel for the petitioner that the Commanding Officer has no jurisdiction since the petitioner has ceased to be subject to the Act after his retirement and the provisions of Section 123 does not bring all provisions of the Act applicable. According to the submission of the learned counsel for the petitioner, it is only the deeming provision to invoke the machinery for trial and punishment and there could not be any Commanding Officer for a person who has retired from Army. Reliance has been placed on In re A.A. Paul (19), wherein it was held by the Madras High Court that if a person has retired from service, he is deemed to continue to be subjected to Army Act under Section 123. It was held in this case that the very words relied on by the learned counsel clearly indicate that the accused contemplated under that Section is really not subject to Army Act, but the procedure for the trial of such person should be the same as in the case of a person who is still subject to the Army Act. While referring the provisions of the rules of the Central Government, it was observed that there could be no Commanding Officer of a retired person. On the basis of this judgment that the learned counsel has submitted that in the case of the petitioner also there could not be any Commanding Officer after his retirement and, therefore, there could be no trial by the Court Martial. I am afraid, the submission of the learned counsel for the petitioner is not in accordance with law. The law cannot be interpreted in a manner so that the provisions of any particular section may become otiose or ineffective. Firstly, the judgment which was relied upon was of a case where jurisdiction was exercised by a Criminal Court in respect of an offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 and the cognizance was already taken by the Magistrate secondly by deeming fiction all the provisions of the Act will be applicable. VI. Whether the constitution of Court of Inquiry was in accordance with law or not? (33). VI. Whether the constitution of Court of Inquiry was in accordance with law or not? (33). It has been submitted that the constitution of Court of Inquiry is also not in accordance with law, inasmuch as no material was produced and the provisions of Regulation 519 of the Defence Service Regulations have not been complied with and that it is a matter with regard to financial irregularity. No enquiry for tentative charge has been made and there is no definite charge and no summary of evidence has been recorded before 31st March 1993. These contentions of the learned counsel for the petitioner have also no force, inasmuch as the enquiry which is contemplated cannot be said to be only with regard to the financial irregularity. Regulation 519 is applicable where irregularity has to be found from the books of accounts and the same pertains to the finances. It is in these circumstances that an officer of the Defence Accounts Department is required to be appointed to assist the Military Court of Inquiry. The present enquiry, prima facie cannot be considered to be only with regard to any financial irregularity committed by the petitioner and the provisions of Regulation 519 have no application. No other infirmity has been pointed out or established with regard to constitution of Court of Enquiry and it is only the stage of enquiry. Therefore, the question of any definite charge or having summary of evidence earlier than the court of Inquiry does not arise. Therefore, this contention of the learned counsel for the petitioner is also rejected. (34). Even in the case of Major G.S. Sodhi vs. Union of India (20), the enquiry under rules 22 to 25 was considered to be a preliminary step meant for gathering of evidence and when tentative charge sheet was not even signed, it was held that accused was not prejudiced as the final charge sheet was duly signed. VII. Whether there is any violation of the provisions of Regulation 401 of the Defence Service Regulations? (35). It is submitted by the learned counsel for the petitioner that there was no delivery of charge in accordance with Regulation 401 of the Defence Service Regulation and therefore, the detention of the petitioner after 72 hours is illegal and all officers who were responsible for it have committed offence under Section 50 of the Army Act. (35). It is submitted by the learned counsel for the petitioner that there was no delivery of charge in accordance with Regulation 401 of the Defence Service Regulation and therefore, the detention of the petitioner after 72 hours is illegal and all officers who were responsible for it have committed offence under Section 50 of the Army Act. This contention of the learned counsel for the petitioner has also no force, inasmuch as Regulation 401 requires delivery of charge not to the officer against whom the action is to be taken but to the officer under whose custody the offender is committed and, therefore, so far as the petitioner is concerned, reading over of the charge by CO is a sufficient compliance and it could not be said that any of the respondent is guilty of an offence under Section 50 of the Act for detaining the petitioner. (36). Mr. Lodha, learned counsel for the petitioner has then submitted that the contract entered into by the Contractor for construction of buildings is not subject to Army Act. This contention has also no force because it is not the validity or the scope of the contract, which have to be examined in this writ petition. It is only the order dated 30.03.1993, which has to be examined as to whether the respondents have the authority or jurisdiction to invoke the provisions of Section 123 of the Act. This contention, therefore, has no force. (37). Learned counsel for the petitioner has further submitted that the arrest of the petitioner has been made under policy as mentioned in the reply and not in accordance with law. The word policy cannot be considered to be devoid of law and it has to be seen as to whether the arrest was in accordance with law or not and simply because the respondents in the reply has mentioned that arrest was on account of policy, it could not be said that it was not in accordance with law. The words arrest under policy means that the policy under law under which the authorities exercise and thus it could not be considered that the arrest itself is illegal. The words arrest under policy means that the policy under law under which the authorities exercise and thus it could not be considered that the arrest itself is illegal. Learned counsel for the petitioner has further submitted that in accordance with M.I.M. L.I, Chapter III, the arrest should not be ordered as a matter of practice and the 4 factors should have been taken into consideration, namely, that the offender is likely to abscond or to harm himself or to temper with the prosecution witnesses or evidence or the offence is of serious nature. This mannual has only provided the guidelines and it was no where required that these factors should have been recorded while arresting person under Section 101 or 123. Learned counsel has referred to the decision of the Apex Court in Prithi Pal Singh vs. Union of India (21), wherein it was held that a person subject to Army Act is not ceased to be a citizen of India. It was further held that when offence is committed . and a trial by General Court Martial is held, there is no provision which requires that a Court of Inquiry should be set up before trial is directed. (38). It has also been submitted that in accordance with the provisions of Rule 34 of the Army Rules, 1954 the accused before he is arraingcd shall be informed of every charge for which he is to be tried and copy of charge along with evidence has to be given. Since this stage has not yet reached, I am not required to adjudicate upon this point. (39). An objection has also been taken by the learned counsel for the respondents that on 6.4.1993 that petitioner was required to file an affidavit that he was neither heard nor tentative charge sheet was read over to him and in the garb of said directions, an affidavit containing so many facts which are neither disputed nor agitated in the writ petition have been stated and, therefore, they are not to be looked into or considered without there being any prayer in the writ petition. Learned counsel; for the respondents has submitted that in the case of Gh. Mohd. Learned counsel; for the respondents has submitted that in the case of Gh. Mohd. Dhar vs. Union of India (supra), it has been held by the Jammu & Kashmir High Court that where cognizance of the offence has not been taken by the Criminal Court at any stage, the provisions of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 are not applicable. According to him it is only when cognizance is taken by a criminal court that a question of dispute of jurisdiction would arise. (40). A copy of General Conditions of contract has also been submitted in which under Clause (i) it has been mentioned that the assets being created under this contract as stipulated in the schedules will be the property solely belonging to the employer. The ownership of the site and property will solely vests with the Employer through out the performance of this contract from the beginning upto its completion or determination or termination or cancellation and beyond. The use of site or the assets under construction or part thereof by the Contractor is purely to facilitate his performance under the contract and does not confer on him the right of possession of tenancy. (41). Clause 56 of the Contract reads as under : "CARE AND CUSTODY Materials required for the works, whether brought by the Contractor or supplied by the employer shall be stored by the Contractor only at places approved by the Architect/Project Manager, storage and safe custody of materials shall be at the risk and responsibility of the Contractor. The Contractor shall be liable for any loss or damages to such materials due to the neglect, theft or fire and shall make good at his cost and expense." (42). On the basis of Clause 56, it has been submitted that the primary responsibility is of the Contractor and, therefore, no action could be taken against the petitioner. I am afraid the contention raised by the learned counsel cannot be accepted as under clause (1) the property was in the ownership and possession of the employer. On the basis of Clause 56, it has been submitted that the primary responsibility is of the Contractor and, therefore, no action could be taken against the petitioner. I am afraid the contention raised by the learned counsel cannot be accepted as under clause (1) the property was in the ownership and possession of the employer. It was only in order to make the Contractor also liable for such provision was made, but the fact remains that even in Clause 107, the advances and first instalment and the second instalment have to be made by the employer and even in respect of the material lying at the site, the payment has to be made. Where a question with regard to fabrication of the purchase voucher is involved and the material is also found short and an enquiry is in progress then it would not be proper for this court to observe in respect of all these matters. There was sufficient material to form belief before a decision is taken that the petitioner has to be tried by a Court Martial under Section 125 of the. Army Act for invoking the power under Section 123 of the Act, which have rightly been invoked. If the view as the learned counsel for the petitioner has tried to convince is taken that if a person ceased to be in employment then there cannot be any Commanding Officer and therefore, the entire proceeding is void ab initio, that would not be in accordance with law. The petitioner was taken in custody in accordance with the order dated 30.03.1993, a day before his retirement when he was in service and therefore, he was subject to the Act and in accordance with the provisions of Rule 197-A an officer which has been prescribed under Section 125 of the Act is the Officer Commanding the Brigade or Station in which accused person is serving. (Except in cases falling under Sec. 69 of the Act.) (43). The charges were read over by the Commanding Officer on 3.03.1993. A copy of the charge sheet was not supplied to him as under the law the respondents were not under an obligation to serve a copy at that stage. (Except in cases falling under Sec. 69 of the Act.) (43). The charges were read over by the Commanding Officer on 3.03.1993. A copy of the charge sheet was not supplied to him as under the law the respondents were not under an obligation to serve a copy at that stage. The petitioner was asked as to whether he wants any witness to be called for or against him, but it was submitted that he does not require any witness to be, called at this stage and he has signed in the proceedings to this effect. (44). The summary of evidence was directed by the Commanding Officer IC 13894 Brig. Mohan Singh in accordance with the provisions of the Army Act and the Rules framed thereunder. (45). From the various discussions made above, I am of the view that the proceedings were taken in accordance with law with regard to Court of Enquiry as well as summary of evidence and the provisions of Section 123 of the Army Act were rightly invoked. The petitioner has no right to claim that he should be transferred to civil authorities as no option has been given under the Act to him. The summary of evidence has already been completed and submitted to the Commanding Officer and the matter has been informed to have been forwarded to the Head Quarters 61 (INDEP) Sub Area for trial by the Commanding Officer. The Court of Enquiry was ordered on 15.12.1992 and has been completed on 30.03.1993. The Court of Enquiry has been forwarded to Head Quarters 12 Corps, and the recording of summary of evidence is said to be in progress. The petitioner will have an opportunity after a final order is passed against him if there is any violation of the provisions of the Act or the Rules or otherwise by filing an appeal. No case for interference by this court in the extra ordinary jurisdiction under Art. 226 of the Constitution of India is made out to quash the order of detention of the petitioner by invoking power under Sec. 123 or the Court of Enquiry or summary of evidence. (46). The result of the above discussion is that this writ petition fails and is herebvy dismissed. (47). No order as to costs.