Mahesh Kumar Sanga v. Union of India — 1998 DIGILAW 238 (CAL)

JUDGMENT 1. The petitioner, who is at present posted as Deputy Assistant Director, Military Farms, Headquarters, Eastern Command, in the rank of Lieutenant Colonel (Time Scale) at Fort William, Calcutta, has in this writ petition challenged the show cause notice dated 9th November, 1992, issued to him by the General Officer, Commanding-in-Chief, Central Command, and all proceedings consequent thereto, including the award of severe displeasure dated 18th December, 1992, as also the order dated 31st December, 1992, passed by the Central Government rejecting the petitioner's statutory appeal under Section 27 of the Army Act, 1950. 2. According to the petitioner, by a letter dated 4th June, 1990, he was informed by the concerned authorities that he had been approved for promotion to the rank of Lieutenant Colonel (Selection Grade). It is the petitioner’s case that inspite of such approval, he could not be posted in the said rank as there were no available vacancies and he continued in rank of Lt. Colonel (Time Scale). 3. It appears that on 21st December, 1990, the petitioner and his wife went to visit one Brigadier K.A. Patil (Since retired) at his residence in New Delhi and during his visit there was some altercation over the petitioner’s posting which ended in Brigadier Patil pulling of the petitioner’s insignias of Ashoka Lions from each of his shoulders and informing him that he had been reduced to the rank of Second Lieutenant. The petitioner thereupon left the house of Brigadier Patil and proceeded to Dehradun and the next day he made a complaint over the incident to Headquarters, Dehradun Sub-area, and sent copies of the same to various other military authorities. Subsequently, on 7th January, 1991, the petitioner affirmed an affidavit In regard to the incident of 21st December, 1990, and seat copies of the same Headquarters, Dehradun Sub-area and the various other military authorities. 4. On the basis of the petitioner’s aforesaid complaint, the General Officer Commanding, Headquarters, Delhi Area, by his convening order dated 18th February, 1991, convened a Court of Enquiry to Investigate into the incident of 21st December, 1990 By his communication of 16th April. 1991, the Convening Authority of the Court of Enquiry requested the petitioner to forward a list of witnesses to the said incident and confirm their availability to the Presiding Officer of the Court of Enquiry. 5. 1991, the Convening Authority of the Court of Enquiry requested the petitioner to forward a list of witnesses to the said incident and confirm their availability to the Presiding Officer of the Court of Enquiry. 5. Pursuant to the above, the petitioner wrote to the Presiding Officer of the Court of Enquiry and provided him with a list of names of witnesses who were required to depose before the Court of Enquiry and he also indicated that he would provide the names of additional witnesses as the enquiry progressed. According to the petitioner, he particularly mentioned the fact that his wife was available for the purpose of deposing at the enquiry and the other witnesses, as named, should also be made available for deposing before the Court of Enquiry. 6. The petitioner made a separate request for being furnished with copies of the evidence of all the witnesses who would depose at the enquiry and he expressed his willingness to bear the cost therefor in Keeping with the provisions of Rules 180 and 184(2) of the Army Rules, 1954. 7. The petitioner also sent a Bank Draft for a sum of Rs. 2,500/- for the purpose of summoning the witnesses and also agreed to incur any further expenditure for the said purpose. He also enclosed open air tickets for Colonel J.L. Kaul and Captain V.P. Singh to enable them to attend the Court of Enquiry at Delhi and to return to their respective stations. 8. Apart from the above, by his letter dated 15th June, 1991, the Convening Authority requested the Presiding Officer of the Court of Enquiry to ensure compliance with the provisions of Rule 184 read with Rule 180 of the Army Rules, 1954. 9. At this juncture it may be recorded that a preliminary objection was taken on behalf of the respondents alleging that as no part of the cause of action had arisen within the territorial limits of this Court, this Court had no jurisdiction to entertain the instant writ petition. 10. In support of such objection. Mr. D.P. Mukherjee firstly referred to and relied upon the decision of the Hon’ble Supreme Court in (1) State of Rajasthan Vs. 10. In support of such objection. Mr. D.P. Mukherjee firstly referred to and relied upon the decision of the Hon’ble Supreme Court in (1) State of Rajasthan Vs. M/s. Swaika Properties, AIR 1985 SC page 1289, wherein it was held that since no part of the cause of action had arisen within the territorial limits of this Court, It had no jurisdiction to issue a rule nisi on the petition filed under. Article 226 of the Constitution or to pass any prohibitory orders in connection therewith. 11. Mr. Mukherjee also referred to the decision of the Hon’ble Supreme Court in the case of (2) Oil & Natural Gas Commission v. Utpal Kumar Basu, 1994 (4) SCC page 711. where the principle enunciated in the Swaika Properties case (supra) was dealt with more elaborately and it was held, Inter alia, that since the averments in the petition did not disclose that even a part of the cause of action had arisen within the territorial jurisdiction of this Court, It had no jurisdiction to entertain the writ petition. It was sought to be emphasised that the mere fact that the writ petitioner resided within the territorial limits of the High Court, did not give the High Court the jurisdiction to entertain the writ petition when no part of the cause of action had arise within its territorial limits. 12. Mr. Mukherjee also relied upon two unreported decisions, one of the Allahabad High Court (W.P. No. 25846/90, (3) Lt. Col. K.C. Sinha ( Retd. ) v Union of India & Ors.) and the other of the Himachal Pradesh High Court, (C.W.P. No. 506 or 1996, (4) Brig. Malkiat Singh Dullal v. Union of India & Ors.) to which reference will be made, If required. 13. Mr. Mukherjee urged that the only ground indicated in the writ petition for moving the same. In this Court is that the order dated list December, 1993, by which the petitioner's appeal against the award of severe displeasure was rejected by the Central Government had been served on the petitioner at Eastern Command Headquarters, Fort William, Calcutta, within the jurisdiction of this Court. 14. Mr. In this Court is that the order dated list December, 1993, by which the petitioner's appeal against the award of severe displeasure was rejected by the Central Government had been served on the petitioner at Eastern Command Headquarters, Fort William, Calcutta, within the jurisdiction of this Court. 14. Mr. Mukherjee urged that, as had been held both in the Swaika Properties case (supra) as also the Oil and Natural Gas Commission case (supra), mere communication of the said order within the jurisdiction of this Court would not give rise to a cause of action for moving the writ petition in this Court. 15. Opposing the preliminary objection taken on behalf of the respondents, Mr. A.P. Sircar submitted that such objection could hardly be said to be a preliminary objection as it had been taken only when the writ petition was taken up for final hearing. Mr. Sircar urged that no objection as to the jurisdiction of the Court to entertain the writ petition had been taken when the writ petition was Initially moved in 1994, and the respondents had also suffered an interim order in respect whereof a contempt proceeding had also been taken end disposed of. 16. Mr. Sircar submitted that in the above circumstances the respondents should not be allowed to take such an objection at the time of final hearing of the writ petition after an interval of four years. 17. Referring to the Swaika Properties case (supra) cited on behalf of the respondents, Mr. Sircar submitted that in the facts of the said case relating to a landed property situated on the outskirts of Jaipur city the Hon’ble Supreme Court was satisfied that the cause of action had not either wholly or in part, arises within the territorial limits of this Court. 18. Mr. Sircar submitted that the Hon’ble Supreme Court had taken note of the definition of the expression “cause of action” in Mulla’s "Code of Civil Procedure" in the following terms :- "The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.” 19. In the said perspective, the Hon’ble Supreme Court had explained the expression 'cause of action’ to mean a bundle of facts which taken with the law applicable to them, gives the plaintiff Bright to relief against the defendant. 20. Mr. In the said perspective, the Hon’ble Supreme Court had explained the expression 'cause of action’ to mean a bundle of facts which taken with the law applicable to them, gives the plaintiff Bright to relief against the defendant. 20. Mr. Sircar submitted that the same question had been considered by a Division Bench of this Court in (5) Everest Coal Co. Pvt. Ltd. V. Coal Controller & Ors., 90 CWN page 438 and on a construction of Article 226 of the Constitution as amended, it was observed that a writ petition could be filed in a High Court within whose territorial jurisdiction the cause of action wholly or in part arises. After noting the various decisions on the said point, including that a Swaika Properties, The Division Bench, Inter alia, observed that since in the Swaika Properties case it had been pointed out that mere service of notice would not give rise to a cause of action unless service of such notice was an integral part of the cause of action, the necessary corollary was that service of such notice must give rise to an occasion for filing the writ petition. In other words, It must form part of the bundle of facts which constitutes the cause of action for filing a writ petition. 21. Mr. Sircar referred to the decision in the Oil and Natural Gas Commission case in the same vein and reiterated that service of notice, may. In a given case, give rise to a cause of action for a writ petition. 22. Mr. Sircar also referred to another Bench decision of this Court in the case of the (6) Chairman & Managing Director, Punjab National Bank & Ors. v. Dilip Kumar De, 91 CWN page 1150, wherein it was held that since the order of the Bank rejecting the petitioner's' prayer for revocation of the order of suspension was communicated to the petitioner at an address within the territorial jurisdiction of this Court, a part of the cause of action must be held to have arisen within the territorial jurisdiction of this Court. It was also observed that in Interpreting the scope and ambit of constitutional provisions, a liberal construction so far as practicable should be given. 23. Mr. It was also observed that in Interpreting the scope and ambit of constitutional provisions, a liberal construction so far as practicable should be given. 23. Mr. Sircar then contended that it was a settled principle of law that in order to be effective any order by which a person may be prejudiced or affected, must be communicated to such party. In this regard, Mr. Sircar referred to a Bench decision of this Court In (7) Commissioner of Income Tax, West Bengal III & Ors. v. Mahabir Prasad Poddar, 93 ITR page 215, where the aforesaid sentiments were also expressed and In addition It was observed that in the absence of such communication such an order could not be said to be a valid order. 24. As to the other decisions cited by Mr. Mukherjee, It was urged that each case would have to be decided on its own set of facts to which the settled principles of law would have to be applied. While in one case, mere service of an order may not give rise to a cause of action for filing a writ petition, in another case it may. 25. Mr. Sircar submitted that in the instant case the direct consequence of service of the order of the Central Government rejecting the petitioner's appeal against the award of severe displeasure, was that the petitioner was denied promotion to the rank of Lt. Colonel (Selection Grade) while posted at Calcutta within the territorial jurisdiction of this Court. 26. Mr. Sircar contended that both service of the aforesaid order of the Central Government and denial of promotion, which had been approved earlier, In Calcutta comprised part of the bundle of facts which gave rise to the cause of action for filing the instant writ petition and since part of the cause of action had arisen in Calcutta, the writ petition just be held to be maintainable In this Court. 27. Replying to Mr. Sircar's submissions, Mr. Mukherjee urged that a question of jurisdiction, being a point of law, could be raised at say time before the final disposal of the writ petition, and the writ petition could not be maintained in this Court if even at the time of final hearing it was discovered that this Court had no territorial jurisdiction to entertain the writ petition. 28. In support of his submission, Mr. 28. In support of his submission, Mr. Mukherjee referred to a decision of this Court in the case of (8) Anil Kumar Roy v. Mansanath Shaw, AIR 1975 Calcutta page 293 and a decision of the Rajasthan High Court in (9) Smt. Jeevani Bano v. Smt. Asha Arora &Ors. AIR 1997 Rajasthan page 261 where It was observed that since the Question of jurisdiction goes to the very root of the Court’s jurisdiction to entertain a matter, an objection in respect thereof could be taken as any time before the final disposal of a matter and even at an appellate stage during the pendency of the appeal. 29. Since the objection relating to Jurisdiction goes to the very root of the competence of this Court to entertain and dispose of the writ petition such objection may be moved before the final disposal thereof and it is only proper that such objection be disposed of first. 30. The subject matter of challenge in the writ petition is the proceedings of the Court or Enquiry and all consequential orders arising out of the said proceedings. Pursuant to the findings of the Court of Enquiry the petitioner was asked to show cause as to why administrative action in the form of award or suitable censure by the GOC-in C, Central Government, should not be taken against him for making raise 'allegations and using intemperate language against his Senior Officer. Thereafter, the petitioner was awarded a censure against which he preferred a statutory appeal to the Central Government. The decision or the Central Government rejecting his appeal was served on his within the territorial jurisdiction of this Court, and the same is also the subject, matter at challenge in the writ petition. 31. In fact, the order of the Central Government dated 31st December, 1993, can be said to be the Immediate cause for the filing of the writ petition and would in this case constitute a portion of the bundle at facts which comprises the cause of action for the writ petition. The same having been served on the petitioner in Calcutta in my view, it must be held that a part of the cause of action for this writ petition arose within the territorial limits of this Court and the writ petition is, therefore, maintainable in this Court. 32. The same having been served on the petitioner in Calcutta in my view, it must be held that a part of the cause of action for this writ petition arose within the territorial limits of this Court and the writ petition is, therefore, maintainable in this Court. 32. The fall out of the aforesaid order on the petitioner’s changes of promotion, which had been approved earlier, is also another ground which has been taken by the petitioner for filling the writ petition and which must also be take to form part of the bundle of facts giving rise to the cause or action for the instant writ petition to be filed in this Court. 33. On the merits of the case it has been submitted by Mr. A.P. Sircar that the Court or Enquiry had been convened to enquire into the petitioner's complaint is relation to the Incident of 21st December, 1990. and on being asked to supply his list of witnesses, the petitioner duly supplied such list to the Presiding Officer of the Court of Enquiry by his letter of 30th April, 1991, and the same included the petitioner’s wife and the wife and daughters of Brigadier K.A. Patil. 34. Mr. Sircar also referred to the letter dated 15th June, 1991 written on behalf of the Convening Authority in relation to the Court of Enquiry, wherein the attention of the concerned authority was drawn to the provisions of Rules 180 and 184 of the Army Rules and the said authority was directed to ensure compliance therewith. 35. Mr. Sircar then referred to another communication dated 18th July, 1991, written on behalf of the Convening Authority to the Presiding Officer of the Court of Enquiry, directing that the statements or the witnesses indicated therein including Mrs. K.A. Patil and Mrs. M.K. Sanga, were to be recorded and that the petitioner should be given fully opportunity to cross-examine the said witnesses within the provisions of Rule 180 of the Army Rules. 36. Referring to Rule 179 of the Army Rules, 1954, Mr. K.A. Patil and Mrs. M.K. Sanga, were to be recorded and that the petitioner should be given fully opportunity to cross-examine the said witnesses within the provisions of Rule 180 of the Army Rules. 36. Referring to Rule 179 of the Army Rules, 1954, Mr. Sircar urged that the same provides that the Court of Enquiry is to be guided by the written Instructions of the authority who assembled the Court, but that in the Instant case the Court of Enquiry violated the said provisions as the statements of none of the witnesses indicated in the communication of 18th July, 1991, had been recorded and as a result the petitioner was also not given an opportunity to cross-examine them. 37. In this connection, Mr. Sircar also referred to the provisions of Rules 180 and 184 of the aforesaid Rules. 38. Rule 180 prescribes the procedure to be followed by the Court of Enquiry when the character of a person subject to the Act Is involved and provides that such a person is to afforded a full opportunity or being present throughout the enquiry and making any statement and living any evidence he may wish to make or give and of cross-examination any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses In defence of his character or military reputation. 39. Rule 184 (2), Inter alia, provides that any, person subject to the Act whose character or military reputation is affected by the evidence before a Court of Enquiry shall be entitled to copies of such statements and documents as has a bearing on his character or military reputations unless the Chief of the Army Staff for reasons to be recorded by him In writing, orders otherwise. 40. Mr. Sircar submitted that the said provisions had also not been complied with by the Presiding Officer while conducting the Court of Enquiry, and the petitioner had not been provided with copies of the statements and documents required by him. 41. Mr. 40. Mr. Sircar submitted that the said provisions had also not been complied with by the Presiding Officer while conducting the Court of Enquiry, and the petitioner had not been provided with copies of the statements and documents required by him. 41. Mr. Sircar pointed out that, although, In Paragraph 13 of the Affidavit-in-Opposition It has been stated that the petitioner had been given full opportunity to cross-examine the witnesses and that the principles of natural Justice had been fully afforded to the petitioner, the same has been affirmed as being the deponent’s submission and not as being true to his knowledge derived from the records, Inasmuch as, the records would prove otherwise. 42. Mr. Sircar submitted that along with the show cause notice, the petitioner was not supplied with the findings of the Court of Enquiry, thus depriving the petitioner of a proper opportunity of showing cause. Mr. Sircar urged that the principles of natural Justice and administrative fairplay had been given a go-bye in the petitioner’s case, despite the provisions of Rules 180 and 184 of the Army Rules referred to above. 43. Mr. Sircar also contended that the proceedings taken on the basis of the show cause notice Issued to the petitioner, ultimately leading to the award of censure, stood vitiated by the fact that while the proceedings had been Initiated by the G.O.C., New Delhi Area, Western Command, the award of censure was made by the G.O.C., Lucknow Area, Central Command. 44. Mr. Sircar urged that even the statutory appeal preferred by the petitioner to the Central Government under Section 27 of the Army Act, 1950, against the award of censure was rejected without the petitioner being given an opportunity of hearing thereby rendering such appeal wholly meaningless. 45. Mr. Sircar submitted. that since the award of censure visited the petitioner with civil consequences, it was all the more reason for the respondents concerned to comply with the requirements of natural Justice and administrative fairplay and to ensure that the petitioner was given a fair opportunity of placing his case and defending his position in relation to the notice to show cause issued to him after the conclusion of the Court of Enquiry. 46. In support of his submissions, Mr. 46. In support of his submissions, Mr. Sircar referred to the decision of the Hon’ble Supreme Court in (10) Stale of Orissa v. Binapani Das reported in AIR 1967 SC page 1269, wherein it was, inter alia, observed that even an administrative order which involves civil consequences must be made consistently with the rules of natural Justice. The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet such case before an adverse decision is taken against him. 47. Mr. Sircar also referred to the decision of the Hon’ble Supreme Court in the case of (11) Nagendra Nath Bora V. Commissioner of Hills Division and Appeals, Assam, AIR 1958 SC page 398, in this context. 48. Mr. Sircar urged that by not arranging for the petitioner’s witnesses to be examined despite the directions of the Convening Authority, the Presiding Officer, Court of Enquiry had acted in violation of Rules 179(1) and 180 of the Army Rules, 1954, thereby vitiating the proceedings of the Court of Enquiry. In addition to the above, Mr. Sircar submitted that the proceedings subsequent to the Court of Enquiry had also been vitiated by denying to the petitioner copies of the findings of the Court of Enquiry which was one of the minimum requirements of the principles of natural Justice and administrative fairplay. 49. Mr. Sircar lastly urged that the statutory appeal preferred by him under Section 27 of the Army Act, 1950 had also been reduced to a farce, as the petitioner had not been given an opportunity of hearing by the Central Government before it rejected the appeal. 50. Mr. Sircar submitted that the entire proceedings, from the stage of the Court of Enquiry till the rejection of the petitioner’s statutory appeal to the Central Government, stood vitiated at every stage and were liable to be quashed along with the award of censure. 51. Replying to Mr. Sircar's submissions, Mr. Mukherjee urged that the letter of the Convening Authority dated 18th July, 1991, was written after the examination of witnessess had been concluded and there was no further scope of examining an, further witnesses. Mr. 51. Replying to Mr. Sircar's submissions, Mr. Mukherjee urged that the letter of the Convening Authority dated 18th July, 1991, was written after the examination of witnessess had been concluded and there was no further scope of examining an, further witnesses. Mr. Mukherjee urged that there was, therefore, no question of the Presiding Officer of the Court of Enquiry having violated the provisions of Rules 180 and 184 of the Army Rules, 1954, as alleged on the petitioner’s behalf. Mr. Mukherjee pointed out that the said stage of affairs had been narrated in the writ petition and would also be evident from the communication dated 23rd December, 1991, being Annexure ‘W’ to the writ petition. 52. Mr. Mukherjee submitted that it would be apparent from the records of the Court of Enquiry that the petitioner was unable to produce Mrs. M.K. Sanga as a witness when called upon to do so. As far as Mrs. K.A. Patil and her daughters were concerned, Mr. Mukherjee urged that the Presiding Officer was of the view that their evidence was not relevant for the purposes of the Court of Enquiry and he, accordingly, did not insist upon their examination at such enquiry. 53. Mr. Mukherjee urged that the Court of Enquiry convened under Rule 177 of the Army Rules was in the nature of a preliminary enquiry and could not be equated with a trial, as had been held by the Hon'ble Supreme Court in the case of (12) Major Suresh Chand Mehta v. The Defence Secretary (V.O.I.) & Ors., AIR 1991 SC page 483. 54. Mr. Mukherjee submitted that since the Court of Enquiry did not have the power to compel the attendance of civilian witnesses, it summoned and examined all witnesses who were willing to depose. 55. Referring to Smt. Binapani Das’s, case cited by Mr. Sircar. Mr. Mukherjee submitted that the principles enunciated therein could not be applied to the instant case in view of the procedure and policy regarding the award or censure in the Army as detailed in the communication at 5th January 1989, Issued by Army Headquarters, being 'Annexure 'B' to the affidavit-in-opposition affirmed on behalf of the respondents by Colonel Rajkumar Tarit Chandra Gohala on 19th January, 1995. 56. Mr. 56. Mr. Mukherjee submitted that Paragraph 15 of the said communication, dealing with the procedure for award of censure, inter alia provides that before issuing a letter of 'Displeasure' or 'Severe Displeasure', the concerned authorities would call for an explanation from the Officer concerned in the form of a ‘show cause' notice to be issued on behalf of the authority whole censure it is proposed to be awarded. The show cause notice is required to indicate the specific action proposed to be taken, and to allow the Officer concerned to prepare his reply to the show cause notice he was to be supplied with relevant papers and document except the findings and opinion of the Court and superior authority in chain. 57. Mr. Mukherjee submitted that pursuant to the above the petitioner had been supplied with the proceedings of the Court of Enquiry, except for the findings and opinion of the Court, which he was not entitled to receive. Having regard to the aforesaid policy it could not be contended that the petitioner had not been given an opportunity to give an effective reply to the show cause notice or that natural Justice had been denied to the petitioner. 58. Mr. Mukherjee then referred to the decision of the Hon'ble Supreme Court in the case of (13) K.I. Shephard & Ors v Union of India & Ors, AIR 1988 SC page 686 where the concept of natural Justice has been dealt with extensively and it was held that the rules of natural Justice apply to administrative action and that natural Justice generally requires that a person to be directly affected by certain administrative acts, decisions or proceedings be given adequate notice of what is proposed so that he may be in a position to make representations or to appear at a hearing or enquiry and to effectively prepare his own case or to answer the case he has to meet. The ultimate object of natural Justice is to ensure that the authority concerned acts fairly and the person against whom any action is proposed to be taken is given a fair opportunity to defend himself. 59. In this regard, reference was also made to the decision in (14) Byrne & Anr. v. Kinematograph Renters Society Ltd & Ors. The ultimate object of natural Justice is to ensure that the authority concerned acts fairly and the person against whom any action is proposed to be taken is given a fair opportunity to defend himself. 59. In this regard, reference was also made to the decision in (14) Byrne & Anr. v. Kinematograph Renters Society Ltd & Ors. reported in (1958) 2 All England Law Reports, Chancery Division page 579, wherein It was, Inter alia, observed that the requirements of natural Justice in a case of this kind are (b) that the person accused should know the nature of the accusation made ; (b) that he should be given an opportunity to state his case ; and (c) that the tribunal should act in good faith. 60. Reference was also made to the decision of the Supreme Court in (15) Shadi Lal Gupta v. State of Punjab, AIR 1973 SC page 1124 where similar views were expressed. 61. Mr. Mukherjee reiterated that within the framework of the policy adopted by the Army authorities, all the rules of natural Justice had been duly complied with during the Court of Enquiry and the petitioner could not have any grievance on such score. 62. Referring to the policy regarding award of censure, Mr. Mukherjee urged that the initiation of the censure proceedings by one command and the awarding of punishment by another was not in violation of but in keeping with Paragraph 7 of the said policy which provides that such award of censure could be awarded by the General Officer Commanding of a Division/Area to an Officer serving under his command or who had served earlier at the time of occurrence of the lapse. 63. Regarding the Central Government's rejection of the petitioner's prayer for revocation of the award of censure, Mr. Mukherjee submitted that as had been held by the Hon'ble Supreme Court in the case of (16) S.N. Mukherjee v. Union of India, AIR 1990 SC page 1984 the Central Government was not required to give detailed reasons for confirming the said award and rejecting the petitioner's statutory appeal under Section 27 of the Army Act. 64. Mr. Mukherjee submitted that as had been held by the Hon'ble Supreme Court in the case of (16) S.N. Mukherjee v. Union of India, AIR 1990 SC page 1984 the Central Government was not required to give detailed reasons for confirming the said award and rejecting the petitioner's statutory appeal under Section 27 of the Army Act. 64. Mr. Mukherjee urged that Section 27 of the Army Act does not make any provision for a hearing to be given to the aggrieved Officer and a decision on the complaint of such Officer is left to the Central Government which, as indicated hereinbefore, was not required to give detailed reasons for the decision to be taken by it on such complaint. 65. Mr. Mukherjee urged that the Central Government had rejected the petitioner’s prayer for revocation of the award of censure on being satisfied that in the facts of the case no interference was called for. 66. In this connection, Mr. Mukherjee also referred to and relied on another decision of the Hon’ble Supreme Court III (17) Union of India Vs. E.G. Nambudiri, AIR 1991 SC page 1216, where it was held inter alia, that although, there may not be any provision for recording reasons, the competent authority could not act arbitrarily and he was required to act in a fair and just manner and. If the representation of the Government servant concerned was rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. 67. As to the revocation of the approval earlier given to the petitioner’s appointment as Lt. Colonel (Selection Grade) Mr. Mukherjee submitted that in the case of (18) Lt. Colonel K.D. Gupta v. Union of India & Ors., AIR 1989 SC page 1393 the Hon'ble Supreme Court had observed that conditions applying to other Government servants in matters of promotion would not be applicable to defence experience, personnel, especially of the rank of Lt. Colonel, and that requisite consequent exposure and appropriate review are indispensable for according promotion. 68. Mr. Mukherjee submitted that the approval earlier given to the petitioner's promotion to the rank of Lt. Colonel, and that requisite consequent exposure and appropriate review are indispensable for according promotion. 68. Mr. Mukherjee submitted that the approval earlier given to the petitioner's promotion to the rank of Lt. Colonel (Selection Grade) had, in keeping with the policy of Special Review, as set out in Annexure 'C’ to the affidavit-In-opposition affirmed by Colonel Rajkumar Tarit Chandra Gohain, been reviewed by the authorities in the light of the subsequent events culminating in the convening of the Court of Enquiry and the award of censure to the petitioner. 69. Mr. Mukherjee submitted that since promotion cannot be claimed as a matter of right the petitioner could not claim promotion to the Post of Lt. Colonel(Selection Grade) on the basis of the approval given earlier. The petitioner could expect fair consideration for promotion in accordance with the promotion policy contained In the abovementioned Army Headquarters policy letter No. 31526/P/MS-5B dated 10th June, 1985. Mr. Mukherjee denied that the decision to grant promotion depended solely on the award of censure. Mr. Mukherjee submitted that the same would constitute one of the various factors to be considered by the Selection Board and even where promotion had been approved, such promotion would be given according to seniority and available vacancies, provided there was no drop of performance in the meantime. 70. Mr. Mukherjee urged that the petitioner's case for promotion as subjected to special review as his case was considered to be one of drop in performance and he was ultimately found to be unfit on the basis of his profile and batch merit Mr. Mukherjee submitted the, the award of censure remains on an Officer's dossier for three years and while the same does not disentitle an Officer to be considered for promotion, the same is taken into consideration by the authorities as one of the factors for the purposes of granting promotion. 71. Mr. Mukherjee lastly contended that the relief relating to promotion claimed by the writ petitioner was a departure from the prayers made in the writ petition and had been Introduced on the basis of a supplementary affidavit affirmed on 13th June, 1994. 72. Mr. Mukherjee submitted that further averments in this behalf were made in the second supplementary affidavit affirmed by the petitioner on 14th November, 1994, almost as if by way of an after thought. 73. Replying to Mr. Mukherjee's submissions, Mr. 72. Mr. Mukherjee submitted that further averments in this behalf were made in the second supplementary affidavit affirmed by the petitioner on 14th November, 1994, almost as if by way of an after thought. 73. Replying to Mr. Mukherjee's submissions, Mr. Sircar reiterated that the award of severe displeasure had been made without proper application of mind to the facts involved as the proceedings of the Court of Enquiry itself stood vitiated on account of non-compliance with the specific provisions of Rules 180 and 184(2) of the Army Rules. 74. Regarding withdrawal of promotion to the petitioner, Mr. Sircar urged that the petitioner's promotion to the post of Lt. Colonel (Selection Grade) had already been approved as far back as in June 1990, but he could not be posted in such rank as there were no vacancies available at that point of time. 75. Mr. Sircar drew the Court’s attention to the letter dated 3rd July, 1993, written on behalf of the G.O.C.-in-C. Central Command, to the Adjutant General’s Branch, Army Headquarters, being Annexure “CC" to the writ petition, wherein having regard to the fact that the petitioner had been approved for promotion, a confirmation was sought as to whether the petitioner was to be promoted to the rank of Lt. Colonel (Selection Grade) In his turn in view of the award of censure. 76. Mr. Sircar urged that on 3rd July, 1993, the petitioner should have been promoted to the rank of Lt. Colonel (Selection Grade), as such promotion must be deemed to have been notionally made when he was approved for promotion but could not be promoted because of absence of vacancies. 77. Mr. Sircar also contended that one of the reasons given for withdrawal of the approval given to the petitioner for promotion to the post of Lt. Colonel (Selection Grade) was that the award of censure remains on the Officer’s Annual Confidential Report for three years and while the same does not disentitle the Officer from being considered for promotion, It is taken into account by the authorities while considering whether promotion should be given. 78. Mr. Colonel (Selection Grade) was that the award of censure remains on the Officer’s Annual Confidential Report for three years and while the same does not disentitle the Officer from being considered for promotion, It is taken into account by the authorities while considering whether promotion should be given. 78. Mr. Sircar urged that from the affidavit affirmed on behalf of the respondents It will appear that another reason given for withdrawal of approval is that the petitioner was considered as a Special Review Case of the 1968 batch In July 1994, by the Selection Board, and such approval was withdrawn on account of the fact that there was a gap in his Annual Confidential Report of 1/91 to 3/91. 79. Mr. Sircar urged that the petitioner could not be faulted for the above as the said Reports were maintained by the respondents and it was the duty of the Army authorities to fill up the said gaps since the petitioner had submitted his Non-Initiation Report under the provisions of Special Army Order SAO 3.5.89 for the said period, namely, January 1991 to March 1991 In July 1992, for filling up the said gap. Mr. Sircar urged that the petitioner could not be penalised for the laches and negligence of the Army authorities in filing up the said gap in his Annual Confidential Report. 8. That the petitioner was approved for the purpose of promotion to the post of Lt. Colonel (Selection Grade) in June 1990, is not disputed. In the ordinary course of events the petitioner would have been promoted to the said post in his turn when vacancies became available in July 1993, but the same was denied to him as the approval initially granted was withdrawn by way of Special Review allegedly on account of the petitioner’s drop in performance, which to some extent was dependant on the award of severe displeasure awarded to the petitioner after the Court of Enquiry was held to go into the petitioner’s complaint. 81. The petitioner has questioned the manner in which the Court of Enquiry was conducted and it has been contended that Rules 180 and 184 (2) of the Army Rules had been violated by the Presiding Officer. 82. As has been Indicated hereinbefore, Rule 180 lays down the procedure when any enquiry which affects the character of a person subject to the Army Act is conducted. 82. As has been Indicated hereinbefore, Rule 180 lays down the procedure when any enquiry which affects the character of a person subject to the Army Act is conducted. In view of the nature of the complaint made by the petitioner in which the character or two Officers subject to the above Act was involved, the Convening Authority of the Court of Enquiry was anxious to ensure that there was due compliance with the provisions of Rules 180 and 184(2) of the Army Rules, as will be evident from the letter dated 15th June, 1991, written on behalf of the Convening Authority in relation to the Court of Enquiry. 83. The said position was reiterated in the letter dated 18th July, 1991, written on behalf of the Convening Authority to the Presiding Officer of the Court of Enquiry directing that the statements of the witnesses indicated in the letter were to be recorded and the petitioner was to be given a full opportunity of cross-examining them within the provisions of Rule 180 of the Army Rules. 84. There is no dispute that the statements of the persons indicated in the said letter were not recorded. It has been sought to be explained that since taking of evidence had been concluded before the said letter was received by the Presiding Officer there was no further scope for recording the statements of the witnesses indicated therein. It has been contended that as par as the petitioner's wife was concerned, an opportunity was given to the petitioner to produce her for examination, but he failed to do so. It ha also been urged that the Presiding Officer was of the view that the statements of Mrs. Patil and her daughters would not be of any relevance to the Court of Enquiry. 85. The aforesaid stand taken on behalf of the respondents can hardly be supported in view of the fact that while the letter of 18th July, 1991, may have been received after the examination of witnesses had been concluded, the Enquiry continued till the month of December 1991. Having regard to the provisions of Rule 179(1) of the Army Rules, 1954, the Presiding Officer was under an obligation to act according to the written instructions of the Convening Authority. Having regard to the provisions of Rule 179(1) of the Army Rules, 1954, the Presiding Officer was under an obligation to act according to the written instructions of the Convening Authority. Since the Court of Enquiry continued till the month of December 1991, there was sufficient scope for the Presiding Officer to act in terms of the instructions contained in the aforesaid letter of 18th July, 1991, written on behalf of the Convening Authority. By not being so, the Presiding Officer acted in a manner which was not only contrary to Rule 179(1) but also Rule 180 of the Army Rules. 86. Denial of an opportunity to the petitioner to examine the witnesses cited by him in spite of the specific written directions of the Convening Authority has in my view, vitiated the enquiry conducted by the Court of Enquiry, and its findings which resulted in the subsequent show cause notice to the petitioner and the award of censure also stood vitiated as a result thereof. 87. The order of the Central Government in the petitioner's statutory appeal under Section 27 of the Army Act cannot also stand having regard to the aforesaid view taken by me. 88. The other question which remains to be answered is whether the rules of natural Justice have been violated on account of non-supply of the findings of the Court of Enquiry to the petitioner to enable him to file an effective reply to the show cause notice given to him. 89. In my view, the services of a defence personnel cannot be equated with the service of any other Government employee and the service conditions of the two are bound to differ. Since the Army authorities have adopted a policy which specifically excludes service of the findings and opinion of the Court of Enquiry and the superior authority in chain, the petitioner cannot raise a grievance in that regard. 90. The writ petition must, however, succeed in view of my earlier findings. The proceedings of the Court of Enquiry, the award of censure and the decision of the Central Government rejecting the petitioner’s statutory appeal under Section 27 of the Army Act, are hereby quashed. 91. Inasmuch as, the decision to withdraw, the approval given in June 1990, for promotion of the petitioner to the post of Lt. The proceedings of the Court of Enquiry, the award of censure and the decision of the Central Government rejecting the petitioner’s statutory appeal under Section 27 of the Army Act, are hereby quashed. 91. Inasmuch as, the decision to withdraw, the approval given in June 1990, for promotion of the petitioner to the post of Lt. Colonel (Selection Grade), was to some extent dependent on the award of censure which was taken to constitute a drop in the petitioner’s performance, thereby attracting the provisions for Special Review, such decision is also quashed, and the concerned respondents are directed to forthwith consider the petitioner’s claim for promotion on the basis of the approval given in June 1990, within a month from this date. Such promotion shall have notional effect from the date when the petitioner’s immediate junior in his batch was promoted to the rank of Lt. Colonel (Selection Grade), for the purpose of further promotion, but the petitioner will be entitled to other benefits of such promotion when given, with effect from the date of the order which, as mentioned hereinabove, is to be passed within a month from date. There will be no order as to costs. All parties to act on a signed copy of the operative part of this judgment on the usual undertakings.