DATTU, J. ( 1 ) AN ex-army personnel is before this Court in a petition filed under articles 226 and 227 of the Constitution, interalia seeking a writ to quash the orders made by respondent Nos. 2 to 4 dated 13. 4. 1994, ( 2 ) 1. 1995 and 27. 4. 1995, Annexures 'c', 'f' and 'j' respectively, produced along with Writ Petition docket, on the ground that they are illegal, arbitrary, opposed to provisions of Army Act, 1950 read with the Army Rules, 1954, and also certain constitutional provisions. 2. Brief facts are: petitioner before his dismissal from Army Service was working as 'nayak' in 841, Light Regiment, 56 APO, Ajmeer. For certain omissions and commissions said to have been committed by him, while working in a disciplined force, the Commanding Officer of the unit had subjected the petitioner to face the Summary Court Martial proceedings by issuing a charge memo dated 8th day of April, 1994. In that, it was alleged that on 17/18th day of March, 1994, he struck with his (TA) Ram Singh of 113 Field Regiment and thereby had committed an offence which would fall within the purview of Section 40 (a) of the Army Act, 1950. The charge memo issued and served on the petitioner is as under: "charge SHEET the accused No. 14358631 H Nk (Substantive) MM Jelly of 841 Light Regiment is charged with:- army Act Section 40 (a): USING CRIMINAL FORCE TO HIS super OR OFFICER. In that the at Ajmer Railway Station on ni 17/18 Mar 94 struck with his fist at JC-186526h Sub (TA) Ram Singh of 113 fd Regt. Sd/- place Ajmer (TPSNegi) dt:8 Apr 94 Colonel Commanding Officer 841, Light Regiment" ( 3 ) PETITIONER's version before this Court is that, the Commanding Officer of the Unit, without the intervention of Judge-Advocate, had recorded the summary evidence of witnesses in support of the charge in presence of the accused person and further had permitted the accused person to cross examine all those witnesses, who had deposed to facts within their knowledge in support of the charge and therafter he was permitted to make a statement with regard to accusations made against him in the charge memo. Petitioner's futher assertion is that the Commanding Officer of the unit after faithfully flowing the procedure prescribed under Rules 22 to 24, had promulgated the punishment of 'reduction in rank' as provided under Section 30 of the Army Act. Petitioner further states that the commandiny Officer of the unit by his order dated 13. 4. 1994, had informed tna he has right to submit a petition against the punishment imposed earlier to the Central Government or to the Chief of the army Staff or any Officer Superior in Command to the Officer, who held the Summary Court Martial. . . ( 4 ) PETITIONER further asserts thai for the reasons best known to the respondents they had issued one more charge memo dated 26. 12. 1994 for the same offence, for which proceedings were initiated and concluded by imposing a punishment of 'reduction in rank by the commanding Officer of the unit. It is his further case that the same witnesses, who were examined earlier was re-examined and on conclusion of the proceedings, the Commanding officer had imposed a punishment of 'severe reprimand' and it was made known to him by the Commanding Officer, when he informed by his communication dated 2. 1. 1995 that he has a right to make petition to the Central Government, the Chief of the Army Staff or any Officer superior in command to the Officer, who held the summary Court Martial. It is stated in the petition that the petitioner did not choose to make any further representation on the punishment imposed by his Commanding Officer of the unit. The findings and rhe punishment awarded stood finally concluded. ( 5 ) TO his utter dismay, he was once again served with a show cause notice dated 4th day of April, 1995, by the Brigadier of the unit, interalia directing him to show cause why administrative action should not be taken against him under Section 20 of the Army Act read with Rule 17 of the Army Rules, and further why his services should not be terminated for the offences said to have been committed under Section 63 and Section 40 (a) of the Army Act. The show cause notices contained allegations of omissions and commissions of which petitioner was already tried by Summary Court martial and Punishment was imposed as provided under Section 80 of the Act. The show cause notices contained allegations of omissions and commissions of which petitioner was already tried by Summary Court martial and Punishment was imposed as provided under Section 80 of the Act. The show cause notice issued to the petitioner reads as under:"confidential head Quarters 12, Artillery brigade, c/o. 56 apo. 502401//a 04 Apr 95 no 14358631h Nk (OPR) mm Jelly, 841 Lt. Regt. C/o 56 APO. SHOW CAUSE NOTICE 1. Reference: - (a) Army Act Section 40 (a) of Manual of Military Law volume-ll. (b) Army Act Section 20 read with Army Rule 17 of Manual of Military Law Volume II. 2. It has been noticed that you lack the desired standard of military discipline. You have committed the following offence: - (a) AA Section 63. In that, you misbehaved with a military person on 21 Dec 93 and were awarded 'reprimand'. (b) AA Section 40 (a ). In that, you struck your superior officer jo-186526h Sub (TA) Ram Singh of 113 Field Regiment with your fist on Dt. 17,18 Mar 94. 3. Your above acts of misbehaviour with comrade in uniform and in subordination with senior officer reflects your unbecoming soldierly conduct which is detrimental to the military decorum and discipline. 4. You are hereby called upon to show cause as to why your services should not be terminated under the provision of Army act Section 40 (a) of Manual of Military Law Volume II read in conjunction with Army Act Section 20 and Army Rule 17 for using criminal force to your superior officer. 5. The reply to this show cause notice should reach this HQ with 20 days from the date of receipt of the notice. If no reply is received within the stipulated period, it will be assumed that you have nothing to say' for your defence and an ex-parte decision will be taken. Sd/- (Sudhir Chopra) brgi. Cdr. " ( 6 ) ON receipt of the show cause notice, petitioner had filed his reply dated 17th day of April 1995. ( 7 ) THE Brigadier of the unit, on the receipt of the reply filed by the petitioner to the show cause notice issued by him, after rejecting the cause shown by the petitioner, has proceeded to pass an order dated 27. 4. ( 7 ) THE Brigadier of the unit, on the receipt of the reply filed by the petitioner to the show cause notice issued by him, after rejecting the cause shown by the petitioner, has proceeded to pass an order dated 27. 4. 1995 awarding a punishment of dismissal from service in exercise of his powers under Section 20 of the Army Act read with Rule 17 of the Army Rules. The order made by the Brigadier of the unit dated 27. 4. 1995 is as under: "confidential" head quarters 12, Artillery brigade c/o 56apo. 502401/12/a 27 Apr 95 no. 14358631h nk/opr MM Jelly 841 Lt. Regt. DISMISSAL FROM SERVICE 1. You were tried for an offence under Army Act Section 40 (a) of Manual of Military Law for 'using CRIMINAL FORCE to SUPERIOR OFFICER. Your act of misbehaviour with comrade in uniform and insubordination with Superiors reflect your unbecoming soldierly conduct, which is detrimental to the military decorum and discipline. Due to certain technical reasons, it has now become impracticable and inexpedient to try you by another court. 2. In view of proven misconduct, you were serviced show cause notice vide this HQ letter No. 502401/xx/a dated 04 April 95. 3. Your reply to the show cause notice dated17 April 95 has been perused by me and has not been found satisfactory. 4. Keeping in view the seriousness of the offence committed by you, I, hereby, dismiss you from service under Army Act section 20 read in cor -unction with Army Rule 17 of Manual of military Law volume II with effect from the First Day of May nineteen Hundred and Ninety Five. sd/- (Sudhir Chopra) brig. Cdr. " ( 8 ) PETITIONER in this petition filed under Articles 226 and 227 of the Constitution, calls in question the legality or otherwise of the aforesaid orders on various grounds, which I will refer to, a little later. ( 9 ) THE union of India has filed its detailed statement of objections resisting the rellefs sought for by the petitioner and along with their statement of objections, they have also enclosed the opinion expressed by Judge-Advocate, which prompted the respondent Nos. 2 to 4 to frame the impugned orders. ( 9 ) THE union of India has filed its detailed statement of objections resisting the rellefs sought for by the petitioner and along with their statement of objections, they have also enclosed the opinion expressed by Judge-Advocate, which prompted the respondent Nos. 2 to 4 to frame the impugned orders. The respondents contend that the action taken by them is in accordance with the provisions of the army Act and the Rules framed thereunder having regard to misbehaviour and misconduct of the petitioner. Secondly, it is stated that the Court Martial proceedings, which had taken place prior to the passing of the order of dismissal dated 27. 4. 1995 having been set aside by the competent authority due to procedural irregularties the order dated 27. 4. 1995 is the only order that subsists and therefore, the petitioner's assertion that he has been punished more than once on the same set of facts and offences, resulting in vioiatior of protection under Article 20 (2) of the Constitution is incorrect and misleading. In sum and substance, the rule of double jeopardy is not only denied but they justify their action by relying on exceptional circumstances provided in Article 20 (2) of the constitution ( 10 ) IN my opinion, it would be useful at this stage itself to refer to certain assertions made by respondents in their statement of objections by extracting the same with reference to documents produced by them as Annexures to their objection statement. Firstly they assert, the petitioner was tried by Commanding Officer of the unit by conducting Summary Court Martial proceedings for an offence under Section 40 (a) of the Army Act. Affer completion of the proceedings and promulgation of the sentence imposed, the proceedings of Summary Court Martial were forwarded to Deputy judge Advocate General, Head Quarters, 12 Corps for review on 12. 6. 1994, who in turn after review of the Summary Court Martial proceedings by his letter dated 8. 7. 1994 pointed out certain serious lapses in the procedure adopted by the Commanding Officer, while holding the summary Court Marital against the petitioner for a serious offence under Military Law and further advised for setting aside the summary Court Martial and also the punishment imposed and he further advised the Commanding Officer to intimate the review orders made by him by re-promulgating and his regimental records amended accordingly. The observations made by Deputy Judge Advocate general is as under: "1. SCM proceedings received in this office on 14 Jun 94 vide 11 Fd Regt letter No 306701/13/a dated 8 Jun 94, are returned herewith duly reviewed. 2. The accused pleaded 'guilty' to a charge under Army Act section 40 (a) for USING CRIMINAL FORCE TO HIS SUPERIOR officer, the particulars averring that, "he at Ajmar Railway station on ni 17/18 Mar 94 struck with his fist JC-186526h Sub (TA) Ram Singh of 113 Fd Regt. " The Court having found him accordingly sentenced him 'to be reduced to the rank'. 3. The perusal of the Summary Court Martial documents reveal that no witness for prosecution was heard by the commanding Officer that the hearing of charge. In para 4 of appendix 'a' to AO 70/84, word 'documentary' is recorded. Further, no Tentative charge sheet is found along with the said appendix. A clarification to this effect was sought from the commanding Officer to which the Commanding Officer replied vide his letter No 306701/13/a dated 8 Jun 94 that Appendix 'a to AO 70/84 was filled at the time of marching in of No 14358631h nk (OPR) MM Jelly, the accused, on 06 Apr 94 on the Offence report. The proceedings of the Staff Court of Inquiry were read out, however no prosecution witnesses were called in. 4. As per Army Rule 182, the proceedings of a Court of Inquiry or any confession, statement or answer to a question made or given at a Court of Inquiry, shall not be admissible in evidence against a person subject to the act nor shall any evidence respective the proceedings of the Court be given against any such person except upon the trial of such person for willfully giving false evidence before that Court. Non compliance of the mandatory provisions of Army Rule 22 read with Army Rule 182, vitiates all subsequent proceedings. 5. In view of the foregoing position of law, I have no other option but to advice that the Summary Court Martial proceedings be set aside. A suitable minite for you to record page 3' shall to ar, under:- "i set aside the proceedings. Signed at________________on this_______________day of_____________1994. Name rank commander 12 arty Bde the above minite should be re-promulgated to the accused and his regimental records amended accordingly. 6. A suitable minite for you to record page 3' shall to ar, under:- "i set aside the proceedings. Signed at________________on this_______________day of_____________1994. Name rank commander 12 arty Bde the above minite should be re-promulgated to the accused and his regimental records amended accordingly. 6. You may consider to suitable Counsel the Commanding officer for his lack adaisical attitude and advice him to be more acrupulous and diligent while performing the onarows judicial functions. 7 Since the Court Martial has been set aside for lack of jurisdiction and the accused has committed a serious offence of using criminal force to his superior officer which offence affects the discipline and morals of the troops, you may in your discretion consider to have the accused retried and issue necessary instruction in this regard to the Commanding Officer. 8. Please intimate the action taken on this report to enable this office to complete the records. ( 11 ) THE Brigadier of the Regiment after receipt of the aforesaid intimation, orders for retrial of the accused/petitioner for an offence committed by him under Section 40 (a) of the Act, by his order dated 9. 8-1994. The order made by him for retrial is as under: "hq 12 Arty bde C/0 56 apo 302401/48/a 09 Aug 94 scm: NO 14358631h NK (OPR) mm JELLY OF 841 LT REGT 1. SCM proceedings in respect of No 14358631h NK (OPR) mm Jelly of 841 Lt Regt are returned herewith duly signed by the Cdr. 2. In view of the lackadaisical attitude shown by the Commdg offr in carrying but SCM of NK ' (OPR) MM Jelly, I hereby order that No 14358631h Nk (Opr) MM Jelly be retried again for the offence committed by him. 3. A copy of DJAG letter No. 2505/jag/94 (i) dated 08 Jul 94 is end herewith for your info and necessary action. 4. The minute should be promulgated to the accused and his regimental records amended accordingly. sd/- (Sudhir Chopra) brig. Cdr. " ( 12 ) IN view of the orders made by superior officers, the Commanding Officer of 841, Light Regiment holds a Summary Court martial proceedings for the second time against the petitioner by issuing a charge memo dated 26. 12. 1994 for the same offence alleged in the earlier charge memo and imposes a punishment of 'severe reprimand'. Cdr. " ( 12 ) IN view of the orders made by superior officers, the Commanding Officer of 841, Light Regiment holds a Summary Court martial proceedings for the second time against the petitioner by issuing a charge memo dated 26. 12. 1994 for the same offence alleged in the earlier charge memo and imposes a punishment of 'severe reprimand'. ( 13 ) THE records of the Summary Court Martial proceedings were once again came to be submitted for review to Deputy Judge, advocate General, Head Quarters, 12 Corps by Commanding Officer of 841, Light Regiment, on 8. 1. 1995. On review of the proceedings, the Deputy Judge Advocate General not being satisfied with the procedure adopted by the Commanding Officer while holding summary Court Martial proceedings and by pointing out several infirmities and violation of mandatory provisions in the procedure adopted, after setting aside the entire proceedjngs and the punishment imposed by his communication dated 3. 2. 1995, advises the superior officer of the unit to terminate the services of the petitioner by invoking his powers under Section 20 of the Army Act read with Rule 17 of the Army Rules. The relevant portion of the advise made by Deputy Judge, Advocate General requires to be noticed for answering some of the issues canvassed by learned counsels for the parties. Therefore, it is extracted and the same is as under: "in view of the flagrant violations of the mandatory provisions of law and complete lack of admissible evidence against the accused, there is no option but to advise setting aside of the proceedings. A suitable minute to be recorded on Page 'j' of the proceedings shall be as under:- "i set aside the proceedings. Signed at_____________on this____________day of_______1995. Name rank cdr 12 Arty Bde the above minute should be re-promulgated to the accused and his regimental records amended accordingly. 5. It is most unfortunate that the Summary Court Martial proceedings are being advised to be set aside second time due to negligence and shear carelessness of the Commanding Officer. In this connection, your attention is also invited to this office review report No. 2505/jag/94 (i) dated 08 Jul 94 in the ibid case. 6. 5. It is most unfortunate that the Summary Court Martial proceedings are being advised to be set aside second time due to negligence and shear carelessness of the Commanding Officer. In this connection, your attention is also invited to this office review report No. 2505/jag/94 (i) dated 08 Jul 94 in the ibid case. 6. As the accused is getting away on a second successive occasion due to carelessness and lack of legal knowledge of Lt col SBS Bajwa, the officer Holding the trial, you may consider to have the officer concerned appropriately by the GOC 12 Corps for failing to perform the onerous judicial function scrupulously and diligently. The first trial was conducted by Col TPS Negi which too was set aside for not having examined any prosecution witness in support of the charge at the time of hearing of charge under Army Rule 22. 7. Keeping in view the seriousness of the offence you may consider to have the services of No. 14358631h Nk (Opr) MM jelly terminated administratively under the provisions of Army act Section 20 read with Army Rule 17. " ( 14 ) THE Brigadier of the unit after receipt of the aforesaid advice initiates administrative action against the petitioner and by his order dated 27th day of April 1995, dismisses the petitioner from the Army service. ( 15 ) THE learned Counsel Sri Arun, appearing for the petitioner in support of his averments and the relief sought in the petition, primarily contends that the Constitution of India enshrines the rule against double jeopardy by providing that no person shall be prosecuted and punished for the same offence more than once and therefore, imposition of 'severe reprimand 'reduction in rank' and thereafter dismissal from the Army Service is not only illegal but also violative of constitutional provisions. In aid of his submission, the learned counsel relies on the observations made by Apex Court in the case of KALAVATHI vs STATE OF HIMACHAL PRADESH. ( 16 ) SECONDLY it is contended by the learned Counsel that, in view of Section 121 of the Army Act, the second trial for the same offence is statutorily prohibited when any person subject to the Army act has been dealt under Section 80 of the Act. Therefore, the imposition of second penalty by the Commanding Officer of the unit on 2. 1. Therefore, the imposition of second penalty by the Commanding Officer of the unit on 2. 1. 1995 imposing a penalty of severe reprimand and the subsequent order made by the Brigadier of the unit in imposing a punishment of dismissal from service on the petitioner is without authority of law and contrary to the statutory provisions, ( 17 ) THE learned Counsel nextly contends that the Army Act does not contemplate successive trials by a Court Martial till a verdict acceptable to confirming or reviewing authority is reached. In elaborating this contention, the learned Counsel contends that the officer of the Commanding unit having initially tried the accused person, by subjecting him to Summary Court Martial proceedings and having imposed punishment under Section 80 of the Act, and on the advice of Deputy Judge Advocate General, could not have taken recourse to administrative action by taking recourse to Section 20 of the Act read with Rule 17 of the Army Rules. Therefore, it is asserted that the show cause notice and the orders passed pursuant thereto by the respondent authorities is one without jurisdiction and authority of law. ( 18 ) NEXTLY it is contended that petitioner had no say in the constitution of Summary Court Martial and further had no role to play in the procedure adopted by the Commanding Officer of the unit. While conducting those proceedings and having suffered the trial more than once, the Deputy Judge Advocate General could not have declared those proceedings as null and void on a highly technical grounds. ( 19 ) THE learned Counsel lastly contends that there was an initialoption either to have tried the petitioner by a Court Martial or to take administrative action by invoking Rule 17 of the Army Rules and the option having been exercised to try him by a Summary court Martial and the petitioner having been imposed a punishment, it was not competent to the respondents to invoke Section 20 of the army Act read with Rule 17 of the Army Rules. ( 20 ) THE respondents in justification of their impugned orders, have filed their detailed statement of objections. ( 20 ) THE respondents in justification of their impugned orders, have filed their detailed statement of objections. According to them, the respondents had to resort to administrative action against the petitioner in view of the serious offence committed by him, by invoking special provisions under Section 20 of the Army Act read with Rule 17 of the Army Rules, after the proceedings and the punishments imposed by the Commanding Officer of the unit in the Summary court Martial proceedings had been set aside by the competent authority due to procedural irregularities and the orders made thereon by the Commanding Officers of the unit. ( 21 ) THE respondents further contend that the assertion of the petitioner that he has been punished more than once on the same set of charges, resulting in violation of protection under Article 20 (2) of the constitution has no basis whatsoever and therefore, that legal submission is untenable. ( 22 ) TO put it in a nut shell, the primary case of the respondents seems to be that, since the proceedings and the punishments imposed by the Court Martial is set aside by the competent authority due to procedural irregularities, the respondents are justified in taking recourse to administrative action to terminate the services of the petitioner in view of the serious offence alleged against the petitioner. ( 23 ) BEFORE I proceed further, let me make one thing clear that, there are certain offences that are minor offences under civil law, but those offences are serious offences under Military Law. For instance, for one man to strike another a blow causing no bodily harm is in civil law, a simple assault or hurt but for a soldier to strike his superior or for an officer to strike a soldier is under a military Law, a serious offence involving heavy punishment. ( 24 ) THE other important principle that requires to be kept in mind while deciding the legal issues raised by the petitioner's learned counsel, is the contention against 'double jeopardy'. It is now settled principles of law that the Constitution of India enshrines the rule against the double jeopardy by providing that no person shall be prosecuted and punished for the same offence more than once. It is now settled principles of law that the Constitution of India enshrines the rule against the double jeopardy by providing that no person shall be prosecuted and punished for the same offence more than once. The object of this provision is very simple and it is only to protect an individual from being subjected to prosecution and conviction more than once for the same offence. The law on the point is explained by Apex Court in Kalavathi's case by observing that, 'there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. The exception seems to be that a person convicted or acquitted by a Court Martial may with the previous sanction of the Central Government or by the Chief of the Army staff be tried again by a Criminal Court for the same offence on the same set of facts'. ( 25 ) KEEPING in view these principles, let me now consider the issues raised by the learned Counsels appearing for the parties to the lis. ( 26 ) PETITIONER is charged for an offence under Section 40 (a) of the Army Act. The first charge memo dated 8. 4. 1995 is issued by the Commanding Officer of 841, Light Regiment, in which Regiment, petitioner was working as 'nayak'. In the charge memo, it is alleged that, on the night of 17/18 March 1994, he struck with his fist at JC- 186526h Sub (TA) Ram Singh of 113 Field Regiment. ( 27 ) UNDER the Army Act, the first investigation is normally carried out by the Company Commander, who formulates", in the light of investigation made by him, the charge or charges against the accused. With the charge memo so drawn up, the accused is produced by the squadron/company Commander before the Battalion commander, i. e. the Commanding Officer, who holds formal investigation into the case. At this investigation, the nature of the offence or offences charged is made known to the accused and witnesses present depose to the facts within their knowledge in support of the charge or charges. The accused is present through out this investigation and is given full liberty to cross examine the witnesses. He can also call any witnesses on his own behalf and make any statement in his defence. The accused is present through out this investigation and is given full liberty to cross examine the witnesses. He can also call any witnesses on his own behalf and make any statement in his defence. This is the procedure contemplated under Rule 22 (1) of the Army Rules. After hearing the witnesses in support of the charge or charges and witnesses, if any produced by the accused and any statement that he may make, the commanding Officer, according to the view he has formed will either; (a) Dismiss the charge, if the evidence does not disclose any offence or if he considers it in expedient to proceed with the case; or (b) Dispose of the case summarily under Section 80 of the Act within the limits of his power; or (c) Refer the case to the proper superior military authority; or (d) Adjourn the case for the purpose of having the evidence reduced to writing; or (e) If the accused is below the rank of warrant officer, order his trial by a Summary Court Martial provided that he shall not order trial by Summary Court Martial without a reference to the Officer empowered to convene a District Court Martial or on active service, a summary General Court Martial for the trial of the alleged acts unless either; i. The offence is one which he can try by a Summary court Martial without any reference to that Officer; or ii. He considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. ( 28 ) THE aforesaid alternatives can be resorted to by the Commanding Officer of the unit, when he investigates into the charges alleged against a person subject to the Act other than an officer. This is provided under sub-rule (2) and (3) of Rule 22 of the army Rules. Assuming that the Commanding Officer remands the case for trial by a Court Martial, the case is adjourned for a summary of evidence to be taken as provided under Rule 22 of the Rules. These Rules seems to be mandatory in respect of every person subject to the Act, other than an Officer. ( 29 ) IN the instant case, the Commanding Officer pursuant to the charge memo issued on 8. 4. These Rules seems to be mandatory in respect of every person subject to the Act, other than an Officer. ( 29 ) IN the instant case, the Commanding Officer pursuant to the charge memo issued on 8. 4. 1994, after hearing the witnesses in support of the charge, according to the view he has formed disposes of the case summarily under Section 80 of the Act by imposing a sentence of 'reduction in rank' and the same is informed to the petitioner by the Commanding Officer of the unit by his order dated 13th April, 1994. ( 30 ) THE Deputy Judge Advocate General takes exception to the procedure adopted by the Commanding Officer pursuant to the charge memo issued by him dated 8. 4. 1994 and directs the commanding Officer to hold a fresh trial on receipt of such direction, the Commanding Officer issues a fresh charge sheet dated 26th december 1994 alleging once again the same offence stated in the earlier charge sheet and disposes of the case summarily under section 80 of the Army Act by imposing a punishment of 'severe reprimand and the same is communicated to the petitioner on 2nd january 1995, wherein he is informed that he has 'right of petition either to the Central Government or to the Chief of the Army Staff or any Officer superior in command to the Officer, who held the summary Court Martial. ( 31 ) THE first legal contention of the learned Counsel seems to be that in view of specific prohibition of second trial provided under section 121 of the Army Act, the respondents could not have issued the second charge memo dated 26th day of December, 1994 and could not have imposed a punishment of 'severe reprimand'. ( 32 ) TO appreciate the stand of the learned Counsel for petitioner, the provisions of Section 121 of the Act requires to be noticed and therefore, it is extracted and the same reads as under:"section 121: prohibition of second trial: When any person subject to this Act has been acquitted or convicted of an offence by a Court Martial or by a Criminal Court or has been dealt with under Sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a Court Martial or dealt with under the said Sections. " ( 33 ) A reading of the aforesaid provision would give an indication that, a person subject to the Army Act, who has been dealt with under Section 80 of the Act, shall not be liable to be tried again for the same offence, Notes appended to the Army Act provides for certain exceptions, namely, if the findings of General Court Martial, summary General Court Martial or District Court Martial, if not confirmed, has no validity and therefore the accused has not been acquitted or convicted and may legally be tried again, since under section 153 of the Act, the finding or sentence of General, or District or Summary General Court Martial requires to be confirmed by the central Government or by any officer empowered in that behalf by warrant of the Central Government. However, such confirmation of finding or sentence of Summary Court Martial is not required in view of Section 161 of the Act, except in a case, where the Officer holding the trial is of less than five years of service and the sentence may be carried out forthwith. ( 34 ) THE respondents in justification of holding retrial primarily contend, that second trial was initiated and punishment was imposed in view of the communication of Deputy Judge Advocate General dated 8. 7. 1994 and also in view of the directions issued by Head quarters of Artillery Brigade vide letter No. 502401/48/a dated 8. 8. 1994 for the retrial of the accused. ( 35 ) THE Army Act provides that every General Court Martial shall and every District or Summary General Court Martial may be attended by a Judge Advocate, who is either belonging to the Department of the Judge Advocate General or if no such Officer is available, an officer approved by the Judge Advocate General or his deputies. The powers and duties of Judge Advocate are provided under Rule 105 of the Army Rules. Apart from the powers and duties authorised under the Army Rules, the Regulation 33 of the Regulations for the army, the Judge Advocate General is the Legal Adviser to the Chief of the Army Staff in matters of Military, Martial and (in its fighting service aspect) International Law. He also assists the Adjutant general in matters relating to discipline involving application of Military law. He also assists the Adjutant general in matters relating to discipline involving application of Military law. He also reviews all Court Martial Proceedings for the purpose of advising the Commander-in-Chief whether they are free of legal error. ( 36 ) REGULATION 442 of Regulations for the Army provides for review of summary punishments awarded to persons subject to the army Act. The said Regulation is as under: 442. REVIEW OF SUMMARY PUNISHMENTS AWARDED TO persons SUBJECT TO ARMY ACT: provisions for the review of summary punishments awarded under AA Sections 83, 84 are contained in AA Sections 87 and 88. Punishments awarded under Army Act Section 80 may be reviewed by an Officer superior in command to the Officer, who awarded the punishment, and if any such punishment appears to such officer to be illegal, unjust or excessive, such Officer may cancel, vary or remit the punishment and make such direction as may be appropriate in the circumstances of the case. " ( 37 ) THE power to review a punishment awarded under Section 80 of the Act is vested in an Officer superior in command to the officer, who awarded the punishment. The Superior Officer in command can exercise this power, if in his opinion, the punishment or sentence awarded is either illegal, unjust or excessive. After such review, he may cancel, vary or remit the punishment and also authorised to issue such directions as may be appropriate in the circumstances of the case. ( 38 ) IN the present case, it so transpires, the Deputy Judge Advocate General, after receipt of Summary Court Martial proceedings, finds fault with the procedure followed by Commanding officer of the unit while conducting the Summary Court Martial proceedings, and then advises, the Brigadier of the unit, who is superior Officer to the Officer, who has imposed the punishment, by exercising his power under Section 80 of the Army Act, to set aside the proceedings and to consider whether accused persons be retried, since the accused person has committed a serious offence of using criminal force to his superior officer, which offence, according to him affects the discipline and moral of the troops. The Brigadier of the unit without even finding out, whether he can order for retrial of an offence under Section 40 (a) of the Act, when the Commanding Officer of the unit has already imposed a punishment under Section 80 of the Act, by his order dated 9. 8. 1994 orders for retrial of the petitioner. In a situation of this nature, at best, he could have reviewed the order by invoking the provisions of Regulation 442 of the Regulations" for the Army, or could have cancelled, varied or remitted the punishment and could not have issued any other direction in view of Section 121 of the Army Act, which provision specifically prohibits, retrial of a person subject to the Army Act, who has been dealt with under Section 30 of the Army Act, for the same offence by a Court martial. The respondents in their statement of objections nor their learned Counsel at the time of hearing, has brought to my notice any provisions either under the Act or the Rules or the Regulations which provides for such retrial. Whatever I have said in my order is my understanding of the provisions of the Army Act and the Rules framed thereunder, in the absence of any assistance whatsoever from the respondents. ( 39 ) SINCE I have come to the conclusion that the second retrialis impermissible in a case where a person subject to the Army Act has been dealt with under the provisions of Section 80 of the Act, the order made by the Commanding Officer in imposing a sentence of 'severe reprimand' by his order dated 2. 1. 1995 cannot be sustained. ( 40 ) IN so far as the first order made by Summary Court Martial dated 13. 4. 1994, any elaborate discussion is unnecessary, since the same has been set aside by the Superior Officer of the unit by his order dated 9. 8. 1994. The question of revival of that order also would not arise because, I have doubted the correctness of the order made on 2. 1. 1995. 4. 1994, any elaborate discussion is unnecessary, since the same has been set aside by the Superior Officer of the unit by his order dated 9. 8. 1994. The question of revival of that order also would not arise because, I have doubted the correctness of the order made on 2. 1. 1995. ( 41 ) THE other important question that requires to be considered and decided is whether the respondents in exercise of their administrative powers under Section 20 of the Act read with Rule 17 of the Rules could have dismissed the petitioner from service, for the very same offence under Section 40 (a) of the Act. The learned counsel for petitioner, while contending that he has been punished more than once for the very same offence, submits that the impugned order made on 27. 4,1995 is in violation of protection under Article 20 (2) of the Constitution of India, Per contra, learned Counsel appearing for respondents, while justifying the impugned order submit that since Court Martial proceedings which had taken place prior to the passing of the order of dismissal from service dated 27. 4. 1995 having been set aside by the competent authority due to procedural irregularities and the order dated 27. 4. 1995, being the only order that subsists, the contention of the petitioner that he has been punished more than once on the same charges resulting in violation of constitutional provision is incorrect and misleading. ( 42 ) IT is a general principle of law also incorporated as a fundamental right in Article 20 of the Constitution - that a person cannot be tried twice in respect of the same offence. The object of this provision is very simple and it is only to protect an individual from being subjected to prosecution and conviction for more than once for the same offence. The object of this provision is very simple and it is only to protect an individual from being subjected to prosecution and conviction for more than once for the same offence. It is now well settled position of law by authoritative pronouncement of the Apex Court that the aforesaid rule will apply only in such of those cases, where there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence, exception is, a person convicted or acquitted by a Court Martial may with the previous sanction of the Central government be tried again by a Criminal Court for the same offence or on the same set of facts. ( 43 ) THE other principle, according to my perception, the Army Act does not contemplate successive trials by a Court Martial till a verdict acceptable to confirming authority is reached. Section 153 of the Act provides that no finding or sentence of a General, District or summary Court Martial shall be valid except so far as it may be confirmed by the Central Government or by an Officer empowered in this behalf. The Central Government or the Chief of the Army staff has an option, initially either to have the officer concerned tried by a Court Martial or to take action under Army Rule 17. To me it appears, once the Central Government or the Chief of the Army staff decides to hold Court Martial of a person subject to the Army act, they cannot thereafter be competent to take action by resorting to extraordinary and wide powers under Section 20 of the Act read with Rule 17 of the Rules. This sweeping observation of mine is because the respondents nor their learned Counsel are in a position to tell me at the time of final hearing of a very old Writ Petition, whether such an administrative action could be resorted to, when the findings and sentence imposed by the Commanding Officer of the unit is taken exception to by Deputy Judge Advocate General, head Quarters, either by inviting my attention to any provisions of the Army Act or the Rules or Regulations of the Army or to any binding precedent of the Superior Forum. ( 44 ) THE facts of the present case is that the procedure adopted by the Commanding Officer of not once but twice is taken exception to by the Deputy Judge Advocate General. As I have already observed, the sentence imposed by the Commanding Officer in exercise of his power under Section 80 of the Act does not require confirmation either by the Central Government or by the Chief of the Army Staff or any other Officer authorised by a Special Order and therefore firstly it cannot be said that the finding of the Court martial whether of acquittal or guilt cannot be regarded as valid unless it is confirmed by the competent authority and secondly, the legislature could not have intended that an Officer convening a summary Court Martial can go on dissolving such Court Martial and reconstituting them ad-infinitum on the dictation of the Deputy Judge advocate General until he obtained a verdict or a finding of his own liking. Then the next question would be when they fail in their attempts to convict a person, who is subject to the provision of this army Act, could they have resorted to proceedings under Section 20 of the Army Act read with Rule 17 of the Army Rules. This question which ! have raised for my decision requires to be answered first with reference to those provisions of the Army Act and the Rules framed thereunder. ( 45 ) SECTION 20 of the Army Act is extracted and it reads as under: "section 20: Dismissal, removal or reduction by Chief of the Army staff and by other officers: (1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act other than an officer. (2) The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer. (3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command' other than an officer or a junior commissioned officer. (4) Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer under his command. (4) Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer under his command. (5) A warrant officer reduced to the ranks under this section shall not however, be required to serve in the ranks as a sepoy. (6) The commanding officer of an acting noncommissioned officer may order him to revert to his permanent grade as a noncommissioned officer, or if he has no permanent grade above the ranks, to the ranks. (7) The exercise of any power under this section shall be subject to the said provision contained in this act and the rules and regulations made thereunder. " ( 46 ) THE corresponding Rule which applies to noncommissioned Officer is Rule 17 of the Rules. The same reads as under:"rule 17: Dismissal or removal by Chief of the Army Staff and by other officers: Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal Court or a Court martial, no person shall be dismissed or removed under subsection (1) or sub-section (3) of Section 20, unless he has been informed of the particulars, of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service: provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonable practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases or dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the central Government" ( 47 ) BEFORE I proceed further, let me notice the dicta of the Apex Court, while considering Rule 14 of the Army Rules, which is more or less identical with Rule 17 of the Army Rules. The Apex Court in the case of UNION OF INDIA vs HARJEET SINGH SANDHU, while explaining the meaning of the expression 'inexpedient' and 'impracticable' was pleased to state as under:"as the term used in sub-rule (2) of Rule 14 is 'impracticable' and not 'not reasonably practicable', there is more an element of subjeciivity sought to be introduced by this provision in the process of arriving at the satisfaction, obviously because the rule is dealing with the satisfaction arrived at by the Central government or the Chief of the Army Staff, in the matter of disciplinary action on account of misconduct committed by an officer of army which decision would have been arrived at by taking into consideration the then prevailing fact situation warranting such decision after considering the reports on officer's misconduct. " ( 48 ) THE judicial review of the orders made by respondent - Army authorities in exercise of their powers under Section 19 read with rule 14 of the Rules, which are identical with Section 20 read with rule 17 of Rules is also explained in the aforesaid decision. In that, the Court was pleased to observe:"exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by mala fides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of colorable exercise of/or abuse of power or what is sometimes called fraud on power, i. e. where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the Court while exercising power of judicial review. Even if some of the material, on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material available on which the action can be sustained. The Court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. The Court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the Court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power. " ( 49 ) THE learned Counsel for petitioner, Sri Arun, keeping in view the observations made by the Apex Court, submits that the initiation of proceedings and awarding of punishment of dismissal from service by the second respondent in exercise of his powers under Section 20 read with Rule 17 of Rules is based on extraneous and irrelevant grounds and therefore the impugned order is unsustainable. ( 50 ) THE respondents in justification of the impugned order mainly contend that the Deputy Judge Advocate General, after setting aside the second Summary Court Martial proceedings, had advised the respondents to terminate the services of the petitioner in view of the seriousness of the offence and therefore, proceedings came to be initiated by the respondents in exercise of their administrative power. ( 51 ) A show cause notice was issued it the petitioner dated 4. 4. 1995 by second respondent herein under the provisions of section 20 read with Rule 17 of the Rules calling upon the petitioner to show cause why his services should not be terminated. In the notice nothing is stated except that he has committed an offence which would come within the purview of Section 40 (a) of the Act . The notice no where states that the Officer, who has issued the notice has formed an opinion that the trial of the accused by a summary Court Martial was inexpedient or impracticable and formation of further opinion that the petitioner's further retention in the service was undesirable. The aforesaid provisions of the Army act and the Rules mandates that when a dismissal or removal of a person is sought on the ground of misconduct for which he has not been convicted by a Criminal Court or a Court Martial, the authority competent to order such dismissal or removal should satisfy itself that trial by Court Martial of such person is inexpedient or impracticable for reasons other than probable failure to establish the charges and further retention in service of the individual is undesirable. This subjective satisfaction, which appears to be mandatory on the conjoint reading of Section 20 of the Act read with Rule 17 of the Rules is totally lacking in the show cause notice issued by the second respondent Officer. The notice that is issued by the second respondent Officer was only on the dictation of the deputy Judge Advocate General and not his subjective satisfaction, which appears to be mandatory. The Courts have time and again observed that, the disciplinary authority cannot act on the advice of others not only for initiating proceedings for the alleged misconduct said to have been committed by a person, who is under his administrative control but also while imposing any punishment. Therefore, the initiation of proceedings by issuing the notice dated 4. 4. 1995 is contrary and violative of mandatory provisions of Section 20 of the Act read with Rule 17 of the Rules. Any order made based on such an invalid notice cannot be sustained. ( 52 ) THE second respondent after receipt of the reply to the show cause notice issued by him, then seems to realise his mistake in the show cause notice, tries to introduce what was required to be said in the notice by saying 'it is now impracticable and inexpedient to try you by another Court Martial' and then observes that 'the reply furnished by the petitioner to the show cause notice is not satisfactory' and then proceeds to dismiss him from the Army Service by his order dated 27. 4. 1995. Since the initiation of proceedings is without authority of law and violative of mandatory provisions, the final orders made based on such invalid notice cannot also be sustained. ( 53 ) ACCORDINGLY, the following: ORDER i. Writ Petition is allowed. Rule made absolute. II. The impugned orders made by the respondent Nos. 2 to 4 dated 13. 4. 1994, 2. 1. 1995 and 27. 4. 1995 respectively are set aside. III. The respondents are directed to reinstate the petitioner into army Service. IV. Petitioner is entitled to monetary and service benefits, which the respondents are directed to quantify the same and pay to the petitioner as expeditiously as possible at any rate within three month's from the date of receipt of a copy of this Court's order. V. No order as to costs. Ordered accordingly. --- *** --- .