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2003 DIGILAW 183 (HP)

COL. Avtar Singh v. Union Of India

2003-07-09

V.K.GUPTA

body2003
JUDGMENT : V.K. Gupta, CJ. (Oral) – 1. This petition can be disposed of on a very simple ground, and that ground relates to the respondents not following the rules and principles of natural justice in imposing the penalty of "severe displeasure" (recordable), as conveyed to the petitioner by the General Officer Commanding-in-Chief, Head Quarters, Northern Command on 27.1.2001. 2. The brief facts, shorn of all unnecessary details which are not relevant for the disposal of this petition, are that on 18.3.2000, a Court of Inquiry was convened by order of the GOC-in-C, Head quarters, Northern Command, to investigate into the circumstances under which some forward posts in Kargil are aware vacated during the year 1999 and other matters relating thereto. For ready reference the Order convening this Court of Inquiry dated 18.3.2000 issued by Maj. General PPS Bindra, MGGS, for and on behalf of GOC-IN-C, in reproduced hereunder. It reads thus : "........CONFIDENTIAL. 1. A Court of Inquiry will assemble at the place and time to be fixed by the 'Presiding Officer, to investigate into the circumstances under which the post(s) of 4 JAT in Gen area Pt. 5299 in MU. 6670/6770 incl Post NE SPUR 664708, SW SPUR 662701 and Rock Fall 678704 were vacated during the year 1999, and any other matter(s) relating thereto. 2. The Court will establish the authority/HQ which ordered/approved vacation of the said post(s), and was in knowledge of the vacation of the said post(s); and fix responsibility thereof. 3. The composition of the Court will be as under : (a) Presiding Officer-Maj. Gen AK Pathak, COS HQ 14 Corps. (b) Members (i) Maj. Gen K. Nagaraj, UYSM GOC 19 Inf Div. (ii) Maj. Gen. TPS Brar, YSM GOC 27 Mtn Div. 4. The Court shall record evidence on oath/affirmation in terms of A.R. 181. 5. The proceedings may be held in camera, if so required by the Court in accordance with the procedure outlined in RA para 525. 6. Provisions of Army Rule 180 shall be complied with. 7. It is certified that due to exigencies of service, an officer holding the rank of Lt. Gen. Is not available to serve as Presiding Officer on the Court of Inquiry. 8. The proceedings of the Inquiry, duly completed in all respects, will be forwarded to this HQ by 10 Apr 2000. 7. It is certified that due to exigencies of service, an officer holding the rank of Lt. Gen. Is not available to serve as Presiding Officer on the Court of Inquiry. 8. The proceedings of the Inquiry, duly completed in all respects, will be forwarded to this HQ by 10 Apr 2000. Case File No. PC-12027/2/A/GS (Ops) HQ Northern Comd, SD/- (PPS Bindra) C/O 56 APO, Maj. Gen. 18 Mar. 2000, MGGS True copy Advocate, For GOC-in-C 3. On 4th September 2000, Head Quarters Northern Command sent a show cause notice addressed to the petitioner wherein, with reference to the proceedings of the aforesaid Court of Inquiry, and on the basis of the "due consideration" of the GOC-in-C Northern Command, it was conveyed to the petitioner that the GOC-in-C had directed that the "administrative action" be taken against the petitioner for his "staff failure". The petitioner was accordingly required to show cause as to why such administrative action in the form of a suitable "censure" of the GOC-in-C should not be taken against him for his above lapse. Along with the show cause notice a copy of the Court of Inquiry proceedings, less findings and opinion of the Court of Inquiry was enclosed for the reference of the petitioner. The show cause notice dated 4th September, 2000 reads thus : "...............CONFIDENTIAL Tel : 2628 Headquarters Northern Command C/o 56 APO 04 Sep. 2000 22001/984/DV-3 (i) IC-2540P Col Avtar Singh Col GS (Doctrine Branch) HQ ARTRAC C/O 56 APO Show Cause Notice 1. A, C of I was held to investigate into the circumstances under which the post(s) of 4 JAT in gen area Bajrang MU 6569/pt 55299 MU 6670/SW SpurMU 6669 were vacated during the year, 1999, and any other matter(s) relating thereto. 2. The C of I proceedings duly completed were placed before the GOC-in-C, Northern Command who after due consideration has directed that Admn. action be taken against you for your staff failure. 3. You are required to show cause as to why adm action in the form of suitable censure of the GOC-in-C should not be taken against you for the above lapse. Your reply should reach this HQ within 30 days of receipt of this show cause notice failing which it will be presumed that you have nothing to state against the contemplated action and ex parte decision will be taken against you. 4. Your reply should reach this HQ within 30 days of receipt of this show cause notice failing which it will be presumed that you have nothing to state against the contemplated action and ex parte decision will be taken against you. 4. A copy of C of I proceedings less findings and opinion of the Court is encl. herewith for your ref which may please be returned with your reply to the show cause notice. 5. Please return one copy of the show cause notice duly signed and dated as a token of receipt. Sd/- (JU Matai) Brig Brig (P&A) For GOC-in-C Encl : As above........ 4. The petitioner submitted his reply to the aforesaid notice on 19th September, 2000 in which he denied that he was guilty of any "staff failure" and he prayed that since there was nothing wrong as far as the petitioner was concerned and that since in the Court of Inquiry proceedings there was no indication, not even a remote one of any lapse on his part, the proceedings against him be dropped. 5. An order ultimately come to be passed on 27.1.2001 whereby the "severe displeasure" (as indicated at the beginning of this judgment) was conveyed to the petitioner. This order reads thus : "............CONFIDENTIAL CENSURE ORDER OF THE GENERAL OFFICER COMMANDING-IN-CHIEF. NORTHERN COMMAND IN RESPECT OF IC-25430P COL AVTAR SINGH EX COL GS HQ 3 INF DIV NOW POSTED IN HQ ARTRAC ON THE SHOW CAUASE NOTICE BEARING NO. 22001/984/DV-3(I) DATED 04 SEP. 2000. 1. I have perused the reply of the officer dated 19 Sep. 2000 to the show cause notice bearing No. 22001/9$4/DV/3/ (i) dated 04 Sept. 2000. 2. I am not satisfied with the explanation submitted by IC-25430P Col Avtar Singh then Col. GS Hq 3 Inf Div now posted in HQ ARTRAC for his staff failures as brought out in C of I on "vacation of SW Spur." 3. I, therefore, direct that may 'severe displureasure' (Recordable) be conveyed to the offr. 22001/984/DV-3 Sd/ (HM Khanna) General Officer Lieutenant General C/o 56 APO Headquarters Northern Command Commading-in-Chief, 27 Jan. 2001 True Copy Advocate........" 6. Aggrieved by the aforesaid punishment of having been conveyed "severe displeasure", petitioner preferred a statutory complaint. Vide order No. 48545/SC/893/AG/DV-4/271/D (AG) dated 10.12.2001, the said statutory complaint of the petitioner was rejected. 22001/984/DV-3 Sd/ (HM Khanna) General Officer Lieutenant General C/o 56 APO Headquarters Northern Command Commading-in-Chief, 27 Jan. 2001 True Copy Advocate........" 6. Aggrieved by the aforesaid punishment of having been conveyed "severe displeasure", petitioner preferred a statutory complaint. Vide order No. 48545/SC/893/AG/DV-4/271/D (AG) dated 10.12.2001, the said statutory complaint of the petitioner was rejected. This order reads thus : No. 48545/SC/893/AG/DV-4/271/D (AG) Government of India Ministry of Defence New Delhi - 110011, the 10 December, 2001 ORDER Col Avtar Singh (IC-25430P) of HQ ARTRAC has submitted a statutory Complaint dated 16 Feb. 2001 under the provisions of Army Act, 1950 Section 27. 2. The complainant. was awarded 'Severe Displeasure (Recordable)' on 27 Jan. 2001 by GOC-in-C Northern command for 'staff failure' as Colonel (GS) of HQ 3 Infantry Division during Operation VIJAY and particularly during events leading to the vacation of posts of 4 JAT during 1999. 3. The complainant, has contested that investigating into 'staff failure' was not included in the Terms of References of the Court of Inquiry. The contention lacks merit as Terms of References of the instant Court of inquiry encompass wide scope to investigate and fix responsibility of persons involved, including the staff. Hence, the point is devoid of substance. 4. On the contention of the complainant that Army Rule 180 was not invoked in respect of him, it is noticed that no witness at the Court of Inquiry brought out anything affecting the character or military reputation of the complainant. The aspect of 'staff failure' was revealed by the officer himself during questions and answers-by the Court and other officers. Hence, provision of Army Rule 180 was not applicable. However, the officer was provided with a copy of C of I along with the Show Cause notice as per the provision of Army Order 129/72, to prepare his reply. It is a case of non-applicability of Army Rule 180 and not non-compliance thereof. This contention, therefore, does not stand legal scrutiny. 5. However, the officer was provided with a copy of C of I along with the Show Cause notice as per the provision of Army Order 129/72, to prepare his reply. It is a case of non-applicability of Army Rule 180 and not non-compliance thereof. This contention, therefore, does not stand legal scrutiny. 5. 'Staff failure' on the part of the complainant was amply proved in his failure to communicate direction of the' GOC, in writing, to lower formations that no post will be vacated during winter 1999, his not making, any effort to be in picture of activities in his office during his absence on leave, after he rejoined; not being aware of the Tour Notes of the visit of GOC to 121 (1) Inf Bde GP on 19 Apr. 99, until Feb. 2000; being unaware of Bajrang Post and its vacation; his inept handling of critical patrol in May, 99 and not maintaining a War Diary (a mandatory requirement) during active operations. The aforesaid lapses as brought out by the complainant himself during questions and answers at the C of I, are ample proof of 'staff failure' in respect of the complainant. The complaint's contention that staff failure' on his part has not been proved, does not have any substance. 6. That staff failure on the part of the complainant has been amply established. The due procedure for award of censure stipulated in the relevant policy letter on the subject having been strictly followed, and there being no legal infirmities found in the entire proceedings, the award of 'severe displeasure' (Recordable) to Col Avtar Singh (IC-25430) is found to be just, proper and legal. 7. Considering the case in its entirety, it is found that no military wrong has been caused to the complainant. The Central Govt. therefore, rejects the Statutory complaint of the officer dated 16 Feb. 2001. (Diwakar) Under Secretary to the Government of India Copy to : Chief of the Army Staff. (3 copies) With the request to communicate the Order to the officer through the staff channels and take necessary action as per the laid down rules on the subject...." 7. Aggrieved by the aforesaid order dated 27.1.2001, as passed by the General Officer Commanding-in-Chief Northern Command and the order dated 10.12.2001 as passed by the Central Government rejecting petitioner's aforesaid Statutory Complaint, petitioner has filed this writ petition under. Aggrieved by the aforesaid order dated 27.1.2001, as passed by the General Officer Commanding-in-Chief Northern Command and the order dated 10.12.2001 as passed by the Central Government rejecting petitioner's aforesaid Statutory Complaint, petitioner has filed this writ petition under. Article 226 of the Constitution of India. 8. Before we proceed on the merits on the controversy in this matter, we would like to, at the very outset deal with the preliminary objection of the respondents that this Court does not have the territorial jurisdiction to entertain this petition. The preliminary objection as contained in para 4 of "preliminary submissions" in the reply-affidavit of the respondents, reads thus : "........4. This Hon'ble Court does not have the territorial jurisdiction to entertain this writ petition, the reason being that lapse on the part of the petitioner with regard to Staff duties while he was serving, in HQ 3 Infantry Division (Leg) were committed outside the territorial jurisdiction of this Hon'ble Court. The Court of Inquiry pertaining to the matter in question was convened and conducted in J&K outside the jurisdiction of this Hon'ble Court. Subsequently the censure order dated 27 Jan. 2001 was passed in Udhampur (J&K) which is outside the jurisdiction of this Hon'ble Court. Therefore, the challenge to the severe displeasure (Recordable) cannot be agitated before this Hon'ble Court." 9. Undoubtedly, the Court of Inquiry was convened and conducted in J&K, and undoubtedly also the "severe Displeasure" (censure order) dated 27.1.2001 was passed under Udhampur (J&K) and these areas are undoubtedly outside the territorial jurisdiction of this Court. However, respondents have perhaps forgotten the fact that the petitioner stood posted at Headquarters ARTRAC located in Shimla in the State of H.P. on and after 15.3.2000 and the show cause notice dated 18.3.2000 was received by him while he was posted in Headquarters ARTRAC and it is from Headquarters ARTRAC, while being posted here, chat on 19th September, 2000, the petitioner submitted his reply to the said show cause notice. On 27.1.2001 also when the impugned order conveying the 'severe displeasure' was passed, the petitioner was posted in Headquarters ARTRAC as is evident from the bare reading of the impugned order itself and lastly it is from Headquarters ARTRAC that the petitioner while being posted there had submitted his statutory complaint. 10. On 27.1.2001 also when the impugned order conveying the 'severe displeasure' was passed, the petitioner was posted in Headquarters ARTRAC as is evident from the bare reading of the impugned order itself and lastly it is from Headquarters ARTRAC that the petitioner while being posted there had submitted his statutory complaint. 10. Communication No. 32908/AG/DV-1(P) dated 16.10.2000 under which 'severe displeasure' had been conveyed to the petitioner, in para 24 itself provides a mechanism for redressal of grievances and stipulates that complaints against the award of censure may be submitted and processed in the manner indicated therein. Para 24 (supra) reads thus : "Redressal of grievances Complaints against the award of censure may be submitted and processed in terms of para 364 of the Regulations for the Army (Revised Edition) 1987. An authority superior to the authority who awarded the censure may cancel the award, remit a portion or whole of it, or commute it to a non-recordable censure if, in the opinion of that authority, the censure is illegal, unjust or excessive. However, while granting redressing mitigating the award, the competent authority must invariably mention the date from which the said order is to be operative." 11. Clause (2) of Article 226 of the Constitution of India which relates to the parameters of the exercise of territorial jurisdiction of the High Courts, qua accrual of cause of action, either wholly or in part, may be quoted with advantage. It reads thus : "(2) The power conferred by clause (i) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which (he cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within, those territories." 12. The order dated. 10.12.2001 passed by the Central Government rejecting the statutory complaint undoubtedly is a continuation of the proceedings against the petitioner and the submission of the statutory complaint by the petitioner against the impugned order of 'severe displeasure' apart from being continuation of the proceedings is a link in the chain of events which if 'completed would constitute the whole bundle of facts in what could be summed up as the "cause of action". 13. 13. "Severe displeasure" was conveyed to the petitioner on behalf of GOC-in-C Northern Command in terms of the Communication dated 16.10.2000 (supra) and para 24 of the same communication, as an inbuilt safeguard, provides a mechanism for the redressal of grievances and it is in exercise of this right given to him in the aforesaid communication that the petitioner preferred the statutory complaint. The conveying of the "severe displeasure" and the filing of the statutory complaint as also the decision thereon by the Central Government therefore are integral parts of the same chain of events, the links in the chain being inseparable from one another. If one treats the filing of the statutory complaint and its disposal as an independent and separate cause of action vis-a-vis the fact of conveying of the "severe displeasure" this would run counter to the Scheme of the Communication dated 16.10.2000 (supra) as also the policy contained therein. The conveying of the "severe displeasure", therefore, would constitute one part of the cause of action and the fact of filing and the fact of rejection of the statutory complaint would constitute another part of the same cause of action, all these parts constituting the whole bundle of facts. 14. By now it is settled proposition of law that even if part of a cause of action accrues in a particular territory, the Court having territorial jurisdiction over that territory has the jurisdiction to entertain a petition and deal with it on its merits. As is seen in the present case, the events leading to the rejection of the statutory complaint, in particular, the fact of the petitioner submitting the statutory complaint from his present place of posting (Headquarters ARTRAC) in Shimla are such links in the chain which would constitute the cause of action or at least parts of that; and, therefore, this Court-has the territorial jurisdiction to deal with this petition. 15. This is part from the fact that undoubtedly the "severe displeasure" was conveyed to the petitioner while he was posted in ARTRAC in Shimla, that by itself would give to him an independent cause of action, apart from others, conferring territorial jurisdiction to this Court to entertain this petition. 16. Another angle which also is required to be looked into and examined for deciding the question of jurisdiction of this Court relates to Section 27 of the Army Act, 1950. 16. Another angle which also is required to be looked into and examined for deciding the question of jurisdiction of this Court relates to Section 27 of the Army Act, 1950. Section 27 read as under : "27. Remedy of aggrieved officers. - Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority." 17. Annexure P-5 to the writ petition is the copy of what the petitioner has termed as "Statutory Complaint". The order dated 10.12.2001 passed by the Central Government (supra) in the very opening part refers to the submission of statutory complaint by the petitioner under the provisions of Section 27 of the Army Act. As per Section 27 of the Army Act, any officer who flat himself wronged by his commanding officer or any superior officer has a right of submitting a complaint to the Central Government for such redressal that he deems appropriate. In the present case, the petitioner admittedly felt wronged by the GOC-in-C Northern Command, a Superior Officer, because of his having penalised the petitioner by conveying him his "Severe Displeasure" (Recordable). The petitioner having that thus felt wronged at the hands of superior officer (GOC-in-C Northern Command) and, he also having a right of filing a complaint to the Central Government against this alleged wrongful act of GOC-in-C Northern Command, that was also a part of cause of action because the filing of statutory complaint in terms of Section 27 of the Army Act by the petitioner was continuation of the proceedings, a continuation of transaction considering from the issuance of show cause notice, the conveying of "Severe Displeasure" and thereafter the filing of the statutory complaint and its rejection by the Central Government. Undoubtedly, it is the case of the respondents also, as is evident from the opening part of the order dated 10.12.2001 that the statutory complaint submitted by the petitioner was treated to have been preferred under Section 27 of the Army Act and thus dealt with on that basis. 18. Undoubtedly, it is the case of the respondents also, as is evident from the opening part of the order dated 10.12.2001 that the statutory complaint submitted by the petitioner was treated to have been preferred under Section 27 of the Army Act and thus dealt with on that basis. 18. Viewed from any angle thus, whether the statutory complaint could be treated as having been filed under Section 27 of the Army Act or in terms of Para 24 of the communication dated 16.10.2000, this act having been done by the petitioner at a point of time when he was posted in ARTRAC Shimla and this having been sent from Shimla and its result having been conveyed to the petitioner at Shimla where he was posted at the time of the communication of the result, part of the cause of action has arisen in Shimla and, therefore, this Court has the territorial jurisdiction to entertain this petition. 19. The preliminary objection, therefore raised by the respondent about this Court not having territorial jurisdiction is over-ruled. 20. Mr. Negi, learned Counsel appearing for the petitioner has assailed the impugned order's on a number of grounds. First and foremost, after drawing our attention to communication dated 16.10.2000 (supra) he submits that a detailed and comprehensive procedure has been laid down by the Army Headquarters itself with respect to the award of 'censure' to officers and JCOs. In the portion of this communication relating to "Procedure for the Award of Censure", in para 8 thereof, it has clearly been laid down that before the issuance of a letter awarding 'censure' the authority concerned shall obtain an explanation by way of issuance of a show cause notice, from the concerned officer regarding his response/vindication of his stand in respect of the alleged lapse and consider the said responsible dispassionately in its entirety. It has further been laid down that such a notice can be issued either on the basis of the findings of a Court of Inquiry or otherwise. In para 10 it has specifically been mandated that the show cause notice must contain particulars of definite and specific lapses in unambiguous terms, to which the explanation is sought. Para 8 and 10 of the said communication read thus : "8. In para 10 it has specifically been mandated that the show cause notice must contain particulars of definite and specific lapses in unambiguous terms, to which the explanation is sought. Para 8 and 10 of the said communication read thus : "8. Before the issue of a letter awarding censure, the authority concerned shall obtain an explanation by way of a show cause notice from the officer/JCO concerned regarding his response/vindication of his stand in respect of an alleged lapse and consider dispassionately in its entirety. Such a notice can be issued either on the basis of the findings of a Court of Inquiry or otherwise. The show cause notice shall emanate from/on behalf of the authority which has approved it and whose censure is proposed to be awarded. Once the authority specified in para 6 directs issue of a show cause notice, a Staff Officer may issue the show cause notice on behalf of the authority whose censure it is proposed to be awarded. The show cause notice must be issued in triplicate for retention of a copy as office copy by unit and two copies to the addressee, (one copy for obtaining his receipt and subsequent return to originator). 10. The notice must contain definite and specific lapses in unambiguous terms to which the explanation in sought." 21. In the face of the aforesaid specific and mandatory requirements as emanating from the communication of the Army Headquarters itself, which require any lay down that the show cause notice must contain particulars of definite and specific lapses in unambiguous terms, when we look at the impugned show cause notice we find that all that it refers to, by way of the alleged lapses of the petitioner, is that the GOC-in-C Northern Command "had directed that administrative action be taken against the petitioner for his 'staff failure'. What is the meaning of the expression 'staff failure'; how and in what manner was the petitioner guilty of 'staff failure', and what is the connotation of this expression have however, not at all been explained in the show cause notice. What is the meaning of the expression 'staff failure'; how and in what manner was the petitioner guilty of 'staff failure', and what is the connotation of this expression have however, not at all been explained in the show cause notice. Contrary to the requirements contained in the communication dated 16.10.2000 and in total violation of the rules and principles of natural justice, the petitioner was not at all informed as to how, why and in what manner did the respondents consider him guilty of 'staff failure' and as to what were the instances, occasions, situations or episodes, with reference to any one of which, the petitioner could be said to have been guilty of 'staff failure'. The show cause notice, therefore, was ex facieand on the very face of it, defective and in violation of communication dated 16.10.2000 and it was also opposed to the rules and principles of natural justice because it did not meet with the bare minimum requirement of informing the petitioner of the charges against him. 22. Principles of natural justice always demand that if a Disciplinary Authority proposes to penalise or punish a so-called or alleged delinquent official subordinate to him, before such punishment is meted out to him or such penalty is inflicted upon him, he must be afforded an adequate and effective opportunity of being heard. First and foremost step that is required to be taken in that direction is to issue him a show cause notice with respect to the charges and the allegations against him and in the light of the contents of the show cause notice to afford him an opportunity of submitting his explanation and reply, so that Disciplinary Authority takes into account such reply before it decides upon the question, whether to punish or penalise the officer or not, and if to punish, to what extent. Unless, therefore, the show cause notice itself contains all the material facts and also material particulars, how can one expect the so-called delinquent officer to submit his reply and explanation. After all, before he embarks upon the task of submitting his reply, the officer must know as to what he is being asked about, as to what are the allegations/accusations against him, and what are the charges that he is to meet. This cardinal principle of service jurisprudence is, therefore, directly relatable to the delinquent officer being afforded this effective opportunity. This cardinal principle of service jurisprudence is, therefore, directly relatable to the delinquent officer being afforded this effective opportunity. This right of being afforded this opportunity is not an empty ritualistic formality. It is an effective defence against an arbitrary action, thus affording to the officer ample protection under Article 14 of the Constitution. 23. In the aforesaid background, therefore, we have no manner of doubt that the show cause notice in question totally lacked in material facts and material particulars because it did not in any manner satisfy as to how, in what respects, and on the basis, was the petitioner being accused of 'staff failure'. 24. What would be applicable to a show cause notice with reference to the disclosure of material facts and material particulars constituting the gravamen of allegations and accusations against the petitioner, would with equal force be also squarely applicable to the contents of the order inflicting the penalty upon the petitioner. A perusal of the impugned order dated 27.1.2001 would, tested on the touchstone of the aforesaid principle of service jurisprudence clearly and at once suggest that even that order did not contain any material fact or material particular as to what did constitute "staff failure" as far as the petitioner was concerned. It may be an insignificant factor, but one thing which also cannot escape our notice is that whereas in the show cause notice "staff failure" was a singular phenomena, in the final order dated 27.1.2001, the expression "staff failure" denoted plural concept/phenomena of more than one failures on the part of the petitioner. Without however commenting upon this aspect of the matter, we have no hesitation in disapproving the impugned order dated 27.1.2001 because even this order did not say as to how and in what manner the petitioner had committed any act or acts of omission or commission constituting "staff failure" on his part. This order does not contain any allegation, does not give any inkling of the mind of the Disciplinary Authority as to what did-he mean when he condemned the petitioner of being guilty of "staff failure". This order does not contain any allegation, does not give any inkling of the mind of the Disciplinary Authority as to what did-he mean when he condemned the petitioner of being guilty of "staff failure". It is a basic principle of service jurisprudence, based upon the principles of natural justice, that no personal shall be condemned arbitrarily and without first informing him of the allegations on the basis of which it is proposed to condemn him, then to supply him all the material facts and particulars which constitute gravamen of the allegation and, after taking into consideration his representation, to indicate, record and specify in the final order condemning him (meaning in other words imposing the penalty upon him) the entire gamut of such allegation because the specific mentioning of the gamut and the nature of the allegation with respect to the material facts and material particulars in the penalty order alone would indicate the due application of mind by the Disciplinary Authority and also indicate that the Disciplinary Authority had taken into consideration the reply of the officer as well as the contents of the show cause notice which were replied to by him. 25. In the present case, there is another relevant fact leading to the violation of the principles of natural justice. It is for the first time that in the order dated 10.12.2001, the Central Government attempted to specify some material fact constituting the "staff failure" on the part of the petitioner by alleging that "was amply proved in his failure to communicate decision of GOC........... "It is for the very first time that the petition was communicated by anyone as to what could have constituted "staff failure" on his part. It is, however, noteworthy to record that this is the first ever communication and by one else than the appellate authority (basically a kind of a reviewing authority) saying so in its appellate order. What a sense of justice ? The appellate Authority culls out from somewhere the allegation/accusation that the petitioner was guilty of staff failure on "so" and "so" count. What an incidence of fair play that appellant for the first time is being informed during the course of disposal of his appeal as to what were the charges against him; till that stage he was kept in total ignorance about any such charges. What an incidence of fair play that appellant for the first time is being informed during the course of disposal of his appeal as to what were the charges against him; till that stage he was kept in total ignorance about any such charges. We have no hesitation in saying that on all the counts, therefore, non-disclosure of the material facts and material particulars were reasons and grounds, fatal to the legality as also the fairness of the impugned show cause notice as well as the impugned order dated. 27.1.2001 and the mentioning of some material facts at the stage of the passing of the impugned appellate order dated 10.12.2001 cannot improve the case of the respondents at all If anything this would go to show that at the stage of consideration and the disposal of the appeal, the petitioner was for the very first time informed about some material fact, about which admittedly he was never confronted in the past so as to enable him to deal with same or submit his reply/explanation thereto. 26. In para 8 of the communication dated 16th October, 2000 (supra) it has clearly been laid down that the show cause notice can be issued either on the basis of the findings of the Court of Inquiry or otherwise. A bare perusal of paras 1 and 2 of the show cause dated 4th September, 2000 does suggest that the show cause notice was on the basis of the findings of the Court of Inquiry. Despite this being so, a copy of Court of Inquiry proceedings less the findings and opinion was sent to the petitioner. Why was petitioner not provided with the copies of the findings and opinion of the Court of Inquiry and why were these withheld from him ? This has not been explained by the respondents at all in the reply-affidavit filed on their behalf, except to the extent that the respondents have relied upon Army Order 129 of 1972, para 4 whereof suggests that the opinion of the Court of Inquiry and any superior authority will not be disclosed to the person who would be sent the copy of the proceedings of the Court of Inquiry. Since respondents have very strongly relied upon para 4 of the A.O. 129/72 we are reproducing the same. Since respondents have very strongly relied upon para 4 of the A.O. 129/72 we are reproducing the same. It reads thus : "...........If for any reason, it has not been possible while recording the statesmen of the witnesses to comply with the provisions of Army Rule 180 and, subsequently it is discovered that the recorded evidence tends to incriminate any person subject to the Army Act, then he will be show a copy of the Court of inquiry proceedings, or the relevant extract thereof, before being called upon to give his explanation. The opinions of the Court and of any superior authority will not at all this stage be disclosed to the person." 27. A reading of the full text of A.O. 129/72 first of all suggests to us that this Army Order may not be even applicable to the facts of the present case, because this Army Order deals with the subject of attendance at a Court of Inquiry of persons subject to the Army Act whose character or reputation is being inquired into. It does not deal with a situation or a person where, based on the findings of a Court of inquiry he is being served with a show cause notice to explain as to why a particular administrative action be not initiated against him. If we look to the facts of the present case, it can be said, based on the requirements of law, as flowing from the principles 'of natural justice, that a person is sought to be proceeded against on the basis of proceedings of a Court of Inquiry, and yet the findings and opinion of the Court of Inquiry are withheld from him perusal. This is more particularly glaring in the present case because even in the findings and opinion of the Court of Inquiry, as were perused by suit there may, or may not be any direct or indirect insinuation, accusation or allegation against the petitioner, whatever these may be, and whatever their worth may be. Whether the findings or the opinion of the Court of Inquiry actually contained any material, any allegation, or any insinuation against the petitioner could be found out from a perusal of the findings and the opinion only. Whether the findings or the opinion of the Court of Inquiry actually contained any material, any allegation, or any insinuation against the petitioner could be found out from a perusal of the findings and the opinion only. Permitting him to see only the evidence of the witnesses who had deposed in the Court of inquiry and only on that basis asking the petitioner to fend for himself, after going through that evidence and to find out, locate and search not only the charges against him but also the supporting material was totally opposed to the principles of natural justice. Apart from relying upon A.O. 129/72, respondents have not taken the Court into confidence as to why and on what basis and for what reasons, the findings and the opinion of the Court of Inquiry were withheld from the petitioner. We have no manner of doubt that the petitioner was grossly and gravely prejudiced from this withholding of the findings and opinion of the Court of Inquiry and the furnishing to him only the copy of the evidence recorded in the Court of Inquiry by itself was no substitute to meet the requirement of law. If the show cause notice against the petitioner was based upon and inter-linked as well as defendant upon the proceedings of the Court of Inquiry, the bare minimum that was required to be done was to have provided to the petitioner the copy of the findings of the Court of Inquiry as well as its opinion, unless for reasons to be recorded in writing, the respondents were of the considered opinion that it would be either prejudicial to the interests of the respondents, or against public interest, or against such a like interest and that therefore it was not desirable to provide to the petitioner the copy of the findings and/or the opinion of, the Court of Inquiry. We also must hasten to add here that any such recording of reasons by which the petitioner could be deprived of the copy of the findings and opinion of the Court of Inquiry, was a wholly justifiable action liable to judicial scrutiny. 28. We also must hasten to add here that any such recording of reasons by which the petitioner could be deprived of the copy of the findings and opinion of the Court of Inquiry, was a wholly justifiable action liable to judicial scrutiny. 28. Whether the evidence recorded during the Court of Inquiry tended to effect the character or military reputation of the petitioner and hence accordingly whether the petitioner was entitled to avail of privilege as contained in Rule 180 of the Army Rules also in a question which could have fallen for our consideration in as much as, if by the very terms of reference to the order convening the Court of Inquiry, respondent No. 3 was of the view that the petitioner being an officer at the relevant time posted in that particular formation (which was or could be held responsible for the vacation of the posts), respondents could have upon due application of mind afforded the privilege of Rule 180 of the Army. Rules to the petitioner. However, the stand taken by the respondents is that during the course of recording of evidence it did not at all come to the fore that the character or the military reputation of the petitioner was affected or was liable to be affected. This, perhaps, may ultimately turn out to be a contradiction in terms because if one looks at the evidence recorded in the Court of Inquiry and based on such evidence, claim of the respondents is that nothing adverse was stated therein against the petitioner, then one may have to search for the material in the evidence itself to find out whether the petitioner at all could be held guilty of any lapse amounting to 'staff failure'. This is apart from the fact that if a person, an officer of the Army is held guilty of 'staff failure' would that or would that no amount to affecting his military reputation. What is the meaning of the expression "military reputation." To our knowledge this expression has not been defined anywhere. This is apart from the fact that if a person, an officer of the Army is held guilty of 'staff failure' would that or would that no amount to affecting his military reputation. What is the meaning of the expression "military reputation." To our knowledge this expression has not been defined anywhere. But if we take its common and general dictionary meaning it can not possibly exclude a situation like the present one where an officer of the Army Officer is being held guilty of 'staff failure' with respect to a lapse of not disseminating his GOC's oral instructions about the non-vacation of posts in a border area and yet it is, being pleaded that his military reputation should not be deemed to be affected. This issue, however, to directly falling for our consideration at this stage, we do not propose to express our final views or return any finding on the same. 29. For the afore said reasons, therefore, we set aside and quash the order dated 27.1.2001 as passed/issued by the GOC-in-C, Headquarter Northern Command conveying his 'severe displeasure' (Recordable) to the petitioner as also the order dated 10.12.2001 passed by the Central Government rejecting the petitioner's statutory complaint against the aforesaid order. 30. Since the aforesaid impugned orders have been set aside and quashed by us only on the ground of non-observance of the Rules and principles of natural justice and non-compliance of the mandatory safeguards, protections, and other relevant provisions of the communication/order dated 16.10.2000 (supra) (specific grounds and reasons for such quashing and setting aside having been specifically set out in the judgment itself), it shall be open to the respondents, if they so choose and if so advised, to proceed afresh against the petitioner. If, therefore, the respondents initiate any action afresh against the petitioner, and thus as a prelude, issue him a fresh show cause notice, it is directed by us that based on the aforesaid directions and observations, the show cause notice so issued shall fully comply with the requirements as would confirm to the rules and principles of natural justice and the binding requirements' as contained in the communication dated 16.10.2000 (supra). In the light of the reply that the petitioner may submit to such a show cause notice, the matter shall finally be disposed of on the basis of a proper consideration of the reply and also based upon, and with reference to the evidence or other material that ought be available on record, including the Court of Inquiry proceedings, subject to the competent authority, on due consideration, coming to the confusion that such material is relevant and applicable to the facts in issue and for the disposal of the case. 31. Before parting, we do wish to record that this judgment shall not be construed as any expression of opinion by us with respect to the fact whether the petitioner was or was not guilty of "staff failure" or committing any other lapse or any such culpable act of omission or commission. That would be a matter exclusively within the domain of the respondents and we do not wish to impinge upon their domain in this respect. If during the course of this judgment, we might have made any reference to any fact, either emanating from the Court of Inquiry proceedings, or otherwise, such reference shall be treated to have been made by us only with a view to disposing of this writ petition and for no other purpose whatsoever. Such reference made by us, therefore, should not and cannot be construed as any expression of opinion by suit with respect to the merits of the allegations or accusations against the petitioner, or the fact whether the allegations, or accusations have, or have not been established. 32. The petition is allowed in the terms indicated hereinabove. No order as to costs.