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2006 DIGILAW 3325 (PNJ)

A. S. Dhillon v. Union of India

2006-08-18

M.M.KUMAR, M.M.S.BEDI

body2006
JUDGMENT M.M.S. BEDI, J. 1. The petitioner has approached this Court under Article 226 of the Constitution challenging order dated 5.9.2003 (Annexure P-2) issuing a direction for his attachment at Chandimandir by orders of Head Quarters, Western Command. The apprehension of the petitioner is that the attachment order under Army Instructions 30 of 1986 has been issued as he is required to be tried by Court Martial. Under the Instructions the officer against whom disciplinary action is contemplated may, where necessary, be attached to other units at the discretion of the Army Head Quarters or GOC-in-C Command concerned for the purpose of investigation and progress of the disciplinary case. The petitioner has sought quashing of order dated 5.9.2003 (Annexure P-2) primarily on the ground that the allegation for which he is sought to be attached for taking disciplinary action has become barred by Limitation under Section 122 of the Army Act,1950 as a period of three years has elapsed between the alleged date of offence and the date of trial. 2. Brief facts, which are necessary for the decision of this case are that the petitioner was posted as Commandant, Supply Depot, Chandimandir from 1999-2000. On 19.11.1999 when the Deputy Director, Supplies and Transport was on inspection to the unit commanded by the petitioner, a surprise check was conducted by C.B.I. on the supplies depot, F.O.L. ( Fuel Oil Lubricant) in the presence of G.O.C. Incharge of F.O.L. The C.B I. team detected certain discrepancies in the rates and quantity of vegetables/fruits available at the fresh point as per the inspection register. It was also observed by the C.B.I. team that 506 liters of petrol and 1000 liters of diesel was found in excess in F.O.L. Report. The statements of the petitioner, NCO IC, JCO IC and SO were recorded by C.B.I. in the month of May 2000. There were neither any allegations against the petitioner nor any other officer. An investigation by way of ‘Court of Inquiry’ was also ordered by the army authorities in which the petitioner and the others had made statements. The Court of Inquiry did not find any blame against the petitioner and it had recommended administrative action against the SO, JCO Incharge and the NCO Incharge of the fresh. Neither Core Commander nor Army Commander directed any disciplinary action against the petitioner. The petitioner was posted out of Chandimandir in routine. The Court of Inquiry did not find any blame against the petitioner and it had recommended administrative action against the SO, JCO Incharge and the NCO Incharge of the fresh. Neither Core Commander nor Army Commander directed any disciplinary action against the petitioner. The petitioner was posted out of Chandimandir in routine. While he was serving at HQ 16 Corps for almost three years, he did not hear any thing raising a presumption that the matter had been closed and there was nothing to be processed further. When the matter had already been settled down and no irregularity or illegality had been found in the gap period of about three years, all of a sudden a signal No. A 1660 through a letter dated 5.9.2003 intimating that the case had been taken up by the Head Quarter Western Command with Army Head Quarter for attachment of the petitioner at Chandimandir. The validity of order dated 5.9.2003 (Annexure P-2) has been challenged by the petitioner mainly on the following grounds: i) The impugned order of attachment has been issued in contemplation of disciplinary proceedings against the petitioner for the purpose of making him to face trial by court martial as per Army Instructions 30 of 1986. Proposed action of trial by court martial is barred by limitation in terms of Section 122 of the Army Act as the inspection had been conducted by C.B.I. on 20.11.1999 and the petitioner could be tried by court martial within three years from the date of offence. The period of three years expired on 19.11.2002, as such the action of attachment for proposed court martial proceedings is violative of Section 122 of the Anny Act. ii) The action of attachment disciplinary proceedings is not permissible in view of para 12 of letter No. 01086/122/AG/DV- 1(P) dated 12.4.2001, which lays down that cases investigated by C.B.I. the period of limitation would commence from the date of receipt copy of preliminary inquiry, registration report or that of FIR, as the case may be, by the authority competent to initiate action against the accused, provided it discloses the offence and the identity of the offender. In cases where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence only from the date of receipt final report by the C.B.I., if containing such disclosure. In cases where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence only from the date of receipt final report by the C.B.I., if containing such disclosure. (iii) There is clear violation of statutory provisions of law and action is being initiated in the absence of jurisdiction warranting interference in exercise of writ jurisdiction. 3. Pursuant to the notice of motion issued to the respondents, written statement has been filed contesting the claim of the petitioner mainly on the ground that the writ petition is premature at the stage of finalisation of Court of Inquiry, which is a mere fact finding body. A direction has been issued by the competent authority to initiate disciplinary action. The disciplinary proceedings are yet to be initiated and petitioner is yet to be attached for disciplinary proceedings in terms or Army Instructions 30 of 1986. Reliance has been placed on Army Rules 22,23 and 24 to contend that the operation of Section 122 of the Army Act would come into play only with the commencing of the trial at court martial. The period of limitation is to be reckoned from the date of the final report given by the C.B.I. as the identity of the offender was finally established by the C.B.I. when the “final report” dated 13.11.2001 was submitted by the C.B.I. to the Army Head Quarters holding the petitioner along with others namely, Capt. R.K.Dahiya, Nb.Sub.Mohan Dass, Hav. Janak Raj, liable for disciplinary action by the army authorities. The final report of C.B.I. has been placed on the record as Annexure R-2. 4. We have heard learned counsel for the petitioner as well as counsel for the respondents at length and gone through the entire paper book and record carefully. The following points arise for determination: i) Whether the plea of limitation Under Section 122 of the Army Act in the circumstances of present case would constitute a pure question of law or it would be a mixed question of fact and law; ii) whether the above said plea can be raised even before the initiation of Court Martial proceedings; iii) Whether the writ petition is maintainable against an order of attachment simpliciter.? 5. 5. There is no controversy that the provisions of Section 122 of the Army Act are mandatory in nature and the said provisions create an absolute statutory bar to commence a trial by Court Martial of any person subject to the provisions of the Army Act for any offence. The provisions of Section 122 of the Army Act read. as follows: “ Period of limitation for trial;- 1) Except as provided by sub Section (2) no trial by court-martial of any person subject to this Act for any offence shall be commended after the expiration of a period three years (and such period shall commence:- (a) on the date of the offence; or (b) Where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or (c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is know to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier) (2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion of fraudulent enrollment or for any of the offences mentioned in Section 37. (3) In the computation of the period of time mentioned in sub-section (1) , any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded. (4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army. Limitation-whether question of fact? Under Section 122 of Army Act. 6. Section 122 of the Army Act was amended by Act No.37 of 1992. Limitation-whether question of fact? Under Section 122 of Army Act. 6. Section 122 of the Army Act was amended by Act No.37 of 1992. So far as the unamended Section of 122 of Army Act is concerned, it laid down that no trial by Court Martial of any person subject to this Act for any offence could be commenced after the expiration of a period three years from the date of such offence. The unamended Act had no provision so as to extend the period of limitation ‘pf three years. Section 122 of the amended Army Act lays down that for the purpose of determining limitation, the period will commence either on the date of offence or it will commence from the date when such offence comes to the knowledge of the authorities or from the date when the identity of the offender comes to knowledge of such person/authority or to person aggrieved. 7. In the interest of uniform applicability of Section 122 of the Army Act, Additional Directorate General, Discipline and Vigilance Adjutant General’s Branch, Army Head Quarters issued instructions to clarify “period of limitation” under Section 122 of Army Act. The said clarification was circulated vide letter dated 12.4.2001 (Annexure R-4) addressed to all the Head Quarters of different commands. The contents of the letter are as follows: “..........4. A close scrutiny of the aforementioned provisions reveals that the statutory period of limitation, prescribed vide section ibid reckons from the earliest date on which the aggrieved person or the authority competent to initiate action comes to know, first, the nature of the offence committed and, secondly, the identity of the offence. Thus, the period of limitation will commence:- (a) Under Clause (a) ibid, on the date of the commission of the offence provided on that date there is knowledge both of the offence and the identity of the offender. To put it slightly differently, clause (a) will not apply, if, on the date of the commission of the offence, either the offence as such, or the identity of the offender is not known. (b) Under clause (b) ibid, on the first day on which the offence comes to the knowledge of the person aggrieved thereby or of the authority competent to initiate action, which ever is earlier”, if, on that date itself the identity of the offender is also known. (b) Under clause (b) ibid, on the first day on which the offence comes to the knowledge of the person aggrieved thereby or of the authority competent to initiate action, which ever is earlier”, if, on that date itself the identity of the offender is also known. Clause (b) will not apply, if on the date specified therein, though there is knowledge of the commission of the offence, there is no knowledge of the identity of the offender, i.e. though the offence is known, the offender is not known. (c) Under clause (c) ibid on the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.” Clause (c) pre-supposes knowledge of the offence. (d) In case where the nature of offence or identity of the offender (s) are revealed only after investigation by a court of inquiry which is finalised with the direction of competent authority thereon, period of limitation shall commence from the date of endorsement of direction of the competent authority on the Court of Inquiry. 5. The fact that clauses (a), (b), (c) and (d) ibid are disjunctive indicates different commencement period of limitation depending on facts of each case. Therefore, the date from which the period of limitation is to be reckoned, is necessarily a question of fact; to be determined with regard to the facts and circumstances of each case. 6. “ What constitutes knowledge.” It unambiguously emerges from the foregoing discussion that the requisite knowledge contemplated i Sec 122 ibid relates to commission of the offence and identity of the offender and that the time limitation shall not begin to run until knowledge with regard to both aspects is required by either the person aggrieved or the authority competent to initiate action. The question, however, arises that constitutes such knowledge, i.e. the extent of such knowledge and degree of certainty thereof before limitation can be deemed to have commenced. Pertinently, since the knowledge contemplated in law has a reference merely to initiation of action, its extent or degree of certainly can not be equated to proof beyond doubt or even knowledge of all the facts and ingredients necessary to prima facie establish commission of the offence by the accused. Pertinently, since the knowledge contemplated in law has a reference merely to initiation of action, its extent or degree of certainly can not be equated to proof beyond doubt or even knowledge of all the facts and ingredients necessary to prima facie establish commission of the offence by the accused. At the same time, it cannot be vague, sketchy and lacking in certainty, tantamounting to mere allegation unsupported in certain material aspects. The knowledge, necessary before limitation begins to run must amount to “actionable information”, i.e. it should relate to the offence and the identity of the offender with reasonable precision and certainty to warrant action. 7. person aggrieved. The word “person aggrieved” are of a wide important can not be subjected to restrictive interpretation. These do not include, of course, a mere busybody interfering in things which do not concern him, but would, indeed include a person who has a genuine grievance because something has been done or omitted to be done contrary to what the law requires. The simple meaning of the words “person aggrieved”, in the context of Army Act Section 122, therefore, should be a person having suffered loss or injury, a victim of the crime, may be the NOK et when victim does not survive,. This would also include a person or an authority, who/which is, by or under any law, charged with the duty to administer it and to prosecute those who violate its provisions. Persons reporting misconduct of subordinates/superiors, in terms of para 316 of the Regulations for the Army, 1987 or brining to the cases of dishonesty, fraud or infringement of orders, to the knowledge of superiors, in terms of para 317 of the said Regulations, can also be treated as aggrieved persons provided such persons are directly affected by such misconduct or fraud etc. of the perpetrators and the information rendered by them is clear and sufficient to establish the offence and identity of the offender. 8. Authority competent to initiate action. The process of disciplinary action under the Army Act, as is well known, commences with hearing of the charge, in terms of AR-22, by ; the CO of the offender. Therefore, the CO certainly would constitute as “authority competent to initiate action” envisaged in Sec.122. 8. Authority competent to initiate action. The process of disciplinary action under the Army Act, as is well known, commences with hearing of the charge, in terms of AR-22, by ; the CO of the offender. Therefore, the CO certainly would constitute as “authority competent to initiate action” envisaged in Sec.122. Undoubtedly, he can not be said to be the only authority to do so even though, in law, he alone is competent to “hear and charge”. The emphasis in the expression “authority competent to initiate action” is clearly on competence to initiate (or direct) action and no mere competence to initiate process of disciplinary action. Hence, an authority vested with the powers to direct initiation of disciplinary action in respect of the particular offender, shall also be included in the above expression. Therefore, in cases where disciplinary action proceeds on the basis of the directions of the competent superior authority, the period of limitation shall reckon from the date such authority acquires requisite knowledge of commission by the accused of the relevant offence and not from the date the CO initiates the process of disciplinary action hearing the charge in pursuance of such directions. 9. Relevance of Court of Inquiry . The holding of C of 1, the date of its commencement, completion or finalisation by a competent authority, per se have no direct bearing on the period of limitation, which, as mentioned above, should begin to run from the moment there is requisite knowledge on part of the person aggrieved or authority competent to initiate action The various dates and details pertaining to the C of I in a given case, would be relevant only to the extent to which these may help in determination of the date on which requisite knowledge was acquired. Holding of a C of I not being a sine-qua-non for a disciplinary action under the Army Act, the very purpose of holding it usually, is either to determine nature of the offence, if any, committed or to establish the identity of the offender in complicated cases. 10. “Period of limitation reckons from the moment there is knowledge. Holding of a C of I not being a sine-qua-non for a disciplinary action under the Army Act, the very purpose of holding it usually, is either to determine nature of the offence, if any, committed or to establish the identity of the offender in complicated cases. 10. “Period of limitation reckons from the moment there is knowledge. The expression “ First day on which such offence ( or the identity of the offender) comes to the knowledge”, employed in Section 122, would appear to imply that the period of limitation must reckon from the earliest date on which the requisite knowledge was acquired by the aggrieved person or the authority competent to initiate action. The period of limitation, therefore, must he deemed to reckon from the moment there is knowledge and not from any hypothetical point on which the assumption of knowledge. The said expression cannot be equated with the first day on which the alleged offence ought to have come to the knowledge of the person/authority concerned had he been diligent or had not delayed making the inquiry. No hard and fast rules or a mathematical preposition can be laid down for establishing the fact as to when does the competent authority come to know of the commission of the offence and the identity of the offender. However, at the same time, unless this particular point of time is specified, the commencement of period of limitation will remain speculative. Where the identity of the offender or the commission of the offence is known to the said authority from the date of the commission of the offence and there is no requirement of any investigation or further investigation in the matter for this purpose, the period of limitation would, undoubtedly, commence from such date itself. Indeed the problem arises when there is a need to establish either identity of the offender or the commission of the offence or both by the competent authority to initiate action, by way of C of I or any other investigative method. In such cases, to obviate individual interpretations, and for the sake of uniformity, the date of knowledge has to be taken as the date when such competent authority endorses its views on the finding(s) of the C of I or such other investigation in regard to commission of the offence(s) by delinquent (prospective accused). In such cases, to obviate individual interpretations, and for the sake of uniformity, the date of knowledge has to be taken as the date when such competent authority endorses its views on the finding(s) of the C of I or such other investigation in regard to commission of the offence(s) by delinquent (prospective accused). If the authority concerned does not agree with the finding(s) of the court etc., which has prima facie established the commission of the offence and the identity of the offender, and, consequently, requires/directs further investigation, the period of limitation cannot be said to have commenced as the competent authority is to yet sure of either the commission of the offence or the identity of the offender or both. In such cases, the date of commencement of period of limitation shall be taken as the date when competent authority arrives at a conclusion as to what offence is committed and who is to be blamed for the same. The period of limitation will be deemed to have commenced w.e.f. the date such authority has made the aforesaid recommendation (s). would neither be fair nor equitous to keep waiting/stalled till the time final directions with respect to disposal of the case have been issued by such superior authority. However, while carrying out an investigation in any matter in question, provisions of para 402 of the Regulations ibid must be kept in mind so that no undue delay takes place in conducting the inquiry, which can, otherwise, act as a good ground for a plea in bar of trial as it may not be possible to exclude such unexplained/unjustified delays from the period of limitation. 11. Complaint cases. In the cases which originate on the basis of any type of complaint, the period of limitation would commence from the date of its receipt by the authority competent to initiate action provided the complaint contains the details pertaining to nature of the offence and the identity of the offender(s) with reasonable precision and certainty, duly supported by facts in material aspects of the case. In the absence thereof, it would have to be reckoned from the date on which the said authority acquires the requisite knowledge on these aspects after receiving the proceedings of the relevant inquiry instituted in the case to the satisfaction of the authority competent to initiate action based on the said complaint. 12. C.B.I. Cases. In the absence thereof, it would have to be reckoned from the date on which the said authority acquires the requisite knowledge on these aspects after receiving the proceedings of the relevant inquiry instituted in the case to the satisfaction of the authority competent to initiate action based on the said complaint. 12. C.B.I. Cases. In the cases investigated by the CBI, the period of limitation would commence from the date of the receipt of a copy of the preliminary Inquiry (PE), registration report or that of FIR, as the case may be, by the authority competent to initiate disciplinary action against the accused; provided it discloses the offence and the identity of the offender. In cases where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence only from the date of receipt of the final report of the CBI, if containing such disclosure. 13) Continuing offences. If an act or omission on the part of the accused constituting an offence continues from day to day, a fresh offence is committed on every day on which the act or omission continues. Accordingly, a fresh period of limitation begins to run at every moment of the time during which the offence continues. 14. In view of the above, the date from which the period of limitation begins to run depends only on the point in time on which the person aggrieved or authority competent to initiate action acquires knowledge with regard to the nature of the offence committed as well as identity of the offender. Knowledge acquired by such authority at the time of commission of the offence or its discovery or various stages of inquiry/investigations for the purpose of determination of the aforesaid two aspects, is relevant to establish the date from which such period commences to run. Thus, commencement of period of limitation in each case would really be a question of fact to be determined based on the facts and circumstances themselves. 15. The contents of this letter may please be disseminated down to the unit level for guidance and compliance. 16. A copy of this letter shall be kept in the court martial box.” 8. Thus, commencement of period of limitation in each case would really be a question of fact to be determined based on the facts and circumstances themselves. 15. The contents of this letter may please be disseminated down to the unit level for guidance and compliance. 16. A copy of this letter shall be kept in the court martial box.” 8. On the basis of the language used in Section 122 Army Act and the interpretation adopted as per the policy above, the scope and the extent of plea of limitation in various eventualities can be summed up as follows: (i) the commencement of the period of limitation will depend on the facts of the each case and the period from which the period of limitation is to be calculated would be a question of fact to be determined with regard to facts and circumstances of each case, (ii) the knowledge, necessary before the limitation begins to run must amount to “actionable information” relating to the offence and the identity of the offender with reasonable precision and certainty to warrant action; (iii) for the purpose of clause-c of Section 122 of the Army Act the period of limitation will start when the victim of the crime identified the offender to the competent authority to initiate disciplinary proceedings; (iv) in cases where disciplinary action proceeds on the basis of the directions and the competent statutory authority under Army Rule 22, the period of limitation shall reckon from the date the said authority acquires requisite knowledge of commission of offence by the accused of the relevant offence and not from the date the C.O. initiates process of disciplinary action by hearing the charge in pursuance of such directions; (v) in cases of complaint the period of limitation would commence from the date of its receipt by the competent authority. In CBI cases the period of limitation would commence from the date of the receipt of a copy of the preliminary inquiry, provided it discloses the offence and the identity of the offender. In CBI cases the period of limitation would commence from the date of the receipt of a copy of the preliminary inquiry, provided it discloses the offence and the identity of the offender. In case where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence from the date of receipt of final report of the CBI, if it contains such disclosures; (vi) in cases of continuing offences, a fresh period of limitation begins to run every moment of the time during which the offence continues; (vii) depending upon the circumstances of each case, the commencement of the period of limitation for the purpose of Section 122 of the Army Act in each case would be a question of fact to be determined based on the facts and circumstances themselves. 9. Having summed up the scope of Section 122 Army Act, we now proceed to apply the same in this case. A perusal of the preliminary inquiry report (Annexure P-I) indicates that though the name of the petitioner was excluded as a suspect along with others but a probe regarding the irregularities was entrusted to Inspector R.S. Jamwal, CBI, Chandigarh. The said Inspector subsequently conducted the investigation and submitted a final report, copy of which has been placed on record as Annexure R-2 in which only administrative action against the petitioner, Capt. R.K.Dahiya, Nb Sud. Mohan Dass, Hav. Janak Raj as deemed fit by the army authorities has been recommended. The final report of the CBI was submitted on 13.11.2001. It would be a disputed question of fact whether in the present case, for the purpose of trial of the petitioner by Court Martial, the period of limitation would be reckoned from the date when the petitioner was named as a suspect or from the date when he was actually indicted or from the date when an administrative action was recommended by the CBI. We refrain from expressing our opinion in writ jurisdiction as to whether the “preliminary report” Annexure P- l or “the final report” Annexure R-2 would constitute an actionable information for the purpose of determining limitation under Section 122 of the Army Act lest it should prejudice the rights of the parties before the statutory forum meant for determining the same. 10. 10. Another fact, which has been reflected from the reply filed by the respondents is that a court of inquiry had been ordered by the concerned Head Quarter vide convening order No.1451/3/PH/ A-I dated 27.4.2003 for the purpose of investigating the allegations against the petitioner and others relying upon the report of CBI dated 13 .11.2001 (Annexure R-2). The Court of Inquiry proceedings were completed by Brg. P.K.Kapur, ACE (Wks), copy of which is Annexure R-3 with the reply. The opinion of the Court of Inquiry is as follows: “opinion of the Court The Court is of the opinion that: (a) Fresh supplied were tendered by the supply contractor on 20 Nov 99 ( which was not a regular issue day) presumably for the purpose of DDST’s Annual Departmental Inspector of Supply Depot Chandimandir. Subsequent actions by Col AS Dhillon, Capt. RK Dahiya, Nb Sub Mohan Dass and Hav Janak Raj to obtain demand of fresh supplies from units for 21 Nov 99, initiation of the book report and issue of warning to the contractor, were efforts made to justify that the fresh supplies tendered by the contractor on 20 Nov 99 were meant to be issued to unit on that day. Hence all of them are to be blamed for the lapse on their part. (b) Col AS Dhillon, erstwhile Commandant Supply Depot Chandimandir, falled to report the outcome of surprise check carried out by the CBI on 20 Nov 99 to ST Branch of HQ 2 Corps. (c) Brig GS Dhillon, the then DDST 1 HQ 2 Corps also failed to call for the detailed report of the surprise check by the CBI from Supply Depot,Chandimandir, though he was fully aware of the same. (d) An important document like the inspection register was not being maintained in the manner it should have been and given an impression that a very casual approach was adopted, both by Capt RK Dahiya and Nb Sub Mohan Das in this regard. (d) Capt. RK Dahiya did not appear to be fully conversant with the risk and expense procedure in case of default by the contractor. Presiding Officer: Sd/-xxx (IC-17337Y Brig PK kapur) Member 1. : Sd/- xxx ( IC-34472H Col Tarun Poddar) Member 2. : Sd/- xxx (IC-31465F Col Harpal Singh)” 11. (d) Capt. RK Dahiya did not appear to be fully conversant with the risk and expense procedure in case of default by the contractor. Presiding Officer: Sd/-xxx (IC-17337Y Brig PK kapur) Member 1. : Sd/- xxx ( IC-34472H Col Tarun Poddar) Member 2. : Sd/- xxx (IC-31465F Col Harpal Singh)” 11. It is interesting to note that the opinion of the Court of Inquiry regarding the irregularities committed by the petitioner and others is absolutely different from the irregularities pointed out by CBI in the preliminary report. It is not known at this stage, whether any charges can be framed on the basis of the opinion of ,Court of Inquiry or on the basis of irregularities pointed by the C.B.I. in its report (Annexure R-2), which are patently distinct from each other. The Court of Inquiry indicts the petitioner for irregularities which are purely in the nature of administrative irregularities as the petitioner failed to report the out come of the surprise check carried by the C.B.I. on 20.11.1999 to S.T. Branch of Head Quarters 2 Corps. The name of or Brig. G.S.Dhillon has also been included in the array of officers who had allegedly committed departmental irregularities. The allegations investigated by the CBI and the conclusion arrived at by the C.B.I. are absolutely different from the conclusion arrived at by the Court of Inquiry. So far as the Court of Inquiry is concerned Rule 177 of the Army Rules defines Court of Inquiry as follows: ‘’177. “Court of Inquiry:- “ (1) A court of inquiry is an assembly of officers or officers and junior commissioned officers or warrant officers or non-commissioned officers directed to collect evidence, and, if so required, to report with regard to any matter which may be referred to them. (2) The court may consist of any number of officers of any rank, or of one or more officers together with one or more junior commissioned officers or warrant officers or non commissioned officers. The members of court may belong to any branch or department of the service, according to the nature of the investigation. (3) A court of inquiry may be assembled by the officer in command of any body of troops, whether belonging to one or more crops.” 12. The members of court may belong to any branch or department of the service, according to the nature of the investigation. (3) A court of inquiry may be assembled by the officer in command of any body of troops, whether belonging to one or more crops.” 12. As per the law laid down in Maj.Suresh Chand Mehta vs Union of India AIR 1999 SC 485, the Court of Inquiry is merely in the nature of preliminary investigation, which cannot be equated with trial. We are of the opinion that in case any proceedings under the Army Act are to be initiated, on the basis of the Court of Inquiry, the limitation would run from the date when the competent authority is to initiate disciplinary action against the person. Again a disputed question of fact would arise whether the period of limitation shall start from the date of final CBI report or from the date of finalisation of the Court of Inquiry for the purpose of the irregularities, alleged in the CBI report. or for the misconduct alleged in the . report of Court of Inquiry. It is a settled principle of law that holding of Court of Inquiry is not sine-qua-non for disciplinary action under the Army act. The purpose of holding a Court of Inquiry is either to determine the nature of the offence, if any, committed or to establish the identity of the offender in complicated cases. It will not be out of place to mention here that disciplinary proceedings are actually initiated on hearing of charge by complying Army Rule 22 , which reads as follows: “ 22. Hearing of charge:- (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence; Provided that where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). (2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed and may do si, he is satisfied that the charge ought not to be proceeded with; provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec.120 without reference to superior authority as specified therein. (3) After compliance of sub.-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time- (a) dispose of the case under Section 80 in accordance with manner and form i Appendix III; or (b) refer the case to the proper superior military authority; or (c) adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial; provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or an active service a summary general court-martial for the trial of the alleged offender unless- (a) the offence is one which he can try by a summary court martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.” 13. A perusal of the above said rule indicates that after compliance of Rule 22 of the Amy Rules if the Commanding Officer orders recording of summary of evidence, the same would take place in accordance with Army Rule 23, where the petitioner will have an opportunity to cross-examine the witnesses and produce his defence witnesses. A perusal of the above said rule indicates that after compliance of Rule 22 of the Amy Rules if the Commanding Officer orders recording of summary of evidence, the same would take place in accordance with Army Rule 23, where the petitioner will have an opportunity to cross-examine the witnesses and produce his defence witnesses. Rule 23 is reproduced for ready reference: “Procedure for taking down the summary of evidence” - (1) where the case is adjourned for the purpose of having the evidence reduced to waiting, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” Any statement thereupon made by the accused shall be taken down and read to him, but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires, any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in language which he understands. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III”. 14. After compliance of Army Rule 23, the matter is again considered by the Commanding Officer who has the option either to dismiss the charge or remand the accused for trial by Court Martial or refer the case to the proper superior military authority. Rule 24 of the Army Rules reads as: “24. Remand of accused- (1) The evidence and statement (if any) taken down in writing in pursuance of rule 23 (hereinafter referred to as the “summary of evidence”), shall be considered by the commanding officer, who thereupon shall either. (a) remand the accused for trial by a court-martial; or (b) refer the case to, the proper superior military authority; or (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a court-martial, the commanding officer shall without unnecessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court- martial when such reference is necessary) or apply to the proper military authority to convene a court-martial as the case may require.” 15. (2) If the accused is remanded for trial by a court-martial, the commanding officer shall without unnecessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court- martial when such reference is necessary) or apply to the proper military authority to convene a court-martial as the case may require.” 15. In view of the above said legal provisions of the Army Act and the Rules framed there under, we are not inclined to believe at this stage that the respondents have already passed an order for commencement of the Court Martial proceedings against the petitioner. The petitioner is stated to have retired during the pendency of the petition. Therefore, expression of any opinon regarding the applicability of Section 122 of the Army Act would not be warranted as it is the statutory prerogative of the Court holding the trial by way of Court Martial after the same is convened under Rule 37 of the Army Rules to form opinion that the charges, if any, are required to be tried by the court for the offences within the meaning of the Army Act. There is a specific time prescribed for raising the plea of limitation under Chapter 5 of the Army Rules pertaining to the investigation of charges and trial by Court Martial. Rule 53 of the Army Rules enables an accused at the time of his trial to raise the plea of bar. Relevant portion of Rule 53 is reproduced hereunder for ready reference:- “ 53 Plea in bar-(1) The accused, at the time of his general plea of “Guilty” or “Not Guilty” to a charge for an offence, may offer a plea in bar of trial on the ground that- (a) he has been previously convicted or acquitted of the offence by a competent criminal court or by a court-martial, or has been dealt with summarily under sections 80,83,84 and 85, as the case may be, for the offence, or that a charge in respect of the offence has been dismissed as provided in sub-rule (2) of rule 22; or (b) the offence has been pardoned or condoned by competent military authority; (c) the period of limitation for trial as laid down in Section 122 has expired.” 16. In view of the above discussion, we are of the opinion that for the purposes of reckoning the period of limitation for the purpose of trial by Court Martial, it will be premature at the stage when merely and order of attachment (Annexure P-2) has been issued, to enter into the disputed question of fact regarding the period of limitation having expired for the purpose of trial or to presume that on the basis of the preliminary/final report by CBI, which is subjectively different from the report of Court of Inquiry, any action under Chapter V of the Army Rules, 1954 can be taken or has been decided to be taken by the respondents. Maintainability of writ petition? Learned counsel for the petitioner has taken firm stand that in this case despite the availability of the alternative remedy, the facts and circumstances of this case warrant that a writ in the nature of prohibition be issued restraining the respondents from attaching the petitioner under Army Instructions 30 of 1986 for the purpose of disciplinary action against the petitioner and for quashing the same being without jurisdiction. Learned counsel has placed a strong reliance on the judgment of this Court in Union of India and others vs N.K.Kaushik 1998(1) All Instant Judgments 202 in support of the contention that despite the availability of alternative remedy under Army Rules 49,51 or 53, initiation of Court Martial proceedings after the expiry of limitation period will be an inhibition for the High Court to go into pure question of law on the ground that the alternative remedy is available. The facts of the case of N.K.Kaushik (supra) cited by the counsel for the petitioner are claimed to be akin to the facts of the present case. 17. We have carefully gone through the said judgment. In the case cited by the learned counsel for the petitioner, Col. N.K.Kaushik had filed a writ petition for quashing the order attaching him at 612(1) AD Brigade for continuing with the disciplinary proceedings towards Court Martial on the ground that it was without jurisdiction as the charges and the offences against him had become barred by time for the purpose of trial. His petition was allowed by the learned Single Judge and order attaching him was held to be without jurisdiction and the subsequent proceedings were quashed. His petition was allowed by the learned Single Judge and order attaching him was held to be without jurisdiction and the subsequent proceedings were quashed. Few facts of the said case are also relevant to be noted as the incident in the said case seems to be prior to the amendment of Section 122 of the Army Act (6.9.1992). Col. N.K.Kaushik remained posted in Ambala upto 28.8.1992. The C.B.I. agency had conducted a raid in the premises of Garrison Engineers in the first week of February, 1992 in context with local purchases, which had been made on exorbitant prices. Preliminary inquiry report was submitted on 18.3.1992. He was held not involved by the army authorities. His tenure came to an end on 28.8.1992. Thereafter, he proceeded on posting as Head of the Department, Civil Engineering at Pune. He received a message on 5.7.1995 requiring him to reach Ambala by 11.7.1995. He pressed into service Section 122 of the Army Act on the plea that offence, if any, had come to the notice of the authorities on 5.7.1992 and in any case when the C.B.I. had submitted the preliminary inquiry report on 18.3.1992. The Union of India had taken up the plea that alternative remedy was available to Col.N.K.Kaushik and that the C.B.I. had submitted the inquiry report in May 1995 indicting N.K.Kaushik and that the proceedings were within three years. The Single Bench had quashed the proceedings, which were upheld by the Division Bench in the above said judgment. The Division Bench had further held that the proceedings which were being initiated were barred by time and it was so established on the face of it; the existence of alternative remedy would not restrain the High Court in going into the pure question of law which went to the root of the matter for adjudicating the controversy. The finding of fact was recorded therein that the period of limitation in the case of N.K.Kaushik had started running with effect from 19.3.1992, as such Section 122 of the Army Act will come into operation. The relevant portion of the judgment in N.K.Kaushik’s case (supra) is reproduced as follows: “ We have no hesitation in observing that if an alternative remedy is available, the High Court would be reluctant to interfere. The party concerned must avail of the alternative remedy. The relevant portion of the judgment in N.K.Kaushik’s case (supra) is reproduced as follows: “ We have no hesitation in observing that if an alternative remedy is available, the High Court would be reluctant to interfere. The party concerned must avail of the alternative remedy. But at the same time, there is no over emphasizing the fact that if the question goes to the root of the matter, allowing the proceedings would be shear harassment to the individual, the long arm of law will not permit the same. If the proceedings which were being initiated were barred by time and it is so established on the face of it, we find that the learned Single Judge rightly felt that the same can be quashed at the threshold. Thus merely because under Rules 49, 51 and 53 of the Army Rules, such a peal could be taken, will not restrain the High Court in going into pure question of law going to the root of the matter and adjudicating the same. In this view of the matter, there is no error of jurisdiction in this regard..........” 18. We have carefully gone through the facts of the case of N.K.Kaushik and the reasoning adopted by this Court for quashing the proceedings in the said case by following the judgment in Major Radha Krishan vs. Union of India and others,J.T. 1996(3) S.C. 650 . In the case of Major Radha Krishan’s case (Supra) the Chief of the Army Staff had formed an opinion that his trial for the misconduct was impracticable having become time barred by the time the court of Inquiry was finalised and further retention of Major Radha Krishan was considered to be undesirable, as such show cause notice was issued as to why his services be not terminated under Rule 14(2). It was held by the Hon’ble Supreme Court in Major Radha Krishan’s case (Supra) that once the period of limitation for trial is over, the authorities cannot take action under Rule 14(2) of the Army Rules to dispense with the service of an army officer. 19. Learned counsel for the respondents Mr.Gurpreet Singh has vehemently urged that in view of the judgment of the Hon’ble Supreme Court in Delhi Special Police Establishment New Delhi vs Lt.Col. 19. Learned counsel for the respondents Mr.Gurpreet Singh has vehemently urged that in view of the judgment of the Hon’ble Supreme Court in Delhi Special Police Establishment New Delhi vs Lt.Col. S.K.Loraiya AIR 1972 Supreme Court 2548, the question of limitation has to be decided by Court Martial alone because issue of limitation is part of the trial before it. 20. It is apt to mention that the decision in Loraiya’s case (supra) has been followed in CWP No. 1259 of 2001 ( Major L.Sharma vs Union of India) by the Delhi High Court decided on 2.5.2001 wherein the judgment in Major Radha Krishan’s case (supra) has been distinguished having been rendered under unamended provisions of Section 122 of the Army Act. It was held that the plea of limitation under Section 122 of the Army Act can be raised before the General Court Martial only. 21. Learned counsel for the respondents has tried to distinguish the judgment of Lt.Col. S.K.Loraiya’s case (supra) on the ground that the judgment in the case of Major Radha Krishan’s case (supra) followed by the Division Bench in the case of N.K.Kaushik has been overruled by the judgment of Union of India vs Harjit Singh Sandhu AIR 2001 SC 1772, wherein it was observed as follows: “ 42. We are also of the opinion that Major Radha Krishan’s case (1996 AIR SC 1548: AIR 1996 SC 3091) lays down propositions too broad to be acceptable to the extent it holds that once the period of limitation for trial by court martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept different from impossibility (for impermissibility, for that matter). The view of the Court in that case should be treat as confined to the facts and circumstances of that case alone. We agree with submission of the learned Additional Solicitor General that the case of Dharam Pal Kukrety ( AIR 1985 SC 703: 1986 Lab IC 41: 1988 Cr.LJ 913) being a Three-Judge Bench decision of this Court, should have been placed before the Two-Judges Bench which heard and decided Major Radha Krishan’s case.” 22. We agree with submission of the learned Additional Solicitor General that the case of Dharam Pal Kukrety ( AIR 1985 SC 703: 1986 Lab IC 41: 1988 Cr.LJ 913) being a Three-Judge Bench decision of this Court, should have been placed before the Two-Judges Bench which heard and decided Major Radha Krishan’s case.” 22. Learned counsel for the petitioner states that the judgment in the case of N.K.Kaushik’s case (supra) has been rendered on the basis of the judgment of the Supreme Court in Major Radha Krishan’s case (supra) which is applicable to the facts of the present case also and the observations made in S.K.Loraiya’s case (supra) are merely obiter and the ratio of the said case is distinguishable from the facts of the present case. 23. After considering the ratio of the ruling of the Supreme Court in Harjit Singh’s case (supra) , we are of the opinion that the judgment in Major Radha Krishan’s case (supra) is confined to the facts of that case alone and the same could not be applied in the case of N.K.Kaushik (supra). It is a settled principle of law that the existence of alternative remedy will not operate as bar for the High Court to exercise the writ jurisdiction but the guiding principles have been laid down in a large number of precedents that if an effective efficacious remedy is available, the High Court would not normally exercise its writ jurisdiction. Alternative remedy would not operate as a bar in three contingencies (i) where the writ petition has been filed for the enforcement of any of the fundamental rights or (ii) where there has been a violation of principle of natural justice or (iii) where the order of proceedings are wholly without jurisdiction or the vires of an act are challenged. In this context reference can also be made to Whirlpool Corporation vs. Registrar of Trade Mark Mumbai and others J.T. 1998(7). SC 243. The existence of an alternative statutory remedy would certainly call upon this Court to refrain from exercising extra ordinary jurisdiction especially when the disputed question of fact is yet to be determined by a statutory forum and where the petitioner has rushed to the High Court without availing the alternative remedy. SC 243. The existence of an alternative statutory remedy would certainly call upon this Court to refrain from exercising extra ordinary jurisdiction especially when the disputed question of fact is yet to be determined by a statutory forum and where the petitioner has rushed to the High Court without availing the alternative remedy. With utmost respect to the Bench, we differ from the ratio of the ruling in N.K.Kaushik’s case (supra) for the following reasons: (i) The said judgment has been passed following the ratio in Major Radha Krishan’s case (supra) which has been overruled subsequently by the judgment of Hon’ble Supreme Court in Harjit Singh’s case (supra). (ii) In S.K.Loraiya’s case (supra) while interpreting Section 122 of the Army Act, it was held by the Supreme Court that it is only the Court Martial, which has got jurisdiction to decide the issue of limitation by entering upon the inquiry having the initial jurisdiction to try an accused under the Act. Observations in S.K.Loriaya’s case were not brought to the notice of the Division Bench deciding N.K.Kaushik’s case. (iii) In view of our observations that the question of limitation in the present case is a mixed question of law and fact, it will not be appropriate to quash the proceedings by giving a finding of fact regarding limitation and to restrain the authorities from taking disciplinary action. 24. This petition has been filed against an attachment order apprehending the initiation of Court Martial proceedings whereas various intervening steps of hearing of charge and convening of Court Martial have not been taken, as such the petition is premature. 25. In view of the statutory remedy available with the petitioner under Army Rules 22 to 24 and Rules 49, 51 and 53, the writ petition against the anticipated Court Martial proceedings is not maintainable. 26. In view of the above detailed discussion, the writ petition is dismissed with liberty to the petitioner to raise the issue of limitation and other defences available to him before the statutory authorities under the Army Act.