JUDGMENT Hon’ble Bharati Sapru, J.—Heard learned Counsel for the petitioner and the learned Addl. Solicitor General of India appearing on behalf of respondents. 2. The petitioner has filed the instant writ petition seeking the following reliefs : (i) to issue a writ, order or direction in the nature of certiorari quashing the sentence of the Summary Court Martial (Annexure 5 above); (ii) to issue a writ, order or direction in the nature of certiorari quashing the order of rejection of the petition under Section 164 (2) of the Army Act submitted by the petitioner to respondent No. 2 (Annexure 7 above); (iii) to issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner in service with pay allowances and seniority; (iv) to issue any other and further order as this Hon’ble Court may deem fit and proper under the circumstances of the case; (v) to award the costs of this petition to the petitioner.” 3. By the impugned order, an order of dismissal was passed against the petitioner on 17.6.1995 and thereafter the petitioner’s appeal under Section 164 of the Army Act, 1950 (hereinafter referred to as the Act of 1950) had also been rejected by the army authorities on 23.10.1997. 4. The facts of the case are that the petitioner Mahendra Kumar Tiwari was serving with 509 Army Base Workshop, Agra Cantt. From 1.8.1990 to 24.4.1992. On 11.2.1992 it was reported by one person that the petitioner was found in a field near Kendriya Vidyalaya Primary School under suspicious circumstances with one civilian with whom the petitioner was alleged to be engaged in unnatural act of sex. The petitioner had been absent from roll call without taking due permission to be away from 22 hours. 5. The petitioner was tried under the provisions of Section 39 (d) of the Army Act, 1950 and he was punished by giving him reduction in rank under Section 18 of the Act of 1950. 6. The petitioner was thereafter posted out to another unit i.e. 623 EME Battalion at Ranchi on 24.4.1982. Later on 1994 the petitioner was posted to 608 EME Battalion in Jammu & Kashmir. 7. 6. The petitioner was thereafter posted out to another unit i.e. 623 EME Battalion at Ranchi on 24.4.1982. Later on 1994 the petitioner was posted to 608 EME Battalion in Jammu & Kashmir. 7. The version of the petitioner is that while the petitioner was posted in Agra, the authorities were inimical to the petitioner, on account of the fact that the authorities and officials at Agra unit were putting pressure on the petitioner to sell off his new motorcycle, which had been given to him by his father to them and he was resisting to do so. The petitioner was punished for certain other acts of harassment and because he had not succumbed to the pressure, the authorities in the Agra unit tried to falsely implicate him for indulging in an offence of disgraceful conduct under Section 46 (a) of the Act, 1950. 8. The petitioner approached the Battalion Commander Lt. Colonel R.S. Jolly to ventilate his grievance but according to the petitioner no heed was taken to his grievance. Therefore the petitioner had no option but directly sent his complaint to the respondent No. 2 Chief of the Army Staff. 9. The respondent No. 2 Chief of the Army Staff took cognizance of the complaint of the petitioner and asked for a Court of enquiry to be convened to go into the complaint of the petitioner. The Court of enquiry was convened and it had completely exonerated the petitioner and according to the petitioner, the Battalion Commander annoyed with this fact also. Therefore he charged the petitioner for having failed to appear for parade/duty at the fixed time under Section 39 (d) of the Act, 1950. The petitioner was thus awarded punishment of reduction of rank from Naik to Craftsman. 10. According to the petitioner that the authorities were very annoyed with the petitioner and therefore they raked up the cases against the petitioner and charge-sheeted him on 18.4.1995 under the provisions of Section 63 read with Section 56 (a) of the Act, 1950. The charge-sheet issued to the petitioner reads as under : “CHARGE-SHEET 11. The accused No. 14533338-K Cfn Mahendra Kumar Tiwari of 608 EME Bnatt 509 Base Workshop Agra is charged with : FIRST CHARGE : AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE. The charge-sheet issued to the petitioner reads as under : “CHARGE-SHEET 11. The accused No. 14533338-K Cfn Mahendra Kumar Tiwari of 608 EME Bnatt 509 Base Workshop Agra is charged with : FIRST CHARGE : AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE. ARMY ACT in that he, SECTION 63 at Agra, on 25 Apr 92, submitted an application directly to the Chief of the Army Staff, thereby violating the provisions of Para 559 of Regulations for the Army 1987. (Revised) SECOND CHARGE ARMY ACT SEC. 56 (a)- MAKING FALSE ACCUSATIONS AGAINST A PERSON SUBJECT TO ARMY ACT, KNOWING SUCH ACCUSATION TO BE FALSE. In that he, At Agra, on 25 Apr. 92, in a complaint addressed to the Chief of Army Staff dated 25 Apr. 92 levelled the following accusations : (a) Lt. Col. RS Jolly, the Battalion Commander and Sub Maj Diwan Singh pressurized No. 14533338 K Cfn Mahendra Kumar Tiwari to sell his motorbike to Subl Maj Diwan Singh and to obtain furniture from MES for their personal use. (b) No. 14533338K Cfn Mahendra Kumar Tiwari has been implicated in a baseless and false case by Lt. Col. RS Jolly, the Battalion Com mander in connivance with IC, 50 (I) Para Bde Pro Unit. Well knowing the said accusations to be false. (KJ Singh) Major Offg. Col. Admn & OC Troops, 509 Army Base Station : Agra Cantt. Workshop, Dated 18 Apr. 94 Agra Cantt.” 12. The petitioner was thereafter attached and sent back to 509 Army Base Workshop, Agra Cantt. till the finalization of the disciplinary case and an order of movement was made on 16.5.1994. 13. It may be noted here that incident had taken place at Agra. The petitioner was tried by Summary Court Martial (hereinafter referred to as SCM) and was sentenced on 17.6.1995 by one Major K.J. Singh of 509 Army Base Workshop and the petitioner was awarded two punishments (i) to suffer rigorous imprisonment for three months in civil prison; and (ii) to be dismissed from service. 14. Against this order dated 17.6.1995, the petitioner filed a petition to the Secretary (Defence), Ministry of Defence, Government of India, New Delhi under Section 164 (2) of the Act, 1950. This petition before the appellate authority too was rejected. 15. 14. Against this order dated 17.6.1995, the petitioner filed a petition to the Secretary (Defence), Ministry of Defence, Government of India, New Delhi under Section 164 (2) of the Act, 1950. This petition before the appellate authority too was rejected. 15. Learned Counsel for the petitioner has argued that the proceedings before the Summary Court Martial (SCM) were illegal and without jurisdiction and completely vitiated because they were not properly conducted and suffered from various legal infirmities. 16. The first argument of the learned Counsel for the petitioner is that under para 453 of the Regulations of the Army Act, no person can be posted out to another unit if any disciplinary case is pending against him and even if it is needed, it can only be done after taking prior approval of the Discipline and Vigilance Directorate. 17. Learned Counsel for the petitioner has argued that the petitioner ceased to be on the strength of the Agra Base Workshop on 24.4.1992 and was taken on the strength of 623 EME Battalion Ranchi on 24.5.1992 and therefore it was not open to the respondents to conduct the Summary Court Martial at Agra. Accordingly the learned Counsel for the petitioner has argued that this was done in violation of the mandatory provisions of Rule 22 of the Army Rules, 1954 (hereinafter referred to as the Rules, 1954), because the Army Base Workshop at Agra had no jurisdiction to conduct the Summary Court Martial. 18. The second argument of the learned Counsel for the petitioner is that Rule 22 of the Rules, 1954 that every charge against the petitioner subject to the Army Act shall be heard by the Commanding Officer in the presence of the accused and since this is a mandatory requirement, non-observance of the Rule 22 would vitiate any subsequent disciplinary proceedings. 19. In support of his argument, the learned Counsel for the petitioner has cited the following decisions : (1) Lt. Col. P.P.S. Bedi and others v. Union of India and others, AIR 1982 SC 1413 ; (2) Naib Subedar Avatar Singh v. Union of India and others, 1989 Cr.L.J. 1986 (Del); (3) Union of India v. Dev Singh, 2003 Mil LJ 146 (SC); (4) Narendra Pal Singh v. Union of India, (Civil Misc. Writ Petition No. 20214 of 1994 decided by Allahabad High Court on 9.7.2001). 20. Writ Petition No. 20214 of 1994 decided by Allahabad High Court on 9.7.2001). 20. The violations which were made in the petitioner’s case as pointed out by the learned Counsel for the petitioner were firstly on 24.4.1992 the petitioner had been struck off from the strength of Agra Workshop (509 Base Workshop) and therefore it had no jurisdiction to conduct proceedings under the Rule 22 of the Rules, 1954. According to the petitioner, the cognizance of the alleged offence could have been taken only by the Commanding Officer of the Ranchi Unit i.e. 623 EME Battalion. 21. The other violation, according to the petitioner was that the Commanding Officer of Agra Base Workshop was the Commandant of the Workshop and not the Colonel Administration of the said Workshop. The petitioner has therefore complained that the Colonel Administration who conducted proceedings of Summary Court Martial not being the Commanding Officer could not have conducted the Summary Court Martial against the petitioner. 22. Thirdly the learned Counsel for the petitioner has argued that under the provisions of Section 82 of the Act, 1950 the Colonel Administration of the Base Workshop has been empowered to try individual summarily upto the rank of non-commissioned officer and they are not empowered to hold Summary Court Martial under Sections 116 and 120 of the Act, 1950. For this purpose the petitioner has relied on para 443 of the Regulations of Army. 23. In support of this argument, the learned Counsel for the petitioner has argued that even when the Regulations of the Army are non-statutory but they supplement the relevant statutory provisions wherever they exist and in this connection, the learned Counsel for the petitioner has sought to rely the following decisions : (1) Lt. Colonel Shyam Kumar v. Union of India and others, 1981 (2) SLJ 337 (Del); (2) JJR Tiwari v. Union of India, 1979 Cr.L.J. NOC 142 (Del). 24. In the said decisions, it has been held that Government in exercise of its executive powers can frame regulations or orders. 25. Colonel Shyam Kumar v. Union of India and others, 1981 (2) SLJ 337 (Del); (2) JJR Tiwari v. Union of India, 1979 Cr.L.J. NOC 142 (Del). 24. In the said decisions, it has been held that Government in exercise of its executive powers can frame regulations or orders. 25. Learned Counsel for the petitioner has sought to substantiate this argument by saying that the Colonel Administration has signed the charge-sheet for the Commandant to show that the Colonel Administration was not the Commanding Officer of the petitioner but only staff officer to the Commandant of the Agra Base Workshop and thus was clearly not empowered to conduct mandatory proceedings under Rule 22 of the Rules, 1954. 26. Learned Counsel for the petitioner has argued that proceedings were vitiated as only one witness i.e. Naib Subedar A.K. Pal was produced and in his evidence, no incriminating evidence was adduced against the petitioner and the staff officer has failed to apply his mind to the evidence given by Sri A.K. Pal. 27. Learned Counsel for the petitioner has further argued that violation of proper channel, if any, in approaching the higher authorities has been made against the petitioner. Though the petitioner was posted at Ranchi on 25.4.1992, no cognizance of the alleged office had been taken by the Commanding Officer at Ranchi. Therefore it is a case of no evidence. 28. Learned Counsel for the petitioner has further argued that both Lt. Col. R.S. Jolly and Subedar Major Diwan Singh were under the Command of Agra Unit and the Commanding Officer at Agra unit had interest and command over the witnesses. Therefore they were disqualified from holding Summary Court Martial. 29. The next argument as advanced by the learned Counsel for the petitioner is that the petitioner was illegally attached to the Agra Base because he could not have been transferred to any of the units and if the person was to be recalled to the unit where he had allegedly committed offence, it could only be done with the specific permission of the Army Headquarters. 30. It is the case of the petitioner that when he was posted at Agra Base Workshop on 24.4.1992, no case was pending against him. 31. 30. It is the case of the petitioner that when he was posted at Agra Base Workshop on 24.4.1992, no case was pending against him. 31. Learned Counsel for the petitioner has next argued that no Summary Court Martial by way of attachment from one unit to another is legally permissible except in case where the person is guilty of committing the offence of desertion. 32. Learned Counsel for the petitioner has argued that it is implicit in the provisions of Section 120 (3) of the Act, 1950 that only the Commanding Officer under whom the person is serving can hold the Summary Court Martial. For this purpose, he has relied on the following decisions : (1) Mahipal Singh v. Union of India and others, 1984 LIC 2365. (2) Havildar (MP) Hanuman Singh v. Union of India and others, 1999 Mil LJ 37 (All). 33. In both these cases, this Court has held that the attachment of the army personnel for trial by Summary Court Martial other than the Commanding Officer of the unit where he is working would invalidate the entire proceedings. 34. Apart from this, the violation of Rule 22 for the Summary Court Martial, the learned Counsel for the petitioner has argued that the procedure was not properly followed and conducted fairly on the following grounds : (i) no right of cross-examination was afforded to the accused; (ii) no witness from Ranchi unit was examined; (iii) the evidence of Lt. Col. R.S. Jolly and Subedar Major Diwan Singh were taken who was interested witnesses; (iv) the Army Rule 118 was violated. (v) the cognizance of the act could only be taken by the Ranchi unit; and lastly (vi) the friend of the accused was not allowed to defend the petitioner. 35. In reply to the arguments made by the learned Counsel for the petitioner, the learned Counsel for Union of India has argued that the petitioner has filed his petition directly to the Chief of the Army Staff on 25.4.1992 violating the provisions of para 559 of the Army Regulations as well as provisions of Section 63 of the Army Act, 1950. Subsequently his complaint was duly processed and a Court of enquiry was constituted to investigate the allegations made by the petitioner. Subsequently his complaint was duly processed and a Court of enquiry was constituted to investigate the allegations made by the petitioner. The Court of enquiry submitted its report on 9.9.1993 and found that the allegations made by the petitioner was false and baseless and therefore the Commander Lucknow Sub Area directed the disciplinary action to be taken against the individual for violating the laid down channel of correspondence and levelling false accusation against two officers. 36. In the meantime, the petitioner had been posted out from 623 EME Battalion to 608 EME Battalion. However 608 EME Battalion took the case of attachment of the petitioner to 509 Army Base Workshop Agra for disciplinary action on the plea that the unit was engaged in counter insurgency operations and the witnesses were available at Agra only. Subsequently the orders were issued for posting the petitioner at 509 Army Base Workshop by movement order dated 16.5.1994. 37. Learned Counsel for the Union of India further argued that offence was committed by the petitioner at Agra and all essential witnesses were from Base Workshop at Agra and therefore the attachment of the petitioner was made to 509 Army Base Workshop at Agra. 38. Learned Counsel for the respondents Union of India has further argued that the entire proceedings of the Summary Court Martial was done in accordance with the provisions of Rule 22 of the Rules, 1954. He argued that the hearing of the charge was conducted on 21.9.1994 under Section 56 (a) and Section 63 of the Act, 1950. A summary of the evidence was recorded by Major Arun Sehgal and it was completed on 28.2.1995. The recording of evidence was slightly delayed on account of calling of essential witnesses of the case. Out of nine witnesses, five had retired from service and four had been posted out on completion of summary of the evidence. Therefore the permission was obtained from the Station Commander Agra to try the accused by Summary Court Martial and all pre-trial papers were found to Deputy Judge Advocate General Branch, Headquarters Central Command, Lucknow for obtaining legal advice for Summary Court Martial. 39. Therefore the permission was obtained from the Station Commander Agra to try the accused by Summary Court Martial and all pre-trial papers were found to Deputy Judge Advocate General Branch, Headquarters Central Command, Lucknow for obtaining legal advice for Summary Court Martial. 39. He has further argued that the accused was tried by the Summary Court Martial under Section 116 (1) of the Act, 1950 for the charges framed when the petitioner was posted at 623 EME Battalion from where the petitioner had been posted out at 509 Army Base Workshop, by an order dated 27.1.1994. In the meantime, the petitioner had been posted out from 623 EME Battalion Ranchi to 608 EME Battalion and therefore the case was forwarded to 608 EME Battalion by 623 EME Battalion but because 608 EME Battalion was engaged in counter insurgency operations, the matter sent to 509 Base Workshop at Agra. 40. Learned Standing Counsel for the Union of India has also pointed out that the Commandant of the Base Workshop at Agra is B-1 Warrant holder under the provision of S.R.O. No. 203/79 and he had been delegated the disciplinary powers of the Sub-Area Commander. The disciplinary power of Commandant of the Base Workshop at Agra had been delegated to O.I.C. Administration and Officer Commanding Troops to try JCO/OR of the Workshop under the provisions of A.O.No. 251/72. Therefore by virtue of this delegation, Officiating Colonel Administration conducted the Summary Court Martial as permission for trying the petitioner had already been obtained from the Station Commander Agra. 41. Learned Counsel for the respondents Union of India has also argued that the Summary Court Martial was carried out strictly as per the rules and regulations and the accused was provided with service officer as ‘friend of accused’ to guide and advice but he was withdrawn on the request of the accused. The petitioner had sought permission to engage a civil lawyer to be used as friend of the accused under Rule 129. As is provided under Rule 129 civil lawyer can assist the petitioner but was not allowed to examine or cross-examine. The extract of Rule 129 of Rules, 1954 is reproduced below : “129. Friend of accused.—In any summary Court-martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. As is provided under Rule 129 civil lawyer can assist the petitioner but was not allowed to examine or cross-examine. The extract of Rule 129 of Rules, 1954 is reproduced below : “129. Friend of accused.—In any summary Court-martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the Court.” 42. Therefore the complaint of the petitioner that the civil lawyer was not allowed to examine or cross-examine is not justified as it is impermissible under the Rule aforesaid. 43. Learned Counsel for the respondents also argued that the provisions of Rules 22 and 23 were fully complied. The accused was served with charge-sheet 96 hours before the trial on 18.4.1995 at 1630 hours and the trial was commenced on 22.4.1995 at 1700 hours. 44. Learned Counsel for the respondents has therefore argued that no prohibition or violation of Rule 22 or Rule 23 of the Rules 1954 was made during the proceedings of Summary Court Martial. He has also argued that the proceedings under Rules 22 and 23 were fully complied with and there was evidence against the petitioner which led to the conclusion that his guilt was established under Sections 63 and 56 (a) of the Act, 1950. It was not open to this Court to interfere with the conclusion of the Summary Court Martial. For this purpose, the learned Counsel for the respondents has relied on a decision of Hon’ble Supreme Court in the case of Union of India and others v. Himmat Singh Chahar, AIR 1999 SC 1980 , in which the Hon’ble Apex Court has held that the jurisdiction under Article 226 of the Constitution would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. He has also relied on decision of Allahabad High Court rendered in the case of Ruval Kumar Vasave v. Chief of Army Staff and others, 1986 UPLBEC 663. 45. Learned Counsel for the respondents has also relied on a decision of Hon’ble Supreme Court in the case of Union of India v. R.K. Sharma, AIR 2001 SC 3053 . He further cited decision in the case of Union of India and others v. Major A. Hussain, AIR 1998 SC 557 and decision in the case of Major G.S. Sodhi v. Lt. Col. S. Duggal, AIR 1991 SC 1617 . Lastly he has cited decision of Allahabad High Court in the case of Havildar Clerk, Dharm Singh v. Union of India and others, (1996) 1 UPLBEC 335. 46. In reply to the argument raised by the learned Counsel for the respondents, the learned Counsel for the petitioner has argued that the decision in the case of Havildar Clerk, Dharm Singh (supra) was not properly decided. He reiterates his argument that under provisions of Section 116 of the Act, Summary Court Martial can only be held by Commanding Officer of the corps and he alone should constitute the Court. 47. In this case, the learned Counsel for the petitioner has argued that it was the Colonel Administration who held the Summary Court Martial and he could not have done so. Learned Counsel for the petitioner has argued that it is only in the case of the deserter that the matter can be heard by the Commanding Officer other than the Commanding Officer of the Unit to which the accused belongs. For this purpose he has relied on para 381 of the Army Regulations, which provides for the circumstances in which the Commanding Officer of the different Unit may hold trial by the Summary Court Martial of persons subjected to. In para 13 of the Havildar Clerk Dharm Singh (supra), Hon’ble D.K. Seth, J. has dissected para 381 of the Army Regulations, which have two parts while the first part deals with deserters, the second part deals with others. Para 13 of the reports is quoted below : “13. The same is only a Note and is not part of the Act. Therefore the same cannot be a guiding principle to the proposition that the accused has to be tried by a Commanding Officer to which he originally belonged. Para 13 of the reports is quoted below : “13. The same is only a Note and is not part of the Act. Therefore the same cannot be a guiding principle to the proposition that the accused has to be tried by a Commanding Officer to which he originally belonged. Even if the said note is accepted, then also the said proposition cannot be pushed through inasmuch as Para 381 has two parts. The first part deals with deserters, while the second part deals with others. The second part runs as follows : “In no circumstances will a man be tried by summary Court-martial held by a CO other than the CO of the unit to which the man properly belongs, a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs.” 48. Having heard learned Counsel for the petitioner, learned Counsel for the respondents Union of India at length and having examined the material on record, I am of the opinion that in this case, the Colonel Administration who conducted Summary Court Martial was competent to try the disciplinary case against the petitioner and also it cannot be said that any part of Rule 22 of the Rules, 1954 was violated in the case of the petitioner. The petitioner has not been able to establish that any part of Rule 22 was either violated or contravened. However the petitioner’s grievance is that although the petitioner had engaged a civil lawyer to assist him as his friend, was not allowed to examine or cross-examine any witness is also no justification in view of the fact that Rule 129 itself clearly stipulates that the next friend would not be allowed to either examine or cross-examine any witness. Moreso the petitioner has not pleaded that he was denied opportunity to defend himself in the Summary Court Martial or that any injustice has been done to him in order to warrant any interference under Article 226 of the Constitution of India. 49. Moreso the petitioner has not pleaded that he was denied opportunity to defend himself in the Summary Court Martial or that any injustice has been done to him in order to warrant any interference under Article 226 of the Constitution of India. 49. On the other hand there is a substance in the argument as made by the learned Counsel for the respondents Union of India that in the absence of any conclusion that proceedings of the Summary Court Martial were in violation of any proceeding of either Army Act or the Army Rules, it would not be open to this Court, while judicially reviewing the orders passed in the Summary Court Martial, to substantiate punishment, even if it may be harsh and disproportionate. In this case, the respondent army authorities have punished the petitioner by dismissal, violating the provisions of Sections 63 and 56 (a) of the Army Act, 1950 and both proceedings are related to the discipline of army. There is no doubt in my mind that anybody who violates the discipline in the armed forces, cannot be allowed to continue in the disciplined forces. 50. In the result, the writ petition has no merit and is dismissed. There will be no order as to costs. ————