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2010 DIGILAW 124 (JK)

S. S. Kanaujia (Capt. ) v. Union Of India

2010-03-08

GH.HASNAIN MASSODI

body2010
1. The petition calls in question order of Chief Engineer, Project Beacon -- respondent No.2 herein, dated 28th August 2003, whereby the respondent No.2 has ordered the petitioner to be tried by General Court Martial, the orders passed as a follow up thereto as also the order of General Court Martial dated 9th February 2004, whereby the petitioner has been sentenced to one year rigorous imprisonment and also directed to be cashiered. The order dated 10th February 2004, whereby open arrest of the petitioner has been converted to close arrest is also assailed. The writ petition has been filed against the following backdrop. 2. The petitioner, a short serviced Commission Officer, holding rank of Captain, was at the time of alleged occurrence Officer Incharge 843 MI Room CREF. In May 2002 a team of Officers of 32 BRTF GREF and 760 BRTF Project Beacon, headed by Assistant Administrative Officer, Sh. S. Sahadevan, Officer commanding 553 Tpt PI, and the petitioner as a Medical Officer of the Recruitment Team, proceeded to Jharkhand for recruitment of unskilled labour. After the recruitment drive was over, a number of allegations were leveled regarding extortion of illegal gratification from the recruited unskilled labour. The respondent No.2 set up a Court of Enquiry and the tentative charge sheet, framed under Section 39 and 53 of the Army Act, was served on the petitioner on 17th of August 2002, which reads as under: "Sec.53: During the recruitment of ICPL from 10th of April 2002 to 15th of May 2002 at Hotel Subidha Deoghar, Jharkhand, he resorted to extortion and accepted bribes. Sec. 39: After the recruitment of ICPL from 10th April 2002 to 15th May 2002 at Hotel Subidha Deoghar, Jharkhand, he absented himself without leave from 17th May 2002 to 31sl May 2002." 3. The order initiating enquiry into the allegations and order attaching the petitioner were made by the respondent No.2. The respondent No.2 later made an order dated 28.8.2003, directing that the petitioner be tried by General Court Martial. The petitioner denied the charges. The petitioner threw challenge to the order of respondent No.2 dated 28.8.2003, whereby the petitioner was directed to be tried by General Court Martial, through the medium of writ petition before this court. The court directed maintenance of status quo on 9.10.2003. The petitioner denied the charges. The petitioner threw challenge to the order of respondent No.2 dated 28.8.2003, whereby the petitioner was directed to be tried by General Court Martial, through the medium of writ petition before this court. The court directed maintenance of status quo on 9.10.2003. The order was later modified and the respondents permitted to proceed with the General Court Martial proceedings, though final order was directed to defer till further orders from the court. The respondents passed the final order and without getting same confirmed submitted the final order in a sealed cover, which was allowed to be placed on file. The order dated 28th of August 2006, confirming the final order was also placed on the file with permission of the court on 14th of May 2007. The final order and the confirmation order revealed that the petitioner had been found guilty of the charges and sentenced as above. The petitioner in view of the developments that took place, after his filing the writ petition, was allowed to file the amended petition, which the petitioner filed on 28.4.2006. The final order and the confirmation order revealed that the petitioner had been found guilty of the charges and sentenced as above. The petitioner in view of the developments that took place, after his filing the writ petition, was allowed to file the amended petition, which the petitioner filed on 28.4.2006. The petitioner assails the order of respondent No.2 dated 28th August 2003, directing the petitioner be tried by General Court Martial as also the orders passed as a follow up to the said order including the final order, and the order dated 10.2.2009, converting open arrest into close arrest, holding the petitioner guilty of the charges leveled, on the following grounds:- a) That the first charge against the petitioner in the charge sheet, which was served on the petitioner, alleges the petitioner to have obtained for himself gratification other than legal remuneration as a motive for doing official act and thus to have committed offence punishable under Section 7 of the Prevention of Corruption Act 2006; that Section 7 of the Prevention of Corruption Act 2006 declares accused person to be competent witness for the defence and does not speak of receipt of illegal gratification as an offence and in that view of the matter the allegations leveled do not constitute offence punishable under Section 69 of the Army Act; b) That the petitioner is charged with commission of civil offence and by pressing into service Section 69 of Army Act the offence alleged to have been committed by the petitioner is projected as one deemed to attract the Army Act; that the offence under any of the provisions of the Prevention of Corruption Act being an offence triable not in an ordinary Criminal Court but a Special Court constituted by the Government. The offence alleged in the charge is not a civil offence and thus does not fall within the ambit of Section 69 of the Army Act; c) That the respondent No.2, while ordering trial of the petitioner before General Court Martial, acted without jurisdiction; d) That even if the offence under Prevention of Corruption Act is held to be triable in a General Court Martial yet in absence of the sanction from the competent authority required under the provisions of the Prevention of Corruption Act 2006, the General Court Martial lacked jurisdiction to try the petitioner; that the order directing trial of the petitioner before the General Court Martial without obtaining sanction from the competent authority was without jurisdiction; e) That the respondent No.2 has assumed multiple roles in the proceedings against the petitioner; that in the first place the respondent No.2 got the investigation conducted under his supervision, made order attaching the petitioner, faming the tentative charge sheet against the petitioner, and thereafter directed trial of the petitioner before the General Court Martial; f) That after the tentative charge, alleging extortion and corruption under Section 53 of the Army Act, was found on the enquiry to be baseless, it was no more open to the respondent No.2 to frame a charge against the petitioner alleging commission of offence punishable under Section 69 of the Army Act; that the action of respondent No.2 was violative of Rule 37 of the Army Rules 1954 and also Rule 449-B of Defence Service Rule (DSR); g) That the respondent No.2 was not competent to convene General Court Martial in terms of Section 109 of the Army Act and the order convening General Court Martial as also order of sentence passed by the General Court Martial were thus without jurisdiction; h) That the Court in IA No.2473/2003 on 6th of September 2003 directed maintenance of status quo till next date of hearing before the Bench, which was modified vide order dated 7.10.2003, whereby the proceedings were allowed to continue without passing any final order; that the General Court Martial announced final order in violation of the order of the court dated 7.10.2003, whereby the respondents were forbidden from making any final order till further orders from the court, rendering the sentence passed in conflict with the court order; that the respondents without waiting for the Court order executed the sentence by converting open arrest into close arrest of the petitioner from the day next following the day the final order was announced. i) That the respondents have violated Rule 180 by not providing the petitioner full opportunity of being heard and by denying the petitioner an opportunity to be present before the Court of Enquiry throughout the proceedings and making statement in his defence, adduce evidence and cross examining the witnesses so produced by the prosecution; that the respondents did not allow the petitioner to examine the witnesses mentioned in the list of the witnesses presented to the respondents; that the charge sheet framed on the basis of material collected by the Court of Enquiry in violation of Rule 180, was liable to be quashed and ensuing proceedings declared null and void; The respondents in their counter have assailed the writ petition as premature and insisted that none of the rights of the petitioner have been infringed to provide cause of action for the petition. It is denied that the Chief Engineer, Project Beacon himself assumed the role of Court of Enquiry and collected the evidence against the petitioner. It is averred that the Chief Engineer, Project Beacon convened the Court of Enquiry with Col. Atul Mohan (Wks & Plg) HQ CE (P) Beacon as its Presiding Officer. It is pleaded that after compliance with Rules, the charge was framed by deponent (Shri Gurcharan Singh, Senior Administrative Officer) and not the respondent No.2 as alleged in the petition. It is insisted that Commanding Officer is, under rules, competent to frame the charge other than charge mentioned in the tentative charge sheet, provided the material, collected points to such charge. It is pleaded that the petitioner has been tried under Prevention of Corruption Act 1988 at a place other than the place of commission of offence in terms of Section 124 of Army Act and that the words "Act of 2006" have inadvertently crept in the charge sheet. The respondents claim that after the error was detected the charge sheet was cancelled and withdrawn. It is averred that objection as regards jurisdiction or the charges in terms of Rule 49 and 51, was to be taken up before the General Court Martial and the petitioner has not taken any such objection. It is denied that any prior sanction is required to lodge proceedings before the General Court Martial under Prevention of Corruption Act 1988. It is averred that objection as regards jurisdiction or the charges in terms of Rule 49 and 51, was to be taken up before the General Court Martial and the petitioner has not taken any such objection. It is denied that any prior sanction is required to lodge proceedings before the General Court Martial under Prevention of Corruption Act 1988. The respondents plead that the Chief Engineer, Project Beacon is holding Al warrant under Section 109 of the Army Act issued by Chief of the Army Staff and was competent to convene General Court Martial. It is pleaded that once the allegations of corruption/malpractices surfaced, the respondent No.2 convened a Departmental Court of Enquiry and the Court of Enquiry submitted its report, substantiating the allegations, whereafter a tentative charge sheet was prepared and summary of evidence ordered by respondent No.3. After summary of evidence, the charge sheet was prepared by respondent No.3 and the respondent No.2 convened General Court Martial. It is denied that the respondent No.2 prepared the charge sheet against the petitioner and insisted that the respondent No.2 before convening the General Court Martial satisfied itself, that the evidence contained in summary of evidence justified trial of the petitioner. It is pleaded that any finding of "guilty" or "not guilty" returned by General, District or Summary General Court Martial, unless confirmed is of no consequence and thus mere finding recorded by the General Court Martial did not result in violation of the Court direction. It is insisted that the confirmation of the findings and sentence is an integral part of the General Court Martial and in view of Court order dated 24.11.2003, the findings and sentence recorded by the General Court Martial were not confirmed and promulgated. 4. The petitioner in his rejoinder to the counter has pleaded that despite the direction from this Court to the General Court Martial not to pass any final order, the General Court Martial announced the sentence on 9th March 2004 in presence of the petitioner, whereafter the petitioner was put in close arrest. The sentence was thereafter confirmed, again in violation of the court order. The sentence was thereafter confirmed, again in violation of the court order. It is insisted that as the sentence, order converting open arrest into close arrest and order confirming the sentence, have been made in violation of the Court order; the respondents were not to be heard until the petitioner was relegated to the position as on 9th October 2003. It is pleaded that the respondents were guilty of contempt and further that the petitioner, having been put under close arrest with effect from 10th February 2004, was made to undergo the sentence before the legality of the sentence was subjected to judicial review. The Court of Enquiry is said not to have adhered to Rule 180 of Army Rules and denied the petitioner right to adduce evidence in his defence inasmuch as while the Court of Enquiry was assembled at Head Quarter Chief Engineer Project Beacon at Rangreth, the petitioner vide order dated 11th June 2002 was attached to headquarter at Awantipora and that the enquiry was thus held at the back of the petitioner. It is pleaded that Rule 22 of Army Rules was dispensed with, without there having been compliance with Rule 180 during the court of enquiry proceedings. The petitioner having not been permitted to associate with the Court of Enquiry, it is insisted, the petitioner was to be mandatorily allowed to cross examine the witnesses at the time of hearing of the charge before the Commanding Officer concerned. The Commanding Officer is said to have failed to apply mind to the material placed before him as was evident from his omission to make mention of necessary particulars in the Appendix-A to Army Order No.24/94. It is pleaded that the charge was amended and the charge of receiving gratification withdrawn even after an ad-interim order was passed by this court. 5. I have heard learned counsel for the parties and have gone through writ petition, Counter Affidavit, Rejoinder Affidavit and the record. 6. It is well settled law that jurisdiction of the Court in a case like the present one is limited and not very wide. The Court has not to sit as an Appellate Court and re-examine and re-appreciate the evidence that persuaded the Court Martial whether Summary, District or General to record its findings. 6. It is well settled law that jurisdiction of the Court in a case like the present one is limited and not very wide. The Court has not to sit as an Appellate Court and re-examine and re-appreciate the evidence that persuaded the Court Martial whether Summary, District or General to record its findings. The approach of the Court has been held to be "limited one with circumspection to examine the question", whether the petitioner has not been heard or the proceedings otherwise have been conducted in violation of statutory provisions or it is the case of no evidence. The Court may in appropriate case also see whether the punishment awarded is disproportionate to the offence committed by the delinquent officer. A reference in this regard may be made to law laid down in Union of India v. Ex. Lt. D.P. Bose, SLJ 2000, 34. The Supreme Court in Ranjit Thakur v. Union of India (1987(4) S.C.C. 611), referring to observations made by Lord Diplock in Council of Civil Service Union v. Minister for the Civil Service (1984) 3 All ER 935, has mapped out the scope of judicial review in the matters of administrative action including the Court Martial decisions. It has been held that the aforesaid action/decision is subject to control of judicial review on three grounds namely "illegality", "irrationality" and "procedural impropriety". The Court proceeded to observe that if the decision of Court Martial even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction irrationality and perversity, the court held, are recognised grounds of judicial review. It was held that judicial review, generally speaking, is not directed against a decision, but is directed against the "decision-making process". 7. Having said so, let us proceed to see whether the proceedings that culminated in the findings recorded by General Court Martial have been conducted in accordance with statutory provisions. The threshold ground of challenge pleaded in the petition is that the General Court Martial lacked very jurisdiction to entertain, muchless proceed with the trial, inasmuch as trial was allowed to commence in absence of sanction for prosecution of the petitioner. It is insisted as the petitioner was charged of offence punishable under Prevention of Corruption Act, sanction for prosecution in terms of Section 6 of the Act, was a sine qua non for commencement of trial. It is insisted as the petitioner was charged of offence punishable under Prevention of Corruption Act, sanction for prosecution in terms of Section 6 of the Act, was a sine qua non for commencement of trial. The argument is bound to fail for the simple reason that the offence under Prevention of Corruption Act alleged to have been committed by the petitioner is a "civil offence" with a meaning Section 3 (ii) of the Army Act and by legal fiction in terms of Section 69 of The Act, is to be taken as an offence under the Army Act. The Special Court constituted under the Prevention of Corruption Act being an ordinary criminal court within the meaning of section 25 of Prevention of Corruption Act 1988, the General Court Martial has jurisdiction to try the petitioner. In the said background there was no requirement of sanction to launch prosecution against the petitioner. Reliance in this regard is rightly placed by counsel for the respondents on law laid down in 1985 (1) Service Law Reporter 236; Mil. LJ J&K 2000, 152; and 1987 Cr.LJ, 8. The facts of the case reported as AIR 2008 S.C., 1937, relied upon by learned counsel for the petitioner are markedly distinguishable from the facts of the case in hand. In the aforementioned case, the trial was held before an ordinary Criminal Court and not the Court Martial and in said context sanction under Section 197 Cr.P.C. was held to be a prerequisite for initiating criminal proceedings. The ground setup in the petition that the respondent No.2 -- Chief Engineer, Project Beacon, having received and entertained complaint, issued order of attachment of the petitioner, collected evidence during the initial enquiry and thereafter proceeded to frame charge against the petitioner, was debarred from making an order convening General Court Martial, is edificed on erroneous facts and thus to be summarily rejected. The facts discernible from the record reveal that after respondent No.2 was informed that the petitioner allegedly had indulged in malpractice during recruitment drive for unskilled labour at Deogarh, Jharkhand, the respondent No.2 setup a Court of Enquiry with which the respondent No.2 was not associated and it is the Court of Enquiry that collected evidence in the matter. The facts discernible from the record reveal that after respondent No.2 was informed that the petitioner allegedly had indulged in malpractice during recruitment drive for unskilled labour at Deogarh, Jharkhand, the respondent No.2 setup a Court of Enquiry with which the respondent No.2 was not associated and it is the Court of Enquiry that collected evidence in the matter. The respondent No.2 thus had nothing to do with the Court of Enquiry or the conclusion drawn by the Court of Enquiry and no bias is attributable to the respondent No.2 as would have made it inappropriate for the respondent to deal with the matter at a subsequent stage nor was the respondent No.2 rendered in any manner whatsoever incompetent to order convening/ assembling of General Court Martial. 8. The next ground also assails very jurisdiction of General Court Martial to proceed with the Court Martial. It is insisted that the Chief Engineer, Project Beacon was not competent to convene the General Court Martial. Section 109 of the Army Act provides that General Court Martial may be conveyed by the Central Government or the Chief of the Army Staff or by any Officer empowered in this behalf by warrant of the Chief of the Army Staff. In the present case Chief Engineer, Project Beacon has been empowered through a Warrant (AI) by the Chief of the Army Staff to convene General Court Martial and the Chief Engineer, Project Beacon, as Convening Officer, has convened the General Court Martial. It is well settled that there is no legal requirement that such power must be conferred case-wise and a general warrant cannot be issued. There is thus no merit in the ground urged in this behalf. Reference in this regard may be made to law laid down in Bachan Singh v. Union of India (2008) 9, SCC 161. 9. The rest of the grounds setup in the petition relate to the procedure followed by the Court of Enquiry, thereafter Commanding Officer and General Court Martial. The respondents 2 and 3 ideally were better placed to file their reply affidavits so as to lay bare before the Court procedure followed by the Court of Enquiry, Commanding Officer and thereafter General Court Martial and convince the Court that the rules were strictly adhered to and complied with in letter and spirit. The respondents 2 and 3 ideally were better placed to file their reply affidavits so as to lay bare before the Court procedure followed by the Court of Enquiry, Commanding Officer and thereafter General Court Martial and convince the Court that the rules were strictly adhered to and complied with in letter and spirit. The respondents 2 & 3 have opted not to file reply affidavits and instead Shri Gurcharan Singh, Senior Administrative Officer for Commander has filed the reply affidavit. Order 27 CPC deals with the subject "Suits by or against the Government or Public Officer in their official capacity". Order 27 Rule 01 CPC provides that "in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case." Government of India, Ministry of Law, Justice & Company Affairs vide Notification -- GSR 167 dated 14th February 1990, as amended by Notification -- GSR 193 dated 16th September 1998 and in particular part of the Schedule titled "XII Ministry of Defence" Sub Title "Border Roads Development Board" nominated the Officers of Border Roads, competent within meaning of Order 27 Rule 01 CPC to sign and verify plaints and written statements in suits by or against the Central Government. Senior Administrative Officer does not find place in the list of Officers appointed by the Government of India from Border Roads to sign and verify plaints and written statements by or on behalf of the Central Government. It is contended by learned counsel for the respondents that S.No. 9 -- Administrative Officers Task Forces, S.No.11 -- Administrative Officers/Managers General Executive Forces, S.No. 14 -- Administrative Officers/Manager Base Workshops, and S.No. 16 -- Administrative Officer/ General Manager Stores Division, may well be taken to refer to Senior Administrative Officer. Having regard to the nature of duties the Officer(s) appointed by the Central Government under Order 27 Rule 01 CPC, are to perform it may not be advisable to stretch the definition of Officers at S.Nos.9, 11, 14 and 16, so as to include an Officer, who is not expressly appointed vide aforementioned notifications. Having regard to the nature of duties the Officer(s) appointed by the Central Government under Order 27 Rule 01 CPC, are to perform it may not be advisable to stretch the definition of Officers at S.Nos.9, 11, 14 and 16, so as to include an Officer, who is not expressly appointed vide aforementioned notifications. Assuming that Senior Administrative Officer is an Officer appointed to sign and verify plaints and written statements -- counter affidavit/reply affidavit in the present case, it is still to be seen whether the counter affidavit/ reply affidavit has been signed and verified in accordance with law. It is appropriate to emphasize that Shri Gurcharan Singh, Senior Administrative Officer, admittedly had no role to play at any stage of the matter in controversy or the proceedings emanating from complaint in question. The Senior Administrative Officer thus was not in a position to sign and verify the counter/reply affidavit on the basis of his knowledge but on the basis of record, if any, made available to him by the respondents. The Senior Administrative Officer or the deponent on the other hand has verified the counter/reply affidavit as "true and correct to the best of my knowledge" -- the assertion, which runs contrary to the facts of the case. So viewed not only competence of the Senior Administrative Officer to sign and verify counter/reply affidavit is doubtful but the same is also not in accordance with law. It has been held in AIR 1982, S.C, 65, that the deponent while swearing/making an affidavit is to disclose nature and source of his knowledge and if the nature and source of knowledge is not disclosed with sufficient particulars, the affidavit will not be one as required under law. The mechanical manner, in which Counter/Reply affidavit has been prepared and the non application of mind by the Senior Administrative Officer is disclosed by the fact that in Para 5 of Reply/Counter Affidavit, Senior Administrative Officer has claimed to have prepared the charges whereas in other parts of Counter/Reply Affidavit "charge" is said to have been prepared by the Commanding Officer-respondent No.3, at the conclusion of summary of evidence. Let this alone be not the deciding factor in adjudication of the petition in hand and let us shift focus to other grounds urged in the petition. 10. Let this alone be not the deciding factor in adjudication of the petition in hand and let us shift focus to other grounds urged in the petition. 10. Once a complaint is received by a Senior Army Officer against one of his subordinate officers, the matter is to be dealt with in accordance with the provisions of Army Act 1950 and Army Rules 1954. The Officer, receiving the complaint, may constitute Court of Enquiry in accordance with Rule 177 of Army rules 1954, to collect evidence in connection with the complaint received and to report with regard to the matter, referred to it. The Court of Enquiry, so constituted, is to follow the procedure laid down in Rule 179. The Presiding Officer of the Court of Enquiry is required to give previous notice of time and place of the Court of Enquiry to all persons including the officer, against whom the complaint is received, except where a person again whom the evidence is being collected, is a prisoner of war, who is still absent. Rule 180 casts a duty on the Court of Enquiry to provide full opportunity to the person, against whom evidence is being collected, in case the enquiry affects the character and military reputation of the person, of being present throughout the enquiry and of making any statement and of giving any evidence, such person may wish to make or give, and of cross-examining any witness, whose evidence in his opinion affects his character or military reputation. The person, against whom evidence is being collected by the Court of Enquiry, is also to be afforded an opportunity to produce any evidence in defence of his character or military reputation. The Presiding officer is further made duty bound to take such steps as may be necessary to ensure that any such person, so affected and not previously notified receives notice and fully understands his rights under this rule. Once the Court of Enquiry, in accordance with the procedure laid down in Rule 179, 180 & 181, concludes that the complaint/ allegations against the Officer are substantiated by the evidence, so collected, the conclusion, so drawn, or the evidence, so collected, is to be placed before the competent authority, to be transmitted to the Commanding Officer for "hearing of the charge". The Commanding Officer in terms of Rule 22 is to hear the charge in presence of the accused. The Commanding Officer in terms of Rule 22 is to hear the charge in presence of the accused. The accused is to have full liberty to cross examine any witnesses against him and to call such witness and make such statement as may be necessary for his defence. However, the Commanding Officer under Proviso to Rule 22 has power to dispense with requirement of rule 22(1), where the charge against the accused arises as a result of investigation by Court of Enquiry and the requirements of Rule 180 have been complied with in respect of the accused. The Commanding Officer, after conducting "hearing of the charge" in accordance with Rule 22, has options available to him, mapped out in Rule 22(3), which include referring the matter to Superior Military Authority. In the instant case the Commanding Officer admittedly did not follow Rule 22(1) and resultantly did not give the petitioner full liberty to cross examine any witnesses against him and to call such witness and make such statement as would have been necessary for his defence. The Commanding officer proceeded on the premise that the petitioner was given such opportunity by the Court of Enquiry in terms of Rule 1 80. It is not disputed that the enquiry affected character and military reputation of the petitioner. It thus becomes necessary to see whether the petitioner was afforded full opportunity in terms of Rule 180: (i) of being present throughout the enquiry; (ii) of giving any statement; (iii) of giving any evidence, he wanted to make or give; (iv) of cross examining any witness whose evidence in his opinion would affect his character or military reputation; (v) of producing any witness in defence of his character and military reputation; and (vi) was given notice of fully made to understand his right. 11. It is only after it was established before the Commanding Officer that such opportunity had been given to the petitioner that the Commanding Officer was competent under Proviso to Rule 22(1) to dispense with the requirement of Rule 22(1). In the instant case it is contended with full force that the requirements of Rule 180 were not satisfied and thus the Commanding Officer lacked competence to dispense with requirement of Rule 22(1). In the instant case it is contended with full force that the requirements of Rule 180 were not satisfied and thus the Commanding Officer lacked competence to dispense with requirement of Rule 22(1). It is pleaded by the petitioner in the Amended Writ Petition as well as Rejoinder to the Counter that the petitioner was not allowed opportunity contemplated by Rule 180. The petitioner in Para 10(g) & (h) has made an express averment that Rule 180 was observed in breach and that the Commanding Officer had erroneously dispensed with the requirement of Rule 22(1). The petitioner has made a specific averment that the Court of Enquiry collected evidence at the back of the petitioner and in his absence; that the petitioner was not present throughout the enquiry, was not given an opportunity to cross examine any witness or an opportunity to produce all the evidence, he wanted to produce in his defence. The petitioner further pleaded in the amended Writ Petition, supplemented by the Rejoinder, that the petitioner was attached vide order dated 11th June 2002 with HQ at Awantipora whereas the Court of Enquiry held its proceedings at HQ at Rangreth. It is pleaded that the respondents were under obligation to order attachment of the petitioner at the place, where the Court of Enquiry held its proceedings. It is pleaded that after the Court of Enquiry held its proceedings at Rangreth, the signatures of the petitioner were taken at Awantipora. The averments made in Para 10(g) & (h) have met only an evasive denial in Para 14 of the counter/reply affidavit. The respondents have not come up with specific details in reply to the grounds setup in para 10(g) & (h). The reply is one of evasive denial and does not help the respondents to successfully controvert the case setup by the petitioner as regard violation of Rule 180 and Rule 22 of the Army Rules. It has been held in 1993 Supp. (4) S.CC, 46, that averments made in a writ petition if not controverted by the respondents, should be presumed to have been admitted. The Supreme Court on finding that the averments made in the writ petition had not been controverted, observed, "The High Court should have proceeded on the basis that the said averments had been admitted by the respondents". (4) S.CC, 46, that averments made in a writ petition if not controverted by the respondents, should be presumed to have been admitted. The Supreme Court on finding that the averments made in the writ petition had not been controverted, observed, "The High Court should have proceeded on the basis that the said averments had been admitted by the respondents". In 1973 (4) S.C.C., 35, a Habeas Corpus matter, the petitioner in answer to one of the grounds in support of the detention order pleaded alibi giving specific particulars in support of the plea. The plea and the particulars pleaded by the petitioner were not answered by the respondents. The Supreme Court observed: "The only answer to such a specific plea in the Governments counter-affidavit was a bare denial of "various facts and allegations stated by the petitioner in his writ petition", and an equally bare assertion that the impugned order was made bona fide and in accordance with law. Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto." 12. In the present case as has been pointed out, the respondents have not come up with an answer supported by sufficient details to controvert the specific plea made by the petitioner. The record available on the file otherwise also does not come to the rescue of the respondents. The petitioner thus has succeeded .in establishing that Rule 180 and 22 of the Army Rules were violated in the present case. 13. It has been held in AIR 1996, MP, 233, that the requirements laid down in Rule 180 are mandatory in character and any violation of mandatory rules vitiates the entire proceedings, making the proceedings liable to be quashed. In the present case, the Rules 22 and 180 having been violated, the proceedings before the General Court Martial get vitiated. 14. The petitioner, it may be recalled as early as on 4.9.2003 filed writ petition under Article 226 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir, complaining that the rules were not being followed in connection with the investigation/trial of the petitioner. The petitioner sought quashment of the order dated 28.8.2003, whereby General Court Martial was directed to be convened. The petitioner sought quashment of the order dated 28.8.2003, whereby General Court Martial was directed to be convened. The Court directed status quo to be maintained. Thereafter on 09.10.2003, after the Court was informed that order of status quo had the effect of stalling the proceedings before the Court Martial, the Court modified the earlier order making an observation as under:- "........I am of the opinion that ends of justice will be met by permitting the respondents to go ahead with the court martial proceedings but the final order shall defer till further orders from the Court." 15. The General Court Martial made final order and announced sentence on 09.02.2004, though the writ petition was awaiting disposal before the Court and the respondents did not seek order from the Court to make the final order as they were required to do, in terms of order dated 09.10.2003. The respondents, thereafter, proceeded to in effect execute the sentence on 10.2.2004, by converting open arrest into close arrest. The petitioners case, as stated herein above, is that the final order was made by the General Court Martial in violation of the Court order dated 09.10.2003, and that for this reason alone final order having been made in disregard to the Court order, is liable to be set-aside. 16. It is on the other hand insisted by the learned counsel for the respondents that the General Court Martial, while making order dated 9th February 2004 and announcing sentence, did not make final order as contemplated by the Court Order 9th October 2003 inasmuch as the order of General Court Martial was to be confirmed and thereafter sentence to be promulgated. For the said reasons, it is argued, there has been no violation of the Court order dated 9th October 2003 requiring the General Court Martial not to pass any final order. Argument advanced by learned counsel for the respondents is bereft of any merit. The Court while permitting the General Court Martial to proceed with the trial expressly asked the General Court Martial not to pass final order in the matter till further orders from the Court. The order dated 9th October 2003 did not make any reference to "confirmation" or "promulgation" of the sentence. The Court while permitting the General Court Martial to proceed with the trial expressly asked the General Court Martial not to pass final order in the matter till further orders from the Court. The order dated 9th October 2003 did not make any reference to "confirmation" or "promulgation" of the sentence. Had the court intended to allow the trial to be concluded by final order and made the confirmation of the sentence or its promulgation subject to the Court order, there was no reason why the Court should not have ordered accordingly. The Court instead asked the General Court Martial not to pass final orders till further orders from the Court and the Court order in question obviously has reference to General Court Martial and the proceedings that were allowed to proceed before the General Court Martial and not the authority competent to confirm or promulgate the sentence. So viewed, the General Court Martial passed the final order in violation of Court order dated 19th October 2003. The right course to the General Court Martial was to conclude the trial and approach the Court for permission to make final order. This course has not been followed by the General Court Martial. The General Court Martial not only proceeded to pass the final order but on 10th February 2004 the sentence was in effect executed by converting the open arrest of the petitioner into closed arrest. However, it is not necessary to opine on fallout of violation of Court order by General Court Martial on the outcome of the proceedings before General Court Martial as the petition is to be decided on other factors discussed in the course of judgment. 17. The impugned order suffers from "procedural impropriety" -- one of the categories, judicial review is permitted in terms of law laid down in Ranjit Thakurs case (supra). The court in the aforesaid case held that: "The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. 18. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. 18. For the reasons discussed above the petition is destined to succeed. The petition is accordingly allowed and order of General Court Martial dated 9th February 2004, whereby the petitioner has been sentenced and the orders passed as a follow up thereto in connection with execution of sentence, quashed. 19. The sentence of one years rigorous imprisonment has been in effect executed. The open arrest of the petitioner admittedly was converted into closed arrest vide order dated 10th February 2004. The petitioner has been released on 14th October 2004 as is evident from the "Restricted Release Order" No.1008/DISC/SSK/61 dated 20th December 2009 after a period of rigorous imprisonment from 15th October 2003 to 14th October 2004. It is pertinent to point out that the petitioner was put under arrest after the Court of Enquiry was set up and later the open arrest was converted into closed arrest with effect from 10.2.2004. In terms of Section 169-A of the Army Act 1950 the custody undergone by a person or officer in the event of his being sentenced by a Court Martial is to be setoff against the term of imprisonment imposed upon the person or the officer subject to the Act. In the present case the period of custody undergone by the petitioner has been setoff against the term of imprisonment and in "Restricted Release Order" the period of rigorous imprisonment shown to have commenced from 15th October 2003 and to have come to an end on 14th October 2004. The petitioner, having been on Short Service Commission, has been released from Short Service Commission with effect from 29th December 2009, also evident from the aforementioned Restricted Release Order. It is now for the respondents to take further action in the matter, warranted under facts and circumstances on the case. This judgment shall not in any manner preclude the respondents from proceeding in the matter in accordance with rules. Disposed of.