Judgment

MADON, J.:- This Appeal by Special Leave granted by this Court is preferred against the judgment and order of a Division Bench of the Allahabad High Court allowing the writ petition filed by the Respondent under Article 226 of the Constitution of India and quashing a show cause notice dated November 12, 1976 issued by the First Appellant, the Chief of the Army Staff, under Rule 14 of the Army Rules, 1954.

2. The facts which have given rise to this Appeal lie in a narrow compass. The Respondent is a permanent commissioned officer of the Indian Army holding the substantive rank of Captain and the acting rank of Major. In November 1975, he was posted in the Army School of Mechanical Transport, Faizabad. As a result of certain incidents which are alleged to have taken place on November 6 and 7, 1975, the Respondent was tried by a general court-martial on four charges. It is unnecessary to reproduce the charges made against the Respondent. The charge-sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad. On January 24, 1976, the Respondent was ordered to be tried by a general court-martial. The Respondent pleaded not guilty and his trial took place at Lucknow before a general court-martial consisting of one Brigadier, two Majors and two Captains. Both the prosecution and the Respondent led evidence. On March 13, 1976, the court-martial announced its finding subject to confirmation, the finding being "Not guilty of all the charges". The General Officer Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the confirming authority, did not confirm the verdict and by his order dated April 3, 1976, sent back the finding for revision. The same general court-martial, therefore, re-assembled on April 14,1976, and after hearing both sides and taking into consideration the observations made by the Third Appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the finding that the Respondent was "Not guilty of all the charges". The said finding was also expressly announced as being subject to confirmation. The Third Appellant reserved confirmation of the finding on revision by a superior authority, namely, the General Officer, Commanding-in-Chief, Central Command, Lucknow, the Second Appellant, and forwarded the papers to him. By his order dated May 25, 1976, the Second Appellant did not confirm the finding on revision of the general court-martial. The charges made against the Respondent, the finding and the non-confirmation thereof were promulgated as required by Rule 71 of the Army Rules.

3. Thereafter the Chief of the Army Staff under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of the Army Staff had carefully considered the facts of the case as also the Respondents defence at the trial and being satisfied that a fresh triad by a court-martial for the said offences was inexpedient, he was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in the service. undesirable. The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twenty-five days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court-martial proceedings were forwarded to the Respondent The Respondent thereupon filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which, as aforesaid, was allowed.

4. It was the contention of the Respondent in his writ petition that under the Army Act, 1950 (Act No. 46 of 1950), and the Army Rules there was an initial option either to have the concerned officer tried by a court-martial or to take action against him under Rule 14 and that in his case the option having been exercised to try h