JUDGMENT

K. Ramaswamy, J. - This appeal on reference to this Bench raised an interesting question of law. The respondent while working as Major General, Army Ordnance Corps. Southern Command, Pune between December 1, 1982 and July 7, 1985 was in-charge of purchase. The Controller General of Defence Accounts in special audit on the local purchased sanctioned by the respondent prima facie found that respondent had deselected his duty and action under the Act was initiated against him. At that time, the respondent was attached to College of Military Engineering. Pune and was promoted as Major General. After initiating of the proceedings he was ordered to retire which he had challenged by filing Writ Petition. No. 3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986.

2 On August 3O, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 (for short the Act'). He was kept under open arrest from the date onwards and retired from service on August 31.1986 as Major General. On September 22-1986, the respondent was issued a charge sheet and recording of the summary evidence commenced on September 25, 1986. The respondent filed habe