The court can exercise its jurisdiction under Article 226 of the Constitution to deal with matters of exigent nature when the Armed Forces Tribunal is not functioning.

JUDGMENT :

JAY SENGUPTA, J.

1. This is an application under Article 226 of the Constitution of India, inter alia, praying for setting aside of the order of attachment dated 25th March, 2022 issued by the respondents, the movement order dated 25th March, 2022 as well as the orders dated 2nd April, 2022 and 5th April, 2022 regarding handing over charge by the petitioner to his superior in the Army establishment.

2. Learned counsel appearing on behalf of the petitioner submits as follows. First, on the question of maintainability of this application, it is submitted that the present application is being moved before this Court as the learned Armed Forces Tribunal is lying vacant. On this, reliance is placed on a decision of a Hon’ble Division Bench of this Court in Colonel Nikhil Pareek vs. Union of India & Ors. in MAT 19 of 2021 with IA No. CAN 1 of 2021. The petitioner is a colonel in the Indian Army. He is a meritorious officer who had also served under extreme conditions in Arunachal Pradesh. In June 2021, he was sent to his posting in question at 33 Corps Intelligence Battalion. He was posted as the Commanding Officer of the said battalion. During the course of his employment, the petitioner came across several unfortunate instances of corruption and espionage in the Army establishment. He investigated into all these, collected necessary information and evidence, took steps in some cases and prepared files in respect of the same. He was also perturbed with the apparent influence that a politically significant civilian was exercising on some officers. In effect, he was enquiring into alleged indiscretions committed by a few officers in the Army, some of whom were superior in rank to him. In the meantime, a pseudonymous complaint was filed before the Headquarter of the Corps alleging wrongdoings by the petitioner. The guidelines of CVC are quite clear that no action was required to be taken on a pseudonymous complaint.

Thereafter, another complaint was made against the petitioner in regarding misuse of GS funds, which is meant for payment to sources and the like and is not a subject matter of audit. There was no complaint whatsoever about use of any public fund. Yet, a Court of Enquiry was needlessly instituted on the two complaints. No papers were supplied to the petitioner although the petitioner was allowed to participate in the enquiry by cross-examining witnesses. On 14.02.2022 the Court of Enquiry was concluded. However, no communication was made in this regard to the present petitioner. Thereafter, a purported order of attachment was passed. The order was not in conformity with Army Instruction Nos. 29 and 30 as notified in August 1996. There is no recording in the order that a prima facie case was established against the petitioner. Moreover, the petitioner was supposed to continue with the same post even after attachment. In fact, the petitioner was practically forcibly moved out of the Unit. His family was threatened and his house was seized. Yet, the petitioner complied with the directions, without prejudice. Soon thereafter on 02.04.2022, another order was passed directing the petitioner to go back to the 33 Corps and hand over the relevant documents including the confidential ones. This would mean handing over all the materials collected during investigation to the superior personnel in the same Corps although some superior officers of the said Corps were being investigated by the present petitioner. During the Court of Enquiry, the petitioner had written a letter to the Brigadier, Operations of the said Corps broadly enumerating the matters which were being investigated by the petitioner. In view of the above, the orders directing attachment of the petitioner to another unit and the subsequent orders including the one directing the petitioner to hand over sensitive documents to his superiors ought to be set aside.

3. Learned counsel appearing on behalf of the respondents files a notice dated 4th April, 2022, which is