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High Court Of Delhi
DHIR SINGH CHHIMA - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 09/27/1996
ARMY ACT - SECTION 122 AND 123 - LIMITATION - TRIAL - COMMENCEMENT - COURT OF INQUIRY - INVESTIGATION - ATTACHMENT - JURISDICTION - STAY ORDERS - ACTUS CURIAE NEMINEM GRAVABIT - NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA - ARMY INSTRUCTIONS 30/86 - ARMY RULE 22 - ARMY RULE 23 - CONTEMPT OF COURTS ACT - ARMY (AMENDMENT) ACT, 1992 (ACT NO. 37 OF 1992).
Fact of the Case:
The petitioner, a Lieutenant Colonel in the Indian Army, was served with a tentative charge sheet for alleged irregularities in the supply of milk to military units. He challenged the proceedings against him on the ground that they were without jurisdiction, as the charges had become time-barred under Section 122 of the Army Act and that he had ceased to be amenable to the jurisdiction of the Army Act. He also challenged the order invoking Section 123 of the Army Act, which allowed for the continuation of proceedings against him after his retirement.
Finding of the Court:
The Court held that the trial had not yet commenced within the meaning of Section 122 of the Army Act, as the stage of hearing of the charge under Army Rule 22 had not yet been reached. It also held that the petitioner had prevented the proceedings from taking place by obtaining stay orders from the High Court and the Supreme Court, and that he could not take advantage of his own wrong by raising the plea of limitation. The Court further held that the order invoking Section 123 of the Army Act was valid, as the circumstances warranted its invocation.
Issues: 1. Whether the charges against the petitioner had become time-barred under Section 122 of the Army Act? 2. Whether the petitioner had ceased to be amenable to the jurisdiction of the Army Act? 3. Whether the order invoking Section 123 of the Army Act was valid?
Ratio Decidendi: 1. The trial had not yet commenced within the meaning of Section 122 of the Army Act, as the stage of hearing of the charge under Army Rule 22 had not yet been reached. 2. The petitioner had prevented the proceedings from taking place by obtaining stay orders from the High Court and the Supreme Court, and he could not take advantage of his own wrong by raising the plea of limitation. 3. The order invoking Section 123 of the Army Act was valid, as the circumstances warranted its invocation.
Final Decision: The Court dismissed the petitioner's writ petitions, and directed him to make himself available for the recording of his evidence at Meerut, whereafter proceedings would take place in accordance with law, as expeditiously as possible.
( 1 ) -THESE two petitions can conveniently be disposed of by a sipngle order since the same relate to same series of events and raise almost identical questions on different aspects pertaining to the petitioner.
( 2 ) IN Civil Writ No. 1137/95, the petitioner has sought a direction for quashing of furtherceedings, which are in progress, in pursuance to the issuance of tentative charge sheet (Annexure-P-6) on the ground that further progress in the case against the petitioner is without jurisdiction since charges have become time barred under Section 122 of the Army Act and that the petitioner has ceased to be amenable to the jurisdiction of the Army Act. The ancillary reliefs claimed are to direct the respondents not to compel the petitioner to move to Meerut, in any manner, either to face proceedings or otherwise, since the proceedings against the petitioner have been rendered without jurisdiction.
( 3 ) IN the other writ petition (CIVIL WRITNo. 3768/94), the petitioner has sought the quashing of orders (Annexure-P-24) invoking Section 123 of the Army Act, in respect of the petitioner, till finalisation of the summary of evidence and disciplin- ary case pending against him and the order, which directs that the petitioner be placed under close arrest with effect from 30th August, 1994.
( 4 ) FACTS in brief are that the petitioner, on being commissioned as 2nd Lieutenant on 3rd May, 1964 remained posted at various places. He was transferred to Military Farm Meerut on 8th March, 1969 and on 6th December, 1982 was promoted to the rank of Lieutenant Col. From 15th July, 1988 to 15th January, 1992, the petitioner remained posted as Officer-in-Charge at Military Farm Meerut. According to the petitioner, his primary duty was to supervise the works pertaining to production and supply of milk and dairy products to the troops located and dependent upon the said Military Farm, Meerut. On the directions of the Headquar- ter Central Command (Farms); Military Farm Meerut was required to supply milk to various units located at Roorkee since Military Farm Roorkee had been closed down and only a skeleton staff was retained there. It is alleged that the Manager, R-K. Gupta had been diverting milk, despatched by the Meerut Farm to Roorkee to Military Farm, Dehradun and was engaged in local purchases, in violation of the instructions on the subject. It is also alleged that correspondence was exchanged in this regard since June 1990 between the petitioner, Dehradun Military Farm and Headquarter Central Command Lucknow.
( 5 ) MILK used to be supplied directly to the troops at Roorkee by Meerut Farm w. e. f. 1st February, 1991. The procedure followed was that fresh pasteurized cow s milk, in sealed cans were sent from Meerut Farm by the Farm Vehicle at II p. m. The vehicle used to reach Roorkee Farm at I a. m. The milk used to be accepted by the dairy incharge Roorkee Farm, after carrying out proper tests in the presence of the representative of Meerut Farm. On being satisfied with the quality of the milk, the dairy Incharge Roorkee used to accept the same and duly sign the A. D. note acknowledging the receipt of the milk. The representative of the Meerut Farm also used to put his signatures on the said acknowledgement receipt. Thereafter, milk used to be distributed to the different units and the vehicle was sent back to Meerut Farm with the cans along with the demand for the next day.
( 6 ) IT is alleged that on 13th December, 1991, a consignment of 2000 litres of milk was despatched from Meerut to Military Farm Roorkee. The same was received in full, after testing, by dairy farm incharge at Roorkee at I a. m. on 14th December, 1991. The Manager Military Farm Roorkee, kept 800 litres of milk for consumption at Roorkee and despatched the balance 1200 litres to Military Farm Dehradun. It is alleged that the said act of the Manager was in violation of the instructions laid down in that behalf. The said consignment of 1200 litres o
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