The plea of limitation is a mixed question of fact and law, and the jurisdiction and power to attach a person against whom disciplinary proceedings are contemplated are enshrined in the army act and rules.

JUDGMENT

Manmohan, J. - C.M.No.3977/2022

Exemption allowed, subject to all just exceptions.

accordingly, the applications stand disposed of.

W.P.(C) 1364/2022 & C.M.No.3976/2022

1. The matter has been heard by way of video conferencing.

2. Present writ petition has been filed challenging the order dated 18th January, 2022 passed by learned armed Forced Tribunal (aFT) in M.a No.5/2021 in O.a. No. 1135/2019 whereby the aFT dismissed the Petitioner's application challenging the conveying letter dated 30th December 2021. Petitioner also challenges the attachment order dated 16th august 2021, which allegedly was never served upon the Petitioner, and the letter dated 30th December, 2021 by which the petitioner was conveyed of the passing of the attachment order dated 16th December 2021. Petitioner further challenges the apprehension roll dated 06th January 2022 seeking a direction to declare the same to be illegal, without any authority of law and, thus quash and set aside the same. The petitioner also seeks a direction to the Respondents to pay Rs. 10,00,000/- as damages to the Petitioner for violation of his Fundamental Rights as guaranteed under article 21 of the Constitution of India.

3. Learned counsel for the Petitioner states that vide impugned order dated 30th December 2021, the Respondents have informed the Petitioner about his attachment to RVC Centre & College, Meerut Cantt., for completion of disciplinary proceedings, which were initiated vide the impugned order dated 16th august 2021. He states that vide the impugned apprehension roll dated 06th January 2022, the Respondents have ordered coercive apprehension of the Petitioner with the aid of civil police officers.

4. He states that the Petitioner having been granted pre-mature retirement w.e.f. 15th October, 2018 ceased to be amenable to jurisdiction of the army act and thus the Petitioner cannot be held liable to face trial or other proceedings after a period of three years from the date of his retirement. He also states that the alleged offences for which the Petitioner is to be proceeded against had already become time barred because the alleged offence had admittedly come to the knowledge of the Respondents on 31st May, 2018 and the trial had not commenced even till 31st May, 2021. In support of his submission, he relies upon Sections 122 and 123 of the army act, 1950.

5. He contends that it is the Petitioner who had exposed the scam with regard to purchase of medicines and medical products/equipments at the Base Hospital, Lucknow and it is the Petitioner who had initiated the first inquiry / investigation into the matter. He emphasises that the Petitioner's retirement was not a case of routine superannuation but a case of premature retirement. It is his contention that if there was any disciplinary proceeding pending against the Petitioner on the date of his superannuation, his premature retirement application would not have been approved by the respondents on 16th august, 2018.

6. He states that the issue of limitation is an issue of jurisdiction and, therefore, it must be decided by this Court.

7. Mr.anurag ahluwalia, learned CGSC refers to and relies upon Rules 51 and 53 of the army Rules, 1954 to submit that the plea of limitation can and should be raised before the authority conducting the court martial proceedings. He also points out that in the present case, only an interim application has been disposed of by the Tribunal and the Tribunal is still seized of the main O.a.

8. Mr.ahluwalia further states that though GCM was convened on 17th January, 2022, yet the same was adjourned as the Petitioner had not appeared in the said proceedings. He also states that GCM is now scheduled to be held on 8th February, 2022 and the Petitioner must undertake to join the said proceeding.

9. However, learned counsel for the Petitioner states that as the Court Martial proceedings against the Petitioner are without jurisdiction, he is not legally bound to appear before them.

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