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1986 Supreme(Guj) 181
IN THE HIGH COURT OF GUJARAT
B.K. MEHTA, G.T. NANAVATI, JJ.
Major Chandkumar - Appellant
Versus
Union of India and others - Respondents
Letters Paten Appeal No. 347 of 1985
Decided On : 17-07-1986
Advocate Appeared:
For the Appellant :M.D. Pandya with Akshay H. Mehta (amicus curiae), Advocate.
For the Respondent: S.D. Shah, Standing Counsel.
Regulation 452-A of the Defence Service Regulations, which prohibits the transfer of personnel from their unit/formation until the disposal of disciplinary cases against them, is mandatory and its violation renders the transfer order non est.
Headnote:
ARMY ACT - REGULATION 452-A - TRANSFER OF PERSONNEL FROM COMMAND BEFORE COMPLETION OF DISCIPLINARY CASES - COMMENCEMENT OF DISCIPLINARY CASE - INTERPRETATION OF RULES - WRIT OF CERTIORARI - JURISDICTION - MANDATORY AND DIRECTORY PROVISIONS - WAIVER OF OBJECTION - RELIEF.
Fact of the Case:
The petitioner, a Major in the Army, was posted to 152 Air Defence Regiment at Baroda. A disciplinary case was initiated against him and a Court of Inquiry was set up to investigate the matter. The petitioner was subsequently transferred from his unit to another unit at Ludhiana. He challenged the transfer order, contending that it violated Regulation 452-A of the Defence Service Regulations, which prohibits the transfer of personnel from their unit/formation until the disposal of disciplinary cases against them.
Finding of the Court:
The Court held that the disciplinary case against the petitioner had commenced when the Court of Inquiry was established to investigate the matter. The Court further held that Regulation 452-A was mandatory and its violation rendered the transfer order non est. The Court quashed the transfer order and directed the respondents to permit the petitioner to resume his duties at his previous unit and to regularize his services and release pay and allowances for the period after the transfer.
Issues: 1. Whether the condition precedent for the operation of the bar contained in Regulation 452-A was satisfied. 2. What are the consequences of the violation of the prohibition contained in Regulation 452-A? 3. What is the appropriate relief in this case?
Ratio Decidendi: 1. The condition precedent for the operation of the bar contained in Regulation 452-A is satisfied when a disciplinary case is initiated against a person subject to the Army Act. 2. The violation of the prohibition contained in Regulation 452-A renders the transfer order non est. 3. The appropriate relief in a case where Regulation 452-A is violated is to quash the transfer order and direct the respondents to permit the petitioner to resume his duties at his previous unit and to regularize his services and release pay and allowances for the period after the transfer.
Final Decision: The Court allowed the appeal and petition, quashed the impugned movement order and the order dated 18th November, 1985, and directed the respondents to desist from transferring the petitioner from his present station to any formation or command other than 769 (Independent) Air Defence Brigade in Southern Command pending the disposal of disciplinary cases against the petitioner.
JUDGMENT :
B.K. MEHTA, J.
1. Two short but important questions arise in this Letters Patent Appeal. What is the restraint on the power of transfer of Army Personnel from Command before completion of the disciplinary case as prescribed in Regn. 452-A Defence Service Regulations and, consequently, when a disciplinary case is said to have commenced? It is on the answer of these - two questions that the fate of this appeal depends.
2. A few broad facts need be noticed in order to appreciate the rival contentions urged in course of the hearing of this appeal before us. It should be emphasised at this stage that there is some controversy about some details in course of hearing but in our opinion these details have not much relevance for the purpose of answering the questions arising in this appeal.
3. The appellant petitioner is holding rank of Major and was posted to 152 Air Defence Regiment stationed at Baroda and was at the relevant time Second Officer in Command of the Unit which was commanded by the Officer commanding Lt.Col. P.R. Bajaj. This regiment was under a higher formation namely 769 Independent A.D. Brigade at Jodhpur which in turn is under Southern Command. It is claimed by the appellant petitioner that during the pendency of the disciplinary case against him he was posted away from his formation command to 715 Independent Air Defence Brigade at Ludhiana which in turn is under Western Command. The petitioner, therefore, moved this Court on Aug. 5, 1985 for appropriate writs, orders and directions for impugning and setting aside his movement order as violative of Regn. 452-A.
4. In response to the notice issued by the learned single judge (Coram S. A. Shah, J.) reply affidavit of one Major Harbir Singh who was serving as Adjutant to E.M.E School at Baroda Dated August, 1985 was filed on behalf of the respondents resisting the petitioner, inter alia, on the ground that what Regn No. 452-A prohibits is that no officer against whom disciplinary case is pending should be posted away from the his unit/formation. The unit of the petitioner, namely, 152 AD regiment was wholly shifted and transferred to Ludhiana and, therefore, consequently the petitioner was liable to be transferred along with the unit, and that in any case it was not in the interest of the administration to conduct the disciplinary case against the petitioner at Vadodra when almost all the witnesses belonging to the Unit are at Ludhiana and, therefore, it would cause great inconvenience if the inquiry is held at Baroda and in any event no disciplinary case, in fact, was initiated against the petitioner and therefore Regn. 452-A was not attracted. What has been done against the petitioner was, according to the respondents, that the Staff Court of Inquiry was held and the matter was at the stage of investigation and did not reach the stage of trial and, therefore, having regard to the Regulation and other provisions in their juxta position, the petitioner was not justified in invoking the prohibition contained in Regn. 452 A. The learned single Judge, on reading this affidavit directed Rule to be issued and in response to the Rule nisi no additional affidavit was filed since the Rule was heard immediately. The second contention advanced on behalf of the respondents found favour with the learned single Judge who rejected the petition in limine with a speaking order on the ground that it was premature inasmuch as it was the case of the respondents that no disciplinary case had in fact been initiated against the petitioner. He, therefore dismissed the petition by his order dated Sept. 16, 1985 which is the subject matter of this appeal before us.
5. Being aggrieved by this order of the learned single Judge, the petitioner has filed this appeal in person on Sept. 27, 1985. This Court admitted the appeal by its order of Oct. 1, 1985. It should be noted that on Sept. 27, 1985 the petitioner moved this Court personally for interim relief. This Court pending admission grante
