Point of Law: Army Rules, 1954 reads as Procedure when character of a person subject to the Act is involved.

JUDGMENT :

The instant writ petition has been preferred by the petitioner invoking the extraordinary jurisdiction under Article 226 of the Constitution of India for making a challenge to a Convening Order dated 29.06.2021.

2. The case projected by the petitioner in the writ petition, in brief, is that he joined the Border Roads Organization [BRO] on 02.01.1988. The BRO was raised on 18.04.1960 for expanding border communications in the North East Zone and consequently, various projects had been raised under the command and control of the Director General, BRO. A project named ‘Project Dantak’ was raised during the year 1961 for construction of road networks in Bhutan and the personnel posted in Bhutan under Project Dantak are entitled to Bhutan Compensatory Allowances [BCA]. A three-stage process of selection for posting the personnel to BCA areas has been put in place and the personnel who fulfills the eligibility criteria set forth therein and qualifies in the three stages of selection process, is posted in BCA areas. It is the case of the petitioner that he qualified as per the selection methodology for posting in BCA areas on 09.11.2019 and accordingly, he was posted in BCA areas. It is stated that the petitioner was handed over the charge of E1 Camp Section of HQ CE[P] Dantak vide a letter dated 18.12.2019.

2.1. By the Convening Order dated 29.06.2021, a Court of Inquiry cum Board of Officers was constituted to investigate into the missing/removed leave account forms from service documents in respect of one GS-1786883A SSA Sanjay Kumar Ujala of HQ CE[P] Dantak since his appointment. The ground of challenge to the said Convening Order is that the respondent authorities had set up the Court of Inquiry cum Board of Officers against the petitioner without giving him proper opportunity to defend his case and the same is in violation of Rule 180 of the Army Rules, 1954 framed in exercise of the powers conferred by Section 191 of the Army Act, 1950.

3. I have heard Mr. T. Das, learned counsel for the petitioner and Mr. S.K. Medhi, learned Central Government Counsel [CGC] for all the respondents.

4. Mr. Das, learned counsel for the petitioner in his submissions, has reiterated the averments made in the writ petition. It is his submission that a procedure has been laid down under Rule 180 of the Army Rules, 1954 when character of a person subject to the Army Act is involved. In a court of inquiry, full opportunity is to be provided to a person and such a person must have to be present throughout the inquiry and he has to be given the opportunity of making any statement and giving any evidence he may wish to make or give. Further, he has to be provided the opportunity of cross-examining any witness whose evidence, in his opinion, affects his character or military reputation. It is the submission of Mr. Das that the General Reserve Engineer Force [GREF] of which the petitioner is a member, is an integral part of the Armed Forces of India and therefore, the provisions of the Army Act, 1950 and the Army Rules, 1954 are applicable proprio vigore in respect of the members of the GREF. In such view of the matter, the Convening Order dated 29.06.2021 is bad and illegal and the same is liable to be set aside and quashed.

5. Mr. Medhi, learned CGC has submitted that the respondents have traversed the contentions of the petitioner in its counter affidavit. It is his submission that the Court of Inquiry cum Board of Officers, convened by the Convening Order dated 29.06.2021, cannot be termed as court-martial under the Army Act, 1950 and the Army Rules, 1954. It is his submission that the procedure to be followed in court-martial has been laid down in Chapter V of the Army Act, 1950. It is submitted by him that the petitioner as a member of the GREF is not subjected to the provisions of the Army Act, 1950 and the Army Rules, 1954. The constitution of the Court of Inquiry cum Board of Officers is only for the purpose of making a preliminary enquiry a