D.M. Dharmadhikari, J. -- 1. The petitioner is an Army officer, holding presently the rank of Lt. Co. Under this petition under Article 226 of the Constitution of India, he challenges and seeks quashing of the impugned show cause notice, proposing his termination from service, issued on 19.7.1989 (Annexure A4), by Chief of Army Staff and conveyed by Director General Discipline & Vigilance (for Adjutant General), in purported exercise of powers under section 19 of the Army Act, 1950, read with rule 14 of the Army Rules, 1954 (hereinafter referred to as 'the Act and 'the Rules').

2. The learned counsel appearing for the petitioner has assailed the impugned show cause notice, on more than one ground, but in our opinion the main question regarding' competence of the Chief of the Army Staff, to take recourse to the procedure of termination of services under rule 14 of the Rules, when the Court martial of the petitioner for the alleged misconduct amounting to offence, was barred by limitation, needs to be considered and decided first. The other grounds urged against the impugned show cause notice, would require answer only if the petitioner fails on his principal submission alleging want of jurisdiction and competence of the COAS under rule 14 of the Rules.

3. Before we take up for decision the legal question involved requiring interpretation of the provisions of section 19 of the Act and rule 14 of the Rules, read with other relevant prov4;ions of law, we may state a few facts necessary for decision of the case. In January 1980 in No.3 sub-depot of 223 ABOD, it was noticed first by Major Kundanlal, while taking over charge from Capt. S.A. Lalli that quantity of copper wire in the stores was deficit approximately to the tune of 3.5 tons. The departmental Courts of enquiry were ordered by the Commandant 223 ABOD. Since the Headquarters Eastern Command did not agree with the findings of the departmental Courts of enquiry, Staff Court of Enquiry was held. That enquiry was completed in May 1987. The incident of loss of the alleged quantity of copper wire from the stores, as mentioned above was of January 1980. As slated in the return submitted by ~he respondents, for the first time, it was identified after finalisation of enquiry proceedings on 15.5.1987 that to make up the loss of the aforesaid quantity of copper wire steel wire coated with copper was substituted. To find out how this substitution took place supplementary Court of enquiry was set up. That supplementary Court of enquiry could not pin point the responsibility. Therefore, all the persons involved in the case were summoned by the Court as witnesses. The petitioner was also summoned as a witness before the Court of Enquiry and it is alleged that seven civilian laborers deposed against the petitioner that they loaded fifteen bundles of wire wrapped in gunny in a military vehicle on the orders of the petitioner. Those bundles were brought to the security area of No.3 sub- depot and the petitioner was accompanying the vehicle. The said bundles were unloaded from the vehicle by the labourers. It is alleged that later, on,5.5.1980 these bundles were mixed with the existing store. The aforesaid act of misconduct on the part of the petitioner also amounted to an offence for which he could be tried Court martial.

4. The defence of the petitioner before us in this petition is that the discrepancy in the stores was during incumbency of Capt. Lalli and as admitted by the respondents in their return, in reply to paragraphs 18 & 19;the petitioner came in charge of the stores as officer after so many officers in between had taken charge of the stores. During the relevant period when the loss was detected, the petitioner was not in charge of the stores. In the supplementary Court of enquiry, he was merely summoned as a witness. He was taken unawares when some labourers, in that enquiry, deposed against him. At this stage he was asked to cross-examine them and he did put a few questions