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Gurman Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1984CriLJ718
AppellantGurman Singh
RespondentUnion of India (Uoi) and ors.
Cases ReferredRamsarup v. Union of India.
Excerpt:
- orderb.c. ray, j.1. the petitioner, a junior commissioned officer posted at present in the ammunition depot, panagarh, has-assailed in this application the impugned order of penal deduction as well as for issuance of a writ in the nature of prohibition prohibiting the respondents to start and/or initiate any disciplinary proceeding and/or court martial against the petitioner.2. the relevant facts as appeared in the petition are in brief as follows : a consignment of 70 m.t. (180x200) despatched by 218 petroleum control unit asc calcutta in wagon no. nr 10808 and wr 38681 under their railway receipt no, a32435 dt. 10th november, 1980 and a324357 dt. 12th november, 1980 was received in the supply depot asc panagarh on 26th november, 1980. the above consignment was inspected, checked and.....
Judgment:
ORDER

B.C. Ray, J.

1. The petitioner, a Junior Commissioned Officer posted at present in the Ammunition Depot, Panagarh, has-assailed in this application the impugned order of Penal Deduction as well as for issuance of a writ in the nature of prohibition prohibiting the respondents to start and/or initiate any disciplinary proceeding and/or Court martial against the petitioner.

2. The relevant facts as appeared in the petition are in brief as follows : a consignment of 70 M.T. (180x200) despatched by 218 Petroleum Control Unit ASC Calcutta in Wagon No. NR 10808 and WR 38681 under their railway receipt No, A32435 dt. 10th November, 1980 and A324357 dt. 12th November, 1980 was received in the Supply Depot ASC Panagarh on 26th November, 1980. The above consignment was inspected, checked and unloaded under the strict supervision of station board of Officers and railway representative and representative of Supply Depot ASC Panagarh on 100 per cent checking in all respects by the Board and the above representatives, a net loss of 5,273 litres of 70 M.T. and 5 barrels 200 litres grade B S/A amounting to Rs. 27,739.82 P. had been ascertained. Necessary endorsement to this effect was made on the railway delivery book and the railway receipts were handed over to the railways as required vide paragraph 1100 of the Regulation of the Army in India, 1962. Board proceedings duly completed to this effect were forwarded to the Station Headquarters Panagarh for countersignature of the Station Commander. The Station Commander countersigned the proceedings without giving any dissenting opinion but agreed with the opinion of the Board as mentioned in the proceedings which is as follows:-

The Board consisting of Sri K.P. Mani, the Presiding Officer and Dasarath Singh, member of the Board, is of opinion that due care has not been exercised by the sender at the despatching end. Therefore, the loss is due to short despatch from the despatching end. The comments from the consigner to be asked for and the loss to be regularised as per existing rules on the subject.' 'The loss being more than 1%, the Station Headquarters was requested in time by the Supply Depot ASC, Panagarh to order a Court of Enquiry to pin point the responsibility and apportion blame for the loss in order to meet the audit requirement. The Station Headquarters ordered a Court of Enquiry vide convening order No. 6065/Q dated 29th January, 1981 whereas it should have been done within 15 days from the date of the discovery of the loss as per A. O. 29/75 para 2(b) (i). The above Court of Enquiry was completed on 7th February, 1981 and it was of opinion that the deftciency of 5x200 litre barrels grade BS/A along with contents is attributable either due to wrong counting on expert pilferage between the place of filling to the place of loading or before the wagons were sealed at the loading station. Ex. Budge Budge. The remaining loss of 4273 litres of 70 M.T. gas may be due to expert pilferage or due to loose shunting on route or due to jerking and jolting of containers in transit. It was further of opinion that since the loss cannot be attributed to any agency, it is recommended that the loss of 5273 litres of 70 M.T. gasoline and 5 x 200 litre barrels grade B S/A be written off and the sum of Rs, 27,739.82 p. be also written off and borne by the State. The above opinion was submitted to the Station Headquarters for information of the Station Commander. The Station Commander by his order dt. 22nd February, 1981 recommended that thorough investigation enquiring into the circumstances of loading of this consignment be carried out and the blame apportioned suitably, if necessary. The Court of Enquiry reassembled in the month of April, 1981 and the opinion of the Court as well as of the Station Commander were changed even after finalisation of the previous Court of Enquiry and the petitioner and 4 Officers of Supply Depot ASC Panagarh were blamed for the loss, in spite of fact that the Officer who signed and countersigned the certificate is personally responsible for the facts certified as per Paragraph 5 of the Financial Regulations, Part I. The Court of Enquiry was reassembled from 20th April, 1981 to 2nd June, 1981 and it submitted its report on 3rd June, 1981. This is bad for that it would amount to review of the opinion, already submitted by the Court of Enquiry. This is unauthorised inasmuch as such a power of review was not given either in the Army Act or in the Army Rules. The opinion expressed by the second assembly of the Court of Enquiry was to the effect that theft was committed within the premises of the Supply Depot, Panagarh and five persons including the petitioner were made responsible for the theft. The Court of Enquiry recommended that in addition to disciplinary action against the persons responsible penal deduction from pay and allowances should be effected. It has been pleaded that the second opinion of the Court of Enquiry is wholly bad and without jurisdiction and no action can be taken on the basis of that opinion as has been sought to be done in the present case by a notice dt. 3rd November, 1981 imposing penal deduction amounting to Rs. 6,000/- from the pay and allowances of the petitioner.

3. The petitioner showed cause against the notice issued to him for penal deduction and as no reply was given to the petitioner he made an application on 16th November, 1981 and also sent a letter asking the authorities concerned to intimate the action that has been taken with regard to his reply to the show cause notice. In the meantime in April, 1981, however, the railway authorities issued a short delivery certificate for the entire loss bearing Machine No. A596368 and A596371 dt. 8th and 10th January, 1981 respectively. On the basis of these short certificates a claim against the railways for compensation of the loss was preferred by the Supply Depot ASC Panagarh in accordance with the provisions of Section 78B of the Indian Railways (Amendment) Act of 1961 which was registered by the railways and the same was under progress with the railway authorities. It has been stated that the General Officer Commanding, Bengal Area, passed an order for penal deduction of Rs. 6,000/- based on the opinion of the Court against which an application was made on 23rd September, 1982 annexed as annexure 'D' to the writ application. On 9th October, 1982, the petitioner received a letter from the Administrative Officer intimating that the petitioner's appeal dt, 23rd September, 1982 has been forwarded to the higher authorities. It has been stated that the petitioner apprehends that the order for Court Martial would be issued to the petitioner without disposing of the petitioner's application dt. 23rd September. 1982 and hence the instant application has been made before this Court. It has been submitted that the Court of Enquiry was not properly constituted as one of the members constituted in the Court of Enquiry namely Sri A. K. Sen did not belong to the regular Army and as such he was not competent to be a member of the court of enquiry. It lias also been pleaded that under Rule 179 the court of enquiry is required to give opinion in respect of returned prisoner of war who is still absent or in respect of loss of arms and in no other case. The court of enquiry constituted in the present case is absolutely illegal and without jurisdiction. It has also been pleaded that there was violation of the provisions of Rule 180 of the Army Rules as the petitioner was not allowed to cross-examine the witnesses either in the first assembly of the court of enquiry or during the second assembly of the court of enquiry. It has also been submitted that the officer commanding covered up this defect by convening the court of enquiry so assembled for the third time on 16th Mar., 1982. It has also been submitted that after the final opinion is given there cannot be a re-assembly of the court of enquiry. It has also been submitted that the penal deduction of Rs. 6,000/- has been ordered before any determination by the court martial and as such the order for penal deduction is absolutely bad and unauthorised. In making this order of penal deduction the procedure prescribed has not been followed and the order has been made with a closed mind which shows that the respondents are determined to punish the petitioner. It has also been submitted that in view of the show cause notice mentioned in Annexure A to the petition directing the petitioner to show cause why penal deduction of Rs. 6,000/- shall not be made there is no room for instituting a disciplinary proceeding against the petitioner for his trial by the court martial as Section 121 of the Army Act operates as a bar inasmuch as there has been a summary trial under Secs. 83 to 85 and the petitioner has been convicted and the sentence of penal deduction has been imposed. It has also been submitted that Section 125 is discriminatory as it empowers the officer commanding the Army Corps Division or independent brigade in which the accused person is serving or such officer as may be prescribed to decide before which Court proceeding shall be instituted and if that officer decides that they should be instituted before a Court Martial, to direct that the accused person shall be detained in military custody. This unguided and uncanalised discretionary power given to the officer commanding makes Rule 125 unconstitutional, unreasonable and violative of Article 14 of the Constitution. It has also been stated that the provision for detaining the officer accused of offences in military custody under Section 125 read with Section 101 while he is being tried before a Court Martial without any provision for bail is also discriminatory as under the Criminal P. C. there is provision for bail. It has also been submitted that the punishment provided in Section 52 of the Army Act is 10 years whereas Section 380 of the Penal Code provides for punishment for seven years, Section 52 of the Army Act is therefore ultra vires of the provisions of Article 14 of the Constitution. On these grounds the instant application was moved before this Court on 16th November, 1982. This Court directed the application to be listed for hearing and in the meantime passed an interim order to this extent that no further effect should be given to the show cause notice for a period of four weeks from date. On 14th January, 1983 after hearing the learned Advocates for both the parties, the interim order was modified to this extent that the Court Martial proceedings would be continued but the final order of the court martial would not be given effect to till the disposal of this application. Thereafter an application for amendment of the petition was filed and on 4th March, 1983 this application was allowed subject to any objection that the respondents may take at the time of hearing of the application.

4. An affidavit-in-opposition has been filed on behalf of the respondents on 4th March, 1983 sworn by one Kotera Muthama Bhimaya, the Station Commander, Panagarh. In paragraph 4 of the said affidavit, it has been stated that the petitioner was tried by General Court Martial for offence under AA 1950. He was found guilty and sentenced to 2 years' rigorous imprisonment and dismissal from service. During the above trial he was given full opportunity to defend himself and cross-examine witnesses. He had, inter alia agitated all of the points that he had brought out in the instant application. It has also been stated in paragraph 8 that since the loss of petrol was more than 1% of the total consignment despatched by the consigner there was provision for mandatory court of enquiry. The court of enquiry was convened by the Station Commander, Panagarh under Order No. 6065/0 dt. 29th January, 1981. The court of enquiry had assembled on 7th February, 1981 and having completed and checked forwarded the proceedings to Station Headquarter on 12th February, 1981. These were received at the Station Headquarters on 16th February, 1981 and put up before the Station Commander on 17th February, 1981. The Station Commander recorded his opinion on 27th February, 1981 recommending a further investigation as there were gaps in some vital aspects in the cause of leakage and deficiency of 5 filled barrels when the seals were intact,

5. The Calcutta Sub Area Headquarter, vide their letter No. 0906/927/02 dt. 11th April, 1981 ordered additional statements to be recorded. Additional witnesses in Court of Enquiry can be examined in view of Sub-rule (5) of Army Rule 179, In paragraph 11, it has been stated that the Court then moved to Calcutta to record additional statements. It is incorrect to allege that there was a review of the opinion when the opinion itself recommended further investigation. Upon investigation and upon consideration of the material records the Court of Enquiry on 3rd June, 1983 found that the theft of the alleged gasoline and petrol was committed within the premises of supply depot of Panagarh at POL siding by the 5 personnel including the petitioner and recommended that disciplinary action be taken against the individuals and the administrative action be taken against Major S. K. G. Filial. It further recommended that the loss of property amounting to Rs. 27,730.02. be regularised by penal deduction from the pay and allowances to the extent decided by the court of inquiry and remaining amount be borne by the State and written off. The proceedings of the court of. enquiry were then placed before the Station Commander, Panagarh who upon consideration of the material on record and on being satisfied had inter alia recommended that severe disciplinary action be taken against the said officers. The court again reassembled at the Amunition Depot, Panagarh from 27th January, 1982 to 8th February, 1982 to examine additional witnesses and re-examine the old witnesses under Army Rule 180. The writ petitioner was given full opportunity to cross-examine the witness. On consideration of the additional facts the Court of Enquiry was of the opinion that the loss was due to theft committed within the premises of the Supply Depot, Panagarh near the POL siding by the 5 officers including the petitioner and the recommendations that were made at the second assembly of the court of enquiry remained the same. Thereafter on complying with the procedure of Rules 22 to 25 of the Army Rules and on coming to an opinion that there was prima facie case the Commander, Calcutta Sub Area agreed with the opinion of the Station Commander, Panagarh and directed that disciplinary proceeding be initiated against the petitioner. Thereupon a General Court Martial was ordered by the General Officer Commanding, Bengal Area, to try the petitioner on the charges of committing theft of property as framed under Section 52 of the Army Act. It has been stated that during the General Court Martial the petitioner was given full opportunity to defend himself as also to cross-examine prosecution witnesses. The court martial proceedings were duly completed and the General Court Martial found that the petitioner was guilty of committing theft of the property as. mentioned in the charge and the verdict of the General Court Martial which required to be promulgated under the Army Rule 71 could not be done because of the interim order passed by this Court. It has been submitted that there is no irregularity and illegality in holding the court martial proceedings. It has also been submitted that the competent authority has passed the order of penal deduction of Rs. 6,000/-from the pay and allowances of the petitioner after considering the entire materials on record and as such there was no infirmity in the said order. The provisions of Section 125 of the Army Act is not discriminatory and it is not necessary to consider whether that section is violative of Article 14 of the Constitution inasmuch as the trial by the Court martial was in respect of offence under Section 52 which specifies that offence related to property are to be tried only by court martial and not by criminal court. It has therefore been submitted that there is no infirmity in the court martial proceedings and this Court will not interfere with the proceedings of the General Court Martial.

6. An affidavit-in-reply has been given reiterating the statements and allegations made in the writ petition.

7. Mr. Swadesh Ranjan Bhunia, learned Advocate appearing on behalf of the petitioner has submitted that there cannot be a second assembly of the court of enquiry in a case where the court of enquiry has finally opined that it was difficult to fix the responsibility for the loss of petrol and gasoline which was carried from Budge Budge to Panagarh by the Railways to any particular Officer or Officers and so it recommended for writing off the loss. The convening of the second assembly of the court of enquiry is in the nature of review which is not authorised by the Army Act, 1950 or the rules framed thereunder and as such the convening of the Court of Inquiry for the second and the third time is wholly illegal and unauthorised and the opinion that has been given by such Court of Inquiry cannot be taken into consideration by the Officer Commanding who called for assembly of the court of enquiry. It has been next submitted that the opinion of the Court of Inquiry at its second assembly whereby its earlier decision was changed holding the petitioner and four other officers responsible for the loss caused to the property of Army and directing the recovery of a sum of Rs. 6,000/- from the emoluments of the petitioner as a penal measure is bad and this cannot be done without complying with the procedure prescribed by the Rule 26 of the Army Rules and Appendix IV to the Army Rules read with paragraph 444 of the Regulations and Appendix K to the said Regulations. It has also been submitted that the order of penal deduction which is a punishment can be imposed only by court martial or by the Officer Commanding in a summary procedure as envisaged in Sections 80, 83, 84 and 85 of the Army Act, 1950.

8. It has also been submitted that the convening of the court martial for trial of the petitioner is bad as it is in violation of the provisions of Section 121 of the Army Act which expressly bars or prohibits a second trial of a person subject to this Act who has been acquitted or convicted of an offence either by a court martial or by a criminal court or has been dealt with under any of the Sections 83, 84 and 85. It has been submitted that since the penal deduction has been ordered and the show cause notice has been issued by the Commanding Officer purporting to adopt the procedure for summary trial there cannot be a calling of the court martial for trial of the same offence and as such it has been submitted that the court martial proceedings are wholly unauthorised and the same should not be proceeded with and the said proceedings should be quashed. It has been next submitted that the holding of the second assembly of the Court of Inquiry which came to the opinion that the petitioner and other officers are responsible for the loss of petrol and gas is illegal and bad inasmuch as no opportunity of hearing was given to the petitioner either to examine his witnesses or to cross-examine the witnesses examined on behalf of the prosecution and the petitioner was not served with any notice intimating him to be present throughout the proceedings of the court of enquiry if he so desired and also to examine his witness and to cross-examine the witnesses examined by the prosecution as required under the Army Rules. It has, therefore, been submitted that the decision and or opinion of the court of enquiry in its second assembly is wholly illegal and unwarranted being in utter violation of the mandatory procedure prescribed by Rule 180 of the Army Rules. It has been further submitted in this connection that since the enquiry-in-question affects the character or military reputation of the petitioner it is mandatary upon the court of Inquiry to give him full opportunity of hearing. It has been next submitted that the Court of Inquiry under the provisions of Rule 177 is to be composed of officers and Junior Commissioned Officer and not by any person other than an officer or Junior Commissioned Officer or Warrant Officers or Non-Commissioned Officer. The Court of Inquiry as constituted is wholly illegal as one of the members of the court of enquiry namely Sri A. K. Sen who is not an Officer within the meaning of Rule 177 and Section 3 read with clauses (XII) and (XVIII) of the Army Act. The Court of Inquiry as constituted is bad and the decision of such a court of enquiry is also illegal and on the basis of the said decision the show cause notice for penal deduction and the order for penal deduction that has been made as annexed in Annex. 'E' to the affidavit-in-reply are illegal and the same cannot be given effect to. It has been next submitted that the convening of the general court martial is bad as the Officer Commanding already formed an opinion in regard to the charge by fixing responsibility on the petitioner and issuing the show cause notice for penal deduction and as such the initiation of the court martial proceedings is also bad. It has also been submitted in this connection that two short delivery certificates for the entire alleged loss of petrol and gas being bearing Machine Nos. A596368 and A596371 dated 8th and 10th January, 1981 respectively was issued by the Railway Authorities and on the basis of these short certificates a claim against the Railways for compensation of the loss was prepared and the same was sent under registered cover before the Railway Authorities on 2nd Ma y, 1981. The court martial was convened on 10th January, 1983 without waiting for the decision of the Railway Authorities on the claim filed. It has, therefore been submitted that the convening of the court martial is not in accordance with the procedure prescribed by the rules and initiation of the court martial proceeding is bad. It has also been submitted in this connection that the alleged receipt from the Railways which has been produced before the court that the claim was rejected being tiled out of time and which was received on 18th January, 1983 is also bad inasmuch as it has been contended that under Section 140 (C) of the Railways Act forwarding of claim by sending it by registered post has to be treated as filing of the claim within the period prescribed even though the same was received after the period of limitation by the Railway Authorities. It has, therefore, been submitted that the order of the Railway Authority rejecting the claim as time barred is wrong and unless the claim is decided the initiation of the court martial proceedings is bad and the decision arrived at in the court martial proceeding cannot also be given effect to. Some decisions were cited at the bar in support of the submission. It has been next submitted that the provisions of Section 132 of the Act read with Rules 61 and 62 of the Army Rules framed under the said Act are bad inasmuch as it does not provide for a speaking order, even though it is a quasi judicial proceeding and principles of natural justice require that order recording reasons has to be made as there is a provision for challenging the order in a writ petition under Article 226 of the Constitution before this Court. It has been, therefore, submitted that the aforesaid provisions are unreasonable and violative of the principles of natural justice and as such they are bad. It has been next submitted that Section 125 confers arbitrary powers without laying down any policy and without laying down any guidelines on the Officer Commanding to decide before which forum the proceedings shall be instituted in case of an offence triable by the criminal court as well as by the court martial. This provision is violative of Article 14 of the Constitution inasmuch as the discretion may be used by the Officer Commanding at, his sweet-will and pleasure by directing a particular case to be tried by a court martial whereas the same offence committed by another Army Officer to be tried by the criminal court. It has also been submitted that the provision of Section 125 which provides for custody of the offenders without any provision of bail is also discriminatory. It has also been submitted that Section 127 of the Act is also violative of Article 20, Sub-article (2) Constitution inasmuch as it provides for successive trials by the criminal court and the court martial in respect of the same offence and thus there is a double jeopardy of the accused under the Army Act. It has also been submitted that though Article 33 of the Constitution confers powers on the Parliament to enact laws applicable to the members of the Armed Forces or the forces charged with the maintenance of public order by restricting and/or abrogating any of the fundamental rights conferred by Part III of the Constitution yet such restrictions can be imposed or the fundamental rights can be abrogated to such extent as is consistent with the maintenance of discipline in the Army and to ensure proper discharge of their duties and this Court is competent to determine whether the provisions of the Act is in excess of the limits laid down by Art., 33 of the Constitution. It has further been submitted that if the provision of the Act exceeds such limits the impugned provision of the Act made by the Parliament is liable to be declared ultra vires and void.

9. Mr. R. N. Das, learned Advocate appearing on behalf of the respondents has submitted that the Constitution of the court of enquiry is not at all bad. The court of enquiry was constituted in accordance with the provisions of Rule 177 Paragraph 519 of the Defence Service Regulations, Part I, provides for appointment of a civil officer in the Accounts Department to assist the court of enquiry and as such the composition of the court of enquiry with officers in the Army along with a civilian officer in the Accounts Department like Sri A. K. Sen, does not render the Constitution of the court of enquiry bad.

10. It has been next submitted by Mr. Das that the procedure for assembling the court of enquiry is provided in Rule 179 of the Army Rules and the couvening of the second assembly of the court of enquiry and the third assembly of the court of enquiry cannot be questioned as bad on the ground that it amounts to review of the final opinion which was given by the first assembly of the court of enquiry on 7th February, 1981 on the ground that there was no provision for review either in the Act or in the Rules inasmuch as Rule 179(5) expressly provides for re-assembly of the court of enquiry for purpose of examining additional witnesses or for further examining any witness or recording further information. In this case the second assembly of the court of enquiry was convened for examining the additional witnesses and for recording further informations. As such the second and third assembly of the court of enquiry is not bad. It has also been submitted that the principles of natural justice has not been violated nor the procedure prescribed in Rule 180 of the Army Rules has been disregarded inasmuch as in the third assembly of the court of enquiry which affected the character or the military reputation of the petitioner notice was given to him to be present throughout the enquiry in pursuance of which the petitioner was present and he was given adequate opportunity to cross-examine the witnesses examined and also to examine his own witness in defence of his character or military reputation. The proceedings of the Court of enquiry cannot be assailed as unreasonable, arbitrary and in violation of Rule 180 of the Army Rules. It has further been submitted that a court of enquiry is, in Chap. VI of the Army Rules whereas the court martial is in Chap. V of the said Rules and even if there is any irregularity or illegality in the assembly of the court of enquiry that does not in any way affect or vitiate the court, martial proceedings as it is not necessary to convene the court of enquiry and to consider its final opinion before convening the court martial. It has also been submitted that the court of enquiry proceedings are in the nature of preliminary enquiry directed to collect evidence and to report with regard to any matter referred to it. Moreover, the proceedings of a court of enquiry or any statement made before it are not admissible in evidence against any person subject to the Army Act as provided in Rule 182. Therefore, the irregularity, if any, in holding the court of enquiry does not affect the court martial proceeding. It has been next submitted that the submission that the provision of Section 125 read with Section 101 providing for detaining the accused person in custody as soon as a court martial proceeding is directed to be initiated against him is discriminatory as there is no provision for bail is also without any substance. It has been submitted by Mr. Das in this connection that paragraph 392(k) of the Army Regulations provides for placing the accused under close arrest before commencement of the court martial and he will remain under close arrest after trial by the court martial until the proceedings are promulgated. This has been provided for only to maintain discipline in. the Army and as such this provision cannot be challenged as bad being discriminatory violating Article 14 of the Constitution. It has been next submitted that the manner of recording the decisions as provided in Rules 60, 61 and 62 is not arbitrary, unreasonable and violative of principles of natural justice on the ground that the decision does not record reasons or it is not a speaking order. It has been submitted that the Judge-Advocate summed up the evidence in the open court and also advised the court upon the law relating to the case. This summing up of the evidence of the Judge-Advocate together with the decision clearly go to show that the decision of the court martial is not unreasonable and bad being not a speaking order. Moreover, the Act and the Rules framed thereunder having not provided for recording elaborate reasons in the decisions the provisions of Section 132 read with Rules 60, 61 and 62 cannot be assailed as unreasonable and violative of the principles of natural justice. In this respect some decisions has been cited at the bar. It has been submitted in this connection that Article 33 of the Constitution clearly empowers the Parliament to enact laws determining to what extent any of the rights conferred by Part III of the Constitution in their application to the members of the Armed Forces or the forces charged with the maintenance of public order be restricted or abrogated in order to ensure proper discharge of the duties and the maintenance of discipline amongst them. The impugned Army Act has been enacted by the Parliament and even if it restricts or abrogates some of the rights conferred by Part III of the Constitution in so far as it applies to the members of the Armed Forces the same cannot be questioned or challenged as ultra vires of the provisions of the Constitution. It has also been submitted in this connection that the show cause notice, Annexure 'A' to the writ petition was issued on the petitioner by the General Officer Commanding, Bengal Area solely on consideration of the court of enquiry proceedings investigating into the circumstances under which loss was caused is not bad inasmuch as it is an order made in accordance with the provisions of Regulations Nos. 155, 157 and 160 of the Financial Regulations Part I which provide for taking action in accordance with the Regulation 160 (b). (i) (bb) without prejudice to the rights of the competent authority to initiate a disciplinary action against the individual officers concerned, if considered necessary. It has been contended that the submission that the notice of penal deduction has been issued in pursuance of the summary proceedings under Sections 83, 84 and 85 of the Army Act is wrong and that the convening of the court martial by the Officer Commanding for trial of the same offences of theft of the petrol and gas is bad being barred under Section 121 of the Army Act as alleged are not tenable at all. It has been submitted that the offence with which the petitioner was charged along with other officers for trial before the court martial is one under Section 52 of the Army Act and it is triable exclusively by the court martial as it is not a civil offence. It has been submitted that it is not necessary to decide the question of vires of Section 125 of the Army Act because there is no question of trial of the offence in question by the court martial and also by the criminal court. It has been next submitted that Section 127 is not ultra vires of Article 20(2) of the Constitution in view of Art, 33 of the Constitution.

11. It. has also been submitted by Mr. Das that the court martial proceeding was convened in accordance with the provisions of Rules 22 and 24 read with Rules 37 and 40 of the Army Rules. The submission that the claim filed on the basis of the short certificate granted by the Railway Authorities for compensating the loss caused to the Army for short supply of petrol and gasoline was not disposed of before the proceedings were initiated is without, any basis inasmuch as the claim filed by one of the accused officers namely, Pillaih was rejected on the ground that it was barred by limitation. It has also been submitted that whether the said order of the Railway Authority is a valid or proper order it is not for this Court to enter into that question and decide. It has been submitted that the court martial proceedings have been completed and final order has been made but. the same cannot be sent for confirmation and promulgated as required under Rules 70 and 71 because of the interim order made by this Court. It has further been prayed, that this Rule should be discharged to enable the respondents to give effect to the order in accordance with law.

12. The first question that requires to be decided is whether the second and third assembly of the court of inquiry amount to convening of the assembly of the court of inquiry to review the final order made on 7th February, 1981. It has been submitted in this connection that there is no provision either in the Army Act or in the Rules framed thereunder providing for such review of the final opinion once expressed by the court of inquiry in accordance with the provisions of Rule 179 Sub-rule ((5) of the Army Rules, 1954 framed under Section 191 of the Army Act, 1950. Rule 179(5) expressly provides as follows:-

The court may be re-assembled as often as the officer who assembled the court may direct, for the purpose of examining additional witness, or further examining any witness, or recording further information.

13. On a consideration of the above provisions it is quite clear that the court of enquiry may be reassembled as often as the Commanding Officer direct for purpose of examining additional witnesses or further examining any witnesses or recording any further information. It has been stated in paragraph 10 of the affidavit in opposition sworn by Kothera Muthama Bhimaya, Station Commander, Panagar on 4th March, 1983 that the Station Commander recommended on 27th February, 1981 a further investigation as there were gaps in some vital aspects in the cause of leakage and deficiency of 5 filled barrels as when the seals were intact.

14. The Calcutta Sub Area Headquarter, vide their letter No, 0906/927/02 dt. 11th April, 8l ordered additional statements to be recorded. Addition witnesses in Court of Enquiry can be examined in view of Sub-rule (5) of Army Rule 179.

15. Upon investigation and upon consideration of the material on record the court of enquiry on 3rd June, 1981 was of the opinion that the less receipt of the Gasoline and Petroleum was due to theft committed within the premises of supply depot, Panagar at POL Siding by 5 personnel including the petitioner and the court of enquiry recommended that disciplinary action be taken against the said officers amongst others and that cost of the said Petroleum and Gasoline amounting to Rs. 27,739.02 be regularised in addition to disciplinary action by penal deduction from the pay and allowance of the Officers including the petitioner be made in the manner decided by court of inquiry and the balance amount will be borne by the State and be written off. The court again assembled from 27th January, 1982 to 8th February, 1982 to examine additional witnesses and re- examine the old witnesses under Army Rule 179. The petitioner was given full opportunity to cross-examine the witnesses. Upon consideration of additional facts and of the evidence the court of inquiry made the same recommendations as it made on 2nd June, 1981. Thereafter the C.O.O., Ammunition Depot, Panagarh recommended that as there was a prima facie case the recording of summary of evidence was ordered by the Commanding Officer, Ammunition Department, Panagar for the progressing of the disciplinary rase against the writ petitioner. Ditring the summary of evidence the petitioner was given full opportunity of defending himself and he was also given opportunity to cross-examine the prosecution witnesses.

16. In these circumstances the submission that has been made on behalf of the petitioner that the second and third assembly on the court of inquiry with the purpose of review of its earlier opinion in the absence of any Rule or any provisions in the Act is totally devoid of merit as the reassembly was made in accordance with the provisions of Sub-rule (5) of Rule 179 of the Army Rules and the petitioner was given notice to be present throughout enquiry affecting his military character. He was also afforded opportunity to cross-examine witnesses and to examine his witnesses in, defence of his military reputation as provided in Rule 180 of the Army Rules. There has been no violation of the provisions of the Army Rules. This submission, therefore, fails.

17. It has been alleged that the Constitution of the Court of Enquiry is not in accordance with the provisions of Rule 177 of the Army Rules as this Rule enjoins that the court of enquiry shall be an assembly of officers or of officers and junior commissioned officers etc. Out of the members composing the court of enquiry there is no dispute that one of the members Sri A. K. Sen was civilian Officer in the Accounts Department and as such it has been assailed that the composition of the court of enquiry is wholly bad and whatever decision adopted by the court of inquiry is illegal and the same cannot be taken into consideration by the Officer Commanding. It has been submitted on behalf of the respondents that paragraph 519 of the Army Regulation provides that an officer of the Defence Accounts Department may be appointed to assist at any military court of inquiry assembled in connection with Financial irregularities in order to properly guide the investigation of the court. Relying on this provision it has been submitted on behalf of the respondents that the composition of the court of inquiry by military officers and Sri A. K. Sen, an officer of Defence Accounts Department is not bad. This submission, however, is a faulty one based on a misconception and misreading of the paragraph 519 of the Army Regulation inasmuch as this Regulation clearly enjoins that an officer of the Defence Accounts Department may not sit as a member of such a court. The word 'may', in this case, in the context in which it is used is to be treated as must in order to keep the regulations within the limits set down by Rule 177 of the Army Rules which provides clearly that the members of the court of enquiry are to be officers, Junior Commissioned Officers and Warrant Officers or Non-Commioned Officers of the Army. This precludes an officer employed in the Defence Accounts Department to be a member of the court of enquiry. The composition of the court of enquiry, in my opinion, has not been properly made in accordance with the Rules and as such the opinion given by the court of enquiry is irregular and not illegal in view of the express provision in paragraph 519 that an officer of the Defence Accounts Department appointed to assist any court of enquiry if he finds himself unable to agree with the conclusion of the court of enquiry can record a note of dissent. In the instant case, however, there was no note of dissent recorded by Sri A. K. Sen but all the members were unanimous in the opinion of the decision. In this matter though there was any irregularity in the formation of the court of enquiry still then I am unable to hold that the composition of the court of enquiry is wholly illegal and the opinion formed by it is illegal. The proceedings of the court of enquiry, as has been expressly provided in Rule 182, is not admissible in evidence nor any confession or statement or answer to question made or given at the court of enquiry shall be admissible in evidence againsi any person subject to the Act. The court of enquiry is merely in the nature of a fact finding enquiry committee and this will be evident from Sub-rule (1) of Rule 177 which provides that the court of enquiry is an assembly with a view to collect, evidence and to report with regard to any matter which may be referred to it. Therefore the opinion of the court of enquiry merely helps the Officer Commanding to merely satisfy himself whether there is any prima facie material for proceeding with the investigation of charges and trial by Court Martial as provided in Chapter V of the Army Rules.

18. The show cause notice why penal deduction should not be made from the emoluments of the petitioner as mentioned in Annexure 'A' was issued by the Officer Commanding on 3rd November, 1981 on the basis of the information of the General Officer Commanding, Bengal Area based on the court of enquiry proceeding. This notice has been attacked on the ground that such a notice can only be issued after the Officer Commanding has tried the petitioner summarily in accordance with the provisions of Sections 83, 84 and 85 of the Army Act and has convicted him and awarded him punishment of penal deduction from pay and allowances of the petitioner or such a penal deduction can be imposed only after a trial by the court martial and not otherwise. It has been submitted that the court martial was started on 10th January, 1983 whereas this show cause notice of penal deduction stating why such penal deduction should not be made from pay and allowance of the petitioner was made on 3rd November, 1981, that is, before the initiation of the court martial proceeding. It has also been submitted that General Officer Commanding, Bengal Area agreeing with 'he Opinion of the court of enquiry directed penal deduction to be made from the pay and allowance of certain officers including the petitioner. This order was made on 8th July, 1981 annexed as Annexure 'F' to the affidavit in reply of the petitioner sworn on 27th March, 1983. This order has been made, it has been submitted on behalf of the respondents, on the basis of the Financial Regulations 155 to 160. Rule 155 of the Financial Regulations provides that in awarding punishment for financial loss procedure in appendix I is to be observed, paragraph 6 of appendix I provides as follows :

The recoveries will be made either directly by requiring the individuals concerned to make good the loss in money or -

(a) (i) If the persons concerned are subject to the Army Act by enforcing recovery under the provisions of Army Act, Sections 90(g), 91(g) and Army Rule 205 or by award of suitable punishment by the appropriate authority under Army Act, Sections 71(1), 80(i), 83(b), 83(b), 83(c) and 85;

(ii) If the persons concerned are subject to Navy Act by enforcing recovery under the provisions of Navy Act, Sections 28(5) and 29(4) or by the award of suitable punishment by the appropriate Naval Tribunal under the Navy Act;

This financial regulation therefore clearly provides that the penal deductions are to be made by making an order as provided in Section 91(g). In the instant case as, the petitioner is not an officer but a Junior Commissioned Officer this penal deduction under Section 91(g) has to be made by awarding punishment in accordance with the provisions of Sections 83 to 85 of the Army Act either by a summary trial or in accordance with Section 91(g) that is by a trial and conviction by court martial. It has been submitted that there has not been any summary trial of the offences with which the petitioner is charged as provided in Secs. 83 to 85 of the Army Act. Therefore the impugned order which contained in the show cause notice asking the petitioner to show cause, why penal deduction should not be made is, in my opinion, wholly illegal, unwarranted and dehors the provisions of the Army Act and the Rules framed thereunder including the Financial Regulations. The same therefore is invalid and unenforceable. It is also to be mentioned in this connection that these Financial Regulations arc nothing but executive orders of the Central Government for guidance of the officers and as such they cannot supplant or revise the Army Rules and the provisions of the Army Act. These Financial Regulations, in my opinion, cannot have any legal force or effect. Any administrative order prejudicially affecting person passed on the basis of these Financial Regulations without complying with the procedure prescribed by the Act and the Rules is, in my opinion, not a valid order, hence it is not legally enforceable.

19. It has been urged that the initiation of the court martial proceedings or the convening of the General Court Martial is bad inasmuch as claim for compensation that was tiled under Section 78(b) of the Indian Railways Act was pending with the Railway Authorities on 10th January, 1983 when this Court martial proceeding was convened and there had not been any observance of the procedure prescribed by Rules 22 and 23 of the Army Rules. The alleged information from the Railway was received on 18th January, 1983 which stated that the claim filed on behalf of the respondents on the. basis of the two short delivery certificates issued by the Railway Authorities has been rejected as they have been filed out of time prescribed by Section 78B of the said Act. It has also been submitted in this connection in paragraph 10 of the writ petition filed on 8th November. 1982 that the railway authorities issued short delivery certificates for the entire loss bearing Machines Nos. A596368 and A596371 dated 8th and 10th January, 1981 respectively. It has also been stated that based on these certificates a claim against the railways for compensation of the loss was preferred by the Supply Depot ASC Panagarh in accordance with Section 78B of the Indian Railways (Amendment) Act of 1961 which was registered by the railways and the same is under progress with the railway authorities. In the affidavit-in-reply in paragraph 9 sworn on 4th Mar., 1983 it has been stated in reply to said paragraph 10 of the said petition that 'since the entire matter has been referred to the General Court Martial, I refrained from making any statement : save and except whatever does not appear from the records, are denied and disputed by me'. It has been submitted that even on the. date of the swearing of the affidavit-in-reply the respondents did not say that the claim was rejected by the railway authorities as barred by limitation though they produced before this Court alleged receipt showing that they were intimated on 18th January, 1983 that the claim was rejected as being barred. This submission is of much substance inasmuch' as if a proper claim has been preferred with the railway authorities in respect of the loss caused to the property of the Army on the basis of the short delivery certificate issued by the railway authorities for the whole loss the initiation of the court martial proceeding and/or convening of the court martial, in my opinion, will be not in accordance with the Army Act and the Rules unless and until the claim preferred on behalf of the Army is considered and disposed of and decided upon by the railway authorities. This will be clearly evident from the provisions of Sub-rule (3) of Rule 22 which clearly provides that 'if the Commanding Officer is of the opinion that the charge will be proceeded with, etc.' After forming such opinion the Commanding Officer has to proceed in accordance with the procedure prescribed in Rules 22 to 24 of the Army Rules. In this case so long as the claim preferred by the Army for compensating the loss to the Army property on the basis of the short delivery certiiicate issued by the Railways is not decided upon or disposed of it is not possible for the Officer Commanding to form his opinion that the charge levelled against the accused ought to be proceeded with. In this case it, was not known on 10th January, 1983 before the Officer Commanding or the General Officer Commanding, Bengal Area who convened the court martial whether the claim preferred with the railway authorities would be allowed or not. It also appears surprising what prevented the Station Commander at Panagarh, that is, the deponent who swore the affidavit-in-opposition on 4th March, 1983 not to state dearly in reply to the specific averment made in paragraph 10 of the petition that the claim was rejected as barred even though their case was that the railway authorities intimated them on 18th January, 1983 about this. It is also surprising why this receipt has not been annexed to the affidavit-in-opposition. Furthermore, it appears from the records produced on behalf of the military authorities that K. Pillaih. one of the officers against whom also court martial proceedings have been initiated in respect of the same offence, prepared the claim In accordance with Section 78B of the Indian Railways Act, 1961 on 29th of April, 1931 and it also appears that the same was despatched from Panagarh to the Chief Commercial Superintendent of the Railways at its office at Calcutta by registered post on 2nd May, 1981. This claim, it is stated, was received as late as on 15-5-1981, This is also very surprising because in ordinary course the letter should have been received by the railway authorities within 10th of- May, 1981. Moreover, the alleged railway receipt does not show how it was sent to the office of the Army at Panagarh. It was tried to be said that one of the officers went to the railway office at Calcutta to collect it. No affidavit in this respect is forthcoming. In these circumstances the Army Officer Commanding should have ascertained this fact as to when the claim was actually received by the railway authorities before proceeding to initiate or convene the court martial for trial of 5 Army personnels. This is a very serious matter and ends of justice, in my opinion, require that this matter should be enquired into before order or proceedings of the Court Martial are confirmed and promulgated. In this connection provisions of Sections 140 and 142 are required to be considered, Section 140 lays down three modes of service of notices on railway administration. One such mode provided in Sub-section (c) is by forwarding by post in a pre-paid letter addressed to the Manager or the Chief Commercial Superintendent at his office and registered under Indian Post Office Act. It has also been provided in Section 142 of the said Act that when a notice is served by post it has to be deemed to have been served at the time when the letter containing it would be delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the letter containing the notice or other document was properly addressed and registered. In this particular case it appears that the letter was properly addressed and registered on 2nd May, 1981. The last date of 6 months expired on 10th May, 1981. It appears, however, from the affidavit-in-opposition filed in connection with Pillai's case that the claim filed with the Railways has been rejected as time-barred. In this connection, this Court directed the Postal Authorities to submit a report as to when the letter sent under registered cover by the Army Officer, Pillai. the petitioner in the other case, was received by the Railways. No response was received from the Post Office. Therefore, fact as it stands, the claim that has been made and sent to the Railway was rejected as time-barred, the same having been received by the Railways after the expiry of six months. In these circumstances it will not be proper to hold that the Court Martial proceedings that have been initiated against the petitioner is bad on this ground. There might be an irregularity but not an illegality which renders the Court Martial proceedings void or inoperative. This contention, therefore, is unsustainable.

20. It has been urged on behalf of the petitioner that the provisions of Section 132 and Rules 61 and 62 are bad as they violate the rules of natural justice which require that reasons are to be recorded in the derision. It is evident from the provisions of Section 132 of the Army Act as well as from Rules 61 and 62 of the Army Rules that in derisions by Court Martial reasons are not required to be recorded. The members composing the Court Martial arc to express their decisions by an absolute majority of votes and by recording simply as a finding of 'guilty' or of 'not guilty' on each charge. Similar provisions are also made in Sections 164 and 165 of the Act providing for confirmation of any finding or sentence of Court Martial by the confirming authority or by the Central Government and there is no express obligation imposed by the said provisions to record reasons in support of its decision to confirm proceedings of the Court Martial. It has been held by the Supreme Court in the case of Som Dutt v. Union of India, reported in AIR 1069 SC 414 at pp. 421 and 422 paras lo and It : 1969 Cri LJ 663 at pp. 670 and 671 paras 10 and 11 that the provisions of Sections 164 and 165 which are in pari mat.eria with the provision of Section 132 read with Rules 61 and 62 are not bad and they are not violative of the principles of natural justice as the provisions of the Act do not require that reasons are to be recorded in support of its decisions lo confirm the proceedings of the Court Martial either by the confirming authority or by the Central Government. It has been further observed that apart, from any requirement imposed by the statute or statutory rule expressly or by necessary implication it cannot be accepted that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. This decision has been followed in the case of Tarachand v. Delhi Municipality, reported in : (1977)ILLJ331SC where it has been held that although it might be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it differs from the findings arrived at by the Enquiring Officer with regard to the charge, it was not obligatory to do so in case the disciplinary authority concurs with the findings of the Enquiring Officer. The case of Rangnath v. Dauiatrao, reported in : [1975]3SCR99 , does not support the submission of the petitioner. In this case, Untwalia, J. who spoke for the Supreme Court observed:-

It may not be possible in all cases to say that a non-speaking order is bad or invalid on that account alone but when an order is liable to be challenged under Article 226 or 227 of the Constitution of India, Courts do insist that an appeal of the kind filed by the appellant should be and ought to have been disposed of by giving a speaking order giving some reasons in its support.

In that case, however, on the facts of the case, the order passed on appeal was not held bad though no speaking order was made Under Rule 60 of the Army Rules, the Judge-Advocate has to sum up in open Court the evidences and advise the Court upon the law relating to the case. The Court shall deliberate on its finding in closed Court in presence of the Judge. Advocate. In this case the summing up of the evidences recorded by the Judge-Advocate has been produced before this Court and taking into consideration the same along with the decision of the Court Martial under Rule 6l of the Army Rules it cannot be said that the decision is bad as it is not a speaking order. Therefore on a conspectus of the above decisions, I am unable to hold that the provisions of Section 132 and of Rules 61 and 62 are bad being violative of the principles of natural justice on the ground that they did not provide for giving reasons in the decision. The decisions cited on behalf of the petitioner in the case of Ramana v. Air Port Authority, reported in : (1979)IILLJ217SC are not applicable to this case as the question of giving reasons was neither raised nor decided in that case. Similarly the decision in : 1979CriLJ1036 (sic) also is of no help to the petitioner on this particular question.

21. The submission that Sections 125 and 127 of the Army Act are ultra vires inasmuch as Section 125 confers arbitrary and unguided discretion on the officer commanding to decide in any case of civil offence, before which Court i.e. either in the Criminal Court or the Court Martial, the proceeding shall be instituted. It has been submitted that the punishment provided for an offence under Section 52 of the Army Act is for a period of ten years if tried by Court Martial whereas the punishment under Section 379 or 380 of the Penal Code if tried by Criminal Court is for a period of seven years. Moreover, in case of an accused tried by the Criminal Court there is provision for bail which is conspicuous by its absence in the case of a trial of an accused by Court Martial. So the discretion conferred on the officer commanding to decide upon whether a civil offence would be tried by a Criminal Court or by Court Martial without laying down any guideline is arbitrary, discriminatory and so bad. It has also been submitted that the provision of Section 127 of the Army Act which provides for successive trials by Criminal Courts and Court Martial for the same offence is in violation of the fundamental freedom guaranteed by Article 20, Sub-article (2) of the Constitution and as such it is ultra vires of the provisions of the fundamental rights guaranteed by Part III of the Constitution. This argument is devoid of any merit inasmuch as Article 33 of the Constitution confers powers on the Parliament to enact law creating restrictions on the fundamental rights and/or abrogating the fundamental rights conferred by Part III of the Constitution in their application to the members of the Army in order to ensure proper discharge of their duties and maintenance of discipline among them. Entry 2 of List 1 of the 7th Schedule empowers the Parliament to enact laws with regard to Naval, Military and Air Force or any other Armed Forces of the Union. The Army Act, 1950 Act 46 of 1950 has been enacted by the Parliament. Section 21 of the aforesaid Act empowers the Central Government to make rules restricting to such extent and in such manner as is necessary, some of the fundamental rights of members of the Army, Article 33 of the Constitution of India empowers the Parliament to enact laws imposing restriction on the fundamental rights conferred by Part III of the Constitution of India or abrogating any of the fundamental rights for the purporse of ensuring the proper discharge of duties and maintenance of discipline among the members of the Army, In view of the above provision, the argument tried to be advanced on behalf of the petitioner that provisions of Section 125 of the Army Act are ultra vires of Part HI of the Constitution is, in my opinion, not sustainable. I am fortified in my view by the pronouncement of the Supreme Court in the case of Ram Sarup v. Union of India, reported in : 1965CriLJ236 . Raghubir Dayal, J. who spoke for the Supreme Court observed as follows:-

We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account become void, as it must be taken that the Parliament has thereby, in the exercise of its power under Art, 33 of the Constitution, made the requisite modification to affect the respective fundamental right. We are however of opinion that the provisions of Section 125 of the Act are not discriminatory and do not infringe the provision of Article 14 of the Constitution.

22. It has been further observed that the discretion to be exercised by the Military Officer specified in Section 125 of the Act as to the trial of the accused by Court Martial or by an ordinary Court, cannot be said to be unguided by any policy laid down by the Act Or uncontrolled by any other authority. Section 125 of the Act, therefore, cannot, even on merits, be said to infringe the provisions of Article 14 of the Constitution.

23. Similar observations have been made in : 1983CriLJ647 which are quoted hereinbelow (at, p. 1423):--

Therefore, every provision of the. Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act. This is no more res Integra in view of the decision of the Constitution Bench of this Court in Ramsarup v. Union of India.

24. It is not. necessary to consider the vires of Section 127 of the Army Act as there has not been a successive trial of the petitioner for the same offence by Court Martial and Criminal Court.

25. It has also been contended on behalf of the petitioner that Secs. 125 and 101 of the Army, Act provide for detaining a person in military custody as soon as an order is made by the officer commanding for trial of a civil offence by Court Martial. Regulation 392(K) of the Army Regulation also provides for placing under close arrest the accused before commencement of a Court Martial and he will remain under close arrest, after trial by Court Martial until proceedings are promulgated. It has been urged that these provisions are discriminatory inasmuch as under the Criminal P. C. when an accused is arrested there is provision for applying for bail and bail may be granted. But there is no provision for bail in case an accused is tried by Court Martial. It has been submitted that these provisions are, therefore, discriminatory. This argument, in my opinion, cannot be sustained in view of the provision of Article 33 of the Constitution conferring express power on the Parliament to make Laws restricting and/or abrogating fundamental rights guaranteed by Part III of the Constitution. I have already found hereinbefore that the provisions of the Army Act cannot be challenged on the ground of violation of the fundamental rights conferred by Part III of the Constitution. This submission, therefore fails.

26. In the premises aforesaid, this application fails and it is, therefore, dismissed. All interim orders are vacated, There will be no order as to costs.

27. On the prayer of the learned Advocate for the petitioner, let there be stay of operation of this order for a period of two weeks from this date.


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