Calcutta High Court
Colonel R.S. Upadhyay vs The Union Of India & Ors. on 6 October, 1999
Equivalent citations: (2000)1CALLT563(HC)
Author: R. Pal
Bench: Ruma Pal
JUDGMENT R. Pal, J.
1. This appeal has been preferred from a Judgment and order dated 4th August 1999/20th August 1999 dismissing the petitioner's writ application. The subject matter of challenge in the writ petition is the reversion of the petitioner from the Director General of Quality Assurance to the Army and the attachment of the petitioner to an Army Unit. Initially an interim order was granted. After the filing of affidavits the writ application was dismissed and the Interim order vacated by the order under appeal. The learned Single Judge has gone Into the matter elaborately. The question is whether the court should stay the operation of the order under appeal until the disposal of the appeal.
2. The petitioner Joined the Army in September 1970. In May 1993 when the petitioner was a Lt. Colonel he was appointed as Quality Assurance Officer at the Senior Quality Assurance Establishment (SQAE) of the Directorate General of Quality Assurance (DGQA) under the Department of Defence Production and Supplies, Ministry of Defence. The petitioner was posted in 1996 in Ludhlana, in 1997 in New Delhi and since 27th April 1998 assumed command of the SQAE (G.S), Calcutta. In the meanwhile, the petitioner was promoted from the rank of Lt. Colonel to the rank of Colonel. According to the petitioner the reversion and attachment was communicated to the petitioner by the respondents in a Movement Order dated 12th February 1999. The movement order reads as follows:
"IC-43167 Col. R.S. Upadhyay, SQAO, SQAEfGS) Calcutta will proceed forthwith on attachment to 612 Indeep Mech AD Bde in terms of AI 30/86 for finalisation of disciplinary case pending against him, vide Army HQ letter No. C/O6290/WC/157/AG/DV-2 dated 05 Feb 1999."
3. The petitioner's basic argument is that as the petitioner was seconded to the DGQA, the provisions of Army Instruction 30/86 referred to the movement order did not apply to the petitioner. According to the petitioner, the petitioner's services with the Army were severed as soon as he was permanently seconded to the DGQA. As such, it is submitted, no action could be taken against the petltoner under the Army Act or Rules and that the petitioner could be proceeded against if at all. under the provisions the Central Civil Services Classifications and Control Appeal Rules, 1965.
4. According to the respondents while the petitioner was working as SQAE (G.S.). New Delhi, the Board of Officers tested certain stores which had been accepted by the petitioner. The Board of Officers were prima facie of the view that the petitioner was responsible for accepting sub-standard material which widely differed visually and qualitatively from the bulk supply of store/certified samples. The findings of the Board of Officers were concurred in by the Controlleratc of Quality Assurance (T&C), Kanpur. The DGQA recommended that disciplinary proceedings for major penalty should be initiated against the petitioner and certain other officers of the Quality Assurance Team. The DGQA referred the matter to the Ministry of Defence. The Ministry of Defence concurred with the view of the Board of Officers and on 12.8.98 forwarded the petitioner's case to the Army Authorities for processing disciplinary action against the petitioner. The petitioner was accordingly reverted to the Army and attached to a unit by an order dated 5th February 1999. According to the respondents the provisions for reversion of Army personnel seconded to other establishments has been provided for in Regulation 409 of the Defence Services Regulations.
5. Before considering the submissions, it is to be noted that the Ministry of Defence has three departments, namely the Department of Defence, the "Attached Offices" of which are the four headquarters of the Army, Navy, Air Force and Coast Guard and fourteen Inter Service Organizations as well as the Institute of Defence Studies and Analysis. The second department is the Department of Defence Production and Supplies which has six "Attached Offices" Including the Directorate General of Inspection now known as the Director General of Quality Assurance (DGQA) and 9 public sector undertakings. The third department is the Department of Defence Research Development which has one "Attached office" of Defence Research and Development Organisation.
6. As far as Army personnel are concerned, they are governed by the Army Act, 1950 and the Army Rules, 1954. The Army Act broadly lays down Inter alia not only the conditions of service but also the offences under the Act as well as the punishments therefor. It also provides for the procedure to be followed at Court Martials and for execution of the sentences imposed. The Army Rules provide more specifically for the procedure to be followed in connection with the substantive provisions of the Army Act.
7. Prirna facie it appears to us that the status of army personnel seconded to other services does not result in a cessation of the relationship with the army. Section 2(1) of the Army Act, 1950 specifies the persons who are subject to the Act "wherever they may be". Section 2 sub-section (2) provides :
"Every person subject to this Act under clauses (a) to (q) of sub-section (1) shall remain so subjected until duly retired, discharged, released, removed, dismissed or cashiered from the service."
8. According to the petitioner he was released from the Army when he was seconded to the DCQA. This submission does not appear to be correct. The word "release" has not been defined in the Army Act but has been defined in Rule 16 of the Army Rules. Rule 16 occurs in Chapter III of the Rules which deals with "Dismissals, Discharge etc". Rule 16 reads:
"16. Release.-A person subject to the Army may be released from the service in accordance with the Release Regulations for the army or in accordance with any other regulations, instructions or orders made in that behalf."
9. This would Indicate that a "release" means a termination of service with the army altogether and not a situation where an officer is seconded to another service within the Ministry of Defence. It is of significance that the petitioner was promoted to the post of Colonel while he was serving in DGQA. But the position is clearer when the Regulations Issued by the Government are seen.
10. The Government of India Issued Defence Service Regulations (referred to as the Regulations) for the army in 1962 in supersession of Regulations for the Army in India-reprint 1945 and Instructions by His Excellency the Commander in Chief reprint 1945. The preface to the Regulations provides :
"Departmental orders and Instructions are based on, and take their authority from, these regulations. Should any variance arise between such orders and Instructions and these "Regulations for the Army", the latter shall prevail."
11. Regulation 409 provides for army personnel on deputation in civil departments and reads:
"409. Army Personnel on Deputation to Civil Departments.--Army personnel while temporary seconded for duty to civil departments will be subject to the rules regarding discipline peculiar to the civil department in which they are serving and also the military law. Ordinarily, civil authorities will Initiate disciplinary proceedings against military personnel for offences committed by them while in civil employee in accordance with the civil rules. Where, however, the civil authorities feel that they cannot deal with a military person in adequate manner, they may make the reference to the Ministry of Defence who, after being satisfied that it would be desirable to take action under the military law, will ask Army Headquarters to deal with the persons under the military. law. In such cases, mllitaty personnel will be reverted to the Army and attached to a convenient unit for Initialing disciplinary proceedings under the military law.
The above also applies to offences committed by military personnel on detached employment."
12. Analysed Regulation 409 envisages (1) an offence being committed by Army personnel while in civil employment; (II) a reference of the matter by the civil authority to the Ministry of Defence; (III) the satisfaction of the Ministry of Defence that action should be taken under the military law; (iv) a request of the Ministry of Defence to the Army Headquarters to deal with such person under military law; (v) reversion of the person to the Army; (vi) attachment to a unit and (vii) Initiation of disciplinary proceed-ings under the military law. It appears from the records produced by the respondent that (1) to (vi) stages have been followed tn this case uptil now.
13. It was contended by the petitioner that Regulation 409 did not apply to permanently seconded army personnel. In our prima facie view Regulation 409 applies to army personnel whether permanently or temporarily seconded for duty to civil departments. This appears to be clear from the heading to the Regulation in which no distinction has been drawn between permanent and temporary secondment. Although the first line of the Regulation provides for army personnel "temporarily seconded for duty to civil departments" but the remaining sentences in the Regulation do not refer to temporary seconded personnel. If the regulation were limited to temporary secondment only, it was not necessary to have specifically referred to temporary secondment in the first sentence. If the remaining sentences in the paragraph are read as referring to temporary seconded personnel only, then the second sentence is tautologous. As we read the regulation it would appear to relate to army personnel (1) temporarily seconded for duty in civil departments, (2) permanently seconded for duly in civil departments; and (3) military personnel on detached employment.
14. This Interpretation is also supported by a circular which was Issued by the Army Headquarters in New Delhi on 21st February. 1980 in connection with "command and control over military personnel serving in research and development organisations, Directorate General of Ordinance. Ordinance factories and the Director General of Inspection". The circular which is addressed to the Headquarters of the Southern, Eastern, Western, Central and Northern Commands seeks to lay down standard guidelines with regard to Army personnel temporarily or permanently seconded to these different establishments. Some of the relevant guidelines are set out here under:
"3. Army personnel not permanently or temporarily seconded to civil department will be placed under nearest appropriate statte formation headquarters for discipline.
4. Army personnel, temporarily or permanently seconded for duty to civil departments like R and D Organisations will be governed by rules applicable to personnel of that organisation. Accordingly such civil departments or organisations may Initiate action, as per their rules, against army personnel for violation of these rules. However, where these army personnel commit one of the specific offences defined in the Army Act, they will be reverted to Military Duty and attached to an Army unit for the purpose of processing disciplinary/ administrative action against them. Once that action is over, army personnel may again be posted to the civil department depending on the circumstances. Paragraph 4O9 of the Regulations for the Army. 1962 as amended vide correction slip NO. 114/X/66 refers in this connection. Such army personnel will also be placed under the nearest appropriate static formation headquarters for processing disciplinary cases whenever such a contingency arises.
11. Specific Instructions, as considered necessary in respect of army personnel serving in various establishments in your Jurisdiction may please be issued by you to all concerned. Some of the establishments have their sub units located in more than one Command. Army personnel serving in such departments whose parent establishment is located in a different Command will also be placed under the static local formation headquarters for local administration and discipline action."
15. These guidelines appear to make it clear that regulation 409 deals with personnel either permanently or temporarily seconded to civil departments.
16. There is another aspect of the matter Regulation 409 specifically provides that it would apply to military personnel on "detached employ-, ment". It appears that a detachment is an office or sub-unit under the "attached offices". The attached office in the petitioner's case was the DGQA under the Department of Production and Supplies. Ministry of Defence as already noted and the SQAE is a detachment under the DGQA.
17. The learned Single Judge however concluded that Regulation 409 did not apply to the petitioner but the circular issued in 1980 was applicable. In our view, the 1980 Circular was issued in connection with and in clarification of Regulation 409 and Regulation 409 applied to the petitioner's case.
18. The petitioner submitted that assuming the 1980 circular applied, the allegation contained in the affidavit-in-opposltlon. (the substance of which to a large extent has been set out herein before), did not disclose any offence and certainly not an offence recognised under the Army Act. In any event, it was submitted that it was Incumbent on the respondents to have specified the particular offence under the Army Act before any order of reversion or attachment could be passed.
19. Regulation 409 Itself does not require the offence to be specified. Besides the language of the 1980 Circular cannot be construed to mean that reversion can take place only after the officer is proved to have committed the crime, as contended by the petitioner. The reversion is for the purpose of Initiating disciplinary proceedings. The word "commit" and "specific offence" must therefore pertain to prima facie conclusions. The allegation of the DGQA as substantially reproduced in the respondents' affidavit might reasonably come within the offence specified under section 52 of the Army Act which deals with offences in respect of properly. Rules 28-32 of. Chapter V of the Army Rules deal with the framing of the charges when no doubt the offence will be specified. At this stage when disciplinary proceedings are yet to be Initiated it would be premature to require the specification of the offence with which the petitioner might be charged.
20. The petitioner relied upon a memorandum Issued relating to the procedure for Intake of Service Officers in the Inspection Organization of the Ministry of Defence and terms and conditions of service of those permanently retained to contend that he was not subject to the Army Act, The memorandum provides inter alia that the Ministry of Defence (Department of Defence Production) would be the controlling authority. It also provides for the intake of service officers of specified rank in the army in the Inspection Organisation. Reliance has been particularly placed by the petitioner on paragraph 4 of the memorandum which provides that "officers already permanently seconded would continue in the organisation till their retirement in due course". The learned single Judge has held that the provision in the memorandum that officers permanently seconded to DQA organisation are subject to recall in the service allowed the Army to deal with the petitioner. It appears to us that apart from that, the memorandum cannot override Regulation 409.
21. Needless to say the Army Instructions relied on in the movement order namely AI 30/86 has no application as far as the petitioner is concerned. This has also been held by the learned Single Judge. The army instruction reads :
"1. Officers against whom disciplinary action is contemplated may, where necessary, be attached to other units, at the discretion of Army Headquarters or GOC-in-C Command concerned for the purpose of Investigation and progress of the disciplinary case. However, such attachment will be ordered only when a prima facie case against him is established and not during Investigation stage by a court of Inquiry. even for officers whose character and military reputation is likely to be a material Issue at the Court of Inquiry. In exceptional cases where as Officer's continued retention in his appointment say as CO. is not desirable, he may be attached to another unit or formation even at the commencement of court of Inquiry."
22. The Instructions prima facie relate to attachment of an officer serving in one unit of the army to another unit in the army and not to Army officers seconded to civil departments.
23. The learned Single Judge was of the view that although the reference in the Memorandum Order was to AI 30/86, as the power was otherwise provided for in the respondent authorities it did not render the attachment order bad. We see no reason to differ from this view now. The learned Judge's view regarding Rule 20 of the (Central Civil Services Classification, Control and Appeal) Rules, 1964 also does not, prlma facie, appear to be wrong,
24. We emphasise that at this stage, the court is required to consider only whether a prlma facie case has been made out by the petitioner to Justify stay of operation of the Judgment under appeal and whether the balance of convenience is in favour of a stay. We are, for the reasons stated, prlma facie of the view that the petitioner's challenge in his writ petition cannot be sustained. On the question of balance of convenience we note that matters are at a preliminary stage. Investigation is yet to be made by the Army. It would not be appropriate to stultify the Investigation at this stage.
25. We therefore, dispose of the stay application by allowing proceedings to continue against the petitioner, but the final order shall not be communicated to him by the respondents pending disposal of this appeal, except with the leave of this Court and upon notice to the petitioner. Costs of this application will be costs in the Appeal.
S.N. Bhattacharjee J.
26. I agree.
Later Let xerox plain copies of this Judgment duly countersigned by the Assistant Registrar (Court) be made available to the learned Advocates appearing for the parties on usual undertakings.
27. Appeal disposed of