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Judgment
The applicant has filed this OA praying for the intervention of the Tribunal to quash and stay the disciplinary proceedings ordered against him by the
respondents for alleged offences as mentioned in the tentative charge sheet as the same are barred by the period of limitation and also the proceedings
are prohibited by the policy letter dated 11th May 1993. His second prayer being to quash the respondents letter dated 29.12.2021, invoking Section
123 of Army Act, 1950. The applicant has also prayed for an interim relief for staying the further disciplinary proceedings during the pendency of the
O.A.
It is a fact that the applicant commissioned in the Army on 20.12.1984 in the Medical Corps, promoted to the rank of a Brigadier and posted as
Commandant, Armed Forces Medical Stores Depot (AFMSD), Lucknow w.e.f. 5.10.2014. A Col ordered to investigate complaint against Medical
Stores of the Base Hospital, Lucknow, reported some involvement of AFMSD, which has been commanded by the applicant during the corresponding
period of the incident. The competent authority ordered initiation of disciplinary proceedings and tentative-charge sheet dated 13.7.2019 was issued
under Section 52(f) of Army Act, indicating the date of knowledge of offence by the competent authority as 31.5.2018. Respondents recorded SoE
and AddlSoE. Then the respondents issued a Show Cause Notice dated 16.10.2021 to the applicant giving opportunity to explain why administrative
action should not be taken against him. The applicant made his reply to the Show Cause Notice. At this stage, the respondents decided to initiate
disciplinary action against the applicant. Meanwhile, the applicant had retired from service on 31.10.2021 on attaining the age of superannuation. The
respondents issued a letter dated 29.12.2021, invoking Section 123 of the Army Act and asking the applicant to report to J & K Rifles Regimental
Centre for further disciplinary action. Aggrieved by this action of the respondents, the applicant has filed this OA on the ground that the charges
framed against him are barred by the period of limitation under Section 122 of Army Rules, 1954, besides certain other legal bar to initiate such
proceedings.
Learned counsel for the applicant submitted that the suspension of period of limitation granted by Hon’ble Supreme Court due to ongoing covid
is not applicable to conduct of Court Martial by the Army. In support of his submission he cited the O.A. No.647/2020 filed by the respondents
themselves before AFT (PB) with a plea to freeze calculation of the period of limitation in respect of all proceedings under Chapter V and Chapter VI
of Army Rules that may be continuing, having commenced or may have been likely to commence during this period. However, AFT (PB) declined to
grant a blanket sanction for the suspension of period of limitation and directed that such pleas would be decided on case to case basis.
The learned counsel for the applicant cited the Order dated 18.1.2022 of this Tribunal in MA 05/2022 in OA 1135/2019, Brig. S.K.Gupta (Retd.) vs.
Union of India & Ors, with similar pleas, wherein the applicant (Brig S K Gupta) was remitted to make all his pleas before the Trial Court (Court
Martial). The learned counsel, however, submitted that this Tribunal has the powers to interfere in the disciplinary proceedings which is barred by
period of limitation, under Section 25 of AFT Act 2007. The learned counsel relied upon the Judgment dated 17.9.2013 of Hon'ble High Court of
Guwahati in W.P. No. 5606 of 2012, Air CmdeMrigendra Singh vs. UOI wherein the disciplinary proceedings were stayed and Writ Petition was
allowed. It is submitted that Section25 of AFT Act 2007 is similar to Section 482 of Cr.P.C. exercised by the High Courts to prevent abuse of the
process of any Court and urged the Tribunal to stay the disciplinary proceedings initiated against the applicant exercising the inherent power of the
Tribunal under Section 25 of AFT Act, 2007.
Learned counsel for the applicant also relied on the Apex Court order in State of Haryana Vs. Bhajan Lai reported as AIR 1992 SC 604 urging the
Tribunal to stay the disciplinary proceedings as the same are barred by the period of limitation. He stressed on the Para 108 (6) of the judgment to
highlight the inherent powers of the AFT for intervention in staying illegal disciplinary proceedings. The relevant Para reads as follows:-
“108(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing
efficacious redress of the grievance of the aggrieved party.99
He also relied upon Order dated 17.12.2019 of the co-ordinate Bench of AFT (PBj in OA 1763/2019, Major Abhishek Raheja Vs UOI & Ors and
Order dated 11.5.2012of AFT (Lucknow) in OA 155/2012, Colonel VK Pant Vs UOI & Ors, wherein the disciplinary proceedings were stayed by
AFT for the reason of charge sheet being time-barred.
The learned counsel for the applicant submitted that the Order dated 12.11.2021 of AFT (Lucknow), in OA782/2020 in Colonel Soumen Kar (Retd)
Vs. Union of India & Ors. which held the validity of the suspension of period of limitation in suo moto Order of Hon'ble Supreme Court dated
23.3.2020 towards calculation of period of limitation in disciplinary proceedings of the co-accused ordered by the respondents, is 'per incuriam'. The
learned counsel for the applicant submitted that AFT Lucknow did not consider the judgment dated 19.6.2020 of Hon'ble Supreme Court in CA
452/2020, S Kasi vs. State wherein it was held that the suspension of limitation period due to Covid Pandemic is not applicable to investigating
agencies and the charge sheets have to be filed as per the specified time-limit of relevant Acts.
Learned counsel for the applicant went on to submit that the disciplinary proceedings of the applicant is still at the investigation stage in accordance
with Rule 22, Section 1 under Chapter V of Army Army Rules, 1954. Therefore, the findings of S Kasi's Judgment is applicable and the suspension of
limitation period due to Covid cannot be applied in calculating the limitation period in this case.
It is submitted that the limitation period in this case already completed on 30.5.2021 as per the tentative charge sheet and therefore the disciplinary
proceedings initiated vide letter dated 29.12.2021 against the applicant are illegal. By this reason only, the Tribunal should intervene to stay further
disciplinary proceedings as prayed for in the O.A. In support of his submission, he relied on Honble Supreme Court Judgment dated 8.4.2010 in CA
No.32 of 2003, Union of India vs VN Singh. The Para stressed by the learned counsel reads as follows
“27. A fair reading of the abovementioned section makes it clear that after the expiry of the period of limitation, the Court Martial will ordinarily have no
jurisdiction to try the case. The purpose of Section 122 is that in a civilized society a person should not live, for the rest of his natural life, under a sword of
Damocles and the prosecution be allowed to rake up any skeleton from any cupboard at any time when the accused may have no further materials, oral or
documentary, to prove that the skeleton is not from his cupboard. If the device is left open to the prosecution to convene a Court Martial at its leisure and
convenience, Section 122 will lose all significance.99
Learned counsel for the applicant has then brought up the contention based on the policy letter of the respondents dated 11th May 1993 and
submits that the disciplinary proceedings initiated against the applicant are not maintainable by the very same policy letter. The learned counsel cited
the Show Cause Notice dated 16 October 2021 issued to the applicant and submits that the respondents have applied their mind into the Col, SoE,
AddlSoE, etc. and then decided to initiate Administrative Action. The applicant replied to the show cause notice thereby disclosing his defence.
Subsequently, deciding to initiate disciplinary action against the applicant vide their letter dated 29.12.2021 is considered illegal and inequitable as per
the policy letter dated 11th May 1993.
Learned counsel for the applicant after having put forwarded his arguments praying for the intervention of the Tribunal to stay the further
disciplinary proceedings lastly went on to make one more plea. It is submitted that even if the Tribunal decides to remit the applicant to take his pleas
before the Trial Court (Court Martial), he has urged to pass an order directing the Trial Court (Court Martial) to first consider the issue of period of
limitation in this case. He further submits that only after the period of limitation plea is confirmed by the competent authority, the Trial Court should
proceed with further proceedings. He placed his reliance on Order dated 30.11.2010 of AFT, Lucknow in OA 216/2010, which has cited the Honble
Apex Court Judgment in Colonel Rajvir Singh Vs. UOI & Ors. in CA No.2107 of 2012 regarding strict application of Section 122 of the Army Act,
1950, when disciplinary proceedings are initiated.
Learned Sr. Govt. Panel Counsel for the respondents, at the outset, submits that all pleas,averments and citations taken by the respondents in the
case of a co¬accused before this Tribunal in Brig SK Gupta Vs. UOI & Ors (Supra), in OA 1135/2019 would also be equally applicable in this case.
Learned Senior counsel for the respondents submits that the matter of the policy letter dated 11th May 1993 has already been considered in OA
66/2010 Lt Gen Avdhesh Prakash Vs. UOI & Ors. by the AFT (PB) and held that the policy letter is not binding on the competent authority in
deciding to initiate disciplinary action even if they had contemplated of initiating administrative action, but before actually executing the
censure/punishment. He further submits that in the instant case, only a Show Cause Notice has been issued to the applicant and no administrative
action has per se been imposed on the accused. Therefore, respondents have not committed any illegality in initiating the disciplinary proceedings
against the applicant.
Learned Senior counsel for the respondents submitted that the present case is not at investigation stage as argued by the applicant's counsel but at
the disciplinary proceedings stage in accordance with Section 2, Chapter V ofArmy Rules 1954. The investigation stage which fallunder Section 1 of
Chapter V of Army Rules has already been completed. The applicant has in fact failed to report before the GCM on 17.1.2022 and also evading
arrest by Civil police to be brought before the Trial Court (Court Martial). It is submitted that the Judgment in S Kasi Vs. State pertaining to
investigation agencies under Cr PC, Section 167 cannot be applied to the instant case. As a result, the suspension of period of limitationgranted by the
Hon hie Apex Court would be applicable in this case. It is submitted, therefore, the plea of time-barred period of limitation submitted by the applicant is
not valid and, hence, liable to be dismissed.
The learned Senior counsel for the respondents submits that the processing of the applicant’s disciplinary case by the Army Authorities after
the recording of Addl. SoE, through their official channel, resulted in arriving at the date of acquiring knowledge of the offence by the competent
authority responsible to initiate disciplinary action as 24.1.2019. Â Therefore, even without the freezing of the suspension of limitation period due to
Covid, the commencement of trial scheduled to be held on 17.1.2022 is well within the period of limitation of 3 years, counting from 24.1.2019.
The learned Senior counsel for the respondents also submitted that reliance of the applicant on two interim orders dated 11.5.2012, 17.12.2019 in
Col VK Pant vs. UOI and Major Raheja Vs. UOI respectively and submitting to the Tribunal for intervention in the disciplinary proceeding is not
maintainable because of the very reason of those two orders being interim orders and final orders having not been pronounced as yet.
As regards the applicant’s plea for stay of the attachment order, reliance is placed on the order dated 10.05.2019 passed by the Larger Bench
of this Tribunal in O.A. No.965 of 2017 titled Maj Gen M.S. Jaswal Vs. Union of India & Ors. and other connected OAs, to say that the word
'attachment’ is included in the exclusion clause of Section 3 of the AFT Act and as such, the Armed Forces Tribunal has no jurisdiction to
entertain petition against an attachment order.
Learned Senior Counsel further referred to the status of this matter for submitting that number of accused are involved in this scam and the court
martial proceedings have been initiated against them. It is submitted that the applicant has been evading the arrest. The proceedings are now going to
commence on 31.1.2022 and it will be open to the applicant to take all such plea which may be available to him in law. However, as observed by the
Hon hie Supreme Court in the case of Union of India & Ors. Vs. Lt Col Dharamvir Singh (2019) 15 SCC 793, pre-emptive judicial strikes are
unwarranted. As such, there are no valid grounds for staying the disciplinary proceedings against the applicant.
The learned Senior counsel for the respondents, in summary, submitted that the ongoing disciplinary proceedings of the applicant do not suffer with
any infirmities and prayed for non-intervention of the Tribunal in ordering any stay as pleaded by the applicant. He relied upon the recent judgment
dated 17.1.2022 of AFT (PB) in Lt Col P.Vasudeva vs. UOI, another co-accused, wherein the applicant (Lt Col P Vasudeva) having similar pleas has
been remitted to take such pleas before the Trial Court (Court Martial).
The learned counsel for the applicant rebutting Sr. Panel Counsel for the respondents submits that this case is still at the investigation stage and not
reached the stage of disciplinary proceedings even three years after the date of knowledge of the offence (31.5.2018). Respondents could not take
their own time in deciding the trial proceedings even beyond period of limitation thereby subject the applicant to avoidable harassment. He relied on
Uol Vs. VN Singh Judgment reported in (2010) 5 SCC 579 dated 8.4.2010 in CA No.32 of 2003.
We heard the learned counsel for both the parties and perused the record placed before us.
Two main contentions of the applicant in this application is that the disciplinary proceedings initiated against him are not maintainable due to the
reasons of barred by limitation and the violation of provisions as contained in the respondents policy letter dated 11th May 1993.
On the first contention regarding the consideration of suspension of period of limitation due to Covid, after a careful consideration we have already
expressed our views in this Tribunal Order dated 18.1.2022, Brig SK Gupta Vs. UOI & Ors (Supra) in OA 1135/2019, being co-accused in this
matter. Therefore, we are of the opinion that there is no necessity to once again examine the arguments and case laws relied upon by the learned
counsel for both the parties, for and against, the contention.
Further, in the case of Lt Col P Vasudeva Vs. UOI & Ors. In OA 83/2022, another co-accused with similar plea, AFT (PB) vide order dated
17.1.2022 has also remitted the applicant to take such plea before the Court Martial. The operative paragraph of the order reads as follows
“Accordingly, in the facts and circumstances of the case, for the present, we see no reason to interfere into the matter. However, it may be observed that we
have not gone into the merit of the issue canvassed before us and we leave it open to the applicant to raise all the grounds before the Court Martial in
accordance to law and it would be for Court conducting the trial to proceed to decide the grounds and objections of the applicant without being influenced by
any of the observations or comments made in this order.99
 We perused the Order dated 17.9.2013 of Guwahati High Court in WP No.5606/2012 in Air Cmde Mrigendra Singh Vs UOI & Ors. (Supra)
relied upon by the learned counsel for the applicant, by which the disciplinary proceedings were stayed. We observed that this order has been passed
on merits of the case, as the primary contention of the petitioner being that the 'terms of reference’ for the Court of Inquiry have been formulated
with malice and bias against him. This aspect has been examined by the High Court during the hearings and having come to the conclusion that the
Terms of Reference of the Col were indeed biased against the petitioner, the proceedings of Col have been set aside. As a result, the subsequent
disciplinary proceedings initiated based on the Col recommendations were also been quashed. The relevant paragraphs of the judgment read as
follows:-
“182. The mala fide and bias, which, in the present case, are apparent on the face of the reecord and which surface from the impugned actions of the
respondents, go to the root of the matter rendering whole of the actions of the respondents completely illegal, void and non est in law. Our findings that the
proceedings are biased and mala fide, which make the whole of the proceedings incurable, force us to hold that such a proceeding must not be allowed to
continue.â€
Whereas, in the case in hand, there is no contention of the applicant in the O.A. regarding the facts of the case of his non-involvement in demanding
expensive medical stores and charging them off from the ledgers showing as used for treatment in the Military hospital, when no such treatment has
been undertaken by the hospital. The contention has been only regarding the expiry of period of limitation and certain other legal bar, towards initiating
disciplinary proceedings, once the respondents had contemplated to initiate administrative action. As a result, this judgment does not help the cause of
the applicant for staying the disciplinary proceedings, on the grounds taken in this application.
Now we advert to consider the next contention of the applicant regarding the respondents' Policy letter dated 11th May 1993, which prohibits
initiation of disciplinary proceedings once the competent authority decides to initiate administrative action after having applied its mind to the facts
gathered through Col, SoE, AddlSoE, etc. in support of the charge sheet. However, this policy letter has been considered by the AFT (PB) in OA
66/2010, Lt Gen Avdhesh Prakash Vs UOI & Ors. (Supra) and the relevant paragraph of the Order dated 22.2.2010 reads as follows
“78. Next it was submitted by learned counsel for the petitioner that as per the Army Policy dated 11th May, 1993, which says that once the competent
authority applied his mind to the full facts of the case and decides to initiate administrative action and such action has commenced, trying the officer summarily
or by court martial for the same offence subsequently is inequitable. Letter/Army Policy No. 32908/AG/DV-l datedl 1th May, 1993 reads as under:
“FINALISATION OF ADMINISTRATIVE/ DISCIPLINARY ACTION
 Reference this Headquarters Letter No. 35418/AG/DV-1 dated 18th Aug 83 and No. 32908/AG/DV-l dated 05 Jan 89. OA No. 66 of 2010 | 82
 In a recent case the issue of initiating disciplinary /administrative proceedings against an officer has brought out certain legal lacunae.
 To make the essence of the legal requirement more transparent, it is clarified that once the competent authority after having applied his mind to the full facts
of the case decides to initiate administrative action and such action has commenced, trying the officer summarily or by court martial for the same offence
subsequently is inequitable. In this case the summary of evidence was recorded and the competent authority having known all the facts of the case decided to
issue a show cause notice to the officer. The officer replied to the show cause notice thereby disclosing his defence to the charges contained in the show cause
notice. At this stage to revert to disciplinary action is not only unjustified but also legally unsustainable.
 However, the legal requirement outlined above does not in any way impose restrictions on the discretionary power of the competent authority to chose an
administrative mode of action, instead of a disciplinary mode initially contemplated against the accused, in for some reason or the other competent authority feels
that the process of disciplinary action as contemplated initially by way of trial by court martial or summary trial is found to be inexpedient or impracticable.
 It is once again emphasized that initiating disciplinary action after issue of a show cause notice for administrative action is not only legally unsustainable
but also undermines the principles of natural justice and fair play. You are therefore requested to bring the contents of this letter to the notice of all concerned for
compliance.
Sd/- (SM Chand] Brig
Dy DG(B) D&V
ForAdjutant General’
This is only a general guidance and this is not of binding nature. It is always open for a competent authority, if it is satisfied on the complete facts brought to the
notice that the administrative action will not meet the ends of justice, then, in that case he can resort to Court Martial or any other mode subsequently. But, in
the present case, no action has been initiated on the basis of Court of Inquiry, only notice was given to the petitioner that show cause why administrative action
be not taken against him. Administrative action was not taken. It is only a show cause notice stage and at the time of show cause notice the competent authority
realize that it is a case in which Court Martial should be initiated. Then, in that case, there is no prohibition for resorting to Court Martial in the present case.
No administrative action was taken against the incumbent
It is not disputed that the above order dated 22.2.2010 of AFT (PB) in OA 66/2010 was not challenged by the appellant in that case and the
applicant (Lt. Gen Avdhesh Prakash) appeared before the General Court Martial for the completion of disciplinary proceedings. Therefore, the
findings of the AFT (PB) in its order dated 22.2.2010 holding the respondents’ policy letter dated 11.5.1993 only as guidelines attained finality.
Moreover, Hon’ble Supreme Court vide order dated 27th April 1993 in Civil Appeal No. 2348 of 1993 (AIR 1993 SC 2444, 1993 SCR [3] 427),
Union of India Vs S.L. Abbas held that guidelines issued by the government do not have statutory force. The relevant part of the judgement reads:
“1.1 xxxxxxExecutive instructions issued by the government are in the nature of guidelines. They do not have statutory force.â€
That being so, since only a show cause notice was issued to the applicant and no administrative action was taken against the applicant therefore,
this policy letter dated 11. 05.1993 which is only a guideline and is not mandatory, does not come in the way of the respondents for initiating
disciplinary action against the applicant.
As regards reliance placed by Id. Counsel for the applicant on Bhajanlal’s case (Supra)’, it goes without saying that powers under Article
226 of The Constitution Of India or under S.482 Cr.P.C can be exercised by High Court only. Although S.25 of AFT (Procedure) Rules also confers
inherent powers on the tribunal but as held by Hon’ble Apex Court in this case, this power should be exercised sparingly and that too in rarest of
the rare cases. Present case does not fall in this category. It is yet to be seen whether the disciplinary proceedings initiated by the competent authority
are within time or barred by limitation.
It has also been brought to our knowledge by the learned Sr. Counsel for the respondents that the disciplinary proceedings of several other Armed
Forces personnel involved in this case are at different stages of initiation/completion. For example, cases of two co-accused personnel with similar
pleas have been considered by this Bench and Co-ordinate Bench (PB) and in both the cases the applicants have been directed to raise all such pleas
before the Trial Court (Court Martial) vide orders dated 18.1.2022 and 24.1.2022, respectively.
Therefore, we find no reason to decide this application differently, which is also having identical/similar pleas. Accordingly, the applicant is directed
to take his plea on the point of limitation or any other legal infirmity before the Court Martial. It would be for the court martial to proceed to decide the
grounds and objections of the applicant in accordance with law without being influenced by any observations made in this order.
Although while adjourning the matter on 20.01.2022 for hearing on 25.01.2022 we had observed that we will be hearing on interim relief, but during
the course of argument we had made it clear to both the parties that in case we ultimately come to the conclusion that applicant has to be remitted to
the competent authority conducting court martial proceedings to take all relevant pleas available to him under law including plea of limitation then no
purpose will be served by keeping this OA pending.
That being the situation, in view of our observations in Para 31 OA stands disposed off.
Pronounced in open Court on this 3rd day of February, 2022.