JUDGMENT D. K. Seth, J.
1. The petitioner was subjected to District Court Marshal and awarded punishment of dismissal by order dated 15.6.1988, contained in Annexure-4 to the writ petition along with two other punishments viz., six months imprisonment and reduction in rank. The appeal thereof also stood dismissed by order dated 2.6.1989, contained in Annexure-7 to the writ petition. These orders are under challenge in the present writ petition.
2. Mr. G. D. Mukerjee, learned counsel for the petitioner has challenged the order on several grounds. Relying on Rule 31, he submitted that charge-sheet is to be issued by the Commanding Officer whereas in the present case the same has been signed by the Administrative Commandant who is in the category of other such officers and is not a Commanding Officer. Therefore, the charge-sheet being invalid the whole proceeding is vitiated and is liable to be struck off. He secondly submits that there has been an infraction in compliance of Rule 22 of the Army Rules in the framing of charges and in deciding that the disciplinary proceedings should be proceeded with.
3. In elaborating his said contentions, Mr. Mukherjee led me through various sections, rules and regulations of the Army Act, Army Rules and Army Regulations which shall be dealt with at appropriate stage. He also relied on a few decisions cited at the Bar which shall be dealt with subsequently.
4. Mr. Shishir Kumar, learned counsel for respondents, on the other hand, contends that the concerned authority is the Officiating Commanding Officer who is vested with the duty of the Commanding Officer by virtue of Regulation 54 of the Army Regulation. Therefore, when the Officer who had signed the charge-sheet having been appointed as Officiating Commanding Officer according to Regulation 54, then there is no scope of holding thai the charge-sheet is being signed by an incompetent person. Thus, according to him the contention of Mr. Mukherjee, learned counsel for the petitioner that the proceeding is vitiated by reason of signature of Officiating Commanding Officer on the charge-sheet is wholly misplaced. He contends further that he had pointed out that how Rule 22 has been strictly complied with and there has been no infraction and, therefore, there is no scope for holding that the proceeding is vitiated by reason of non-compliance of Rule 22.
5. Shri Shishir Kumar has taken me through various records as well as Sections, Rules and Regulations of the Army Act, Rules and Regulations respectively. Similarly Mr. Mukherjee has taken me through various records and materials placed before this Court. Shri Shishir Kumar had also relied on a few decisions at the Bar which would be dealt with hereinafter.
6. I have heard both the learned counsel at length.
7. So far as the first point is concerned, Commanding Officer has not been defined in the Army Act. In order to find out the definition, Mr. Mukherjee has referred to various provisions of the Army Regulation, viz., 8 (b), (d), 9, 16, 19, 23, 24, 30, 44, 52 and 54. In order to interprete those provisions in support of his contention, he has also referred to Sections 71, 80, 110, 116 and 120 together with note 5 thereunder. Relying on Rule 31, he contends that the charge-sheet can only be signed by the Commanding Officer, Having regard to the said provisions as referred to above, according to Mr. Mukherjee, the Officiating Commanding Officer who has signed the charge-sheet can at best be termed "such other officer" but in no circumstances, he can be treated to be a Commanding Officer for the purpose of signing the charge-sheet under Rule 31. He has relied on the decision in the case of Mahipal Singh v. Union of India, 1994 Lab IC 2365 (Del), particularly on paras 8 and 9 of the said judgment in support of his contention. According to Mr. Mukherjee, there is no distinction so far this case is concerned. But in my view, there is distinction which is material. Inasmuch as in the said case, the question was looked into from the point of view of holding summary Court Martial having regard to note 5 appended under Section 116 of the Act. The question that was dealt with in the said case was related to attachment to one or the other unit and in such case, the Commanding Officer of which unit would be competent to hold the summary Court Martial. Thus, the facts and the point involved in the said case are completely different from the facts and circumstances of this case, Relying on the said case. Mr. Mukherjee sought to argue that the note appended to the sections of the Army Act are part of the Act. But the said contention is misplaced as has been held in the case of Havildar Clerk Dharam Singh v. Union of India, 1996 (1) UPLBEC 335, in which the decision in the case of Mahipal Singh, (supra) was dessented from on the question of relevance of note appended to the section. Then again the fact remains that the said decision was not concerned and has not dealt with the impact of Regulation 54 which provides that in case of absence of Commanding Officer for one or other reason, any officer can be appointed as Commanding Officer by notification and he may exercise all the powers and authorities of the Commanding Officer so vested in him. In the present case, in the counter-affidavit, it has been specifically pointed out that the incumbent who had signed the charge-sheet was appointed through notification as Officiating Commanding Officer. This fact has not been disputed by Mr. Mukherjee. Therefore, the ratio decided in the case of Mahipal Singh, (supra), cannot help in the present case which has to be decided on the basis of the Impact of Regulation 54 in respect of the point canvassed by Mr. Mukherjee,
8. Since the charge-sheet has been signed by the Officiating Commanding Officer and procedure under Rule 22 has been undergone by him, though it would not be necessary to refer to the meaning of Commanding Officer with reference to the relevant Rules, Regulations and Sections as referred to by Mr. Mukherjee, at the same time, the question has been raised by Mr. Mukherjee, it may be useful to the proposition that the Commanding Officer of the Rajput Regimental Centre, Fatehgarh, Farrukhabad would be the Commanding Officer and the Officiating Commanding Officer being an Administrative Commandant of the Administrative Department may be a Commanding Officer of the Administrative Department but he cannot be substituted for Commanding Officer for the purpose of compliance of Rules 22 and 31. Section 116 provides that a summary court-martial may be held by the Commanding Officer of any corps, department or detachment of the regular Army. Therefore, an Officer Commanding the department is also a Commanding Officer for the purpose of summary court-martial against a person of the said department. Therefore, the officer of the Administrative Department is also officer commanding that Department and is capable of holding summary court-martial. But in the present case, it is to be found that as to whether in his such capacity, he can be treated to be the Commanding Officer within the meaning of Rule 22 read with Rule 31. Since in the present case, it is not a summary court-martial, therefore, reliance on Section 116 cannot throw any light on this aspect. At the same time, it is not necessary to go into the said question at this stage before deciding the impact and effect of Rule 54. This question can be relevant and material if it is held that by virtue of Regulation 54, an Officiating Commanding Officer is not empowered to sign the charge-sheet and from undertaking the process of Rule 22. This is only the question which requires determination.
9. Regulation 54 follows Regulation 53. Both these Regulations would be relevant for our present purpose and as such, the said regulations are quoted here under :
"53. Command during temporary absence of permanent Commander.--When formation Commanders are temporarily absent from their commands for periods which do not involve vacation of command, officiating incumbents will be appointed and such appointments notified in the formation orders concerned. In such cases, legal powers subject to the terms of the court-martial warrants held, will be exercised by the officer who is in actual fact commanding at the time.
In similar circumstances, in the case of a unit Commander who is absent, the appointment of the officer on whom the command devolves, will be published in unit orders. His legal powers, subject to the limitations of the Army Act, will be the same as those of the unit Commanders.
54. Command during temporary absence of an O.C. Unit.-- When an O.C. unit becomes sick or is temporarily absent, the conduct of his duties devolves on the second-in-command whose appointment as Officiating O.C. will be published in unit orders. His legal powers subject to the limitations of the Army Act, will be the same as those of the unit Commanders."
10. A plain reading of Regulation 53 shows that when formation Commanders are temporarily absent, then Officiating Commanders may be appointed and such appointment is to be notified in the formation orders concerned but such officiating incumbent will not be able to hold Court Martial which can be exercised by the officer who is in actual commandant at the time. In similar circumstances, in the absence of the unit Commander, the officer on whom the command devolves is to be appointed and this appointment should be published in the unit order but his power as those of unit Commanders subject to the limitations of the Army Act would apply.
11. Regulation 54 provides that if the Officer Commanding the unit becomes sick or temporarily absent, the conduct of his duties devolves on the second-in-Commandant whose appointment as Officiating Officer Command will be published in the unit order and his power may be same as that of the unit Commanders subject to the limitation of the Army Act as would be applied to the unit Commanders.
12. Here in this case, the unit has been stated to be Rajput Regimental Centre, Fatehgarh, Farrukhabad. of which the Officer who has been appointed as Officiating Commander is the Administrative Commandant of the Administrative Department. The petitioner is also member of the Administrative Department which fact is not in dispute. If the Administrative Department is considered to be a unit, in that event, when acting as the Officiating Commanding Officer of the Regiment, the incumbent would remain to be the unit Commander of the petitioner for the purpose of disciplinary proceeding.
13. In the present case, since he has been appointed as Officiating Commanding Officer by virtue of Regulation 54, he is to be treated as the Commanding Officer of the unit if the Regiment is to be treated as the unit. Since Regulation 54 follows Regulation 53, the unit would mean the formation. The formation might be the Regiment or otherwise. Therefore, no distinction can be made only on the basis of Regulation 53 and Regulation 54 which applies to the Officer Commanding the unit which may be other than the Regiment and thus he can very well be the Commanding Officer for the purpose of Rule 22 and Rule 31. If this regulation has to be interpreted having regard to the provisions of the Army Act, particularly Section 116, then the interpretation sought to be given by me finds support in the manner that Section 116 speaks of Commanding Officer of any corps, department or detachment. Thus, the signing of the charge-sheet by the Officiating Commanding Officer cannot be said to suffer from incompetence with reference to Rule 31 which requires that the charge-sheet is to be signed by the Commanding Officer.
14. In the present case, the charge-sheet was signed by the Administrative Commandant of the Administrative Department being Officiating Commanding Officer who had forwarded the same to a superior officer having power to convene District Court Martial had endorsed the charge-sheet and ordered that the petitioner be tried by the District Court Martial therefore there cannot be any question of infirmity in the compliance of Rule 31 as observed earlier.
15. So far as the second point as contended by Mr. Mukherjee that Rule 22 was not complied with in that the petitioner was not given proper opportunity and that he was not heard and he was not allowed to cross-examine the witnesses produced against him and he was prevented from making statement in his defence. He further alleges that the Officiating Commanding Officer cannot be the Commanding Officer within the meaning of Rule 22 and as such, the opinion formed by him for proceeding with the charges and in issuing the charge-sheet and forming opinion to proceed with the proceeding suffers from incompetence.
16. As already held, the Officiating Commanding Officer is empowered to discharge all the duties of the Commanding Officer, the point of competence is no more open to be agitated.
17. Now let us examine as to whether the Officiating Commanding Officer In fact had complied with provision of Rule 22 or not. In the counter-affidavit in paragraph 15, it has been pointed that the summary of evidence was recorded on 27.8.1987 under Rule 22 as appearing from Annexure CA-1 which shows that various witnesses were examined in presence of the petitioner who had declined to cross-examine them. The petitioner also did not produce any witness in his defence. It also shows that the proceeding was held in the presence of Major A. K. Pandey and Subedar Major P. N. Singh. It further appears from Annexure CA-1 that the petitioner had signed the said Annexure CA-1 on 26.8.1987 against a note recorded to the extent that the accused pleads partial guilty, i.e., he accepted that he received Rs. 6,000 from Shri Arvind Singh Chauhan and Rs. 6,000 from Rajesh Chandra Dixit but not from Gajendra Singh. Thus, it appears that there was no infraction in complying with Rule 22 in holding the proceeding in the present case and in giving him opportunity to cross-examine. Thus, it appears that this point also cannot be sustained on facts as disclosed.
18. For all these reasons, the writ petition fails and is accordingly dismissed.
However, there will be no order as to cost.