Des Raj Pathak v. Union Of India (uoi) Etc

T.U. Mehta, J.

1. These two writ petitions are connected matters and the main question raised in both of them is with regard to the jurisdiction of the General Court Martial to try the Petitioners who happen to be civilian officers serving in General Reserve Engineer Force (hearinafter shortly referred to as the G.R.E.F.) which is working under the Border Roads Development Board (herin-after referred to as the Board) which functions in accordance with the rules of business framed by the Prime Minister from time to time in the Ministry of Transport and Shipping, Government of India. It is almost an admitted fact that the G.R.E.F. is primarily a departmental civilian agency though the pattern of the organisation is basically modeled on the Army. Broadly speaking, except where specially legislated, the G. R. E. F. personnel are governed by the normal rules as would apply to the corresponding non-industrial civilian of Defence Services. The Director of the Board exercises control over the G.R.E.F. through the Chief Engineers functioning in specified areas. A Chief Engineer is responsible for control and administration of G.R.E.F. and Army units and formulations placed under his command. We shall refer to the relevant provisions in this connection at an appropriate stage. It should, however, be noted at this stage that by virtue of the provisions contained in Section 4(1) and (4) of the Army Act, 1950, the Central Government has framed statutory rules and orders (hereinafter referred to as the S.R.O.) No. and according to S.R.O. No. 329 and 330 dated 23-9-1960, the said Government has applied all the provisions of the Army Act with certain exceptions and subject to the modifications set forth in schedule B attached to S.R.O. 329. By S.R.O. 330 Army Rules, 1954 as amended from time to time have been applied to G. R. E. F. personnel with certain exceptions as mentioned therein. Thus by these S.R.O.s. the G.R.E.F. Personnel are governed by Army Act, 1950, and Army Rules, 1954 with certain exceptions.

2. It is further found that on 20-11-1969 the President of India has prescribed with immediate effect the terms and conditions of service of the members of the G.R.E.F. as shown in the annexure to the letter of an Under Secretary to the Ministry of Shipping and Transport dated 20-11-1969 to the Director General Border Roads, Kashmir House, New Delhi. The Petitioners have relied upon para 13 of these terms and conditions of service, and the corresponding para 32 of Border Roads Regulations which is a Government publication compiling all the rules and regulations by which the G.R.E.F. personnel are governed.

3. We shall make a detailed reference to the relevant provisions of the Army Act, 1950, Army Rules, 1954, Border Regulations as compiled in the above referred government publications, and the terms and conditions of the service of the G.R.E.F. personnel as prescribed by the President on 20-11-1969. Before making this detailed reference, it would be necessary to state shortly the background of facts which have given rise to both these petitions.

4. The Petitioner of Cr. W.P. No. 2 of 1976 is one Des Raj Pathak who was initially appointed as civilian officer grade III of the G.R.E.F. under the Board. His appointment in the substantive capacity as a civilian officer grade III in G.R.E.F. was made with effect from 20-11-1969, and thereafter with effect from 9-2-1973, he was appointed in the G.R.E.F. to officiate as a civilian officer grade II.

5. Since 27-2-1970 this Petitioner was serving in Headquarter, Chief Engineer (Project) Deepak, Simla, under the said Chief Engineer.

6. It is found that a canteen was being run in the headquarters (Project) Deepak for the benefit of the members of the Force. Both the Petitioners were at the relevant time discharging some duties with regard to this canteen. The Petitioner Des Raj Pathak was directed to act as canteen officer in addition to his other duties while the Petitioner of petition No. 3 of 1976, whose name is Jagdish Chand Sharma, was the incharge of that canteen and working as salesman and stock holder.

7. The case of the Department is that during the discharge of their duties with regard to the above referred canteen both the Petitioners have dishonestly misappropriated the goods worth of Rs. 52753.94. On 18-8-1975 one Shri S.S. Dave, an officer commanding the troops, headquarters Chief Engineer (Project) Deepak, put a tentative charge sheet against both the accused persons under Section 52(b) and Section 63 of the Army Act. This tentative charge sheet is at Annexure G in petition No. 2 of 1976. After some preliminary enquiry, a regular charge sheet was framed against both the Petitioners under Section 69 of the Army Act and alternatively under Section 63. This regular charge sheet is found at Annexure I to petition No. 2 of 1976. Thereafter a proposal for trial of both the Petitioners by a General Court Martial was put up before the Chief Engineer who accepted the same and convened the General Court Martial in exercise of the powers vested in him under Section 109 of the Army Act, 1950.

8. Eventually, as a result of the said trial, the Petitioner Des Raj was sentenced by the Court Martial to suffer six months regorous imprisonment and to pay a fine of Rs. 8,000/-. This sentence is according to the rules, made subject to confirmation by the appropriate authority. The Petitioner Jagdish Chand of petition No. 3 of 1976 is also sentenced to a term of imprisonment and fine.

9. Both the Petitioners have now approached this Court by these writ petitions challenging the jurisdiction of the General Court Martial to try and convict them. They have also raised the contention that the said Court Martial was not properly convened and, therefore, also the proceedings undertaken by it are not legal. Shri Kedarishwar, the learned Advocate of the Petitioner Des Raj, contended that an authority competent to convene the General Court Martial is not necessarily the authority who could order the trial and, therefore, it cannot be said that the trial of the Petitioners has been ordered legally and properly. He further contended, relying upon paragraph 13 of the terms and conditions prescribed by the President of India in the year 1969, and the amended paragraph 32 of Border Roads Regulations that only those offences can be tried by the General Court Martial which have in them an ingredient of discipline involved. According to him, if a person of G.R.E.F. commits a civil offence, such as misappropriation the said offence has no ingredient of discipline involved in it, and therefore, it was not competent to the disciplinary authority to order that the Petitioners should be tried by a Court Martial. In such circumstances, he contended, disciplinary action should be in accordance with the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965, or under the ordinary law of the land as governed by the Code of Criminal Procedure. According to Shri Kedarishwar if S.R.Os. 329 and 330 are so interpreted as to permit the disciplinary authority to apply the provisions of the Army Act to all offences irrespective of their relevance to the idea of discipline, the said S.R.Os. are ultra vires the powers of the Central Government.

10. During the course of his arguments Shri Kedarishwar relied upon a secret letter issued by Army Headquarters to the Headquarters of all the different Commands on 1-1-1964 regarding the trial of the civilians serving with the Army for civil offences by an ordinary criminal court unless such a trial is not reasonably practicable. According to Shri Kedarishwar, the Petitioners should have been governed by the terms of this secret letter, and accordingly, their trial should have been ordered before the criminal court and not before the Court Martial.

11. The Petitioner Jagdish Chand has raised a further point in his petition that the constitution of the Court Martial is also not legal and proper and, therefore, the trial, and the order of conviction by it, is liable to be set aside.

12. The Respondents, in their return, have not raised any point as regards the maintainability of this writ petition. However, during the course of the hearing we felt that in the recent decision given by the Supreme Court in A.D.M. Jabalpur v. S. Shukla and Ors. matters reported in : A.I.R. 1976 S.C. 1207 (popularly known as habeas corpus cases) the question of maintainability of such petitions did arise. Therefore, we drew the attention of the learned Advocates for both the sides to this decision inviting them to put forward their submissions as regards the maintainability of these petitions. Accordingly the learned Advocates of the Respondents have contended that in view of the above referred decision of the Supreme Court none of these petitions is maintainable.

13. In both these petitions the following common points arise for determination:

1. Whether the petitions are maintainable or not.

2. Whether in view of para 13 of the terms and conditions of service of the G.R.E.F. personnel as prescribed by the President of India on 20-11-1969 read with S.R.O. 329 and 330, the General Court Martial did not have any jurisdiction to try the offences with which the Petitioners are charged.

3. Whether the trial of the Petitioners was not ordered by an appropriate competent disciplinary authority.

4. Whether the General Court Martial was not convened by a competent authority.

5. Whether the S.R.Os. Nos. 329 and 330 are ultra

vires the powers of the Central Government.

6. Whether the authority ordering the trial was bound to follow the guidelines prescribed in a secret letter issued by the Army Headquarters on 1-1-1964 regarding the legal position of civilians serving with the Army, and if so, whether it has not followed the same.

14. So far as the petition No. 3 of 1976 is concerned, a further point which is raised by the learned Advocate of that petition is about the constitution of the Court Martial.

15. Before taking up these petitions on their merits, it would be appropriate to discuss the question as regards their maintainability in view of the above referred decision of the Supreme Court given in habeas corpus matters. The majority judgment recorded by the Supreme Court in those matters ruled that in view of the Presidential Order, dated June 27, 1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fide factual or legal or is based on extraneous considerations.

16. So far as these petitions are concerned the order of detention of the Petitioners is challenged on the ground that these detentions are the result of an illegal trial by persons who had no jurisdiction to hold the same. The Respondents, therefore, contended that the plea which is raised by the Petitioners in these petitions is that they are deprived of their personal liberty not in accordance with the procedure established by law and, therefore, in view of the suspension of Article 21 of the Constitution by the Presidential Order during emergency these petitions are not maintainable.

17. It is apparent from the pleadings of the Petitioners that they rely upon certain special provisions found in the terms and condition of their service as prescribed by the President of India in the year 1969 by para 13 thereof, and para 32 of the Border Roads Regulations. The contention of the Petitioners is that they are civil officers in the Defence Services and, therefore, according to the terms and conditions of their service they ought not to have been tried by Court Martial, and therefore, if they are so tried the said trial is illegal. According to the Petitioners, therefore, they do not challenge their detention by invoking fundamental right contemplated by Article 21 of the Constitution. According to them they are challenging the legality of the trial only pursuant to the terms and conditions of service by which they are governed.

18. The resolution of these conflicting contentions as regards the maintainability of these petitions rests on the decision of the question whether the ratio of the above referred decision of the Supreme Court is that Article 21 is the sole repository of all rights to life and personal liberty irrespective of the question whether these rights are fundamental or non-fundamental, statutory or contractual. After going through the reported judgment, we find that the opinion expressed by the learned Judges who constituted the Bench is not uniform on the above question. We find that while on one hand, the learned Chief Justice and Chandrachud, J. have held that Article 21 is the sole repository of all rights to personal liberty irrespective of the question whether this right is a fundamental or non-fundamental right or whether it is a statutory or contractual right, on the other hand, the two learned Judges namely, Khanna and Bhagwati, JJ. have taken a contrary view. Beg, J. has made certain observations which go to show that even his Lordship is of the view that the locus standi of a detenu to challenge his detention under Article 226 of the Constitution, is not destroyed in cases were detentions which not only do not but could not possibly have any apparent, ostensible, or purported executive authority of the State whatsoever to back them, as they could be equated with those by private persons and not by the State.

19. On consideration of the observations made by all the five learned Judges who constituted the Bench, we are of the opinion that majority view which is taken by the learned Judges is not that Article 21 is the sole repository of all rights to liberty irrespective of the question whether these rights are fundamental or non-fundamental or statutory in character. On the contrary, we are of the opinion that the majority view is that the principle of legality, which every High Court is entitled to consider in such petitions, under Article 226 of the Constitution, is not abrogated, and if an aggrieved person can show that he is detained or arrested otherwise than under the provisions of law which should govern the trial, he has got the locus standi to approach this Court for a proper relief. With this perspective, we shall now proceed to state how the above referred majority view is expressed by the different learned Judges who constituted the said Bench.

20. On this point we shall first state what the learned Chief Justice and Chandrachud, J. have stated. On a perusal of the reported judgment, we find that in para 32, the learned Chief Justice has made the following observations:

...any enforcement of the fundamental rights mentioned in the Presidential Order is barred and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential Order.

In paragraph 44 of the reported judgment his Lordship has further observed as under:

The submission of the Respondents that a person in detention can come to a court of law in spite of the Presidential Order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenus challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the legislative Act under which the detention has been made have not been complied with, are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22. If courts will, in spite of the Presidential Order, entertain such applications, and allow the detenus to enforce to start or continue proceedings or enforce fundamental rights, Article 359(1) will be nullified and rendered otiose.

In paragraph 50 his Lordship has observed that the heart of the matter is whether Article 21 is the sole repository of the right to personal liberty. If the answer to that question be in the affirmative the Presidential Order will be a bar. He has ultimately provided an answer that Article 21 is the sole repository of all rights to personal liberty.

21. On perusal of the judgment recorded by Chandrachud, J., specific observations on this point are found to have been made by his Lordship in paragraph 451 of the reported judgment, wherein his Lordship has observed on this point as under:

I look at the quest on posed by the Respondents from a different angle...The object of empowering the President to issue an order under Article 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III, which to me seems totally devoid of meaning and purpose. There is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right, leaving all other rights to personal liberty intact and untouched...This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency, except to the extent to which the right is conferred by Part III of the Constitution . The right to personal liberty has no hall-mark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era...The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less. That right along-with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it. Article 359(1) enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out of the common morass of human rights. If the enforcement of the fundamental rights can be suspended during an emergency, it is hard to accept that the right to enforce non-fundamental rights relating to the same subject matter should remain alive.

In paragraph 454 his Lordship has further observed as under:

The words conferred by Part III which occur in Article 359(1) are not intended to exclude or except from the purview of the Presidential Order, rights of the same variety or kind as arc mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post-Constitution era, apart from the Constitution. The emphasis of the Article is on the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights arc conferred by Part III. To put it differently, the words conferred by Part III are used only in order to identify the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of the Presidential Order.

Further in paragraph 456 his Lordship has observed that what is suspended is the right to move for the enforcement of the right to personal liberty whether that right is conferred by the Constitution or exists apart from and independently of it. In paragraph 458 his Lordship has made the point clear by observing that the suspension of the right to enforce the right of personal liberty means the suspension of all that right wherever it is found, unless its content is totally different as from one Article to another. Ultimately his Lordships concluded in paragraph 461 by observing that the Presidential Order suspends the right to enforce all and every right to personal liberty, and in that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III.

22. These observations of the learned Chief Justice and Chandrachud, J. make it abundantly clear that even if the Petitioners have got a statutory right to be tried under ordinary law of land, and not to be tried by a Court Martial, that right is, in essence, a right to claim liberty, and if that be so, the said right cannot be enforced by them on account of the suspension of Article 21, which, according to learned Judges, is comprehensive of all rights to liberty.

23. We find that the above view is not shared by other two learned Judges of the Bench. They are Mr. Justice Khanna and Mr. Justice Bhagwati. In paragraph 152 of the reported judgment Mr. Justice Khanna is found to have observed as under:

...The question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still survives during the period of emergency despite the Presidential Order suspending the right to move any court for the enforcement of the right contained in Article 21. The answer to this question is linked with the answer to the question as to whether Article 21 is the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law....

24. In paragraph 157 of the reported judgment his Lordship has further observed as under:

Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not however, follow from the above that if Article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life and liberty without the authority of law.

25. Ultimately in paragraph 158 of the reported judgment his Lordship has concluded as under:

I am unable to subscribe to the view that when right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a persons life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of ones life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article 21 to be the sole repository of that right.

26. Bhagwati, J. has definitely pronounced that if a positive legal right is conferred on a person by legislation and he seeks to enforce it in court it would not be within the prohibition of Presidential Order. In developing this point his Lordship has pointed out in paragraph 551 of the reported judgment that there can be no doubt that the Executive is bound to act in accordance with law and cannot flout the command of law. The Executive cannot also act to the detriment of a person without authority of law or except in accordance with law. If the Executive takes any such action which is not supported by law, or is contrary to law, its action would be unlawful. This unlawful action is not obliterated by the Presidential Order and the Presidential Order does not give any power to the Executive to alter or suspend or flout the law. Nor does it enlarge the power of the Executive so as to permit it to go beyond what is sanctioned by law. His Lordship has further observed that while a Presidential Order is in operation, the rule of law is not obliterated and continues to operate in all its vigour. The Executive is, therefore, bound to observe and obey the law and it cannot ignore and disregard it. In paragraphs 553, 554 and 555 his Lordship has referred to certain illustrations showing how, in cases where specific provisions of law have been flouted by the authorities concerned, the aggrieved person can take shelter under the provisions of those laws and assert his right of liberty even apart from Article 21. He has ultimately observed in paragraph 555 as under:

There are two rights which the detenue has in this connection one is the fundamental right conferred by Article 22, Clause (5) and the other is the statutory right conferred by Section 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. The theory of reflection which found favour with the Kerala High Court in Fathima Beebi v. M.K. Ravindranathan : 1975 Cri.L.J. 1164 is clearly erroneous.

In paragraph 556 the learned Judge has observed:

To my mind, it is clear that if a petition or other proceeding in court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential Order. I may also point out that, in the present case, if I had taken the view that there is, independently and apart from Article 21, a distinct and separate right not to be deprived of personal liberty except according to law, I would have held, without the slightest hesitation, that the Presidential Order suspending enforcement of the fundamental right conferred by Article 21 does not have the effect of suspending enforement of this distinct and separate legal right....Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before the Court, it must be rejected straightway without even looking at the averments made in it. The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose, the Court would have to see whether the order of detention is one made by an authority empowered to pass such an order under the Act; if it is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21.

27. The above observations of their Lordships M/s Khanna and Bhagwati, JJ. clearly show that, in their view, Article 21 is not the sole repository of all rights to liberty, and that, apart from Article 21, a person can claim liberty if he can show that he has got a statutory right to successfully challenge his order of arrest or detention.

28. In view of the above position, it is clear that the two learned Judges of that Bench have taken one view and the other two learned Judges of the same Bench have taken a contrary view. It is, therefore, necessary to see what the remaining Judge Mr. Justice Beg has observed on the subject.

29. The Honble Mr. Justice Beg has summarised his finding in paragraph 290 of the reported judgment by stating that fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights, and that these basic rights are elevated to a new level of importance by the Constitution. His Lordship has further observed that any other co-extensive rights, outside the Constitution are necessarily excluded by their recognition as or merger with fundamental rights. Another point which his Lordship has made is that Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be. Having said this, his Lordship has also been careful to point out in paragraphs 358 and 360 of the reported judgment, what would be the cases in which, in spite of the suspension of Article 21, the aggrieved person, who has lost his liberty, can still retain his locus standi to move the High Court under Article 226 of the Constitution.

30. In paragraph 358 his Lordship has observed as under:

Detentions which, not only do not, but could not, possibly have any apparent, ostensible, or purported executive authority of the State whatsoever to back them, could be equated with those by private persons. The suspension of enforcement of specified fundamental rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act in official capacities which they could and do hold. A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf could be enforced even during the current Emergency...the test of legality applied by Courts, is not entirely abrogated and abandoned in the current Emergency. But, it can be only one which should be applicable without going into facts lying behind the return.

(emphasis supplied).

31. In paragraph 359 his Lordship has referred to the Supreme Court decision in State of Madhya Pradesh v. Thakur Bharat Singh reported in A.I.R. 1967 S.C. 1070 and has distinguished the same on the ground that it was a case of patent viodness of the order passed so that the principle of legality which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right.

32. In paragraph 317 of the reported judgment his Lordship has made the following pertinent observations:

It is possible that, if a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the Court, outside the provisions of the Act on the ground of personal malice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for it may be possible to contend that it is not protected by the Presidential Order of 27th June, 1975, and by the provisions of Article 359(1) of the Constitution at all. If that could be patent, without any real investigation or inquiry at all, it may stand on the same footing as an illegal detention by a private individual. The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus.

33. These observations of his Lordship Beg, J. clearly show that his Lordship is not of the view that a remedy by way of a petition of habeas corpus is barred in all cases, and in all events. His Lordship has made definite observations to show that if the detention or the arrest of the person who has lost his liberty, is utterly outside the provisions of the Act, or there is no legal authority to order the same, the locus standi of the aggrieved party to file a writ of habeas corpus is not obliterated simply because the operation of the Article 21 is suspended.

34. We, therefore, conclude that the majority view of the Supreme Court is not that Article 21 is the sole repository of all rights as to the liberty, irrespective of the question whether they flow from the Constitution, or from a legislation. That being the position, the Petitioners in this case can show that their trial by the Court Martial was a trial without jurisdiction or that the said trial is vitiated either because of the fact that the court was not legally convened, or because of the fact that the said court was not properly constituted. Since the principle of legality is not suspended, this Court can enquire into the matter under the powers it has got under Article 226 of the Constitution. In our opinion, therefore, both these writ petitions arc maintainable.

35. Before touching the merits of the contentions which are raised by the parties, it would be better to refer shortly to the relevant provisions of law. Section 4 of the Army Act, 1950, enables the Central Government to apply the provisions of the said Act to certain Forces. Section 4 is in the following terms:

4. Application of Act to certain forces under Central Government.-- (1) The Central Government may, by notification, apply, with or without modifications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government, and suspend the operation of any other enactment for the time being applicable to said force.

(2) The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the regular Army the same or equivalent rank as the aforesaid persons old for the time being in the said force.

(3) The provisions of this Act so applied shall also have effect in respect of persons who are employed by or are in the service of or are followers of or accompany any portion of the said force as they have effect in respect of persons subject to this Act under Clause (i) of Section 2.

(4) While any of the provisions of this Act apply to the said force, the Central Government may, by notification, direct by what authority and jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force.

36. By virtue of the provisions contained in Sub-sections (1) and (4) of the above referred Section 4, the Central Government has issued S.R.O. No. 329 the relevant portion of which is in the following terms:

S.R.O. 329, dated 23rd September 1960.--In exercise of the powers conferred by Sub-section (1) and (4) of Section 4 of the Army Act, 1950 (46 of 1950), the Central Government hereby:

(1) applies to the General Reserve Engineer Force, being a force raised and maintained in India under the authority of the Central Government, all the provisions of the said Act with the exception of those shown in Schedule A, subject to the modifications set forth in Schedule B; and

(2) directs that the officers mentioned in the first column of Schedule C shall exercise or perform in respect of members of the said Force under their command the jurisdiction, powers and duties incident to the operation of the said Act specified in the second column thereof.

The Schedule A which is referred to in the above S.R.O. refers to Sections 10 - 17, 20, 22 - 24, 43, 44, clauses (d), (e), (f), (g) and (k) of Section 71, 74 - 78, Clauses (e), (f) and (j) of Section 80 and Clause (a) Section 84. Schedule B refers to the modifications of some of the sections of the Army Act. We shall refer to those modifications as and when necessary. Paragraph 2 of the said S.R.O. refers to Schedule C which is in the following terms:

SCHEDULE C

Officers Power and duties

Director General Border Those of an officer commanding

Roads. an Army.

Chief Engineer or Indepen Those of an officer commanding

dent Deputy Chief Engineer a Division or Brigade.

of the General Reserve

Engineer Force.

37. The effect of this S.R.O. is that all the provisions of the Army Act, except those mentioned in Schedule A, apply to the personnel of the GREF subject, of course, to the modifications set forth in Schedule B. The further effect of this S.R.O. is that the officers mentioned in the first column of Schedule C who are the officers of GREF are empowered to exercise and perform the same powers and duties in respect of the members of their own Force, as those of the Army Officers mentioned in column 2. Thus the Director of the Board has the same powers and duties as those of the officer commanding an Army, and a Chief Engineer has the same powers and duties as those of an officer commanding a Division or a Brigade.

38. S.R.O. 329 has been issued pursuant to Regulation 32, which was previously, in the following terms:

32. For purposes of discipline, members of the GREF are subject to those sections of the Army Act, 1950, and Army Rules, 1954, as specified by Statutory Rules and Orders Nos. 329 and 330 of 23-9-60 reported as Annexure 5.

This Regulation No. 32 has been substituted by the following to make it in conformity with paragraph 13 of the terms and conditions prescribed by the President on 20-11-1969. The substituted Regulation 32 is in the following terms:

(a) Members of the General Reserve Engineer Force will be governed by the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as amended from time to time.

(b) Notwithstanding the above, all members of the General Reserve Engineer Force will be subject to certain provisions of the Army Act, 1950, and rules made thereunder as laid down in S.R.Os 329 and 330 of 1960, reproduced as Annexure 5, for purpose of discipline only. When office is such that the provisions of Army Act 1950 as extended to GREF, apply for purposes of discipline, it will be open to the appropriate disciplinary authority under the Army Act, 1950, to proceed under its provisions. In all other disciplinary cases, the provisions of C.C.S. (C.C.A.) Rules, 1965, will apply.

Paragraph 13 of the terms and conditions of service prescribed by the President in the year 1969 is in almost the same terms as the above referred substituted Regulation No. 32. It is, therefore, not repeated here. It is obvious from the substituted regulation, that while the original deleted regulation applied the provisions of the Army Act and the Army Rules specified in S.R.O. 329 without any limitation, the substituted regulation seeks to apply those provisions of the Act and the Rules "for the purpose of discipline only". Therefore, the contention which was raised on behalf of the Petitioners was that these provisions contemplated a disciplinary action under the provisions of the Act only in those cases wherein the offence concerned involves an element of discipline. It was urged that if the offence concerned does not involve any question relating to departmental discipline, then however grave that offence might be, action under the Army Act and Rules cannot be taken. It was further pointed out that what are known as "civil offences", which are triable by ordinary civil Courts, have no element of discipline involved in them, and hence in cases where civil offences are alleged to have been committed, the provisions of the Act have no relevance. If the provisions of the Act have no relevance in such cases, the argument proceeded, the order convening the General Court Martial for the purpose of the trial of the Petitioners, is illegal, and the trial by the said General Court Martial is vitiated.

39. As already noted above, according to S.R.O. 329 all the provisions of the Army Act, 1950, except those mentioned in Schedule A apply to GREF personnel. Even the appointment letter which was initially issued to the Petitioner of petition No. 2 of 1976 shows that his appointment was subject to the provisions of the Army Act. It, therefore, cannot be doubted or challenged that the terms and conditions of the service of the Petitioners are governed by the provisions of the Army Act and the Rules framed thereunder. However, these provisions have to be read subject to the terms and conditions of service which the President has prescribed in the year 1969. The Petitioners lave put great reliance on paragraph 13 thereof. This para 13, as already noted above, is corresponding to para 32 of the Border Roads Regulations which says that all the members of G.R.E.F. will be subject to the provisions of Army Act and the Rules as laid down in S.R.O. 329 "for the purpose of discipline only". It further provides that when the offence is such that the provisions of the Army Act as extended to G.R.E.F. apply for the purpose of discipline, it will be open to the disciplinary authority under the Army Act to proceed under its provisions.

40. What this para 13 provides is that the provisions of the Army Act and the Rules framed thereunder would be applicable for no other purpose except the purpose of discipline. In other words, the provisions of the Army Act and the Rules can be invoked only for the limited purpose of taking disciplinary action against the delinquent official. This does not mean, as contended on behalf of the Petitioners, that the provisions of the Army Act and the Rules would be applicable only when the offence committed involves a breach of discipline. The words "for the purpose of discipline only" mean "for the purpose of taking disciplinary action only". These words circumscribe the application of the provisions of the Army Act and the Rules only for a limited purpose, namely, the purpose of discipline. They, however, do not suggest that discipline should be one of the ingredients of the offence which is committed by the delinquent official. Under the circumstances, if the provisions of the Army Act are sought to be applied for any purpose other than the purpose of discipline, such as the appointment, enrolment and service privilege, para 13 of the terms and conditions of service and para 32 of Border Roads Regulations prohibit the same. It follows, therefore, that in a given case the offence itself may not be an offence involving discipline, but if that offence is such that, in interest of administration, a disciplinary action is found necessary, then the provisions of the Act would apply only for that limited purpose of taking disciplinary action.

41. This aspect of the matters is emphasised by the second part of the para which says that when the delinquent concerned has committed an "offence" and when the said "offence" is such that the provisions of the Act become applicable, then it would be open to the disciplinary authority to proceed under the provisions of the Army Act "for the purpose of discipline". However, "in other disciplinary cases" as for example, in disciplinary case wherein an "offence" is not committed, the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965, would apply. This second part of para 13 does not say, either directly or indirectly, that the provisions of the Act become applicable only when the offence said to have been committed by the delinquent concerned is the one involving a question of discipline, what it says is that when the offence under consideration is of such a character that, in the interest of administration, a disciplinary action becomes necessary the provisions of the Act would apply for the purpose of that disciplinary action, and in that event, it would be open to the authority concerned to proceed under the provisions of the Act. Here also the emphasis is not on an element of discipline involved in the offence, but on the necessity of taking action "for the purpose of discipline", looking to the gravity and nature of the offence. A disciplinary action would be required or found necessary "for the purpose of discipline" even if the delinquent concerned is alleged to have committed a "civil offence" for the word "offence" is defined in Clause (xvii) of Section 3 of the Army Act as "any act or omission punishable under this Act and includes a civil offence". The expression "civil offence" is defined in Clause (ii) of Section 3 as an offence triable by a criminal court. Thus even the offences contemplated by the Indian Penal Code which are triable by a criminal court and which are known as "civil offences" under the Army Act, are covered and comprehended by the definition of the word "offence" as used in the above referred second part of para 13 of the terms and conditions of service prescribed by the President in the year 1969. Therefore, even if a delinquent is found to have committed a "civil offence", if the said offence is such that for the purpose of discipline a disciplinary action is found necessary, the provisions of the Army Act become applicable, and the disciplinary authority can proceed under the provisions of the Army Act.

42. Thus in our opinion the words "for the purpose of discipline" are not meant to convey any ingredient of discipline in the alleged offence, but are used to suggest that the alleged offence should be such that in the opinion of the disciplinary authority it is found that for the purpose of observance and maintenance of discipline in the Force, proceedings under the Army Act are necessary.

43. We further find that even if the words "for the purpose of discipline" are construed, as desired by the Petitioners, the matter does not stand improved in their favour because the word "discipline" when used in the context of Defence Services must be construed as having a very wide connotation. It should not be forgotten that Defence Services of any country have to play a very vital role in the shaping of the destiny of the concerned nation. This is irrespective of the question whether a particular branch of this service is working on the front, or any other areas, or whether it is actually discharging Military Service or some other Civil Service. Therefore, if any person of this Service exhibits a conduct which strikes at the root or the morale of the concerned Force or staff, discipline is likely to become its first casualty. This is more so, if the defaulter holds the rank of an officer. For all those who hold a position of responsibility in public service the connotation of the word "discipline" is not confined just to the execution of, and obedience to the lawful orders of the superiors, or to the showing of courtesy and politeness to their colleagues. Persons holding a position of responsibility in public service have functions of leadership to be discharged. Their moral stance has necessarily a great impact on the morale of their subordinates. They can command competence on their subordinates only if they command obedience and respect from them. All this applies with greater force in the case of an officer who is serving in a department of Defence Services. Therefore, if such an officer commits an offence, it is open to the concerned disciplinary authority to consider whether the offence said to have been committed by him is of the type which calls for a disciplinary action. If the said authority thinks that disciplinary action is called for, it would be open to him to proceed under the provisions of the Army Act.

44. In this connection we may refer to the interpretation of the word "discipline" given in the Australian case Os Henry v. Ryan (1963) Tas. S.R. 90 per Burbury, C.J. at page 91 which is digested in "Words and Phrases" edited by Saunders, Vol. II. In that case a police officer was charged with the breach of Regulation 41 of Police Regulations, 1958 (Tas) which prohibits misconduct against the "discipline" of the police force. Interpreting the word "discipline" Burbury C.J. is quoted as having observed as under:

Discipline in this sense involves more than mere obedience to lawful orders. It is a wide concept and I have no doubt extends to conduct of a police officer when off duty so far as that conduct may effect his fitness to discharge his duties as a police officer. Many of the powers of a police officer arc exercised by him by virtue of the independent public officer he holds and cannot be exercised on the responsibility of any person but himself. His duties are of a public nature and over a wide range of matters affecting the public he exercises original and not delegated authority. Discreditable conduction his private life may therefore clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public.

45. These observations of Burbury, C.J. apply with full force to the present case. There is no dispute about the fact that the canteen which was managed by the Petitioners was opened for rendering service to tie members of the Force. If a canteen of this type is mismanaged then obviously its very purpose is lost. The Petitioners who were holding responsible positions in the canteen would obviously not be able to inspire any confidence in the members of the staff for whose benefit the canteen was run. Their act of misappropriation of the canteen funds, therefore, clearly amounted to a breach of service discipline, apart from the criminal nature of the offence involved therein.

46. Reference to the offences mentioned in Chapter VI of the Army Act shows that all these offences, whether they be civil or otherwise, arc the offences against the Act itself. It need not be emphasised that if the persons who are to be governed by the provisions of an Act are themselves committing offences against those very provisions, it would be nothing less than the act of gross indiscipline. Moreover, one of the charges alternatively put against the Petitioner Des Raj clearly refers to an omission prejudicial to good order and discipline inasmuch as he failed to exercise due control over the functioning of the canteen. The duties which are to be performed by this Petitioner are mentioned at Annexure E. One of these duties is to act as Accounts Officer for Regimental Accounts which include the accounts of the canteen.

47. In para 11 of his petition, the Petitioner Des Raj has made an averment to show that the canteen was not a canteen of the Store Department. He has alleged therein that it was not run under the authority of any law, rule or regulation. But he admits therein that the canteen was dealing with the C.S.D. (I) Stores and was also supplying other articles which did not belong to C.S.D. (I) Stores. These averments have been denied in the return filed by the Respondents. There is nothing in these averments to show that the canteen was a private canteen. The very fact that the Petitioners were assigned some duties with regard to the management of this canteen shows that the said canteen was officially managed by the department. Under the circumstances, the canteen must be held to be a part of the department in which the Petitioners were serving. In other words, it was the canteen the financial responsibility for which was with the Government. Therefore, if the Petitioners were found to have misappropriated any of the funds belonging to this canteen, it was definitely an offence against the department, and as such, was directly related to discipline.

48. Even if it is believed that the canteen was a private canteen and the offence committed by the Petitioners was a civil offence, it is difficult to find how that helps the Petitioners, because the definition of an offence which is given in Clause (xvii) of Section 3 includes a civil offence, and under Section 69 of the Army Act, subject to the provisions of Section 70, all civil offences are liable to be tried by a Court Martial. It is only Section 70 which makes an exception to the trial of civil offences by Court Martial. These exceptions are with regard to the offences of culpable homicide not amounting to murder or of rape in relation to a person who is not subject to Military, Naval or Air Force Law. The offences with which the Petitioners are charged obviously do not fall within the ambit of Section 70. Moreover, reference to Section 125 of the Army Act shows that when a criminal court and a Court Martial has each jurisdiction in respect of an offence it shall be in the discretion of an officer commanding the army, army corps, division or independent brigade in which the accused person is serving, before which court the proceedings shall be instituted. Therefore, it is thus clear that even in cases where a civil offence is committed and where a choice is to be made between a criminal court and a Court Martial, it is for the disciplinary authority to consider what would be the suitable forum if an action is required to be taken for the purpose of discipline.

49. Considering, therefore, all these facts and circumstances of the cases, we have no hesitation in concluding that the disciplinary authority in these cases was legally justified in entrusting the trial of both the Petitioners to General Court Martial and that the said Court Martial had jurisdiction to try and convict the Petitioners.

50. This brings us to the next two points which cover the question whether the trial of the Petitioners was ordered by a competent authority and whether the General Court Martial was also convened by a competent authority.

51. We shall first take for our consideration the question whether the General Court Martial was convened by a competent authority. As noted above, by virtue of S.R.O. 329 all the provisions of the Army Act except those which are mentioned in Schedule A apply to G.R.E.F. personnel. Section 109 of the Army Act is not one of the sections excepted by Schedule I attached to the said S.R.O. nor is it amended in any manner by Schedule B of that S.R.O. This section provides for a power to convene a General Court Martial and is found in the following terms:

109. Power to convene a general court-martial.--A general court martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff.

The case of the department is that in these cases the Court Martial is convened by the Chief Engineer who is empowered under the above referred Section 109 by warrant A-l by the Chief of the Army Staff. The contention raised on behalf of the Petitioners was that since according to Schedule C of S.R.O. No. 329 powers and duties of an officer commanding an army are vested in Director General of Border Roads Development Board, which controls the G.R.E.F. personnel, the Chief Engineer should have been empowered to convene the Court Martial in these cases by a warrant of the said Director General and not by the Chief of the Army Staff.

52. In this connection, it should be noted that Annexure 2 Clause (f) specifically provides that the power to convene and confirm General CourtMartial is to be exercised by the Chief Engineer. The remarks column against this clause shows that warrant A-l is issued in favour of the Chief Engineer under Section 109. The Petitioners have, however, contended that this Clause (f) of Annexure 2 is not valid in view of Schedule C of S.R.O. 329.

53. The above contention raised by the Petitioners is totally devoid of merits. In the first place it should be noted that Section 109 of the Army Act applies to the facts of the case without any condition or modification. Therefore, in case of G.R.E.F. personnel the necessary warrant for convening the General Court Martial can be issued by the Chief of Army Staff and not by a person holding an equivalent post in the G.R.E.F. Secondly, the contention of the learned Advocate of the Petitioners that the powers and duties of the Chief of the Army Staff are to be enjoyed by the Director General of Border Roads according to Schedule C attached to S.R.O. No. 329, is wholly misconceived. The expression "Chief of the Army Staff" is defined by Clause (iv) of Section 3 of the Army Act as meaning "the officer commanding the regular Army". This definition shows that the Chief of the Army Staff is one who is commanding the regular Army. So far as India is concerned there is only one regular Army and, therefore, the emphasis must be supplied to the article the which specifies the whole Army which is a regular Army. In other words, the Chief of the Army Staff is not the officer who commands a part, or a portion of the regular Army, but is one who commands the whole of the regular Army. In view of this, let us see what Schedule C attached to S.R.O. 329 says. We have quoted this Schedule in the foregoing part of the judgment. It shows that the Director General Border Roads is invested with the powers and duties of "an officer commanding an Army". The use of this article an is suggestive of the fact that the officer concerned should be commanding not the whole Army but a portion of the Army. It is, therefore, clear that the Director General Border Roads does not enjoy the powers and duties of an officer who commands the whole of the regular Army. In this connection it would also be of some relevance to note the definition of the expression "commanding officer" as given in Clause (v) of Section 3. This definition is important because an officer who commands an Army is a commanding officer. This will be clear from the definition of commanding officer as under:

commanding officer, when used in any provision of this Act, with reference to any separate portion of the regular Army or to any department thereof, means the officer whose duty it is under the regulation of the regular Army, or in the absence of any such regulation, by the custom of the service, to discharge with respect to that portion of the regular Army of that department, as the case may be, the functions of a commanding officer in regard to matters of the description referred to in that provision;

(emphasis supplied).

Schedule B to Annexure 5 has modified this Clause (v) of Section 3 by substituting the following:

commanding officer when used in any provisions of this Act with reference to any separate portion of the General Reserve Force means the person in actual command of that portion and includes a person duly authorised by such person to exercise the powers of a commanding officer in respect of that portion of the Force;

The emphasis supplied above clearly reveal that when the definition of the expression "commanding officer" makes a reference to the whole Army it uses the article the with reference to the words regular Army. This makes it abundantly clear that "the" regular Army means the whole of the Army, while "an" Army means a portion of the Army. If that be so the contention of the learned Advocates of the Petitioners that the Director General Border Roads enjoys the powers and duties of the Chief of the Army Staff is wholly unacceptable.

54. In this connection it should further be noted that Regulation 34 of Border Roads Regulations prescribes, by reference to Annexure 7, what powers are to be exercised by the officers of the G.R.E.F. in the application of the Army Act. This Regulation 34 is in the following terms:

34. The powers to be exercised in the application of Army Act, 1950, by the officers of the General Reserve Engineer Force are contained in Annexure 7.

The heading of Annexure 7 is as under:

Disciplinary powers exercisable by the officers of the Border Roads Organisation in respect of G.R.E.F. personnel.

Then following the table which shows at item No. (d) that the Chief of the Army Staffs powers are to be exercised only by the Chief of the Army Staff and item No. (c) shows that Army Commanders powers are to be exercised by the Director General Border Roads. Thus items Nos. (c) and {d) provide a clear answer to this part of the contention which is raised on behalf of the Petitioners.

Annexure 7 also contains the following note at its foot:

NOTE.--Disciplinary cases requiring orders of the Chief of the Army Staff will be progressed by the D.G.B.R.

This note also confirms the view that the Director General Border Roads does not possess the powers of the Chief of the Army Staff.

55. Under the circumstances, we have no hesitation in concluding that the Chief Engineer has been properly empowered by a warrant of the Chief of the Army Staff himself to convene the General Court Martial.

56. Now the question is whether the trial of the Petitioners is ordered by an authorised person. In this connection Shri Kedarishwar appearing for the Petitioner in Cr. W.P. No. 2 of 1976 contended that the power to convene a Court Martial does not necessarily imply the power to order the trial before the said Court Martial and, therefore, the Chief Engineers action in ordering the trial of the Petitioners is without authority. According to him the trial of the Petitioners could have been ordered only by a proper disciplinary authority and in absence of anything to the contrary the disciplinary authority of the Petitioner in Cr. W.P. No. 2 of 1976 should be determined with reference to sections 18 and 19 of the Army Act. Section 18 says that every person subject to the Act shall hold office during the pleasure of the President. Section 19 says that subject to the provisions of this Act and the rules and the regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to the Act. According to Shri Kedarishwar, therefore, the disciplinary authority in this case would be either the President or the Central Government but not the Chief Engineer. He further contended that if the disciplinary authority is not the Chief Engineer then the trial of the Petitioners could not have been ordered by him.

57. This contention is equally falacious. We find on perusal of the relevant provisions of the Act and the rules that the power to convene a General Court Martial necessarily implies the power to order trial of the delinquent concerned. It should be noted here that the convening of a General Court Martial is not an empty formality because before convening the General Court Martial a decision should necessarily be arrived at as regards the necessity of a trial by that Court Martial, because, the very purpose of convening a Court Martial is to hold the trial of the delinquent concerned. Therefore, a decision that a particular delinquent should be tried is necessarily implied in the convening of the General Court Martial. This aspect of the matter will be clear by reference to Rule 37 of the Army Rules, which is as under:

37. Convening of General and District Court Martial.--(1) An officer before convening a general or district Court Martial shall first satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.

(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court martial which he proposes to convene.

(3) The officer convening a Court Martial shall appoint or detail the officers to form the court and may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.

(4) The officer convening a court martial shall furnish to the senior member of the court with the original charge-sheet on which the accused is to be tried and, where no judge-advocate has been appointed, also with a copy of the summary or abstract of evidence and the order for the assembly of the Court Martial. He shall also send, to all the other members, copies of the charge-sheet and to the judge-advocate, when one has been appointed, a copy of the charge-sheet and a copy of the summary or abstract of evidence.

58. All the provisions of this rule clearly point out to the fact that before the convening of a Court Martial the officer doing so has first to satisfy himself that the charges are required to be tried by the said court.

59. Even otherwise, it is found that the Chief Engineer is the disciplinary authority of the Petitioners. In this connection reference should again be made to Annexure 7 which prescribes the disciplinary powers exercisable by the officers of the Border Roads Organisation in respect of the G.R.E.F. personnel. Item (b) of the table given therein shows that the powers of a division or brigade commander are to be exercised by the Chief Engineer. Para 20 of the Border Roads Regulations prescribes as under:

The disciplinary powers, under the Army Act, 1950, of the officers of the General Reserve Engineer Force in respect of Service personnel are laid down in Annexure 2.

Annexure 2, to which para 20 makes a reference, indicates disciplinary powers exercisable by the officers of the Border Roads Organisation in respect of the service personnel. Clause (e) of item No. 1 thereof shows that powers of a Division Commander under Army Act Section 84 are to be exercised by the Chief Engineer. The remarks column with reference to this clause states as under:

He will exercise these powers by virtue of having been empowered to convene a G.C.M. vide (f) below.

Clause (f) shows that the powers to convene and confirm General Court Martial is to be exercised by the Chief Engineer and the remarks column thereof says as under:

Courts Martial Warrants (A-l and A-3) issued under Sections 109 and 154.

All these provisions clearly indicate that a Division Commanders powers are to be exercised by a Chief Engineer. Reference to Section 84 of the Army Act further shows that an officer empowered to convene a General Court Martial can award any one or more sentences specified therein. This makes it further clear that the Chief Engineer is the person who not only can convene a Court Martial but can also act as a disciplinary authority who can order the trial of an officer. Here it should be noted that the word officer is defined in Clause (xviii) of Section 3 of the Army Act. This definition contains Clauses (a) to (f). Schedule B to S.R.O. No. 329 makes the addition of the following Clause (g) to this section as under:

(g) A person belonging to the General Reserve Engineer Force holding therein a position equivalent to that of an officer of the Regular Army who is for the time being subject to this Act.

This definition shows that a person holding a position equivalent to an officer of the Regular Army, though serving in G.R.E.F., is also an officer within the meaning of Clause (xviii) of Section 3. Now, annexure 6 of para No. 33 of the Border Roads Regulations shows the equivalent ranks in the G.R.E.F. and the regular Army for the purpose of Army Act, 1950. According to this Annexure an Executive Engineer serving in the G.R.E.F. is equivalent to a Major in the Regular Army. A Major is below the rank of Lieutenant Colonel and, therefore, under the provisions of Section 84 of the Army Act a Chief Engineer who can convene a Court Martial can impose the punishments prescribed in Section 84 on the Petitioners whose equivalent rank is below the rank of a Lieutenant Colonel in the Army. These facts further show that even if it is held that the trial of the Petitioners could have been ordered only by a "competent disciplinary" authority, the Chief Engineer is the disciplinary authority so far as the Petitioners are concerned, and hence, the trial ordered by him is quite competent.

60. The above discussion disposes of the points Nos. 3 and 4. We shall now proceed to consider point No. 5 which raises the contention that S.R.O. No. 329 and 330 are ultra vires the powers of the Central Government.

61. In the foregoing portion of this judgment we have already referred to the provisions of Section 4 of the Army Act. The S.R.Os. in question are framed by the Central Government by virtue of these powers, and the learned Advocates of the Petitioners have not been able to show how these S.R.Os. are ultra vires the powers of the Central Government. Therefore, even this point is decided against them.

62. So far as point No. 6 is concerned, the learned Advocates of the Petitioner put reliance upon a secret letter issued by the Army Headquarters on 1-1-1964 regarding the legal position of the civilians serving with the Army. Clause (b) of para 8 of that letter says that civil offiences triable under the Army Act Section 69 will be left for trial by criminal courts unless such trial is not reasonably practicable. Relying upon this, the contention which is raised on behalf of the Petitioners is that in this case also the trial of the Petitioners should have been left to the criminal court and should not have been ordered to be conducted by the Court Martial. Though the letter in question is a secret letter the department has produced the copies thereof before us with a view to enable us to decide the above contention of the Petitioners. These copies show that the letter in question applies only to the civilian personnel serving with the Regular Army. This is evident by reference to para 3 of the letter. The Petitioners are not serving with the Regular Army, and, therefore, the letter has no application to their case. Moreover, even Clause (b) of para 8 on which reliance is placed does not contemplate that in all cases civil offences are triable by criminal courts, because, it contemplates cases where trial by Court Martial can be ordered when in the opinion of the authority concerned the trial by civil courts is not reasonably practicable. Under these circumstances, it cannot be said that the Petitioners had any right either to be governed by the contents of this letter or to be tried by civil courts even though such a trial was not found reasonably practicable.

63. Now what remains to be decided is only the point which is raised by the learned Advocate of the Petitioner in petition No. 3 of 1976 with regard to the composition of the Court Martial. It was contended by him that the Court Martial which has tried and convicted the Petitioners was not properly constituted because it should have consisted of officers of the rank not below the rank of a Captain. Now the relevant provision in this connection is Section 113 of the Army Act as modified by Schedule B attached to S.R.O. No. 329. Section 113 of the Army Act is as under:

113. Composition of general court martial.--A general court martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of Captain.

In its application to G.R.E.F. personnel Schedule B to S.R.O. 329 makes a modification in this connection by omitting the words "each of whom has held a commission for not less than three whole years and". If we omit these words, the section as it applies to G.R.E.F. personnel reads as under:

A general court martial shall consist of not less than five officers of whom not less than four are of a rank not below that of Captain.

Rule 40 of the Army Rules also provides for the composition of the Court Martial. It is in the following terms:

40. Composition of court martial.--(1) A general court martial shall be composed, as far as seems to the convening officer practicable, of officers of different corps or departments, and in no case exclusively of officers of the corps or department to which the accused belongs.

(2) The members of a court martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available. Such opinion shall be recorded in the convening order.

(3) In no case shall an officer below the rank of captain be a member of a court martial for the trial of a field officer.

Sub-rule (1) has no application to the facts of this case because it is not the contention of any of the Petitioners that the members of the General Court Martial are exclusively officers of the department to which the accused belong. Even Sub-rule (2) has no application because it is an admitted fact that all the members of the Court Martial are officers. Even Sub-rule (3) has no application because none of the Petitioners is a field officer. However, Section 113 does require that at least four of the members of the Court Martial should not hold a rank below that of a Captain.

We find that even this requirement is fully complied with. The first member of the Court Martial is Colonel R.P. Bhandari, who is of the rank of a Colonel. The second member is Lt. Col.B.K.I. Ramakrishanan. He is also obviously of the rank above the rank of a Captain. The third, fourth and fifth members are respectively S.K. Siramayah who is an Executive Engineer, O.K. Panda who is a Medical Officer, Grade I and A.P. Badekar who is an Executive Engineer. All of these three members hold the rank of a Major and, therefore, they are holding a rank which is above the rank of a Captain. This is clear from the table of equivalent ranks given in Annexure 6 which is referred to in para 33 of Border Roads Regulations. Under these circumstances, the contention of the Petitioners that the Court Martial concerned was not properly constituted is of no substance.

64. Thus the Petitioners fail in all their contentions except that of maintainability with the result that both these petitions should be dismissed. The rule in both the petitions is accordingly discharged with costs.