Harbans Singh Rai, J.
1. In this petition under Articles 226/227 of the Constitution of India, petitioner S. P. Chadha has challenged the decision of the respondents taking away his rank of Lt. Colonel and his suspension order Annexure P. 7 attached to the writ petition.
2. He has alleged in the petition that after his commission into the Armed Forces, he served with distinction and to the satisfaction of his superior officers. Having regard to his good record of service and performance, he kept on earning his promotions in due course of his service career and was finally promoted to the rank of Selection Grade Lt Colonel, He was then posted to take over the command of 2 Sikh Light Infantry.
3. It is further stated in the petition that on the night of June 13/14,1983, when the Unit was serving at Amritsar, loss of one stem gun was reported. The local commander was directed to carry out investigation to trace the weapon. The petitioner alleged that in his capacity as Commanding Officer, he had not personally conducted the investigation. During the course of investigation, one sepoy Sital Singh had died and another Sepoy Bir Singh had sustained injuries. According to the petitioner, a preliminary investigation was carried, followed by a Court of Inquiry to enquire into the cause of death of Sepoy Sital Singh and also to determine the circumstances under which the sten gun had been lost.
4. Before the commencement of the enquiry, the petitioner was attached to HQ 15 Armed Bde under Army Instruction 106/60 (Annexure P. 1) with effect from July 7, 1983. Since the respondents were not very sure about the involvement of the petitioner, the petitioner was not ordered to relinquish the rank of Lt. Colonel held by him after 21 days of his attachment as laid down in the Army Instruction. Accordingly, the period of 21 days was extended and the petitioner was allowed to hold the rank of Lt. Colonel upto February 5, 1984. However, after February 5, 1984, the petitioner was brought down to the rank of Major on the authority of Army Instruction l/S/74 as amended by Army Instruction 2/76 (Annexure P. 3).
5. After the completion of the Court of Inquiry, the petitioner along with six persons was put to trial by General Court Martial which commenced on March 6, 1985. According to the petitioner, he along with two co-accused approached the Supreme Court of India pointing out various legal infirmities in regard to the constitution of; the Court martial, its jurisdiction and non-compliance of statutory provisions before the commencement of the General Court Martial. The Supreme Court vide order dated August 17, 1987, dismissed the writ petition as infructuous on the ground that a letter written by the respondents Has been received in the Court stating therein that the General Court Martial which had assembled on March 15, 1985, to try the petitioner and others, cannot proceed in view of the fact that one of the members has retired and a fresh Court is not available to be constituted as reference thereto is barred by limitation. The counsel for Union of India also stated that Court Martial was dissolved, and the case of the petitioner was being handed over to civil authorities for its trial by a regular criminal Court.
6. The Army Instruction l/S/74 as amended by Army Instruction 2/76 was further amended by Army Instruction 31/86 (Annexure P.4). The grievance of the petitioner is that he was still not restored the rank of Lt. Colonel though as per the Army Instruction on the basis of which he was reverted, lays down that if a person brought down in the rank for progressing the disciplinary proceedings is acquitted or is not brought to trial, he is to be granted back his acting rack and that acting rank will be deemed to have been held by him continuously from the date he relinquished it. The petitioner, therefore, alleges that since he was not brought to trial, the rank of Lt. Colonel should be restored to him.
7. In the reply filed by the respondents, the averments made in paragraphs Nos. 3 and 4 of the writ petition are denied. In the reply, it is alleged that the loss of sten gun was reported on the night of June 12/13, 1983. Investigations to trace the lost gun were initiated under the direct orders control and in the presence of the petitioner which resulted in the death of Sepoy Sital Singh and grievous injuries to another on account of torture. After the death of Sepoy Sital Singh under suspicious circumstances, a Court of enquiry was ordered. The petitioner was attached on July 7, 1983, to Headquarters 15 Artillery Brigade However, it was not disputed that the petitioner was holding the rank of Lt. Colonel upto February 5, 1984 'and that he was reverted only on the authority of Army Instruction for progressing the disciplinary case against him. The respondents t ok a stand that the petitioner could not be given back the rank as the case against the petitioner bad not been finally closed and it had been handed over to civil authorities for trial by a regular Criminal Court.
8. To counter the stand taken by the respondents, the petitioner filed rejoinder to show that no trial of the petitioner before a regular criminal Court is pending. According to the petitioner, the police have also rendered the report of the case as untraced, a copy of which is annexed with the rejoinder as Annexure P. 10. The petitioner also annexed with the rejoinder his posting order to show that he stood exonerated of the allegations Accordingly, it is contended that since he has not been brought to trial and cannot even be brought to trial as per the statement made by respondents before the Supreme Court, the petitioner was entitled to the re-grant of the rank in terms of para 7(b) of Army Instruction 31/86. .
9. I have heard the learned counsel for the parties and gone through the record. .
10. The learned counsel for the petitioner contended that once the Army authorities have exercised their discretion under Section 125 of the Army Act and taken over the case from the ordinary criminal Court they subsequently cannot send back the case to the criminal Court again, for trial. Moreover, in this case, even no criminal case is mending against the petitioner as per the police report. According to the counsel for the petitioner, even if a criminal case is pending against the petitioner, that is no bar to the re-grant of the acting rank taken away from the petitioner.
11. The learned counsel for the respondents could not show me any provision under which the case once claimed for trial from civil authorities for trial under the Army Act could be handed back for trial once the trial under the Act was not opened or possible.
12. Once a decision is taken that the petitioner cannot be brought to trial under the Army Act, the necessary consequences that follow on account of this, are that he is required to be re granted the rank from the date he was made, to lose the same. The re-grant of the rank is related to the non-holding of the trial as is clear from the words 'or not brought to trial' appearing in para 7(b) of Army Instruction 31/86 Though the respondents took stand before the Supreme Court that the case against the petitioner has been handed over to civil authorities for trial, yet they could not draw my attention to any of the revisions in which the case once claimed for trial under the Army Act can be handed back to civil authorities for ordinary trial. Once it was submitted before the Supreme Court that the trial under the Army Act was not contemplated and the one in progress was dissolved, then the trial of the petitioner under the Army Act normally is not possible.
13. The challenge to the order of suspension of the petitioner was on the ground that once the attachment had been done under the Army Instruction the suspension cannot be .resorted to. Even otherwise, the suspension order is deemed to have been revoked on account of the posting order issued in respect of the petitioner Though it was stated that the posting order has been held in abeyance, yet no order was placed on record of this petition. 1 am of the opinion that once the petitioner has been attached, he cannot be suspended thereafter.
13. In view of the above discussion, this writ petition is allowed and it is declared that the petitioner continues to hold the rank of Lt. Colonel continuously with effect from February 5,1984, with all consequential benefits It is further ordered that the petitioner be restored to the acting rank of Lt. Colonel which was taken away from him and he should be paid the arrears of salary of the acting rank of Lt. Colonel within four months from the date of this order along with interest at the rate of 12 per cent per annum. The suspension order of the petitioner Annexure P.7 is also quashed. In the peculiar circumstances of the case, there shall be no order as to costs.