Rajasthan High Court - Jaipur
V.S. Tiwari And Ors. vs Union Of India (Uoi) And Ors. on 13 May, 2003
Equivalent citations: 2004CRILJ202, RLW2003(3)RAJ1750, 2003(3)WLC761
JUDGMENT Garg, J.
1. The point for consideration in this writ petition which has arisen from the preliminary objection taken by the respondents is whether the statutory remedy available to the petitioners Under Section 164(2) of the Army Act, 1950 (hereinafter referred to as "the Act of 1950"), if it is not availed, the present writ petition under Article 226 of the Constitution of India is maintainable or not.
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 16.12.2002 against the respondents with the prayer that by an appropriate writ, order or direction, the orders of award of sentences marked as Annexs. 17 to Annex. 21 passed after holding the petitioners guilty of the charges levelled against them by the Court Martial and further, the confirmation orders (Annex. 22 and Annex. 23) passed by the respondent No. 3. General Officer Commanding-in-Chief, HQs Southern Command, Pune (Maharashtra), who was confirming authority, be quashed and set aside.
3. The case of the petitioners as put forward by them in this writ petition is as follows :-
The petitioners were posted with Branch Recruitment Office, Jodhpur and they were working on different posts. The petitioner No. 1 V.S. Tiwari was working as Subedar Major and the petitioner No. 2 A.K. Singha was working as Naib Subedar and the petitioners No. 3, 4 and 5, namely, S.R. Rangrao, V. Gunasekharan and Hari Singh respectively were working as Hawaldar/Cherk.
When the petitioners were working with the respondents, they were charge-sheeted through charge-sheet Annex. 24 for various offences including for the offences under Sections 63 and 64(e) of the Act of 1950 and 34 IPC.
The sum and substance of the charges levelled against the petitioners was that all the petitioners accepted bribe from some prospective candidates and in such circumstances, the matter was reported to the Branch Recruiting Officer Col. B.S. Batra. For the purpose of verifying the position, a team of Officers searched the belonging of the petitioners and during search, a sum of Rs. 65,300/- were found.
The respondent No. 5 Commanding Officer conducted the hearing of the charges under Rule 22 of the Army Rules, 1954 (hereinafter referred to as "the Rules of 1954") and, thereafter, summary of evidence was recorded under the Rules of 1954. After recording summary of evidence, the respondent No. 5 Commanding Officer examined the matter and on being satisfied referred the matter to the higher authorities for holding General Court Martial. In such circumstances, on 14.4.2002, the respondent No. 4 Brigade Commander passed an order for convening General Court Martial and since the charges were inter-linked, all the petitioners were tried together.
The General Court Martial proceedings against the petitioners were conducted between 23.4.2002 to 16.7.2002 as per the provisions of the Act of 1950 and Rules of 1954 and all the petitioners were found guilty of the charges levelled against them and the following sentences were imposed upon them by the General Court Martial :-
S. No. Name of petitioners Sentence awarded
1.
2.
V.S. Tiwari (pet. No.1) A.K. Singha (pet. No.2) to suffer RI for 3 years and to be dismissed from service.
3.
4.
5. S.R. Rangrao (pet. No.3) V. Gunasekharan (Pet. No.4) Hari Singh (Pet. No.5) To be reduced to ranks, to suffer RI for 2 years and to be dismissed from service.
The findings and sentences recoreded by the General Court Martial against the petitioners were confirmed by the respondent No. 3 General Officer Commanding-in Chief, who was the confirming authority. Hence, this writ petition with the prayers as stated with.
In this petition, the trial and proceedings conducted by the General Court Martial have been challenged by the petitioners on various grounds mentioned in the writ petition.
A reply to the writ petition was filed by the respondents, and a preliminary objection was taken by the respondents that as per the provisions of Section 164(2) of the Act of 1950, if the petitioners had any grievance against the findings and sentences awarded by the General Court Martial, after they were being confirmed, they should move the authority superior to the confirming authority for redress and since the petitioners had statutory alternative remedy and the same was not availed by them, therefore, the present writ petition filed by the petitioners is pre-mature and not maintainable and should be dismissed on this ground alone.
4. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents on the preliminary objection raised by the respondents with regard to maintainability of the present writ petition.
5. On that preliminary objection of the respondents, the case of the petitioners is as follows :-
(i) That the petitioners had right to approach this Court under Article 226 of the Constitution of India directly as all the orders, which have been passed by the concerned authorities (respondents were wholly illegal and without jurisdiction.
(ii) That previous also, a writ petition was filed by one of the petitioners, namely. V.S. Tiwari (petitioner No. 1) before this Court being S.B. Civil Writ Petition No. 1593/02 and this Court through order Annex. 9 dated 23.5.2002 passed the following order in that writ petition :-
"Since the matter is at an interlocutory stage, I am not inclined to entertain the present writ petition at this stage. Let the matter be tried out by General Court Martial, which has been convened. However, all objections which have been raised in this writ petition, will be open to the petitioner to be raised before appropriate authority in hierarchy, and if necessary so arises, in a fresh writ petition that may be required to be filed.
The writ petition is accordingly dismissed with the above liberty."
Since in the order Annex. 9 dated 23.5.2002, it was observed by this Court that all the objections which the petitioner had taken through that writ petition, could be taken by the petitioner before appropriate authority in hierarchy and if necessary so arises, in a fresh writ petition, that may be required to be filed and since for filing a fresh writ petition, there was direction of this Court, therefore, in this background, the second writ petition is filed. Though it is another matter that it has been filed now by five persons, but it has been filed in compliance of the directions of this Court dated 23.5.2002 (Annex. 9) and in these circumstances, the present writ petition should be held to be maintainable.
(iii) That in pursuance of the directions of this Court dated 23.5.2002 (Annex. 9), the petitioner No. 1 submitted an application on 28th May, 2002, which was sent to the respondent No. 3 General Officer Commanding-in-Chief, but no action was taken on it and through Annex. 11 it was returned and in this background also, since as per the directions of this Court, the concerned authorities did not pay any heed to the application filed by the petitioner No. I therefore, in these circumstances the petitioners had to file a fresh writ petition before this Court and from this point of view also, this writ petition should be held to be maintainable.
6. Before appreciating the above contentions, the relevant provisions of Sections 164 and 165 of the Act of 1950 are quoted here :-
"164. Remedy against order, finding or sentence of court martial - (1) Any person subject to this Act who considers himself aggrieved by any order passed by court material may present a petition to the officer or authority empowered to confirm any finding or sentence of such court material, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the (Chief of the Army Staff) or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the (Chief of the Army Staff) or other officer, as the case may be, may pass such order thereon as it or he thinks fit.
165. Annulment of proceedings.- The Central Government, the (Chief of the Army Staff) or any prescribed officer may annul the proceedings of any court martial on the ground that they are illegal or unjust."
7. A similar question arises before the Madhya Pradesh High Court in Subhas Chandra Sarkar v. Union of India and Ors. (1), and by majority of two Hon'ble Judges, it was held that when a statute specifically provides remedy and there is nothing to prevent the petitioner from pursuing it, a petition for certiorari cannot be entertained merely because the petitioner apprehended that he may not get redress by following that remedy and in that case, it was held that a petition under Article 226 of the Constitution of India before seeking remedy under Section 164(2) of the Act of 1950 is pre-mature and not maintainable.
8. I am also in agreement with the views expressed by the two Hon'ble Judges of the Madhya Pradesh High Court in the case of Subhas Chandra Sarkar (supra)
9. From a catena of judgments of the Hon'ble Supreme Court, it is a well established proposition of law that when an alternative remedy and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ.
10. Article 226 of the Constitution of India is not intended to circumvent statutory procedures and hence, where statutory remedies are available, a petition under Article 226 should not be entertained.
11. When a statutory remedy is provided under the Act Itself, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution of India. The High Court may, in the exercise of its discretion, decline to interfere until all the statutory remedies are exhausted including administrative representation.
12. This Court is also aware that there are atleast two well established exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In the second place, where the impugned order has been made in violation of the principles of natural justice.
13. But I am of the opinion that the present case does not fall in any of the above two exceptions.
14. In the present case, Sub-section (2) of Section 164 of the Act of 1950 clearly provides that if any person, who considers himself aggrieved by a finding or sentence of any court-material, which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and thus, when a statutory remedy is provided under the Act of 1950 itself, the petitioners should have first availed of that statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution of India and there is nothing to prevent them from purusing it.
15. It is also significant that Section 165 of the Act of 1950 provides that jurisdiction of the authority hearing representation under Section 165 of the Act of 1950 is wide enough to consider the findings of the Court Martial in all its aspects even if they are unjust and illegal.
16. Therefore, even if there is any illegality in the impugned orders, as alleged by the petitioners, first they should have been challenged before the authorities mentioned in Section 164(2) and 165 of the Act of 1950.
17. Thus, it is held that the present petitioners should have first availed of the statutory remedy available to them under the provisions of Section 164 (2) of the Act of 1950 before approaching this Court under Article 226 of the Constitution of India and since they have not availed of the statutory remedy under Section 164(2) of the Act of 1950, therefore, this writ petition under Article 226 of the Constitution of India is premature and not maintainable and liable to be dismissed on that ground alone.
18. So far as the order Annex. 9 dated 23.5.2002 passed by this Court in S.B. Civil Writ Petition No. 1593/2002 is concerned, in my considered opinion, that order nowhere states that as soon as the petitioners are punished by the General Court Martial and their sentences are confirmed, they can come to this Court directly without availing of the statutory remedy provided under Section 164(2) of the Act of 1950 and, therefore, the said order Annex. 9 does not confer any right on the petitioners to approach this Court under Article 226 of the Constitution of India directly without first availing statutory remedy as provided under Section 164(2) of the Act of 1950.
19. So far as the law laid down in Lt. Col. Prithvi Pal Singh Bedi v. Union of India and Ors. (2), relied upon by the learned counsel for the petitioners is concerned, it has got no bearing on the point of maintainability of the present writ petition and thus, it would not be helpful to the petitioners.
20. For the reasons stated above, this writ petition deserves to be dismissed as not maintainable being pre-mature on the ground that the petitioners had alternative statutory remedy under the provisions of Section 164(2) of the Act of 1950.
Accordingly, this writ petition filed by the petitioners is dismissed, as being not maintainable and pre-mature.