Karnataka High Court
Wg Cdr Alok Kumar Thakur vs Union Of India By Its Secretary on 15 February, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 15TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.44394 OF 2012(S-DIS)
BETWEEN:
WG CDR Alok Kumar Thakur
Aged about 37 years
S/o Sri Prem Narain Thakur
R/o D-6/30, Kendriya Vihar,
Yelahanka,
Bangalore - 560 064. ...PETITIONER
(By Sri.Ashok Harnahalli, Senior Advocate
for Sri.Col.Bhupinder Singh, Advocate)
AND:
1. Union of India
By its Secretary,
Ministry of Defence,
South Block,
DHQ PO New Delhi - 110 011.
2. The Chief of the Air Staff
Air Headquarters Vayu Bhawan
Rafi Marg, New Delhi - 110 106.
3. Air Officer Commanding-in-Chief
HQ Training Command,
2
Indian Air Force, C/o 56 APO.
4. The General Court Martial
Through GP Capt MG Shetty,
(17664), AE (L)
The Presiding Officer
C/o AFTC, Air Force Station Jalahalli
Bangalore - 560 013. ...RESPONDENTS
(By Sri Ambaji Rao Najre, Advocate for R1 to R4)
*****
This Writ Petition filed under articles 226 and 227
of the Constitution of India praying to direct the R1 &
R2 for setting aside the findings & sentence of General
Court Martial passed by the R4, (GCM) dated
24.4.2012, the same is produced & attached as
Annexure-A, consequentially setting aside the order
passed by the R2, (confirming authority) directing
reassembly of General Court Martial dated 17.9.2012, a
copy of the same is produced & attached as Annexure-
A1 etc.,
This Writ Petition coming on for orders this day,
the Court made the following:-
ORDER
At the request of learned counsels, the matter is taken up for final disposal.
2. The case of the petitioner is that he was granted a permanent post in the Indian Air Force on 3 20.12.1997. Thereafter, he was promoted from time to time and he is presently working as a Wing Commander. He was involved in various activities of the Indian Air Force and was assigned various important responsibilities.
3. It is his case that in the Aero India Show 2009 as well as in the Aero India Show 2011, which was organized by the respondent, the petitioner was assigned important responsibilities. During this period, the petitioner was sought to be implicated by one Shri.Posina V. Rao, Deputy Delegate, DASSAULT International on the allegation that the petitioner demanded and accepted illegal gratification and other allegations as spelt out in the charge sheet.
4. A reply was furnished by the petitioner. Thereafter, the Court of Inquiry under the provisions of Air Force Rule - 154, was ordered on 15.02.2011. The 4 Court of Inquiry was convened with the specific terms of reference of investigating the alleged incident involving the service of the petitioner.
5. The statement of various persons were recorded. A copy of the charge is produced at Annexure
- C to the writ petition. As many as eight charges were leveled against the petitioner. The respondents thereafter convened the General Court Martial under the provisions of Section - 110 of the Air Force Act, which commenced its proceedings from 14.02.2012. The General Court Martial held the petitioner guilty of the 3rd, 5th, 6th and 8th charges and held that there are no material so far as other charges are concerned. Based on such evidence, the General Court Martial sentenced him to dismissal of services from 24.04.2012.
6. Aggrieved by such findings and sentence by General Court Martial, the petitioner preferred two 5 representations under Section-161 (1) of Air Force Act, 1950 and two supplementary petitions. After the receipt of the appeal from the petitioner, the respondents issued the impugned order dated 17.09.2012, for reassembly of the General Court Martial without quoting any proper or legal reasons. No speaking order was passed with regard to various issues raised by the petitioner in his pre-confirmation petition.
7. It is the case of the petitioner that the second respondent decided to direct the General Court Martial to record brief reasons in support of the findings of the General Court Martial. That such an order is unsustainable. Aggrieved by this order, the present petition is filed seeking a writ of certiorari to set-aside the findings in the order of General Court Martial vide Annexure - A and consequently to set-aside the order passed by the second respondent, namely, confirming authority, directing reassembly of General Court Martial 6 proceedings and for a writ of mandamus to consider the representation of the petitioner.
8. Shri. Ashok Haranahalli, the learned Senior Counsel appearing on behalf of the petitioner's counsel submits that the impugned order is bad in law and liable to be set-aside. That the impugned order is opposed to law. That such an order is unsustainable and that the matter could not have been sent back to the General Court Martial only for the purpose of recording its reasons in support of its findings. That the impugned order upholding the findings of the General Court Martial and remitting the matter only to seek substitution of reasons, is unlawful and therefore, pleads that the impugned order is bad in law. That the respondent had no authority to pass the order. That it is erroneous for the confirming authority to only seek substitution of reasons in support of its case. This has lead to miscarriage of justice.
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9. The learned counsel relies upon the decisions reported by the Armed Forces Tribunal, Jaipur in O.A.No.152/2009, holding that such an order is a non- executable order and therefore an appeal against such an order is premature. The judgment of the Armed Forces Tribunal, at Jaipur in Miscellaneous Application No.15/2010, which is also on the same lines, by holding that the appeal is premature. In the judgment reported in AIR 1978 SC 851 in the case of Mohinder Singh Gill and Another vs. The Chief Election Commissioner, to contend that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. Therefore, it is contended that the Tribunal has no jurisdiction to entertain his plea, inasmuch as the Tribunal has already held that such an order is a non-executable order and the appeal is 8 premature. Therefore, any appeal filed before it is pre- mature and cannot be entertained. That the impugned order runs contrary to the very fundamentals of law. Hence it is the writ court alone that could entertain such a plea.
10. The learned counsel for the respondents defends the impugned order. He contends that there is no error committed by the authority while passing the impugned order. That firstly in terms of the provisions of Section - 15 of Arms Forces Tribunal Act 2007, the appropriate Court to decide such matters is the Tribunal as set-up under the Act. The provision of Law is very clear, which is referable to any order that has been passed under the Act. Various provisions of the Act are also relied upon to contend that this Court cannot exercise any jurisdiction in view of the alternate remedy available under the Armed Forces Act. 9
11. In support of his case, he relies on the judgment of the Armed Forces Tribunal, Principal Bench, New Delhi in O.A. No. 471/2010, in the case of Ex-Hav. Parameshwar Ram vs. Union of India and Others, to contend that, it was held that the questions referred to are answered by holding that Section - 15 would override the Section - 164 of the Army Act, 1950 and the Tribunal has full jurisdiction to entertain the appeal notwithstanding any petition filed by the aggrieved party under section - 164 of the Army Act, 1950 and the power under Section - 15 of the Armed Forces Tribunal Act, 2007 is not dependent on the statutory representation under Section - 164(2) of the Army Act, 1950, etc. Therefore, it is pleaded that the Tribunal has exclusive jurisdiction to try such matters under Section - 15 of the Armed Forces Tribunal Act, 2007.
12. Heard learned Counsels and examined the records.
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13. The primary contention of the respondents is on the maintainability of the writ petition. Reliance is placed on Section - 15 of the Armed Forces Tribunal Act, 2007, which reads as follows:
"15. Jurisdiction, powers and authority in matters of appeal against court martial.-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto.
(2) Any person aggrieved by an order, decision, finding or sentence passed by a court-martial may prefer an appeal in such form, manner and within such time as may be prescribed.
(3) The Tribunal shall have power to grant bail to any person accused of an offence and 11 in military custody, with or without any conditions which it considers necessary:
Provided that no accused person shall be so released if there appears reasonable ground for believing that the has been guilty of an offence punishable with death or imprisonment for life."
14. It is therefore pleaded that the impugned order would stand referable to the jurisdiction of the Tribunal to pass such an order. The provisions of Section - 33 of the Act is also referred to with regard to exercising of jurisdiction of the Tribunal to try matters in relation to the service matters coming under the Armed Forces Tribunal Act, 2007. The provisions of Section - 34, relates to transfer of pending cases. However, it would not be applicable, since the petition has been filed after the appointed date. Therefore, the question of transferring the petition would not arise for consideration.
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15. By placing reliance on Section - 15 of the Armed Forces Tribunal Act, 2007, it is pleaded that it is the Tribunal alone that has jurisdiction. In support of his case, reliance is placed on the order passed by the Arm Forces Tribunal, Delhi in O.A. No.471/2010 wherein various provisions of the Act were considered by the Bench therein. The questions that were referred to the Bench for consideration were:
i. The scope of Section - 15 of the Armed Forces Tribunal Act, 2007.
ii. Whether the powers of the Tribunal under Section - 15 of the Act are dependent on the statutory representation under Section - 164(2) of the Army Act?
iii. Whether the decision on the statutory representation by the competent authority would play a bar on the statutory powers conferred on the Tribunal under Section - 15 of the Act?
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16. However, necessarily in so far as the instant case is concerned, the scope of Section - 15 of the Armed Forces Tribunal Act, 2007 alone would be relevant. In so considering the said questions, the Tribunal was of the view that the powers under Section
- 15 of the said Armed Forces Tribunal Act, 2007 would override the provisions of Section - 164 of the Arms Act 1950. Therefore, the Tribunal in terms of Section - 15 of Armed Forces Tribunal Act, 2007 has full jurisdiction to entertain the appeal notwithstanding any petition filed by aggrieved party under section - 164 of the Army Act, 1950. In support of the case various judgments are relied upon.
17. The learned counsel for the petitioners would contend that the power under Section - 164 of the Arms Act 1950 is exercisable only insofar as any order or sentence to be passed by a Court Martial. In the instant 14 case, no such order has been passed by the Court Martial. The order that is sought to be impugned is that portion of the order, which reads as follows:
"11. AND WHEREAS, while not intending to interfere with the finding of the Court on the charges, the Confirming Authority under Section 161(1) of the Air Force Act, 1950 hereby directs the said General Court Martial to re-assemble with the same composition at Air Force Station, Yelahanka, Bangalore at 1000 h on 10 October 2012 for the purpose of recording brief reasons in support of its finding;
18. It is therefore contended that such an order could not have been passed by the confirming authority and that it is not an executable order for the petitioner to be aggrieved by and thereby to file an appeal. It is their contention that the confirming authority should have either accepted or rejected the same. It is only then such an order could have been entertained under 15 Section - 15 of the Armed Forces Tribunal Act, 2007 and not otherwise.
19. Reliance is placed on the decision of the Armed Forces Tribunal, Jaipur in Miscellaneous Application No.15/2010 in the case of Col. Koharwal Kamal vs. Union of India and Others and in O.A. No.152/2009 in the case of Maj.General (Retd). A.K. Lal vs. The Union of India. The Tribunal therein was of the view that the petition is premature. It would not have any jurisdiction until and unless an executable order is passed by the General Court Martial or otherwise. The Armed Forces Tribunal would not have jurisdiction to entertain such order.
20. I'am of the considered view that the question whether it is a executable order or an order that is premature or erroneous in terms of law is still within the jurisdiction of the Armed Forces Tribunal alone. 16 Only because a contention is advanced that such an order is erroneous or that such an order is opposed to the established principles of law would not by itself confer jurisdiction on this Court to entertain this petition. The impugned order, even though to be questioned on the ground of its maintainability or even on the ground of violation of law is well within the jurisdiction of the Tribunal.
21. Merely because it is contended that the order is without authority of law, would not by itself confer any jurisdiction on this Court to override the provisions of Section - 15 of the Armed Forces Tribunal Act, 2007. It is therefore imminent that in terms of Section - 15 of the Act, it is Armed Forces Tribunal alone that would have jurisdiction to entertain the appeal. Whether the Tribunal would hold that the appeal is premature or otherwise is also within its jurisdiction. 17
22. The further limb of argument is that the impugned order cannot be questioned before the Arms Force Tribunal, since the Tribunals in such matters have since taken a decision that such an order is premature. It would leave no forum for the petitioner to agitate his ground. Therefore, it is only under Article- 226 of the Constitution of India that the Court can interfere in such an order.
23. The contention of the petitioner's counsel being that the impugned order is premature as held by the various orders of the Tribunal, if to be accepted as applicable to this case also, in that event, this Court also would not have jurisdiction to entertain the appeal when the finding is recorded that the petition is itself premature. It cannot be held that the petition is well within Law so far as this court is concerned, but premature for other forums.
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24. So far as a petition under Article - 226 is concerned, if a petition is premature so far as the Tribunal is concerned, it is premature so far as this Court is also concerned. Hence, the contention of the petitioner's by placing reliance on the aforesaid order to hold that the petition is premature and that there is no alternative remedy is inappropriate. Such a cause would necessarily have to be agitated before the Tribunal. In that behalf, even if the Tribunal holds that the order is premature, necessarily it would presuppose that there is no legal injury that is caused to the petitioner.
25. Under these circumstances, in view of the contentions advanced, that the matter is premature, this Court cannot consider this petition by holding that it is not premature.
26. The next contention urged by the petitioner's counsel is that the very basic fundamentals of Law has 19 been given a go by. That the matter is seized by the confirming authority in order to confirm the order of General Court Martial. The jurisdiction it had was either to confirm or not to confirm the same. If the findings, were unacceptable it could have passed an order to that effect. However, that has not happened. The confirming authority while passing the impugned order as referred to para - 11 in its order has stated that it does not interfere with the finding of the Court on the charges and directed the general court martial to reassemble for the purpose of recording brief reasons in support of its findings, which is opposed to the very basic fundamentals of Law. That when the matter is sought to be agitated before the confirming authority, the findings cannot be confirmed and the matter be remanded only for the purpose of recording reasons for the same. 20
27. On considering the contentions and the reasons assigned herein above, this too is a matter that is required to be considered by the Air Force Tribunal. It cannot be said that the Tribunal would not have jurisdiction to pass such orders as to hold that the impugned order is bad in law. It has every authority in terms of Section - 15 of the Armed Forces Act, 2007 to come to such a finding. Even assuming that such a contention of the petitioner is to be accepted, that the impugned order is opposed to the basic canons of law, that by itself would not give jurisdiction to this Court to exercise a jurisdiction that is vested under Section - 15 of the Act on the Tribunal.
28. If this were to be so, every act that is complained of would necessarily be sought to be entertained under Article - 226 of the Constitution of India. When the parliament has specifically created a Statute for dealing with matters of the Arms Forces are 21 concerned, it is for such Tribunals alone to consider questions and this question would include the violation of the principles of law also. If there is a violation of the basic fundamentals of law it cannot be said that it is only in a petition under Article - 226 of the Constitution of India, that such a finding can be recorded. It can also be done by the Tribunal under the Armed Forces Act. Therefore I'am of the considered view that this contention is unaccepatable.
29. Under these circumstances, I'am of the considered view that the present petition is not maintainable and is accordingly dismissed, with a liberty to the petitioner to approach the Armed Forces Tribunal, for necessary relief.
30. Further, the learned counsel for the petitioner contends that a reasonable time may be accorded to him in order to prefer such an appeal before the 22 Tribunal. That he is under order of transfers. In terms of the order dated 02.11.2012 an interim order was granted for a period of two weeks to stay the impugned order dated 17.09.2012, passed by the second respondent, in terms of Annexure - A1. The interim order was continued by subsequent orders. Therefore, he pleads that the interim order be continued and a reasonable opportunity be given to file an appeal.
31. The learned counsel for the respondent contends that the same may be granted provided a time limit is fixed on such an action.
32. On considering the contentions, I'am of the considered view that the interim order granted by this Court be extended by a further period. In view of the fact that the petitioner is posted in Jammu And Kashmir, it will be just and proper to grant a period of eight weeks. Therefore, the interim order would stand 23 extended by a further period of eight weeks from today. The writ petition is disposed off with the aforesaid observations. If an appeal is filed, the Tribunal may consider the same on merits in accordance with law. If an interim order is sought for, the Tribunal may consider the same on merits. It is the exclusive jurisdiction and power of the Tribunal to consider not only the appeal but the interim application also.
32. Consequently, the application in I.A. 1/2013 is unnecessary for consideration and stands dismissed.
33. Writ Petition disposed off with the above observation.
Sd/-
JUDGE JJ