1. The present appeal is directed against the findings and order dated 13.09.2008 passed by General Court Martial whereby holding the appellant guilty for misconduct and sentencing him to be dismissed from service. Consequential relief.s have also been sought by the petitioner. Preliminary objection has been raised from the side of the UOI that this petition is not maintainable as being premature. Because the findings and the sentence awarded by GCM are still awaiting confirmation from the Chief of the Army Staff and so no validity can be attached to such findings or order. When the orders have not yet been promulgated there is no reason for the petitioner to have felt aggrieved from such findings/ order. It has also been submitted that the Chief of the Army Staff could not exercise his powers under Section 153 of the Army Act because of the undertaking given from the side of the respondents in the TP Civil Appeal (17/09) in Rajasthan High Court on 17.01.2009 to the effect that âtill the matter is heard, i.e.21.01.2009, the order of GCM shall not be confirmed.. It is also submitted that the said appeal could not come up for hearing and so still the respondents felt it to be their duty to stick to the undertaking given by them in the High Court.
2. The question arises as to how far the appeal against the finding and the order dated 13.09.2009 is maintainable. In that regard learned Counsel for the petitioner has raised the point that Armed Forces Tribunal Act, 2007 (The Act), in particular Section 15, gives unfettered powers to the Tribunal in relation to appeal against any order, decision, finding or sentence passed by Court Martial. The word âexpresslyâ which is employed in Section 15 indicates only those exceptions which are otherwise provided in the Act would effect the jurisdiction of the Tribunal and the maintainability of the appeal cannot be considered by borrowing the provisions of other statutes. To the contrary from the side of Union of India, it is submitted that Sub Section (1) of Section 15 cannot be read in isolation. The right to appeal has been given to the aggrieved person u/s.15(2) of the Act. Again it is urged by Brig. T.Prashad, Dy.JAG, SWC representing Union of India that findings and the sentence so awarded by the GCM are still awaiting final orders/confirmation from the Chief of Army Staff and as per the arrangement made u/s.153 of the Army Act, no validity can be attached to the findings and sentence until the confirmation order is passed. It is also said that no cause of action has accrued to the petitioner from the findings and sentence when they are unenforceable or unexercisable. The petitioner is also said to have not suffered any wrong or injury and so there could be no reason for him to have any grievance from that finding/sentence.
3. The scheme under Army Act may also be referred in this connection. The relevant chapters of the Army Act, 1950 embody a completely self contained comprehensive code specifying the various offences under that Act and prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by the Court Martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by the Court Martial, the execution of such sentences and grant of pardons, remission and suspension in respect of such sentences. This enactment may therefore constitute a special law in force conferring special jurisdiction and power on Court Martial and prescribing a special form of procedure for trial of offences under the Act. Chapter XII contains provisions relating to confirmation and revision of findings entered in sentence imposed by different categories of Court Martial. It shall be profitable to quote Section 153 of the Army Act as under:
Finding and sentence not valid, unless confirmed- No finding or sentence of a general, district or summary general, court-martial shall be valid except so far as it may be confirmed as provided by this Act.
4. The words âno finding or sentence ...... shall be valid except so far as it may be confirmedâ which are employed in Section 153 denoting these exceptions is indicative of the legislative mandate that the finding of the GCM until confirmed cannot be given effect. Be thereto which would mean that such finding could not be enforceable unless it is confirmed. If such provisions of Army Act 153 are read in the context of the interdict contained in Section 39 of the Tribunal Act, position becomes clear that when it is provided differently in clear and unambiguous terms in the Act, that would have overriding effect. In other words, unless it is positively and specifically provided differently, the Tribunal cannot take cognizance of the findings which have no force of law. Much thrust has been laid by the Counsel for the petitioner that this Act is self contend and the powers given u/s.15(1) if given a restricted meaning would frustrate the spirit of the legislation. As has already been mentioned that if both the sub sections (1) and (2) of Section 15 are read together, it would be clear that only the aggrieved person can bring appeal. Since the findings and order of the Court Martial have not yet been confirmed there appears to be no reason for the petitioner to have contended his grievances.
5. The finding and sentence is not enforceable. We may refer certain situation by way of illustration to demonstrate when a decree/ order may not be enforceable on the date when it is passed. Some such illustrations have been quoted by the Apex Court in the case of Anonyasami Vs. Arulanandam Pillai (AIR 2001 sc Page 2967-Para 13) as under :
There may, however, be situations in which a decree may not enforceable on the date it is passed. First, a case where a decree is not executable until the happening of a given contingency, for example, when a decree for recovery of possession of immovable property directs that it shall not be executed till the standing crop is harvested, in such a case time will not begin to run until harvesting of the crop and the decree becomes enforceable from that date and not from the date of the judgment/decree. But where no extraneous event is to happen on the fulfilment of which alone the decree can be executed it is not a conditional decree and is capable of execution from the very date it is passed (Yeshwant Deorao Deshmukh Vs. Walchand Ramchand Kothari (AIR 1951 SC 16). Secondly, when there is a legislative bar for the execution of a decree then enforceability will commence when the bar ceases. Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the Court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande Vs.Chandrakant Shankar Lokhande (1995) 3 SCC 413) have to be understood. These observations do not apply.
6. In view of the arrangement made under section 153 of the Army Act, there is legislative bar to give any effect till the findings of GCM are confirmed by the appropriate authorities. That bar has not yet ceased. Appeal is, therefore, dismissed as premature.