Wing Commander Rajiv Arora Vs. Union and India (Uoi) and ors. - Court Judgment

Excerpt:
air force act, 1950.sections 109 & 110 - constitution of india, 1950--article 226--judicial review of general court martial proceedings- scope of--principles governing the exercise of extra-ordinary jurisdiction of high court--the general court marital convened by commanding-in-chief after examining the entire matter--communication of order by wing commander--held that the general court martial was properly convened--quantum and quality of evidence before the general court martial is beyond the purview of judicial review in writ jurisdiction--no specific instance of violation of principle of natural justice pointed out--the writ court cannot act as appellate court--writ petition, rejected. - - 05, used offensive language to sh. sixth charge section 45 air force act, 1950 behaving in.....order and air force disciplinein that he, at new delhi on the night of 28/29 apr 05, improperly introduced himself as husband of mrs. ambika singhania to head constatble ranbir and constable dharmender, police personnel of delhi; police, knowing such statement to be false.second chargesection 45 air force act, 1950behaving in a manner unbecoming the position and character of an officerin that he, at new delhi, on the night of 28/29 apr. 05, used offensive language to sh. dependra pathak deputy commissioner of police, south. west district, new delhi and behaved in a riotous manner.third chargesection 48 airforce act, 1959intoxicationin that, he, at new delhi on the night of 28/29 apr 05, was found in a state of intoxication.fourth chargesection 48 air force act, 1950intoxicationin that he,.....

Judgment:
ORDER

AND AIR FORCE DISCIPLINE

In that he, at New Delhi on the night of 28/29 Apr 05, improperly introduced himself as husband of Mrs. Ambika Singhania to Head Constatble Ranbir and Constable Dharmender, Police Personnel of Delhi; Police, knowing such statement to be false.

SECOND CHARGE

SECTION 45 AIR

FORCE ACT, 1950

BEHAVING IN A MANNER UNBECOMING THE POSITION AND CHARACTER OF AN OFFICER

In that he, at New Delhi, on the night of 28/29 Apr. 05, used offensive language to Sh. Dependra Pathak Deputy Commissioner of Police, South. West District, New Delhi and behaved in a riotous manner.

THIRD CHARGE

SECTION 48 AIR

FORCE ACT, 1959

INTOXICATION

In that, he, at New Delhi on the night of 28/29 Apr 05, was found in a state of intoxication.

FOURTH CHARGE

SECTION 48 AIR

FORCE ACT, 1950

INTOXICATION

In that he, at Gandhinagar (Gujarat) on 06 Jan 06, was found in a state of intoxication.

FIFTH CHARGE

SECTION 40(a) AIR

FORCE ACT, 1950

ASSAULTING HIS SUPERIOR OFFICER

In that he, at Gandhinagar (Gujarat), on 06 Jan 06, assaulted Gp Capt SS Kothari (16788) F(P) of Headquarter South Western Air Command, Indian Air Force.

SIXTH CHARGE

SECTION 45 AIR FORCE ACT, 1950

BEHAVING IN A MANNER UNBECOMING THE POSITION AND CHARACTER OF AN OFFICER

In that he, at Gandhinagar (Gujarat), on 06 Jan 06, at Officers' Mess Headquarter South Western Air Command, Indian Air Force, used offensive language to 707518 Sergeant Narender Kumar Catering Assistant of Headquarter South Western Air Command, Indian Air Force and behaved in a riotous manner.

SEVENTH CHARGE

SECTION 47 AIR

FORCE ACT, 1950

(ALTERNATIVE TO SIXTH CHARGE)

ILL-TREATING A PERSON SUBJECT TO THE AIR FORCE ACT BEING HIS SUBORDINATE IN RANK

In that he, at Gandhinagar (Gujarat) on 06 Jan 06, at Officers' Mess Headquarter South Western Air Command, Indian Air Force, ill-treated 707518 Sergeant Narender Kumar Catering Assistant of Headquarter South Western Air Command, Indian Air Force.

17. The General Court Martial proceedings were commenced on 17.5.06.According to the petitioner he had extended his full cooperation to the General Court Martial proceedings. It is stated that the proceedings of the General Court Martial are in violation of the Air Force Rules and principles of natural justice. Various legal and factual objections raised by the petitioner were ignored in those proceedings. The proceedings of the General Court Martial concluded on 13.6.06 and the petitioner was awarded the sentence of dismissal from service, however the same, as yet, had not been confirmed. The petitioner, thus, questions the legality of constitution of the GCM, the procedure adopted, its findings, conclusion and punishment awarded by the General Court Martial to him, in the present writ petition.

18. In the counter affidavit, the respondents had taken up a stand that this Court had no territorial jurisdiction to entertain and decide the present writ petition inasmuch as no cause of action or part thereof has arisen within the jurisdiction of this Court, as the General Court Martial proceedings were ordered, initiated and the said Court had assembled at Gandhinagar (Gujarat). With reference to the provisions of Section 152 of the Air Force Act, 1950, it is stated that no finding or sentence of a general, district or summary general court-martial shall be valid unless the same is confirmed, as provided by this Act. It was conceded that the Court Martial proceedings have been concluded and sentence has been awarded to the petitioner but the same has not been confirmed by Chief of Air Staff, and if the petitioner has grievances of the kind referred to in the petition, he has a legal right to submit a petition under Section 161(1) of the Act which will be duly considered by the authorities prior to confirmation of the sentence. On this premise and while relying upon Division Bench judgment of this Court in the case of Wg Cdr B.D. Jena v. Union of India and Ors. CWP No 5907/2003 decided on 17th January, 2006, the bar having not been exhausted, alternative remedy to the very maintainability of the writ petition has been argued. Denying the allegations in the writ petition, it has been stated that the petitioner had submitted his application for premature retirement on the grounds of compassion and lack of career prospects and no reference was made to the request for attachment or posting for operational flying. The respondents have also denied the violation of procedure and principles of natural justice. It is stated that Wing Commander Deepak Sharma was appointed as his. Defending Officer which was detailed for the said purpose. It is submitted that the Court was constituted properly and there was due compliance of Rules 49 and 50 of the Air Force Rules, 1969 in regard to constitution of the court, maintainability and validity of charges against the accused. Wg Cdr Rawat had been detailed as a member of the GCM by the Convening Officer but he stated that he was close friend of the petitioner/accused and had an association of 32 years, thus, would not like to be associated with the general court martial proceedings initiated against the accused. In view of this and considering the plea of the petitioner, the senior most member-in-waiting GP Capt Subramaniam was inducted and Wg Cdr Rawat was discharged. The petitioner had stated that he had no objection to the constitution of the court and thereafter the Court Was duly sworn in as per Rules 53 and 54 of Air Force Rules, 1969. The petitioner was given all kinds of help and he was even examined by the medical specialist during the pendency of the General Court Martial. It was said in the said Report of the Specialist 'Clinically-No Abnormally Detected', and after the Defending Officer arrived the petitioner did participate in the GCM without any protest. Moreover, the Presiding Officer/members of the GCM had been duly sworn in and under the scheme of the Air Force Rules, there is no provision for replacement/substitution of a member of the court martial once the court has been sworn. During the pendency of the GCM, i.e. on 18.5.06, the petitioner had also filed an application raising the issue of jurisdiction and objected to the first three charges on the ground that there was no evidence; the provisions of Rules 43 and 59 were not complied with; no Court of Inquiry was established and, thus, there was violation of Rules 154 and 156 of AF Rules, 1969. Keeping in view the evidence, particularly of Sqn. Ldr. T.S. Reddy (PW-7) who had been produced as Ex-D, the said application was rejected. The petitioner was even granted an opportunity to cross-examine Sqn. Ldr. Reddy but he declined to cross-examine the said witness. No application was filed by the petitioner for calling any of the police witnesses, as such there was no violation of any rule or regulation even in this regard. Under Rule 113 of the Air Force Rule, 1969 the prosecution was entitled to examine the witnesses who had not been examined during the recording of Summary Evidence.

19. In regard to Constitution of the Court, reliance was placed by the learned Counsel appearing for the respondent on the judgment of the Supreme Court in the case of Union of India v. Major A., Hussain : AIR 1998 SC 577. In regard to objection to Constitution of the Court, it is stated by the learned Counsel that the Convening Officer had authorized OIC PI (Discipline) to sign the convening order and make endorsement on the chargesheet on his behalf. The GCM had been ordered by the convening officer and the composition of the GCM was also approved on file by him, which itself shows that it is issued by Air Marshal P.K. Mehra, AVSM, Air Officer Commanding-in-Chief, South Western Air Command and only the communication of the same was done by the staff officer. The evidence had been duly recorded. The General Court Martial had even asked the petitioner whether he would give an undertaking to examine Mrs. Ambika Singhania. This opportunity was declined by his counsel on the ground that the petitioner did not know as to when the said witness would be able to come. It is also stated that during the deliberation on the question of disqualification of Judge Advocate, the Judge Advocate continues to occupy to his place and does not withdraw front such proceedings as there is no provision in the Air Force Law for Judge Advocate to be absent for any sitting of the Court nor there is any provision replacing the Judge Advocate once the court martial has assembled. In view of the undisputed facts the writ petition of the petitioner should be dismissed.

20. On the above factual matrix of the case, the petitioner challenges the General Court Martial, its proceedings and findings, inter alia, but mainly on the following grounds:

(i) First three charges of the chargesheet before the court martial are based upon no legal evidence. Not even a single witness was examined either at Court of Inquiry stage or at the time of recording of summary of evidence.

(ii) The Convening Authority has neither ordered trial of the petitioner by General Court Martial nor convened the General Court Martial in accordance with law. The order has been passed by the Wing Commander, which is contrary to Section 110 of the Air Force Act, 1950 and that order is even beyond the purview and scope of Rule 43(4) of the Air Force Rules, 1969.

(iii) The petitioner had raised objection in regard to appointment of one presiding officer and a member of Court Martial. The said objection was overruled in presence of the objected presiding officer, which is contrary to Section 129 and Rule 52 of the Air Force Act and Rules.

(iv) Disallowing the testimony of Mrs. Ambika Singhania, DW-2 and conduct of the trial improperly and in violation of the Rules by the Judge Advocate has caused serious prejudice to the petitioner, as such the entire Court Martial Proceedings are vitiated in fact and in law.

(v) The conduct of the petitioner in the instances referred is a conduct of any normal human-being and. particularly the instance of Mrs. Ambika Singhania. Thus, no Court Martial Proceedings could be initiated against the petitioner, as he had committed no offence in law.

(vi) In view of the above grounds and even otherwise, the apprehension of the petitioner that he will get no justice within the inbuilt system of Court Martial is well founded in law and on facts. Thus, the petitioner contends that he can successfully challenge the proceedings and findings of the General Court Martial under Article 226 of the Constitution of India.

21. Having discussed at length, the scope of judicial review of such proceedings and the effect of alternative remedy available to the parties under the provisions of Act, we have to examine as to which of the contentions raised by the petitioner fall within the framework of the stated principles. It is amply clear that the Court at this stage would examine such matters, which would go to the very root of the case oh questions of law and would hardly advert to appreciation of evidence or contentions, which can more appropriately be examined by the authorities specified under the provisions of the Act. The contention of the petitioner which would render the Court Martial Proceedings ineffective or vitiate them in law can safely be examined by the court in exercise of its powers under Article 226 of the, Constitution of India, even at the post-confirmation stage. Besides the fact; that such defects would render the Court Martial proceedings bad in law, it would also help in preventing irretrievable and irreparable damage being one to the delinquent official. If the punishment is inflicted and is permitted to be promulgated post-confirmation in cases where pure question of law relating to jurisdiction or going to the very root of the case is concerned then the damage caused to the delinquent officer cannot be remedied in fact and in law.

GROUND (ii)

22. This is a ground taken by the petitioner which would squarely fall within the stated limitations requiring judicial intervention. According to the petitioner, the competent convening authority alone can convene a general court martial by an order from his hand and this power cannot be delegated to a Wing Commander to direct such proceedings against another Wing Commander. In support of this argument, the petitioner has relied upon Section 110 which empowers that the general court martial can be convened by Central Government or Chief of the Air Staff or by an officer empowered in this behalf by warrant of the Chief of Air Staff. While referring to the Convening order, the petitioner contends that the order was passed by Wing Commander Atul Kumar, Officer Incharge, Personal-I (Discipline) For Air Marshal, Air Officer Commanding-in-Chief, South Western Air Command, India Air Force and as such the same was not in conformity with the provisions of law. This is purely a question of law and if the Court was not convened in accordance with statutory provisions, all the proceedings taken by the Court would stand vitiated. According to the respondents, the order was passed by the competent authority and it was only conveyed by Wing Commander and the convening order does not suffer from any legal infirmity and is not violative of Section 110 of the Act.

23. It is a settled principle of law that if the competent authority had applied its mind and had passed appropriate orders on the file, the mere fact that it has been communicated by some other authority on its behalf would not in law render such orders without authority or jurisdiction. 'Communication of an order' cannot be equated to the term 'passing of an order'. There cannot be a presumption of fact in that regard. This argument need not detain us any longer for the reason that during the course of hearing, the respondents had produced the original file wherein the Air Officer, Commanding-in-Chief had directed that the petitioner be tried by a General Court Martial and also convened the court. The original records clearly show that the entire matter was examined by the said authority whereafter they passed the above order. This order was conveyed to the petitioner vide letter dated 8.5.06 (Annexure P-7 to the writ petition) by Wing Commander Atul Kumar and for and on behalf of the Air Officer, Commanding in Chief, Southern Western Air Command. After the production of the records before the Court, this argument was not even seriously pressed on behalf of the petitioner.

GROUND (iii)

24. Even if this contention of the petitioner is accepted, it will go to the very root of the case in regard to convening of the General Court Martial and its proceedings being violative of Section 129 of the Act & Rule 52 of the Rules. It is the case of the petitioner that he-had objected to appointment of the members of the court and particularly Wing Cdr Subramanium, on the ground of bias. The respondents could not have taken any other person to be member of the court once the court had been constituted. The objection of the petitioner was overruled arbitrarily by the court, the decision being again in violation of the rules as the person against whom such an objection was raised, continued to be part of the court. The petitioner also refers to his letter dated 17.5.06 and the objection as stated in the said letter reads as under:

Thereafter the General Court Martial proceeded with the trial. I was forcibly asked whether I have any objection under Rule 52 of the AF Rules 1969 to which I replied that I have no objection to the members but I would like to consult my Defence Counsel on this issue. In this piquant situatin the correct rational prudent action to be taken by the GCM would have been to adjourn and await the arrival of Defence Counsel. Interestingly one member Wg Cdr A Rawat suo moto was withdrawn from the trial and instead of replacing an officer of the same rank and available in the list of waiting members i.e. Wg Cdr I Maitra, he was not inducted and instead Gp Capt CV Subramaniam was inducted which I object to now only on the grounds that the officer is working in HQ SWAC, IAF and in close association and interaction with the Convening authority Air Mshl PK Mehra, AVSM, VM who is his Reviewing Officer for the ACR. Had Wg Cdr I Maitra been inducted then it would have been a fair composition of the Court Martial as this officer was from 787 SU, AF which is in an independent unit. In view of the above I would request that the Presiding Officer and Wg Cdr S. Chatterjee be replaced on the aforementioned reasons, so that there is, no prejudice and I am ready to face the GCM in the reconstituted composition.

25. As is evident from the contents of the above paragraphs and the averments made in the writ petition, the objections of the petitioner in this regard were two fold. Firstly, that Wg Cdr Rawat had been replaced after the Court was convened which was not permissible and this had been done by the respondents arbitrarily. Secondly, Gp Capt C.V. Subramaniam could not have been inducted subsequent to the convening of the Court as he was having a bias against the petitioner, as the said officer though a waiting member, was working directly under the control and supervision of the convening authority. On this premise, it was argued that the convening order and the constitution of the court was violative of the rules and particularly the provisions of Section 129 of the Air Force Act and Rule 52 of the Air Force Rules, thus, the entire court martial proceedings are vitiated. According to the respondents, this argument is also contrary to the records. The respondents have specifically stated that on 10.5.06 in compliance with the statutory provisions the petitioner had replied to the question of the Court that he had no objection to the convening of the Court and the Presiding Officers. It was only after the defence counsel had arrived that this plea was taken in the application dated 17.5.06 filed by the petitioner raising certain objections, as an afterthought. It is also the case of the respondents that once the petitioner had no objection to the convening of the Court, there is no statutory provision which empowers or gives authority to the petitioner to file such an objection at a subsequent stage. It is not disputed that Wg Cdr. Rawat had himself refused to be a member of the GGM, as according to him he was friendly with the petitioner for a number of years and he did not consider it proper to be part of the GCM which was trying the petitioner. As a result of own request of the said officer, he was permitted to opt out and in his place Gp. Capt. Subramaniam was inducted, who was the waiting member. The convening authority was Air Marshal, Air Officer Commanding-in-Chief, South Western, Air Command, and large number of officers worked under that officer. It is not only difficult but improbable that officers from other commands should be picked up for convening the Court. As per practice of the Air Force, in fact, officers under the same command are taken so as to make it more convenient to all concerned and to ensure expeditious conclusion of the GCM proceedings.

26. We would now discussed grounds (i)(iv)(v) and (vi) together as they are primarily based upon the factual matrix of the case. The first three charges framed against the petitioner cannot be said to be without iota of evidence. Quantum and quality of evidence would be beyond the purview of our jurisdiction. From the record produced before us, it is clear that report in relation to these charges was based upon the report of the Deputy Commissioner of Police, Delhi. Sq. Leader T.S. Reddy was examined as witness No. 7 and the report and other supporting material were exhibited as Exhibits D and E. A copy of report dated 16th May, 2005 has also been placed on the record of the court file as Annexure R-II. The allegations against the petitioner of alleged misconduct was made in this report. Whether or not there exists sufficient evidence on the basis of which petitioner could be held guilty of the alleged charge is a matter which falls in the domain of appropriate authority. The witness of the department was also cross-examined by the accused. Sufficiency of evidence can be examined by the authorities while deciding pre or post confirmation petition, if any, filed by the petitioner. Then the petitioner raised objections that Mrs. Ambika Singhania DW-2 was not permitted to be produced during the trial; the conduct of the petitioner in that incident relating to Mrs. Ambika Singhania is that of a normal human being and the Court Martial Proceedings have been held in an arbitrary and prejudicial manner, which raises a reasonable apprehension in the mind of the petitioner that he will not get justice.

27. At the outset, we may notice that these objections were not seriously pressed by learned Counsel appearing for the petitioner but still we will refer to the same in a limited way. Opportunity was granted to the petitioner to produce the said witness. However, despite opportunities, she was not produced. Neither specific instance of arbitrariness or violation of principles of natural justice has been stated in the writ petition nor argued at the bar. The stand of the petitioner that his conduct was that of a normal human being, which has been alleged to be misconduct in first three article of charges and the plea of normal conduct could be raised by him as a valid defence is again a matter, which can be examined by concerned disciplinary authorities. The petitioner had filed an application for objection to charges and raising a plea of special jurisdiction. This application was declined vide order dated 18th May, 2006. The correctness of the said order cannot be questioned in the present writ petition as it would squarely fall in the domain and jurisdiction of the authority while examining the pre-confirmation petition or post confirmation petition, which may be filed by the petitioner. This order does not show any patent error of law or jurisdiction. Apprehension of the petitioner, who fears that he would not get justice before the respondents should be founded on some cogent and reasonable grounds. Nothing material is reflected on the record of the Court to support the plea of apprehension. The apprehension has to be well founded and the proceedings of validly convened Court would not be open to interference on this ground. If the petitioner has committed no offence in accordance with law, he would certainly be entitled to acquittal but in the appropriate proceedings and before the proper forum. Wing Cdr. Rawat has opted out from the proceedings of his own accord and was not removed by any authorities arbitrarily. Thus, it cannot be said to be an act of any malice or arbitrariness on the part of the respondents. In view of the stand taken before us by the petitioner, it is not necessary for us to deliberate on these charges in any further detail.

Conclusion

28. In light of the afore-stated principles and discussions on the factual matrix of the case, now we would record conclusion on the issues raised before the Court. While grounds (i) to (iii) could be the questions which would require judicial intervention even at the very initial stage of the proceedings before the General Court Martial within the limited jurisdiction which the Court may exercise under Article 226 of the Constitution of India. The submission that GCM had been constituted or convened without orders or approval of the competent authority, the proceedings would stand vitiated as the Member or Presiding Officer of the Court was appointed in violation of statutory provisions and the case as stated by the authorities was a case of 'no evidence' even if the entire evidence was accepted against the petitioner, are the matters which would go to the very root of the matter and would involve jurisdictional issues. Continuation of such proceedings before the GCM would be an exercise in futility and may amount to perpetuating a wrong which would vest the petitioner with irretrievable prejudice or wrong. If the very initiation of Court Martial proceedings was without jurisdiction then permitting the proceedings to continue before it would amount to perpetuating a wrong in violation to the basic principles of law. The scope of limited jurisdiction under Article 226 of the Constitution, thus, cannot be curtailed so as to oppose the principles of fair play and adherence to basic rule of law which is the essence of proper proceedings before a domestic or a statutory tribunal. However, as already discussed, the facts and grounds taken by the petitioner have not convinced us to intervene in the proceedings before the Court Martial at this stage much less quashing the same. The Original Records produced before the Court clearly show that the competent authority had directed that the petitioner be tried by a General Court Martial and had also passed an order in regard to convening the Court. We are also unable to persuade ourselves to accept the contention of the petitioner that the Article of Charges and particularly (i) to (iii) are without any evidence and are misconceived. In fact, there is documentary and oral evidence adduced by the authorities before that Court in support of the Article of Charges. Whether on evidence led during the trial, the petitioner can be convicted or not, cannot be a matter of adjudication before this Court at this stage of the proceedings. To that extent this point and even other points raised by the petitioner before this Court would tantamount to appreciating or re-appreciating the evidence or examining the Article of Charges and the evidence led by the authorities in support thereof on merits. Another fact which cannot be ignored by the Court is that even if the pleas on merits and the grounds taken up are accepted in relation to the first three Article of Charges, as contained in the charge-sheet, still the GCM in relation to other Article of Charges would have to continue in accordance with law. As such, no fruitful purpose would be achieved, even if for the sake of arguments the Court was to accept the contentions raised on behalf of the petitioner.

29. Admittedly, the proceedings of the GCM have not concluded and the petitioner has a right to make a pre-confirmation petition which the authorities are expected to decide upon after due application of mind and -after taking into consideration every contention raised by the petitioner. No circumstances existed in the present case which would justify judicial intervention at this stage so as to truncate the statutory process under the provisions of the Air Force Act and the rules framed thereunder and to stop the proceedings before the GCM. It is not necessary for the Court to maintain the limitation of jurisdiction with exactitude but its exercise cannot be extended so as to vest the Writ Court with powers of an Appellate Court. Challenge to the charges is primarily based upon appreciation of evidence and infirmity in admissibility of evidence. Both these concepts cannot be gone into at this stage. It will be more appropriate that they are examined by the competent authorities in accordance with law.

30. Thus, we dismiss this writ petition but in the circumstances of the case, leave the parties to bear their own costs.