MAJOR PARVESH CHANDER SURI v. UNION OF INDIA — 1987 DIGILAW 53 (GUJ)

P. M. CHAUHAN, J. ( 1 ) SPECIAL Civil Application No. 4013 of 1983 having been rejected by the learned single Judge of this Court the appellant (original petitioner) has preferred this Letters Patent Appeal. The learned Judge dismissed the special civil application mainly relying on the provisions of clause (4) of Art. 227 of the Constitution of India as the order of the General Court Martial which is a Tribunal is challenged. In the view of the learned Judge special civil application could not be filed under Art. 226 of the Constitution and the and provisions cannot be attracted as the Court-martial is a Tribunal or a Court. The learned Judge also observed that what is challenged is the procedure adopted by the General Court-martial and by referring to the provisions of Art. 226 of the Constitutions provisions of clause (4) of Art. 227 of the Constitution cannot be avoided. ( 2 ) WITH view to appreciate the rival contentions facts leading to he prosecution and conviction of the appellant under sec. 41 of the Army Act 1950 by the General Court Martial be narrated. ( 3 ) THE appellant was a Major in 3 - Engineer Regiment under 11 Infantry Division since June 1979 at Ahmedabad and was the Company Commander of 58 filed Company from January 1980 upto August 1982 Lt. Col. P. R. Rao was the Commander of the Unit and Major P. S. Bajaj was also attached to the same Unit and was the Company Commander of another Field Company. On 14-7-1982 Lt. Col P. R. Rao had to go to Jaipur for attending the meeting of Formation Commanders. Major P. S. Bajaj being the senior-most Officer and second in Command was to be in charge of Lt. Col. P. R. Rao on 15-7-1982 Major P. S. Bajaj issued orders for weapon-cleaning parade at night on 15-7-1982 in view of the impending arms inspection on 16-7-1982 by the Corps of Electrical and Mechanical Engineers which is an independent authority under the Army. That inspection was already scheduled and therefore the weapon-clear ing parade was necessary Appellant P C. Suri did not obey the orders and himself and all the members of his Company did not remain present for Arms Cleaning parade Training at night on 15-7-1982 even though other officers with their companies attended the Weapon Cleaning Parade. That inspection was already scheduled and therefore the weapon-clear ing parade was necessary Appellant P C. Suri did not obey the orders and himself and all the members of his Company did not remain present for Arms Cleaning parade Training at night on 15-7-1982 even though other officers with their companies attended the Weapon Cleaning Parade. As the appellant disobeyed the lawful command of the Superior Officer report was made to the higher authorities and ultimately the Commanding Officer convened the General Court Martial to adjudicate the charge against the appellant. ( 4 ) THE charge against the appellant was for disobeying the lawful command given by his Superior Officer and in that he at Ahmedabad on 15-7-1982 while being Company Commander of 58 Field Company 3 Engineer Regiment when ordered by IC-22815 F Major P. S. Bajaj the Officiating Officer Commanding of the Unit to carry out Regiment Night Training for Weapon Cleaning with his Company did not do so. ( 5 ) AFTER examining the several witnesses produced by the prosecution and the defence and giving opportunity to the parties of being heard the General Court Martial convicted the appellant and awarded the punishment of two years loss of seniority for the purpose of promotion as provided in sec. 71 Army Act subject to the confirmation as provided in secs. 153 and 154 Army Act. ( 6 ) BEING aggrieved by the said order of the General Court Martial the appellant submitted pre-confirmation petition under sec. 164 Army Act on 19-5-1983 but that was rejected by the G. O. C. in Southern Command on 6-5-1983 and the appellant was accordingly informed on 15 It appears that before the confirmation order was passed the appellant filed Special Civil Application No. 4013 of 1983 in this Court and interim relief was granted by the Court. ( 7 ) THE learned single Judge issued notice pending admission returnable on 5-9-1983 and also granted interim relief in terms of para 7 (B) of the petition. After the Notice was served the learned Standing Counsel for the respondents appeared and raised a preliminary objection about the maintainability of the petition in view of the provision of clause (4) of Art. 227 of the Constitution of India which was accepted by the learned Judge and summarily rejected the petition. After the Notice was served the learned Standing Counsel for the respondents appeared and raised a preliminary objection about the maintainability of the petition in view of the provision of clause (4) of Art. 227 of the Constitution of India which was accepted by the learned Judge and summarily rejected the petition. There is no dispute that appellant Major P. C. Suri is subject to the provisions of the Army Act. The Officer who is subject to the Army Act disobeying any lawful command given by his Superior Officer on Conviction by the Court-martial is liable to punishment as provided in sec. 41 Army Act. The punishment specified in sec. 71 Army Act can be awarded by the Court-martial but the finding and sentence of the Court-martial will not be valid till it is confirmed by the Central Government or by the Officer empowered in that behalf by a warrant of the Central Government as provided in secs. 153 and 154 Army Act. ( 8 ) MR. B. P. Tanna learned Counsel for the appellant has mainly asserted that the appellant did not commit any offence as provided under sec. 41 Army Act as he did not disobey any lawful command given by his Superior Officer. Elaborating his submissions Mr. Tanna asserted that Shri P. S. Bajaj was a Major of the Unit and was B Company Commander and the appellant was also a Major in the same Unit and a Company Commander of the other Company. Lt. Col. Rao left for Jaipur on 14-7-1982 for the pre-scheduled meeting. No Unit order was passed appointing Major Bajaj as the Commanding Officer of the Unit. Mr. Tanna further submitted that as provided in Regulation 54 in case of temporary absence of the officer commanding the Unit the conduct of his duties devolves on the Second-in-Command whose appointment as officiating OC should be published in the Unit orders. The duty and powers of such officiating OC subject to the limitation of the Army Act are same as those of the Unit Commander. Referring to Regulation 584 of the Regulations for the Army Mr. Tanna submitted that all the orders of the Unit are required to be published in parts I and II and part I of the orders should be issued on matters concerning the administration training parade etc. Referring to Regulation 584 of the Regulations for the Army Mr. Tanna submitted that all the orders of the Unit are required to be published in parts I and II and part I of the orders should be issued on matters concerning the administration training parade etc. As provided in clause (e) of Regulation 584 part I orders will be published as required by OSC Units and they should be signed and promulgated at Roll Call of the day for which they are issued. hair. Tanna referring to part I of the Order (Annexure I to the petition) submitted that the order empowering Major P. S. Bajaj to perform the duties as Second-in-Command was passed by Ltd. Col. P. R. Rao on 16-7-1982 but that order was subsequently cancelled by order dated 7-8-1982 and by an Order dated 7 (Annexure J to the petition) Lt. Col. P. R. Rao posted Major P. S. Bajaj to RHQ and appointed as Second-in-Command with effect from 14-7-1982 and also directed him to perform the duties of Company Commander in addition to his duties of Second-in-Command. Mr. Tanna therefore asserted that on 15-7-1982 no order appointing Major P. S. Bajaj as Second-in-Command was in existence and Major P. S. Bajaj was not the Superior Officer and therefore the appellant did not commit any offence as specified in sec. 41 Army Act Relying on these facts and provisions of the relevant Regulations learned Counsel for the petitioner urged that as no offence was committed by the appellant the General Court Martial cot not have been convened and therefore the General Court Martial had no jurisdiction to charge start proceedings and convict the appellant. The finding anti sentence by the General Court Martial being without jurisdiction the appellant can conveniently challenge the finding and the order of sentence passed by the General Court Martial and invoke the high prerogative jurisdiction of the High Court under Art. 226 of the Constitution of India and pray for a writ of certiorari for setting aside the finding and sentence of the General Court Martial and also the order of confirmation. In the view of Mr. Tanna these aspects are not considered by the learned single Judge. ( 9 ) MR. In the view of Mr. Tanna these aspects are not considered by the learned single Judge. ( 9 ) MR. S. R. Shah learned Additional Standing Counsel for the respondents submitted that in view of the specific provisions under clause (4) of Art. 227 of the Constitution the High Court has no power of superintendence over the General Court Martial which is a Tribunal constituted under the Army Act and in view of the said specific provisions the jurisdiction of the High Court to issue a writ or certiorari or any other writ under Art. 226 of the Constitution also cannot be exercised. In the view of Mr. Shah provisions of Art. 226 of the Constitution will not be attracted and do not apply as the Court-martial is a Court or Tribunal under the provisions of the Army Act. Mr. Shah asserted that the writs can be issued under Art. 226 of the Constitution to any person or authority including in appropriate cases to any Government and the General Court Martial being a Tribunal is not a person or authority and therefore not subject to the writ jurisdiction of the High Court under Art. 226 of the Constitution. Mr. Shah also challenged the contentions about the lack of jurisdiction of the General Court Martial and submitted that Major P. S. Bajaj was a Senior and Superior Officer Second-in-Command and had issued the lawful order which was deliberately and purposely disobeyed by the appellant contrary to the Army discipline and the General Court Martial has rightly given the verdict of guilty and awarded sentence under the law. ( 10 ) BEFORE appreciating the submissions of Mr. Tanna for the appellant that Major P. S. Bajaj was not a Superior Officer and could not have passed the lawful order the preliminary objection raised by S. R. Shah learned Additional Standing Counsel for the respondents should be considered. In view of Mr. Shah writs under Art. 226 of the Constitution can be issued to any person or authority and the General Court Martial being a Court or Tribunal is Dot an authority and therefore the High Court cannot exercise the jurisdiction and pass the orders ascertaining the legality and validity of the findings and sentence by the General Court Martial. Shah writs under Art. 226 of the Constitution can be issued to any person or authority and the General Court Martial being a Court or Tribunal is Dot an authority and therefore the High Court cannot exercise the jurisdiction and pass the orders ascertaining the legality and validity of the findings and sentence by the General Court Martial. ( 11 ) IT is true that the General Court Martial is a Tribunal constituted under the Army Act and therefore the power of superintendence under Art. 227 of the Constitution of India cannot be exercised by the High Court. But the contention that the General Court Martial is not an authority and therefore writ cannot be issued under Art. 226 of the Constitution deserves to be rejected. The expression authority in its etymological sense means a body invested with power to command or give an ultimate decision or enforce obedience or having a legal right to command and be obeyed. The expression authority is considered by the Supreme Court in Rajasthan State Electricity Board Jaipur v. Mohan Lal AIR 1967 Supreme Court 1857. Referring the decision in B. W. Devadas v. Selection Committee for Admission of Students to the Karnataka Engineering College AIR 1964 Mysore 6 the Supreme Court has observed: the High Court of Mysore similarly held:the term authority in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising Governmental power but also any person or group of persons who by virtue of their position in rela tion to other person or persons may be able to impose their will upon that other person or personsthe General Court Martial therefore even though a Tribunal is an authority under Art. 226 of the Constitution. ( 12 ) MR. S. R. Shah for the respondents referred to the decision of the Supreme Court in Jashwanl Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 Supreme Court 677 wherein Supreme Court expressed the view that the duty to act judicially imposed upon the authority by a statute does not necessarily clothe the authority with the judicial power of the State and the trappings of the Court will not ordinarily make the authority which is under a duty to act judicially a Tribunal. It is clear from the judgment that the Tribunal can be considered to be an authority. It is clear from the judgment that the Tribunal can be considered to be an authority. Merely because the Tribunal is having the trappings of the Court it does not necessarily mean that it is not an authority. ( 13 ) THE second limb of the argument of Mr. Shah is that under the provisions of Art. 227 the Constitution of India by which special power of superintendence over all Courts and Tribunals are conferred on the High Court and therefore the power of the High Court can be exercised only under that Article and by process of exclusion such powers cannot be exercised under Art. 226 of the Constitution. Referring to the powers of the General Court Martial constituted under the Army Act Mr. Shah asserted that the Court Martial and the Courts constituted under the relevant Acts exercise the powers of the State regarding the judicial functions and therefore they are treated as a separate class and the High Court is vested with the superintending jurisdiction under Art. 227 of the Constitution which provides protective umbrella and therefore also the writ jurisdiction under Art. 226 cannot be exercised. This leads to the consideration of the basic question of the special prerogative powers of the High Court to issue writs under Art. 226. Power of Superintendence of the High Court over the Courts and Tribunals under Art. 227 and the power of the High Court to issue a writ of certiorari under Art. 226 against the authorities including the Tribunals though appear similar provide for the different situations. Merely because the power of superintendence vests in the High Court under Art. 227 it does not necessarily mean that the power of the High Court to issue a writ of certiorari under Art. 226 is excluded. The High Court can exercise the power of Superintendence over the Courts and Tribunals under Art. 227 of the Constitution even for administrative matters like calling for returns for settling the tables of fees etc. but such powers cannot be exercised by the High Court under Art. 226. The powers of the High Court under Art. 226 are wide enough to issue writs specified in that Article for the purpose of protect the fundamental rights and for any other purpose. but such powers cannot be exercised by the High Court under Art. 226. The powers of the High Court under Art. 226 are wide enough to issue writs specified in that Article for the purpose of protect the fundamental rights and for any other purpose. Whenever anybody or person having legal authority to determine the questions affecting the rights of the subjects or having a duty to act judicially action excess of the legal authority writ of certiorari can be issued to quash the decision which is beyond the jurisdiction of such authority or tribunal Object of the writ of certiorari is to keep the exercise of the powers by judicial and quasi judicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain from facing in excess of their authority. Such powers can be exercised only under Art. 226 and not under Art. 227. The powers of the High Court under Art. 226 are therefore wider than the powers under Art. 227 of the Constitution It therefore cannot be accepted that by exclusion process the High Court cannot exercise the powers to issue writs on the Tribunals or Court-martial under Art. 226 of Constitution. ( 14 ) ART. 226 of the Constitution provides for the power of High Courts to issue to any person or authority including in appropriate cases any Government directions orders of writs including the writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. Powers of the High Court are not confined to enforcement of the fundamental rights but also include the powers of issuing writs for any other purpose. Any other purpose means a purpose for which any of the writs could according to the well-established principles be issued. It can be issued only after the finding that the party has legal right which entitles him to any of the writs and that such right has been infringed. (See Samarth Transport Co. v. R. T. A AIR 1961 SC 93 ). ( 15 ) ARTICLE 20 in Part III of the Constitution of India relating to fundamental rights provides protection in respect of conviction for offences. (See Samarth Transport Co. v. R. T. A AIR 1961 SC 93 ). ( 15 ) ARTICLE 20 in Part III of the Constitution of India relating to fundamental rights provides protection in respect of conviction for offences. No person can be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence. In the instant case it is the contention of the appellant that he has not violated the provisions of sec. 41 Army Act or any rule. That being a contention the High Court can exercise jurisdiction under Art. 2?6 of the Constitution. It is quite another aspect as to what extent the powers of issuing the writ can be exercised under Art. 226. The fundamental rights of the members of the Armed Forces can be restricted or abrogated to the extent provided in Art. 33 of the Constibution. Accordingly under sec. 21 Army Act and Rule 19 of the Army Rules fundamental rights are restricted to the extent specified in the said section and rule but the fundamental right under Art. 20 of the Constitution is not restricted. Writ of certiorari under Art. 226 is therefore permissible and not barred provided other necessary requirements to exercise the jurisdiction which we shall discuss at a later stage are established or proved. ( 16 ) AS Mr. S. R. Shah for the respondents has contended that the High Court cannot exercise writ jurisdiction for issuing a writ of certiorari against the Court Martial which is also a quasi judicial body or tribunal it is necessary to consider the basic scheme of the Constitution providing powers of judicial review by the High Court under Art. 226 of the Constitution and the rule of law. This aspect is considered and well-defined by the Supreme Court in Minverva Mills v. Union of India 1980 (3) Supreme Court Cases 625 and subsequently reiterated in 5 P. Sampath Kumar v. Union of India AIR 1987 Supreme Court 386 and P. Sambamurthy v. State of Andhra Pradesh AIR 1987 Supreme Court 663 The judicial review is a basic and essential feature of the Constitution. It is observed by the Supreme Court in case of S. P. Sampath Kumar (supra) that it is also a basic principle of rule of law which permeates every provision of the Constitution and which forms very core and essence that the exercise of the power by the executive or any other authority must not only be conditioned by the Constitution hut also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of powers of judicial review which is the most potent weapon in the hands of judiciary for maintenance of rule of law. ( 17 ) IN the case of Minverva Mills (supra) it is observed:. . SO long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it it can certainly be decided by the Court. Indeed It would be its Constitutional obligation to do so. I have said before I repeat again that the Constitution is supreme lex the paramount law of the land and there is no department or branch of Government above or beyond it. Every organ of Government be it the executive or the legislature or the judiciary derives its authority from the Constitution and it has to act within the limits of its authority and whether it has been so or not is for the Court to decide. The Court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution it is the duty of the Court to intervene. Considering the question about the authority which must decide the limits of the power conferred upon each organ or instrumentality of the state and that as to whether such limits are transgressed or exceeded it is observed that it is the solemn duty of the judiciary under the Constitution to keep the different organs of the state such as the executive and the legislature within the limits of the power conferred upon them by the Constitution and that power of judicial review is conferred on the judiciary by Arts. 32 and 226 of the Constitution. 32 and 226 of the Constitution. It is therefore clear that the powers of the High Court under Art. 226 of the Constitution are wider enough even to issue a writ of certiorari against the Court-martial. ( 18 ) IN Lt. Col. Prithi Pal Singh Bedi v. Union of India AIR 1982 Supreme Court 1413 the point at issue was not the jurisdiction of the High Court to issue writ of certiorari against the order of the Court martial as the initial stages of charges were challenged by three Army Officers on the ground of vires of certain provisions of the Army Act and the Rules. The Supreme Court upheld the validity of the relevant provisions of the Act and the Rules but made observations in paragraph 45 which require to be referred to. It is observed:reluctance of the apex court more concerned with civil law to interfere with internal aairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to the Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does rot cease to be a citizen so as to wholly deprive him of his rights under the Constitution. ( 19 ) IN Subhash Chandra Sarkar v. Union of India AIR 1973 Madhya Pradesh 191 the Madhya Pradesh High Court considered the jurisdiction of the High Court under Art. 226 of the Constitution to issue a writ of certiorari. The facts in that case were practically similar to the facts of the instant case as petitioner Subhash Chandra Sarkar was held guilty and convicted by the Court Martial for disobeying the orders to appear before the Court Martial. It was observed that the Court Martial is an authority as contemplated under Art. 226 of the Constitution of India and therefore within the writ jurisdiction of the High Court under Art. 226. It was observed that the Court Martial is an authority as contemplated under Art. 226 of the Constitution of India and therefore within the writ jurisdiction of the High Court under Art. 226. Justice G. L. Oza (as he then was) in paragraph 29 observed:the first question that deserves to be considered is as to the jurisdiction of this Court under Art. 226 of the Constitution to issue writs in the nature of certiorari against a decision of the General Court Martial especially in view of clause (4) of Art. 227 of the constitution excluding Court Martial from the operation of the supervisory powers of this Court under Art. 226. As regards this question I agree with the conclusion arrived at by my learned brother that this Court under Art. 226 of the Constitution can issue a writ of certiorari against an order passed by the Court Martial. But it can only be issued on the principles well settled now by the series of decisions of the Supreme Court. It is well settled that where a tribunal acts (a) without or in excess of its jurisdiction or (b) acts in contravention of the rules of natural justice or (c) commits an error apparent on the face of the record this Court under Art. 226 of the Constitution can always issue writs in the nature of certiorari. ( 20 ) THE Delhi High Court in R. S. Bhagat v. Union of India AIR 1982 Del 191 while extracting the speech by Dr. B. R. Ambedkar in the Constituent Assembly has expressed the view similar to the view expressed by the Madhya Pradesh High Court in case of Subhash Chandra Sarkar (supra) and has observed that the Court-martial proceedings are amenable to writ jurisdiction of the Supreme Court and the High Court and in particular the writ of certiorari can be issued by the Supreme Court under Art. 32 and by the High Court under Art. 226 of the Constitution. For various reasons recorded we have no hesitation in observing that the High Court can issue writ of certiorari under Art. 226 of the Constitution against the order of Court-martial subject to certain limitations which we will just discuss. . For various reasons recorded we have no hesitation in observing that the High Court can issue writ of certiorari under Art. 226 of the Constitution against the order of Court-martial subject to certain limitations which we will just discuss. . ( 21 ) THE High Court can exercise the jurisdiction to issue a writ of certiorari under Art. 226 of the Constitution if a person authority or Tribunal has acted without jurisdiction or in excess of jurisdiction vested in it or refused to exercise the jurisdiction or there is an error apparent on the face of the record and such act omission error or excess has resulted in manifest injustice. Jurisdiction can also be exercised if the order of such body or person is unwarranted by law or is non est. Writ of certiorari cannot be issued as a cloak of an appeal in disguise. The Supreme Court in Ibrahim Abubaker v. Custodian General of Evacuee Property New Delhi AIR 1952 Supreme Court 319 while considering the jurisdiction of the High Court to issue writ of certiorari under Art. 226 of the Constitution has observed:. . IT is plain that such a writ cannot be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong. Indeed it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter so that the inferior Court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the Court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the Court has jurisdiction but while exercising it it made a mistake the wronged party can only take the course prescribed by law for setting matters right inasmuch as a Court has jurisdiction to decide rightly as well as wrongly. ( 22 ) THE Madhya Pradesh High Court in Subhash Chandra Sarkar (supra) following the decision in B. B. and D. Mfg. Co. ( 22 ) THE Madhya Pradesh High Court in Subhash Chandra Sarkar (supra) following the decision in B. B. and D. Mfg. Co. v. L. K Bose AIR 1967 Supreme Court 361 and Satyanarayan v. Mallikarjun AIR 1960 Supreme Court 137 has also observed that when the Tribunal has jurisdiction to decide a question it may decide it rightly or wrongly and a mere error of law or an erroneous view of law will not justify the issuance of the writ in the nature of certiorari. The Supreme Court in P. Kasilingam v. P. S. G. College of Technology 1981 (1) Supreme Court Cases 405 has expressed similar view. These are the limitations on the High Court in issuing the writ in the nature of certiorari against the decision of the authority or tribunal. ( 23 ) IN view of the above observations and the limitation on jurisdiction and exercise of power of the High Court for issuing writ of certiorari against the decision of the General Court Martial the contentions of the appellant are required to be considered. ( 24 ) THE main contention of the appellant as discussed above is that Major P. S. Bajaj was not the superior authority and therefore the appellant did not commit any offence. The High Court while exercising the writ jurisdiction for issuing the writ of certiorari is not an appellate authority and therefore cannot consider in details the allegations which are based mostly on controversial facts. Such disputed facts therefore cannot be considered in a writ. Even if the Court Martial has committed an error in appreciating the evidence the High Court cannot correct it in exercise of its special prerogative power. That submission of Mr. Tanna therefore deserves to be rejected outright. ( 25 ) IN absence of entire evidence led before Court-martial on record of this petition it will not be within the ambit of powers of this Court to consider and appreciate the disputed factual aspects. However considering the facts on record it cannot be said that the finding of the General Court Martial is either erroneous or not according to law. It is clearly established and as such an admitted fact that on July 14 and 15 1982 Lt. Col. However considering the facts on record it cannot be said that the finding of the General Court Martial is either erroneous or not according to law. It is clearly established and as such an admitted fact that on July 14 and 15 1982 Lt. Col. P. R. Rao was out of Headquarters to attend the meeting of Formation Commanders at Jaipur and Major P. S. Bajaj issued an order on 15-7-1982 for Weapon Cleaning Parade at night; and appellant P. C. Suri and his company did not attend the Weapon Cleaning Parade-training. If it is held that Major P. S. Bajaj was a Superior Officer then it is evident that the orders were disobeyed by the appellant and he committed the offence specified in sub- sec. (2) of sec. 41 Army Act. The fact as to whether Major P. S. Bajaj was a Superior Officer on 15-7-1982 has to be considered in the light of various provisions of the Act Rules and Regulations and the Standing Orders and the affidavit by Major R. M. Sharma and the affidavit of the appellant. ( 26 ) COMMANDING Officer is defined in clause (v) of sec. 3 of the Army Act to mean the officer whose duty it is under the regulations of the regular Army or in the absence of any such regulations by the custom of the service to discharge with respect to that portion of the regular Army or that Department as the case may be the functions of a Commanding Officer in regard to matters of the description referred to in the relevant provisions of the Army Act. ( 27 ) UNDER sec. 7 of the Army Act every person subject to the Army Act is deemed to be under the Commanding Officer of the corps department or detachment if any to which he is attached and if he is not so attached under the command of any officer who may for the time being be named as his commanding officer by the officer commanding the force with which such person for the time being is serving or any other prescribed officer or if no such officer is named or prescribed under the command of the said officer commanding the force. Every Battalion is a Corps as prescribed by Rule 187 of Army Rules 1954 Under the Army Rules Commanding Officer is not prescribed and Regulations also do not provide for such commanding officer. ( 28 ) AS provided in clause (d) of Rule 2 of the Army Rules 1954 proper military authority when used in relation to any power duty act or matter such military authority as in pursuance of the Rules and Regulations made under the Act or the usages of the service exercise or perform that power or duty or is concerned with the act or matter. Rule 5 provides for exercise of power vested in holder of military office. It provides that any power or jurisdiction given to and any act or thing to be done by to or before any person holding any military office for the purpose of these rules may be exercised by or done by to or before any other person for the time being authorised in that behalf according to the custom of service. If the custom of service provides that senior officer can exercise the powers of the Commanding Officer such senior officer can exercise the powers of the Commanding Officer under the provisions of rules. ( 29 ) REGULATION 52 provides for Command. The power of command to be exercised by the officers extends over all officers junior in rank or in seniority in their own corps. Rank or seniority is therefore attached considerable importance for exercise of the power of the command. Regulation 54 many provides that when an officer commanding unit becomes sick or is temporarily absent the conduct of his duties devolves on the Second Command whose appointment as officiating OC will be published in unit orders. It is also specified that legal powers of such Second-in-Command will be the same as those of the unit commanders. Under Regulation 36 the duties of a Second-in-Command are to act for and take over the place of his Commanding Officer whenever necessary. Considering the provisions of Regulations 52 and 54 it is evident that senior-most officer can exercise the powers of command over the junior officers. Under Regulation 36 the duties of a Second-in-Command are to act for and take over the place of his Commanding Officer whenever necessary. Considering the provisions of Regulations 52 and 54 it is evident that senior-most officer can exercise the powers of command over the junior officers. ( 30 ) BY Standing Order para 20 it is specifically provided that during the temporary absence of the Commanding Officer the conduct of his duties devolves on the next senior officer who will exercise all the functions of command but will abstain from making promotions and changes in any policy matters. He is authorised to issue such supplementary orders as he may deem necessary provided that Standing Orders are not deviated from or suspended. It is therefore clear that the conduct of duties of the Commanding Officer devolves on the next senior officer to the Commanding Officer. ( 31 ) DEFINITION of Superior Officer as provided in clause (xxiii) of sec. 3 of the Army Act is an inclusive definition and therefore ordinary intended meaning of Superior Officer is required to be accepted. As stated above it appears to be the scheme that the Officer in seniority or in rank can exercise the powers of the Commanding Officer of the Unit and therefore he should be considered Superior Officer to the officers junior in rank or seniority. Major P. S. Bajaj was a senior officer to appellant P. C. Suri at the relevant time and therefore he was Superior Officer of the appellant A Revision Bench of the Rajasthan High Court in Hanumant Singh v. Union of India 1971 (1) SLR 626 considered the definition of Superior Officer given in clause (xxiii) of sec. 3 Army Act and observed that the said definition does not have any reference to the relationship of the BOSS and the Subordinate ( 32 ) REVERING to the facts on record It is Clearly stated by Major R. M. Sharma in his affidavit that Major P. S. Bajaj was senior to the petitioner (present appellant) and that fact was within the knowledge of the appellant-petitioner. He has also stated that the powers of the Command of the Regiment at Ahmedabad as Commanding Officer devolved upon Major P. S. Bajaj being Second-in-Command as he was briefed by Lt. Col. P. R. Rao to hold the charge in his absence. He has also stated that the powers of the Command of the Regiment at Ahmedabad as Commanding Officer devolved upon Major P. S. Bajaj being Second-in-Command as he was briefed by Lt. Col. P. R. Rao to hold the charge in his absence. That is the normal procedure adopted in the Army under the provisions of the Army Act Rules and Regulations made therein. He has also stated that therefore the appellant was expected to know the said practice which is commonly known under the Army Act as the custom of the service. After referring to the definition of Commanding Officer Major R. M. Sharma has stated in his affidavit that accordingly in absence of Commanding Officer custom of the service is that the Second-in-Command would discharge the duties of the Commanding Officer in the Regiment. Even Regulation 54 provides that under such an eventuality discharge of duty will devolve upon the Second-in-Command in the same Department or Regiment and therefore on 15-7-1982 Major P. S. Bajaj was Commanding Officer of 3 Engineer Regiment Ahmedabad. Major Sharma has also referred to the provisions of Rule 5 of the Army Rules and stated that accordingly on 15-7-1982 Major P. S. Bajaj was officiating Commanding Officer of 3 Engineer Regiment Ahmedabad and obviously the appellant was subject to the orders of Major P. S Bajaj. Major P. S. Bajaj had issued orders on 15-7-1982 to all the Companies of the whole of the Regiment including the company under the appellant to attend Weapon Cleaning Parade in the night of 15-7-1982 from 20-30 to 22-30 hours and under the Army Act it was obligatory on the part of the appellant-petitioner to obey the orders so made by himself as well as by all the personnel of his company and despite of clear position of law and disciplinary obligation the appellant-petitioner defied the said orders issued by Major P. S. Bajaj and refused to attend the Weapon Cleaning Parade by himself as well as by the personnel under him. In paragraph 12 he has stated that The petitioner was throughout aware that Major P. S. Bajaj was officiating Second-in-Command in addition to his appointment as a Company Commander. On the departure of Lt. Col. In paragraph 12 he has stated that The petitioner was throughout aware that Major P. S. Bajaj was officiating Second-in-Command in addition to his appointment as a Company Commander. On the departure of Lt. Col. (now Major) P. R. Rao the Commanding Officer on 14 the command of the Unit devolved on Major P. S. Bajaj as per existing orders and also otherwise firstly because of his being the senior-most officer present in the Unit and secondly because Lt. Col. (now Major) P. R. Rao had briefed Major P. S. Bajaj regarding certain important events to be checked and carried out during his absence. ( 33 ) IT is therefore evident from the affidavit of Major Sharma that Major P. S. Bajaj was Senior Officer to appellant P. C. Suri and was also Second-in-Command. Major Sharma has clearly stated in his affidavit that he is conversant with the facts of the case he has perused the record relevant to the subject-matter of the petition in his office and was also dealing with the proceedings against the appellant petitioner and therefore he is competent to depose to the facts stated in the affidavit. Copies of the evidence of Lt. Col. P. R. Rao or that of P. S. Bajaj are not produced and therefore it could not be ascertained as to what they stated in their evidence before the General Court Martial. It appears from the affidavit of Major Sharma that the facts stated by him are established before the General Court Martial. In that view it should be accepted that Major Bajaj was senior-most officer in the Unit was Second-in-Command and the powers of the Officer Commanding devolved on him when Lt. Col. P. R. Rao was temporarily absent from duty on 14th and 15th of July 1982 Major P. S. Bajaj was therefore competent to issue the orders for Weapon Cleaning Parade at night on 15-7-1982 and that legitimate and lawful order was defied and disobeyed by the appellant. ( 34 ) MR. Col. P. R. Rao was temporarily absent from duty on 14th and 15th of July 1982 Major P. S. Bajaj was therefore competent to issue the orders for Weapon Cleaning Parade at night on 15-7-1982 and that legitimate and lawful order was defied and disobeyed by the appellant. ( 34 ) MR. B. P. Tanna learned Counsel for the appellant has submitted that as provided in Regulation 54 in case of temporary absence of Officer Commanding the conduct of his duties devolves on the Second-in-Command whose appointment as officiating Officer Commanding will be published in the Unit Orders and as provided in Regulation 584 all orders of a Unit are required to be published in two parts and Part-I of the Orders is required to be issued on the matters concerning administration training maneuvers parades etc. and the order appoiting Major P. S. Bajaj as Officiating Commander was not published in the Unit Order and as such no such official order was passed on 14 but it was subsequently passed on 7-8-1982 and therefore Major P. S. Bajaj could not be said to have been appointed as Officer Commanding of the Unit en 15-7-1982 and therefore could not have passed 2 valid order for Weapon Cleaning Parade. It is clear from the provisions of Regulation 54 that during the temporary absence of the Officer Commanding of the Unit conduct of the duties of the Officer Commanding devolves on the Second-in-Command. Specific use of the word devolves clearly indicates that by virtue of the provisions of Regulation 54 Officer who is Second-in-Command can exercise powers and conduct the duties of the Officer Commanding without any further investing of the powers by the Officer Commanding. It is not the condition precedent that he can exercise such powers of the Officer Commanding only after it is published in the Unit Order. Publication of the Unit Order is a separate act which should not necessarily precede the devolution of duties of the Officer Commanding who is Second-in- Command. What is required to be published in the Unit Order is the appointment as Officiating Commander of the Second-in Command. Even if it is not published the Second-in-Command can exercise the powers and duties of the Officer Commanding during temporary absence of such officer. What is required to be published in the Unit Order is the appointment as Officiating Commander of the Second-in Command. Even if it is not published the Second-in-Command can exercise the powers and duties of the Officer Commanding during temporary absence of such officer. ( 35 ) UNDER Regulation 584 Orders of the Unit in Part I will be published as required by OSC Unite Part I Unit Orders is to be signed and promulgated at the Roll-call of the day on which they are issued It does not appear to be a mandatory provision which should always precede the appointment of the Second-in-Command as the Officer Commanding. Apart from that Part I Orders are issued on matters concerning administration training manoeuvres parades and matters which do not affect a soldiers pay service or documents. Part II Orders are to be issued on matters affecting a soldiers pay service and records e. g. promotion and appointments etc. Appointment therefore is covered by Part II Orders. It is clearly provided in clause (d) of Regulation 584 that the regimental appointments not carrying additional pay are not required to be published in Part II Orders. ( 36 ) OFFICIATING appointment of Major P. S. Bajaj as Officer Commanding is therefore not covered by Part I or Part II Unit Orders. Merely because the order was published subsequently does not necessarily lead to the conclusion that Major P. S Bajaj was not Officer Commanding or the duties of the Officer Commanding did not devolve on him on 14 Only because of the said reasons it cannot be said that Major P. S. Bajaj could not have passed or issued lawful command for Weapon Cleaning Parade at night on 15-7-1982. Major P. S. Bajaj had accordingly issued she lawful orders or command which was deliberately and intentionally disobeyed by the appellant and therefore it cannot be said that the Court-martial committed any error in convicting and passing the order of sentence under sec. 41 Army Act. ( 37 ) THE petition (Special Civil Application No. 4013 of 1983) deserves to be dismissed as the appellant-petitioner did not exhaust all the remedies available to him before filing the petition. The appellant filed the petition before the verdict of the Court-martial was confirmed under sec. 154 Army Act. 41 Army Act. ( 37 ) THE petition (Special Civil Application No. 4013 of 1983) deserves to be dismissed as the appellant-petitioner did not exhaust all the remedies available to him before filing the petition. The appellant filed the petition before the verdict of the Court-martial was confirmed under sec. 154 Army Act. It appears that subsequently after the petition was dismissed finding and sentence of the General Court Martial were confirmed by the competent authority specified in sec. 154 Army Act. However they are not promulgated as provided in Rule 171 Army Rules. Till the finding and sentence are promulgated confirmation is not complete. ( 38 ) IT is at this stage that the proceedings are pending as the Court issued Order granting of interim relief. Remedy is by way of a petition to the Central Government or Chief of the Army Staff or prescribed Officer in command as provided in sub-sec. (2) of sec. 164 of the Army Act is available appellant. The appellant has not availed of that remedy and filed a petition in this Court. Under sec. 165 of the Army Act the Central Government or the Chief of the Army Staff or the prescribed Officer has powers to annul the proceedings of Court-martial on the ground that they are illegal or unjust. Competent authorities under secs. 164 and 165 Army Act have therefore powers to consider the contention of the appellant that he did not commit any offence under sec. 41 Army Act. Contentions of the appellant are based mostly on statutory provisions of the Act Rules and Regulations. As the appellant has not availed of that opportunity and has not exhausted all the available remedies this Court Should not exercise the special prerogative jurisdiction under Art. 226 of the Constitution. ( 39 ) THE Madhya Pradesh High Court in case of Subhash Chandra Sarkar (supra) considered the provisions of secs. 164 and 165 of the Army Act and refused to entertain the petition for a writ of certiorari as the Statute clearly provides for the remedy. It is true that the rule of refusing relief on the ground of alternative remedy does not apply to certiorari to the same extent as it does in the case of mandamus. 164 and 165 of the Army Act and refused to entertain the petition for a writ of certiorari as the Statute clearly provides for the remedy. It is true that the rule of refusing relief on the ground of alternative remedy does not apply to certiorari to the same extent as it does in the case of mandamus. But that fact may be taken into consideration by the High Court for considering the exercise of its discretion to issue writ of certiorari to quash the order of the General Court Martial/tribunal. Such a relief should normally be not refused on the ground of availability of alternative remedy if it appears on the face of the proceedings or on undisputed facts that the Tribunal has acted without jurisdiction or has acted in excess of jurisdiction or has acted contrary to the fundamental principles of justice or fundamental right are affected. In the instant case there are no such exceptional circumstances and therefore we are not inclined to interfere with the orders of the General Court Martial. The appellant should have exhausted the available remedy under secs. 164 Army Act. ( 40 ) FOR the reasons recorded the appeal is dismissed with no order as to costs. Interim relief granted in Civil Application No. 4015 of 1983 is vacated and civil application is disposed of accordingly with no order as to costs. Rule is discharged. . ( 41 ) MR. B. P. Tanna learned Counsel for the appellant prays that interim relief be continued for six weeks to enable the appellant to approach the Supreme Court of India. This prayer made by Mr. Tanna is opposed by Mr. S. R. Shah learned Counsel for the respondents. Having regard to the facts and circumstances of the case me continue ad interim relief for a period of six weeks from today. Rule discharged. .