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2006 DIGILAW 2115 (DEL)

WING COMMANDER RAJIV ARORA v. UOI

2006-11-16

G.S.SISTANI, SWATANTER KUMAR

body2006
SWATANTER KUMAR, J. ( 1 ) JURISDICTION is one of the foremost considerations in the nature of judicial decision making. Jurisdiction is a concept which goes to the very root of the lis that comes up for determination between the parties. It is commonly understood as court's power to decide a case or issue a decree in terms of basic rule of jurisdiction. It is explained as Coram Judice. It is relatable to a position outside the court system and prescribes the authority of the court within the system. The extra-ordinary jurisdiction vested in the court under Article 226 of the Constitution of India refers to exclusive constitutional jurisdiction i. e. power of the court to adjudicate a class of actions to the exclusion of other courts. Complete jurisdiction of a court besides territorial, relating to cause of action or parties also may raise question in regard to the scope of jurisdiction to be exercised by the court in relation to the controversy arising particularly in exercise of its writ jurisdiction. Besides this being a constitutional jurisdiction, it is also supplemented by jurisdictio emanata. The court while exercising such jurisdiction would normally enlarge the scope of its jurisdiction so as to do justice between the parties so far as exercise of such authority is not opposed to a statute and is in conformity to the settled canons of constitutional jurisprudence. Boni judicis est ampliare jurisdictionem is subject to the limitations of law and particularly discretio est discernere per legem quid sit justum. This is true scope of exercise of jurisdiction in relation to the matters of jurisdiction. The court would amplify its jurisdiction to do justice but only where it is so permissible in law and is not beyond the constitutional mandate of specified writ jurisdiction. Jurisdictional discretion is a science of understanding of discern between shadows and substance, between equity and colourable glosses and pretences. Interference in the prior may not be necessary while in the latter, it may be correctly invoked particularly when it breaches the law of the land. A power vested in a statutory body can never be unfettered. It should be exercised according to law and guided by relevant considerations and not irrelevant materials. Interference in the prior may not be necessary while in the latter, it may be correctly invoked particularly when it breaches the law of the land. A power vested in a statutory body can never be unfettered. It should be exercised according to law and guided by relevant considerations and not irrelevant materials. If any power is conferred on any authority to enable that authority to discharge its duties to a citizen or to the public at large, that authority cannot refuse to exercise that power and obligation to comply with the statutory provisions which would be mandatory. Where such mandatory obligations or provisions of law are violated, the court would expand its jurisdiction as justice would so demand. When the law refers to discretion of the court, it obviously means that where a thing is left to any Judge or Magistrate to be done to his discretion, the law intends it must be done with sound discretion and according to law. It is a power to decide within the limits allowed by positive rules of law and generally to regulate matters of procedure and administration. The discretion more particularly in judicial system has been explained as follows:-"discretion" means, when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself. [lord Halsbury, L. C. Sharp v. Wakefield, (1891), 64, LT Rep 180 (1891) Ap Ca 173] the very word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. 334=10 Bom LR 821=3 IC 361. The word "discretion" in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it also imposes a heavy responsibility. (1933 Cr C 175=air 1933 sind 49.)Discretion, when applied to a Court of justice, means sound discretion guided by law. 334=10 Bom LR 821=3 IC 361. The word "discretion" in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it also imposes a heavy responsibility. (1933 Cr C 175=air 1933 sind 49.)Discretion, when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. Lord MANSFIELD, case of John Wilkes (1763), 4 Burr Part IV, 2539. ( 2 ) WE have referred to the above concept of judicial discretion in order to examine the scope of judicial intervention in General Court Martial proceedings prior to disposal of post-confirmation petition by the competent authority. Section 109 of the Air Force Act, 1950 (hereinafter referred to as 'the Act') provides for three kinds of Court Martial for trial of a member of the Force. Once the Court is convened in terms of Section 110 of the Act, it has special and a specific jurisdiction to complete the trial in accordance with the provisions of the Act and the Rules framed thereunder. Irrespective of the nature of the Court Martial, the scope for interference is very limited. The Act and the Rules are a Code within itself and provides for a pre and post remedies to the findings and convictions by General Court Martial. In other words, it is a self-contained Code. Various provisions grant certain specific protection to the accused right from the commencement of the trial till its conclusion. He could raise objections and challenge to the convening and constitution of the Court as well as jurisdiction, with a right to plead guilty or not guilty. These protections available to the accused show that the concerned authorities as well as the Court has to comply with certain requirements of law which are mandatory in nature and non-compliance thereof, in some cases may even seriously prejudice the very initiation of the trial. The scheme of the Act clearly demonstrates the legislative intent for proper dispensation of justice to the accused during the course of trial by the general Court Martial. Despite such specific provisions, the power of judicial intervention of the High Court in terms of Article 226 of the Constitution of india can hardly be contained. The scheme of the Act clearly demonstrates the legislative intent for proper dispensation of justice to the accused during the course of trial by the general Court Martial. Despite such specific provisions, the power of judicial intervention of the High Court in terms of Article 226 of the Constitution of india can hardly be contained. The Court could interfere with the commencement and continuation of the General Court Martial wherever, in its discretion, the Court is of the opinion that there has been violation of law, principles of natural justice and other patent legal errors which have prejudicially affected not only the trial, but more particularly the protections available to the accused under the specific provisions. There are no exclusionary clauses, specifically or even by necessary implication, excluding the jurisdiction of the High Court. In fact, it is a settled principle of law that the jurisdiction of the High Court under Article 226 of the constitution of India cannot be curtailed or limited as it is the very foundation of administration of justice, which is the primary object of the indian Constitution. When certain matters are committed to jurisdiction of a Tribunal or authority and its determination is made finally and civil courts are expressly debarred in exercising of jurisdiction over those matters, the question of fact and law, both would thus fall in the exclusive jurisdiction of that Tribunal or authority but the jurisdiction of the High Court would still be open, of course, its scope would have to be somewhat limited. ( 3 ) WITHIN this limited scope fall the cases of action ultra-vires the statute, it being a nullity and violative of fundamental principles of judicial procedure or natural justice affecting prejudicially the entire process. Even if a statute confers upon the Authority or the Tribunal special jurisdiction in relation to procedure and finality, still the High Court's jurisdiction of judicial review can hardly be excluded. The basic issue relates to the scope of jurisdiction. The Air Force Act is a special legislation applicable to a class of persons and is primarily intended to maintain high standards of discipline without impinging upon the basic rule of law. It is also a settled principle that the fundamental or basic rights of the members of the Air Force are protected except in the restricted events specified in the constitutional provisions itself. It is also a settled principle that the fundamental or basic rights of the members of the Air Force are protected except in the restricted events specified in the constitutional provisions itself. There is nothing in the provisions of the Act which would require the Court to read any kind of exclusion of supervisory or extraordinary jurisdiction as the presumption normally would be against exclusion of such jurisdiction. ( 4 ) ERROR of jurisdiction and its remedial measure is a concept which is applicable to questions of law and whenever the question of jurisdiction, inherent or otherwise, is raised, the court would not hesitate in invoking the principles of judicial review unless such question its is within the tribunal's own jurisdiction. Certain facts giving rise to the question of law or mixed question of law and fact, must exist before the court can be called upon to exercise such jurisdiction. It would not be permissible to invoke this principle where relevant provisions of the Statute vest discretion in the authorities and such discretion has been exercised in conformity with the rules. Merely because another view should have been taken or could be taken, is no reason for inviting judicial intervention in proceedings before a tribunal or authority which have lawfully been invoked. ( 5 ) LIMITATION as on jurisdiction of the court would not be permitted to undermine the doctrine of fair play and good conscience even in domestic or proceedings before a special Tribunal constituted under an Act. The court would not obliterate fair play and good conscience in the guise of high and strict standards of discipline. Any procedure in a strict sense need not stand to judicial test but is expected to be in consonance with a sense of fairness. In the case of Mohan Rao v. UOI, a Division Bench of Rajasthan High Court in WP (C)No. 400/1988 while referring to the Judgment of the Supreme Court in the case of State of Andhra Pradesh v. C V Rao, (1975) 2 SCC 557 stated that the High Court is not a court of appeal and cannot really re-appreciate evidence on record. ( 6 ) LEARNED counsel appearing for the parties referred to the cases where the court martial proceedings had been concluded and even pre-confirmation and/or post-confirmation petitions had been disposed of by the concerned authorities. ( 6 ) LEARNED counsel appearing for the parties referred to the cases where the court martial proceedings had been concluded and even pre-confirmation and/or post-confirmation petitions had been disposed of by the concerned authorities. The principles enunciated in those cases would not be stricto senso applicable to the case in hand as the petitioner has chosen to invoke the jurisdiction of this court at the very initial stages of the court martial proceeding and has prayed for quashing and/or, in any case, staying the further proceedings before the court martial court. ( 7 ) LEARNED counsel appearing for the respondents also took an objection that confirmation of the finding and sentence recorded by the court martial do not become operative till the time they are confirmed by the competent authorities and as such the writ was premature and not maintainable. In this regard, she relied upon the judgments in the cases of S. N. Mukherjee v. UOI, AIR 1990 SC 4984 and Captain Tony George v. Chief of Army staff and others, CWP No. 1376/1986, decided on 19th July, 1996. These judgments do, in no-way, suggest or lay the law that the jurisdiction of the high Court under Article 226 of the Constitution is ousted till the stage of confirmation of sentence and finding of the court martial by the competent authority is reached. No doubt finding or sentence would become operative only after it is confirmed but that, in no-way, implies that the High Court in proper cases cannot interfere during the commencement or pendency of the court martial proceedings prior to confirmation. In fact, the Full Bench of this court in the case of Fg. Offr. S. Sundarajan v. UOI and others, AIR 1970 Delhi 29 (FB) held as under:- - "this is not to say that the proceedings of a Court-martial are entirely immune from scrutiny by this Court. In fact, that was not the position even before the advent of the Constitution and there are several reported cases where a writ of habeas corpus was issued under Section 491 cr. P. C. when the jurisdiction of the Court-martial concerned was under challenge. The inquiry in all those cases was however directed to ascertain whether the person held in custody was subject to military law or the court itself was properly convened and constituted. That jurisdiction the High Court always had and has it even today. P. C. when the jurisdiction of the Court-martial concerned was under challenge. The inquiry in all those cases was however directed to ascertain whether the person held in custody was subject to military law or the court itself was properly convened and constituted. That jurisdiction the High Court always had and has it even today. The question for decision however is whether the ambit of that jurisdiction has in any way been enlarged by Article 226 of the Constitution. 22. XXXXXXXXX. The Bench approvingly referred to an earlier judgment of my Lord the Chief Justice sitting singly as a Judge of the Punjab high Court in Mrs. Saroj Prasad v. Union of India, (Criminal Writ no. 1-D of 1963) D/-13-5-1963 (Punj) and also referred to a short extract from a concurring note added by Bachawat J. in the Supreme Court's judgment in Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 where it was said:-"it is to be noticed that the present petition does not challenge the validity of an order of imprisonment passed in a criminal trial. I must not be understood to say that the remedy of a writ of habeas corpus is available to test the propriety or legality of the verdict of a competent Criminal Court. " And finally summed up the position in the following words:- "the principle that a writ of habeas corpus is not grantable in general when the party is convicted in due course of law is attached with greater strictness to a person convicted by a duly constituted Court-martial, the finding and sentence of which have, in due course, been confirmed by a competent authority. Nothing "has been shown which would induce us to hold that the finding and the sentence as confirmed are tainted with such a serious jurisdictional infirmity that they should be described as non est and ignored. We may repeat that we are not entitled to go into the regularity of steps taken by the Court-martial in the course of trial or by the Confirming authority in the finding and the sentence which do not g to their jurisdiction and confirming. If we may say so with respect we have not been persuaded to hold that there was any such irregularity or illegality which would go to the jurisdiction of the Court-martial or the confirming authority". ( 8 ) IN the case of Maj. If we may say so with respect we have not been persuaded to hold that there was any such irregularity or illegality which would go to the jurisdiction of the Court-martial or the confirming authority". ( 8 ) IN the case of Maj. G. S. Sodhi v. UOI and others AIR 1991 SC 1617 , the Supreme Court had the occasion to examine various provisions in relation to pre-trial procedure and the court held that the High Court would not make a roving enquiry into allegations, counter allegations or factual controversies. Substantial compliance to the procedure and provisions was held to be proper. In the case of UOI v. Harish Chandra Goswami, 1999 (4) SLR 364 wherein the court, as a matter of fact, found that there was no written order by the Commanding Officer nominating the personnel of court martial and there was no valid constitution of the court martial as per rules, the court quashed the proceedings while holding as under:- "admittedly there is no record whatever in the file to show that the personnel of the Court Martial were appointed by or nominated by the lt. General. The order for the assembly of a General Court Martial did not contain either the signature or the initial of the Lt, General. It was signed only by the Colonel and none else. In the circumstances the said order cannot be considered to be an order evidencing the appointment of personnel of the Court Martial by the Lt. General. There is no dispute before us that under Rule 37, the Commanding Officer has to apply his mind tp satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act and that evidence justifies the trial of those charges. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court Martial which he proposes to convence. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court Martial which he proposes to convence. However, learned counsel for the appellants contends that sub-Rule 3 of Rule 37 is only procedural in nature and there is no need for the application of mind by the Commanding Officer in the matter of appointment of the personnel of Court Martial, That contention loses its relevance in the present case in view of the categorical stand taken by the appellant, that there was an order by the Commanding Officer appointing or detailing the officers to form the Court Martial. According to the learned counsel as stated earlier, the form for Assembly of Court Martial is the only relevant form and when it is signed by an officer on behalf of the Lt. General, that is sufficient proof of the appointment of the personnel of the Court Martial by the Lt. General. We are unable to accept this contention in view of the fact that the said form does not contain either the signature or the initial of the Lt. General. Even assuming that the Lt. General passed an oral order, there is no record of any kind whatever to prove it. The form for Assembly of Court Martial was not contemporaneous to such oral order, if any. In the absence of any record whatever to show that the appointment of the personnel of the Court Martial was by the Lt. General, we are not persuaded to accept the contention of the appellants that the requirements of Rule 37 were fully satisfied, It is unnecessary for us to consider whether sub-Rule 3 of Rule 37 requires an order in writing or not in view of the specific stand taken by the learned counsel for the appellants in this case that there was an order in writing and the said order was nothing else but the form for Assembly of the Court martial. " ( 9 ) WHENEVER decision or action in such proceedings suffers from the vice of arbitrariness and irrationality coupled with illegality, the court would step in so as to enforce protections available to an accused before the court martial and to ensure enforcement of basic rule of law. " ( 9 ) WHENEVER decision or action in such proceedings suffers from the vice of arbitrariness and irrationality coupled with illegality, the court would step in so as to enforce protections available to an accused before the court martial and to ensure enforcement of basic rule of law. ( 10 ) THE respondents also relied upon the judgment of the Karnataka high Court in the case of Ms. Anjalii Gupta v. UOl and others, WP No. 14279/2005 (GM-RES), decided on 6th June, 2005, to contend that the court would not normally interfere in the proceedings of the court martial on the grounds like non-application of mind, constitution of the general court martial being contrary to provisions of law and whether the summary of evidence was recorded properly in accordance with Rule 24 of the Air-Force rules, 1969. The perusal of the judgment clearly shows that the court did not find merit in the contentions raised before it and held that the court martial court was properly convened and constituted and there was no violation of the statutory rules. The judgment no- where suggests that the high Court has no jurisdiction to interfere with the trial proceedings before the court martial. Basically, the court while relying upon the judgment of the Supreme Court in the case of Som Datt Datta v. UOI and others, AIR 1969 SC 414 found that it was not necessary for the authorities to record reasons of subjective satisfaction by passing a detailed order while convening the court martial. This proposition of law in fact requires no deliberation and is in consonance with the relevant provisions and basic rules of law. The analysis of the principles enunciated in these judgments discernly establishes the precept that the court has the jurisdiction under article 226 to intervene at any stage of the proceedings of the court martial and even prior thereto provided the case falls within the parameters of the limited extra-ordinary jurisdiction. ( 11 ) THE General Court Martial is a Court, the constitution/convening and procedure whereof is statutorily provided. It is a kind of statutory tribunal which has to exercise its power within the specified limitations for trial of a person subject to the Act. ( 11 ) THE General Court Martial is a Court, the constitution/convening and procedure whereof is statutorily provided. It is a kind of statutory tribunal which has to exercise its power within the specified limitations for trial of a person subject to the Act. Its independent functioning has to be maintained, but wherever such Tribunal exceeds its jurisdiction and infringes the law or principles of natural justice, the Courts will intervene to ensure compliance to the statutory safeguards available to the accused. In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and others, AIR 1974 Supreme Court 228 the Supreme Court stated the principle that so long as the exercise of power is not smeared by bad faith, influenced by extraneous consideration, uniformed by relevant factors and is within the limits of reasonableness, it becomes out of bounds for judicial revaluation. The Court cannot re-value evidence and substitute its opinion over that, of the authorities even on the ground of expedient solution. Wherever the above stated principles are offended by the administrative authorities then invariably judicial castacism would be a natural consequence. Alternative remedy, as conceived, by filing a pre-confirmatory petition or representations under the Statute in the cases which squarely fall within the stated parameters, would not take away the jurisdiction of the Court to entertain a petition. Availability of alternative remedy, even if it is efficacious, would not in any way curtail the powers of the Court under article 226 of the Constitution of India, provided the cases belong to the limited class of cases narrated by us in this judgment. If there is a patent error of law, lack of inherent jurisdiction and case of no evidence, would be the cases for which availability of an alternative remedy by filing a pre or post confirmation petition can be said to be a reasonable and efficacious alternative remedy inviting the bar to maintainability of such petitions. ( 12 ) THE provisions of the Air Force Act and the rules framed thereunder specifically deal with every stage of the trial right from the order of convening of the court martial court by the competent authority, right to know charge, right to lead defence and even matters like appearance of the accused. Thus, they provide a complete and composite procedure for convening/ commencement of trial, findings, convictions and remedies pre and post conviction. Thus, they provide a complete and composite procedure for convening/ commencement of trial, findings, convictions and remedies pre and post conviction. The Statute having prescribed such specific and regulated procedure with remedial provisions, leads to limited scope for judicial review. The onus to show that the case falls within the parameters of such limited jurisdiction, is obviously upon the petitioner. Cases of action, being violative of rules, ultravires, arid having lack of inherent jurisdiction would squarely fall within this limited category but alleged violation of natural justice in matters of dismissal or removal per se does not become justiciable except where it is substantial violation of principles of natural justice coupled with prejudice. The jurisdiction of the High Court under article 226 of the Constitution is very wide. Probably it is a discretion of most extensive nature but the courts have always cautioned themselves to exercise such discretion subject to the limitation. In the case of Jariardhan reddy and others v. The State of Hyderabad and others, AIR 1951 SC 217 , the Supreme Court clearly stated the dictum that the High Courts will exercise their discretion in accordance with judicial considerations and well-established principles. For invoking the extra-ordinary jurisdiction, the petitioner must make out exceptional circumstances or jurisdictional or legal issues as afore-noticed so as to take recourse to this exceptional jurisdiction even at the initial stages of the proceedings before a Tribunal or an authority. ( 13 ) IT may not only be arduous but also an area of law to state a strait-jacket formula determining the class of cases which undoubtedly would fall within the stated class of cases amenable to writ jurisdiction. In fact, sometimes, it is even impermissible to define such parameters with absolute certainty. To provide cases of inclusion or exclusion from such category by precision, would be improbable. However, the Court can always attempt to provide certain precepts which can fairly be applied to the facts and circumstances of a given case while exercising its extraordinary jurisdiction whenever the petitioner invokes the same at the initial stages of a General Court Martial. Statement of such principles would in no way be innovative but would be re-affirmation of the already enunciated principles. These guidelines have been stated in various judgments and are in consonance with the basic rule and principles governing matters relating to jurisdiction. Statement of such principles would in no way be innovative but would be re-affirmation of the already enunciated principles. These guidelines have been stated in various judgments and are in consonance with the basic rule and principles governing matters relating to jurisdiction. The provisions of the Air Force Act would have to be read and construed in comity to the extraordinary jurisdiction of the High Court under article 226 of the Constitution of India. There can be no. doubt that such jurisdiction, particularly in relation to cases where the petitioner approaches the Court at very initial stages/outset of the General Court martial proceedings, would be a limited one. It is difficult to provide guidelines which are exhaustive. However, reference can be made to certain principles governing such jurisdiction which would merely be illustrative. Therefore, the cases where the jurisdiction of the High Court under Article 226 of the Constitution of India could lawfully be invoked by the petitioner can illustratively be stated as under:- (a) Where the action taken is ultra vires the Statute. (b) Where the procedure adopted by the authorities is violative of the fundamental principles of natural justice, and is likely to cause an irreversible prejudice to the petitioner. (c) Where the action has been initiated without the sanction or approval of the competent authority as contemplated under the statute and which raises a question of jurisdiction going to the very root of the matter. (d) Where the action and the order complained of are violative of principles of natural justice coupled with serious prejudice to the rights and protections available to the accused under the statute. (e) Where the action lacks inherent jurisdiction and it would be prejudicial and futile to permit continuation of the proceedings before the Court. (f) Where the charge is based on "no evidence" and constitute no misconduct in terms of the Statute. ( 14 ) THE discretionary power in relation to Tribunals of Special jurisdiction should be sparingly exercised, but such powers could be invoked and be exercised by the Courts in cases which fall in the above categories and the same is also essential for preventing failure or miscarriage of justice. Facts of the Case ( 15 ) ON 6th December, 1985, the petitioner was comissioned in the indian Air Force. Facts of the Case ( 15 ) ON 6th December, 1985, the petitioner was comissioned in the indian Air Force. As per averments made in the writ petition, the petitioner was one of the top notch MIG-21 Fighter Pilots of the nation. He was also a fighter Combat Leader with 2000 hours of Fighter aircraft flying experience and had an excellent career profile. On his own merit and because of his distinguished service, the petitioner was promoted to the rank of Wing commander. On 15th May, 2005, the petitioner made a request for posting to Military Operational Flying Training Unit so that he could fly MIG 21 fighter Aircrafts. This request was turned down by the authorities. On 16th september, 2005, the petitioner applied for premature retirement. On 22nd september, 2005, a No Objection Certificate was issued to the petitioner for premature retirement. It was also certified that no disciplinary proceedings were pending against the petitioner. However, vide letter dated 20th january, 2006 (Annexure P-5 to the writ petition), the petitioner was informed that cases against him are to be heard formally in terms of Rule 24 of the Air Force Rules, 1969 (hereinafter referred to as the Rules) and the request for premature retirement could not be acceded to until completion of the disciplinary action. Aggrieved from the action of the respondents, the petitioner filed a writ petition being WP (C) No. 2748/2006, which was disposed of by a Division Bench of this Court vide order dated 6th March, 2006. The relevant part of the said order reads as under:- "upon hearing the counsel for the parties and upon going through the records it is crystal clear to us that disciplinary action is pending against the petitioner. In our considered opinion since the departmental action is pending at this stage no direction could be issued to the respondents to consider and grant the request of the petitioner for going on premature retirement. But at the same time, we are also of the considered opinion that there should be expeditious disposal of the departmental action pending against him. The same should, therefore, be conducted and completed as early as possible preferably within a period of three months subject, however, to the condition to the petitioner giving all cooperation in conducting and completing the said departmental action. The same should, therefore, be conducted and completed as early as possible preferably within a period of three months subject, however, to the condition to the petitioner giving all cooperation in conducting and completing the said departmental action. On completion of the said proceedings action shall be taken on the request of the petitioner to go on voluntary retirement in accordance with law provided after closure of the said departmental action the petitioner is still interested to go on such premature retirement. In terms of the aforesaid order, this petition stands disposed of. Pending application also stands disposed of. Let a copy of this order be given dasti to the counsel for the parties. " ( 16 ) ON 10th March, 2006, the authorities passed an order for convening a General Court Martial against the petitioner. The petitioner was charged with the following offences :- "first CHARGE section 65 AIR force ACT, 1950 an ACT PREJUDICIAL TO GOOD 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. 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 ). 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. 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 . ( 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. 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 on 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. It is amply clear that the Court at this stage would examine such matters, which would go to the very root of the case on 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 done 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. 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 and 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. 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. " ( 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 o'n 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 GCM, 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. 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. 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. 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. 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. 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.