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2020 DIGILAW 1246 (KAR)

Bank Of Baroda v. Bavaguthu Raghuram Shetty

2020-06-26

B.VEERAPPA, M.I.ARUN

body2020
JUDGMENT E.S. Indiresh, J. - The petitioner has sought for the following relief: (a) that this Court may be pleased to issue a writ of certiorari or appropriate writ or direction as it deems fit to grant, consequently quash the convening of General Court-martial for the 3rd respondent on its order dated 31.03.2020 by the 4th respondent vide order dated 02.04.2020 impugned vide Annexure-A; (b) issue a writ of mandamus or appropriate writ directing the respondents to furnish/issue the copies o the order dated 27.05.2020 vide Exhibit-P passed on Annexure-B and Annexure-C by the General Court Martial convene by the respondents and to direct the respondents to furnish the copies of the deposition/testimony of the witness recorded on day to day basis and also the day to day proceedings conducted by the members of the GCM to the petitioner. 2. The brief facts of the case, for the purpose of adjudication of this Writ Petition are that the petitioner is working as Sergeant in Indian Air-force and presently serving at Command Hospital, Air Force, Bangalore as a Clerk/Equipment Assistant at Budget Table as well as incharge of Accounts Section. The Senior Accounts Officer of the second respondent has received information regarding the variation in the hard copy and the soft copy of the bank schedule which was forwarded to Canara Bank Extension Counter on 21st September, 2009, whereunder an amount of Rs.3,77,370/- was to be remitted in favour of the vendor by name M/s. Supreme Health Care (B) Pvt. Ltd., however, it was found on verification on the statement which was reflected against M/s. Vivek and Co. in the account maintained at Kotak Mahindra Bank, being the account of the petitioner in various transactions since 2018 and in view of the said allegation of the misappropriation of fund, a Court of Inquiry was initiated against the petitioner. Pursuant to the aforesaid allegation of misappropriation of funds, the third respondent has passed the order dated 02nd April, 2020 (Annexure-A) to try the offence of misappropriation of funds as per the charge sheet filed against the petitioner, by convening a General Court-Martial (hereinafter referred to as 'GCM' for short). 3. The petitioner submits that the said constitution of GCM is contrary to Section 110 of the Air Force Act, 1950 (for short hereinafter referred to as the 1950 Act'). 3. The petitioner submits that the said constitution of GCM is contrary to Section 110 of the Air Force Act, 1950 (for short hereinafter referred to as the 1950 Act'). The Petitioner further states that the respondents herein are taking revenge against the petitioner and are not furnishing the relevant material during the Inquiry proceedings and in view of the same, the petitioner has sought for issuance of copies of the order dated 27th May, 2020 and such other copies of deposition/testimony of witnesses recorded on dayto- day basis, etc. Being aggrieved by the aforesaid action on the part of the respondents alleging that the respondents are showing vindictive attitude against him and as such, the petitioner has presented this writ petition. 4. After service of notice, respondents herein have filed statement of objections stating that the Group Captain, Command Discipline Officer for Air Marshal, who has issued the order dated 02nd April, 2020 as an authorized officer of the Air Marshal by order dated 31st March, 2020 and in view of the same, the impugned order at Annexure-A is issued by the competent person as required under Section 110 of the 1950 Act. The respondents further contended that, in view of the order dated 27th May, 2020 at Annexure-R4, whereunder subsequent to issuance of Annexure-A with regard to the constitution of the Officers to conduct Inquiry for the purpose of trying allegations against the petitioner, the GCM has passed the order at Annexure-R4 and in view of the same, the petitioner has to exhaust the remedy available under Section 15 of the Armed Forces Tribunal Act, 2007 which deals with jurisdiction, powers and authority in matters of appeal against Court-Martial. The respondents further stated that this Court has no jurisdiction to entertain the writ petition, in view of the bar as provided under Article 227(4) of the Constitution of India, and accordingly, the respondents have sought for dismissal of the writ petition. 5. I have heard Shri Premnath, T.N., learned counsel appearing for the Petitioner and Shri Madhukar Deshpande, learned Central Government Standing Counsel for the respondents. 6. The learned counsel appearing for the petitioner contended that the power to convene GCM is by the Air Staff or by any Officer empowered in this behalf by warrant of the Chief of the Air Staff as contemplated under Section 110 of the 1950 Act. 6. The learned counsel appearing for the petitioner contended that the power to convene GCM is by the Air Staff or by any Officer empowered in this behalf by warrant of the Chief of the Air Staff as contemplated under Section 110 of the 1950 Act. However, the said order of convening of the GCM (Annexure-A) is by the Group Captain, Command Discipline Officer for Air Marshal, and therefore, the order at Annexure-A is passed by an incompetent person, and hence the entire inquiry proceedings initiated against the petitioner is contrary to Section 110 of the 1950 Act. He further submits that respondents herein have arbitrarily initiated Inquiry against the petitioner despite the petitioner has filed his reply (Annexure-C) for dissolution of GCM proceedings in view of Section 110 of the 1950 Act, and accordingly, the learned counsel for petitioner sought for quashing of further proceedings to the order passed at Annexure-A dated 02nd April, 2020. 7. The learned counsel for the petitioner further contends that the petitioner has requested the Members of GCM to provide relevant particulars with regard to enquiry. However, the Members of the GCM have refused to provide necessary documents and as such, the said illegal action on the part of the Members of the GCM amounts to violation of principles of natural justice; and therefore, he submits that the order of convening GCM at Annexure-A, as well as not providing necessary particulars, amounts to breach of law and arbitrary action on the part of the respondents. 8. Per contra, Shri Madhukar Deshpande, learned Central Government Standing Counsel, by referring to the order dated 31st March, 2020 passed by the Air Marshal submits that the competent person (Air Marshal) has issued the warrant for initiating the enquiry proceedings against the petitioner and same is in accordance with Section 110 of the 1950 Act as well as Rule 43(4) of the Air Force Rules, 1969 (for short, hereinafter referred to as 1969 Rules'). He further contends that in view of the order passed by the respondent Authority at Annexure-R4, the writ petition deserves to be dismissed as infructuous and the petitioner has to exhaust alternative remedy before the competent forum. He also submits that in view of the order Annexure-R4 passed by the Authority, this Court has no jurisdiction to entertain the writ petition, as there is bar under Article 227(4) of the Constitution of India. 9. He also submits that in view of the order Annexure-R4 passed by the Authority, this Court has no jurisdiction to entertain the writ petition, as there is bar under Article 227(4) of the Constitution of India. 9. The learned Central Government Standing Counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS v. EX. FLT. LT. G.S. BAJWA, (2003) 9 SCC 630 with regard to custody and inspection of the proceedings by the delinquent officer. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA v. CHANDRA BHUSHAN YADAV, (2020) 2 SCC 747 whereunder, in an identical situation, the Hon'ble Supreme Court has held that Group Captain has issued the order convening the GCM which is issued in the name of Air Marshall and as such, convening the GCM order is approved by the competent authority as per Rule 43(4) of the 1969 Rules, and in view of the same, he refuted the two contentions raised by the petitioner herein and sought for dismissal of the writ petition. 10. Having heard the learned counsel for the parties, the controversy with regard to the writ petition is two fold: (i) Whether the impugned order dated 02nd April, 2020 at Annexure-A is passed by an incompetent officer? (ii) Whether refusal of the documents by respondents herein is in violation of the principles of natural justice? 11. I have carefully considered the entire case papers on record and arguments advanced by the learned counsel appearing for the parties. 12. It is relevant to extract Section 110 of the Air Force Act, 1950 which reads as under: "110. Power to convene a general courtmartial.- A general court-martial may be convened by the Central Government or the Chief of the Air Staff or by any officer empowered in this behalf by warrant of the Chief of the Air Staff." 13. Perusal of Section 110 of the 1950 Act makes it clear that a GCM may be convened even by an officer having power to convene GCM, viz. Central Government or the Chief of the Air Staff or by any officer empowered by warrant of Chief of the Air Staff. Rule 43 of the 1969 Rules deals with convening of General and District Court-martial. Central Government or the Chief of the Air Staff or by any officer empowered by warrant of Chief of the Air Staff. Rule 43 of the 1969 Rules deals with convening of General and District Court-martial. The Hon'ble Supreme Court had an occasion to examine the issue pertaining to the "authority" competent to convene the courtmartial in the case of G.S. BAJWA (supra). At paragraph 44 of the judgment, it is held as under: "44. A ground was taken before the High Court (ground f) that the convening of the General Court Martial was signed by an officer, in whose name no delegation or such authority had ever been made. In reply thereto the appellant had submitted that the convening order was signed by the said officer on behalf of the Air Officer Incharge Personnel, who had after due application of mind, issued the order for convening the above Court Martial. It was not disputed before us that the Air Officer Incharge Personnel (AOP) was empowered to convene a Court Martial. The only question which, therefore, requires consideration is whether the order convening the General Court Martial was passed by the AOP and it was only formally communicated under signatures of Air Cdr. concerned or whether the Air Cdr. named therein, who was not empowered, himself passed the convening order. With a view to avoid any controversy on this factual position, we directed the appellant to produce before us the original file. We have perused the file and we find that the order for convening the General Court Martial was approved by Air Marshal D.A. Lafotaine, AOP. There is, therefore, no force in the submission that the convening order was unauthorized and, therefore, illegal." 14. I have perused the Order at Annexure-A dated 02nd April, 2020 by which the Group Captain, Command Discipline Officer has convened the GCM and the same is issued in the name of Air Marshall AS, Butola, VM VSM, Air Officer Commanding-in-Chief, Training Command, Indian Air Force, Bengaluru dated Thirty First Day of March, 2020. It is needless to state that the order was signed by the Group Captain Mr. Vineet Sharma, Command Discipline Officer for Air Marshal, Air Officer Commanding-in-Chief, Training Command, Indian Air Force on behalf of Air Chief, who is the competent person to pass order of convening GCM as contemplated under Section 110 of the 1950 Act. It is needless to state that the order was signed by the Group Captain Mr. Vineet Sharma, Command Discipline Officer for Air Marshal, Air Officer Commanding-in-Chief, Training Command, Indian Air Force on behalf of Air Chief, who is the competent person to pass order of convening GCM as contemplated under Section 110 of the 1950 Act. Rule 43(4) of the 1969 Rules provides that a Convening order may be passed by a Commanding Officer or by a Senior Officer on his behalf. The fact that the Group Captain Mr. Vineet Sharma was the Personal Staff Officer for the Air Officer Commandingin- Chief, Training Command, Indian Air Force, is not in dispute. 15. This Court, by order dated 18th June, 2020 has directed the respondents herein to produce the original file, particularly with regard to order dated 31st March, 2020 passed by the respondents. In compliance of the aforesaid order dated 18th June, 2020, the respondents herein have produced the original records before this Court. I have perused the original records made available by the respondents and on perusal of the same, the recommendation for constitution of GCM was approved by Air Officer Commanding-in-Chief, Training Command, Indian Air Force on 31st March, 2020. A perusal of the record reveals that order of convening GCM had the approval of the competent authority as per Section 110 of the 1950 Act and as such, it cannot be termed as unauthorised, as contended by the learned counsel for the petitioner in view of the law declared by the Hon'ble Supreme Court in the case of CHANDRA BHUSHAN YADAV (supra), wherein at paragraph 22 of the judgment, it is held thus: "22. The convening order which was signed by the Staff Officer of the AOC-in-C is in accord with Rule 43(4) of the Rule and no fault can be found with the order. The Tribunal committed an error in holding that the convening order was by an officer who was not competent." 16. As regards the second contention of the learned counsel for the petitioner that the petitioner was not provided with the relevant particulars by the respondent-authorities is concerned, the learned Central Government Standing Counsel submits that the respondent authorities have made available all the records for inspection to the petitioner herein and the said submission was not disputed by the petitioner. As regards the second contention of the learned counsel for the petitioner that the petitioner was not provided with the relevant particulars by the respondent-authorities is concerned, the learned Central Government Standing Counsel submits that the respondent authorities have made available all the records for inspection to the petitioner herein and the said submission was not disputed by the petitioner. It is useful to refer to the judgment of the Hon'ble Supreme Court in the case of G.S. BAJWA (supra) wherein at paragraph 40 of the judgment, it is observed thus: "It will thus be seen that there is a specific provision in the Rules which provides for copies of the proceedings to the person tried by the Court Martial free of cost at any time after the confirmation of the finding and sentence and before the proceedings are destroyed. Clearly, therefore, the respondent was not entitled to a copy of the proceedings day to day as claimed by him. However, Rule 100 in terms provides that the proceedings may be inspected by the accused at all reasonable times before the court is closed to consider the finding. Nothing, therefore, prevented the respondent from inspecting the proceedings and preparing his defence. Rule 100 itself incorporates the principle of natural justice by giving to the respondent an opportunity to go through the proceedings and for this purpose to inspect the same at all reasonable times. This meets the requirement of principles of natural justice and the respondent cannot complain on the ground that he was not given a copy of the proceedings day to day. The High Court was, therefore, clearly wrong in coming to the conclusion that the principles of natural justice were violated by non supply of copies of proceedings day to day." 17. In view of the undisputed fact that the respondent authorities have made available all the records to the petitioner for inspection as provided under Rule 44 of the 1969 Rules, the second contention raised by the petitioner also does not call for any interference in this petition. 18. In view of the undisputed fact that the respondent authorities have made available all the records to the petitioner for inspection as provided under Rule 44 of the 1969 Rules, the second contention raised by the petitioner also does not call for any interference in this petition. 18. Suffice it to say that pursuant to the filing of the writ petition, the respondents have passed the order dated 27th May, 2020 vide Annexure-R4 and in view of the same, the interference with regard to the impugned order does not call for as the relief sought for in this writ petition is futile in nature and therefore, the remedy available for the petitioner is to approach the competent forum as provided under the 1950 Act. 19. In view of the discussion made above, the points for consideration stated above, is answered in favour of the respondents as the petitioner has not made out a case for interference with the impugned order dated 02nd April, 2020 at Annexure-A, and following the law declared by the Hon'ble Supreme Court stated supra, the writ petition deserves to be rejected as the same is devoid of merit. 20. Hence, the following: ORDER Writ Petition dismissed. No order as to costs.