Decided on May 02,2013

Nandan Singh Khati Appellant
UNION OF INDIA Respondents


BARIN GHOSH, J. - (1.) LEARNED counsel, appearing on behalf of the respondents, took a preliminary point that the writ petition is liable to be transferred to the Tribunal. By Section 14 of the Armed Forces Tribunal Act, 2007, Tribunal has not been granted powers of the High Court exercisable under Articles 226 and 227 of the Constitution of India and, at the same time, by Section 34 of the Act, the suits or proceedings, the cause of action, whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment, have been directed to be transferred. If the Tribunal does not have the jurisdiction of the High Court exercisable under Articles 226 and 227 of the Constitution of India, a cause of action, entitling recourse being taken under Articles 226 and 227 of the Constitution of India, being a cause of action for redressal whereof the Tribunal can be approached, does not arise. We, accordingly, reject the preliminary objection.
(2.) HEARD learned counsel for the parties.
(3.) BY the order impugned, petitioner has been dismissed from service and he has been imprisoned for one year. The principal contention in the writ petition is that without taking evidence, it has been reported that charges stand proved and, accordingly, the order impugned is interferable. The fact remains that the petitioner faced seven charges. General Court Martial held that the same have not been proved. The matter was sent for confirmation, when the Confirming Authority reviewed the order of the General Court Martial and came to the conclusion that the findings of the General Court Martial are not in accordance with law. It felt that additional evidence, as mentioned in the order, are required to be taken. Those were taken, whereafter the review order stopped. The principal charge was acceptance of money from contractors. This was sought to be established, as was recorded in the review order, by showing acceptance of the same by the petitioner in another General Court Martial, which was taken on record as additional evidence. In the counter affidavit, to which no reply has been filed, it is the specific case that the petitioner wanted to retract from his acceptance recorded in the other General Court Martial. That suggests that when the order of the General Court Martial against the petitioner was not accepted and the same was reviewed, additional evidence, as was mentioned in the review order, was duly taken on record and the petitioner was given due permission to place his case when he tried to retract from what he had accepted in the other General Court Martial. After everything was completed, the final order was passed holding that the subject charges stand proved. It is, therefore, not a case that there was no evidence, on the basis whereof, the order could be passed. There was material in the form of evidence taken as additional evidence and, on the basis thereof, the order was passed. It cannot be contended that, on the basis of the materials, as were available, it could not be concluded that the charges do not stand proved. That being the situation, a judicial review Court, exercising power under Articles 226 and 227 of the Constitution of India, is not entitled to interfere. Challenge thrown to the order of dismissal and punishment fails and, to that extent, the writ petition is dismissed.;

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