- (1.) THE instant writ petition has been filed for quashing the impugned orders dated 11.12.1990 (Annex.10) by which the petitioner has been dismissed from service, consequential orders thereto and the order dated 4.7.1991 (Annex.10-A) by which his petition under Sec. 164(2) of the Army Act, 1950 (for short, "the Act") has been rejected by the Central Government.
(2.) THE facts and circumstances giving rise to this case are that petitioner- the then a Captain in the Indian Army was served with a charge-sheet for holding the General Court Martial (for short, "G.C.M.") proceedings on 13.1.1985 on the allegations of taking illegal gratification from two persons as a motive of rendering services to them. Petitioner filed S.B.C. Writ Petition No.88/85 apprehending that the respondent authorities would not provide him the defence nominee. This Court passed interim order directing the respondents to provide the petitioner a defence nominee. THE first trial stood concluded vide order dated 2.8.1985 and petitioner was dismissed from service. Writ Petition No.88/85 was heard by this Court and vide order dated 4.8.1986 it restrained the authorities to confirm the order of dismissal passed on 2.8.85 and ultimately vide order dated 20.7.88 (Annex.1) this court disposed of the said Writ Petition quashing the first trial proceedings including the order dated 2.8.1985 by which the petitioner had been dismissed from service and issued directions to the respondents to accord the petitioner an opportunity to seek assistance of a Lawyer nominated by him and also to cross-examine the witnesses examined by the prosecution and for that purpose the said witnesses would be re-examined. As the order of this Court dated 20.7.88 was not complied with, petitioner approached this court again by filing Contempt Petition No.22.90 which was heard and decided on 27.8.90 issuing directions to the respondents to allow Shri M.L. Shrimalee, Advocate of this court to advise the petitioner at the cost of the Government and to proceed further in accordance with law. Again, in the G.C.M. proceedings, the objection taken by the prosecutor that petitioner would not lead evidence in defence was allowed, vide order dated 1.10.1990, though there were several list of witnesses contained in Annex.4, to 6 whom the petitioner wanted to examine in his defence. After closing the prosecution and defence case, on 5.10.90 one Col. K.S. Kanwal was examined as court witness No.1, who supported the prosecution case. Petitioner made the submission in the closing address of the C.G.M. proceedings that he was not given the opportunity to defend himself. Vide order dated 12.10.90, the punishment of reducing seniority of the petitioner for six years and withholding increment for a period of eight years was passed. however, vide order dated 7.12.90 the sentence was directed to be revised and in pursuance thereof vide order dated 11.12.90 (Annex.10) order of dismissal from service was passed against the petitioner. THE said order of punishment was confirmed vide order dated 7.2.91. Being aggrieved petitioner filed a petition under Sec. 164(2) of the Act before the Central Government which stood rejected vide order dated 4.7.1991 (Annex.10-A). Being aggrieved and dissatisfied petitioner preferred Writ Petition No. 3965/91 before the Allahabad High Court (Lucknow Bench) challenging the order of dismissal his petition under Section 164(2) of the Act vide order dated 4.7.91. THE Allahabad High Court dismissed the Writ Petition vide order dated 6.5.1992 only on the ground that it had no territorial jurisdiction in the matter as neither the cause of action had arisen in its territorial jurisdiction nor any of the respondents was having residence or official address therein. THE opportunity was given to the petitioner to approach the appropriate forum. Hence, this petition. The petitioner has raised a large number of issues, particularly mala fides, irregularities in resisting the order of punishment and passing of a non-speaking order by the Central Government on his petition made under Section 164(2) of the Act, 1950. But above all, his grievance has been in respect of not allowing him to examine the defence witnesses. In wake of the above, petitioner submitted for quashing of the impugned orders. On the other hand, it has been submitted on behalf of the respondents that the scope of the judicial review in Court- Martial proceedings is very limited. This Court cannot have a roving inquiry in the allegations of malafides. No irregularity was committed in revising the order of punishment; nor there was any requirement for the Central Government to pass the speaking order. Petitioner was not allowed to lead evidence in defence as there had been no direction in this regard by this Court while quashing the punishment order earlier and h3e had not furnished the list of witnesses to be called by him at the initial stage as required under Rule 34(1) of the Army rules, 1954 (hereinafter called "the Rules"). Hence, no relief can be granted to the petitioner. I have considered the rival submissions made on behalf of the parties. It is settled proposition of law that the judicial review is not permissible against the decision/order of punishment, rather it lies only against the process of decision-making. In S.N. Mukherjee vs. Union of India (1), the Constitution Bench of the Hon'ble Supreme Court dealt with a case wherein the appellant had challenged the validity of the findings and the sentence recorded by the G.C.M. and the order of the Chief of Army Staff Confirming the same. It was held therein that the Supreme Court under Article 32 and the High Court under Article 226 have the power of judicial review in respect of proceedings of courts-martial in respect of proceedings of courts-martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.
(3.) SIMILAR view has been reiterated in General Court-Martial & Ors. vs. Col. Aniltej Singh Dhaliwal (2). In Union of India & Ors. vs. Maj. A. Hussain (3), Hon'ble Supreme Court observed as under:- "Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court- martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court may stay its hands off. Proceedings of a court-martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure.......... It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. .......... it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused .......... One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment. The Army Act and the Rules framed thereunder constitute a self contained Code providing for a proper procedure for holding Court Martial proceedings. In Ranjit Thakur vs. Union of India & Ors. (4), the Apex Court held as under:- "The procedural safeguard contemplated in the Act must be considered in the context of and corresponding to the plentitude of the summary jurisdiction of the Court Martial and the severity of the consequence that visit the person subjected to that jurisdiction. The procedural safeguard should be commensurate with the sweep of powers. The wider the power, the greater is the need for restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguard envisaged by the Statute." ;