B.N Kirpal, J. (Oral):— The challenge in this writ petition under Article 22 of the Constitution of India is to the findings and sentence imposed on the petitioner by the District Court Martial, as confirmed by respondent No. 3 who was the Convening Officer and the Disciplinary Authority.

2. The petitioner was posted as a Sergeant at the Air Force Station at Sambra in the State of Karnataka in the year 1960. On 31st August, 1973 an incident occurred wherein it was alleged that the petitioner slapped and abused one Shri Milap who was holding a higher rank than the petitioner. A Court of Inquiry was ordered to go into the said incident. The said Court completed its proceedings and gave its report to the Authorities.

3. On the basis of the aforesaid report of the Court of Inquiry, two charges were framed against the petitioner by his Commanding Officer (respondent No. 5). Summary of evidence was thereafter recorded on 14th and 15th September, 1973. The said charges along with summary of evidence are stated to have been forwarded by respondent No. 5 under Rule 25 (2) of the Indian Air Force Rules, 1969, (hereinafter referred to as the said Rules) to the superior Air Force Authorities. On 26th October, 1973 who orders were issued. The first order was under Rule 43(1) ordering that the petitioner should be tried by District Court Martial on the charges mentioned therein and the second order was under Section 111 of the Air Force Act read with Rule 43(3) of the Rules convening the District Court Martial for the trial of the petitioner. In the second order, respondent No. 6 was appointed as the Presiding Officer and the other members of the Court were also specified. Both these orders were signed by Wing Commander R.O Lakin “For Air Vice Marshal, Air Officer Commanding-in-Chief, Training Command, IAF”.

4. The petitioner was tried by the said District Court Martial. The trial commenced on 2nd November, 1973 and concluded on 8th November, 1973. The Court found the petitioner guilty of the offences charges against him and re-petitioner guilty of the offences charged against him and recorded its findings on 8th November, 1973. The Court recommended that the petitioner should be sentenced as under:—

“1. To be reduced to the ranks; and

2. To undergo detention for 2 months.”

5. Before the aforesaid sentence was confirmed, the petitioner made a representation to respondent No. 3. By order dated 26th November, 1973 respondent No. 3 confirmed the findings and sentence of the District Court Martial under Section 154 of the Air Force Act but commuted the passed on the petitioner to the following lower sentence:—

“1. To be reduced to the rank of Corporal, and

2. To be severely reprimanded.”

The said confirmation order of respondent No. 3 was promulgated on 1st December, 1973.

6. The petitioner then, on 1st December, 1973, made an application to the Central Government and to the Chief of Air Staff under Section 161(2) of the Act for quashing the aforesaid findings and sentence of the District Court Martial as confirmed by respondent No. 3, but to no avail. It is thereafter that the present writ petition, challenging the aforesaid decisions, has been filed.

7. The main contention of the learned counsel for the petitioner in the present case is that respondent No. 3 was the Convening Authority and he did not take the decision to convene the District court Martial and nor were any orders issued by him framing the charges and nor was the District Court Martial convened by him. The learned counsel submits that under the Act and the Rules these actions have to be taken by the Convening Officer himself and a subordinate officer cannot act as an agent of the Convening Officer.

8. In order to appreciate the aforesaid contention, it is necessary to refer to the relevant provisions of law. Section 109 provides for three different kinds of Court Martial including District Court Martial. The power to convene a District Court Martial is contained in Section 111 which provides that such a Court Martial may be convened by an Officer having power to convene a General Court Martial or by an officer empowered in this behalf by warrant of any such officer. It is an admitted case that respondent No. 3, by virtue of a warrant in this behalf, had been duly empowered to convene a District Court Martial.

9. Section 191 provides that all rules and regulations made under the Act shall have the effect as if they were enacted in the Act.

10. Rule 43 refers to the convening of General and District Court Martial. The relevant provisions of the said rule read as under:—

“43. Convening of general and district court-martial. (1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offence within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.

(2) He shall also satisfy himself that the case is a proper one to be tried by the description of Court martial he proposes to convene.

(3) The officer convening a court-martial shall appoint or detail the officers to form the court, and may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.”

11. Rule 48, inter alia, states that District Court Martial shall not be composed exclusively of officers of the same unit, “unless the convening officer states in the order convening the court” that other officers are not available. Rule 49 requires an order convening the court to be read at the time when the court assembles and it is for the court to satisfy itself that it has been duly constituted. After the court is satisfied under Rule 49 that it has been duly constituted, there under Rule 51 it shall cause the accused to be brought it. Rule 52 then requires that the order convening the court and the names of the Presiding Officer and Members of the court are read over and the accused is asked, as required by Section 129, whether he objects to be tried by any officer sitting on the court. My attention has also been drawn to the form of the order convening the court martial which requires that it shall be signed by the Convening Officer.

12. Shri Prehlad Dayal, the learned counsel for the respondents, has placed before me the departmental file of the case. This shows that on 30th September, 1973 decision was taken by respondent No. 3 to the effect that the petitioner should be tried by a District Court Martial. The file does not show that any of the orders dated 26th October, 1973 convening the District Court Martial were put up to respondent No. 3 for his approval. The said orders are undoubtedly signed by Wing Commander R.O Lakin for and on behalf of Air Vice Marshal but, as already mentioned, after 30th September, 1973 the file was not put up to respondent No. 3 till after the issuance of the convening orders of 26th October, 1973. This means that the composition of the District Court Martial was decided not by the Convening Officer but by Wing Commander R.O Lakin. The file also discloses that the decision to reduce the penalty was taken by respondent No. 3 after the District Court Martial had recorded its findings.

13. It is contended by the learned counsel for the respondents that the practice and usage as per the Military Law has been that convening orders are signed by the Convening Officer himself or by an officer of his staff authorised by usage of service to sign his orders. My attention has been drawn in this regard to the Manual of Indian Military Law of 1936. Relying on this, the submission of Shri Prahlad Dayal is that no fault can be found with the convening orders being signed by Wing Commander R.O Lakin.

14. In my opinion, the provisions of Rule 43(3) have not been complied with in this case. Section 111 clearly specifies as to who is to be the Convening Officer. Rule 43 (3) specifically provides that the Officer convening a court martial shall appoint or detail the officers to form the court. By virtue of Section 111, it was respondent No. 3 who alone could be the Convening Officer. In fact in the present case the decision to order District Court Martial was taken by Respondent No. 3 on 30th September, 1973. Rule 43 (3) thereafter required that very convening officer is to appoint and detail officers to form the court. This was not done in the present case. The function under rule 43(3) was discharged not by respondent No. 3 but by Wing Commander R.O Lakin. This was not permissible under the said rule. The usage as contained in the Manual which permits a convening order to be signed not by the Convening Officer but by an officer of his staff, does not assist the learned counsel for the respondents. The usage cannot be contrary to the provisions of the Act and the Rules. Reading the two harmoniously, it means that at least on the file the decision with regard to the composition of court martial has to be taken by the Convening Officer though, it may be, and this has been disputed by the learned counsel for the petitioner, the actual order may be signed by an officer borne on the staff of the Convening Officer. It is for this reason that the original records of the respondents were seen by me but I find that no decision has been taken by the Convening Officer under Rule 43(3) with regard to the officers who had to be appointed to be the members of the District Court Martial.

15. It was then contended by the learned counsel for the respondents that under Section 129 read with Rule 52 opportunity was granted to the petitioner to challenge the Constitution of the court but the petitioner did no raise any objection,. The submission of the learned counsel is that no having challenged the constitution of the court martial at that stage, the petitioner cannot be permitted to challenge the convening order by way of a petition under Article 226 of the Constitution.

16. I am unable to agree with the aforesaid contention of the learned counsel. Section 129 reads as under:—

“Challenges.—(1) At all trials by general, district or summary general courts-martial, as soon as the Court is assembled, the names of the presiding officer and members shall be read over to the accused who shall thereupon be asked whether he objects to being tried by any officer sitting on the Court.

(2) If the accused objects to any such officer, his objection and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.

(3) If the objection is allowed by one-half of more of the votes of the officers entitled to vote, the objection shall be allowed and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer, subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has been made and disallowed or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the Court shall proceed with the trial.”

The perusal of the said section shows that it gives an opportunity to an accused to object to the individual members constituting the court. It does not provide for an opportunity to challenge the order convening the court martial. In fact the reading of Rules 49 and 51 makes it abundantly clear that an accused has no opportunity to raise such a challenge before the court. Rule 49 of the said Rules reads as under:—

“49. Inquiry by court as to legal constitution:—

(1) On the court assembling, the order convening the court shall be read, and also the names, rank and unit of the officers appointed to serve on the court; and it shall be the first duty of the court to satisfy itself that the court is duly constituted that is to say:—

(a) that, so far as the court can ascertain, the court has been convened in accordance with the Act and these rules;

(b) that the court consists of a number of officers not less than the required minimum and, save as mentioned in Rule 44, not less than the number detailed;

(c) that each of the officers so assembled is eligible and not disqualified for serving on that court-martial.

(2) The court shall, further, if it is a general or district court-martial to which a judge-advocate has been appointed, ascertain that the judge-advocate is duly appointed and is not disqualified for acting as that court-martial.

The court, if not satisfied on the above matters, shall report its opinion to the convening authority, and may adjourn for that purpose.”

This rule, it will be seen, inter alia, casts a duty on the court to satisfy itself that it has been duly convened in accordance with the Act and the Rules. This is to be the first duty of the court when it is constituted. The scheme of the Rules is that at this stage, when the court is satisfying itself as to its due constitution, the accused is not required to be present. The appearance f the accused is at a later stage. In fact after the court has satisfied itself under Rule 49, it is then to satisfy itself, under Rule 50, in respect of each charge which is brought before it. If the court is not satisfied about the charges, it is to give its opinion in that respect to the Convening Officer and the court may then adjourn. It is only after the court has satisfied itself as to its legal constitution, under Rule 49, and as to the amenability of accused and validity of the charge, under Rule 50, that an accused appears before it, under Rule 51, which reads as follows:—

“51. Appearance of accused and prosecutor:— When the court is satisfied as to the above facts, it shall cause the accused to be brought before the court, and the prosecutor who must be a person subject to air force law, shall take his place.”

It is only after the accused has appeared that under Rule 52, which is similar to Section 129, an opportunity is given to an accused to object to the officers constituting the court. When the accused objects to an officer being a member of the court, then that officer is required to retire and the decision on the said objection is taken in his absence by the other members who remain. In the very nature of things the objection under Section 129 and Rule 52 cannot be to the order convening the court, which is required to be issued under Section 111 and Rule 43(3), but can only be to any of the individual members constituting the court.

17. For the aforesaid reasons, the only conclusion which can be arrived at is that the petitioner could not have challenged the constitution of the court martial at any stage during the trial and after the court martial had been convened. In any case, what is being challenged by the petitioner here is a jurisdictional fact, namely, the jurisdiction of the court martial as constituted to try the petitioner. If the court martial has not been validity convened, then it had no jurisdiction to proceed with the trial and consequently its decision and the subsequent action taken thereon has all to be regarded as being without jurisdiction. This jurisdictional infirmity can always be challenged by filing a writ petition under Article 226 of the Constitution. The reading of the aforesaid provisions of the Act and the Rules leaves no manner of doubt that the District Court Martial was not properly constituted as the mandatory provisions of Rule 43(3) had not been complied with and because of the invalidity in the order convening that court, the decision of the said court and the punishment which has been ultimately imposed on the petitioner by respondent No. 3 and uphold by the Central Government, has, therefore, to be quashed.

18. For the aforesaid reasons the writ petition is allowed and the impugned orders are quashed. The petitioner has, during the pendency of this writ petition, retired from service. Therefore, the result of this petition succeeding would be that he would be entitled to all the benefits by way of arrears of salary, pension etc. which he would have been entitled to if the impugned punishment had not been imposed on him. The consequential benefits should, therefore, be given to the petitioner by the respondents within three months from today. The petitioner will be entitled to costs of this petition. Counsel's fee Rs. 500/-.

A.A Petition allowed.