The present application under section 15 of Armed Forces Tribunal Act, 1985 has been filed by the petitioner for setting aside the confirmation recorded by the General Court Martial on 25.05.2012 Petitioner was charged under section 71 of the Air Force Act, 1950 on three counts, under section 304-A IPC, 279 IPC & 475 IPC. The court acquitted him under section 475 IPC and convicted him under section 304-A and 279 IPC Punishment of cashiering and Rigorous Imprisonment for a period of one year was awarded to him. The findings of the Court Martial were subject to the confirmation of the Chief of the Air Staff. Vide order dated 20.07.2012, the Chief of Air Staff confirmed the findings and remitted the punishment to suffer rigorous imprisonment for one year and commutted the sentence of cashiering to forfeit three years past service for the purpose of promotion, and to forfeit two years service for the purpose of increased pay and to be severely reprimanded.
2. It appears that the petitioner has filed a post confirmation petition before competent authority which has not been decided. After the order was passed by the Chief of the Air Staff, the petitioner approached the Chandigarh Bench of the Tribunal under section 15 of the Act. However, he withdrew the petition with the prayer that he has already filed a post confirmation petition before the concerned authorities and would like to wait the decision in that case. The prayer was allowed and it was specifically stated by the Tribunal that in case the post confirmation petition was not decided within six months, then he can approach the Tribunal. Instead of approaching the Chandigarh Bench of the tribunal, the petitioner has come up before this court.
3. The contention raised by the learned counsel for the petitioner is that the court martial proceeding need to be set aside on two counts;
(a) that the constitution of the court is in violation of Rule 43 & 69 of the Air Force act in asmuch as the Presiding Officer who has awarded the punishment has not been nominated by the convening authority.
(b) That the reasons do not accompany the order of punishment which is mandatory in terms of SRO 17 dated 13.03.2012
4. On the other hand the stand of the respondents is that this court has no jurisdiction to entertain the petition as the cause of action has accrued at Punjab & Haryana. The other contention raised by the learned counsel for the respondents is that under Rule 43, the officer convening the 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, in addition to the officer which has been detailed for conducting court martial. In this behalf he has placed reliance of Schedule VI appended to the Rule. Lastly he has contended that even though SRO 17 dated 13.03.2012 does provide for giving reasons, the same was not communicated to the respondents on the date the court martial verdict was announced.
5. We have heard the learned counsel for the parties.
6. The preliminary objection raised by the learned counsel for the respondents is that the place of jurisdiction is at Armed Forces Tribunal, Chandigarh. He states that the post confirmation petition has not yet been decided as such this court has no jurisdiction to entertain the petition. The other contention is that the petitioner initially approached Chandigarh Bench of the Tribunal and had withdrawn the petition on the ground of having preferred post confirmation petition with the Chief of the Air Staff which till date has not been decided. Therefore, no fresh cause has accrued to the petitioner to come to this court. He was required to file a fresh petition before the Tribunal at Chandigarh.
7. While scanning through the order of the Tribunal, the petitioner was permitted to withdraw the petition and approach the Tribunal in case the post confirmation petition is not disposed of within six months. The question that now calls for consideration is that whether petitioner is bound to file the petition at Chandigarh or in any court where the cause of action or part of cause of action has arisen. Admittedly, the post confirmation petition has not been decided within six months. The petitioner had initially filed the petition before the Chandigarh Bench before the post confirmation petition. Therefore, part of cause of action had accrued at Delhi. The direction issued by the Tribunal at Chandigarh to approach this court does not in any way over ride the right of the petitioner to approach this court on the ground that part of cause of action had arisen at Delhi. It is trite that the court where the part of cause of action had accrued will have the jurisdiction to entertain the petition where the order has been passed. Therefore, the contention of the respondents that the petitioner is required to approach the Tribunal alone cannot be accepted. While considering the pre confirmation order passed by the Chief of Air Staff Delhi resulted in the remitting of the sentence as already discussed supra. Therefore, this court has the jurisdiction to entertain the petition. Even though the fresh petition on the basis of the same cause of action is barred, but in the present case the Tribunal had reserved the right of the petitioner to file the petition in case the post confirmation petition is not decided within six months.
8. The consequence of the confirmation order has resulted in remitting the sentence of General Court Martial. Therefore, it is a material fact which can give rise to cause of action. Therefore, we are of the considered view that the Court at Delhi has the jurisdiction to entertain the petition.
9. Regarding the contention raised by the learned counsel for the petitioner that vide order dated 17.05.2012 five officers were detailed for conducting the court martial with specific stipulation that senior officer would be the Presiding Officer. Gp Capt. Prem Kumar was the Presiding Officer, which clearly reflects in the order dated 21.05.2012 when the court was constituted. The confirmation order also makes a mention that one officer each of the rank of G.P Capt. and Wg. Cdr. with not less than three years of commissioned service to be detailed as waiting members by Air Officer Commanding 8 Wg. The present court martial was headed by an officer who was not nominated by the convening authority, who is the Chief of the Air Staff.
10. There is a clear mention that the officers who are detailed as waiting members based upon their rank have to be specifically nominated by the convening authority by name. Merely because the rank of the officer detailed in the waiting list is mentioned would not empower any person to be nominated as Presiding Officer unless he is specifically named by the convening authority.
11. The contention of the learned counsel for the respondents that Schedule-I provided that members can be also be mentioned by rank and not by name can not be accepted. The provisions are so explicit and clear that a person who has been listed by rank as a waiting officer has to be nominated by the convening authority. The rule 43 no where mention that only the rank of an officer is required to be indicated and not the name. The name of the officer has to be indicated formally notified by the convening authority. There has to be a specific order for his nomination by the convening authority. Merely because the rank of an officer is mentioned in the waiting list does not absolve the respondents from the responsibility clearly nominating the person to be the Presiding Officer of the Court. In absence of order by the convening authority nominating Presiding Officer will not be considered to be compliance with the Rule. There is a clear mention that the officers who are to be detailed as the waiting officers have to be mentioned in the order itself. That is the clear intend of the legislature.
12. Reliance has been placed by the learned counsel for the petitioner on a judgment of the apex court, (1999) 4 SCC 575 : AIR 1999 SUPREME COURT 1940 (Union of India v. Harish Chandra Goswami) wherein the following observations has been made:
“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 to satisfy himself that the charge 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 convene. However, learned counsel for the appellants contends that sub-rule (3) of Rule 37 is only procedural in nature and there is no 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”.
13. Learned counsel for the respondents tried to make a distinction on the ground that in this particular case there was no record showing that the person has been nominated by the competent authority. Whereas in the present case it clearly mentions that the competent authority has approved the rank of the officers to be detailed. The principle underlined by the apex court clearly envisages that any nomination of the person to the Court martial is required to be notified indicating the name and rank by the competent authority. Mere mentioning of the rank is not sufficient. Therefore, we do not find any force in the submissions made by the learned counsel for the respondents.
14. The last contention raised by the learned counsel for the respondents is that in terms of SRO 17 dated 13.03.2012 following amendment has been affected in rule 71 of the Air Force Rules, 1969:
“(a) In rule 71, for sub-rule (1) the following sub-rule shall be substituted, namely”
(1) The finding on every charge shall be recorded, and except, as provided in these rules, shall be recorded as finding of “guilty” or of “not guilty”.
(1A) After recording the finding on each charge, the court shall give brief reasons in support thereof”
The amendment effected clearly mentions that after recording the finding on each charge, the court shall give brief reasons in support thereof. Admittedly this rule was in existence at the time conviction was recorded by the General Court Martial. Therefore, reasons were required to be given by the General Court Martial. The arguments of the learned counsel for the respondents is that even after the amendment was effected in the SRO 71, same was not communicated to the respondents. It was only on 14.06.2012 that they became aware of such amendment. The arguments is per se misconceived. If the amendment is issued in the official gazettee, it is not required to be communicated to every unit of the Air Force. The respondents are deemed to have the knowledge of the order and they can not take a plea that they were not aware of the date. Even otherwise also any order which is bereft of reasons is arbitrary. It is necessary that the Presiding Officer or the court must record reasons for every decision they take. Any order which does not give reasons and is passed in a mechanical manner can not sustain in the eye of law. More particularly in a case where a person has been awarded punishment by court martial, the order bereft of reasons is arbitrary. In view of this, we allow the petition and set aside the order of General Court Martial dated 25.05.2012 No order as to costs.
Learned counsel for the respondents orally prayed for granting leave to appeal before the Hon'ble Supreme Court. There is no question of law of public importance involved in this matter. This is not a fit case to grant leave to Appeal before the Hon'ble Supreme Court as it does not involve any question of public importance. As such the prayer is declined.