Kartic Saini Son Of Joginder Singh ... vs Union Of India
2021 Latest Caselaw 967 Guj

        C/SCA/16951/2020                                      ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 16951 of 2020
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          KARTIC SAINI SON OF JOGINDER SINGH SAINI
                            Versus
                        UNION OF INDIA
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Appearance:
DHARITRI PANCHOLI(7502) for the Petitioner(s) No. 1
MS GAYATRIBA B JADEJA(5152) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5,6,7,8
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 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 21/01/2021
                      ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The petitioner is serving as Air Warrior since last 15 years. He is before this court by way of this petition seeking following prayers:-

"8...

A.This Hon'ble Court may be pleased to issue appropriate writ, order and/or direction to quash and set aside Court of Inquiry which has been initiated against hiim on 09.12.2020 and the action which is taken under Paragraph 790(a), (b) and (c) of the Regulations for The Air Force dated 10.12.2020;

B.Pending admission, notice and final hearing of the petition, this Hon'ble Court may kindly stay the execution and further assembly of Court of Inquiry which has been initiated against him on 09.12.2020 and the action which is taken under Paragraph 790(a), (b) and (c) of The Regulations for The Air Force dated 10.12.2020;

C.This Hon'ble Court may be kind to hold Respondents no. 4 to 8 personally liable for the vindictive inquiry against the petitioner and award compensation to the petitioner for the mental trauma and the humiliation of facing such an inquiry being an Air Warrior of 15 years;

D.Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."

C/SCA/16951/2020 ORDER

2. By way of the present petition, the challenge is to quash and set aside the Court of Inquiry which has been initiated against the petitioner on 9.12.2020. The action which is taken is under paragraph 790 (a), (b) and (c) of The Regulations for the Air Force dated 10.12.2020. The petitioner serves the Air Force since the year 2005 and has joined the service on 28.3.2006. His training has been completed in the year month of April, 2007.

3. He was posted as the leading Aircraftsman to 44 wing Air Force from April, 2007 to September, 2011 and he was further posted as Corporal to headquarters AFC from September, 2011 to September, 2013. His posting was as Corporal to 12 wing Air Force from September, 2013 to July, 2018 and then to 865 Signal Unit from July, 2018 to April, 2019. He was re-posted as Sergeant to 865 Signal Unit from April, 2019 till date.

4. He is a senior non-commissioned Officer in charge of Mechanical Transport Detail at 47 Signal Unit Air Force.

4.1 On 2.12.2020, he was given instructions from his superior who is a Junior Warrant Officer, namely, Ranveer Kumar to get all the vehicles maintained/inspected for an upcoming inspection. He, therefore, co-ordinated with different departments and he also gave a telephonic call to the Station Fire Section. When he asked to send the fire tender for maintenance/inspection, the Corporal Sombir denied to send the vehicle on the ground that Chief Administrative Officer has changed and fresh approval was sought for routing the Mechanical Transport Driver to Mechanical Transport Section and forthwith.

C/SCA/16951/2020 ORDER

4.2 He requested for Truck Fire Fighting for 15 minutes to Mechanical Transport Section for the purpose of maintenance. However, he denied without intimating by any valid or relevant reason. The petitioner refrained to talk further and asked for Air Force Cell of Corporal Sombir's in charge on the telephonic call. It is his grievance that there are two offences charged against Corporal Sombir "Using insubordinate language and misbehaving with immediate superior". It is his say that Court of Inquiry assembled on 9.12.2020 and petitioner rendered first statement before the Court of Inquiry on the very day. On 10.12.2020, action under paragraph 790 (a), (b) and (c) of the Air Force Regulations, 2003 were alleged against him on the basis of the statements taken from the witnesses and he was blamed for making a false accusation by forwarding a wrong chargesheet. He was also accused of use of undue pressure against subordinate.

5. In this backdrop, he has approached this Court with the aforementioned prayers when the Court of Inquiry was going on. However, later draft amendment has been tendered, stating therein that the Court of Inquiry has been concluded on 28.12.2020. The execution, implementation and operation of the findings of the Court of Inquiry is also sought to be stayed.

6. On 29.12.2020, this court (Coram: Nirzar S. Desai, J.) passed the following order:-

"At the request made by learned advocate Ms.Dharitri Pancholi for the petitioner, stand over to 18.01.2021 with a view to enable her to examine whether this Court has jurisdiction to entertain such petition as this Court is of the prima facie opinion that the subject matter of the petition pertains within the jurisdiction of Arms Forces Tribunal."

7. Today, we have heard the learned advocate Ms. Dharitri Pancholi for the petitioner, who has taken us through the

C/SCA/16951/2020 ORDER

pleadings and also various documents, including Regulation Manual of Air Force Law as well as the Defence Service Regulations, particularly the regulations for the Air Force. She has strenuously urged before us that inquiry is vindictive in nature and it is initiated against Air Warrior who has served diligently for the period of 15 years. According to her, the alternative remedy is not efficacious and she also has detailed as to how the counsels who attempted to represent the petitioner were humiliated by not permitting them into the campus and during the course of inquiry. The seeking of permission to enter the premise of the Air Force for defending the petitioner was denied. They are made to wait for long time. She also has alleged of non-furnishing of vital documents and the material. She, therefore, has urged that the alternative remedy also will not be the ground for this Court to entertain this petition.

8. We noticed the provisions of the Armed Forces Tribunal Act, 2007. Section 4 provides for establishment of Armed Forces Tribunal to be known as Armed Forces Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act. Section 15 which speaks of the jurisdiction, powers and authority of the matters of appeal deserves reproduction:-

"15. Jurisdiction, powers and authority in matters of appeal against court martial.--(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto.

(2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed.

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(3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary:

Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.

(4) The Tribunal shall allow an appeal against conviction by a court martial where--

(a) the finding of the court martial is legally not sustainable due toany reason whatsoever; or

(b) the finding involves wrong decision on a question of law; or

(c) there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant:

Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing.

(5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon.

(6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to--

(a) substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be; or

(b) if sentence is found to be excessive, illegal or unjust, the Tribunal may--

(i) remit the whole or any part of the sentence, with or without conditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), as the case may be;

(c) enhance the sentence awarded by a court martial:

Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard;

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(d) release the appellant, if sentenced to imprisonment, on parole with or without conditions;

(e) suspend a sentence of imprisonment;

(f) pass any other order as it may think appropriate.

(7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code (45 of 1860) and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."

8.1 The Tribunal, under Section 17 also has powers while hearing and deciding the appeal under Section 15. The procedure has been prescribed under Chapter IV for a person to make any application or for availing the remedies before the Tribunal. The Tribunal shall not be bound by the procedure laid down in the CPC, but shall be guided by the principles of natural justice and subject to the other provisions of the aforesaid Act and Rules thereunder. It shall have the power to lay down and regulate its own procedure. The Tribunal has power and it can exercise the power, jurisdiction and authority under the Act. In relation to the appeal against any order, decision, finding or sentence passed by the Court Marshal or any matter connected therewith.

9. In view of the above-mentioned discussion, the judgment of the Apex Court in the case of Union of India vs. Shri Kant Sharma reported in (2015) 6 SCC 773 is worth referring to. The Apex Court has, while referring to the earlier judgments laying down the principle for exercising the power under Article 226 of the Constitution of India, in paragraph 36 held as under:-

"36. The aforesaid decisions rendered by this Court can be summarised as follows:

(i)The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court

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under Article 226 of the Constitution of India.

(ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.

(iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

(iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance."

10. Noticing the effective and efficacious remedy, we deem it appropriate not to entertain this petition. Without entering into any kind of merit, this being disposed of.

11. All questions which have been raised in this petition, including the principles of natural justice providing of the necessary documents and right to the legal representation, shall be agitated before the Tribunal which shall consider it bearing in mind the principles were laid down on all these aspects.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) BINOY B PILLAI