MADAN KUMAR SINGH v. UNION OF INDIA & ORS

Judgment

1. This writ petition assails the order dated 11th April, 2011 passed by the Armed Forces Tribunal, Principal Bench, New Delhi allowing O.A. No.l44/2009 which was filed by him. The Armed Forces Tribunal by this order set aside the conviction and sentence dated lOth July, 2008 of the District Court Martial, finding the petitioner guilty of the charges which he had been tried and imposing punishment upon him.

2. The order of the District Court Martial and appellate authority has been assailed before the Armed Forces Tribunal on several grounds. The main objection of learned counsel for the petitioner is that the petitioner had been denied an opportunity to defend himself before the District Court Martial Signature Not Verified Digitally Signed By:AMULYA choice. inasmuch as he was denied availability of a counsel of his It was urged that no meaningful cross-examination of the WP (C) No.8738.2011 1 prosecution witnesses could be conducted on behalf of the petitioner and he was denied also to lead his defence. After returning a finding on this ground in favour of the petitioner, by the order dated 11th April, 2011, the Tribunal directed as follows:- ! - reasons, repeat again the witnesses For the above cross-examine - "xxx 7. the conviction and sentence awarded by the OCM are set aside and the case the appellant to the DCM only for affording is remanded prosecution an opportunity witnesses already examined. The DCM is directed to record a fresh finding on the basis of the evidence on record, including the cross examination part of the witnesses, after serving notice to the appellant on the address shown The DCM would be inducting one or more members for the purpose, the members of the DCM, which tried the appellant earlier, If the appellant adopts any dilatory is not available. tactics, it would be open to the OCM to proceed with and decide the case. The appellant is directed to be reinstated in service, but there will be no order as to backwages. The O.A. is allowed, as above." the DCM by if any of in the application. to reconstitute

Mr. Kush Chaturvedi, learned counsel appearing for the petitioner has urged before us that the petitioner had challenged the legality and validity of the District Court Martial proceedings on several other legal grounds as well which entitled the petitioner to the relief of setting aside of the proceedings of the court martial without directing a fresh trial. Inter alia it is urged that the proceedings of the District Court Martial were in violation of Rule 40 of the Air Force Rules, 1969 and Air Force Regulation 740 inasmuch as copy of the charge-sheet; summary of evidence and the other prescribed documents were not given sufficiently before commencement of the court martial proceedings to enable the petitioner a fair opportunity to prepare his defence. Placing reliance on the pronouncement of the Supreme Court reported at (2009) 10 SCC WP (C) No.8738.2011 2 552 Union of India & Ors. Vs. A.K. Pandey, is urged that requirement of Rule 40 of the Air Force Rules and Air Force Regulations 7f^0 was mandatoryand the proceedingsin their entirety,deservedto be set aside In view of the violation thereof inasmuch as the petitioner had been provided the copy of the charge-sheet, summary of evidence as well as the convening order only on 19'^ June, 2008 whereas the District Court Martial convened on 23'" June, 2008.

4. Learned counsel for the petitioner has further contended that the '..J petitioner had complained of violation of Rule 43 of the Air Force Rules, 1969 inasmuch as the convening authority had failed to apply Its mind as I . to whether the charges were made out against the petitioner or not. It Is . ' urged that failure of the convening authority to apply its mind to this aspect of the matter went to the root of the jurisdiction which was exercised by the authorities against the petitioner and the entire action stood vitiated on this ground alone.

5. Learned counsel for the petitioner has contended that In this background,the learned Armed ForcesTribunal has erred In decidingthe original application on the sole ground of denial of a fair opportunity during trial instead of examining the legal objections raised by the petitioner which went Into the very Initiation of the court martial proceedings by the authorities. Learned counsel for the petitioner contends that several other grounds had been raised In the original application which deserved to have been decided by the Armed Force Tribunal.

6. At this stage, Mr. Ankur Chhiber, learned counsel appearing for the respondentshas submittedthat pursuantto the judgmentdated 11'^ WP (C) No.8738.2011 April, 2011, the District Court Martial had re-assembled on r' February,

2012. It is further contended that after giving full opportunity to the petitioner, the District Court Martial has again pronounced a verdict of guilty against the petitioneron 2r' May, 2012 which was promulgatedon r'June, 2012. It is urged that a punishment was also imposed upon the petitioner by a separate order passed on 21^*^ May, 2012. It is contended that the petitioner has available the statutory remedy of filing a pre- confirmation appeal under Section 161 of the Air Force Act, 1950 which the petitioner failed to avail. The petitioner now has available a remedy of filing the post confirmation appeal under Section 161(2) of the Air Force Act, 1950. It is contended that the instant writ petition is untenable given the above subsequent facts and circumstances and is rendered infructuous.

7. We have given our considered thought to the submissions made by learned counselsfor both sides. Aperusal of the judgmentdated ir'^ April, 2011 would suggest that at the time of hearing the petition, the matter was decided on the sole ground which appears to have been pressed before the Armed Forces Tribunal. Learned counsel for the petitioner has contended that he has been instructed by the petitioner that the other grounds were also raised. Given the subsequent facts and circumstances of the reassembly, verdict, conviction and punishment and the fact that the issues being raised by the petitioner are in the realm of legal issues, interests of justice would merit that the petitioneris given an opportunityto seek adjudicationof the legal issues which were raised t^y him and which have not been adjudicatedupon till date by any forum WP(C) No.8738.20li ^ or this court.

8. Learned counsel for the petitioner has also contended that the respondents have failed to abide by the order dated 15th December, 2011 passed by this court whereby it was observed the petitioner deserves to be reinstated immediately after the judgment dated 11th April, 2011 and that the petitioner ought not have been denied wages at least from the date of the reinstatement after the order of the Tribunal.

9. It was further submitted before the court on that date that the petitioner has been available for reinstatement on all material times.

10. Mr. Chhiber, learned counsel for the respondents on instructions from Wing Commander Ashish Tripathi who is present in court, submits that the respondents did not have available the latest address of the petitioner. It is contended by the respondents that the petitioner did not approach them for joining after the passing of the order by the armed Forces Tribunal. It is submitted that in these facts and circumstances, the Air Head Quarter was constrained to write to his last unit for his latest address. The petitioner having been dismissed from service, authorities did not have any pension record relating to the petitioner. It is submitted that the respondents received a letter from the petitioner for the first time when joined service on the 2nd january, 2012 and that he has been paid wages from the period he was in service from 2nd january, 2012 till the date when he remained in service.

11. It appears that there is some controversy with regard the period between 12th April, 2011 till 2nd january, 2012 and the non- payment of wages for such period. However, we are not inclined to keep this writ petition pending on this issue as well. WP (C) No.8738.2011 " 5 \

12. We leave it open to the petitioner to make a representation respondents for the same and respondents would take a reasoned view thereon. The petitioner is given time of six weeks to write to the respondents in this regard enclosing copies of communication, any, which he addressed to the Air Force towards his reinstatement. The respondents shall take a considered view thereon within four weeks thereafter and communicate the order forthwith to the petitioner. In case the petitioner is entitled to any amount, the same shall also be paid to the petitioner within the same period.

13. In view of the above discussion, this writ petition has to be disposed of with the following directions:- (i) the petitioner shall be at liberty to invoke his legal remedy under Section 161 of the Air Force Act, 1950 as well as all other appropriate remedies as are available thereafter with respect proceedings; (ii) it shall be open to the petitioner to raise all grounds of challenge which had been raised before the Armed Force Tribunal in the petition under Section 161 of the Air Force Act, 1950 as well as in any other legal proceedings and seek adjudication thereupon; (iii) the challenge by the petitioner shall not be rejected on the ground that the petitioner had raised a challenge on the sanie ground(s) by way of the previous petition filed before the Armed Forces Tribunal or the present petition. (iv) The petitioner the petition under Section 161 as requested within four weeks and respondent shall consider the same and pass orders thereon within a further period of four weeks thereon. The WP (C) No.8738.2011 6 same shall be communicated immediately on its passing. This writ petition is disposed of in the above terms. CM No.l9731/2011

14. In view of the orders passed in the writ petition, this application does not survive for adjudication and is disposed of as such. GITCffitJ J AUGUST 03, 2012 a a WP (C) No.8738.2011 7