R.C. Lahoti, J.
1. This is a petition under Articles 226/227 of the Constitution of India preferred by an Ex-Airforce Man, feeling aggrieved by an order of General Court Martial dismissing him from service. The jurisdiction of this Court was sought to be invoked through a letter-petition addressed to the Court by the petitioner. The letter-petition contains practically no statement of facts and is not accompanied by any documents. It does not contain narration of any specific grounds on which the General Court Martial proceedings and the final order passed therein are challenged. In its anxiety to assist the petitioner, if at all he has been a sufferer of any injustice and to assist him if this Court can within the permissible constitutional limits, the Court took cognizance of the letter-petition and issued a rule nisi but only to land itself into a roving inquiry, as the developments of the case do show.
2. There has been an endless round of pleadings, return followed by rejoinder; rejoinder followed by reply to rejoinder, followed by additional rejoinder and so on and so forth. Before us, the petitioner who was pleading his own case was provided assistance of the Advocates of this Court acting amicus curiae. But the hearings have been piecemeal, as of necessity they should have been, for want of full and specific pleadings. We have called for original record of the General Court Martial proceedings to satisfy ourselves of the legality thereof. On all the dates of hearing, the petitioner himself has been present in the Court. With patience we heard his advocate amicus curiae and the petitioner as well. At times, we had to request the officers of the Department also, present in the Court with the record, bulky indeed, to assist us by offering clarification by reference to the record, so as to throw light on points of obscurity.
3. During the course of hearing, we asked the petitioner and ShriMadhukar Rao, Advocate the counsel assisting him, to formulate the points on which the petitioner proposed to attack at the validity of the proceedings. The points have been made concise and catalogued as under: -
(i) That, the General Court Martial (hereinafter G.C.M., for short) was not properly convened as there was violation of Section 110 of the Air Force Act, 1950; assuming that there was a general authorisation to A.O.C.-in-C, the actual convening order is sent by Group Captain B. R. Baboo; thus, the convening order is bad in law;
(ii) That, the members of the General Court Martial were not nominated by the competent authority;
(iii) That, the charges are not proved; representation for redressal of grievances (hereinafter RCGs for short) are permitted to be made by the air-force personnel they are privileged; and hence the contents thereof could not have formed the subject-matter of any charge:
(iv) That a defence counsel was not provided to the petitioner;
(v) That the confirmation of the findings and sentence of G.C.M. were invalid inasmuch as the petitioner was not afforded an opportunity of hearing before passing order of confirmation and further because the order of confirmation is not a reasoned order and hence Section 153 of the Air Force Act has been violated.
4. We propose to dispose of each of the contentions seriatim by reference to the record of the proceedings whereinto we have looked with assistance of the respondents' counsel.
Contention No. 1
5. Section 110 of the Act provides that a G.C.M. may be convened by the Central Government or the Chief of the Air Staff or by any officer empowered in this connection by warrant of the Chief of the Air Staff. We have perused in the records the document entitled 'Warrant for convening G.C.M. under the Air Force Act' dated 15th June 1963 signed by the Chief Air Marshal Chief of Air Staff. This warrant empowers any Officer not being under the rank of Group Captain, Commanding Central Air Command, to convene G.C.M. from time to time. We have also seen the original record of the proceedings which shows that the actual convening order of G.C.M. against the petitioner is signed by A.O.C.-in-C. Merely because the communication of the convening order is endorsed by Group Captain B. R. Baboo, that does not mean that the latter has acted as the convening authority. In the record of the proceedings of G.C.M. we do not find an objection in this regard having been raised. We also find that the petitioner during the proceedings never insisted on the original convening order being produced for his inspection so as to object to its validity.
6. In Vidya Prakash v. Union of India, AIR 1988 SC 705, their Lordships have held that an objection not taken before the Court Martial would be an afterthought and would not be entertained in writ proceedings.
7. A Division Bench of this Court has recently in N.K. Kulwantsingh v. Union of India, 1991 MPLJ 985 = 1991 MPJR 73 held in similar facts that signing and conveying of the act of convening a Court Martial by an authority subordinate, so long as the essential statutory function of deciding to hold G.C.M. was performed by an officer competent, does not amount to delegation of statutory authority.
8. Single Bench decision of Delhi High Court in Sahab Dayal Sharma v. Union of India, 1987 Lab. I.C. 843 relied on on behalf of the petitioner is a case where power to convene Court Martial was exercised by a subordinate officer, not being the competent authority. Even on the file the decision with regard to the Competent Convening Officer, the G.C.M. proceedings were held to have been vitiated. But such is not the case before us. The decision is clearly distinguishable.
9. The first contention of petitioner fails.
Contention No. 2 .
10. From the perusal of the record of the proceedings we find that members of G.C.M. to have been duly nominated by the competent authority. The names of the Presiding Officer and the Members constituting the G.C.M. were proposed on the order sheet by Group Captain B. R. Baboo. The note-sheet was put up through proper channel to A.O.C.-in-C. who himself approved the same on 11-1-1990.
11. The record of the proceedings also indicates that at the commencement of G.C.M. the names of the Presiding Officer and members of the Court were read over to the petitioner. He was asked by the Presiding Officer - "Do you object to be tried by me as Presiding Officer, or by any of the Officers whose names you have heard read over?", and the accused petitioner answered - "No".
12. In view of the abovesaid record, the contention that the members were not validly nominated, does not hold any water.
13. This Court has, in N.K. Kulwantsingh v. Union of India, 1991 MPLJ 985 = 1991 MPJR 73, held that an objection as to constitution of Court Martial not taken at preliminary stage shall be deemed to have been waived and would not be entertained in writ proceedings.
Contention No. 3
14. There were 7 charges framed against the petitioner. Some were found proved and some were not. When the findings were placed for confirmation, the finding as to some of the charges was not confirmed by the Confirming Authority. Thus, there are some out of all the charges which were found proved and findings as regards whereof were also confirmed.
15. Whether or not the charges were proved, is a question lying within the arena of factual field. In writ jurisdiction, we are not to usurp an appellate jurisdiction, as it were, over the findings of G.C.M. We cannot reappreciate the evidence and examine whether the findings were correct or not.
16. It may be stated that the main grievance of the petitioner was that he had certain grievances against his superior officers which he brought to the notice of the higher-ups by submitting RCGs. It was found that in the RCGs the accused petitioner had made baseless allegations against senior officers to hide his own misconduct. As already observed, we cannot enter into reappreciation of evidence and reverse or modify the findings recorded by the G.C.M. on the several charges.
17. In Harish Uppal v. Union of India and Ors., AIR 1973 SC 258, their Lordships held : -
"We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed, the Court Martial itself could not have set out the evidence against the petitioner, it should have only given the finding and the sentence. Under the provisions of Article 136(3) of the Constitution this Court cannot grant special leave in respect of any judgment determination or order passed or made by any Court or tribunal constituted by or under law relating to the Armed Forces. In considering a petition filed under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure established by law as required under that Article has been completely followed in this case.
18. It may be placed on record that the petitioner has not made out any case of there being an apparent error on the face of the record, so substantial in nature as to vitiate the proceedings. The Division Bench of this Court in N. K. Kulwantsingh's case (supra) held that under the writ jurisdiction in Article 226 of the Constitution, the Court cannot reappreciate the whole evidence and come to its own findings in substitution of the findings reached by the Court Martial. .
Contention No. 4
19. The record of the proceedings shows that the accused/petitioner was assigned a defending officer to represent him before the G.C.M. but he declined to accept the services of such officer. He, however, submitted that he wanted to engage an advocate-counsel insisting that the fees of such advocate should be paid.by the Air Force. On such monetary assistance being denied to him, the accused petitioner submitted that he would himself undertake his defence before the G.C.M.
20. Rule 102 of the Air Force Rules, 1969 provides for an accused being represented by an officer subject to airforce law who shall be called 'the defending officer' or being assisted by any person whose services he may be able to procure who shall be called 'the friend of the accused'. Rule 103 provides for a counsel being allowed to defend the accused in certain circumstances. Nowhere is it provided that the fees, if any, payable to the counsel for the accused shall be paid by the airforce. Neither before the G.C.M. nor before us, any provision has been pointed out which may provide justification. to the plea of the petitioner that in the absence of the willingness of the Air Force, to pay the bill for the fee of the counsel for the accused and consequent inability of the accused in procuring services of a defence counsel would vitiate the proceedings.
21. It is to be noted that the G.C.M. nowhere denied the prayer of the accused petitioner to defend himself by a lawyer of his choice. What was not acceded to was the petitioner's prayer for payment of fees to advocate-counsel to be enagaged by him. Single Bench decision in D. B. Bhose v. Union of India and Ors., by J. and K. High Court reported in 1989 LIC 1798 does not help the petitioner inasmuch as it was a case where there was complete withholding of permission to accused to engage counsel to defend him before the G.C.M. in which circumstances it was held that principles of natural justice were violated. Such is not the case here.
22. The fourth contention also fails.
Contention No. 5
23. Section 153 of the Air Force Act provides for the findings and sentences by G.C.M. being confirmed by Central Government or by any officer empowered in that behalf of warrant of the Central Government. Chapter XII of the Act is exhaustive of the provision relating to confirmation and revision of the findings and sentences recorded by any Court Martial. The Chapter does not make any provision for any representation being made and hearing being afforded to the accused. The order of confirmation need not also be a detailed one. It is a different thing that if any representation is made, it may be taken into consideration by the confirming authority.
24. The record, shows that the proceedings, the findings and the sentences passed, were all placed before the Air Marshal, A.O.C.-in-C. He confirmed the findings of the G.C.M. on the first, second, fourth, fifth, sixth and seventh charges. The finding of the G.C.M. on the third charge was not confirmed. The sentence passed by the G.C.M. was three-fold of which detention for two months was not confirmed while dismissal from service and reduction to the ranks were confirmed. This shows that the confirming authority did apply its mind to the material placed before it and then passed the order of confirmation.
25. In S. N. Mukherjee v. Union of India, AIR 1990 SC 1984, their Lordships have held :
"At the stage of recording of findings and sentence the court martial is not also required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation".
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"The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while confirming the findings and sentence of a court martial."
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"Though a person aggrieved by the finding or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court martial. Since the person had no legal right to make a representation at the stage of confirmation of findings and sentences the non-consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said orders."
26. In Captain Harish Uppal v. Union of India and Ors., AIR 1973 SC 258, their Lordships have held that it was not necessary for the confirming authority to give a hearing to the changed officer before confirming the sentence passed.
27. In Som Datt v. Union of India, AIR 1969 SC 414 while examining the pari materia provisions of the Army Act, their Lordships held : -
'There is no express obligation imposed by Section 164 or by Section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial.
Apart from any requirement impugned by the statute or statutory rule either expressly or by necessary implication, it cannot be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. Such orders cannot, therefore, be held reasons for confirming the orders of the Court Martial".
28. All the grounds on which challenge is laid to the order of confirmation also fail.
29. During the course of hearing on behalf of the petitioner, reliance was placed on a Single Bench decision of Karnataka High Court in Squadron Leader S. A. Kohli v. Union of India and Ors., 1989 Lab. I. C. 1775 which is a case of second Court Martial, a case not before us.
30. At the end, it may be stated that the petitioner and his counsel faintly argued that the accusation and the Court Martial proceedings held against the petitioner were outcome of mala fide as there were persons interested in seeing the end of the petitioner's career. This submission need not detain us any longer inasmuch as such vague allegations cannot be entertained unless and until full facts are disclosed along with the facts substantiating the allegations; for an allegation of mala fide can be made easily but is difficult to prove (see Major Suresh Chand Mehra v. Defence Secretary, Union of India, (1991)2 SCC 198).
31. We find the petition devoid of any merit and hence we have no other option but to dismiss the same though without costs. Order accordingly.