Col. I.S. Rathee vs Union of India (UOI) and Another

Anil Kumar, J.—The respondents have sought review of order dated 3rd May, 2005 allowing the petition of the petitioner and quashing the court martial finding/sentence and the confirmation order dated 1st September, 1998 and also holding that in case the petitioner had been deprived of any benefits because of the court martial finding/sentence, he would be entitled to all such consequential benefits.

While allowing the petition, the judgment of the Supreme Court, Union of India and Another Vs. Charanjit S. Gill and Others, was noticed and pursuant to Army Rule 40(2) stipulating that the members of a court martial proceedings for the trial of an officer shall be of rank not lower than the officer unless, in the opinion of the convening officer, officers of such rank are not available and the opinion of the convening officers is in writing in the convening order.

The counsel for the respondent had conceded that the convening order did not record any opinion of the convening authority that there was non-availability of Judge-Advocate who was similar to the rank of the petitioner or higher to his rank and, therefore, it was held that the requirement of Army Rule 40(2) was not satisfied and it was held that the composition of general court martial was vitiated.

The respondent/applicant have now sought the review of order dated 3rd May, 2005 on the ground that the ratio of the judgment of Charanjit Singh Gill (supra) is not applicable and the writ petition could not have been allowed, as the court martial proceeding and confirmation of the court martial proceeding had been concluded before the judgment was pronounced by the Apex Court in Charanjit Singh Gill''s case.

The facts which have not been disputed by either parties are that the writ petition was filed by the petitioner in month of January 2001 seeking quashing of sentence order of the general court martial dated 9th April, 1997 which was convened on 4th March, 1997 and a petition against the sentence was rejected on 1st September, 1998. Learned Counsel for the respondent/applicant has relied on para 25 of the judgment of the Supreme Court in Charanjit Singh Gill (supra) and he contends that as the writ petition was filed after the decision of Charanjit Singh Gill (supra) by the Supreme Court, this defense could not be taken by the petitioner. It has also been contended that issue whether or not the ratio of the judgment of the Apex court could apply in view of the facts and circumstances of the present case was not considered by the Court while allowing the writ petition on 3rd May, 2005 and there is an error apparent as the decision of the Supreme Court is not applicable to the facts of the petitioner and therefore the decision of this Court is liable to be reviewed.

The application is contested by the petitioner/non-applicant contending that the respondents have failed to make out a case for review. There is no error apparent on the face of the record and an opinion of another counsel now appointed by the respondent could not be a ground for review as the counsel for the respondents on 3rd May. 2005 had categorically conceded that there is violation of Army Rule 40(2) and no ground was taken by the respondents while opposing the petition that the petitioner is not entitled for any relief on the ground of latches. It is contended that the alleged error which the respondent/applicant are trying to establish by a long drawn process of reasoning on points where there may conceivably be two opinions, cannot be termed an error apparent and, therefore, there are no grounds for review. According to the petitioner/non-applicant, the power of review may be exercised where some mistake or error apparent on the face of record is found or on discovery of new and important matter or findings which after exercise of due diligence was not in the knowledge of the parties seeking review or could not be produced at the time the order was passed.

The petitioner/non-applicant has also opposed the application for review on the ground that the Court independent of ratio of Charanjit Singh Gill''s case, considered the applicability of mandatory provisions of Rule 39 and Rule 40(2) of the case and the order allowing the petition was passed after due application of mind and in any case there had not been finality of the court martial proceedings because before filing the writ petition, the petitioner had not challenged the same before this Court. It is also alleged that the basis of review is the presumption by the respondent that a court martial order attains finality on confirmation u/s 153 or on an order passed on statutory appeal u/s 164(2). There is no new important matter or evidence which was not considered by the Court and, in the circumstances, there are no grounds for review.

Relying on Charanjit Singh Gill (supra), the petitioner contended that petitioner''s Court Martial had not attained finality before writ petition was filed, and therefore the plea of the respondent that court martial proceeding had attained finality is not correct and is another plea propounded by the respondents now. According to the petitioner when the Supreme Court passed the judgment in Charanjit Singh Gill''s case neither his writ petition was pending nor was sub-judice nor the Court Martial proceedings had attained finality. According to the petitioner, he had filed a writ petition for judicial review of the Court Martial proceeding which was maintainable and he was entitled to take the ground of violation of Army Rule 40 (2) which had been taken by him based upon Charanjit Singh Gill''s judgment and there could not be any bar against the petitioner in filing the writ petition on such a ground.

The petitioner has also contended that the alleged finality of the court martial proceedings on dismissal of appeal u/s 164(2), as has been contended by the respondent, shall lead to absurd results and will lead to denial of judicial review in court martial cases since petition under Article 226 can be filed only after exhausting all the remedies under the Statute and such an interpretation will deny a right to the petitioner to seek the judicial review under Article 226 of the Constitution of India. According to the petitioner, it is a misinterpretation of para 27 of Charanjit Singh Gill (supra). Para 27 of the said case is as under:

In view of this position of law the judgments rendered by the Court Martial which have attained finality cannot be permitted to be reopened on the basis of law laid down in this judgment. The proceedings of any Court Martial, if already challenged on this ground and are pending adjudication in any court in the country would, however, be not governed by the principles of "de facto doctrine". No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification of a Judge Advocate on the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority from passing fresh orders regarding appointment of the fit persons as Judge Advocate in pending Courts Martial, if so required.

Reliance has also been placed by the petitioner on Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, , South Asia Industries Pvt. Ltd. v. S.B. Sarup Singh to contend that the test of finality is whether the order finally disposes of the rights of the parties, and not whether the order decides an important point or even a vital issue. According to the petitioner, the court martial proceedings attains finality only when the High Court order in the writ petition under Article 226 of the Constitution of India becomes final or in an appeal against the High Court order the matter is finally decided by the Supreme Court and not merely on exhaustion of statutory remedies because the remedy of judicial review is also a substantial relief which a person is entitled for.

We have heard the learned Counsel for the parties at length and have also perused plea and contentions of the parties and order dated 3rd May, 2005 allowing the writ petition after the counsel for the respondent had conceded that there had been violation of Army Rule 40(2) and have also perused the judgment of the Supreme Court in Charanjit Singh Gill (supra). It seems that the counsel who had appeared on 3rd May, 2005 was of the opinion that the court martial proceedings had not attained finality and the ratio of Charanjit Singh Gill (supra) was considered and it was not contested that the writ petition was not maintainable in view of para 27 of said case. Whereas Mr.Tikku, learned Counsel for the respondents is now trying to contend that on dismissal of the statutory appeal, Court Martial proceeding had become final, though the writ petition seeking judicial review of the Court Martial proceedings had not been filed and therefore, the petitioner could not take plea of violation of Army Rule 40 (2).

Merely because the counsel and the respondents have another view or opinion now, whether the review of the order dated 3rd May, 2005 will be permissible. A division Bench of this Court in the case of Shri Anil Kumar Jain and Another Vs. Union of India (UOI) and Others, while discussing the power of review had held as under:

The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the Court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case - legal and factual - should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an ''Appeal in disguise''. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna Vs. Sri Basavaiah and others, and in the case of Prem Dutt v. Punjab State 1998 1 PLR 444. In the case of Parsion Devi and Others Vs. Sumitri Devi and Others, the Supreme Court has held as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC.

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected?. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ''an appeal in disguise.''

An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.

This principle was reiterated by the Supreme Court in the case of Lily Thomas, Vs. Union of India and Others, further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review.

The learned Counsel for the respondent Mr. Tikku has conceded that no plea was taken on behalf of the respondents that the writ petition of the petitioner challenging the court martial proceedings was barred on account of delay and laches. The learned Counsel for the respondent, Mr. Mridul, who had appeared on behalf of respondents on 3rd May 2005 had conceded that there was violation of Army Rule 40(2). It was neither pleaded nor contended that the writ petitioner could not invoke the challenge on the basis of the Army Rule 40(2) on the basis of the ratio of Charanjit Singh Gill (supra) on the premise that the Court Martial proceeding had become final on the dismissal of statutory appeal of the petitioner. Now what is being canvassed by the learned Counsel for the respondents is that the Court martial proceedings had become final on dismissal of the statutory appeal of the petitioner and in view of the ratio of the decision of the Supreme Court in Charanjit Singh Gill (supra), this plea based on Army Rule 40(2) could not be taken by the petitioner and therefore, the order allowing the writ petition be reviewed and the writ petition be dismissed.

The alleged error now canvassed by the learned Counsel for the respondents based on another view/opinion on the basis of which cannot be contended that there as an error which is self evident. In any case the error alleged by the respondents cannot be perceived without a long process of reasoning and without considering the judgment of the Apex Court in detail. In any case, under the power of review ,another view, if any, of this Court is not to be substituted with the view already taken by this Court. This writ petition in our view, in any event was rightly allowed as the restriction as laid down in para 27 of Charanjit Singh Gill was not applicable. On 24th April, 2000 when the Supreme Court decided the matter, the writ petition challenging the proceedings of the Court Martial had not been decided nor it was pending nor the petitioner had sought to incorporate the said plea by seeking amendment.

A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. The intention of the respondent is to re-agitate the whole controversy on the premise that the Court Martial proceedings attained finality on dismissal of the statutory appeal even though the remedy of judicial review had not been availed by the petitioner and so the petitioner could not challenge the Court Martial proceeding on the ground of violation of Army Rule 40(2). The respondents/applicant is essentially trying to urge that the view taken by this Court on various facets of the case, legal and factual, be substituted primarily because another view is possible. However, the power of review of this Court is to correct the mistakes but not to substitute a view in law. Where conceivably two opinions may be feasible and an alleged error has to be established by a long drawn process, it is not an error apparent and will not entail review of the order by this Court.

In the circumstances, this Court is of the opinion that there are no grounds for the review of order dated 3rd May, 2005 and the application filed by the respondents for the review of said order is without any merit. For the foregoing reasons, the application of the respondents/applicants, is therefore, dismissed, however, the parties are left to bear their own costs.