K.K. Kerpal vs Union of India (UOI)

Samir K. Mookherjee, J.—This writ application is at the instance of a Squadron Leader of the Indian Air Force and is directed against an order of imposition of penalty of forfeiture of 3 years'' service for the purpose of increased pay and pension, passed on rejection of his application u/s 161(2) of the Air Force Act, 1950. The writ Petitioner was charged with commission of an offence u/s 41(2) of the Air Force Act, namely, disobeying lawful command given by his superior officer. The relevant part of the charge-sheet on the basis of which the Petitioner was ultimately tried by the Court Martial and awarded punishment in the aforesaid manner read as follows:

Section 41(2), Air Force Act, 1950:

Disobeying the lawful command given by his superior officer;

In that be, at 10 Wing, Air Force, when ordered by Wg. Cdr. A Bal, Chief Administrative Officer of 10 Wing, Air Force, vide 10 Wing, Air Force Letter No. 10W/C901/II/P1. dated 17th March, 1983, to proceed, on posting, to 2 GWTI, Air Force, by 20 Mar. 83 did not proceed as ordered.

It is required to be noted at this stage that on identical charge an earlier Court Martial was held and had to be dissolved because it was found that the Respondent No. 3 had, before compliance with Rule 24 of the Air Force Rules, prejudged the issue and the instant Court Martial was thereafter constituted to proceed in pursuance of the same charge.

The Court Martial found the officer guilty of the charge and passed a sentence of forfeiture of two years past service for the purpose of promotion and for the purpose of increased pay and pension, subject to confirmation. The operative period of the said sentence, on revision, was enhanced to three years in place of two years.

Mr. Bihani, appearing on behalf of the writ Petitioner, had argued that the charge-sheet and the consequent order of penalty are liable to be quashed on the ground that the same do not satisfy the criteria laid down u/s 41, Sub-section (2) of the Air Force Act. While developing his aforesaid point, it was argued that the command was not given by a superior officer of the Petitioner, who had the authority to direct movement of the Petitioner. Secondly, he argued that the command was not lawful as the Petitioner was directed to report at a time when the Guided Weapon Course had already started on January 24, 1983 and it was known to the superior authority that the officer, who would be reporting after January 31, 1983, would not be absorbed. In support of his above submissions, Mr. Bihani had referred to Annex. ''R'' to the writ application, which show that the personnel reporting for G.W.T.I. course later than January 31 will not be absorbed for the course and units were asked not to route personnel for the said course. Mr. Bihani has also quoted in his writ application copiously the relevant parts of the evidence of the Respondent No. 5, who issued the order of posting of the Petitioner to 2 G.W.T.I.; he admitted that a signal was sent to Air Headquarters seeking a clarification if the Petitioner was to be routed for the course or not and the disputed order of posting was issued before receiving any reply thereto; that he was aware that personnel reporting after January 31, 1983, would not be absorbed in the course and about the existence of Annex. ''B''. It also transpires from his evidence, copy, of which has been annexed as Annex. ''R'' to the writ application that movement of personnel was not included in the directory of duties of the Chief Administrative Officer as signed by the Air Officer Commanding, 10th Wing. In view of the aforesaid state of materials, Mr. Bihani had emphatically contended that there was no lawful command as a lawful command must be reasonable and must emanate from a superior officer, who had authority to issue the same. Both the said factors, according to Mr. Bihani, were absent in the present case. Mr. Bihani in this connection had referred to a decision of the Supreme Court of India in the case of M.A. Rasheed and Others Vs. The State of Kerala, Secondly, Mr. Bihani had contended that the Second Court Martial was illegal since the First Court Martial remained undissolved and lastly, Mr. Bihani had assailed the orders of penalty and the orders rejecting the Petitioner''s representations against such penalty as non-speaking orders since no reason had been disclosed in the same order showing the mode of working of the mind of the Disciplinary authorities.

Sardar Amjad Ali, appearing on behalf of the Respondents, had raised the point of lack of territorial jurisdiction of this Court as, according to him, the location of 49 Squadron to which the Petitioner was attached at the material time was at Jorhat, Assam; 10th Wing of the Air Force Administrative unit of 49th Wing was also at Jorhat, Assam; 11th unit of the Air Force where the second Court Martial was held was at Tezpore, Assam and the 19th Wing of the Air Force where the Revisional Court Martial assembled was at Gawahati, Assam. The Petitioner''s representation u/s 161(2) of the Air Force Act was addressed to the Air Chief Marshal whose sit was at Delhi, outside the jurisdiction the disputed order of posting of the Petitioner to 2 G.W.T.I. was issued from Delhi and communicated to the Petitioner at Jorhat, Assam. According to Sardar Amjad Ali excepting the communication of the order passed on the Petitioner''s representation u/s 161(2) of the Air Force Act, which was received by the Petitioner at 2 G.W.T.I. Barrackpore, there is no material to attract the writ jurisdiction of the Calcutta High Court and the mere receipt of the order cannot be said to constitute the cause of action, even partly. Secondly Sardar Amjad Ali, relying upon his statements in para. 49 of the affidavit-in-opposition argued that the constitution of the second Court Martial was not illegal as the first one had been dissolved on September 19, 1983. Sardar Amjad Ali also argued that since the Air Force Headquarters had issued the command earlier and the command in question was only a reiteration of the same and Mr. Bal was a superior officer within the meaning of Section 4 of the Air Force Act, the Petitioner''s grievance about non-fulfillment of conditions of Section 41(2) of the Act was misconceived.

On a careful consideration of the points urged by the learned Counsel, as noted hereinabove by me and the decisions cited by them, I am of the view--notwithstanding my conclusions regarding points on merit in favour of the Petitioner--the writ application must fail on the ground of absence of jurisdiction of the Calcutta High Court. 1 have already noted in the earlier part of this judgment that in spite of introduction of Article 226(1A) of the Constitution of India, the position remains that none of the Respondents resides within the territorial limit of the Calcutta High Court nor does any part of the cause of action can be said to have arisen within such jurisdiction. I am not unmindful of the position that the Petitioner received the penal order, Annex. ''X'', in the final form at Barrackpore, even then, in view of the guidelines laid down by the Supreme Court of India in the case of State of Rajasthan and Others Vs. Swaika Properties and Another, which have full application there cannot be any alteration of the legal position, which I have already stated hereinabove. The writ application, therefore, on this technical ground, must fail.

In spite of the aforesaid conclusion about the absence of territorial jurisdiction, 1 propose lo deal with shortly the points on merit as the judgment, which I am passing, is an appealable judgment and the settled law requires that the decision on every point in such a case ought to be given to that in the event the Petitioner succeeds in getting my first finding upset in appeal, there is no delay caused to the proceeding being disposed of finally by the Court of Appeal. For an authority, for the procedure I am following, reference may be made to the case of Fomento Resorts and Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and Others,

On analysis of Section 41(2) of the Air Force Act, it becomes clear that the Petitioner will be guilty of dereliction of his duties as an Air Force staff, only if he has disobeyed a lawful command of a superior officer. I have already noted hereinabove that Mr. Bihani, the learned Advocate for the writ Petitioner, contended that from the materials produced and the copies of the oral evidences annexed, it was unequivocally established that Mr. Bal, in spite of performing the duties of the Chief Administrative Officer at the relevant time, did hot have the authority, normally, to issue directions alike the one issued in the case of the Petitioner transferring him to G.W.T.I. at Barrackpore; he did so only on a purported leave being obtained from Air Officer Commanding on his own seeking; according to Mr. Bal, A.O.C., 10th Wing, A.F. directed him to deal with the case as he deemed fit, vide Annexure ''R''; it was admitted by the witness that movement of personnel was not included in the Directory of Duties of Chief Administrative Officer. It is worthwhile to note, in this connection, that the oral evidence of Air Commander, 10th Wing, A.F. (on being recalled), clearly shows that he was not aware as to how the Chief Administrative Officer started dealing with the case and also that no discussion relating to the case of the delinquent had taken place between him and the Chief Administrative Officer Mr. Bal (vide Annex. ''P'' to the writ application). These two contradictory statements clearly cut at their credibility, inter se and the benefit in the form of Mr. Bal''s order not having emanated from a superior officer having due authority must be given to the delinquent officer. On the other, contention about the obeying of the command, I would like to make a distinction between ordinary service-holders and an Air Force Officer. I hold, accordingly, that the order was not lawful due the absence of authority. It is, no doubt, true that the assertion made on behalf of the writ Petitioner that his posting order to 2 G.W.T.I. at Barrackpore was unreasonable as the course which started earlier was a course for six weeks starting from January 24, 1983 and any candidate routed after January 31, 1983, was not to be accepted for the course is admitted by the statement of Mr. Bal himself (vide the statement of the said witness in cross-examination). But in spite of such factual position an officer of a disciplined force like the Air Force cannot be allowed to take the plea that due to the order being not reasonable it could not be said to be lawful by way of defence against his superior officer. An officer of such a force must carry out the command without questioning its legality on the ground of reasonableness. In that view of the matter, I am not prepared to accept Mr. Bihani''s second branch of submission that the command was not a lawful command, being patently unreasonable. A reference to Section 17 of the Air Force Act will, at once, show how stringent the condition of service of an Air Force Officer is. It is noteworthy that the language of the said Sub-section (2) of Section 17 refers to ''all commands'' without making any distinction by referring to ''lawful commands'' or ''reasonable commands''. The decision in M. A. Rasheed''s case (Supra) in the context of the aforesaid special facts does not come in conflict with the view 1 have taken.

The other broad aspect on merit, which I feel called upon to deal with, is the manner in which the orders are recorded. From the copies annexed to the writ application all the orders passed by the Disciplinary Authorities of varying status, it appears that no reason has been given for holding the Petitioner guilty with the undeniable result of rendering the remedy by way of appeal or revision practically nugatory and infructuous. Expressing reasons on which an order passed is based is one of the founding features of the principles of natural justice and serves as the best form of proof of application of mind by the concerned authority and of absence of arbitrariness on the part of such authority. By way of justification of the proposition that orders passed in disciplinary proceedings must be speaking orders, reference may be made to the cases of The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, and The State of Punjab and Others Vs. Bakhtawar Singh and Others, But for the lack of territorial jurisdiction, I would have set aside the impugned penal, appellate and revisional orders on the grounds of the same being non-speaking ones.

Before I conclude, I feel it my duty to record that since the penal order, the appellate and revisional orders do not disclose as to how the relevant facts weighed with the respective authorities, I have been compelled to appraise the factual materials also, which ought not normally be done by a Court of writ. This very reason distinguishes the decisions cited by Sardar Amjad Ali on the point of restrictions of writ jurisdiction to appraise or reappraise evidence.

In the result, however, the application must fail because I have already held that this Court has got no jurisdiction to proceed with the writ application.

In the special facts of this case, each party will bear his own costs.

Stay of operation of the order as prayed for by Mr. Bihani is granted for three weeks.