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Judgment
Army Act Section 69,"COMMITTING A CIVIL OFFENCE THAT IS
TO SAY, UTTERING WORDS INTENDING
THAT SUCH WORDS SHALL BE HEARD
BY A WOMAN, WITH INTENT TO INSULT
HER MODESTY, CONTRARY TO SECTION
509 OF THE INDIAN PENAL CODE.
,"In that he, at Pune, on 12 Oct 2014, uttered the
words ""please, please, madam, merasaath sex
karogikya"" (please, please madam, will you have
sex with me) or words to that effect, intending
that such words are heard by Mrs X wife of Mr
)/, thereby intending to insult her modesty.
once in the court martial proceedings thefinding of ""not guilty"" has been recorded, the same evidence should have been accepted in this case also.",
That apart, placing reliance on the principle laid down in Harjeet Singh Sandhu (supra) and referring to Head note (G) of the aforesaid judgment, an",
argument is made that the finding and sentence, if legal and just, has to be affirmed and once a finding of sentence is confirmed, the exercise of power",
under Rule 19 is unsustainable.,
We are not discussing the factual assertions made in this regard by referring to the statements of witnesses and various other factual aspects with,
regard to finding recorded in the DCM as was canvassed during the course of hearing by Mr. Ramesh, learned counsel for the applicant, because, in",
our considered view, to deal with the legal issue in question, the same may not be necessary. In sum and substance, it is the case of the applicant that",
once a fact finding body, has gone into the issue in question and considered the matter on two occasions and found the applicant not guilty, the action",
of the competent authority on the administrative side, in exercising the power under Section 20 of the Act, in the facts and circumstances of the case,",
is not warranted and it was submitted that the same is a perverse and unsustainable finding on a totally illegal action and, therefore, liable to be",
quashed.,
On the contrary, learned counsel appearing for the respondents refuted the contentions advanced by learned counsel for the applicant. He also",
referred to the DCM proceedings in extenso and pointed out that the so called discrepancies highlighted by the learned counsel for the applicant are,
not serious in nature. Learned counsel also took us through various statements of the witnesses, particularly the statement of the complainant, the",
identification parade and the conduct of the applicant at the time when the victim identified him and tried to emphasize that there was ample evidence,
to hold the applicant guilty. The plea of alibi, which found favour with the DCM proceedings, was a perverse finding. He also pointed out that within",
the time available to the applicant and looking to the proximity of the place where the incident took place and the QRT, happening of the incident is",
amply proved and based on various circumstances explained in the impugned order, the competent authority has taken a decision. The same need not",
be interfered with. It was argued by the learned counsel for the respondents that the administrative decision taken under Section 20 of the Act read,
with Rule 17 of the Rules cannot be subjected to judicial review in a proceeding under Section 14 of the AFT Act as if it is review of an administrative,
decision by an appellate authority. The scope of judicial review in such cases is very limited and based on the material that has been considered by the,
competent authority in the impugned order; a reasonable decision has been arrived at. The same is in accordance with law and need not be interfered,
with. Learned counsel cautioned us that we are exercising the powers under Section 14 of the AFT Act and not the power of appeal under Section 15,
of the AFT Act, particularly when the proceedings of the DCM have not been confirmed under Section 153 of the Act, therefore, the same is of no",
consequence. Merely because the parties are referring to some evidence that came on record, this Tribunal cannot sit in appeal and record a separate",
finding to hold that the finding of not guilty recorded in the DCM proceedings should be confirmed and made applicable to the impugned administrative,
action. The learned counsel then invited our attention to the law laid down by the Hon`ble Supreme Court in Union of India and others v. Harjeet Singh,
Sandhu (2001) 5 SCC 593. In the aforesaid decision, the Hon'ble Supreme Court laid down the scope of judicial review in such matters and",
emphasized that the action impugned is sustainable and the application is liable to be dismissed. He also referred to the decision of the Hon`ble,
Supreme Court in Tata Cellular v. Union of India (1994) 6 SCC 651 to demonstrate before us as to what is the scope of judicial review with regard to,
administrative action taken by a competent authority. That apart, reliance is also placed on an unreported judgment in the case of Sanjay Marutirao",
Patil v. Union of India and others in C.A No. 2448 of 2010 recently decided by the Hon'ble Supreme Court on 24.01.2020 in support of the contention,
that once the court martial proceedings are not confirmed by the competent authority, the power available under Section 20 read with Rule 17 can be",
exercised.,
We have heard the learned counsel for the parties at length and taken note of all the submissions made before us, including the written synopsis",
submitted.,
This is a case where even though for the incident in question DCM proceedings were held and in the DCM proceedings the applicant has been,
exonerated, but the fact remains that the competent authority has not confirmed the DCM proceedings. It is a settled principle of law that under",
Section 153 of the Act, no finding or sentence recorded in a court martial proceeding is valid unless confirmed as provided in the Statute and,",
therefore, the power exercised by the competent authority under Section 153 of the Act having attained finality, the DCM proceedings may not help",
the applicant in emphasizing or canvassing before us that he is not guilty. The question would be, even after recording of acquittal in the DCM",
proceedings, can the competent authority exercise the administrative powers available to him under Section 20 of the Act read with Rule 17 of the",
Rules and take the impugned action?,
We would first consider this question and it should not detain us long for the simple reason that this issue had already been considered and settled,
by the Hon'ble Supreme Court in Harjeet Singh Sandhu (supra). In Harjeet Singh Sandhu (supra), the question before the Hon'ble Supreme Court was,",
as to whether the law laid down by the Hon'ble Supreme Court earlier in Maj. Radhakrishnan v. Union of India (1996) 3 SCC 50 was the correct,
proposition of law. In Harjeet Singh Sandhu (supra), court martial proceedings were held, the officer was tried and the court martial awarded the",
sentence of forfeiture of three years' service for the purpose of promotion and severe reprimand to him. When the matter went to the confirming,
authority, it formed an opinion that the sentence awarded was very lenient and, therefore, in exercise of the powers under Section 160 of the Act sent",
back the matter for revision. On revision, the GCM enhanced the punishment inflicted on the officer and thereafter the Chief of Army Staff, in",
exercise of the statutory power conferred upon him, annulled the entire GCM proceedings on the ground that the proceedings were unjust. After",
having done so, he exercised his administrative power under Section 19 of the Act read with Rule 14 by issuing a show cause notice and finally",
terminated the service of the officer. These actions were challenged before the Allahabad High Court and the contentions before the High Court were,
that the incident took place in the year 1978, the court martial proceedings had become barred after three years on 28.03.1981 under Section 122 of",
the Act and once the proceedings have become barred, whether the recourse to Section 19 of the Act could be availed of. The Allahabad High Court",
allowed the petition based on the law laid down in the case of Maj. Radhakrishnan (supra) and came to the conclusion that the exercise of power was,
vitiated. Along with this case, another issue of one Capt. Harminder Kumar was taken up by the Hon'ble Supreme Court and in the case of Capt.",
Harminder Kumar, he was being proceeded against on the allegation of discrepancies in respect of stocks in Fuel Petroleum Depot, Leh for various",
period in March 1979. Summary of evidence was ordered and the GCM was convened on 18.08.1981. The officer challenged the court martial,
proceedings before the Hon'ble Supreme Court under Article 32. Initially, stay was granted, but subsequently the petition was dismissed and the stay",
was also vacated. The court martial proceedings were to commence in the year 1984. However, instead of proceeding with the court martial, the",
COAS, in exercise of the administrative power under Section 19 of the Act read with Rule 14 of the Rules, issued a show cause notice and finally",
terminated the service of the officer. The officer filed a writ petition before the Delhi High Court and it was his contention that the court martial,
having become barred, the action taken for administratively proceeding to termination is illegal and in this case also, the Delhi High Court, by placing",
reliance on the law laid down in Maj. Radhakrishnan (supra), allowed the petition. When both these orders passed by the Allahabad High Court and",
the Delhi High Court in the cases of Harjeet Singh Sandhu and Harminder Kumar (supra) were challenged before the Hon'ble Supreme Court, the",
learned Additional Solicitor General made a submission that the law laid down in the case of Maj. RadhaknIshnan (supra) has not correctly decided,
the issue, various legal provisions were not taken note of and an earlier judgment in the case of Chief of Army Staff v. Maj. Dharam Pal Kukrety",
(1985) 2 SCC 412 were not considered. Submissions were made in detail and after analyzing the statutory provisions under the Act, the peculiarity of",
the defence service and the various provisions spelt out not only in the Constitution, but in the Act also, the requirement of discipline and the",
importance of Army in defending the country and the security aspect, which was canvassed, the Hon'ble Supreme Court proceeded to analyze the",
scheme of the Act and the issue as to whether the power could be exercised in the matter of taking administrative action under Section 19 and,
whether the law laid down in the case of Maj. Radhakrishnan (supra) holds the field. On going through the law laid down in the case of Harjeet Singh,
Sandhu (supra), we find that the Hon'ble Supreme Court has meticulously analyzed various aspects of the matter, had taken note of certain",
illustrations given by the learned Additional Solicitor General in the following manner:,
xx xx xx xx xx xx,
(iii) The Central Government, the Chief of the Army Staff or any prescribed officer having annulled the proceedings of any Court Martial",
on the ground that they are illegal or unjust within the meaning of Section 165 of the Act and by that time the bar of limitation under Section,
122 having come into play;,
(iv) Any finding or sentence of a Court Martial requiring confirmation having been ordered to be revised by order of the confirming,
authority but in spite of such revision having not been confirmed once again and a subsequent revision of finding or sentence being not,
contemplated by the provisions of the Act; rather a revision once only having been provided by Section 160;,
It took note of Clauses (iii) and (iv) as indicated herein above and in Para 39 dealt with the issue in the following manner:,
In Illustrations (iii) and (iv) also, in our opinion, the exercise of power under Section 19 read with Rule 14 cannot be excluded. The",
finding and sentence of the Court Martial are ineffective unless confirmed by the confirming authority. The Act does not contemplate that,
the finding and sentence of a Court Martial must necessarily be confirmed merely because they have been returned for the second time.,
Section 165 vests power in the Central Government, the Chief of the Army Staff and any prescribed officer, as the case may be, to annul the",
proceedings of any Court Martial if the same are found to be illegal or unjust.,
The delinquent officer cannot be allowed to escape the consequences of his misconduct solely because court-martial proceedings have been,
adjudged illegal or unjust for the second time. The power under Section 19 read with Rule 14 shall be available to be exercised in such a,
case though in an individual case the exercise of power may be vitiated as an abuse of power. The option to have a delinquent officer being,
tried by a Court Martial having been so exercised and finding as to guilt and sentence having been returned for or against the delinquent,
officer by the Court Martial for the second time, on just and legal trial, ordinarily such finding and sentence should be acceptable so as to",
be confirmed. Power to annul the proceedings cannot be exercised repeatedly on the sole ground that the finding or the sentence does not,
meet the expectation of the confirming authority. Refusal to confirm is a power to be exercised, like all other powers to take administrative",
decision, reasonably and fairly and not by whim, caprice or obstinacy. Exercising power under Section 19 read with Rule 14 consequent",
upon court-martial proceedings being annulled for the second time because of having been found to be illegal or unjust, the exercise would",
not suffer from lack of jurisdiction though it may be vitiated on the ground of ""inexpediency"" within the meaning of Rule 14(2) or on the",
ground of abuse of power or colourable exercise of power in a given case, (emphasis supplied)",
The findings and the principles carved out by the Honible Supreme Court clearly indicate that the findings and sentence recorded in a Court Martial,
proceeding are ineffective unless confirmed by the confirming authority. It is held by the Honible Supreme Court that the Army Act does not,
contemplate a situation where the finding and sentence of the Court Martial must necessarily be confirmed merely because it has been rendered for,
the second time. The Central Government or the COAS or the prescribed officer, as the case may be, is empowered to annul the proceedings by the",
Court Martial if it is found to be illegal or unjust. The Honble Supreme Court further held that a delinquent officer cannot be allowed to escape the,
consequence of his misconduct solely because the Court Martial proceedings have been adjudged to be illegal or unjust. It has been held that the,
power under Section 19 read with Rule 14 must still be available to be exercised in such a case, though in an individual case, the exercise of power",
may be vitiated on account of abuse of power. Refusal to confirm a Court Martial proceeding is a power that can be exercised by the competent,
authority like all other powers to take administrative action, but this should be reasonable and fair and not an arbitrary or illegal decision. It was clearly",
spelt out by the Hon'ble Supreme Court that exercise of power under Section 19 read with Rule 14 consequent upon the Court Martial proceedings,
being annulled for the second time, would not suffer from lack of jurisdiction, even though in a judicial review it may be vitiated on the ground of",
inexpediency. Having explained the law in Paragraphs 41 and 42, the Hon'ble Supreme Court deals with the issue in the following manner:",
Having thus explained the law and clarified the same by providing resolutions to the several illustrative problems posed by the learned,
Additional Solicitor General for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the",
expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with,
Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to",
exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called,
colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct",
committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by a Court",
Martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of",
time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of,
power under Section 19. That would all depend on the facts and circumstances of an Individual case. No hand-and-fast rule can be laid,
down in that behalf A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court-,
martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the",
scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction",
on the term ""impracticable' and therefore on availability or happening of such events as render trial by Court Martial impermissible or",
legally impossible or not practicable, the situation would be covered by the expression-the trial b,v Court Martial having become",
Impracticable':",
Exercise of power under Section 19 read with Rule 14 is open to judicial review on well-settled parameters of administrative law,
governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by mala fides or Is,
found to be a clear case of colourable exercise of/or abuse of power or what is sometimes called fraud on power i.e. where the power is,
exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising,
the power cannot be revalued or weighed by the court while exercising power of judicial review. Even if some of the material, on which the",
action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material available on which the",
action can be sustained. The court would presume the validity of the exercise of power but shall not hesitate to Interfere if the invalidity or,
unconstitutionality Is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or",
opinion for the satisfaction or opinion of the authority exercising the power. (emphasis supplied),
From the aforesaid legal proposition, it is clear that merely because certain Court Martial proceedings have been held and an officer has been",
exonerated, unless and until the proceedings of the Court Martial are confirmed, nothing in the Statute prevents the competent authority in exercising",
his administrative power under Section 19 read with Rule 14. We may take note of the fact that Section 20 of the Act read with Rule 17 of the Rules,
is an analogous and para materia provision to Section 19. Section 19 of the Act refers to officers, whereas Section 20 of the Act refers to other",
categories of Armed Forces personnel. That being the position, we can safely conclude that merely because the Court Martial proceedings have",
resulted in acquittal of the applicant or recorded a finding of ""not guilty"" against him on two occasions, that cannot be a ground to hold that the",
administrative action taken under Section 20 of the Act read with Rule 17 of the Rules is unsustainable in law. This is not the correct legal proposition,
and, therefore, in spite of the fact that the Court Martial proceedings resulted in recording a finding of not guilty, the competent authority, we hold, still",
has the power to take administrative action in the matter. For the reasons discussed herein above, we have to reject the contention made by learned",
counsel for the applicant with regard to the observations made in Head note (G) of the decision in Harjeet Singh Sandhu (supra). The Head note in,
question and the observations made in Para 27 of the aforesaid judgment have to be evaluated in the backdrop of the legal principle which we have,
discussed herein above and if we go through the aforesaid principle, particularly the illustration discussed in Para 36 and the principles carved out in",
Para 39, it is clear that refusal to confirm the proceedings of a court martial is a power available to the competent authority. It is an administrative",
decision taken and if the proceedings of the court martial are not confirmed, the same is ineffective and will not prevent an authority from proceeding",
in the matter of administrative exercise of power under Section 20 read with Rule 17. In fact, this is also the law recently laid down by the Hon'ble",
Supreme Court in the case of Sanjay Marutirao Patil (supra), wherein also, after taking note of the principles carved out by the Hon'ble Supreme",
Court in Paragraphs 24 to 27 in the case of Harjeet Singh Sandhu (supra), the law laid down is that in case the proceedings of the court martial are not",
confirmed, the power under Section 20 read with Rule 17 can still be exercised. For the sake of convenience, we may reproduce here under certain",
observations made by the Hon'ble Supreme Court in Para 7:,
Therefore, it cannot be said that the order passed by the Summary Court Martial by which the appellant was inflicted with the penalty of",
reduction in rank attained finality on being confirmed by the competent authority (in the present case the Chief of Army Staff). Therefore,",
considering the observations made by this Court in paragraphs 24 to 27 (more particularly, paragraph 27) in the case of Harjeet Singh",
Sandhu (supra), it was open for the competent authority to exercise powers under Section 20 of the Army Act read with Rule 17 of the Army",
Rules. The power vested with the Chief of the Army Staff and conferred under Section 20 of the Army Act is an independent power available,
and for which the procedure under Rule 17 of the Army Rules is required to be followed, however, subject to the restrictions as observed by",
this Court in paragraph 27/n the case of Harjeet Singh Sandhu (supra). Meaning thereby that only in a case where the final verdict of,
guilty or not guilty pronounced by a Court Martial has been confirmed by the competent authority and has attained finality, the power to",
proceed under Section 19 read with Rule 14 or Section 20 read with Rule 17 shall not be available to be exercised. In other words, so long",
as a final verdict of guilty or not guilty pronounced by a Court Martial and confirmed by the competent authority as to be effective is not,
available, the power to proceed under Section 19 read with Rule 14 or Section 20 read with Rule 17, as the case may be, exists and remains",
available to be exercised. Therefore, in the facts and circumstances of the case and in the absence of any confirmation of the order passed",
by the Summary Court Martial by which the appellant was reduced to rank, the respondent no. 3 herein was justified in exercising the",
power under Section 20 red with Rule 17 At this stage, it is required to be noted that while exercising the power under Section 20 of the",
Army Act, the only procedure which is required to be followed would be under rule 17 of the Army Rules, namely, a person who is sought to",
be dismissed or removed from service has been informed of the particulars of the cause of action against him and allowed reasonable time,
to state in writing any reasons he may have to urge against his dismissal or removal from the service. In the present case, such an",
opportunity has been given to the appellant and therefore the proper procedure has been followed before dismissing the appellant from,
service, in exercise of powers under Section 20 of the Army Act.",
Having held so, now the question before us would be, as to whether the administrative action taken was unreasonable, tainted with ulterior or mala",
fide motive or is arbitrary in nature or lacks jurisdiction? That apart, we are also required to consider as to whether the administrative action taken can",
be subjected to judicial review in these proceedings in a manner as if we are exercising appellate jurisdiction over the administrative decision. The,
legal position in this regard is amply clear from the observations made by the Hon'ble Supreme Court in Para 42 of the decision in Harjeet Singh,
Sandhu (supra), which we have reproduced herein above. We are now required to consider as to whether the administrative action in the instant case",
taken under Section 20 read with Rule 14 is such that it breaches the well settled parameters of the administrative law and thereby judicial review of,
such administrative action is permissible namely, the action is mala fide or is based wholly on extraneous or irrelevant ground or is a colourable",
exercise of power or is an abuse of power, which is classified by the Hontle Supreme Court as fraud on power. We are required to find out as to",
whether the impugned administrative action is undertaken with an oblique motive.,
When we analyse the facts of the present case, we find that the complaint is made against the applicant with regard to an incident that took place",
on 12.10.2014. The complainant woman, as per the material available on record, immediately made a complaint to a guard who was present in the",
area and thereafter to her husband and admittedly, within a short period of time, the entire administrative machinery was put into action, investigation",
took place and identification parade was ordered. The case of the applicant is that in the DCM proceedings, he has been exonerated because two of",
the defence witnesses had testified that between 0500 hrs. and 0600 hrs. when the incident did take place on 12.10.2014, he was taking rest in the",
QRT, which is clear from the evidence of DWs 4 and 5. The competent authority, vide impugned order, has considered the reply to the show cause",
notice given by the applicant along with the proceedings of the DCM and ordered the applicant to be dismissed from service with immediate effect, on",
the following reasons:,
(a) That, you were tried by District Court Martial for a charge under Army Act Section 69 for committing a civil offence that is to say,",
uttering words intending that such words shall be heard by a woman, with intent to insult her modesty, contrary to Section 509 of the Indian",
Penal Code. Wherein at Pune, on 12 October 2014, uttered the words, please, please, madam mere sath sex karogi kya (please, please",
madam will you have sex with me) or words to that effect, intending that such words are heard by Mrs X wife of Mr V thereby intending to",
insult her modesty. The court has failed to correctly and legally appreciate the evidence on record before the Court. The findings are,
perverse to evidence troth ocular as well as circumstantial.,
(b) That, the victim's testimony has been overlooked completely by the Court in spite of the fact that she withstood the test of cross",
examination and no contradictions or inconsistencies or discrepancies have been brought out by defence in her testimony. She has,
categorically deposed how you had approached her and asked her Please, please, madam, mere sath sex karogi kya (please, please madam",
will you have sex with me) or words to tht effect'. This statement was preceded by three conversations initiated by you. Once you were sure,
that the victim is talking to you, only then you stated the above mentioned words. That, this act of yours was part of a deceitfully crafted",
strategy. Further, when the victim asked your name you again gave your name as Ajit Kumar, this again confirms that you tried to display a",
false identity so that you are not caught. That, the defence did not put any questions on these facts deposed by the victim in cross",
examination, thus implieclly admitting her version. The words uttered by you establish that they were intended to be heard by the victim and",
thereby to outrage her modesty. It shall be in the fitness of things to refer to the decision of Hon 'Ole Supreme Court in State of Punjab Vs,
Gurmit Singh ((1996) 2 SCC 384) held that in cases involving sexual harassment, etc. the court Is duty bound to deal with utmost sensitivity",
and minor contradictions or insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an,
otherwise reliable prosecution case.,
(c) That, the court overlooked the promptness by which the victim made the complaint. As per the testimony of PW-1, she immediately after",
the incident went to Gurudwara gate, where one Army personnel was on duty, to make a complaint. Thereafter, she went to her quarter and",
made a complaint to her husband.,
(d) That, the court also did not appreciate the fact that Maj Ishanu Das (PW-10 before the Court) has brought out as to how you reacted",
when you were identified by the victim, and you asked her, 'kya aap meni awaj pehchanti hal'. These words were said by you to cloud the",
outcome of the identification parade. Such subsequent conduct is relevant and unmistakingly pointed that you were trying to screen yourself,
so as to avoid being detected and was an act of a guilty conscious mind. Further, the evidence in District Court Martial particularly the",
evidence of Lt Col Ajay V Nair (PW-8 in court martial) reveal that the victim Mrs XYZ (PW-1 in the court martial) had herself identified the,
accused on 12 October 2014, The testimony of PW-8 and PW-10 has been categoric on the issue that PW-1 had herself identified the",
accused and the said testimonies have withstood the cross-examination by the defence in the Court Martial. The test of identification parade,
as held by Hon'ble Apex Court is part of investigatory process and is only aid to find out the identity of the perpetrator of crime and is not,
form of substantive evidence. The only evidence which is substantive in nature are the statements made in the court on oath.,
(e) That, the court has omitted to appreciate the evidence of victim 1.17 the light of the fact that she did not know the accused before the",
incident took place. The AFT Principal Bench in OA Number 1580/16 Sepoy Manish Kumar Rawat vs UOI vide order dated 13 February,
2017 has observed that ""it does not stand to reason as to why the victim would take name of the appellant, when she was not known to the",
appellant, nor were her parents."" Thus in absence of any evidence of any enmity with you, there is no reason, whatsoever, for the victim to",
falsely implicate you. She has narrated the facts as occurred with her on the day of incident.,
(f) That, the court has wrongly acceded to plea of alibi raised by defence which can succeed only if it is shown that the accused was so far",
away that the relevant time that he could not be present at the place where the crime was committed. The conclusion arrived at by the court,
in accepting the Alibi is highly erroneous. The Plea of Alibi postulates the physical impossibility of the presence of the accused at the scene,
of offence by reason of his presence at another place. The plea can, therefore, succeed only if it is shown that the accused was so far away",
at the relevant time that he could not be present at the place where the offence was committed.,
The question before us is, whether the aforesaid findings recorded by the administrative authority can be termed as unsustainable in law for various",
reasons, on the basis of which the law permits interference with an administrative decision in a judicial matter.",
As far as mala fides, unreasonableness and oblique motives are concerned, it is not the case of the applicant that any official, under whom or with",
whom he was working, were biased, prejudiced or had any malice with him. He does not make any such allegation. On the contrary, the finding",
recorded in the court martial is that the incident did take place and if such an incident did happen and if a member of the Force is involved in it, it is a",
matter of requirement of security and high standard of discipline to be maintained in the Armed Forces and if, taking note of all these aspects, the",
competent authority thought it proper to proceed with the matter, we do not think that it is an action which is tainted with various factors like oblique",
motive or unreasonableness. It is an action taken on administrative side and in the absence of any material being available to show that it was tainted,
with mala fide or with oblique intent, we are not required to interfere with the matter.",
Before scrutinizing the reasons that weighed with the competent authority for holding the applicant guilty of the act of misconduct, which we have",
reproduced herein above, it may be appropriate to take note of the scope of judicial review into such administrative matter. As we have already",
indicated, once the court martial proceedings have not been confirmed, the application filed before us would only fall within the purview of Section 14",
of the AFT Act and rightly so, the applicant has also filed this application under Section 14 and under Section 14, we would be acting as a statutory",
Tribunal exercising our power of judicial review into an administrative action. Even though there are catena of judgments which laid down the principle,
based on which administrative action can be interfered with and the scope of judicial review had been prescribed, we may refer to the case of Tata",
Cellular (supra), wherein the principle has been crystalized by the Hontle Supreme Court by holding that in such cases, judicial review is concerned",
with reviewing not the merits of the decision, but the decision making process itself. Thus, judicial review is different from an appeal. In such a case,",
the Court or Tribunal is not concerned with the merits of the decision, but an administrative action is analysed as if it is an appeal, merits of the",
decision cannot be interfered with. It is only the decision making process which can be subjected to judicial scrutiny. The parameters, for",
considerations in such proceedings, are, (i) whether the decision making authority exceeded in exercise of this power, or (ii) committed an error of law",
or (iii) committed a breach of the rules of natural justice or (iv) reached a decision which no reasonable tribunal or authority would have arrived at or,
(v) the exercise of power is an abuse of the process. In fact, Wednesbury's theory of unreasonableness applies to such proceedings and interference",
can be made only if the impugned action or decision is so outrageous and is beyond the comprehension of a prudent man approach. The Hon'ble,
Supreme Court goes on to say that judicial restraint in administrative action is a requirement of the day. Court or Tribunal does not sit as a Court of,
Appeal but only review the manner in which the decision is made. In sum and substance, that is the scope of judicial review in such cases. That apart,",
while exercising the power under Section 19, in the case of Harjeet Singh Sandhu (supra) in Para 42 as reproduced herein above, the Hon'ble",
Supreme Court has held that the truth or correctness or the adequacy of the material available before the authority exercising the power cannot be,
revalued or weighed by the court while exercising power of judicial review. Even if some of the material, on which action is taken, is found to be",
irrelevant, the Court still will not sit to interfere so long as there are some relevant materials available, on which action can be sustained. That being",
the limited scope of judicial review available, if we analyse the facts of this case and the facts or evidence that weighed with the competent authority",
in taking action, we find that the DCM found the applicant not guilty only because there was some evidence before it to show that on the relevant date",
between 0500 hrs. and 0600 hrs. the applicant was in the QRT and, therefore, he could not have been present at the place of incident. That was the",
only reason why the DCM exonerated the applicant. However, the competent authority found that the applicant could have left the place and",
committed the offence. The victim's testimony has been meticulously analysed by the competent authority, her cross examination has been taken note",
of, identification parade has been considered and certain conduct of the applicant when he was identified were all taken note of and the plea of alibi",
has been rejected on account of various factors which are detailed in the impugned order. In our considered view, if we analyse the evidence that has",
come on record, i.e. one by the applicant to say that he was not present at the place of incident may be correct, or the finding recorded by the",
competent authority can also be arrived at if certain discrepancies in the evidence are seen, both these views may be possible and the view taken by",
the competent authority in the impugned order is one of the possibilities and, in fact, a more probable view and if that is the conclusion which we have",
come to, based on meticulously scanning the entire material, we are of the considered view that it is not a fit case where we can exercise our limited",
jurisdiction to interfere with the matter. As discussed by us earlier, the scope of judicial review in the facts and circumstances of the case is not made",
out. On the contrary, we have no hesitation in holding that the competent authority has exercised his powers on due consideration of paramount",
factors which are permissible in law and looking to the nature of allegations that came on record, we see or illegality or irregularity in the impugned",
action warranting interference. Accordingly, we find no ground to interfere with the matter.",
The instant 0.A fails and is dismissed. No order as to costs.,
Pronounced in open Court on this the 19th day of February, 2020.",