V S TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) The point for consideration in this writ petition which has arisen from the preliminary objection taken by the respondents is whether the statutory remedy available to the petitioners under Section 164(2) of the Army Act, 1950 (hereinafter referred to as "the Act of 1950"), if it is not availed, the present writ petition under Article 226 of the Constitution of India is maintainable or not.

(2.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 16-12-2002 against the respondents with the prayer that by an appropriate writ, order or direction, the orders of award of sentences marked as Annex. -17 to Annex.-21 passed after holding the petitioners guilty of the charges levelled against them by the Court-martial and further, the confirmation orders (Annex.-22 and Annex. - 23) passed by the respondent No. 3. General Officer Commanding-in-Chief, HQs Southern Command, Pune (Maharashtra), who was confirming authority, be quashed and set aside.

(3.) The case of the petitioners as put forward by them in this writ petition is as follows : The petitioners were posted with Branch Requirement Office, Jodhpur and they were working on different posts. The petitioner No. 1 V. S. Tiwari was working as Subedar Major and the petitioner No. 2 A. K. Singha was working as Naib Subedar and the petitioners Nos. 3, 4 and 5, namely, S. R. Rangrao, V. Gunasekharan and Hari Singh respectively were working as Hawaldar/ Clerk. When the petitioners were working with the respondents, they were charge-sheeted through charge-sheet Annex.-24 for various offences including the offences under Sections 63 and 64(e) of the Act of 1950 and 34, IPC. The sum and substance of the charges levelled against the petitioners was that all the petitioners accepted bribe from some prospective candidates and in such circumstances, the matter was reported to the Branch Recruiting Officer Col. B. S. Batra. For the purpose of verifying the position, a team of Officers searched the belongings of the petitioners and during search, a sum of Rs. 65,300/- were found. The respondent No. 5 Commanding officer conducted the hearing of the charged under Rule 22 of the Army Rules, 1954 (hereinafter referred to as "the Rules of 1954") and, thereafter, summary of evidence was recorded under the Rules of 1954. After recording summary of evidence, the respondent No. 5 Commanding Officer examined the matter and on being satisfied referred the matter to the higher authorities for holding General Court-martial. In such circumstances, on 14-4-2002, the respondent No. 4 Brigade Commander passed an order for convening General Court-martial and since the charges were inter-linked, all the petitioners were tried together. The General Court-martial proceedings against the petitioners were conducted between 23-4-2002 to 16-7-2002 as per the provisions of the Act of 1950 and Rules of 1954 and all the petitioners were found guilty of the charges levelled against them and the following sentences were imposed upon them by the General Court-martial: @@@202.htm@@@ The findings and sentences recorded by the General Court-martial against the petitioners were confirmed by the respondent No. 3 General Officer Commanding-in-Chief, who was the confirming authority. Hence, this writ petition with the prayers as stated with. In this petition, the trial and proceedings conducted by the General Court-martial have been challenged by the petitioners on various grounds mentioned in the writ petition. A reply to the writ petition was filed by the respondents and a preliminary objection was taken by the respondents that as per the provisions of Section 164(2) of the Act of 1950, if the petitioners had any grievance against the findings and sentences awarded by the General Court-martial, after they were being confirmed, they should move the authority superior to the confirming authority for redress and since the petitioners had statutory alternative remedy and the same was not availed by them, therefore, the present writ petition filed by the petitioners is premature and not maintainable and should be dismissed on this ground alone.