ORDER
Dr. Mukundakam Sharma, J.
1. In this writ petition the petitioner has prayed for an order for setting aside and quashing the general court martial proceedings and convening orders with charge sheet and summary of evidence as contained in Annexure P-35 to the writ petition.
2. It is stated in the writ petition that the aforesaid convening order of the general court martial is violative of the provisions of Rule 43 of the Air Force Rules. It was also submitted that subject of the petitioner to warning on 17.12.1997, initial trial under section 86 of the Air Force Act on 26.6.1998 and then before General Court Martial during 23.9.1999 and 28.9.1999 in breach of provisions of the Air Force Rules for same and similar accusations with different charge sheets is wholly opposed to the principles of natural justice and law. It was also submitted that the Convening Order having not been issued under authority and signatures of the competent Convening Officer and being issued by one Air Commodore J.S.Sandhu, who is not the competent authority is illegal, void and incompetent and therefore, the entire proceedings of the General Court Martial stand vitiated. It was also the submission that the entire proceedings before the General Court Martial is vitiated by violation of the principles of natural justice and hence the present petition.
3. In the writ petition several grounds have ben cited on the basis of which it is prayed that the entire proceedings of the General Court Martial and the Convening Order with charge sheet and summary of evidence are required to be quashed. Counsel for the petitioner submitted that the order convening the Court Martial was not issued by Competent Officer and therefore, the said order is required to be quashed and the entire Court Martial proceedings stand vitiated. In support of his contention the learned counsel relied upon the decision of the Supreme Court in Union of India and Others Vs. Harish Chandra Goswami, JT 1999(3) 324. Counsel appearing for the petitioner also submitted that the petitioner having been already reprimanded for the same offences for which the General Court Martial has now been convened, the punishment proposed subject to confirmation pursuant to the charge sheet and summary of evidence as contained in Annexure P-35 is illegal and violative of principles of natural justice and also amounts to double jeopardy. He further submitted that there were several violations in convening and holding the General Court Martial and therefore, the said proceedings are liable to be quashed.
4. Counsel appearing for the respondent while refuting the aforesaid allegations submitted that the submission of the learned counsel appearing for the petitioner are without any merit. She submitted that the ratio of the decision of the Supreme Court in Harish Chandra Goswami’s case (supra.) is not applicable to the facts of the present case as the relevant provisions on which the aforesaid decision is rendered is distinct and different from the provisions which hold the filed in the present case. She also submitted that the charge sheet drawn on 26.1.1998 is for not paying Mess Bills for the months of September, October, November and December, 1997 whereas the Court Martial held on 23.9.1999 to 28.9.1999 is for refusing to carry out Orderly Officer duty, and therefore the charges are different and distinct. She also submitted that the allegation that there is violation of the principles of natural justice both in convening the General Court Martial and in the proceedings of the Court Martial, is without any merit.
5. In the light of the aforesaid submissions of the counsel appearing for the parties I have also looked into the original records placed before me by the respondents showing the process of convening the General Court Martial. In the light of the records placed before me including those original records I proceed to decide this matter on merits.
6. The submission that the convening of the General Court Martial under the signatures of Air Commodore is illegal and invalid in the light of the decision of the Supreme Court in Union of India Vs. Harish Chandra Goswami is taken up first for consideration. It is required to be mentioned that the said decision was rendered by the Supreme Court by interpreting Rule 37 of the Army Rules. I am however, in the present case not concerned with the provisions of Rule 37 of the Army Rules. It is an admitted position that in the present case Air Force Rule 43 is attracted. A bare reading of the aforesaid provision namely-Army Rule 37(3) would indicate that the same is different from the Air Force Rule 43. In order to appreciate the aforesaid contention it is necessary to go through the relevant provisions of the Air Force Rule 43, which came to be amended. The amended rule 43 is extracted below:
“Convening of General and District Court Martial:-
(1) An Officer before convening a general or district court martial shall first satisfy himself that the charges to be tried by the Court martial are for offences within the meaning of the Act, and framed in accordance with law, and that evidence justifies a trial on those charges, he may amend the charges if he deems fit, and if not so satisfied order release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the description of court martial he proposed to convene.
(3) The officer convening a court martial shall appoint or detail the officers to form the court, and may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.
(4) After the convening Officer has appointed or detailed the officers to form a court martial under sub-rule (3) convening order of the court martial and endorsement on the charge sheet for trial of the accused by court martial may either be signed by the convening officer or by a staff officer on his behalf. The charge sheet on which the accused is to be tried, the summary of evidence and the convening order for assembly of court martial shall then be sent to the senior officer of court martial and the Judge Advocate, if appointed.”
The aforesaid provision makes it crystal clear that before convening a General or District Court Martial the officer shall first satisfy himself that the charges to be tried by Court Martial are for offences within the meaning of the Act and thereafter he shall proceed to appoint or detail the officers to form the Court Martial. Sub-rule (4) of Rule 43 provides that after the Convening Officer has appointed or detailed the officers to form a court martial under sub-rule (3) convening order of the court martial and endorsement on the charge sheet for trial of the accused by Court Martial may either be signed by the Convening Officer or by the Staff Officer on his behalf.
7. The original record relating to convening and appointing/detailing the officers to form Court Martial have been placed before me by the counsel appearing for the respondent. I have carefully looked into the same. The Competent Officer namely the Air Officer Commanding-in-Chief, Western Command has ordered for convening of the General Court Martial in terms of the provisions of rule 43 of the Air Force Rules. The original records disclose that after going through the note placed before him he has under his signatures ordered for convening of the General Court Martial. It further transpires from the said record that the said Convening Officer has also appointed/detailed the officers to form a Court Martial as required under sub-rule (3) of Rule 43 of the Air Force Rules, under his clear signatures. In this connection reference may also be made to Annexure P-35 which is annexed to the writ petition. It is mentioned in the said order that the orders are by Air Marshal V. Patney, the Air Officer Commanding-in-Chief, Western Air Command and the said orders of the Competent Authority convening the court martial and endorsement on the charge sheet for trial of the accused is signed by Staff Officer on his behalf how is empowered under sub-rule (4) of Rule 43 of the Air Force Rules. the said Air Commodore is the Chief Personnel Staff Officer and he has signed the same on behalf of the Air Officer Commanding-in-Chief of the Western Air Command. In that view of the matter the first submission of the learned counsel appearing of the petitioner that the order convening the Court Martial is illegal and in law cannot be accepted. The ratio of the decision relied upon by the counsel appearing for the petitioner in Union of India and Others Vs. Harish Chandra Goswami is also not applicable to the facts and circumstances of the present case, for they are distinguishable on facts, and the provision of law which is interpreted in the said decision is distinct and different from that of Rule 43 of the Air Force Rules.
8. So far the submission that the charges for which General Court Martial is convened from 23.9.1999 to 28.9.1999 are the same as that of the charge sheet drawn on 26.1.1998 in respect of which the petitioner stands already reprimanded is concerned the said submission is also found to be without merit. The charge sheet drawn on 26.1.1998 is for not paying the Mess Bill for the months of September, October, November and December, 1997 whereas the General Court Martial held from 23.9.1999 to 28.9.1999 is for refusing to carry out orderly officer duty and for not paying Mess Bills from September 1997 to January, 1998. The charges are therefore, distinct and separate. It is also necessary to mention here that non-payment of Mess Bills for different months would be recurring offence each month and therefore, it cannot be said that because one of the earlier charge sheet relates to non-payment of Mess Bills for earlier months a charge for non-payment of bill for the subsequent months would constitute the same offence.
9. The petitioner has also alleged some more violations in conducting the General Court Martial. In connection with the same it could be pointed out that under the provisions of section 161 of the Air Force Act any person subject to Air Force Act who considers himself aggrieved by any order passed by a Court Martial could present a petition to the Officer or authority empowered to confirm any finding or sentence of such Court Martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates. Sub-section (2) of the said provision also provides for presenting an appropriate petition to the Central Government or any prescribed officer superior in command to the one who confirmed such findings or sentence. The General Court Martial has given its finding and the sentence is also proposed but the same is yet to be confirmed by the Competent Authority. Therefore, the petitioner could even now take recourse to the provisions of section 161 by filing an appropriate petition to the Competent Authority who is empowered to confirm the findings and sentence of the present General Court Martial. I see no reason why the confirming authority would not consider the same and satisfy itself as to the legality or correctness or as to the regularity of any proceedings to which the order relates, as and when such a petition is filed. The remedy provided under Section 161 of the Air Force Act is efficacious remedy and or person has to take recourse to such remedy initially unless it could be shown that the same has been rendered infructuous or nugatory.
10.The contentions raised in the present writ petition all relate to correctness, legality or propriety of the order passed and also to regularity of the proceedings to which the order relates. I find no reason why the said issues should be considered at this stage when the finding and sentence of the General Court Martial are yet to be confirmed. Even after the same are confirmed the petitioner has been vested with a liberty to take recourse to provisions of section 161(2) wherein the petitioner could present a petition to the Central Government if in any manner he is aggrieved after the proceedings are confirmed by the Competent Authority.
11. The aforesaid tow issues which have been decided in the present case related to the question of jurisdiction and therefore, I proceeded to decide the same and have recorded my findings hereinabove. I have found that the order convening the Court Martial and constituting the Court Martial have been done in accordance with the provisions of Rule 43 of the Air Force Rules. I have also found that the charges on which the petitioner is sought to be proceeded under the General Court Martial are not the same as that of the earlier charge sheets. It is also necessary to point out at this stage that the letter of the respondent dated 17.12.1997 was only in the nature of an advice given by the Section Commander and the Section Commander is not the Competent Authority to award any punishment. Therefore, the said grounds are without any merit. So far as the other challenge as made in the writ petition regarding violation of the principles of natural justice in conducting the proceedings of the Genral court Martial are concerned, it shall be open to the petitioner to file an appropriate petition in terms of Section 161(2) of the Air Force Act and if and when such a representation is filed the same shall be considered in accordance with law by the respondent.
12. In terms of the observations and directions made hereinabove the present writ petition stands disposed of. However, there will be no order as to costs.