John P. Mathew v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937** ## **WP(C).No. 20048 of 2004 (J)** ## **----------------------------** ## **PETITIONER:** ## **------------------** **JOHN P. MATHEW, S/O.P.M.JOHN, AGED 32 YEARS SIGMAN/EX.HAY, 3 LOCATION 16 CASSU, S/O.56, [RESIDING AT PAVANKAMOOTTIL HOUSE CHENNITHALA SOUTH P.O., MAVELIKKARA.** **BY ADVS.SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.SUDHEENDRAN SMT.REKHA VASUDEVAN SRI.SURAJ.S SMT.VINEETHA B.** ## **RESPONDENTS:** **-----------------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DEFENCE NEW DELHI.** ## **2. CHIEF OF THE ARMY STAFF** **ARMY HEAD QUARTERS, D.H.Q.P.O., NEW DELHI - 110 011.** ## **3. THE GENERAL OFFICER COMMANDING, H.Q. ATNKK&G AREA, CHENNAI.** ## **4. ADJUNT GENERAL** - **ADDITIONAL DIRECTORATE GENERAL DISCIPLINE & VIGILANCE DV-3 ADJUSTANT GENER GENERALS BRANCH, ARMY HEAD QUARTERS DHO P.O., NEW DELHI - 110 001.** ## **5. MAJ.ANIL JOTHWANI, EX-OFFICER COMMANDING ATNKK&G AREA SIGNAL COMPANY, CHENNAI.** **BY ADVS. SRI.JOHN VARGHESE, SCGSC SRI.THOMAS MATHEW NELLIMOOTTIL,SR.P.ARM SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SMT.T.D.RAJALAKSHMI, SCGSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 20048 of 2004 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **-----------------------------------** |**EXT.P1**|**-**|**COPY OF THE CHARGE SHEET DATED 13.08.2002.**| |---|---|---| |**EXT.P2**|**-**|**COPY OF THE VERSION OF PW1.**| |**EXT.P3**|**-**|**COPY OF THE CERTIFICATE DATED 04.10.2002 ISSUED FROM**| |||**GOVERNMENT HOSPITAL, MAVELIKKARA.**| |**EXT.P4**|**-**|**COPY OF THE CHARGE SHEET DATED 10.02.2003.**| |**EXT.P5**|**-**|**COPY OF THE VERDICT DATED 24.03.2003 OF SUMMARY**| |||**COURT MARTIAL.**| |**EXT.P6**|**-**|**COPY OF THE ORDER DATED 26.08.2003 REJECTING**| |||**PETITIONER'S REPRESENTATION.**| |**EXT.P7**|**-**|**COPY OF THE PETITION/APPEAL DATED 07.09.2003.**| |**EXT.P8**|**-**|**COPY OF THE ORDER DATED 28.11.2003.**| |**EXT.P9**|**-**|**COPY OF THE LEAVE APPLICATION DATED 31.07.2002**| |||**RECOMMENDED BY DEPUTY ADDITIONAL QUARTERMASTER**| |||**GENERAL AND SANCTIONED BY COL.Q.**| |**EXT.P10**|**-**|**COPY OF THE FORWARDING SLIP DATED 01.08.2002.**| |**EXT.P11**|**-**|**COPY OF THE LETTER DATED 19.12.2002.**| |**EXT.P12**|**-**|**COPY OF THE ORDER DATED 09.08.2002 OF THE**| |||**HEADQUARTERS.**| |**EXT.P13**|**-**|**COPY OF THE RELEVANT PORTION OF THE DUTY SHEET**| |||**SIGNED BY MAJOR P.T. THOMAS, ADMINISTRATIVE OFFICER.**| |**EXT.P14**|**-**|**COPY OF THE APPLICATION DATED 18.11.2002 MADE TO THE**| |||**COMMANDANT THROUGH PROPER CHANNEL.**| |**EXT.P15**|**-**|**COPY OF THE REQUEST MADE BY THE PETITIONER DATED**| |||**29.11.2002.**| |**EXT.P16**|**-**|**COPY OF THE REQUEST MADE BY THE PETITIONER**| |||**DATED 02.12.2002.**| |**EXT.P17**|**-**|**COPY OF THE REQUEST MADE BY THE PETITIONER**| |||**DATED 22.01.2013.**| |**EXT.P18**|**-**|**COPY OF THE REPRESENTATION DATED 05.04.2003**| |||**SUBMITTED BY THE PETITIONER.**| **[CONTD....]** **WP(C).No. 20048 of 2004 (J)** **2** **EXT.P19 - COPY OF THE REQUEST MADE BY THE PETITIONER DATED 16.09.2002.** **EXT.P20 - COPY OF THE REQUEST MADE BY THE PETITIONER DATED 09.07.2003.** **RESPONDENTS' EXHIBITS:- NIL** **---------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.20048 of 2004-J ---------------------------------Dated this the 9[th] day of February, 2016** ## **JUDGMENT** The petitioner had approached this Court against the proceedings issued pursuant to Ext.P4 and the verdict of the Court Martial indicated at Ext.P8. The petitioner was found to have disobeyed a lawful command given by the superior Officer and absented himself without leave. On such finding, the petitioner was imposed with a punishment of imprisonment for three months and reduction to the ranks. 2. The petitioner's contention is that the petitioner had filed an appeal, which was _W.P(C). No.20048 of 2004-J_ **2** rejected under Ext.P6. A further application, made before the Chief of Army Staff, has been rejected as per Ext.P8. The petitioner seeks reconsideration of Ext.P8. 3. The learned Additional Solicitor General of India, at the outset raised the question of maintainability, since the proceedings were carried out in Chennai, when the petitioner was posted at Chennai. The petitioner has filed the above writ petition after his retirement in 2004 and the mere fact that the petitioner having retired to the State of Kerala would not confer jurisdiction on this Court, is the contention. The learned ASGI also places reliance on the decisions of this Court in **Nakul Deo Singh v. Deputy Commandant [1999 (3) KLT 629 (FB)], Anand Anoop v. Union of India** _W.P(C). No.20048 of 2004-J_ **3** **[2014 (3) KLT 171]** _and_ **Registrar, Indian Maritime University, Chennai v. Dr. K.G.Viswanathan and Another [2014 (4) KHC 451** **(FB)]** to urge this Court to dismiss the writ petition on the ground of lack of jurisdiction. 4. However, it is to be noticed that the writ petition filed was in the year 2004. Notice was sent on 08.07.2004, indicating the admission of the writ petition itself. The respondents have also filed a Counter Affidavit, wherein no question of maintainability was raised. The fact that, the question of maintainability was not raised in the Counter Affidavit, would not stand against the respondent, since the same would have to be considered independently. However, if such a contention was raised, the petitioner could _W.P(C). No.20048 of 2004-J_ **4** have, at that point of time itself, approached the appropriate forum. Here, what has to be noticed is that the writ petition itself was filed in the year 2004 and once it was transferred to the Armed Forces Tribunal, after the constitution of such Tribunal. The Tribunal found that since the punishment is only for three months, the proceedings would not lie there. Again, the matter was transferred here and has been kept pending for all these years, totalling about 12 years. It may not be proper for this Court to now reject the claim of the petitioner on the ground of jurisdiction, especially noticing that he is a soldier, retired from service. 5. The contention raised by the petitioner is on the basis of Sections 161, 162, 164 & 165 _W.P(C). No.20048 of 2004-J_ **5** of the Army Act, 1950 [for brevity, the Act of 1950]. Section 161 deals with the finding and sentence of a Summary Court Martial, which does not require confirmation and could be carried out forthwith. Section 162 requires the transmission of proceedings of such Summary Court Martial to the Chief of Army Staff or any Officer, empowered in this behalf by the Chief of Army Staff. On such transmission of proceedings, the officer empowered could also interfere with the proceedings or reduce the sentence, which the Court has passed, for reasons based on the merits of the case, not being a technical reason. 6. Section 164 provides for an appeal against the order, finding or sentence of Court Martial, but only in cases where it requires _W.P(C). No.20048 of 2004-J_ **6** confirmation, as is evident from a reading of sub-sections (1) & (2). Section 165 is an independent provision, which enables any person convicted in the Court Martial to move the Central Government, the Chief of Army Staff or any prescribed Officer. 7. A reading of the above provisions would indicate that though an appeal under Section 164 is not provided against the finding or sentence in a Summary Court Martial, the Legislature has been careful in providing for a review as per Section 162, which is in the nature of a _suo motu_ proceedings, but however as per established principles could also be invoked by the accused. Here, the petitioner has filed an application, which was considered as per Ext.P6, which has to be deemed to be one _W.P(C). No.20048 of 2004-J_ **7** under Section 162 of the Act of 1950. 8. The further proceedings taken before the Chief of Army Staff has been rejected by Ext.P8, only on the ground that one legal remedy has been exhausted. One of the legal remedies having been exhausted was not a sustainable or sufficient reason for rejecting the application filed before the Chief of Army Staff,especially when the statute provides for a two-tire remedy. 9. When, by a statute. remedies are provided to challenge the order and they are so provided to the officers superior in hierarchy; the consideration by one would not frustrate the other remedies. The highest Officer so empowered cannot reject an application filed, merely for the reason that a lower Officer had _W.P(C). No.20048 of 2004-J_ **8** considered the issue and the aggrieved had exhausted one of the remedies available in the statute. As was noticed, Sections 162,164 & 165 indicate that Section 165 is a separate remedy provided for an application to the Central Government or Chief of Army Staff or any prescribed Officer, who is also competent to annul the proceedings of any Court Martial, on grounds of illegality and on finding of the same to be unjustified. In such circumstance, Ext.P8 cannot be sustained. Ext.P8 would stand set aside. The petitioner shall forward a certified copy of the judgment to the 2[nd] respondent and the 2[nd] respondent shall consider the same within a period of three months from the date of receipt of the certified copy of this judgment. In the _W.P(C). No.20048 of 2004-J_ **9** context of the relief granted, being confined to a reconsideration; again the consideration by this Court, ignoring the jurisdictional aspect, visits the respondent with no grave prejudice or injury. The writ petition is allowed to the limited extent noticed herein. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/10/02/16