Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 823 of 2013, Judgment Date: Sep 27, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL  APPEAL NO. 823 OF 2013


Union of India & Ors.                                  ….Appellant(s)

                                    Vs.

Devjee Mishra                                          …Respondent(s)


                             J U D G M E N T


A. M. KHANWILKAR, J.

            This appeal challenges the judgment of  the  Division  Bench  of
the High Court of Judicature at Patna dated 23rd June, 2009, in LPA No.  995
of 2008.  By that  decision  the  Division  Bench  disposed  of  the  appeal
preferred by the appellants,  while  affirming  the  order  of  the  learned
Single Judge of the same High Court in CWJC  No.6289  of  2005,  decided  on
15th July, 2008.
2.          Briefly stated, the respondent at the relevant time was  working
in the rank of Corporal in 27th Wing of Air Force and was posted at the  Air
Force Bhuj Station in the State of Gujarat.  Departmental action  was  taken
against him for over staying the leave period. Charge sheet  was  served  on
him dated 18th June 2004, which reads thus:-
                                CHARGE SHEET

      The accused, 722779 H Cpl Mishra D MT Tech of 27 Wing, AF an airman
of the regular Air Forces is charged with :-

First Charge
Section 39(b) AF ACT 1950

      WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM

                                 In that he,
At 27 Wing. AF having been granted leave of absence from 12 Apr 03 to  27Apr
03, overstayed the said leave without sufficient cause until he  surrendered
himself to 629555 Sgt Singh RK IAF/P at Main Guard room of 27  Wing,  AF  at
1000 hrs on 20 Mar 2004.

Second Charge

Section 39(a) AF ACT 1950

ABSENTING HIMSELF WITHOUT LEAVE

                                 In that he,
At 27 Wing, AF absented himself without leave from 0730 hrs on 22  March  04
until he was apprehended by 629394 Sgt Sunil P IAF/P and 795130 Cpl Singh  A
IAF/P of 6 F&S Dett at Jagatpur  Village, Parasurampur PO,  Krishnagarh  PS,
Bhojpur Dist, Bihar at 1000 h on 30 APR 04.

                                                                         (V
                                    Gaur)
Place : 27 Wing, AF                                                  Wing
Commander
Date :  08 Jun 04                                                   Station
Commander
                                                                         27
                                  Wing, AF



3.          Proceedings of District Court  Martial  against  the  respondent
commenced on the basis of the said charge sheet.  Shri A.D.  Upadhyay,  Wing
Commander, acted as the Presiding Officer.   In  the  said  proceeding,  the
respondent pleaded guilty to  both  the  charges.  Even  after  being  given
opportunity to reconsider his  confession,  the  respondent  maintained  his
confession.  This can be discerned from the proceedings and  contemporaneous
record. Finally, punishment of three  months  rigorous  imprisonment  to  be
followed by dismissal from service and also reduced in rank was  recommended
against him.  On 25th June, 2004, the findings and  sentence  given  by  the
Court was confirmed  by  the  Competent  Authority  but  on  remitting  such
portion of rigorous imprisonment as would remain un-expired on the  date  of
promulgation.  On that basis the respondent stood  dismissed  from  service.
The contents of the proceedings was  explained  to  the  respondent  on  2nd
July, 2004 which fact has been acknowledged by the respondent.
4.           The  respondent  then  submitted  an  application  against  the
District Court Martial order dated 17th June, 2004,  under  Section  161  of
the Air Force Act 1950, addressed to the Air Chief Marshal on 11th  October,
2004.  The respondent was informed vide  letter  dated  12th  January,  2005
issued under the signature  of  the  Wing  Commander,  Officiating  Director
Personal  Services,  for  Air  officer-in-charge  Administration,  that  his
application was considered and has been rejected.
5.          Aggrieved, the respondent filed a  writ  petition  in  the  High
Court  as aforementioned.  That writ petition was opposed by the  appellants
by filing a detailed  reply  affidavit  and  restating  the  fact  that  the
respondent had pleaded guilty to both the charges which  culminated  in  the
punishment of sentence and order of dismissal  from  service.   The  learned
Single Judge of the High Court allowed the writ petition  essentially  being
impressed on  four  counts.  Firstly,  that  the  impugned  order  makes  no
reference to the fact that the respondent was a habitual deserter or in  the
habit of overstaying his leave period.  Whereas,  the order proceeds  mainly
on the basis of acceptance  of  guilt  by  the  respondent.   Secondly,  the
averments made in the Memo of Appeal as also in Paragraph  26  of  the  writ
application - that the petitioner never accepted his guilt  -  had  remained
uncontroverted in the reply affidavit filed  by  the  appellants.   Thirdly,
the contents of the letter dated 21st May,  2004  –  Annexure  24  (in  writ
proceedings), addressed to the Station Commander on that  very  day  of  the
Summary Court Martial proceedings were certified (i.e. on 21st  May,  2004),
complained of the fact that the respondent  was  being  pressurized  by  his
superiors to plead guilty, and also  to  permit  him  to  engage  a  private
advocate.  Lastly, the Authorities had  illegally  kept  the  respondent  in
confinement in a cell during the enquiry in contravention of Section 107  of
the Air Force Act, 1950, which entailed in violation of his  right  to  life
without following the due process of law, infringing Articles 21 and  22  of
the Constitution of India.  For  these  four  reasons,  the  learned  Single
Judge quashed the order dated 17th June, 2004 passed by  the  Court  Martial
and the Disciplinary Authority of dismissing the  respondent  and  also  the
order dated 2nd July, 2004 promulgating the same.  The learned Single  Judge
instead deemed it  appropriate  to  remit  the  case  back  to  the  Station
Commander for holding disciplinary proceedings in accordance with law  after
furnishing the requisite documents demanded by the respondent  and  allowing
him to engage a private lawyer of his choice.  Direction was also issued  to
the Station Commander to permit the respondent to join his service  but  the
issue about his arrears of  salary  from  the  date  of  dismissal  to  such
rejoining was made subject to the result of Disciplinary Proceedings.
6.          This decision  was  challenged  by  the  Department  by  way  of
Letters Patent Appeal.  The Division Bench, even though found merits in  the
contention of the appellants  that  there  was  no  material  to  doubt  the
bonafides of the concerned officials who had  conducted  the  Court  Martial
Proceedings, yet declined to interfere with  the  decision  of  the  learned
Single Judge of remitting back the Court Martial Proceedings because it  was
not in a position to give a positive finding as to whether the Annexures  19
and 24  relied by the respondent were  forged  and  fabricated  (which  were
indicative of the fact that the respondent was not accepting his  guilt  and
instead wanted  to  engage  a  private  counsel  to  defend  himself).   The
Division Bench, however, observed that the respondent may make  request  for
permitting him to engage a private lawyer, which request can  be  considered
in accordance with law.  It was made clear that  the  respondent  would  not
become automatically entitled to arrears of  salary  and  that  claim  shall
abide by the final decision in the  Court  Martial  Proceedings  which  were
ordered to be concluded within four months.
7.          Being aggrieved, the appellants have  challenged  the  abovesaid
decisions of the learned Single Judge and the Division Bench in the  present
appeal.  The main argument of the appellants is that the basis on which  the
learned Single Judge interfered with  the  order  passed  by  the  competent
authority is untenable and not substantiated from the record.  In that,  the
first reason stated is belied from the proceedings.  The second reason  that
the appellants have failed to refute the averments in Paragraph  26  of  the
writ application, is also an error apparent on the face of the record.   The
learned Single Judge failed to  analyse  the  reply  and  further  affidavit
filed on behalf of the appellants to oppose  the  writ  petition  in  proper
perspective, which not only  restated  the  facts  mentioned  in  the  Court
Martial Proceedings  that  the  respondent  admitted  his  guilt  with  full
understanding of the  stand  taken  by  him  and  in  spite  of  being  duly
explained about the consequence  thereof  by  the  officials.  He  was  also
provided assistance of a law qualified officer at the  relevant  time.   The
third reason weighed with the learned Single Judge on the basis of  Annexure
24, was also manifestly wrong. In that, the said document was  not  part  of
the Court Martial Proceedings.  Further, the respondent had  not  named  any
official against whom allegations of pressurizing him to  accept  his  guilt
either in the subject  document,  in  contemporaneous  representation/appeal
submitted by him to the Competent Authority or in  the  Writ  Petition.  The
fact  that  Annexures  19  and  24  were  not  part  of  the  Court  Martial
Proceedings has been answered by the  Division  Bench  in  the  affirmative,
after perusal of the original record.   Those  documents  were  filed  along
with the rejoinder affidavit for the first time.  The  appellants  had  also
doubted the genuineness of the said documents, being forged for the  reasons
stated in affidavit of the authorised official.   However,  the  High  Court
has not  analysed  those  matters  at  all.  In  that,  the  respondent  had
approached the Court with unclean  hands  and  was  successful  in  creating
subterfuge and confusion and walk away with the relief of  conducting  fresh
Court Martial Proceedings notwithstanding his  unconditional  and  voluntary
acceptance of guilt of the two charges.  The  Division  Bench  having  found
that the  bonafides  of  the  officials  who  conducted  the  Court  Martial
Proceedings cannot be doubted, ought to have reversed the  direction  issued
by the learned Single Judge. The fourth reason stated by the learned  Single
Judge, according to the appellants, is also untenable. In that, it is not  a
case of confession given by the respondent while in  custody  which  may  be
inadmissible in law.  In the present case, the  respondent  gave  confession
during the Court Martial Proceedings, who was  competent  to  take  that  on
record and act upon the same.  The  fact  that  at  the  relevant  time  the
respondent was kept in a cell would not make  the  confession  inadmissible.
Especially,  when  the  contemporaneous  record  goes  to  show   that   the
respondent  was  given  enough  opportunity  to  reconsider  his  stand,  by
explaining to him the consequences flowing from such confession.  The  Judge
Advocate  having  reassured  himself  that  the  confession  given  by   the
respondent is voluntary, proceeded in the matter on that  basis.   Hence  it
was neither a case of inadmissible confession nor illegal detention  of  the
respondent.  Even the Division Bench  has  completely  brushed  aside  these
crucial aspects and has affirmed the erroneous order passed by  the  learned
Single Judge.  According to the appellants, in the  fact  situation  of  the
present case, the High Court committed manifest error  in  interfering  with
the order of punishment imposed in the  Court  Martial  Proceedings  against
the respondent.  The reasons  recorded  by  the  learned  Single  Judge  and
affirmed by the Division Bench, to say the least is error  apparent  on  the
face of the record, if not perverse.
8.          Counsel for the respondent, on the  other  hand,  has  supported
the decision of the  learned  Single  Judge  as  also  the  Division  Bench.
According to him, the documents relied by the respondent  in  the  shape  of
Annexures 19 and 24 reinforces the fact that the plea  of  guilt  attributed
to the respondent was extracted forcibly from him. It was  not  a  voluntary
confession at all.  Further, the respondent  was  being  victimized  by  his
superiors and who misled him to give that confession.  He submits  that  the
medical record produced by the respondent justified his absence  during  the
relevant period  due  to  illness.   The  respondent  having  produced  that
record, there was no reason for him to confess to  the  two  charges  framed
against him.  The illness of the  respondent  forced  him  to  overstay  his
leave period.  The respondent had surrendered on the first occasion  on  his
own, which presupposes that the  respondent  had  intention  to  resume  his
service.  On the second occasion, the respondent was trapped  and  shown  as
arrested from  his  home  town.   Moreover,  the  respondent  believing  his
superiors gave his statement.  The respondent had no  other  option  because
he was kept in  a  cell  during  the  relevant  period.   According  to  the
respondent, therefore, no interference is warranted in this  appeal  against
the equitable order passed by the High Court to do substantial justice.
9.          Having heard the learned counsel for the parties at  length,  we
may first deal with the four reasons noted by the learned Single  Judge  and
affirmed by the Division Bench of the High  Court.   As  regards  the  first
reason, we find merits in the stand taken by the appellants  that  the  same
is error apparent on the face of the record.  The impugned order  does  make
reference to the fact that the  respondent  had  faced  action  for  similar
misconduct in the past, as can be discerned from  Paragraph  6  which  reads
thus:-

      “The Court examined the characters  and  service  particulars  of  the
accused IAFF(P)-1655(revised)(Exh-‘J’), in  respect  of  the  accused  which
reveals that the accused is of about 31 years and 05 months of age  and  has
put in about 13 years and 04 months of service.  His conduct  sheet  reveals
that punishment entries, of which two are of similar in nature for  AWL  for
17 days and 19 days and one entry is for losing by neglect  his  AFIC.   The
accused was earlier also tried by a DCM for the offence of AWL for  75  days
and he  was awarded sentence of three months detention  and  reduce  to  the
ranks.  The court awarded the following sentence to the accused:-

To suffer RI for three months;
To be dismissed from the service; and
To be reduced to the ranks.”
                                                         (emphasis supplied)

The analysis of evidence therein is not only in  respect  of  acceptance  of
guilt by the respondent, but other  aspects  as  well.   Hence  this  reason
weighed with the learned Single Judge cannot  stand  the  test  of  judicial
scrutiny.

10.         The second reason which found favour  with  the  learned  Single
Judge is that the averments made by the respondent in Paragraph  26  of  the
writ application had remained uncontroverted.  Even  this  finding,  in  our
opinion, is an error apparent on the face of the  record.   The  High  Court
committed manifest error in presumably, referring to  Paragraph  21  of  the
counter affidavit alone.  On the other hand,  the  High  Court  should  have
evaluated the averments in the counter affidavit as a whole.  The  substance
of the averments in the counter affidavit filed by the appellants  was  that
the summary of evidence was recorded during the Court  Martial  Proceedings,
in which plea of guilt of the respondent  was  recorded  by  the  DCM.   The
record would leave no manner of doubt that sufficient opportunity was  given
to the  respondent  to  defend  himself  and  including  by  appointing  law
qualified officer to defend him.  The respondent himself declined to have  a
civil Advocate. Notably, the respondent was  provided  assistance  with  law
qualified officer appointed by the Authority who was not from the Air  Force
Station, Bhuj  but  from  other  Air  Force  Station.  The  reply  affidavit
unambiguously denied the plea of the respondent that he was forced  to  give
confession.  On the other hand, it is asserted  that  proper  procedure  was
followed in the Court Martial before and after recording of  the  confession
of the respondent during the trial.  The averments  in  Paragraphs  28,  29,
30, 32 and 36 of the counter affidavit would make it amply  clear  that  the
appellants had challenged the stated fact asserted by the respondent in  the
writ petition, that he was forced to give his confession.   The  same  reads
thus:-

“28.  That the statement made in paragraph no. 34 is denied.   The  DCM  was
conducted strictly as per the laid down procedure.  The petitioner  accepted
all the charges before the DCM and pleaded guilty and the same  recorded  by
the DCM.  It is wrong that the defending officer was  hostile.   As  already
stated above, defending officer was chosen from a different Station and  not
from Air Force Station, Bhuj to give the applicant a fair trial.  The  Judge
Advocate explained to the petitioner the nature, meaning and ingredients  of
the charges to which accused answered in affirmative.   The  Judge  Advocate
also informed the  petitioner  the  general  effect  of  his  plea  and  the
different procedure which will be made on the plea of guilty. The  co.  also
confirmed from the petitioner whether he was  pleading  guilty  of  his  own
free will without  any  threat,  coercion,  promotion  or  inducement.   The
petitioner submitted that he is pleading guilty of his own free  will.   The
defending officer  also  explain  to  the  petitioner  nature,  meaning  and
ingredients of the charge and general effects of the plea  of  guilty.   The
petitioner  further  stated,  while  he  submitted  a  request  to  mitigate
punishment that he has pleaded guilty.
      A copy  of  the  request  submitted  by  the  petitioner  enclosed  as
Annexure ‘P’

29.   That the statement made in paragraph no.35 is denied.  The  petitioner
at the time of recording evidence stated that  he  was  sick  and  suffering
from various problems, he also took treatment from various doctors, and  due
to health problems overstayed his leave.  The court  did  draw  petitioner’s
attention towards his  statement  and  advised  him  that  if  he  wants  to
eligible this as his line of defence, he may withdraw  the  plea  of  guilty
and may plead not guilty.  The petitioner confirmed to  the  court  that  he
does not wish to withdraw his plea of guilty.  Hence, court  proceeded  with
the trial on the plea of guilty.

30.   That the statement made in paragraph No 36 is denied.  The  petitioner
did not apply for the copy of court proceedings or copy of  the  punishment.
The sentence of the court was conveyed to the petitioner orally in the  open
court and after confirmation, it was promulgated to him by  his  CO.   After
release from cell on 02 Jul 04, the  petitioner  disappeared  from  the  Air
Force Station, Bhuj and did not inform his move details to the authorities.

31.   ......           ……         ……         ……          ……

32.   The statement made in paragraph no.38 is  denied,.   As  stated  above
the petitioner was  given  full  opportunity  to  defend  himself,  but  the
petitioner accepted all the charges and pleaded guilty.

33.   ……         ……          ……         ……         ……

34.   ……         ……          ……         ……         ……

35.   ……         ……          ……         ……         ……

36.   That the statement made in paragraph no.  42  is  denied.   The  Court
Martial was conducted strictly as per the procedure, and the petitioner  was
provided  full  opportunity  to  defend  himself.   The  petitioner  himself
declined to have a civil advocate to  defend  him,  hence  a  law  qualified
officer was provided to defend him.  It is also stated that  the  petitioner
had made his statement of his own free will and wherever he has  signed,  he
has signed without coercion, threat or promise.
      ……         ……          ……         ……”


The learned  Single  Judge  committed  grave  error  in  assuming  that  the
appellants had not disputed  or  controverted  the  assertion  made  by  the
respondent in Paragraph 26 of the writ application.
11.         The High Court was then impressed  by  contents  of  the  letter
dated 21st May, 2004 – Annexure 24, wherein the  respondent  had  asked  for
permission to engage a private counsel.  The High Court  completely  glossed
over the plea taken by the appellants that this document (Annexure 24),  was
not a part of the Court Martial Proceedings. Therefore, it  cannot  be  made
the basis to grant any relief to the  respondent  much  less  to  doubt  the
bonafides of  the  officials  involved  in  the  conduct  of  Court  Martial
Proceeding.  On the other hand, the record of Court Martial Proceedings  not
only revealed that the respondent voluntarily admitted  his  guilt  to  both
the charges with full understanding and knowing  the  consequence  therefor;
but in spite of opportunity given to him to reconsider  his  stand,  he  did
not change his confession.  As a matter of fact, reference to  letter  dated
21st May, 2004 has been made for  the  first  time  only  in  the  rejoinder
affidavit filed by the respondent. No tangible  explanation  is  forthcoming
as to what prevented the respondent from referring to this communication  in
the first place in the Court Martial Proceedings or at least in  the  appeal
preferred by him, under Section 161 of the Act to the  Competent  Authority.
Notably, such case was not made out even in the original writ  petition  for
reasons best known to the respondent.  Obviously, taking that  plea  in  the
rejoinder affidavit for the first time  was  with  a  view  to  confuse  the
issue, so as to resile from the voluntary confession already  given  in  the
Court Martial Proceedings.   That  cannot  be  countenanced.   For,  such  a
belated plea ought not to be entertained by the High Court, that  too  in  a
casual manner; and especially when the appellants in further  affidavit  had
mentioned the circumstances in support of the assertion  that  the  document
relied by the respondent is a forged document.  The  respondent  was  called
upon to produce the original, which  he  never  did.   Neither  the  learned
Single Judge nor the Division Bench analysed the plea of the  appellants  in
this behalf, and yet granted relief to the respondent  by  directing  remand
of the Court Martial Proceedings  in  spite  of  a  finding  that  the  said
document was not part of the Court Martial Proceedings.  That  has  resulted
in awarding premium to the respondent who  had  approached  the  Court  with
unclean  hands  and  to  give  opportunity  to  resile  from  the  voluntary
confession made by him, which fact was justly recorded in the Court  Martial
Proceedings by the concerned officials whose integrity is  impeccable.   The
High Court should not have entertained the plea of the  respondent  that  he
was pressurized to give confession, in absence of  disclosure  of  names  of
those officials and who had no opportunity to counter the  allegations  made
against them.  Hence, this reason weighed with  the  High  Court  must  also
fail.

12.         The last reason weighed with the High Court is  also  devoid  of
substance.  The learned  Single  Judge  has  merely  referred  Section  107,
without analyzing as to how the confinement of the respondent in a cell  was
in breach thereof or would vitiate the plea  of  guilt  of  the  respondent.
Section 107 of the Air Force Act, 1950 reads thus:-
“Section 107
107. Inquiry into absence without leave.—
(1)   When any person subject to this Act has  been  absent  from  his  duty
without due authority for a period  of  thirty  days,  a  court  of  inquiry
shall, as soon as practicable, be assembled, and such court shall,  on  oath
or affirmation administered in the  prescribed  manner,  inquire  respecting
the absence of the person, and the deficiency, if any, in  the  property  of
the  Government  entrusted  to  his  care,  or  in  any  arms,   ammunition,
equipment, instruments, clothing or necessaries, and  if  satisfied  of  the
fact of such absence without due authority or other  sufficient  cause,  the
court shall declare such absence  and  the  period  thereof,  and  the  said
deficiency, if any; and the commanding officer of  the  unit  to  which  the
person belongs shall enter in the court-martial book of the  unit  a  record
of declaration.

(2)   If the person declared absent does not afterwards surrender or is  not
apprehended, he shall, for the purposes of this  Act,  be  deemed  to  be  a
deserter.”

No reason has been recorded by the High Court as to how the enquiry  against
the respondent was vitiated because of this provision.  The  learned  Single
Judge having observed that keeping the respondent  in  a  cell  was  against
this provision, went on to hold that  it  resulted  in  impinging  upon  the
right to life of the respondent  without  observing  due  process  and  thus
violative of Articles 21  and  22  of  the  Constitution  of  India.  It  is
unfathomable as  to  how  this  reasoning  can  be  sustained  in  the  fact
situation of the present case.  The official record, however,  substantiates
the fact that the respondent had overstayed his casual  leave  between  12th
April to 27th April, 2003,  with  effect  from  28th  April,  2003,  without
sufficient cause until he surrendered himself on 20th  March,  2004.   After
surrendering, the respondent once again absented  himself  without  applying
for leave till he was apprehended  by  IAF/P  of  P&S(U),  AF  at  Jagatpur,
Distt. Bhojpur, Bihar on 30th April, 2004,  and  was  proceeded  by  way  of
Court  Martial  Proceedings  immediately  thereafter  which  culminated   in
passing of the impugned order of sentence and punishment.   Thus,  even  the
fourth reason stated by  the  learned  Single  Judge  can  be  no  basis  to
overturn the Court Martial Proceedings much  less  to  doubt  the  voluntary
confession made by the respondent in those proceedings made before the DCM.
13.         No other reason has been noted by  the  High  Court  to  warrant
remand of Court Martial Proceedings.  Even the Division Bench has failed  to
consider the matter in right perspective and especially to examine the  plea
of the appellants asserted in the two counter  affidavits  filed  to  oppose
the writ petition, including on the question of genuineness of Annexures  19
and 24.  Notably, the Division Bench having  perused  the  original  records
and found that the letters were not part of the  Court  Martial  Proceedings
and that the Officials of the District Court Martial had acted bonafide  and
fairly, should have accepted the plea of the appellants that  these  letters
(Annexures 19 and 24) were afterthought and in any case cannot be  made  the
basis  to  question  the  validity  of  Court  Martial  Proceedings  and  in
particular the voluntary confession made by the respondent thereat.
14.         In our opinion, in the fact situation of the present  case,  the
High Court  committed  manifest  error  in  interfering  with  the  impugned
decision of the Competent Authority of awarding sentence and  punishment  to
the respondent for the two charges  in  respect  of  which  he  had  pleaded
guilty.

15.         The learned counsel for the respondent would then  contend  that
if the impugned order was to be revived by this Court, the same be at  least
modified to one of discharge - so that the respondent would be able  to  get
retiral benefits for having served for 13 years and  4  months  in  the  Air
Force.  This submission though attractive  at  the  first  blush,  does  not
commend us.  The misconduct for which the respondent has been sentenced  and
punished is not the first of its kind committed by him.  Even  in  the  past
he indulged in similar misconduct.  Moreover,  the  respondent  indulged  in
making reckless and frivolous allegations against his superiors even in  the
past and was not serious enough in serving the  Air  Force.   He  overstayed
the leave period after his marriage was fixed on 10th February, 2003 on  the
specious ground that he was unwell and  was  undergoing  medical  treatment.
The  Competent  Authority  having  taken  notice  of   all   the   attending
circumstances chose to impose punishment of  dismissal.   We  cannot  impose
our opinion  or  substitute  the  subjective  satisfaction  reached  by  the
Competent           Authority           in           that            regard.

16.   The learned Counsel for the appellants further submitted that  as  per
the Pension Regulations applicable to Air Force  personnel,  the  respondent
will not be eligible for pension or gratuity  in  respect  of  his  previous
service.  For that he relied on the Circular issued by the Deputy  Secretary
to the Govt. of India, dated 25th April, 2001, which reads thus :-
                                             25 April 2001
“To,
The Chief of the Air Staff

Subject :   Amendment to Regulation 16 and 102 of  Pension  Regulations  for
the Air Force, 1961, Part I

Sir,

1.    I am directed to state that under the provisions  of  Regulations  102
(a) of Pension Regulations for the Air Force (Part I), 1961 as amended  vide
CS No. 71/IV/67 an airman who is dismissed or removed under  the  provisions
of the Air Force Act is ineligible for pension and gratuity  in  respect  of
all previous service though in exceptional  cases.   President  may  at  his
discretion, grant pension gratuity at a rate not exceeding  that  for  which
he would have otherwise qualified had he been discharged on the  same  date.
Similar provisions in respect of Commissioned Officers  do  not  exist  vide
Regulation 16 of Pension Regulations for the Air Force (Part I), 1961.   The
disparity in the provisions has been engaging attention  of  the  Government
for some time past.
2.    It has now been decided that all Indian Air Force Personnel  including
commissioned officers who are cashiered / dismissed under the provisions  of
Air Force Act, 1950 or removed / compulsorily retired under Rule  16  of  AF
Rules, 1969 i.e. as a measure of penalty, will be ineligible for pension  or
gratuity  in  respect  of  all  previous  service.   In  exceptional  cases,
however, the Competent Authority on submission of an appeal to  that  effect
may at his discretion sanction pension / gratuity or  both  at  a  rate  not
exceeding that which would be otherwise admissible  had  the  individual  so
cashiered / dismissed / removed been retired discharged on the same date  in
the normal manner.
3.    An individual who is compulsorily retired or removed on grounds  other
than misconduct or discharged under the provisions of Air  Force  Act,  1950
and the rules made thereunder, remains eligible for pension and/or  gratuity
as admissible on the date of discharge.  This will also apply  to  cases  of
dismissal/removal.
4.    All appeals  to  the  Competent  Authority  in  this  regard  will  be
preferred within two years of the date of cashiering/dismissal/removal.
5.    Competent Authority both  for  Commissioned  Officers  and  PBORs  for
Regulations 16 and 102 of Pension Regulations for the Air  Force  1961  will
be the president of India.
6.    Pension Regulations for the Air Force will be amended  in  respect  of
the above provisions in due course.
7.    The provisions of this letter shall come into effect from the date  of
issue of this letter.  However, past cases will  be  decided  as  hither-to-
fore.

                                                           Yours faithfully,

                                                                     Sd/-XXX

                                                                 (Amrit Lal)
                                Deputy Secretary to the Government of India”

                                                         (emphasis supplied)

We are not inclined to express any opinion on this  contention  as  we  find
that there is discretion vested  in  the  Competent  Authority  to  sanction
pension  /  gratuity  or  both,  in  exceptional  cases.  Even  though   the
respondent has been dismissed from  service,  he  is  free  to  pursue  that
remedy, if so advised.   The  Competent  Authority  may  consider  the  said
representation in accordance with law.  We reiterate  that  we  may  not  be
understood to have expressed any opinion in that regard.
17.         In view of the above, this  appeal  must  succeed.   Hence,  the
judgment of the learned Single Judge dated 15th July, 2008,  and  the  order
of the Division Bench dated 23rd June, 2009  are  set  aside.  Instead,  the
Court Martial Proceedings dated 17th June, 2004 as also the order dated  2nd
July, 2004 promulgating the same are restored and revived.
18.         Appeal succeeds in the above terms with no order as to costs.


                                                              …………………………CJI.
                                                           (T.S. THAKUR)


                                                              …………………………….J.
                                                       (A.M. KHANWILKAR)

New Delhi
Dated:  September 27, 2016



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