Case: Union Of India  Vs. Devjee Mishra

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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 pleadedfind 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 thatappeal 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