Case: FLT. LT. S. MAHENDRA Vs. UNION OF INDIA THROUGH SECRETARY

1. By an order dated 21 September 1993, the Government of India in the Ministry of Defence ordered the dismissal of the petitioner from service in exercise of the power conferred by Section 19 of the Air Force Act, 1969.2. A Court of Inquiry was convened to inquire into the allegations made by a colleague Flight Lieutenant of the petitioner in an application dated 26 June 1991 which was forwarded to the Air Headquarters. In the course of the proceedings before the Court of Inquiry, it emerged that the petitioner had engaged in sexual intercourse with a minor daughter of a colleague in the Air Force. The victim deposed during the Court of Inquiry and was cross-examined by the petitioner.3. With the assistance of the learned counsel, we have perused the deposition of the victim and the cross-examination.4. After the Report of the Court of Inquiry, a conscious decision was taken to the effect that it was not practicable to hold a General Court Martial under Section 110 of the Air Force Act, 1950 read with Rule 24 of the Air Force Rules 1969. This was particularly in view of the vulnerability of the minor victim.5. Instead a show cause notice was issued to the petitioner under Section 19 read with Rule 16 to which he submitted his reply. The Chief of the Air Staff, on perusing the record including the recommendations of the Court of Inquiry, was of the view that the petitioner may be compulsorily retired.6. The Central Government, in exercise of its jurisdiction under Sub-Rules (7) and (8) of Rule 16 duly considered the recommendation of the Chief of Air Staff and all relevant material before coming to the conclusion that the case warranted the dismissal of the petitioner from service.

Reasoning:
8. We are not inclined to re-inquire into the findings of fact which have been arrived at by the Court of Inquiry particularly since the Armed Forces Tribunal has carefully evaluated all the facts and circumstances of the case.10. In order to establish that as a matter of fact, the recommendation of the Chief of Air Staff was duly borne in mind by the Central Government, the learned Additional Solicitor General has placed the entire file before the Court, which we have noted above.11. There is no manner of doubt that the Central Government had duly taken note of the recommendations of the Chief of Air Staff before deciding upon the eventual action which was taken against the petitioner. The recommendation made by the Chief of Air Staff is not binding and the Central Government was within its jurisdiction in taking the ultimate decision which it did in the facts and circumstances of the case. The action taken is not unlawful or arbitrary.