Shashi Gaur vs N.C.T. Of Delhi & Ors

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:-

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.

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.

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.

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.