REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A. No. 1/2016 in Civil Appeal D. NO.  14214 OF 2016

EX. LAC YOGESH PATHANIA        ......APPELLANT

          Versus

UNION OF INDIA & ORS.   ......RESPONDENTS

J U D G M E N T

Hemant Gupta, J.

The present appeal under Section 30 read with Section 31 of the

Armed Forces Tribunal Act, 2007 (for short “the Act”) along with IA No. 1

of 2016 seeking leave to appeal arises out of an order passed by the

Armed  Forces  Tribunal,  Chandigarh,  Regional  Bench  at  Chandimandir

(for short ‘Tribunal’) in OA (Appeal No. 324 of 2010) on 06.08.2015.  

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2. The appeal before the Tribunal was directed against the findings

and the sentence awarded by District Court Martial (for short ‘DCM’) on

01.02.2010 confirmed on 09.03.2010 and also against rejection of his

statutory complaint under Section 161 (2) of the Air Force Act, 1950 by

the Chief of Air Staff.   The DCM was initiated on account of an incident

on  the  intervening  night  of  22.05.2009  and  23.05.2009  wherein  a

breach of good order of Air Force discipline was created by Module II

airmen  trainees  attached  to  NTTI  and  Accounts  Conversion  Course

trainees in the TV Room, over the change of TV channel on 22.05.2009

between 2150 hrs to 2210 hrs.  

3. The incident pertaining to the disciplinary proceedings against the

appellant happened after 2240 hrs in Dakota ‘A’ Block and at the main

gate.  A  Court  of  Inquiry  was  conducted  followed  by  summary  of

evidences.  Thereafter the appellant was tried by DCM on seven charges

of misconduct.  The DCM has found the appellant guilty of charge nos. 3,

5 and 7 which read as under:   

“3. Under  Section  40  (c)  Air  Force  Act,  1950 for using  insubordinate  language  to  his  superior  officer;  in that he, at 405 Air Force Station on 22 May 2009 when checked by 647216 MWO ML Ranwan Cat Asst regarding bellowing of whistle in the billets, said to him, “MAINE KOI WHISTLE NAHI  BAJAYA HAI,  APKO JO  KARNA HAI  KARLO AUR AAP MERA KUCH NAHI KAR SAKTE or words to that effect.  

5. Under  Section  40(a)  Air  Force  Act,  1950  for using criminal force to his superior officer, in that he, at 405 Air Force Station between 2230 hrs and 2345 hrs on 22  May  2009  used  criminal  force  to  672315  WO Agar Singh Eqpt Asst by pushing the said WO Agar Singh from back.  

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7. Under Section 65 Air Force Act, 1950 for an act prejudicial to good order and Air Force Discipline. In that he, at 405 Air Force Station during intervening night of 22 May 2009 and 23 May 2009, improperly provoked a group of Module-II trainees of intake 02/09 which assembled at Main Guard Room and who were shouting slogans such as “WE WANT CI, “TUM APANA HAATH NICHE RAKHO”, “HUM TUMKO KUCH NAHAI BATAYANGE,” “CI IS COMING FROM BANGALORE  OR WHAT,  WHY IS  HE  TAKING THIS  MUCH TIME,”  “CI  KO  BULAO”,  “CI  NAHIN  TO  AOC-IN-C  KO BULAO,” “CI KO BULAYENGE,” “STATION COMMANDER KO BULAYENGE,” “C-IN-C KO BHI  BULAYENGE,”  or  words  to that effect.”

4. Before DCM, the prosecution examined 14 witnesses, whereas the

appellant  examined  3  witnesses  in  defence.   After  examining  the

evidence on  record,  the  appellant  was  given punishment  of  rigorous

imprisonment  for  five  months  and  also  an  order  of  dismissal  from

service  was  passed.  Such  punishment  was  confirmed on  09.03.2010

subject to modification of punishment of rigorous imprisonment being

reduced to a period of two months. It is thereafter a statutory complaint

was filed which was also dismissed.  

5. The Tribunal, in appeal under Section 15 of the Act, examined the

evidence led by the parties and found no error in the findings recorded

by DCM and consequently dismissed the appeal.  It is, thereafter, the

present appeal with an application for permission to file appeal has been

preferred.  

6. The background of the incident is that on 22.05.2009, there was

verbal fight with use of abusive language between Accounts Conversion

Course trainees and Module II airmen trainees in the TV Room, over the

change of TV channel. Squadron Duty Officer (Sgt BP Singh) and Orderly

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Officer  (JWO JA  Rana)  got  the  TV  room closed to  avoid  further  fight

amongst  the trainees.   The LAC S.  Santra,  sensing the possibility  of

further  fight  between  the  two  groups  of  the  trainees,  informed  the

situation to WO Agar Singh. WO Agar Singh in turn informed MWO M. L.

Ranwan (Cat  Asst,  Asst  Flt  Cdr  Catering  Faculty),  who directed  Agar

Singh  and  other  two  faculty  instructors  –  Sgt  A  K  Yadav  and  Sgt  D

Pradeep to the scene of disturbance – Dakota ‘A’ Block. On reaching to

the  scene  of  disturbance  Dakota  ‘A’  Block  they  found  the  trainees

hooting, shouting and yelling, whistling and creating nuisance after the

lights out time.  

7. The allegations against the appellant are that he misbehaved with

the senior  officers  when they visited  Dakota  ‘A’  Block.   The learned

Tribunal found that in respect of charge no. 3, there is direct evidence of

PW1 M. L. Ranwan, PW2 S. Santra, PW8 D. Pradeep, PW9 A.K. Yadav and

PW11 Agar Singh to prove misconduct.  The Tribunal found that as per

the  admission  of  the  appellant  himself,  he  had  few drinks  that  day.

Further, the Tribunal found in respect of charge no. 5, that there is direct

evidence of PW2 S. Santra, PW8 D. Pradeep, PW9 A.K. Yadav and PW11

Agar  Singh,  though  with  minor  variations,  but  such  statements

confirmed the involvement of the appellant in use of criminal force to

Warrant  Officer  Agar  Singh  PW  11,  when  he  was  being  hit  by  LAC

Ritudhaj Accounts Assistant. Similarly, in respect of charge no. 7, the

Tribunal found that there is direct evidence of PW1 M. L. Ranwan, PW3

B.P. Singh, PW4 Cpl Arun Yadav, PW5 I. J. Singh, PW6 P. Padhi, PW8  D.

Pradeep, PW9 A. K. Yadav, PW10 Sqn Ldr Samrat Pal Chaudhary, PW11

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Agar Singh, PW12 Dheeraj Dalal and DW3 J. Kumar that the appellant

was present in the unruly crowd consisting mainly of Module-II trainees

and leading them  while in transit to and at the main guard room. DW2

Harvinder confirmed that the appellant was standing near ICICI ATM.  

8. Learned counsel for the appellant submitted that the evidence of

the prosecution witnesses has not been taken into consideration by the

Tribunal in proper manner and in fact has been misread. The learned

counsel for the appellant relies upon the statements of PW 2 Santra, PW

8 D. Pradeep and PW12 Dheeraj Dalal to contend that the statements of

such witnesses do not prove the allegation of whistling by the appellant.

It is argued that PW12 Dheeraj Dalal Accounts Assistant of 408 Air Force

Station was declared hostile. The witness was examined to prove the

charge no. 2 that is the appellant “at 405 Air Force Station at about

2245h, on 22.05.2009, improperly caused disturbance by whistling at A-

9 billet”.  

9. We do not find any merit in such argument as charge No. 2 has

not been found proved by the DCM. Therefore, the statement of PW12

Dheeraj  Dalal  cannot  be  relied  upon  by  the  appellant  so  as  to

disapprove the findings recorded by DCM on charge nos. 3, 5 or 7.  

10. It  is  argued that the appellant was slapped by WO Agar Singh.

Such stand is sought to be corroborated from the statements of DW2

LAC Harvinder and DW3 J. Kumar.  DW2 LAC Harvinder has deposed that

around 2300 hours he was talking to his brother on his mobile while

standing  near  staircase  of  A-9  Billet  when  he  saw  WO  Agar  Singh

slapping the appellant.  He heard the voices coming from the ground

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floor stating ‘Fall-in at Guard Room’ after about 10-15 minutes. In the

cross examination he stated that he has seen WO Agar Singh giving one

slap to the appellant.  He also deposed that when Sqn Ldr Chaudhary

asked something from the appellant, the response of the appellant was

“Maine do peg piya hai”.  On the other hand, DW3 deposed that WO

Agar Singh slapped the appellant four times on his left cheek by his

right hand.  He admits that the trainees while going towards main gate

were shouting “we want CI, CI nahi to STN CDR ko bulao, STN CDR nahi

to C-IN-C ko bulao”. He admits that he was also shouting these slogans.

He admits that he pleaded guilty before DCM for using insubordinate

language to MWO ML Ranwan and for leading the mob and shouting

slogans.  He wanted to meet CI as the appellant was slapped by WO

Agar Singh.

11. PW11  Agar  Singh  was  cross-examined  on  the  question  of

manhandling of the appellant but he, categorically, denied the same. In

fact, he deposed that the appellant pushed him from behind, whereas

LAC R. Rathee Accounts Assistant slapped him on his left cheek. The

statement  of  the  witness  is  that  the  appellant  has  consumed  liquor

because he was smelling and his speech and behaviour was not good.

The witness asked the appellant as to whether he has taken drink. The

reply of the appellant was that not only he but everybody had taken

drinks then why he alone being questioned.  PW 11 Agar Singh stated

that he held the left arm of the appellant and moved 2-3 steps towards

the billet and told the appellant to go to billet. But the appellant sat on

cement lid of drainage after moving 5-6 meters. He again held his left

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arm  and  told  him  to  go  to  billet  but  he  did  not  go.  In  the  cross-

examination, he denied that he pushed the appellant, he deposed that

he held his hands, as he was under the influence of liquor. He denied the

suggestion that he slapped the appellant.  The question as to whether

WO Agar Singh has given slaps to the appellant is a question of fact.

The learned Tribunal has examined the statements of the witnesses to

upheld the charge nos. 3, 5 and 7 as proved.  Thus, the stand of the

appellant that he was slapped is not made out from the evidence on

record. The Tribunal has reappreciated the evidence and concurred with

the findings of the DCM.

12. We have appreciated the evidence, even though, the Tribunal has

recorded a finding of fact in respect of misconduct alleged against the

appellant.  We find that the view taken by the Tribunal is a plausible

view and therefore does not warrant any interference in appeal in terms

of jurisdiction vested in this Court under Sections 30 and 31 of the Act.

Sections 30(1) and 31(1) of the Act read as under: -

“30. (1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under Section 19):

Provided that such appeal is preferred, within a period of ninety days of the said decision or order:

Provided further that there shall be no appeal against an interlocutory order of the Tribunal. …..…        ……..         ….….

31. (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of

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general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. …..…        ……..         ….….”

13. In  terms  of  Section  31  of  the  Act,  an  appeal  to  this  Court  is

maintainable  with  the  leave  of  the  Tribunal  and  such  leave  can  be

granted on the ground “that a point of law of general public importance”

or “it appears to the Supreme Court that the point is one which ought to

be considered by that Court”. The point on which this Court will exercise

jurisdiction is a point of law of general public importance.  We do not

find that any point of law of general public importance is involved which

may warrant grant of leave to the appellant.  Consequently, I.A.No.1 of

2016 along with Civil Appeal is dismissed.  

………………………..…………………………J. [Dr. Dhananjaya Y. Chandrachud]

….…………..………………………………….J. [Hemant Gupta]

New Delhi, January 8, 2019.

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