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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.

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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

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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

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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

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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

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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.   

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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

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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

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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

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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

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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:-

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

(emphasis supplied)

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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

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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’

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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.

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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

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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

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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

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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.

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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.

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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,

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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.  

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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.

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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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