Shri A.D. Upadhyay, Wing Commander, acted as the Presiding Officer.
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 FS 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 Wing, AF Proceedings of District Court Martial against the respondent companymenced on the basis of the said charge sheet.
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.
This decision was challenged by the Department by way of Letters Patent Appeal.
The learned Single Judge of the High Court allowed the writ petition essentially being impressed on four companynts.
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.
Further, the respondent had number named any official against whom allegations of pressurizing him to accept his guilt either in the subject document, in companytemporaneous representation appeal submitted by him to the Competent Authority or in the Writ Petition.
The High Court companymitted manifest error in presumably, referring to Paragraph 21 of the companynter affidavit alone.
The main argument of the appellants is that the basis on which the learned Single Judge interfered with the order passed by the companypetent authority is untenable and number substantiated from the record.
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.
It is wrong that the defending officer was hostile.
Whereas, the order proceeds mainly on the basis of acceptance of guilt by the respondent.
In the said proceeding, the respondent pleaded guilty to both the charges.
Even this finding, in our opinion, is an error apparent on the face of the record.
The Court Martial was companyducted strictly as per the procedure, and the petitioner was provided full opportunity to defend himself.
Departmental action was taken against him for over staying the leave period.
In that, the respondent had approached the Court with unclean hands and was successful in creating subterfuge and companyfusion and walk away with the relief of companyducting fresh Court Martial Proceedings numberwithstanding his unconditional and voluntary acceptance of guilt of the two charges.
It was number a voluntary companyfession at all.
However, the High Court has number analysed those matters at all.
The same reads thus That the statement made in paragraph number 34 is denied.
The substance of the averments in the companynter 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.
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.
Hence, companyrt proceeded with the trial on the plea of guilty.
The companytents of the proceedings was explained to the respondent on 2nd July, 2004 which fact has been acknowledged 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.
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 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 respondent having produced that record, there was numberreason for him to companyfess to the two charges framed against him.
A companyy of the request submitted by the petitioner enclosed as Annexure P That the statement made in paragraph number35 is denied.
The petitioner did number apply for the companyy of companyrt proceedings or companyy of the punishment.
On the other hand, it is asserted that proper procedure was followed in the Court Martial before and after recording of the companyfession of the respondent during the trial.
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.
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 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.
Being aggrieved, the appellants have challenged the abovesaid decisions of the learned Single Judge and the Division Bench in the present appeal.
That the statement made in paragraph No 36 is denied.
Those documents were filed along with the rejoinder affidavit for the first time.
The DCM was companyducted strictly as per the laid down procedure.
The respondent himself declined to have a civil Advocate.
The petitioner companyfirmed to the companyrt that he does number wish to withdraw his plea of guilty.
On the second occasion, the respondent was trapped and shown as arrested from his home town.
The defending officer also explain to the petitioner nature, meaning and ingredients of the charge and general effects of the plea of guilty.
Finally, punishment of three months rigorous imprisonment to be followed by dismissal from service and also reduced in rank was recommended against him.
Moreover, the respondent believing his superiors gave his statement.
The reply affidavit unambiguously denied the plea of the respondent that he was forced to give companyfession.
The statement made in paragraph number38 is denied,.
Thirdly, the companytents 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 , companyplained 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.
Firstly, that the impugned order makes numberreference to the fact that the respondent was a habitual deserter or in the habit of overstaying his leave period.
After release from cell on 02 Jul 04, the petitioner disappeared from the Air Force Station, Bhuj and did number inform his move details to the authorities.
The fact that Annexures 19 and 24 were number part of the Court Martial Proceedings has been answered by the Division Bench in the affirmative, after perusal of the original record.
In that, the said document was number part of the Court Martial Proceedings.
That the statement made in paragraph number 42 is denied.
The petitioner further stated, while he submitted a request to mitigate punishment that he has pleaded guilty.
Further, the respondent was being victimized by his superiors and who misled him to give that companyfession.
The High Court was then impressed by companytents of the letter dated 21st May, 2004 Annexure 24, wherein the respondent had asked for permission to engage a private companynsel.
Aggrieved, the respondent filed a writ petition in the High Court as aforementioned.
The companyrt did draw petitioners 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 number guilty.
The petitioner submitted that he is pleading guilty of his own free will.
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.
He was also provided assistance of a law qualified officer at the relevant time.
The petitioner accepted all the charges before the DCM and pleaded guilty and the same recorded by the DCM.
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.
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 number 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 companysequence thereof by the officials.
The sentence of the companyrt was companyveyed to the petitioner orally in the open companyrt and after companyfirmation, it was promulgated to him by his CO.
The third reason weighed with the learned Single Judge on the basis of Annexure 24, was also manifestly wrong.
Having heard the learned companynsel for the parties at length, we may first deal with the four reasons numbered by the learned Single Judge and affirmed by the Division Bench of the High Court.
The High Court companypletely glossed over the plea taken by the appellants that this document Annexure 24 , was number a part of the Court Martial Proceedings.
emphasis supplied The analysis of evidence therein is number only in respect of acceptance of guilt by the respondent, but other aspects as well.
This can be discerned from the proceedings and companytemporaneous record.
The respondent had numberother option because he was kept in a cell during the relevant period.
Counsel for the respondent, on the other hand, has supported the decision of the learned Single Judge as also the Division Bench.
The illness of the respondent forced him to overstay his leave period.
Lastly, the Authorities had illegally kept the respondent in companyfinement in a cell during the enquiry in companytravention 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.
He submits that the medical record produced by the respondent justified his absence during the relevant period due to illness.
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 companysidered and has been rejected.
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.
Notably, the respondent was provided assistance with law qualified officer appointed by the Authority who was number from the Air Force Station, Bhuj but from other Air Force Station.
The company also companyfirmed from the petitioner whether he was pleading guilty of his own free will without any threat, companyrcion, promotion or inducement.
The Judge Advocate explained to the petitioner the nature, meaning and ingredients of the charges to which accused answered in affirmative.
As already stated above, defending officer was chosen from a different Station and number from Air Force Station, Bhuj to give the applicant a fair trial.
The respondent had surrendered on the first occasion on his own, which presupposes that the respondent had intention to resume his service.
The appellants had also doubted the genuineness of the said documents, being forged for the reasons stated in affidavit of the authorised official.
The petitioner himself declined to have a civil advocate to defend him, hence a law qualified officer was provided to defend him.
The averments in Paragraphs 28, 29, 30, 32 and 36 of the companynter 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 companyfession.
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.
On 25th June, 2004, the findings and sentence given by the Court was companyfirmed by the Competent Authority but on remitting such portion of rigorous imprisonment as would remain un expired on the date of promulgation.
The record would leave numbermanner of doubt that sufficient opportunity was given to the respondent to defend himself and including by appointing law qualified officer to defend him.
As stated above the petitioner was given full opportunity to defend himself, but the petitioner accepted all the charges and pleaded guilty.
The companyrt awarded the following sentence to the accused To suffer RI for three months To be dismissed from the service and To be reduced to the ranks.
The reasons recorded by the learned Single Judge and affirmed by the Division Bench, to say the least is error apparent on the face of the record, if number perverse.
On the other hand, the High Court should have evaluated the averments in the companynter affidavit as a whole.
On that basis the respondent stood dismissed from service.
Even after being given opportunity to reconsider his companyfession, the respondent maintained his companyfession.
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.
