The Union Of India, ... v. Air Chief Marshal, A...

1. Heard learned counsel for the appellants and learned counsel for the respondent.

2. By the judgment and order under appeal dated 15.07.2008 the writ petition bearing CWJC No. 6289 of 2005 preferred by the respondent has been allowed to the extent that the order of dismissal from service and the appellate order have been quashed but the matter has been remitted back to the Station Commander to accept the joining of the petitioner and thereafter subject the writ petitioner/respondent herein to a disciplinary proceeding in accordance with law after furnishing the documents required by him under letter dated 15.06.2004, Annexure-19. The writ petitioner will be also allowed to avail the service of private Lawyer of his choice of course at his own cost. It has been clarified that arrears of salary for the dismissal period shall be subject to the result of the disciplinary proceeding but current salary shall be paid to the petitioner.

3. Learned counsel for the appellants has submitted that the writ court has placed heavy reliance upon two letters annexed with a supplementary petition filed by the writ petitioner, dated 21.05.2004 (Annexure-24) and 15.06.2004 (Annexure-19) to come to a conclusion that the writ petitioner was persuaded by the authorities to accept his guilt and they ignored his request for permission to engage a private counsel.

4. In the memorandum of appeal a specific plea has been taken that the aforesaid letters contained in Annexures-24 & 19 appear to be forged and fabricated as they are not part of the Court Martial proceeding. In view of such plea and submission that the writ court did not grant sufficient time to file reply to supplementary affidavit contained in Annexures-19 & 24, this Court directed the appellants to produce the original records of Court Martial proceeding against the writ petitioner. A perusal of the original records shows that those letters are not a part of the records.

5. Learned counsel for the respondent has explained that those letters were addressed to the Station Commander and to the Lawyer designated for the writ petitioner and hence they are not likely to be part of Court Martial proceeding.

6. In reply, learned counsel for the appellants has submitted that before the Court Martial the writ petitioner never requested for summoning those letters and the original records show that he has signed on a lengthy statement in which he has accepted the charges of over-stayal as well as desertion and also factum of earlier proceedings against him and different punishments.

7. Learned counsel for the appellants has submitted with emphasis that the writ petitioner had voluntarily accepted the charges and his guilt and the concerned officials constituting the Court Martial had no personal ill-will to coerce the writ petitioner to put his signature on incorrect statement. According to him, if the order under appeal is allowed to stand it will demoralize the concerned officials who have acted fairly and followed the prescribed procedure applicable to a case where a delinquent accepts the charges and the guilt. Such procedure, according to him is meant to satisfy the authorities that the charges or the guilt have been accepted bona fide and for good reasons.

8. We have no material to doubt the bona fide of the concerned officers. However, since the order under appeal is an order remanding the matter back to the concerned authority to complete the disciplinary proceeding in accordance with law, we have not gone deeper into the issue whether the charges of over-staying and desertion stand proved on the basis of materials available on the record of Court Martial proceeding. Even after hearing the parties we do not find sufficient materials before us to give a positive finding that the letters contained in Annexures-19 & 24 are forged and fabricated. The order of remand has been passed on the basis of those letters which create a suspicion that petitioner did not want to accept his guilt and instead wanted to engage a private counsel to defend him.

9. In such circumstances, the order under appeal remitting back the Court Martial proceeding against the writ petitioner to the Station Commander is affirmed but with a modification that the concerned authorities will be at liberty to consider the request of the writ petitioner to avail the services of a private Lawyer in accordance with provisions in the Act and the Rules. It is further made clear that on his joining, the petitioner would not become automatically entitled for current salary. His claim for regular salary for the period after joining as well as for period of dismissal shall abide the final decision in the Court Martial proceeding which should be concluded without any delay and in any case within a period of four months from the date of production and communication of a copy of this order. The appeal is disposed of accordingly.