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CASE NO.: Appeal (civil)  6049-50 of 1999

PETITIONER: Swadesh Pal Baliyan

RESPONDENT: Air Force Commanding-in-Chief & Anr.

DATE OF JUDGMENT: 01/11/2004

BENCH: Y.K. Sabharwal & D.M. Dharmadhikari

JUDGMENT: J U D G M E N T

Y.K. Sabharwal, J.

       The appellant, a corporal in Indian Air Force was removed form  service in exercise of powers under Section 20(3) of the Air Force Act,  1950 read with Rule 18 of the Air Force Rules, 1969 by order dated 30th  June, 1998.  The writ petition filed by the appellant challenging his removal  has been dismissed by a Division Bench of the High Court by the  impugned judgment.  The appellant is in appeal on grant of leave.         The facts in brief are that in March, 1994 snags were noticed in 14  aircrafts, as a result, the aircrafts could not be used for flying for two days.   The appellant was charged for causing damage to the said training  aircrafts.  The appellant belongs to electric trade.  In substance, the  allegations, in so far as the appellant is concerned, were that he had  damaged the electric system by breaking wires as a result whereof the  aircrafts could not be used for flying.         The findings recorded in the court of inquiry were that number of  wires were found broken on 25th and 26th March, 1994; the breakages  appeared to be fresh and found to be the result of deliberate action on the  part of some individual; the appellant had worked on all the 14 aircrafts on  24th and 25th March, 1994 and was held responsible for breaking the  aircrafts’ wires thereby rendering various aircrafts’ systems non-functional.   In the opinion of the court of inquiry, the appellant was directly responsible  for these acts of sabotage.  As a result of the aforesaid enquiry, a notice  dated 4th July, 1994 was issued to the appellant to show cause why he  may not be dismissed from service.  The validity of the said notice was  challenged by the appellant in a writ petition.  By order dated 28th  November, 1994, noticing that the appellant had not been supplied enquiry  officer’s report before issue of the notice dated 4th July, 1994 and the same  was supplied on 13th September, 1994 subsequent to the filing of the writ  petition, the notice dated 4th July, 1994 was set aside.  Issues were kept  open enabling the appellant to file appropriate reply to the enquiry report  and directing that on such reply, it would be open to the respondent to  pass appropriate order in accordance with law.  It appears that on the  recommendations of the court of inquiry, a notice dated 24th February,  1995 was issued to the appellant to show cause why he should not be  dismissed from service.  The appellant was granted 10 days’ time to reply  to the notice dated 24th February, 1995.  By order dated 3rd May, 1995,  noticing that the appellant had failed to file reply even after lapse of a  considerable time, the appellant was informed that he had been dismissed  from service on 1st May, 1995.  This resulted in appellant filing before the  High Court another writ petition (WP No.4905/95) challenging the dismissal  order.  The main argument urged before the High Court was that the  appellant was entitled to show cause notice at two stages; the first when  the enquiry officer submitted his report, the appellant should have been  issued a show cause notice to explain why the report of the enquiry officer

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should not be accepted and the other on receipt of the explanation, if the  disciplinary authority comes to the conclusion that innocence of the  employee is inconsistent with the report of the enquiry officer, proposing  the nature of penalty.  The High Court noticing that admittedly no show  cause notice had been issued to the appellant to explain why the enquiry  officer’s report should not be accepted, held the dismissal order dated 3rd  May, 1995 to be illegal, in terms of judgment dated 10th April, 1996.  The  order of the learned Single Judge was, however, set aside in an intra court  appeal and the writ petition remitted for fresh decision. Writ Petition  No.4905/95 was finally disposed of by learned Single Judge in terms of the  judgment and order dated 28th October, 1996.  It was noticed in the  judgment that a second enquiry had been held in respect of the same  incident to find out whether other persons were also involved in doing  damage to the aircrafts wherein appellant was again examined.  The  contention urged was that if the two enquiry reports are read together, it  would be seen that both pertain to same incident pointing out that in first  enquiry appellant was held guilty and in the second other persons were  found to be involved but were left with a reprimand.  The contention urged  was that failure to take into account both the reports had caused prejudice  to the appellant.  While setting aside the dismissal order dated 3rd May,  1995, learned Single Judge permitted the appellant to furnish his  explanation to the show cause notice.  The respondents were directed to  give the appellant an opportunity of being heard and pass a fresh order on  consideration of the appellant’s representation.         The appellant submitted his explanation dated 30th May, 1998, inter  alia, stating that the two reports are diametrically opposed to each other  and run counter to the other.  A confessional statement had been made by  the appellant in response whereof, the stand taken by the appellant in his  explanation was that the Presiding Officer had threatened him of dire  consequences and warned him that he would not be allowed to meet his  family members unless the confessional statement is given and, thus,  apprehending danger to his wife and children, blank papers were signed  by him against will and coercion on the direction of the Presiding Officer  and it is only thereafter he was released from close arrest.  The  explanation was not accepted and the order of removal from service was  passed which the High Court has declined to interfere.         Learned counsel for the appellant contends that the second enquiry  report exonerates the appellant, it runs contrary to the first enquiry report  and, therefore, the removal of the appellant is unsustainable.  The  submission is that the High Court without examining these vital aspects  has dismissed the writ petition mainly on the ground that the judicial  reviewability in such matters is very restricted having regard to the  discipline required to be observed in a disciplined force like Air Force.  In  respect of confessional statement learned counsel reiterated the stand  taken by the appellant in his explanation dated 30th May, 1998.         We have heard learned counsel for the parties and perused the  material on record.  It is not necessary to examine the stand taken in  relation to the confessional statement since even in answers given by the  appellant during the course of enquiry, he admitted the factum of having  caused the damage.  The motive behind breaking many wires given by the  appellant was that he was fed up with doing extra work and wanted to  bring down the serviceability of the aircrafts.  It appears from the tenor of  the questions and answers that the respondent was not satisfied that the  appellant alone was responsible as repeated questions were put to him  that it may not be possible for one person to cause such a damage.  The  appellant, however struck to his stand that it was so possible.  He could  show as to how he could do it alone.  In view of these admissions, the  question whether the confessional statement was made under threat or  coercion pales into insignificance. We may, however, note that the  confessional statement was retracted substantially on 30th May, 1998  despite the first enquiry report having been admittedly supplied to the  appellant on 13th September, 1994.  Learned counsel for the appellant  though having not placed on record a copy of the writ petition read  therefrom few lines to show that certain averments had been made about  appellant’s having signed some blank documents.  In view of the

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admissions during enquiry as aforesaid, it is not necessary to examine in  depth, the bald and vague allegations in the explanation submitted more  than 4= years later reiterating the confession.         There is also no substance, on the facts and circumstances of the  case, that the two enquiry reports run counter to each other in so far as the  appellant is concerned.  The first enquiry report found appellant directly  responsible for the acts of sabotage.  That report, however, did not find the  involvement of any other person despite the stand of the respondent as  above noticed that probably it was not possible for one person to cause the  damage.  The terms of reference of second enquiry show that it was  ordered to ascertain the involvement of other persons.  The appellant was  permitted to participate in the second enquiry in view of the requirements  of para 790 (a), (b), (c) and (e) of the regulations of the Indian Air Force.   In the second enquiry, the appellant appeared as a witness and admitted  that he was the only electric trade man in the morning on the  tarmac,  other electric trade persons must have gone for battery collection and  rectification of other snags.  In the second enquiry, the direct evidence in  respect of involvement of others was not available but from the  circumstances the court of inquiry came to the conclusion that the pattern  of snags suggested that they would have intimate knowledge about it.   According to the second report, a group of individuals carried out the  damage.  There was not question of second enquiry finding out the guilt or  involvement of the appellant.  The indirect involvement of others was  found.  In so far as Flight Lt. A. Prasad is concerned, his involvement was  in respect of not maintaining proper documents and supervising the same.   The second report recommended disciplinary/administrative action against  four officials and administrative action against three including Flight Lt. A.  Prasad.  On the facts and circumstances of the case, Flight Ltd. Prasad  being member of earlier court of inquiry is of no relevance.  It does not  appear that any prejudice has been caused to the appellant on that  account.  His involvement was to the extent of not maintaining proper  documents and supervising the same.  It is not possible to accept the  contentions that the second enquiry report exonerated the appellant.  That  was not even within the scope of the second enquiry.         The charge against the appellant was of a serious nature having  regard to the force in which he was employed.  There is no error in the  impugned judgment of the High Court which rightly declined to interfere  with the order of removal passed against the appellant.         Having regard to the aforesaid, there is no merit in the appeals and  they are dismissed accordingly.