UNION OF INDIA & ORS.versusDEVJEE MISHRA

                              [2016] 8 S.C.R. 84



A                        UNION OF INDIA & ORS.
                                       v.
                              DEVJEE MISHRA
                        (Civil Appeal No. 823 of2013)
B                           SEPTEMBER 27, 20 I 6
          [T.S. THAKUR, CJI AND A.M. KHANWILKAR, J.)
          Service Law:
            Armed Force Personnel - Dismissal - Re5pondent worked as
c   Corporal in Air Force - Over stayed the leave period- Departmental
    action taken - In court martial proceeding, respondent accepted
    guilt -· Dismissed from service - Respondent filed writ petition and
    stated that he never accepted guilt and was forced to make confession
    - High Court quashed the orders of dismissal on ground that he
    ll'as 1101 a habitual deserter,· that he 11e1•er accepted his guilt; that
D
    he was pressurized by his superiors to plead guilty; and that he was
    iflegaffy confined in a cell in violation of s.107 of Air Force Act and
    Arts. 21, 22 of the Constitution of India - On appeal, held: The
    records prove that re5pondent overstayed.the leave period after his
    marriage and respondent had faced action for similar misconduct
E   in the past also - Court martial proceedings revealed that respondent
    voluntarily adi.;-itted his guilt on charges with fi1/l understanding
    and in 5pite of opportunity given to him to reconsider his stand and
    to defend himself, he did not change his confession and also declined
    to have a civil advocate - Confession was, there.fore, justly recorded
    in court martial proceedings by the officials - In reply affidavit to
F   writ application, authorities unambiguously denied that respondent
    was forced to· give confession - However, same was not taken into
    consideration by High Court - Further, the document attached along
    with writ petition substantiating that respondent was pressurized by
    his superiors was not a part of court martial proceedings in the
G   first place and no explanarivn was given for the same - Also, no
    reason given by High Court as to how s.107 ofAir Force Act vitiated
    the enquiry against the respondent - High Court committed manifest
    error iu interfering ,;;fth the impugned decision of Competent
    authority - Air Force Act, 1950 - ss.39(a) (b), 161, 107 -
    Constitution of India - Arts. 21, 22.
H
                                      84
        UNION OF INDIA & ORS. v. DEV JEE MISHRA                       85



       Allowing the appeal, the Court                                 A
      HELD: 1. As regards the first reason, the impugned order
of High Court does make reference to the fact that the respondent
had faced action for similar misconduct in the past. The analysis
of given evidence is not only in respect of acceptance of guilt by
the respondent, but other aspects as well. Hence this reason          B
weighed with the Single Judge cannot stand the test of judicial
scrutiny. [Para 9](91-G-H; 92-A,EJ
       2. The second reason which found favour with the Single
Judge is that the averments made by the respondent in writ
application had remained uncontroverted. This finding, is an error    c
apparent on the face of the record. The averments in Paragraphs
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 Single Judge committed grave error in assuming
that the appellants had not dispnted or controverted the assertion    D
made by the respondent in the writ application. The High Court
completely glossed over the plea taken by the appellants that
letter/document, wherein the respondent had asked to engage a
private counsel was not a part of the Court Martial Proceedings.
On the other hand, the record of Court Martial Proceedings not        E
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. Therefore,
it cannot be made the basis to grant any relief to the respondent
much less to doubt the bo11(ljides of the officials involved in the   F
conduct of Court Martial Proceeding. 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. For, such a        G
belated plea ought not to be entertained by the High Court, that
too in a casual manner. Also, the respondent was called upon to
produce the original, which he never did. (Paras 10,11 )(92-F; 93-
B; 95-A-F]
      3. The last/fourth reason weighed with the High Court is        H
     86             SUPREME COURT REPORTS                      [2016] 8 S.C.R.


     A also devoid of substance. The Single Judge has merely referred
       Section 107, no reason has been recorded by the High Court as
       to how the enquiry against the respondent was vitiated because
       of s.107. The 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
     B
       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 fact situation of the present case, the High Court
       committed manifest error in interfering with the impugned
     c 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. [Paras 12, 14][96-B,F-G; 97-E]
                4. The misconduct for which the respondent has been
          sentenced and punished is not the first of its kind committed by
     D    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 the specious
          ground that he was unwell and was undergoing medical treatment.
     E    The Competent Authority having taken notice of all the attending
          circumstances chose to impose punishment of dismissal. There
          is a subjective satisfaction reached by the Competent Authority
          in that regard. [Para 15][97-G-H; 98-A]
                  CIVIL APPELLATE JURISDICTION: Civil Appeal No. 823 of
     F    2013.
                From the Judgment and Order dated 23 .06.2009 of the High Court
          of Judicature at Patna in LPA No. 995 of2008.
              R. Bala Subramanian, Ananya Mishra, Pranav Kumar, M. K.
     G Maroria, Santosh Kumar, Swarupama Chaturvedi, Mrs. Anil Katiyar,
       Ad vs. for the Appellants.
               Shishir Pinaki, Raj iv Kumar Sinha, Samir Ali Khan, Advs. for the
          Respondent.
                  The Judgment of the Court was delivered by
..   H
         UNION OF INDIA & ORS. v. DEVJEE MISHRA                             87



.r:   A. M. KHANWILKAR, J. I. This appeal challenges the                    A
judgment of the Division Bench of the High Court of Judicature at Patna
dated 23'd 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 of2005, decided on l 5'h July, 2008.
                                                                            B
       2. Briefly stated, the respondent at the relevant time was working
in the rank of Corporal in 271h Wing of Air Force and was posted at the
Air Force Bhuj Station in the State of Gujarat. Departmental action was
taken against him for over staying the leave period. Charge sheet was
served on him dated l 81h June 2004, which reads thus:-
                          CHARGE SHEET
                                                                            c
      The accused, 722779 H Cpl Mishra D MT Tech of27 Wing, AF
an airman of the regular Air Forces is charged with :-
First Charge
Section 39(b) AF ACT 1950
                                                                            D
       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 27 Apr 03, overstayed the said leave without sufficient cause
until he surrendered himself to 629555 Sgt Singh RK JAF/P at Main           E
Guard room of27 Wing, AF at I 000 hrs on 20 Mar 2004.
       Second Charge
      Section 39(a) AF ACT 1950
      ABSENTING HIMSELF WITHOUT LEAVE
                                                                            F
                                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 hon 30
APR 04.                                                                     G
                                                  (V Gaur)
      Place : 27 Wing, AF                     Wing Commander
      Date : 08 Jun 04                       Station Commander
                                                 27 Wing, AF
      3. Proceedings of District Court Martial against the respondent       H
88           SUPREME COURT REPORTS                          [2016] 8 S.C.R.


A commenced on the basis of the said charge sheet. Shri A.O. 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
B 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 25 1h 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 promuigation. On that basis the
C respondent stood dismissed from service. The contents of the
   proceedings was explained to the respondent on 2"d July, 2004 which
   fact has been acknowledged by the respondent.
         4. The respondent then submitted an application against the
  District Court Martial order dated I 71h June, 2004, under Section 161 of
D the Air Force Act 1950, addressed to the Air Chief Marshal on I J'h
  October, 2004. The respondent was informed vide letter dated I 21h
  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.
E         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
F impressed on four courits. 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
G the  writ application - that the petitioner never accepted his guilt - had
  remained uncontroverted in th1;, reply affidavit filed by the appellants.
  Thirdly, the contents of the letter dated 21" 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
  21" May, 2004 ), complained of the fact that the respondent was being
H
         UNION OF INDIA & ORS. v. DEV JEE MISHRA                             89
                 [A. M. KHANWILKAR, J.]

pressurized by his superiors to plead guilty, and also to permit him to A
eogage a private advocate. Lastly, the Authorities had illegally kept the
respondent in confinement in a cell during the enquiry in contravention
of Section 107 o.fthe Air Force Act, 1950, which entailed in violation of
hisrightto life without following the due process oflaw, infringingArticles
21and22 of the Constitution oflndia. For these four reasons, the learned B
Single Judge quashed the order dated J 7th 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 C
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 arrears of salary
from the date of dismissal to such rejoining was made subject to the
result of Disciplinary Proceedings.
                                                                               D
       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 E
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 F
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.                                                            G
       7. Being aggrieved, the appellants have challenged the abovesaid
decisions of the learned Single Judge and the Division Bench in the
prese•nt appeal. The main argument of the appellants is that the basis on
which the learned Single Judge interfered with the order passed by the
                                                                             H
90            SUPREME COURT REPORTS                         [2016] 8 S.C.R.


A 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
B
  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
c 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 against whom allegations of pressurizing him
  to accept his guilt either in the subject document, in contemporaneous
D 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
E 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.
F
  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 Jutl.ge, according to the
  appellants, is also untenable. In that, it is not a case of confession given
G by the respondent whifo 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
H
         UNION OF INDIA & ORS. v. DEV JEE MISHRA                               91
                 [A. M. KHANWILKAR, J.]

enough opportunity to reconsider his stand, by explaining to him the A
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
                                                                            B
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
affirmed by the Division Bench, to say the least is error apparent on the c
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   D
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         E
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 thatthe 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                  F
believing his superiors gave his statement. The respondent had no other
option because 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.
                                                                               G
        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
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92           SUPREME COURT REPORTS                       [2016] 8 S.C.R.


A 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'),
B        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
         entiy is for losing by neglect his AFIC. The accused was
c        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;
D               (b) Tp be dismissed from the service; and
                (c) To be reduced to the ranks."
                                                (emphasis supplied)
         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
E ofjudicial 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
F 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
G 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 officer appointed
H
        UNION OF INDIA & ORS. v. DEV JEE MISHRA                        93
                [A. M. KHANWILKAR, J.]

by the Authority who was not from theAir Force Station, Bhuj but from A
other Air Force Station. The reply affidavit unambiguously denied the
plea o!' 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
                                                                         B
and 36 of the counter affidavit would make it amply clear that the
appellants had challenged the stated fact asserted by the respo)ldent 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               c
       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       D
       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       E
       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          F
       and general effects of the plea of guilty... The petitioner
       futiher stated, while he submitted a request to mitigate
        punishment that he has pleaded guilty.
          A copy of the request submitted by the petitioner e1}closed
       as Annexure 'P'
        29. That the statement made in paragraph no.35 is denied.        G
       The petitioner at the time of recording evidence stated that
       he was sick and suffering from various p'roblems, 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
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94               SUPREME COURT REPORTS                        [2016] 8 S.C.R.



A          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.
B
           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 petitionerorally 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
c          from theAir Force Station,Bhuj and did not infonn 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
D
           defend himself, but the petitioner accepted all the charges
           and pleaded guilty.
           33.              '

           34.
E
           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
F
           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,
G          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.
H
          UNION OF INDIA & ORS. v. DEV JEE MISHRA                           95
                  [A. M. KHANWILKAR, J.]

          11. The High Court was then impressed by contents of the letter A
 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
                                                                              B
  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 C
  fact, reference to Jetter dated 21" 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 Maiiial
  Proceedings or at least in the appeal preferred by him, under Section
                                                                              D
  161 of the Act to the Competent Authority. Notably, such case was not
                                                       0

  made out even in the original writ 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 E
  ente1iained by the High Court, that too in a casual manner; and especially
  when the appel !ants 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
                                                                              F
  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 pa1t 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 G
  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 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
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96            SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A    made against them. Hence, this reason weighect with the High Court
     must also fail.
            12. The last re::son weighed with the High Court is also devoid of
     substance. The learned Single Judge has merely referred Section l 07,
     without analyzing as to how the confinement of the respondent in a cell
B    was in breach thereof or would vitiate the plea of guilt of the respondent.
     Section l 07 of the Air Force Act, 1950 reads thns:-
            "Scction 107
             I07. Inquiry into absence without leave.-
            ( l) When any person subject to this Act has been absent
c           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 ofthe person, and the deficiency, if any, in the
            property oftl1e Government entrusted to his care, or in any
D           arms, ammunition, equipment, instruments, clothing or
            necessaries, and if satisfied of the fact of such nbsence
            w!thout 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
E           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 sh al I, 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
F    enquiry against the respondent was vitiated because of this 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 2 I and 22 of the Constitution of
G    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 casua I leave
     between I2'h April to 27'h April, 2003, with effect from 28'h April, 2003,
     without sufficient cause until he surrendered himself 011 20'h March,
     2004. After surrendering, the respondent once again absented himself
H
         UNION OF INDIA & ORS. v. DEV JEE MISHRA                              97
                 [A. M. KHANWILKAR, J.]

without applying for leave till he was apprehended by IAF/P of P&S(U),        A
AF at Jagatpur, Distt. Bhojpur, Bihar on 30'h 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
                                                                              B
less to doubt the voluntary confession made by the respondent in those
proceedings made before the DCM.
        13. No other reason has been noted by the High Court to warrant
remand of Cou11 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 c
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 D
appellants that these letters (Annexures 19 and 24) were afterthought
and in any case cannot be made the basis to question the validity of
Com1 Mai1ial 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    E
High Com1 committed manifest error in interfering with the impugned
decision of the Competent Authority ofawarding sentence and punishment
to the respondent for the two charges in respect of which he had pleaded
guilty.
        15. The learned counsel for the respondent would then contend         F
that ifthe 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.         G
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 1O'h February, 2003 on the specious ground that he was unwell and          H
98             SUPREME COURT REPORTS                            [2016] 8 S.C.R.


A    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 Fotce personnel,
B
     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 25'h April, 2001, which reads
     thus:-
                                                            25 April 2001
C           'To,
            The Chief of the Air Staff
               Subject: Amendment to Regulation 16 and I 02 of Pension
                        Regulations for the Air Force, 1961, Part I
            Sir,
D            1. I am directed to state that under the provisions of
            Regulations I 02 (a) of Pension Regulations for the Air Force
            (Part I), 1961 as amended vi de 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
E
            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 (Pait
F           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 I
            dismissed under the provisions of Air Force Act, 1950 or
            removed I compulsorily retired under Rule 16 of AF Rules,
G
             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 I gratuity or both at a rate not exceeding
H           that which would be otherwise admissible had the individual
         UNION OF INDIA & ORS. v: DEV JEE MISHRA                             99
                 [A. M. KHANWJLKAR, J.]

      so cashiered I dismissed I removed been retired discharged             A
      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
                                                                             B
      admissible on the date of discharge. This will also apply to
      cases of dismissal/removal.
      4. All appeals to the Competent Authority in this regard will
      be preferred within two years· of the date of cashiering/
      dismissal/removal.
      S. Competent Authority both for Commissioned Officers                  c·
      and PBORs for Regulations 16 and 102 of Pension.
      Regulations for the Air Force 1961 will be the president of
      India.
      6. Pension Regulations fonhe Air Force will be amended
      in respect of the above provisions iii due course.
                                                                             D
      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,
                                                                             E
                                                    Sd/-XXX


                                                (Amrit Lal)
                  Deputy Secretary to the Government of India"
                                                                             F
                                          · (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 I 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         G
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 15'11 July, 2008, and the order
                                                                             H
100                SUPREME COURT REPORTS                     (2016] 8 S.C.R.


A     of the Division Bench dated 23'd June, 2009 are set aside. Instead, the
      Court Martial Proceedings dated I 7'h 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.
B
      Ankit Gyan                                                 Appeal allowed.