EX. LAC YOGESH PATHANIA versus UNION OF INDIA & ORS. on 8 January 2019

[2019] 1 S.C.R. 161

EX. LAC YOGESH PATHANIA

v.

UNION OF INDIA & ORS.

(I.A. No. 1/2016)

In

(Civil Appeal D. No. 14214 of 2016)

JANUARY 08, 2019

[DR. D. Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]

Armed Forces Tribunal Act, 2007 – s.30 r/w s.31 –Disciplinary proceedings – Breach of good order of Air Forcediscipline – Court of Inquiry – District Court Martial (DCM) foundappellant guilty for using insubordinate language to his superiorofficer, for using criminal force and for act prejudicial to goodorder of Air Force discipline – Tribunal concurred with the findingsof the DCM and dismissed the appeal holding that there was directevidence to prove misconduct on part of appellant and hisinvolvement in use of criminal force to senior officer; that appellantalso admitted that he had few drinks that day; that there was directevidence of presence of appellant in the unruly crowd and the standof the appellant that he was slapped was also not made out from theevidence on record – Appeal before Supreme Court – Held: TheTribunal had re-appreciated the evidence and had concurred withthe findings of DCM – The view taken by Tribunal was a plausibleview and, therefore, did not warrant any interference in appeal interms of jurisdiction vested in Supreme Court under ss.30 and 31of the Act – In terms of s.31 of the Act, an appeal to Supreme Courtis maintainable with the leave of the Tribunal and such leave canbe granted on the ground “that a point of law of general publicimportance” or “it appears to the Supreme Court that the point isone which ought to be considered by that Court” – No point of lawof general public importance is involved in the instant case so as toentitle appellant grant of leave – Air Force Act, 1950 – s.161(2).

Dismissing the I.A. along with the appeal, the Court HELD: 1. PW11 was cross-examined on the question ofmanhandling of the appellant but he, categorically, denied the

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Asame. In fact, he deposed that the appellant pushed him frombehind, whereas LAC slapped him on his left cheek. Thestatement of the witness was that the appellant has consumedliquor because he was smelling and his speech and behaviourwas not good. The witness asked the appellant as to whether hehad taken drink. The reply of the appellant was that not only heBbut everybody had taken drinks then why he alone was beingquestioned. PW 11 stated that he held the left arm of the appellantand moved 2-3 steps towards the billet and told the appellant togo to billet. But the appellant sat on cement lid of drainage aftermoving 5-6 meters. He again held his left arm and told him to goCto billet but he did not go. In the cross-examination, he deniedthat he pushed the appellant, he deposed that he held his hands,as he was under the influence of liquor. He denied the suggestionthat he slapped the appellant. The question as to whether PW 11has given slaps to the appellant is a question of fact. The Tribunal examined the statements of the witnesses to uphold charge nos.D3, 5 and 7 as proved. Thus, the stand of the appellant that he wasslapped was not made out from the evidence on record. TheTribunal re-appreciated the evidence and concurred with thefindings of the DCM. The view taken by the Tribunal was aplausible view and, therefore, did not warrant any interference inEappeal in terms of jurisdiction vested in this Court under Sections30 and 31 of the Act. There is no point of law of general publicimportance is involved which may warrant grant of leave to theappellant. [Paras 11, 12, 13][166-D-H; 167-A-B, F]

CIVIL APPELLATE JURISDICTION: I.A. No.1 of 2016 in CivilFAppeal Diary No. 14214 of 2016.

From the Judgment and Order dated 06.08.2015 of the ArmedForce Tribunal, Chandigarh Regional Bench at Chandimandir in O.A.No. 324 of 2010 and order dated 13.1.2016 in M.A. Nos. 3358 & 3367of 2015 in O.A. No. 324 of 2010.

GD. K. Thakur, Varinder Kumar Sharma, Advs. for the appellant.

Mrs. Madhvi Diwan, ASG, R. Balasubramanian, Vanktesh, A. K.Sharma, Mukesh Kumar Maroria, Advs. for the respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. The present appeal under Section 30read with Section 31 of the Armed Forces Tribunal Act, 2007 (for short“the Act”) along with IA No. 1 of 2016 seeking leave to appeal arisesout of an order passed by the Armed Forces Tribunal, Chandigarh,Regional Bench at Chandimandir (for short ‘Tribunal’) in OA (AppealNo. 324 of 2010) on 06.08.2015.

2. The appeal before the Tribunal was directed against the findingsand the sentence awarded by District Court Martial (for short ‘DCM’)on 01.02.2010 confirmed on 09.03.2010 and also against rejection of hisstatutory complaint under Section 161 (2) of the Air Force Act, 1950 bythe Chief of Air Staff. The DCM was initiated on account of an incidenton the intervening night of 22.05.2009 and 23.05.2009 wherein a breachof good order of Air Force discipline was created by Module II airmentrainees attached to NTTI and Accounts Conversion Course trainees inthe TV Room, over the change of TV channel on 22.05.2009 between2150 hrs to 2210 hrs.

3. The incident pertaining to the disciplinary proceedings againstthe appellant happened after 2240 hrs in Dakota ‘A’ Block and at themain gate. A Court of Inquiry was conducted followed by summary ofevidences. Thereafter the appellant was tried by DCM on seven chargesof misconduct. The DCM has found the appellant guilty of charge nos.3, 5 and 7 which read as under:

“3. Under Section 40 (c) Air Force Act, 1950 for using insubordinatelanguage to his superior officer; in that he, at 405 Air Force Stationon 22 May 2009 when checked by 647216 MWO ML RanwanCat Asst regarding bellowing of whistle in the billets, said to him,“MAINE KOI WHISTLE NAHI BAJAYA HAI, APKO JOKARNA HAI KARLO AUR AAP MERA KUCH NAHI KARSAKTE or words to that effect.

5. Under Section 40(a) Air Force Act, 1950 for using criminalforce to his superior officer, in that he, at 405 Air Force Stationbetween 2230 hrs and 2345 hrs on 22 May 2009 used criminalforce to 672315 WO Agar Singh Eqpt Asst by pushing the saidWO Agar Singh from back.

7. Under Section 65 Air Force Act, 1950 for an act prejudicial togood order and Air Force Discipline. In that he, at 405 Air Force A

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AStation during intervening night of 22 May 2009 and 23 May 2009,improperly provoked a group of Module-II trainees of intake 02/09 which assembled at Main Guard Room and who were shoutingslogans such as “WE WANT CI, “TUM APANA HAATHNICHE RAKHO”, “HUM TUMKO KUCH NAHAIBATAYANGE,” “CI IS COMING FROM BANGALORE ORBWHAT, WHY IS HE TAKING THIS MUCH TIME,” “CI KOBULAO”, “CI NAHIN TO AOC-IN-C KO BULAO,” “CI KOBULAYENGE,” “STATION COMMANDER KOBULAYENGE,” “C-IN-C KO BHI BULAYENGE,” or wordsto that effect.”C

4. Before DCM, the prosecution examined 14 witnesses, whereasthe appellant examined 3 witnesses in defence. After examining theevidence on record, the appellant was given punishment of rigorousimprisonment for five months and also an order of dismissal from servicewas passed. Such punishment was confirmed on 09.03.2010 subject toDmodification of punishment of rigorous imprisonment being reduced to aperiod of two months. It is thereafter a statutory complaint was filedwhich was also dismissed.

5. The Tribunal, in appeal under Section 15 of the Act, examinedthe evidence led by the parties and found no error in the findings recordedEby DCM and consequently dismissed the appeal. It is, thereafter, thepresent appeal with an application for permission to file appeal has beenpreferred.

6. The background of the incident is that on 22.05.2009, therewas verbal fight with use of abusive language between AccountsConversion Course trainees and Module II airmen trainees in the TVFRoom, over the change of TV channel. Squadron Duty Officer (Sgt BPSingh) and Orderly Officer (JWO JA Rana) got the TV room closed toavoid further fight amongst the trainees. The LAC S. Santra, sensingthe possibility of further fight between the two groups of the trainees,informed the situation to WO Agar Singh. WO Agar Singh in turn informedGMWO M. L. Ranwan (Cat Asst, Asst Flt Cdr Catering Faculty), whodirected Agar Singh and other two faculty instructors – Sgt A K Yadavand Sgt D Pradeep to the scene of disturbance – Dakota ‘A’ Block. Onreaching to the scene of disturbance Dakota ‘A’ Block they found thetrainees hooting, shouting and yelling, whistling and creating nuisanceHafter the lights out time.

7. The allegations against the appellant are that he misbehavedwith the senior officers when they visited Dakota ‘A’ Block. The learnedTribunal found that in respect of charge no. 3, there is direct evidence ofPW1 M. L. Ranwan, PW2 S. Santra, PW8 D. Pradeep, PW9 A.K.Yadav and PW11 Agar Singh to prove misconduct. The Tribunal foundthat as per the admission of the appellant himself, he had few drinks thatday. Further, the Tribunal found in respect of charge no. 5, that there isdirect evidence of PW2 S. Santra, PW8 D. Pradeep, PW9 A.K. Yadavand PW11 Agar Singh, though with minor variations, but such statementsconfirmed the involvement of the appellant in use of criminal force toWarrant Officer Agar Singh PW 11, when he was being hit by LACRitudhaj Accounts Assistant. Similarly, in respect of charge no. 7, theTribunal found that there is direct evidence of PW1 M. L. Ranwan,PW3 B.P. Singh, PW4 Cpl Arun Yadav, PW5 I. J. Singh, PW6 P. Padhi,PW8 D. Pradeep, PW9 A. K. Yadav, PW10 Sqn Ldr Samrat PalChaudhary, PW11 Agar Singh, PW12 Dheeraj Dalal and DW3 J. Kumarthat the appellant was present in the unruly crowd consisting mainly ofModule-II trainees and leading them while in transit to and at the mainguard room. DW2 Harvinder confirmed that the appellant was standingnear ICICI ATM.

8. Learned counsel for the appellant submitted that the evidenceof the prosecution witnesses has not been taken into consideration bythe Tribunal in proper manner and in fact has been misread. The learnedcounsel for the appellant relies upon the statements of PW 2 Santra,PW 8 D. Pradeep and PW12 Dheeraj Dalal to contend that thestatements of such witnesses do not prove the allegation of whistling bythe appellant. It is argued that PW12 Dheeraj Dalal Accounts Assistantof 408 Air Force Station was declared hostile. The witness was examinedto prove the charge no. 2 that is the appellant “at 405 Air Force Stationat about 2245h, on 22.05.2009, improperly caused disturbance by whistlingat A-9 billet”.

9. We do not find any merit in such argument as charge No. 2 hasnot been found proved by the DCM. Therefore, the statement of PW12Dheeraj Dalal cannot be relied upon by the appellant so as to disapprovethe findings recorded by DCM on charge nos. 3, 5 or 7.

10. It is argued that the appellant was slapped by WO Agar Singh.Such stand is sought to be corroborated from the statements of DW2LAC Harvinder and DW3 J. Kumar. DW2 LAC Harvinder has deposed AB

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Athat around 2300 hours he was talking to his brother on his mobile whilestanding near staircase of A-9 Billet when he saw WO Agar Singhslapping the appellant. He heard the voices coming from the groundfloor stating ‘Fall-in at Guard Room’ after about 10-15 minutes. In thecross examination he stated that he has seen WO Agar Singh giving oneslap to the appellant. He also deposed that when Sqn Ldr ChaudharyBasked something from the appellant, the response of the appellant was“Maine do peg piya hai”. On the other hand, DW3 deposed that WOAgar Singh slapped the appellant four times on his left cheek by his righthand. He admits that the trainees while going towards main gate wereshouting “we want CI, CI nahi to STN CDR ko bulao, STN CDR nahi toCC-IN-C ko bulao”. He admits that he was also shouting these slogans.He admits that he pleaded guilty before DCM for using insubordinatelanguage to MWO ML Ranwan and for leading the mob and shoutingslogans. He wanted to meet CI as the appellant was slapped by WOAgar Singh.

D11. PW11 Agar Singh was cross-examined on the question ofmanhandling of the appellant but he, categorically, denied the same. Infact, he deposed that the appellant pushed him from behind, whereasLAC R. Rathee Accounts Assistant slapped him on his left cheek. Thestatement of the witness is that the appellant has consumed liquor becausehe was smelling and his speech and behaviour was not good. The witnessEasked the appellant as to whether he has taken drink. The reply of theappellant was that not only he but everybody had taken drinks then whyhe alone being questioned. PW 11 Agar Singh stated that he held theleft arm of the appellant and moved 2-3 steps towards the billet and toldthe appellant to go to billet. But the appellant sat on cement lid of drainageFafter moving 5-6 meters. He again held his left arm and told him to go tobillet but he did not go. In the cross-examination, he denied that he pushedthe appellant, he deposed that he held his hands, as he was under theinfluence of liquor. He denied the suggestion that he slapped the appellant.The question as to whether WO Agar Singh has given slaps to the appellantis a question of fact. The learned Tribunal has examined the statementsGof the witnesses to upheld the charge nos. 3, 5 and 7 as proved. Thus,the stand of the appellant that he was slapped is not made out from theevidence on record. The Tribunal has reappreciated the evidence andconcurred with the findings of the DCM.

12. We have appreciated the evidence, even though, the Tribunalhas recorded a finding of fact in respect of misconduct alleged againstthe appellant. We find that the view taken by the Tribunal is a plausibleview and therefore does not warrant any interference in appeal in termsof jurisdiction vested in this Court under Sections 30 and 31 of the Act.Sections 30(1) and 31(1) of the Act read as under: - “30.(1) Subject to the provisions of Section 31, an appeal shall lieto the Supreme Court against the final decision or order of theTribunal (other than an order passed under Section 19):

Provided that such appeal is preferred, within a period of ninetydays of the said decision or order:

Provided further that there shall be no appeal against aninterlocutory order of the Tribunal.

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31. (1) An appeal to the Supreme Court shall lie with the leave ofthe Tribunal; and such leave shall not be granted unless it is certifiedby the Tribunal that a point of law of general public importance isinvolved in the decision, or it appears to the Supreme Court thatthe point is one which ought to be considered by that Court.

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13. In terms of Section 31 of the Act, an appeal to this Court ismaintainable with the leave of the Tribunal and such leave can be grantedon the ground “that a point of law of general public importance” or “itappears to the Supreme Court that the point is one which ought to beconsidered by that Court”. The point on which this Court will exercisejurisdiction is a point of law of general public importance. We do notfind that any point of law of general public importance is involved whichmay warrant grant of leave to the appellant. Consequently, I.A.No.1 of2016 along with Civil Appeal is dismissed.

Devika Gujral

IA along with Appeal dismissed.

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