Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 823 OF 2013

Union of India & Ors. ….Appellant(s)

Vs.

Devjee Mishra …Respondent(s)

J U D G M E N T

A. M. KHANWILKAR, J.

This appeal challenges the judgment of the Division

Bench of the High Court of Judicature at Patna dated 23

rd

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 of 2005, decided on 15

th

July, 2008.

2. Briefly stated, the respondent at the relevant time was

working in the rank of Corporal in 27

th

Wing of Air Force and was

posted at the Air Force Bhuj Station in the State of Gujarat.

1

Page 2 Departmental action was taken against him for over staying the

leave period. Charge sheet was served on him dated 18

th

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. 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.

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 F&S 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

27 Wing, AF

2

Page 3 3. Proceedings of District Court Martial against the

respondent commenced on the basis of the said charge sheet. Shri

A.D. 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 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

th

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 promulgation. On that

basis the respondent stood dismissed from service. The contents of

the proceedings was explained to the respondent on 2

nd

July, 2004

which fact has been acknowledged by the respondent.

4. The respondent then submitted an application against

the District Court Martial order dated 17

th

June, 2004, under

Section 161 of the Air Force Act 1950, addressed to the Air Chief

Marshal on 11

th

October, 2004. The respondent was informed vide

3

Page 4 letter dated 12

th

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.

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 impressed on four counts. 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 the writ

application - that the petitioner never accepted his guilt - had

remained uncontroverted in the reply affidavit filed by the

appellants. Thirdly, the contents of the letter dated 21

st

May, 2004

– Annexure 24 (in writ proceedings), addressed to the Station

4

Page 5 Commander on that very day of the Summary Court Martial

proceedings were certified (i.e. on 21

st

May, 2004), complained 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.

Lastly, the Authorities had illegally kept the respondent in

confinement in a cell during the enquiry in contravention 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. For these four

reasons, the learned Single Judge quashed the order dated 17

th

June, 2004 passed by the Court Martial and the Disciplinary

Authority of dismissing the respondent and also the order dated 2

nd

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 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

5

Page 6 arrears of salary from the date of dismissal to such rejoining was

made subject to the result of Disciplinary Proceedings.

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 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 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.

6

Page 7 7. Being aggrieved, the appellants have challenged the

abovesaid decisions of the learned Single Judge and the Division

Bench in the present appeal. The main argument of the appellants

is that the basis on which the learned Single Judge interfered with

the order passed by the 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 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 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

7

Page 8 against whom allegations of pressurizing him to accept his guilt

either in the subject document, in contemporaneous

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 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.

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 Judge,

according to the appellants, is also untenable. In that, it is not a

8

Page 9 case of confession given by the respondent while 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 enough opportunity to reconsider his stand, by explaining to

him the 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 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

9

Page 10 affirmed by the Division Bench, to say the least is error apparent on

the 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 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 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 that the

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 believing his superiors

gave his statement. The respondent had no other option because

10

Page 11 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.

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 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’), 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 entry is for losing by neglect his

AFIC. 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 court awarded the following

sentence to the accused:-

(a)To suffer RI for three months;

(b)To be dismissed from the service; and

(c)To be reduced to the ranks.”

(emphasis supplied)

11

Page 12 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

of judicial 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 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 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

12

Page 13 officer appointed by the Authority who was not from the Air Force

Station, Bhuj but from other Air Force Station. The reply affidavit

unambiguously denied the plea of 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 and 36 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 same reads

thus:-

“28.That the statement made in paragraph no. 34 is denied. The DCM

was conducted strictly as per the laid down 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 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 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 and general

effects of the plea of guilty. The petitioner further stated, while he

submitted a request to mitigate punishment that he has pleaded guilty.

A copy of the request submitted by the petitioner enclosed as

Annexure ‘P’

13

Page 14 29.That the statement made in paragraph no.35 is denied. 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 court did

draw petitioner’s 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 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. 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 petitioner

orally 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 from the Air Force Station, Bhuj and did not inform 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 defend himself, but the

petitioner accepted all the charges and pleaded guilty.

33. …… …… …… …… ……

34. …… …… …… …… ……

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 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, 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.

14

Page 15 11. The High Court was then impressed by contents of the

letter dated 21

st

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 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 fact,

reference to letter dated 21

st

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 Martial Proceedings or at least in the appeal preferred

by him, under Section 161 of the Act to the Competent Authority.

Notably, such case was not made out even in the original writ

15

Page 16 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

entertained by the High Court, that too in a casual manner; and

especially when the appellants 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 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 part 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

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

16

Page 17 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 made against them. Hence,

this reason weighed with the High Court must also fail.

12. The last reason weighed with the High Court is also

devoid of substance. The learned Single Judge has merely referred

Section 107, without analyzing as to how the confinement of the

respondent in a cell was in breach thereof or would vitiate the plea

of guilt of the respondent. Section 107 of the Air Force Act, 1950

reads thus:-

“Section 107

107. Inquiry into absence without leave.—

(1) When any person subject to this Act has been absent 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 of the person, and the deficiency, if any, in the

property of the Government entrusted to his care, or in any arms,

ammunition, equipment, instruments, clothing or necessaries, and if

satisfied of the fact of such absence without 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 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 shall, 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

enquiry against the respondent was vitiated because of this

17

Page 18 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 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 official record, however, substantiates the fact that the

respondent had overstayed his casual leave between 12

th

April to

27

th

April, 2003, with effect from 28

th

April, 2003, without sufficient

cause until he surrendered himself on 20

th

March, 2004. After

surrendering, the respondent once again absented himself without

applying for leave till he was apprehended by IAF/P of P&S(U), AF

at Jagatpur, Distt. Bhojpur, Bihar on 30

th

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 less to doubt the voluntary confession

made by the respondent in those proceedings made before the

DCM.

18

Page 19 13. No other reason has been noted by the High Court to

warrant remand of Court 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 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 appellants that these

letters (Annexures 19 and 24) were afterthought and in any case

cannot be made the basis to question the validity of Court Martial

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 High Court committed manifest error in interfering with the

impugned 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.

19

Page 20 15. The learned counsel for the respondent would then

contend that if the 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. 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 10

th

February, 2003 on the specious ground that he was unwell and 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 Force personnel,

20

Page 21 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

th

April, 2001,

which reads thus :-

25 April 2001

“To,

The Chief of the Air Staff

Subject : Amendment to Regulation 16 and 102 of Pension

Regulations for the Air Force, 1961, Part I

Sir,

1. I am directed to state that under the provisions of

Regulations 102 (a) of Pension Regulations for the Air Force (Part

I), 1961 as amended vide 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 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 (Part 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 / dismissed

under the provisions of Air Force Act, 1950 or removed /

compulsorily retired under Rule 16 of AF Rules, 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 / gratuity or both at a rate

not exceeding that which would be otherwise admissible had the

individual so cashiered / dismissed / removed been retired

discharged 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 admissible on the

date of discharge. This will also apply to cases of

dismissal/removal.

21

Page 22 4. All appeals to the Competent Authority in this regard will be

preferred within two years of the date of

cashiering/dismissal/removal.

5. Competent Authority both for Commissioned Officers and

PBORs for Regulations 16 and 102 of Pension Regulations for the

Air Force 1961 will be the president of India.

6. Pension Regulations for the Air Force will be amended in

respect of the above provisions in due course.

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,

Sd/-XXX

(Amrit Lal)

Deputy Secretary to the Government of India”

(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 / 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 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

th

July, 2008, and

the order of the Division Bench dated 23

rd

June, 2009 are set aside.

22

Page 23 Instead, the Court Martial Proceedings dated 17

th

June, 2004 as

also the order dated 2

nd

July, 2004 promulgating the same are

restored and revived.

18. Appeal succeeds in the above terms with no order as to

costs.

………………………… CJI.

(T.S. THAKUR)

…………………………… .J.

(A.M. KHANWILKAR)

New Delhi

Dated: September 27, 2016

23