Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision : 05 November, 2020
+ W.P. (C) 8313/2020, CM APPL. 26934/2020 (for stay) & CM
APPL. 26936/2020 (seeking permission to file lengthy list of dates
and events)
GROUP CAPTAIN SUMAN ROY CHOWDHURY .....Petitioner
Through: Mr. Ankur Chhibber, Advocate.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Syed Hussain Adil Taqvi, GP.
Group Captain Atul Kumar
Command Judge Advocate HQ
Western Air Command.
AND
+ W.P.(C) 8320/2020, CM APPL. 26977/2020 (for stay) & CM
APPL. 26979/2020 (seeking permission to file lengthy list of dates
and events).
WING COMMANDER SHYAM NAITHANI ..... Petitioner
Through: Mr. Ankur Chhibber, Adv.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Vikram Jetly, CGSC with
Group Captain Atul Kumar
Command Judge Advocate HQ
Western Air Command.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
W.P. (C) Nos.8313/2020 & 8320/2020 Page 1 of 12
[VIA VIDEO CONFERENCING]
JUSTICE ASHA MENON
1. These two writ petitions have been filed under Article 226 of the
Constitution of India against the common orders of the Armed Forces
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Tribunal (AFT) dated 9 October, 2020 and therefore the two petitions
are being disposed of by this common judgment.
2. The facts as are relevant for the disposal of the present petitions, in
brief, are that almost contemporaneous to the Indian Air Force air strike
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at Balakot, Khyber Pakhtunkhwa, Pakistan, in the early hours of 26
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February, 2019, an air accident took place on 27 February, 2019, at
Srinagar Air Force Station in which an Air Force Mi 17 Chopper was
completely destroyed and six officers of the Indian Air Force and one
civilian lost their lives. A Court of Inquiry (CoI) was constituted in
accordance with the Air Force Act, 1950 and the Rules and Regulations
framed thereunder.
3. Both the petitioners were notified under Regulation 790 of the Air
Force Regulations, firstly under Regulation 790(a),(b),(c) and
subsequently also under Regulation 790(e). At this point, both the
petitioners sought the supply of the copies of the entire proceedings of the
CoI. A Signal was issued in respect of petitioner Wg Cdr Shyam Naithani
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dated 16 January, 2020 communicated vide letter dated 22 January,
2020 regarding his attachment for initiation of disciplinary proceedings.
He approached the learned AFT with Original Application bearing O.A.
W.P. (C) Nos.8313/2020 & 8320/2020 Page 2 of 12
No.211/2020 seeking the setting aside of the said Signal/order as well as
the supply of the entire proceedings of the CoI qua the accident. A similar
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Signal dated 23 January, 2020 was issued for the attachment of Gp Capt.
Suman Roy Chowdhury for disciplinary proceedings. He filed O.A.
No.212/2020 before the learned AFT for the setting aside of the said
order as well as directions to the respondents to supply to him the entire
proceedings of the CoI to investigate the air accident. Separate orders
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were passed on 29 January, 2020 in these Applications recording therein
that the decision was yet to be taken by the Chief of Air Staff on the
requests made by the petitioners for supply of the CoI proceedings and
initiation of the proceedings under Rule 24 had been deferred for the time
being. For good measure the learned AFT also passed the following order
in both the Applications:
“ We make it clear that the provisions of sub-Rule (8)
of Rule 156 should be complied with by the respondents in its
letter and spirit.
”
4. It appears that both these O.As. No. 211/2020 & 212/2020 came up
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for hearing before the learned AFT on 9 September, 2020. Orders in the
following words were passed in both the Applications separately:
“ 3. We find that accordingly, the applicant is
entitled to be supplied a copy of the unclassified portion of
the CoI. Further, he is entitled to inspect the entire CoI
proceedings, including classified portion, based on which
charges against him have been framed. The respondents
have, in their reply as also in the letter dated 13.08.2020,
expressed their willingness to make available the CoI
proceedings for inspection by the applicant and have
W.P. (C) Nos.8313/2020 & 8320/2020 Page 3 of 12
suggested timings for the same during the hearing today.
4. With these observations, the O.A is disposed of
directing the respondents that the CoI proceedings in
entirety, including classified portion, be made available for
inspection by the applicant at 11.00 a.m. on 11.09.2020 and
on two subsequent working days viz. 12.09.2020 and
14.09.2020, as required. ”
5. On the same day, the petitioners filed two fresh O.As. bearing Nos.
1209/2020 (on behalf of Wg Cdr Shyam Naithani) and 1210/2020 (on
behalf of Gp Capt. Suman Roy Chowdhury) with the following identical
prayers:
RELIEF(S) SOUGHT
“
In view of the facts and circumstances mentioned and
the grounds raised in this O.A., the Applicant humbly prays
that this Hon ble Tribunal may be pleased to allow the
’
present application by passing the following orders and
directions:
a. Quash the Court of Inquiry proceedings convened
pursuant to Terms of Reference dated 07.03.2019 being
contrary to Para 49 of the Air Force Order 08/2014.
b. Quash the Findings and Opinion dated 12.07.2019 of
the CoI being an outcome of an illegal CoI conducted
without competent members in violation of Para 48(b)(iv) of
AFO 08/2014 and held in contravention of the mandatory
provision of Rule 156(2) of Air Force Rules, 1969.
c. Set aside order dated 19.08.2020 and 27.08.2020
being contrary to Rules 156 of the Air Force Rules, 1969;
d. Quash any other order that may be passed pursuant
to the findings and opinion dated 12.07.2019 of the Court of
W.P. (C) Nos.8313/2020 & 8320/2020 Page 4 of 12
Inquiry being contrary to the mandatory provisions of law.
e. Pass any other order or directions as may be deemed
appropriate in the facts and circumstances of the case.
6. Interim relief of a restraint on the respondents from taking any
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action against the petitioners on the basis of the findings dated 12 July,
2019, including, though not limited to, the initiation of proceedings
against them under Rule 24 of the Air Force Rules, 1969 was also prayed
for.
7. The record discloses that when the Applications came up for
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hearing on 14 September, 2020, the learned AFT directed that till the
next date of hearing, all further actions on the CoI report, save as
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permitted by the orders dated 9 September, 2020 in O.A. No.211/2020
& O.A. No.212/2020, were to be kept in abeyance. The respondents filed
their counter affidavits and the petitioners filed rejoinders thereto. The
respondents also filed miscellaneous applications in both matters seeking
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modification of the restraint order passed by the learned AFT on 14
September, 2020. Upon a consideration of the counter affidavits and the
miscellaneous applications, and the submissions of both counsel, vide the
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common impugned order dated 9 October, 2020 the learned AFT found
it fit to modify its earlier order and permit the respondents to proceed
with the action initiated, in accordance with law and conclude it as per
law, subject to its further orders or directions in the matters.
8. Aggrieved thereby, the present petitions have been filed with the
following identical prayers:
W.P. (C) Nos.8313/2020 & 8320/2020 Page 5 of 12
a) Issue a writ of Certiorari or any other appropriate
“
writ, order or direction to quash the order dated 09.10.2020
passed by the Hon ’ ble Armed Forces Tribunal, Principal
Bench, New Delhi, in M.A. No.1552/2020 in O.A. No.1210
of 2020; and
b) Issue a writ of Mandamus or any other appropriate
writ, order or direction restraining the Respondents from
taking any action including initiating disciplinary
proceedings against the Petitioner based on the impugned
Order dated 09.10.2020 and the Court of Inquiry challenged
by the Petitioner before the Hon ’ ble Armed Forces Tribunal,
New Delhi in O.A. No.1210/2020; and
c) Pass any such orders as the Hon ble Court may deem
’
fit in the light of above mentioned facts and circumstances of
the case. ”
9. We have perused the record and heard learned counsel for the
parties at length, but do not find any ground to interfere with the orders of
the learned AFT or go further and restrain the respondents from
proceeding with the follow up to the CoI proceedings. The Original
Applications were filed by the present petitioners against disciplinary
proceedings that were to be initiated against them. The scope of judicial
review in respect of departmental proceedings is very limited. The Court
under its power conferred by Article 226 of Constitution of India, can
interfere in the matter of disciplinary proceedings if the enquiry or
disciplinary proceedings are being conducted in violation of the
prescribed procedure or against principles of natural justice. It will
intervene only to correct errors of law or procedural errors which lead to
manifest injustice. The Supreme Court has laid down the parameters for
judicial review of departmental proceedings in a large catena of cases. In
W.P. (C) Nos.8313/2020 & 8320/2020 Page 6 of 12
the case of Indian Oil Corpn. Ltd. v. Ashok Kumar Arora , (1997) 3
SCC 72 the Supreme Court has held as under:
20. At the outset, it needs to be mentioned that the
“
High Court in such cases of departmental enquiries and the
findings recorded therein does not exercise the powers of
appellate court/authority. The jurisdiction of the High Court
in such cases is very limited for instance where it is found
that the domestic enquiry is vitiated because of non-
observance of principles of natural justice, denial of
reasonable opportunity; findings are based on no evidence,
and/or the punishment is totally disproportionate to the
proved misconduct of an employee. There is a catena of
judgments of this Court which had settled the law on this
topic and it is not necessary to refer to all these decisions.
Suffice it to refer to a few decisions of this Court on this
topic viz. State of A.P. v. S. Sree Rama Rao [(1964) 3 SCR
25 : AIR 1963 SC 1723 : (1964) 2 LLJ 150], State of
A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975 SCC
(L&S) 349 : (1976) 1 SCR 521], Corpn. of the City of
Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC
(L&S) 455 : (1981) 3 SCR 22] and Nelson Motis v. Union of
India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23
ATC 382 : AIR 1992 SC 1981]. ”
10. Much earlier, in D. P. Maheshwari v Delhi Administration and
Others (1983) 4 SCC 293, the Supreme Court had cautioned on how
proceedings could be stalled for years by parties raising preliminary
issues and bringing them before High Courts and there after challenge the
decision of the High Court before the Supreme Court resulting in
inordinate delay in deciding the real issues. Though the remarks were
made in the context of industrial disputes, the observations are worth
W.P. (C) Nos.8313/2020 & 8320/2020 Page 7 of 12
repeating here for guidance:
“ 1. … After all tribunals like Industrial Tribunals
are constituted to decide expeditiously special kinds of
disputes and their jurisdiction to so decide is not to be
stifled by all manner of preliminary objections and
journeyings up and down. It is also worthwhile
remembering that the nature of the jurisdiction under
Article 226 is supervisory and not appellate while that
under Article 136 is primarily supervisory but the court may
exercise all necessary appellate powers to do substantial
justice. In the exercise of such jurisdiction neither the High
Court nor this Court is required to be too astute to interfere
with the exercise of jurisdiction by special tribunals at
interlocutory stages and on preliminary issues. ”
Similarly, in Special Director and Another v Mohd, Ghulam
Ghouse and Another (2004) 3 SCC 440, the Supreme Court observed:
“ 5. … Further, when the court passes an interim
order it should be careful to see that the statutory
functionaries specially and specifically constituted for the
purpose are not denuded of powers and authority to initially
decide the matter and ensure that ultimate relief which may
or may not be finally granted in the writ petition is not
accorded to the writ petitioner even at the threshold by the
interim protection granted. ”
11. The argument of Sh. Chhibber is that the learned AFT had wrongly
concluded that adherence to Rule 156(2) was the only issue whereas the
petitioners had raised several issues beginning with the faulty reference to
the CoI, to the faulty constitution of the CoI without a Technical Member
W.P. (C) Nos.8313/2020 & 8320/2020 Page 8 of 12
from the Air Traffic Control, to the fact that even as per the Regulation
790, once it was invoked against the petitioners, they became entitled to
attend all the hearings whereas they were not allowed and nor have they
been provided the copies so as to enable the petitioners to form their
defence. It is his contention that all these factors had been considered by
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the learned AFT when interim protection was granted on 14 September,
2020 and the situation had not undergone a change since then. It is his
further submission that the respondents were clearly going to initiate
disciplinary proceedings against the petitioners and if punishment was
also meted out to them, irreparable injury would be caused to them as the
foundation itself was faulty. He also submitted that the Regulations were
not statutory and could not limit the statutory provisions. Hence he
pressed for interim protection till the matters were finally decided by the
learned AFT.
12. Since the Regulations are not under challenge in these petitions and
the petitioners themselves rely on them to point out the shortcomings in
the CoI, we need not detain ourselves on the question of the interplay of
the provisions of the Act, Rules and Regulations.
13. The courts have not yet defined what full participation means.
“ ”
But it stands to reason that the standard of a criminal trial taking place
only in the presence of the accused would be applicable at the court
martial and not at a pre trial stage or at a preliminary fact finding enquiry.
It is not in dispute that the petitioners were initially examined as
witnesses (Nos. 7 & 14 respectively). It was when testimonials affecting
the “ character and professional reputation ” of the petitioners came before
W.P. (C) Nos.8313/2020 & 8320/2020 Page 9 of 12
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the CoI that they were notified under Regulation 790(a),(b) & (c) on 15
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March, 2019 & 5 April, 2019. But the evidence after the application of
Regulation 790(a),(b) & (c) led to the formation of the opinion that
blame apparently attaches to them. The petitioners were then notified
“ ”
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under Regulation 790(e) on 5 June, 2019. At that stage, the petitioners
were entitled to be shown the entire proceedings. With regard to supply
of the copies of the CoI at this stage, under Rule 156 (7) the Chief of Air
Staff is the competent authority to take a decision thereon. At a court
martial, on the other hand, under Rule 156(8) the copies have to be
supplied. The provisions reflect that while there is a mandatory obligation
under Rule 156(8), there is some discretion under Rule 156(7). Since the
learned AFT has yet to decide the matter, we refrain from discussing this
issue further. But we would nevertheless note, as has the learned AFT in
paras 15 & 16 of the impugned order, that on both occasions, the
petitioners were able to cross examine witnesses and make their
additional statements. In other words, Rule 156 (2), and not merely
Regulation 790, has been complied with.
14. The proceedings under Rule 24 had been deferred as recorded in
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the order dated 29 January, 2020 and a court martial under Rule 27 is
several stages later. The CoI now completed and the validity of which the
petitioners have questioned vide the Applications still pending before the
learned AFT, is not one under Rule 24, as it was a general inquiry in
which the petitioners were also examined as witnesses. It is only with the
reading of the charge that proceedings under Rule 24 will commence. By
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vacating the stay granted to the petitioners on 14 September, 2020, the
W.P. (C) Nos.8313/2020 & 8320/2020 Page 10 of 12
learned AFT has only allowed the respondents to commence the
proceedings under Rule 24 and conclude them as per law which could be
action under Rule 24 (3) of the summary disposal of the case and to argue
as the learned counsel for the petitioners has, that punishment would be
inevitable, would be speculative to say the very least. By saying so, we
are merely echoing the words of the Supreme Court in Union of India v
Kunisetty Satyanarayana (2006) 12 SCC 28, which are reproduced
below:
“ 14. The reason why ordinarily a writ petition
should not be entertained against a mere show-cause notice
or charge-sheet is that at that stage the writ petition may be
held to be premature. A mere charge-sheet or show-cause
notice does not give rise to any cause of action, because it
does not amount to an adverse order which affects the rights
of any party unless the same has been issued by a person
having no jurisdiction to do so. It is quite possible that after
considering the reply to the show-cause notice or after
holding an enquiry the authority concerned may drop the
proceedings and/or hold that the charges are not
established. It is well settled that a writ petition lies when
some right of any party is infringed. A mere show-cause
notice or charge-sheet does not infringe the right of anyone.
It is only when a final order imposing some punishment or
otherwise adversely affecting a party is passed, that the said
party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction
and hence such discretion under Article 226 should not
ordinarily be exercised by quashing a show-cause notice or
charge-sheet.
W.P. (C) Nos.8313/2020 & 8320/2020 Page 11 of 12
16. No doubt, in some very rare and exceptional
cases the High Court can quash a charge-sheet or show-
cause notice if it is found to be wholly without jurisdiction
or for some other reason if it is wholly illegal. However,
ordinarily the High Court should not interfere in such a
matter. ”
15. The learned AFT has clearly referred to the arguments of Sh.
Chhibber as aforementioned in para no.11 above and has also recorded
that all issues have been left open to be finally decided. The follow up
action of the respondents has also been made subject to the directions and
orders of the learned AFT. Therefore, we have no hesitation in
concluding that the absence of any interim protection as sought by the
petitioners will not cause prejudice, leave alone irreparable harm to them.
In any case, courts are slow to stop any proceeding preceding initiation of
disciplinary action and rather encourage speedy disposal of such matters.
16. No case is made out to take a view different from that of the
learned AFT.
17. Dismissed.
ASHA MENON, J.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 05, 2020
W.P. (C) Nos.8313/2020 & 8320/2020 Page 12 of 12