RAMA SHANKAR MISHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) SPECIAL appeal No. 317/91 with special appeal No. 468/93. Special appeal No. 317/91 is filed by appellant Rama Shanker Mishra against the Union of India and Ors. challenging the order passed by the learned Single Judge partly allowing the writ petition filed by Rama Shanker Mishra. Second special appeal No. 468/93 is filed by the Union of India challenging the same judgment.

(2.) THAT the appellant who was petitioner before the learned Single Bench questioned before it the decision of the Court Martial. The writ petition was partially allowed. The punishment of dismissal from service was set aside. Reinstatement of the appellant was directed but the finding of guilt was confirmed, it is that finding which is challenged in this appeal by the petitioner and it is setting aside of the order of dismissal which is impugned by the Union of India in their appeal. Facts giving rise to the present appeal by the original petitioner stated briefly are as under. The petitioner was serving as Corporal in the Indian Air Force stationed at Jodhpur. He had completed 15 years of pensionable service under the respondents. The petitioner was transferred from Jodhpur to Secundarabad vide AFRO Sig. No. RDA/310 dated 29th February, 1980 and respondents No. 2 and 3 issued clearance certificate to the petitioner so as to enable him to join at Secundarabad. The petitioner submitted an application on 5th March, 1980 for cancellation of his transfer on compassionate grounds, namely, his children were reading at Jodhpur and he was suffering from Adenoma Thyroid ailment. The transfer of the petitioner was not cancelled, however, its operation was postponed on the ground that his son was appealing at the Senior Secondary Examination. Consequently, Shri O.L. Farias, Sqn. Ldr. (9457) F (P) 107 Helicopter Unit, Air Force, Jodhpur issued a Route Form Ex.4 and asked the petitioner to accept the same. By this Route Form, the petitioner was required to commence his journey on 10th April, 1980 at 8 p.m. He was to travel by rail and was to report to the authority mentioned therein at Secunderabd on 13th April, 1980. The petitioner declined to accept the Route Form. Consequently, the petitioner was served with a charge sheet Ex.1. The charge against the petitioner was that he dis -obeyed a lawful command given by his superior officer in that he, at Jodhpur on 10th April, 1980, when asked by Sqn. Ldr. O.L. Farias (9457) F (P), adjutant of No. 107 Helicopter Unit, Air Force to take the movement order IAFF(P) -9 from him for proceeding to Air Force Academy on posting, did not do so. The petitioner claimed to be tiled and was duly tried by a District Court Martial. At the trial as many as five witnesses were examined by the prosecution. The petitioner examined himself and further examined D.W.1 Wing Commander (Dr.) T.S. Murthi in his defence. The District Court Martial after hearing both the sides found the petitioner guilty of an offence Under Section 41(2) of the Indian Air Force Act (hereinafter referred to as the Act) and inflicted the following punishments: -

(3.) IN the writ petition apart from challenging the correctness offending of guilt, the petitioner also challenged the punishment as grossly disproportionate. The learned Single Judge considered the various submissions made before him including the several cases cited and found that the petitioner was guilty of misconduct with which he was charged but set aside the dismissal and directed reinstatement giving opportunity to the respondents to award such minor penalty in view of dismissal as they may deem proper after hearing the petitioner. It is this order which is challenged in appeal by the Union of India and the petitioner. The petitioner claims that finding of guilt is incorrect and should have, been set aside. The Union of India claims that having found that the petitione was correctly held guilty of the misconduct with which he was charged, the Learned Single Judge of the High Court did not have jurisdiction to interfere with the punishment imposed with the assistance of the learned Counsel for the petitioner and respondents.