IMPORTANT POINTS
Counter affidavit should be read as a whole.
Any document not produced before forum below cannot be introduced for the first time before superior Courts.
Court cannot substitute its views for subjective satisfaction of Competent Authority.

JUDGMENT :

A.M. Khanwilkar, J.

This appeal challenges the judgment of the Division Bench of the High Court of Judicature at Patna dated 23rd 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 15th July, 2008.

2. Briefly stated, the respondent at the relevant time was working in the rank of Corporal in 27th 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 18th 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)

Wing Commander

Station Commander

27 Wing, AF

Place : 27 Wing, AF

Date : 08 Jun 04

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 25th 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 2nd July, 2004 which fact has been acknowledged by the respondent.

4. The respondent then submitted an application against the District Court Martial order dated 17th June, 2004, under Section 161 of the Air Force Act 1950, addressed to the Air Chief Marshal on 11th October, 2004. The respondent was informed vide letter dated 12th 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