2008 (8) TMI 797

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.... in the review petition. 3. We may, before adverting to the contentions raised by the parties, notice the admitted fact of the matter. 4. Appellant was commissioned in the Indian Air Force on or about 6.12.1985. He filed an application for posting to MOFT Unit so as to enable him to fly MIG 21 Fighter Aircrafts. The said application was rejected. He applied for premature retirement. A good conduct certificate was issued in his favour. However, a disciplinary proceeding was initiated against him on or about 20.1.2006 in respect whereof a charge-sheet was issued on 1.4.2006, the details whereof are as under : "FIRST CHARGE SECTION 65 AIR FORCEACT, 1950   AN ACT PREJUDICIAL TO GOOD ORDER AND AIR FORCE DISCIPLINE  In....

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.... AIR FORCE ACT, 1950 (ALTERNATIVE TO SIXTH CHARGE)   ILL TREATING A PERSON SUBJECT TO THE AIR FORCE ACT BEING HIS SUBORDINATE IN RANK In that he, At Gandhinagar (Gujarat), on 06 Jan.06, at the Officers' Mess Headquarter South Western Air Command, Indian Air Force, illtreated 707518 Sergeant Narender Kumar Catering Assistant of Headquarter South Western Air Command, Indian Air Force." 5. A convening order was issued for trial by a General Court Martial on 8.5.2006. 6. A contention was raised as regards sustainability of the first three charges, inter alia, on the ground that as the witnesses named therein were not produced for cross-examination, the purpose of continuing the General Court Martial proceedings became fru....

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....ial of the accused by the court martial may either be signed by the convening officer or by a staff officer on his behalf. The charge sheet on which the accused to be tried, the summary of the evidence and convening order for assembly of court-martial shall then be sent to the senior officer of court-martial and the Judge Advocate, if appointed." Rule 57 of the Rules enables the accused to object to the charge, inter alia, on the ground that it does not disclose an offence under the Act or is not in accordance with these Rules. 10. It is not in dispute that such an objection was taken by the petitioner, stating :          "It would be ironical and amazing to state that the cause of action rel....

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.... a plea has been raised on the premise that a report had been furnished, inter alia, in respect of charge No.2 by Shri Dipendra Pathak and the same has been produced in the summary of evidence by Sq. Ldr. T.S. Reddy who was the custodian thereof. 12. Whether prejudice has been caused by non-examination of witnesses named in the charge-sheet is essentially a question of fact. An inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The charges framed as against the appellant were specific. The misconducts were said to have been committed are in relation to the persons named therein. In the proceedings, seven witnesses were examined, namely, Air Commander M. Bhandari, Sgt. Narender Kumar, Fl....