Ex Nc (E) Am Mahato Vs. the Union of India and Others - Court Judgment

1. This appeal u/s 15 of the Armed Forces Tribunal Act, 2007 (which hereinafter called to be an Act) was brought. In this Appeal challenge is made to the order dt 28.11.08 passed by AOC-in – C (SWAC) whereby the appellant was dismissed from service for the alleged disgraceful conduct/mis-conduct for kissing a little girl. It is said that the show cause notice purported to have been given u/s 20 (3) r/w Rule 18 of Air Forces Rule 1969 was not drawn on the basis of evidence collected in the Court of Inquiry. The entire case was fabricated against the accused appellant because of personal enmity of the appellant with some of the officers/officials of the establishment. He was not afforded full and fair opportunity to cross examine the witnesses examined in the Court of Inquiry. In as much the testimony of the victim girl does find any corroboration from any independent evidence. Even the parents of the little girl can not be said to be the eye-witness of the incident. Further the Court of Inquiry remained almost exparte. He was not called first to attend the Court of Inquiry when it was instituted for making the ascertainment of truth with regard to the alleged incident. Under the Rule he ought to have been asked to be present throughout the proceeding even at the subsequent stages. Whatever the opportunity was said to be given to the appellant, that would not be in pursuance to the provisions of para 790 (a), (b) and (c) of Air Force Regulations, 1964.. It has also been submitted that the authority adopted a short cut method to harm the appellant by way of taking administrative action. It was a case of civil nature and they were required to proceed against the petitioner by way of full fledged trial. Such short cut method would show that it was all a pre-conceived decision to harm the appellant. In that context, it is also said that the punishment of dismissal from service was shockingly disproportionate when he had already served the department for about 16½ years. It is also said the innocent plea for touching her cheeks as per the traditions, was not taken into consideration while taking administrative action against the petitioner.

2. This appeal was resisted by the Respondents that there was ample evidence to fix the culpability of the appellant. The testimony of the victim girl could not be discarded merely on the ground that the appellant was following the traditions of West – Bengal where the cheeks can be touched with hand. Further there could be no reason for the little girl to have falsely stated whatever incident had taken place with her in as such no responsible family of such stature would falsely implicate any person so as to defame his/her family. There was no reason to falsely implicate the appellant. There was full opportunity to the accused. There was no short cut method. Such administrative exercise was permissible.

3. In order to appreciate the contentions made from the side of the parties, it shall be useful to extract show cause notice given to the accused-appellant which reads as under:

“SHOW CAUSE NOTICE

1. WHEREAS, you were enrolled in the Indian Air Force on 02 Sep 1993 and were assigned the trade of Mess Waiter;

2. AND WHEREAS, you were on posted strength of SU-30(SSC) with effect from 13 Sep 04;

3. AND WHEREAS, when you were on duty in the cook house of the officers mess 2 Wg, AF for afternoon shift on 18 May 08, four children visited the Officers Mess to have drinking water. On seeing the children, you went to the cook house and kissed Miss Dhriti Bhattacharjee, aged 8 years, D/o Wg Cdr S Bhattacharjee (26373) AE (L) of 9 BRD, AF on her lips and put your tongue in her mouth;

4. AND WHEREAS A Court of Inquiry (CoI) was held at 2 Wing, AF on 21 May 08 and subsequent days to inquire into the circumstances under which 822774 NC (E) AM Mahto of SSC (SU-30) tried to physically abuse daughter of Wg Cdr S Bhattacharjee (23673) AE (L) in the officer Mess on 18 May 08;

5. AND WHEREAS, in your statement during the said CoI you had accepted that you have kissed the child only by touching her cheeks with your hand and completed the kiss by bringing your hand to her mouth;

6. AND WHEREAS, you were found blameworthy by the Court for subjecting the said Miss Dhriti Bhattacharjee to child abuse by kissing her on her mouth;

7. AND WHEREAS, your misconduct as aforesaid is serious and grave in nature and besides being unbecoming of a NC (E) of the Indian air Force and also prejudicial to the community living in the Air Force;

8. AND WHEREAS, the entire facts and circumstances of the case were placed before the Air Officer Commanding-in-Chief, South Western Air Command, IAF, who is of the opinion that in view of the aforesaid circumstances, your retention in the Air Force is undesirable and has ordered issuance of this Show Cause Notice to you; and

9. NOW THEREFORE, you are to show cause as to why you should not be dismissed from the service under Section 20 (3) of the Air force Act, 1950 read with Rule 18 of the Air Force Rules, 1969 for your abovementioned act of misconduct. Your reply, if any, should be submitted to AOC, 2 Wing, AF within ten (10) days from the date of receipt of this Show Cause Notice. If no reply is received within the stipulated time, it shall be presumed that you have nothing to urge in your defence and further action shall be taken against you.

10. For the purpose of preparation of your reply to this SCN, you may, if you wish, peruse the proceedings of the Court of Inquiry held with Adjutant 2 Wing, AF, during Station Working Hours.”

4. In response to that show cause notice, the reply was given by the accused-appellant. The relevant portion of that reply may be extracted herein under :

Para2 : On 18th May 2008, I had been on duty in afternoon shift at officers mess no.2 Wg. A.F. Stn. Lohegaon, Pune-32 from 1500hrs to 2300hrs. It is also admitted fact that on this material and relevant date, four to five children came to officers mess and asked for drinking water at about between from 1700hrs to 1730 hrs. It is admitted fact that I kissed on cheek of little cute baby girl namely Dhriti Bhattacharjee aged about seven years D/o Wg. Cdr S Bhattacharjee witness no.2 without any ill will as I have too got children of like age. I honestly submit that I had no intention to commit any wrong but I kissed due to affection of her cuteness.

Para 4 : I further submit that the allegations alleged against me are entirely false, baseless and have been fabricated with ulterior motive to implicate me in a false case based upon the statement of the interested witnesses and for vested interests. For example, as per statement of Mrs. Panging W/O Wg Cdr Panging withness no.5, the same is reproduced here “At around 1000hrs on 18th May 08, I saw one child crying and running towards officers quarters……..Wg Cdr Panging was talking to some bachelor.” Whereas Wg Cdr Panging witness No. 6 states “On 18th May08 (Sunday) after I had finished my game of squash, I saw some children crying and running away. My wife who was standing there only……” thus, on the face of record, it does not substantiate the conclusions arrived by the court of inquiry because of material difference in time of incidence and offence alleged against me. This witnesses are not even chance witnesses and can not be relied and acted upon because their statements do not inspire confidence. The Court of Inquiry has committed a wrong error arriving on the conclusions.

5. Other reply pertains to that after being apprehended how he was dealt by such officers. He was severely beaten. Further with regard to Court of Inquiry some of the questions were raised in this reply. He also referred about the traditions there in the West-Bengal. Further technical objection was also taken that the testimony of the victim girl could have been recorded in Camera. The appropriate authority after taking into consideration the reply against the show cause notice given, found no justified/unjustified reasons to withdraw the show cause notice which resulted into conviction of the appellant and was dismissed from service.

6. First and the foremost point raised from the side of accused-appellant that he was not afforded full and fair opportunity to cross-examine the witness when Court of Inquiry was held, he should have been allowed to participate in the proceedings from the day one. In this regard from the side of the respondents observations made by the Officer Commanding who conducted the Court of Inquiry dt 28.05.08 were referred which reads as under:

1. From the recorded statement of witness No.1 to witness No.6, it appears to the court that the character and professional reputation of witness No.1 is likely to be affected and he likely to be blamed for the following:-

(a) Subjecting witness No.2 to child abuse by kissing her on her mouth.

2. The entire evidence recorded up to this stage is read over to witness No.1. He is asked to be present during rest of the proceedings and is informed that he is at liberty to cross examine any witnesses, whose statements has been/will be recorded subsequently, to make statement and to give statement in his defence. He may also request the court to record the evidence of any witness in his defence.

3. The witness NO.1 is present in the court from this stage onwards.

4. The witness No.1 does not wish to give any evidence or to make statement in his favour.

5. The witness No.1 wishes to cross examine the witnesses no. 2,4,7,9,11 and 14.

7. From this observation it is clear that the appellant did not prefer to cross-examine the witness no.1 but however, he insisted to cross-examination of the material witnesses (PW2 and other witnesses no. 4, 9, 11 and 14). Under such circumstances, it can not be said the Court of Inquiry was exparte and was not accorded to cross-examine the witnesses.

8. However, much thrust was laid that the provisions of Para 790 (a), (b) and (c) of the Regulations of Air Force 1964 were not complied with. We do not find any such discrepancy in the proceedings which would vitiate the entire Court of Inquiry.

9. Based on that Court of Inquiry, show cause notice was given against the accused-appellant in that regard and the reference to the statement of the material witness namely Dhriti Bhattacharya (PW2) was referred. She made categorical narration of the incident which had taken place with her. It was also stated that how the accused-appellant kissed her lips and then put his mouth on her mouth and touched her tongue with his tongue. The testimony of the witness was desired to be assailed on the ground that she is a tutored witness. There could not be any reason for the parents to tutor her girl to involve herself and the entire family in this disgraceful conduct of the appellant. Expression “disgraceful conduct” was spelled out by the Apext court in the case of Union Of India and others v/s Harjeet Singh Sandhu (2001) 5 SCC page 593, in the context of Army Rule 14, wherein it was held that :

“any wrongful act for any act of delinquency which may or may not involve moral turpitude would be “misconduct”.

Identical view was taken by the Apex Court in the case of BALDEV SINGH GANDHI V/S STATE OF PUNJAB and OTHERS (2002 (3) SCC 667), in which it was held that :

the expression “misconduct” means unlawful behavior, misfeasance, wrong conduct, misdemeanour etc.

Conduct of the accused-appellant would also fall within the disgraceful conduct. Reliance may be placed in the case of STATE OF PUNJAB AND OTHERS V/S RAM SINGH, EX. CONSTABLE (AIR 1992 SC 2188) wherein it was held that

the term “misconduct” may involve moral turpitude.

10. It has next been argued by the Ld. Counsel for the appellant that statement of little girl does not find any corroboration from any of the witnesses. It is mentioned that the statement of the victim does not require any corroboration. Further parents of the victim girl who were there in the close proximity, time and place, lent support to the statement of the victim girl who narrated this incident to her parents. From the side of the accused-appellant it was said that he was there but the incident as was narrated, is not correct. He simply touched her cheeks. This part of the admission of the appellant if read in the context of the clear statement of the victim girl, would further lent support to the prosecution version. It has next been argued that no short cut procedure was permissible in this case when the matter was of civil nature and he ought to have been tried either by court martial or by Civil Court (Magistrate). Short cut method was also deprecated in TA no. 336/09 titled as Fayaz Khan v/s UOI and Another. That decision would not be of any help to the appellant at this stage because no case has been registered at the PS and there could be no reason for the Civil Court or the Magistrate to have taken the cognizance. In the absence of any report lodged at the Police Station, there could be no reason to have awaited for the lodging of the report. Arguments were also advanced with regard to the disproportionate sentence and dismissal from the service. It is said that the appellant had served about 15 years and his conduct was throughout appreciated. Looking into the gravity of the misconduct that too with a little girl. The sentence part does not require any interference. In the result appeal is dismissed.