Group Captain Suman Roy Chowdhury v. Union of India and Ors

ASHA MENON, J.

RAJIV SAHAI ENDLAW, J. NOVEMBER 05, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 05th 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 [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 Tribunal (AFT) dated 9th 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 at Balakot, Khyber Pakhtunkhwa, Pakistan, in the early hours of 26th February, 2019, an air accident took place on 27th 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 dated 16th January, 2020 communicated vide letter dated 22nd January, 2020 regarding his attachment for initiation of disciplinary proceedings. He approached the learned AFT with Original Application bearing O.A. 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 Signal dated 23rd 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 were passed on 29th 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 for hearing before the learned AFT on 9th 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 C