1

(SEE RULE 102 (1))

ARMED FORCES TRIBUNAL, KOLKATA BENCH
O.A. No. 103 of 2013
THIS 14th DAY of SEPTEMBER 2016

CORAM:
HON’BLE JUSTICE AMAR SARAN, MEMBER (JUDICIAL)
HON’BLE LT GEN GAUTAM MOORTHY,MEMBER(ADMINISTRATIVE)

APPLICANT(S) Flight Lieutenant Ishan Sharan

Flat No 3 A, Shiv Madhuri Enclave
Anand Gram, Morabadi District,
Ranchi, Jharkhand-834 008.

Versus

RESPONDENT(S) 1. Union of India,

Through Secretary
Ministry of Defence
New Delhi – 110 011

2. The Chief of Air Staff

Air Headquarters,
New Delhi – 110 011

3. The Air Officer Commanding

32 Wing, Air Force
c/o 56 APO

For the applicant (s) Mr. S.K. Choudhury, Advocate

Major K Ramesh, Advocate
Ms. Archana Ramesh, Advocate

For the respondent(s) Mr.S. K. Bhattacharyya, Advocate

OR D E R

PER LT GEN GAUTAM MOORTHY, HON’BLE MEMBER (ADMINISTRATIVE)

1. This is an application filed under section 14 of the Armed Forces

Tribunal Act, 2007 challenging the order of termination of service of the

applicant issued vide Govt. of India, Ministry of Defence Letter No. Air
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HQ/23407/1655/PS/MoD F. Dy. No. 88/CC/D(Air-III)/2013 dated 28th

June, 2013 under which the Central Government in exercise of the

powers conferred by section 19 of the Air Force Act, 1950 read with Rule

16(7) and (8) of the Air Force Rules, 1969 has ordered that Flt Lt Ishan

Sharan (29675-F) F(P) of 31 Sqn AF attached to 48 Wg AF be dismissed

from the service. The relevant sections of the Air Force Act and Air Force

Rules under which the dismissal was carried out are appended below :

The Air Force Act 1950

“ Sec 19. Termination of service by Central Government.- Subject to the

provisions of this Act and the rules and regulations made thereunder, the
Central Government may dismiss, or remove from the service any person
subject to this Act.

The Air Force Rules 1969

“Rule 16: Dismissal or removal of officers for misconduct.- (1) An officer
may be dismissed or removed from service for misconduct by the Central
Government, but before doing so and subject to the provisions of sub-rule (2)
he shall be given an opportunity to show cause against such action.
(2) xxxxxxxxxxx
(3) xxxxxxxxxxx
(4) xxxxxxxxxxx
(5) xxxxxxxxxxx
(6) xxxxxxxxxxx
(7) The Central Government may, after considering the reports against the
officer and his defence, if any, and the recommendations of the Chief of the Air
Staff, dismiss or remove the officer from service.
(8) In this rule and in rule 17 the Chief of the Air Staff while submitting a case to
the Central Government may recommend that instead of removing an officer
from service, he may be compulsorily retired or that he should be called upon
to resign his commission, and the Central Government in passing orders may
instead of removing an officer from service, compulsorily retire him or give the
officer an option to submit his resignation, and if he refuses to do so, remove
him from the service.”
2. The case in hand is that one lady Air Force Officer namely Sqn Ldr

Anindita Dasgupta, wife of Sqn Ldr Vishak Nair was found dead (hanging from
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ceiling fan) at Air Force Station, Jodhpur in her house on the night of 27-28

November, 2012. A Court of Inquiry (C of I) was convened to inquire into the

circumstances under which Sqn Ldr Anindita Dasgupta (29110-S) Adm FC of 33

SU AF was found dead in officer married quarter 875/2 DJ at Air Forced Station

Jodhpur. The brief narrative of events as brought out in the Court of Inquiry

(page 7) is as follows :-

“1. On the intervening night of 27-28 Nov 12 at about 0245h Sqn Ldr
Anindita Dasgupta (29110-S) Adm/FC of 33 SU, Air Force was found hanging
from the ceiling fan of her bedroom in OMQ No 875/2, Diamond Jubilee
Officers Enclave, by her husband Sqn Ldr Vishak Nair (28933-A).
2. The couple had an argument regarding marital disharmony between
them. The couple had retired in separate rooms. At about 0230h when Sqn Ldr
Vishak Nair awoke and noticed that lights of the room in which Sqn Ldr A
Dasgupta had retired for the night was still on and bolted from inside. Sqn Ldr
Vishak Nair went out and when peeped in from the window of Sqn Ldr A
Dasgupta’s room, found her hanging from the ceiling fan.

3. He called up the Station Duty Officer at around 0245h and informed him
the matter. Subsequently the SDO arrived, followed by CO 31 Sqn AF and other
authorities. The civil police also arrived and finally Sqn Ldr A Dasgupta was
brought down by the civil police at around 0715 on 28 Nov 12 and taken for
post mortem.

Sd.
( MR Kane )
Gp Capt
Date:- 02 Dec 12 Presiding Officer”

3. The Court of Inquiry was held from 2.12.12 to 21.12.12. Its terms of
reference (TOR) (page 3) were as under :
“TERMS OF REFERENCE
COURT OF INQUIRY UNNATURAL DEATH OF
Sqn Ldr Anindita Dasgupta (29110-S) Adm FC of 33 SU AF

1. To inquire into the circumstances under which above mentioned air

warrior allegedly committed suicide on intervening night of 27/28 Nov 12 and
confirm the factum of suicide.

2. The evidence of the Court of Inquiry are to be recorded on oath.

3. To make brief accounts of circumstances surrounding the alleged suicide.

4. To ascertain the following:-

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(a) Date, Time and place of alleged suicide.

(b) The nature of ‘Duty’ on which the persons were engaged at the
time of death.
(c) Reasons for the alleged suicide. Could the alleged suicide have
been avoided?
(d) Whether any suicidal tendencies/depressed state of individual was
noticed by superiors/peers? If so, what steps were taken by such
superior/peer to remedy the same.
(e) Whether the deceased was under psychiatric care?
(f) Was the death/suicide due to a wrongful act/negligence/ill-
treatment on the part of any person ?
(g) Whether the NOK has submitted any complaint/representation on
the alleged suicide to the authorities? If so, to take cognizance of such
complaint/representation and inquire into the allegations made therein.
(h) Any representation made by the individual in writing or otherwise
at welfare meetings, etc.
(j) Counseling records of the individual.
(k) Medical category of the individual with diagnosis and date of last
review.
(l) Details about alcohol consumption, amount, regularity/duration
and change in drinking pattern noticed, if any?
(m) Whether in LMC for alcohol dependence? If so, the medical
category.
(n) Details about the financial state-take home pay, details of loan
taken from service/other sources (from Accts section/family).
(o) Any change of behavior noticed in past three months.
(p) Details of sick reports in last six months-causes and disposals.
(q) If suicide note was left by individual, details about the same.

5. To bring on record and deliberate the following documents

(a) Inquest Report of the Civil Police.
(b) Post mortem Report.
(c) Death certificate/Cremation Certificate.
(d) Investigation report by the P&S Unit.
(e) Leave records of the individual, has she denied any leave.
(f) Copy of FIR/Investigation by civil police.
(g) Any disciplinary action taken against the individual in last one
year.
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6. To record findings on the attributability or otherwise of the death to the

AF service.

7. To inquire into the other issue relevant to the incident/alleged suicide.

8. To apportion blame, if any, person found responsible.

9. To make recommendations including these for preventing recurrence

similar incidents in the future.

Date : 01 Dec 12 Sd/-

(DM Singh)
Sqn Ldr
Stn Adjt”

4. The Court of Inquiry examined 18 witnesses and after exhaustive

deliberations recorded the following findings and recommendations (pages

378-384) :-

“FINDINGS

1. Pursuant to the orders of assembling of Court of Inquiry by Air Officer

Commanding, 32 Wg vide Station/Unit Order No. 94/12 dated 29 Nov 11 as
amended vide SRO Sl No 95/12 dated 04 Dec 12. The Court of Inquiry
assembled at 32 Wg on 02 Dec 12 at 1200h and studied the Terms of
Reference. Total 18 Witnesses were examined on oath.

2. The Court after duly deliberating the entire evidence on record with
respect to each issue mandated to be inquired in accordance with the Terms of
Reference finds the following:-

(a) Brief Account of Circumstances Surrounding the Unnatural

Death of Sqn Ldr Anindita Dasgupta.

(i) On 27 Nov 12 Sqn Ldr Anindita attended the farewell

party of 33 SU at Officers’ Mess. She left the party early
after taking permission from Wg Cdr DK Agarwal
(Witness No 5) stating that she wanted to call her
parents from landline. Sqn Ldr Anindita returned home
at around 2230h. Sqn Ldr Vishak Nair (Witness No. 1)
and his wife (Sqn Ldr Anindita Dasgupta) had an
argument in the night of 27 Nov 12 over the issue of her
alleged extramarital affair with Flt Lt Ishan Sharan. After
the argument Sqn Ldr Anindita locked herself in the
room. Sqn Ldr Vishak Nair took his dog out for a walk at
about 2300h and returned home after 15 minutes. On
returning he went to the main bedroom and slept off.
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(ii) At about 0230h on 28 Nov 12 when he woke up he

noticed that light was on in other room. On calling the
name of his wife he did not get any response. Thereafter,
he went outside and called out her name from the
window of the room. On getting no response, he made a
hole in the wire mesh of the window and moved the
curtain with a steel rod. On doing so he saw his wife
hanging from the ceiling fan.

(iii) Thereafter, he informed his Sqn mate Sqn Ldr SP Dora

(Witness No. 2), who also was the SDO (Exhibit ‘B’) for
that day, and subsequently the flow of information to
various authorities followed. The door of the room was
forced open by Wg Cdr H Mishra (Witness No. 3) and
Sqn Ldr SP Dora and found the body motionless. The
DMO, Wg Cdr Sunaina (Witness No. 7) found Sqn Ldr
Anindita Dasgupta dead at about 0340h on 28 Nov 12.

(iv) The police arrived at about 0400 – 1415h on 28 Nov 12,

lowered the body, carried out all relevant photography
of the incident site and the deceased. The body was
thereafter taken to MGH Jodhpur.

(v) As per the Post Mortem Report Sqn Ldr Anindita

Dasgupta died ‘Ashyxia due to Antemortem Hanging’
and the viscera is preserved for chemical and
histopathological examination.

(vi) On the evidence available so far no foul play is

suspected in the death of Sqn Ldr Anindita Dasgupta.

(vii) The above analysis is subject to change in case the

Viscera Report brings to light any evidence contrary to
the evidence available so far.

(b) The following facts were ascertained :-

(i) Suicide was committed by Sqn Ldr Anindita Dasgupta

in the intervening night of 27/28 Nov 12 at OMQ
875/2, DJ Area. Sqn Ldr Anindita was found dead at
around 0340h by Wg Cdr Sunaina (Witness No. 7).

(ii) Sqn Ldr Anindita Dasgupta had come back home at

about 2230h after attending the farewell party of 33
SU at Officers’ Mess on 27 Nov 12 and was not on
official duty at the time of her death. (Witness No. 1
& 5).

(iii) Sqn Ldr Anindita Dasgupta had landed herself in a

precarious situation wherein she was unable to
continue her relationship as a wife with Sqn Ldr
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Vishak due to her extra marital affair with Flt Lt Ishan

Sharan. There was a possibility of loss of face in the
event of the matter coming to the notice of her
parents, owing to their high opinion about her
husband, Sqn Ldr Vishak. Also, Flt Lt Ishan’s refusal to
marry her put additional psychological stress on her.
The emotional turmoil and feeling of helplessness
could have led her to take such a drastic step.
(Witness No. 1, 16 and Exhibit ‘AG’).

(iv) There were no suicidal tendencies/state of depression

noticed in Sqn Ldr Anindita recently, but she showed
signs of a temperamental nature just prior to the
marriage of Flt Lt Ishan Sharan, wherein she cut her
inner arm at three – four places and sent a photo of
the same to Flt Lt Ishan. (Witness No. 1, 5, 6 & 16).

(v) The deceased was not under any psychiatric care

(Witness No. 7).

(vi) The suicide was not due to any wrongful

act/negligence/ ill treatment on the part of any
person. (Deliberations at Page No. 148)

(vii) The NOK has not submitted any

complaint/representation on the suicide of Sqn Ldr
Anindita to the authorities. (Witness No. 1,9,11,13
and Para 4 of Exhibit ‘AG’)

(viii) There are no records found wherein she made any

representation at welfare meetings or otherwise
(Witness No. 9)

(ix) Sqn Ldr Anindita came on posting to Jodhpur in Aug

11. There are no records of written counseling,
however, she was counseled verbally by Wg Cdr DK
Agarwal. She was orally briefed to prepare herself for
the next Category up gradation Board. (Witness No
5)

(x) She was holding the Medical Category A4G1 and last
medical was conducted out on 08 Dec 12.(Exhibit ‘F’)

(xi) No change was noticed in alcohol consumption,

amount, regularity/duration and change in drinking
pattern.(Witness No. 1,6 and 16)

(xii) She was not in LMC for alcohol dependence. (Witness

No. 7)

(xiii) The financial state of Sqn Ldr Anindita was sound. A

temporary PF withdrawal was outstanding, of which
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9 instalments of Rs. 6000/- were paid out of 17.

(Witness No. 8 and Exhibit ‘K’)

(xiv) No significant change in the behavior of Sqn Ldr

Anindita was noticed during the past 3 months
(Witness No. 1,5 & 6)

(xv) She reported sick twice, for Abdomen ache on 14 and

15 Nov 12 (Witness No. 7 and Exhibit ‘G’)

(xvi) No suicide note recovered from the incident site.

(Witness No. 1, 2, 3, 13 and Exhibit ‘AG’)

(c) The following documents have also come on record of Col. The
details are given below :

(i) The Inquest report of civil police.(Exhibit ‘W’ and

‘AG’)

(ii) Post Mortem Report showing the cause of death as

“Asphyxia due to antemortem hanging”. However,
viscera have been preserved for chemical and
histopathological examination at FSL. (Exhibit ‘AG’)

(iii) Death certificate issued by Jodhpur Municipal

Corporation. (Exhibit ‘V’ and “AG’)

(iv) Cremation Certificate. (Exhibit ‘AG’)

(v) Investigation report by No. 8 P & S Unit (Exhibit ‘AG’)

(vi) Leave records of Sqn Ldr Anindita (Exhibit ‘N’)

(vii) Copy of FIR and ‘Aprakritik’ mratyu (Murg) report

(Unnatural Death Report) by civil police. (Exhibit ‘W’
and ‘AG’)

(d) The death of Sqn Ldr Anindita in not attributable to the AF

services due to the following reasons :

(i) As per the documentary evidences produced by witness

No. 5 and Exhibit C Sqn Ldr Anindita was not on official
duty at the time of her death.

(ii) She was found dead at her residence. (Witness No. 1 to

16 and 18)

(iii)There is no causal connection between her death and

service duty. (Deliberations by the Court at page No.
148)
(e) The issues relevant and leading to the suicide of Sqn Ldr
Anindita Dasgupta are brought out below :
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(i) When the couple was in Bareilly, friendship between Sqn

Ldr Anindita and Flt Lt Ishan Sharan grew beyond the
acceptable limits of friendship. Once Sqn Ldr Vishak
caught them coming from the bathroom one after the
other at their CO’s party in Bareilly. That time they
convinced Sq Ldr Vishak that it was nothing but
friendship and it was misunderstanding on Sqn Ldr
Vishak’s part. Sqn Ldr Vishak accepted and told her to
start afresh. He told Flt Lt Ishan Sharan not to maintain
any contact with his wife and concentrate on his
marriage (Witness No. 1 and 16)

(ii) The day when Flt Lt Ishan was getting married Sqn Ldr
Anindita told him that she was upset on him getting
married and wanted him to reconsider his decision of
getting married at that time. When he denied, she sent
him a photo on WHATSAPP showing her freshly cut
forearm at three-four places. (Witness No. 16)

(iii) Sqn Ldr Vishak and Flt Lt Ishan got posted to Jodhpur
and Sqn Ldr Anindita was also posted to Jodhpur on co-
location during the period of Jul-Aug 12 (Witness No. 1
and 16)

(iv) Similar situation, as in Bareilly, had started developing as

Sqn Ldr Anindita and Flt Lt Ishan Sharan started
interacting very often. Flt Lt Ishan again made an error
of judgment, as he again failed to take any step to stop
the situation from developing further. (Exhibit ‘AA’)

(v) Flt Lt Ishan Sharan would visit Sqn Ldr Anindita at her
residence in Sqn Ldr Vishan’s absence and had also
stayed overnight when Sqn Ldr Vishak was on T/D to Goa
from 03 to 07 Nov 12 (Witness No. 14)

(vi) The couple had a fight over the issue of FB chat log
(Exhibit ‘AC) that Sqn Ldr Vishak had seen when Sqn Ldr
Anindita inadvertently left her chat log open on 25 Nov
12.

(vii) The FB chat log indicates that there were no inhibitions

between Sqn Ldr Anindita and Flt Lt Ishan. In the past
also she had written an email to Flt Lt Ishan indicating
the same (Exhibit U)

(viii) Sqn Ldr Vishak thereon wanted a separation from his

wife and had told Sqn Ldr Anindita to inform her parents
about the same. (Witness No. 1)

(ix) SqnLdr Anindita was in dilemma as she did not want to

inform her parents about the decision to separate. Also
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Sqn Ldr Vishak was adamant on his decision to separate.

(Witness No.1)

(x) Sqn Ldr Vishak was insisting that she should inform her
parents about the decision to separate, had informed his
brother and also emailed the same to Sqn Ldr Anindita’s
elder sister (Witness No. 1)

(xi) Possibility of marrying Flt Lt Ishan Sharan being non

existent. She was in a state of emotional turmoil and
feeling of isolation.

(xii) All the above put immense psychological pressure on

her, forcing her to take the extreme step of taking her
own life to escape isolation and helplessness in the
situation she had put herself into.

Blameworthiness

3. The Court after considering the entire evidence on record including the
documentary evidence and deductions drawn by the court, found Flt Lt Ishan
Sharan blameworthy on four counts on which Para 790 (a) of Regulations for
the Air Force 1964 was applied against him on 13 Dec 12. After duly applying
the provisions of Para 790(e) of Regulations for the Air Force 1964, finds Flt Lt
Ishan Sharan blameworthy on following counts (Refer analysis of evidence in
respect of the counts against Flt Lt Ishan Sharan discussed in Para 32 to 62 of
the deliberations by the Court, from page No. 152 to 163):-

(a) Knowing fully well that Sqn Ldr Anindita Dasgupta is married
to Sqn Ldr Vishak Nair, had adulterous relationship with her.

(b) Failing to exercise caution and restraint by staying with Sqn

Ldr Anindita Dasgupta in her house No. 875/02, DJ Area, AFS
Jodhpur in the absence of her husband Sqn Ldr Vishak Nair
during 03 Nov 12-07 Nov 12.

(c) Behaving in a manner unbecoming of an officer by

maintaining extra marital/physical relationship with Sqn Ldr
Anindita Dasgupta, being himself married.

(d) Behaving in a manner unbecoming of an officer by luring

SqnLdr Anindita Dasgupta wife of Sqn Ldr Vishak Nair into a
relationship hereby stealing her love and affection.

Sd. Sd. Sd. Sd.

(H. Bhatnagar) (MK Sharma) (K Sharada) ( MR Kane)
Flt Lt Sqn Ldr Sqn Ldr Gp Capt
Member Member Member Presiding Officer
20 Dec 12 20 Dec 12 20 Dec 12 20 Dec 12
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RECOMMENDATIONS BY THE COURT

1. The Court is of the opinion that cases of this nature are happening in
the society at various levels. In this regard therefore, the IAF is also
not untouched. Modern technology affording quick, easy and mobile
communication capable of running social applications affording 24x7
connectivity is a major contributor to such cases. Technology such as
these cannot be denied and therefore the repercussions also cannot
be avoided.

2. The induction of female officers in the IAF has led to their working in
close quarters with the male officers. Also with both interacting with each
other for major part of the day the likelihood of developing attraction is high.
However, this does not give a reason to enter into an unacceptable
relationship.

3. The Court Recommends the following :-

(a) Disciplinary/administrative action may be initiated against Flt Lt

Ishan Sharan (29675-F) F(P) of 31 Sqn for the counts on which he has
been found blameworthy by the court.

(b) All Air Warriors may be sensitized on their behavior/interaction

with the opposite gender at regular intervals.

(c ) Air Warriors may be encouraged to inform the superior

authorities any social issues, most likely to be first detected by the
peer group, at the first instance.

(d) Air Warriors may be sensitized about the adverse effects of

social media applications available on modern day communication
devices.

Sd. Sd. Sd. Sd.

(H. Bhatnagar) (MK Sharma) (K Sharada) ( MR Kane)
Flt Lt Sqn Ldr Sqn Ldr Gp Capt
Member Member Member Presiding Officer
21 Dec 12 21 Dec 12 21 Dec 12 21 Dec 12

5. In his remarks, the AOC 32 Wing, AF concurred with the findings of the
COI and recommended administrative action against Flt Lt Ishan Sharan. The
AOC-in –C SWAC too concurred with those remarks and recommended
Administrative action for dismissal/removal from service under section 19 of
the Air Force Act as set out below:
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COURT OF INQUIRY UNNATURAL DEATH OF

SQN LDR ANINDITA DASGUPTA (29100-S) ADM FC OF 33 SU AF

Remarks by Commanding Officer

N/A

Date

Remarks by Air Officer Commanding

I concur with the findings and recommendations of the Court of Inquiry.

Administrative action is recommended to be initiated against Flt Lt Ishan
Sharan (29675-F) F(P) of 31 Sqn for the counts on which he has been found
blameworthy by the court. Forwarded for necessary action, please.

Sd.
(S Saju)
Air Cmde
Date: 21 Dec 12 AOC
32 Wing, AF

Remarks by Command Headquarters

1. I Concur.

2. Death of Sqn Ldr A Dasgupta is not attributable to

service.

3. Administrative action against Flt Lt Ishan Sharan for

dismissal/removal under section 19 of AF Act is recommended.

Sd.
(AK Gogoi)
Air Mshl
AOC-in-C
Date 02 Jan 13 SWAC,IAF”

6. Based on the above, the officer was issued with a show-cause notice as to

why he should not be dismissed from service under section 19 of the Air Force

Act, 1950 read with Rules 16 of Air Force Rules, 1969 for misconduct. The

show-cause notice dated 18.01.2013 is set out as hereunder:

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“Tele 011-2301023/5185 Air Headquarters

Vayu Bhawan
New Delhi-110106

Air HQ/C 23407/1655/PS 18 Jan 13

Flt Lt Ishan Sharan (P)

31 Sqn AF attached to 48 Wg AF

SHOW CAUSE NOTICE

1. WHEREAS, you were commissioned in the Indian Air Force on 16 Dec

2007 in the Flying (Pilot) Branch and presently, you are held on the posted
strength of 31 Sqn AF. Before that, you were on the posted strength of 24 Sqn
at Bareilly from 10 Sep 08 to 03 JUL 12.

2. AND WHEREAS, Sqn Ldr Vishak Nair (28893) F(P) of 31 Sqn AF and his
wife Sqn Ldr Anindita Dasgupta (29110) Adm/FC of 33 SU, AF were also posted
at AF Stn Bareilly during the period you were at Bareilly.

3. AND WHEREAS, in Jul 2012, Sqn Ldr Vishak Nair was posted out from AF
Stn Bareilly to Air Force Station Jodhpur along with his wife Anindita Dasgupta.
You also got posted out from AF Stn Bareilly to the unit of Sqn Ldr Vishak Nair
and you joined at Jodhpur along with your wife Mrs Tamanna in Jul 12.

4. AND WHEREAS, Sqn Ldr Anindita Dasgupta was found hanging from the
ceiling fan of her room in the intervening night of 27/28 Nov 12 at the Service
Quarter No OMQ No. 875/2 DJ at AF Stn Jodhpur.

5. AND WHEREAS, a Court of Inquiry ( C of I) was held at AF Stn Jodhpur on

2 Dec 12 and subsequent days to investigate the circumstances under which
Sqn Ldr Anindita Dasgupta (29110-S) Adm/FC of 33 SU AF was found dead at
the said Service quarter.

6. AND WHEREAS, 18 witnesses were examined before the C of I, which

apportioned blame to you on the following counts :-

(a) Knowing fully well that Sqn Ldr Anindita Dasgupta is married to Sqn Ldr
Vishak Nair, had adulterous relationship with her.

(b) Failing to exercise caution and restraint by staying with Sqn Ldr Anindita
Dasgupta in her house No. 875/02, DJ Area, AFS Jodhpur in absence of
her husband Sqn Ldr Vishak Nair during 03 Nov 12 – 07 Nov 12.

(c) Behaving in a manner unbecoming of an officer by maintaining extra

marital/physical relationship with Sqn Ldr Anindita Dasgupta, being
himself married.

(d) Behaving in a manner unbecoming of an officer by luring Sqn Ldr

Anindita Dasgupta wife of Sqn Ldr Vishak Nair into a relationship thereby
stealing affection of the wife of brother officer.
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7. AND WHEREAS, the evidence on record in the C of I proceedings inter-

alia reveals in clear terms that you shared an amorous relationship with Sqn
Ldr Dasgupta; used to be with her at her quarter during the absence of her
husband; were involved in telephonic conversation of exceptionally long
durations with her; and exchanged e-mails with her showing intense intimate
relationship between two of you. You have made a statement on 14 Dec 12
wherein, you admitted the relationship between you and Sqn Ldr Anindita
Dasgupta was improper. You further stated that at AF Stn Bareilly, the
relationship between you and Sqn Ldr Anindita Dasgupta reached a point
wherein she confessed her feelings towards you and you also reciprocated the
same and did not take any action to stop such development. After sometime,
when she expressed her desire to leave Sqn Ldr Vishak and marry you, you
decided to back off. At Jodhpur also, you felt that the situation akin to the one
at Bareilly was developing and there was an error of judgment again on your
part as you failed to take any step to stop it.

8. AND WHEREAS, in its deliberations the C of I has observed that the

commission of suicide by Sqn Ldr Dasgupta as a sequel to arguments between
Sqn Ldr Vishak Nair and Sqn Ldr Dasgupta on the issue of your illicit
relationship with her.

9. AND WHEREAS, after having considered the C of I proceedings, Chief of

the Air Staff is satisfied that the counts of blameworthiness stated at para 6
ibid, have been fully substantiated by the evidence on record. The CAS is also
satisfied that various acts of misconduct on your part, as established in the C of
I proceedings, are contrary to the letter and spirit of Air HQ policy on the issue
of ‘Indecent and Scandalous Behavior’. Air Warrior’s issued vide Air
HQ/25402/3/Lgl dated 04 Feb 10.

10. AND WHEREAS, the CAS is of the view that issues established in the C of I
proceedings, involve and have a bearing on personal relationships between
different individuals and need not be brought out in public domain. The CAS is
therefore satisfied that in the facts and circumstances of the instant case, your
trial by a Court Martial is inexpedient, but in view of gravity of the misconduct
established against you, your further retention in the Service is undesirable.

11. AND WHEREAS, the CAS has directed that the instant Show Cause Notice
be issued to you in terms of Rule 16(4) of the Air Force Rules, 1969.

12. NOW THEREFORE, you are to show cause as to why you should not be
‘dismissed’ from the Service under Section 19 of the Air Force Act, 1950 read
with Rule 16 of the Air Force Rules, 1969 for your above stated misconduct.
Your reply, if any, to this Show Cause Notice giving all business you wish to
urge in your defence against the proposed action, is to be submitted to your
Commanding Officer within 14 days of receipt of this Show Cause Notice by
you, failing which it shall be assumed that you have nothing to urge in your
defence and further action as deemed appropriate against you shall be taken
accordingly.

13. A copy of the above said proceedings of the C of I held at AF Stn Jodhpur
is annexed.
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14. The receipt of this Show Cause Notice be acknowledged.

Sd.
(SV Kute)
Gp Capt
Jt JAG (Air)
For CAS”
Annexure: Proceedings of C of I

7. On 05.02.2013 the applicant replied to the show-cause notice in which

he has taken his defence as under:

“48 Wg, AF
C/O 56 APO

05 Feb 13
The Chief of Air Staff
Air Headquarters
Vayu Bhawan
New Delhi – 110006.

REPLY TO SHOW CAUSE NOTICE

1. Apropos the Show Cause Notice dated 18 Jan 2013 issued by Gp Capt SV
Kute, Jt JAG (Air) regarding the proposed action to dismiss me from the Indian
Air Force as envisaged in terms of Section 19 of the Air Force Act, 1950 read
with Rules 16 of Air Force Rules, 1969 for my alleged misconduct of:

(a) Knowing fully well that Sqn Ldr Anindita Dasgupta is married
to Sqn Ldr Vishak Nair, had adulterous relationship with her.

(b) Failing to exercise caution and restraint by staying with Sqn

Ldr Anindita Dasgupta in her house No. 875/02, DJ Area, AFS
Jodhpur in absence of her husband Sqn Ldr Vishak Nair during
03 Nov 12 – 07 Nov 12.

(c) Behaving in a manner unbecoming of an officer by maintaining

extra marital/physical relationship Sqn Ldr Dasgupta being
himself married.

(d) Behaving in a manner unbecoming of an officer by luring Sqn

Ldr Anindita Dasgupta wife of Sqn Ldr Vishak Nair into a
relationship thereby stealing affection of the wife of brother
officer.

2. As a sequel of the aforesaid directions I am submitting my reply to the

Show Cause Notice on points of facts, for your kind consideration, please.
 16

3. In the instant case a Court of Inquiry was convened by the written order
of Air Officer Commanding Air Force Station, Jodhpur to inquire into the
circumstances under which the lady officer Sqn Ldr Anindita Dasgupta (19110-
S) Adm/FC of 33 SU, AF was found dead in OMQ No. 875/2 DJ at AF Stn
Jodhpur on 27/28 Nov 2012 The Scope of the Court of Inquiry is given in the
Terms of Reference. The main focus of the Court of Inquiry was to circumscribe
by way of inquiring into the circumstances under which the lady officer Sqn Ldr
Anindita Dasgupta was found dead on 27/28 Nov 2012.

4. The Court of Inquiry was to broadly outline whether it was case of

Murder or a Culpable Homicide not amounting to murder or in case it was a
case of committed suicide then whether the reasons which compelled the lady
officer to take such a drastic step was related and attributable to military
service/service conditions in the Air Force. Alternatively, if the suicide was
committed due to any personal reasons than to pinpoint the strong nexus
between that ‘cause’ and ‘death’. It would be agreed that that there should be
a strong nexus so as to apportion the blame to anybody rather than a remote
nexus as these days for refusal of leave or not getting choice postings or not
empanelled for promotion also military personnel have taken their own life.
Inter alia much beyond its limited and circumscribed scope the Court of Inquiry
has blamed me for Adultery with the Lady Officer in the First Charge as also
Extra Marital relationship in the Third charge meaning the same and only
duplicating it.

5. In this particular case it is a matter of serious concern that right from

0230 hrs when Sqn Ldr Vishak Nair first saw his wife hanging no Air warrior
made even an effort to get the hanging body down. There is a remote
possibility of her having lost her consciousness also and the correct action
would have been to get the body down and at least make an effort to retrieve
her before pronouncing her dead. No officer and even Medical Officer brought
the hanging body down till 0440 hrs implying that the medical declaration of
death was also done when she was still in a hanging position. Only when the
Civil Police came with a Lady Constable was the lady officer brought down,
which is most unfortunate.

6. Further, assuming but not admitting that I am guilty of committing the

misconduct as alleged in the SCN, it was a mere error of judgment and not any
wrongful intention on my part. In P. Ramanatha Aiyar’s Advanced Law
Lexicon, 3rd Edn. at p 3026, the term misconduct has been defined as under:

“The term ‘misconduct’ implies a wrongful intention, and not a mere error of
judgment….. Misconduct is not necessarily the same thing as conduct involving
moral turpitude. The word ‘misconduct’ is a relative term, and has to be
construed with reference to the subject matter and the context wherein the
term occurs, having regard to the scope of the Act or statute which is being
construed, ‘Misconduct’ literally means wrong conduct or improper conduct”.

7. I have categorically stated in my statement dated 14 Dec 12 that my

feelings in Aug-Oct 2011 towards Sqn Ldr Dasgupta was a mere error of
judgment on my part and as soon as I realized the same, I have not harbored
any feeling or maintained any relationship with Sqn Ldr Anindita Dasgupta
 17

other than friendship and that too with the concurrence of my wife Mrs.
Tammana Sharan and Sqn Ldr Vishak Nair, husband of Sqn Ldr Anindita
Dasgupta. In fact, it was the suggestion of Sqn Ldr Vishak Nair that we should
interact socially. Also, it is said that women have a sixth sense which senses
such feelings in their husbands towards other women but my wife was quite
comfortable with our friendship.

8. If it is hypothetically correct that I had an adulterous relationship with

her then the lady should have been very happy on the prospect of separating
from her husband. Then she would not have felt abandoned and there would
not have been any reason for her to take such a course of action. Also, not a
single Air Force officer out of the 18 witnesses in the Court of Inquiry with
whom I was closely associated in official and private capacity have noticed
anything wrong with our friendship. Even the husband of the lady i.e. Sqn Ldr
Vishak Nair (Witness No. 1) has not made any allegations of adultery against
me nor has he stated in no unmistakable terms that he had had seen both of us
in compromising situation and position. In fact, it is even the case in the SCN
that when Sqn Ldr Anindita Dasgupta expressed her desire to marry me, I
decided against it. The said action on my part goes a long way to establish the
integrity of my character and also the fact that I never intended to ‘steal the
affection of the wife of a brother officer’ and create any disharmony in their
marital life. Therefore, on the basis of the fact of my case and the evidence on
record, any error of judgment on my part must be excluded from the expression
‘misconduct’ and I should not be awarded with most grave and extreme
punishment of ‘dismissal from service’. Sqn Ldr Vishak Nair getting angry
seeing the Face Book Chat Log is quite natural but the chat was also of Aug
2011 period and the date of suicide is 27/28 ov 2012. The e-mail that the lady
had sent to me in Mar 2012 had been discovered by Sqn Ldr Vishak Nair and he
was aware of her feelings towards me at that stage. Undoubtedly the cause of
death has rightly brought out by APM in his report is that the lady officer was
unable to manage sustenance of her marriage where her husband had made it
clear that night that a Civil Suit for Divorce (Mutual/Disputed) is on the cards
very shortly. Even when she came back from the party that night there was no
sign on her husband accepting her. This action of her husband may be
absolutely right in his line of thinking being his personal matter but the guilt
she was having of facing her parents/sister in this embarrassing situation of
divorce could have triggered her to take this impromptu impulsive decision in
haste to end her life by hanging herself, to this unfortunate tragic death.

9. The most important ingredient of this offence of Adultery in terms of

Section 497 of IPC is that the accused must have had a sexual intercourse with
the woman. In my case, there is admittedly no sexual intercourse with the
deceased Sqn Ldr Anindita Dasgupta and as such the most essential ingredient
for commission of the offence of adultery is not present in my case. Here, Sqn
Ldr Vishak Nair getting offended on 27 Nov 2012 by the contents of Face Book
Chat log of Aug 2011 which was inadvertently discovered by him was justifiable
but that does not mean that an adulterous relationship is going on. If he had a
prima facie opinion of a possible adulterous relationship he should have
corroborated the same by confronting me, but his interaction with me
remained friendly throughout. Thus, only on the basis of bare allegations and
assumptions, presumptions and hypothesis of Mrs. Anju (witness No. 14) and
her so called experience in such matters, it cannot be said that I was guilty of
 18

having an adulterous relationship with the deceased. If she had seen me

sleeping in the bed with my leg over the leg of Sqn Ldr Anindita Dasgupta then
the bedroom door could have been open for her to enter. However, in her
statement earlier she had mentioned herself that whenever I would enter the
bedroom, the door would remain latched from inside. If it was true, she would
have told the officer and other maids and in an Air Force Station this news
would have spread like wild fire. In another instance, in her initial statement
she claimed that I had stayed at Sqn Ldr Anindita’s residence for 24 hours,
however, when confronted during cross examination she admitted to not
having seen me for 24 hours.

10. It may be pertinent to point out the inconsistencies in Mrs. Anju’s

statements with the facts on ground, such as:-

(a) She has stated that Sqn Ldr Vishak Nair and Anindita had
complete faith in her. However, Sqn Ldr Anindita had
mentioned in front of the Sqn ladies at CO’s residence on the
occasion of Wg Cdr Ashish Kumar’s farewell that she was not
happy with the attitude of her maid servant and was looking
for a change.

(b) She has stated that she used to cook non veg on weekends
during our get togethers and also removed the sofas and the
centre table for us. But Sqn Ldr Anindita used to cook non veg
always on her own since she did not prefer her maid servant’s
cooking , and sofas etc. used to be pushed out by us and we
never asked the maid servant to do so, which has been
contradicted by her itself when she has stated later on that
everybody used to push the sofas aside while dancing.

(c) She has stated that I did not visit their house even once when
Sqn Ldr Anindita’s parents had been visiting. The truth is that I
along with my wife had visited them twice at her residence and
also had gone for a movie with them in the company of Sqn Lde
V Banka and his wife.

(d) She has stated that on Sqn Ldr Vishak Nair’s birthday party on
21 Nov 12, she saw me seated next to Sqn Ldr Anindita and my
hand was on her thighs. I would like to state that my wife was
also present in the party along with at least four to five more
officers and anyone would have to be out of his mind to do
such a thing in front of his wife or in public.

11. And the statement of this witness has been made the sole basis for
indicting me for above mentioned charges.

12. Importantly it is sheer common sense and prudence that any person
engaged in this type of adulterous relationship would do so totally
clandestinely and here as the maid-servant states that the bedroom and even
the servant quarter entrance door is left open for her eyes. It is sheer absurdity
that the summary of the statement of maid- servant and her deposition has
 19

directly resulted in the Show Cause Notice for termination of the services of a
promising Fighter Pilot, apart from being conferred the prestigious Chief of Air
Staff Sword of Honour, on whom the Nation has spent crores of rupees. It may
be worth mentioning that I bagged all the trophies in the Air Force stream and
first in academics at NDA and all the awards at the Air Force Academy as well.

13. Further, by reason of Section 198 (1) & (2) of the CrP.C. 1973, a
complaint of adultery can be made only by the ‘person aggrieved’ by the
offence i.e. by the husband of the women. In my case, there has never been any
grievance of Sqn Ldr Vishak Nair that I was having an adulterous relationship
with his wife nor did he make any complaint to the said effect with the higher
authorities or even raise the issue with me.

14. Here the husband bases his possibility prima facie not on physically
catching his wife in a compromising situation or photographs or any
documentary/oral evidence. The Aug 2011 Face Book Chat Log does not discuss
about any nefarious physical activities of adulterous relationship at all. It is
just a long chat. There are thousands of boys and girls or men/women who
chat for 2-3 hours across the globe when they have not even met in person let
alone physical relationship. It could be termed as having a fad or a liking at
best and here I have been mature enough to convince her to show her loyalty
towards her own husband by maintain the institution of marriage and me
mine. If she had a strong liking for me does not mean that I had reciprocated.

15. That the second count of misconduct alleged against me is that I failed
to exercise caution and restraint by staying with Sqn Ldr Anindita Dasgupta in
her house No. 875/02 DJ Area, AFS Jodhpur in absence of her husband Sqn Ldr
Vishak Nair during 03 Nov 12 – 07 Nov 12. Again, the said allegation is based
on the assumption, presumptions and hypothesis of Mrs. Anju (witness No.14)
and as a result of the resentment she must have harbored towards me. Mrs
Anju has taken money from me on a couple of occasions on various pretexts. I
had one given her Rs. 500/- as she had stated that her son was injured and she
wanted money for his treatment. On another occasion she had taken money
from the pretext of feeding Sqn Ldr Anindita Dasgupta’s dog while the couple
was on leave. I reported the same to Sqn Ldr Dasgupta in whose house Mrs.
Anju was working as a domestic help. Mrs. Anju was rebuked badly by Sqn Ldr
Anindita Dasgupta for putting her in an embarrassing situation by asking
money from her friends. I may have come and gone for some work
occasionally, and during that period I had gone to lend her my car as her
vehicle was unserviceable. A few minutes or an hour does not mean staying for
24 hours from 03 to 07 Nov 2012. The Court of Inquiry, instead of taking into
account the statement of the neighbours as well, has taken her statement as
the Gospel truth and come to this conclusion. Mrs. Anju has also been proved
to be false in her accusation that Sqn Ldr Vishak Nair saw me in the bed room
of Sqn Ldr Anindita Dasgupta a few days prior to the incident which had
started the fight between them, however, Sqn Ldr Vishak Nair has himself
denied to me the correctness of this statement.

16. As for the 4th charge whether I lured her or not, can be inferred by her e-
mail to me not to proceed for marriage in March 2012 and that I should marry
 20

her after her divorce. To that my response was in the negative and my advice
to her was to ensure that her marriage worked well. I only tried to live upto my
duties of friendship with her and my long conversations with her prior to the
incident were only to pacify the distraught lady and advise her to continue with
her marriage. Also the fact that she was an Air Force officer, senior to me in
service and in age refutes this charge against me. Sqn Ldr Anindita Dasgupta
was known for her extremely out going and friendly nature. There can be
genuine friendships with the opposite sex. Every relationship should not be
seen through a sexual prism. My wife Mrs. Tamanna Sharan was fully aware of
my friendship with Sqn Ldr Anindita Dasgupta and had no objection or
reservation towards the same as was the case with Sqn Ldr Vishak Nair.

17. I came through RIMC, NDA and into IAF. It was by sheer dedication, hard
work and focus, that I performed exceedingly well at the initial stage of
training and finally passed out with the prestigious Chief of Air Staff Sword of
Honour and all the other trophies for the term including the President’s Plaque.
It certainly points to my total dedication for the Air Force per se. The only
mistake of mine is that I should have ended my interaction with her abruptly.
But I chose to stand by her in her times of distress which at that time I felt was
the right thing to do.

18. In view of the aforesaid cogent reasons I am absolutely not culpable for
any of the charges that are made out to be. I pray for a kind and gracious
consideration by the respected Chief of Air Staff, to meet the ends of equity,
justice and fair play.

Sd/-
(Ishan Sharan)
Flt Lt “

8. His reply to the show-cause notice was then considered by the Govt. of

India (Ministry of Defence) which then vide their Order No. Air

HQ/23407/1655/PS/MoD F. Dy. No. 88/CC/D(Air-III))/2013 dated 28th June,

2013 in exercise of the powers conferred by section 19 of the Air Force Act,

1950 read with Rules 16(7) of the Air Force Rules, 1969 ordered that the

applicant be dismissed from service. Primarily, the order (extracts below in

italics) while refuting the contentions raised by the applicant in his reply to the

show-cause notice relied heavily on the Air HQ policy published vide Air HQ

letter No. 25420/3/Lgl dated 4th February, 2010 on ‘stealing the affection of

the wife of a brother officer’, amongst other examples of misconduct, which

 21

stipulates that if such a relationship is established by means of a C of I/Formal

Investigation or other report, no leniency is to be shown to the blamed

individual and prompt action is to be initiated for terminating the services of

such personnel under the relevant rules. The order stated that from “the

evidence on record of the proceedings establishes that Flt Lt Ishan Sharan has

entered into an inappropriate, illicit and amorous relationship with Sqn Ldr

Anindita Dasgupta, wife of Sqn Ldr Vishak Nair and thereby he has

committed misconduct of stealing the affection of the wife of a brother

officer.” The dismissal order also pointed out that “it may be possible that the

relationship was mutual and complimentary, implying that the lady is also an

active and willing partner. In such cases, the onus is upon the air-warrior to

withdraw and desist from having such relationship. The consensual nature of

the relationship does not absolve the individual from the consequences of his

wrongful act or reduce the gravity of his misconduct.” Hence, it concluded

that “the counts of blameworthiness against Flt Lt Ishan Sharan were fully

supported by the evidence on record of the C of I proceedings. The C of I has

been conducted strictly as per the procedure and he was offered full

opportunity to vindicate his stand. The principles of natural justice have been

fully complied with in his case and no prejudice has been caused to him.” It

concluded that, “misconduct of Flt Lt Ishan Sharan is so grave and serious in

nature that his further retention in Service is undesirable” and accordingly

ordered his dismissal him from Service.

9. The learned counsel for the applicant commenced his arguments with

the statement that the first witness in the C of I was the husband of the

deceased, Sqn Ldr Vishak Nair, who raised a serious allegation against the

applicant having a highly inappropriate relationship with his wife Sqn Ldr
 22

Anindita Dasgupta. The counsel contended that no sooner had this been

alleged, the C of I should have invoked para 790 of the Regulations for the Air

Force 1964 (Reprinted Edition 2003), (hereinafter referred to as ‘the

Regulations’) so that the applicant Flt Lt Ishan Sharan could have been

available throughout the C of I in order to hear the deposition of the witnesses

and have the liberty to cross-examine them but instead on the same day the

applicant was sent away on temporary duty. Para 790 of the Regulations

(relevant extracts) is reproduced as under :-

“790. Action when Character, etc, of Persons is affected.

(a) As soon as it appears to the court that the character or professional

reputation of an officer or an airman is affected by the evidence recorded, or
that he is to blame, the affected person is to be so informed by the court. All
the evidence recorded up to that stage is to be read over to the affected
person, and the court is to explain to the person, if so required by him, how, in
its opinion, it appears that the officer’s or airman’s character or professional
reputation is adversely affected, or how he appears to be to blame.

(b) From the time an officer or airman is so informed, in accordance with

sub-para (a) above he has the right to be present during all the ensuing
proceedings, except when the court is deliberating privately. The fact that an
officer or airman to whom this para applies is or is not present will be recorded
in the proceedings.

(c ) The affected officer or airman may, if he so desires, cross-examine any

witness whose evidence was recorded prior to the action taken under sub-para
(a) above. He may, likewise, cross-examine subsequent witnesses after their
statements have been recorded. He may also request the court to record the
evidence of any witness in his defence. The officer or airman may make any
statement in his defence.

(d ) In case the officer or airman affected cannot, for any reason be present
to exercise his privilege under sub-paras (a), (b) and (c) above, the court is to
inform him by letter (or otherwise as may be convenient) of the reasons why, in
the opinion of the court, his character or professional reputation appears to be
affected, or he appears to be to blame. The affected person may make a
statement in writing in denial, exculpation, or explanation. The statement is to
be attached to the proceedings, and the court is to endeavour, by examining or
recalling witnesses, to accord, to the affected person, such protection as is
intended in sub-paras (a), (b) and (c) above.
 23

(e) If, after recording, all the evidence, and after taking such action under
sub-paras (a) to (d) above as may be called for in the circumstances, the court
is of the opinion that an officer or airman is to blame, or that his character or
professional reputation, is affected, the entire proceedings are to be shown to
the affected person, and he is to be asked whether he desires any further
statement to make. Any such statement is to be recorded, and fresh points are
to be fully investigated by the court.

(f) The findings, and recommendations, if called for, of the court may then be
made in accordance with the terms of reference.

(g) An officer or airman to whom sub-para (a), (b), (c) or (d) applies does not
have the right to demand that the evidence be taken on oath or affirmation, or,
except so far as the assembling authority or the court may permit, to be
represented by a solicitor or other agent.

(h) xxxx
(j) xxxx
(k) xxxx

10. Thereafter, 15 witnesses were examined in the absence of the applicant

and the applicant was summoned as the 16th witness.

11. The learned counsel for the applicant relied on many judgments

commencing with a judgment of the Armed Forces Tribunal, Principal Bench,

on 01.05.2013 in the case of Col Kamal Deep Singh vs. Union of India &

Others in OA 93 of 2012, in which the Tribunal held as follows :

“21. --------- But after going through the finding of the Court of Inquiry we
find that the conduct of the Court of Inquiry is totally in violation of Rule 180 of
the Army Rules. The Army Rules 180 is very sacrosanct and it gives the full
opportunity to the incumbent against whom it is invoked when military
reputation and character is involved. In this case we find that rule was
invoked against the petitioner. That means Rule 180 was invoked right from
the beginning and in that 14 witnesses were examined in presence of the
petitioner but subsequently remaining witnesses i.e. upto 48 witnesses were
examined when petitioner was asked to go out and the deposition of the
remaining witnesses were taken and copies of statement was given to him
for cross-examining those witnesses by calling them again. It is true that
petitioner was give opportunity to cross examine these witnesses, but this
conduct of Court of Inquiry of asking the person against whom Rule 180 has
been invoked to go out and examine large number of witnesses in his
absence is something unheard of. The Rule 180 clearly mandates that the
incumbent should be given full opportunity to participate and to remain
present throughout. It is a very salutary rule and peculiar of Army Act. The
Court of Inquiry of recording the statement of witness in absence of the
 24

accused when he was present by asking him to go out and thereafter taking
the examination-in-chief and then giving copies thereof to the accused to
cross-examine witnesses is not in true spirit of Rule 180. It may be because of
the presence of accused being CO, witnesses might be intimated in his presence
and may not come forward to tell the truth but this is no ground to deny the
petitioner a fair opportunity. It was quite possible for the respondent to have
suggested the transfer of the petitioner from the Command that could have
avoided the embarrassing situation for the witnesses of any other methods
could have been employed to see that the witness are not terrorized by the
presence of the officer. But it is not permissible to ask the delinquent against
whom the Rule 180 has been invoked to go out and record the examination-
in-chief in his absence. This is not true spirit of invoking Rule 180 and we
cannot subscribe to this. The participation throughout inquiry is a must.
Therefore, this illegality in conducting of Court of Inquiry goes to the root of
the matter and this renders the entire Court of Inquiry vitiated.

22. ---------But in the present case, the Court of Inquiry was totally against
the true spirit of AR 180 and that cannot be sustained. Therefore we hold
that the Court of Inquiry was bad in the law.” (Emphasis added)

12. The learned counsel for the applicant the stated that this judgment

should be applied mutatis mutandis to this instant case. He also relied on

another case, that of Lt Col RD Sharma vs. Union of India & others decided by

the AFT, Regional Bench, Chennai on 12.09.2013 in OA 52 of 2013, where it set

aside the attachment order of a C of I due to violation of Rule 180. In this

decision the Tribunal held as follows :

“The import of this Army Rule is that whenever character or military reputation
of a person is involved, he must be given full opportunity to be present
throughout the inquiry to make any statement and give any evidence or to
cross- examine any witnesses whose evidence in his opinion affects his
character or military reputation. Presence of the person throughout the inquiry
is the basic feature of the Army Rule 180. In the absence of compliance of this
Rule the Court of Inquiry stands vitiated since the delinquent was not permitted
to participate when the examination of witnesses was in progress. Army Rule
180 is a salutary rule and peculiar to Army Act. The requirements of Rule 180
are mandatory as held by the Hon’ble Apex Court and Delhi High Court in a
number of cases. The reason for making Rule 180 as mandatory is that it
incorporates the principles of natural justice which alone can ensure fair trial to
a person whose character or military reputation is in danger. In the case of Lt
Col Prithi Pal Singh Bedi v. Union of India reported in (1982) 3 SCC 140, at
page 176, the Hon’ble Apex Court held,

“Rule 180 cannot be construed to mean that whenever or wherever in any

inquiry in respect of any person subject to the Act his character or military
reputation is likely to be affected setting up of a Court of enquiry is sine qua
non. Rule 180 merely makes it obligatory that whenever a Court of enquiry is
 25

set up and in the course of enquiry by the Court of Inquiry character or military
reputation of a person is likely to be affected then such a person must be given
full opportunity to participate in the proceedings of Court of enquiry. Court of
Inquiry by its very nature is likely to examine certain issues generally
concerning a situation or persons. Where collective fine is desired to be
imposed, a Court of enquiry may generally examine the shortfall to ascertain
how many persons are responsible. In the course of such an enquiry there may
be a distinct possibility of character or military reputation of a person subject
to the Act likely to be affected. His participation cannot be avoided on the
specious plea that no specific enquiry was directed against the person whose
character or military reputation is involved. To ensure that such a person
whose character or military reputation is likely to be affected by the
proceedings of the Court of Inquiry should be afforded full opportunity so that
nothing is done at his back and without opportunity of participation.”

In the case of Lt Gen S.K. Sahni vs. COAS, in W.P. (C) No. 11839/2006, Delhi
High Court held,

“19. While spelling out in unambiguous terms, the different protections

available to a person under Rule 180, a Division Bench of this court in the case
of Col A.K. Bansal v. UOI and others, CWP 1990/88, decided on 18.1.1991 while
quashing the proceedings of the court of inquiry and their findings and the
penalty of severe displeasure imposed upon the petitioner in that case, held as
under:-

“The rule incorporates salutary principles of natural justice for a fair trial and
full right of being heard, to a person whose character or military reputation is
likely to be affected in a court of enquiry. Four rights are expressly recognized
–(1) The officer has a right to be present throughout the enquiry meaning
thereby that the entire evidence is to be recorded in his presence; (2) of
making statement in defence (3) cross-examination of the witnesses whose
evidence is likely to affect his character or military reputation. It is the
judgment of the person whose reputation is in danger to testify as to whether
an evidence of a particular witnesses is likely to affect his character or military
reputation, and (4) such a person has a right to produce evidence in defence
of his character or military reputation. It is the mandatory duty of the presiding
officer not only to make all these opportunities available to the person whose
character and military reputation is at stake but no that person is fully made to
understand all the various rights mentioned in that said rule.”

In the case Col Kamal Deep Singh vs. UOI and others, in O.A. No. 93 of 2012,
the Principal Bench, Armed Forces Tribunal, New Delhi, held,

“Therefore, we are of the opinion, so far as the conduct of this Court of Inquiry
cannot be sustained because of the breach of principle of natural justice under
rule 180 of the Army Rules.”

In the case of Major Harbhajan Singh vs. The Ministry of Defence and ors.
decided by Delhi High Court in C.W. 204 of 1975, it was held,

“15. I, therefore, hold that the findings of guilt against the petitioner
recorded by Court of Inquiry are vitiated by the facts that the relevant
 26

witnesses were not procured by the Court for ascertaining the existence of
relevant facts and by denying the opportunity of citing defence witnesses to
the petitioner. The evidence of other witnesses for prosecution was found
sufficient by the Court of Inquiry for holding that the prosecution case was
proved but the legal infirmity is that the defence evidence was not allowed and
assessment was one sided.”

The Delhi High Court in the case of Major General RK Loomba in W.P.(C) No.
3831/2007 page 28 has held:

“The Delhi High Court in the case of General Officer Commander-in-Chief v. R.P.
Shukla 10 SCC 294, at page 295, has held,

“5. The High Court vide its judgment dated 4.1.1996 allowed the writ
petition on the sole ground of non-observance of Army Rule 180 and
accordingly set aside the entire proceedings of the Summary Court Martial
including charge-sheet dated 9.4.1992 and also set aside the punishment
awarded to the respondents therein with a further direction that they will be
entitled to be reinstated in the services. Being aggrieved by the above
judgment, the appellant has preferred the present appeal in this Court.”

In Chopra vs. UOI and Ors., AIR 1982 SC page 1413, it has been held, “The rule
is eminently in public interest, there is one other reason why the
requirements of Rule 180 are to be strictly interpreted, the normal protection
of fundamental rights of the provisions of Article 311, available to the civil
servants under the Union or a State are not available to military personnel.
The army personnel must maintain high degree of efficiency and preparedness
at all the times and the same cannot be maintained effectively unless every
member of the armed forces is able to see fair play in action.”

In the backdrop of the above judgments, it is well-established that Army Rule

180 is sacrosanct and non-compliance with Army Rules 180 would render a
Court of Inquiry vitiated and the proceedings would be liable to be set aside.”
(Emphasis added)

13. The learned counsel for the applicant then also highlighted from the

relevant extract of C of I that there is no iota of proof that an adulterous

relationship existed between the applicant and the deceased lady officer as is

made out to be. Importantly, Sqn Ldr Vishak Nair, the husband of the deceased

lady officer had never made any complaint against the applicant especially so

regarding adultery as by law he is the only person who can lodge a complaint

against any person for an adulterous relationship with his wife. Even in his

statement to the Civil Police at Jodhpur Sqn Ldr Vishak Nair had never pointed
 27

out a finger against the applicant. The counsel stressed that the only shred of

evidence regarding the intimacy between the two was a ‘Facebook Chat Log’

of August 2011 (over a year old) between the applicant and the deceased lady

officer which triggered a lot of animosity between Sqn Ldr Vishak Nair and his

wife so much so that he threatened her for initiation of divorce proceedings.

The learned counsel emphasized that the exact reason as can be made out for

committing suicide was the trauma and embarrassment of the expected

divorce which the deceased lady officer may have felt. He argued that this

alone does not in any way lead to the only conclusion of the alleged adulterous

relationship of the applicant with the deceased lady. He reiterated that so far

as a charge of adultery is concerned, the complaint can be filed by the

husband of the lady against whom adultery is made out in terms of Section

198(1) and (2) of the Code of Criminal Procedure, 1973. He argued that it was

apparent that the lady officer committed suicide only because of her husband

was threatening her with divorce, which might have led to her embarrassment

in front of parents and relatives. He also highlighted that the C of I hinged

mainly on the deposition of the maid servant who stated that the applicant

used to come to the house even when the husband Sqn Ldr Vishak Ldr was

away on temporary duty. This statement of the said maid servant was not

corroborated by the neighbours.

14. The counsel also highlighted out some other contradictions and

discrepancies in the proceedings of C of I and lastly argued that in the

impugned termination order para (k) on page 10 it is stated that ‘in a C of I

nature of proof revolves around probability and not the conclusive proof which

is required in a disciplinary action’. The counsel also brought out that when

the applicant was earlier in Bareilly the applicant informed the lady of his
 28

impending marriage and when she told him that she would divorce her

husband and get married to the applicant, he (applicant) tried to put good

sense into her. Despite this, she cut her forearm in three-four places and sent

him a photo on ‘Whatsapp’, which indicated her infatuation with the applicant.

Even the Facebook Chat Log pointed out to this one-sided infatuation. Hence,

in order to avoid the shelter of a Court Martial where acquittal could cause

more embarrassment to the Air Force, they took recourse to an administrative

termination order. Based on the above, the counsel for the applicant has

sought relief by arguing that this Tribunal may be pleased to quash and set

aside the impugned MoD order of 28th June, 2003 and reinstate the applicant

back in military service with all back wages, seniority, etc. He also highlighted

the excellent track record of the applicant wherein the applicant stood first in

a number of subjects right from his training at the National Defence Academy

to the Air Force Academy where he won 7 awards including the coveted Sword

of Honour and later at the Elementary Flying School where he was adjudged

the best overall fighter pilot.

15. The respondents in their Affidavit-in-Opposition have relied heavily on

the Court of Inquiry and have highlighted that the main reason for the suicide

of Sqn Ldr Anindita Dasgupta could be traced to the highly inappropriate

friendship beyond normal limits that she had with the applicant as observed by

her husband. The respondents also relied on the four important issues that

have been brought out in the C of I (supra) and in the contention of the

applicant.

a) In December 2011, the deceased told the applicant that she

wanted to leave her husband and wanted to marry him. On which

 29

the applicant told her that it was not possible as he was due to get

married in March, 2012.

b) In February, 2012, Sqn Ldr Vishak Nair happened to read his wife’s

e-mail meant for the applicant and found the contents of the e-mail

highly inappropriate and when her husband called both of them to

explain their behavior, she had explained that they were just friends

and nothing beyond. Sqn Ldr Nair decided to give them a chance

and move on with life. He also told his deceased wife to limit her

interaction with the applicant.

c) On 24th November 2012 night when the husband of the deceased

was on ORP duty, he noticed that many calls were made on 23rd

November 2012 night from the ORP AFNET Phone 35207322 to his

wife’s mobile No.8560050022 and to her AFNET phone of 33 SU,

where his wife was on night duty on that night. These revealed that

five calls, one of which was 3661 seconds duration (approximately 1

hour) were made from the said phone. It further revealed that on

the night of 23rd November 2012 the applicant was on ORP duty

and the said calls to the wife of Sqn Ldr Nair were made by the

applicant. Also it was revealed that the applicant had received

incoming calls from the deceased wife’s AFNET No. on the same

night and they had spoken for about 6213 seconds (approximately 1

hour 40 minutes duration). When Sqn Ldr Nair confronted his wife

with these calls she had nothing to state.

d) Further, on 25th November, 2012, the deceased’s husband had a

chance to visit the face book chat history of his wife with the

applicant, which had occurred in August 2011, in which his wife had
 30

amongst other wishes had also stated that she wanted to get

pregnant with the applicant’s baby, before being posted out.

e) All these factors led to him get angry with his wife and he asked

for separation.

16. The respondents stated that it was also revealed that on 27th

November, 2012 (the fateful night) the applicant also met with the deceased

wife after she left the party and before she reached her home. On that night

when she returned from a party she told her husband that she had changed

her mind and did not want separation. An argument ensued between them

after which the couple retired to separate rooms and as brought out, she

committed suicide on that very night.

17. The respondents thus drew the conclusion that evidently the applicant’s

relationship with the deceased was the immediate cause of arguments

between the husband and his deceased wife prior to the suicide.

18. Relying strongly on the C of I (supra), the respondents have apportioned

blame to the applicant on the following grounds :-

“(I) Knowing fully well that Sqn Ldr Anindita Dasgupta was married to Sqn
Ldr Vishak Nair, had adulterous relationship with her.

(II) Failing to exercise caution and restraint by staying with Sqn Ldr Anindita
Dasgupta in her house NO.875/02, DJ Area, AFS Jodhpur in absence of her
husband Sqn Ldr Vishak Nair during the period of 03 November 2012 to 07
November 2012.

(III) Behaving in a manner unbecoming of an officer by maintaining extra

marital/physical relationship with Sqn Ldr Anindita Dasgupta being himself
married.
 31

(IV) Behaving in a manner unbecoming of an officer by luring Sqn Ldr

Anindita Dasgupta, wife of Sqn Ldr Vishak Nair into a relationship thereby
stealing affection of the wife of brother officer”.

19. The Respondents further brought out that the C of I recommended

Disciplinary/Administrative action against the applicant. The proceedings of

the C of I were examined by the competent authority wherein it was revealed

that the C of I was conducted as per the procedure and the applicant was

afforded all opportunities to defend his case. The evidence on record of the

proceedings fully supported the counts on which blame was apportioned to

the applicant, Flt Lt Ishan Sharan. The evidence on record of the proceedings

established that the applicant had entered into an inappropriate, adulterous

and illicit relationship with Sqn Ldr Anindita Dasgupta, the wife of Sqn Ldr

Vishak Nair and thereby he had committed the misconduct of stealing

affection of the wife of a brother officer. Air HQ policy published vide Air

HQ/25420/3/Lgl dated 04 February 2010 on “stealing affection of the wife of

brother officer” stipulates that if such a relationship is established by means of

a C of I/Formal Investigation or other report, no leniency is to be shown to the

blamed individual and prompt action is to be initiated for terminating the

services of such personnel under the relevant rules.

20. The respondents have also stated that the whole of the proceedings of C

of I were conducted in the applicant’s presence from the stage Para 790 (a),

(b) and (c) of the Regulations (supra) were applied against the applicant. They

have further stated that as per the terms of reference, when the inquiry

commenced, it was not known to the C of I that the character or professional

reputation of the applicant was likely to be blamed and there was no evidence

with the C of I to arrive at any such conclusion. However, as the C of I

 32

progressed and after it having examined and recorded evidence of fifteen

witnesses it came to the conclusion that from the evidence recorded up to

that stage, “the character or professional reputation of Flt Lt Ishan Sharan is

likely to be blamed.” Accordingly, he was called before the C of I and the

provisions of this para, ie para 790 of the Regulations were duly applied

against him. The whole of the evidence on record up to that stage was read

over to him, he was allowed to make statements/additional statements in his

defence and had the opportunity to cross-examine material witnesses at

length. The respondents stated that the principles of natural justice have

apparently been duly complied with during the C of I and no prejudice has

been caused to the applicant.

21. Further, it was argued that the proceedings of the C of I were duly

considered by the competent authority, i.e. the Chief of Air Staff (CAS). The

CAS was of the opinion that the misconduct (stealing affection of the wife of

brother officer) of which the applicant was found blameworthy by the C of I

were so grave in nature that his further retention in service was considered

undesirable. Accordingly, a show cause notice dated 18th January 2013 was

served upon the applicant under Rule 16 of Air Force Rules, 1969 and after

considering his reply dated 5th February 2013 thereto, the CAS recommended

his case to the Central Government for dismissal under Section 19 of the Air

Force Act, 1950 read with Rule 16 of Air Force Rules, 1969. The Central

Government having duly considered the case in its entirety, dismissed the

applicant from service vide Speaking Order dated 28th June, 2013 (supra).

22. The respondents further emphasized that the order of the Central

Government is legal as per the policy and commensurable to the misconduct

of the applicant wherein he was blamed by the C of I based on the evidence

 33

for stealing affection of the wife of brother officer and that no prejudice has

been caused to the applicant. They have also quoted the Air HQ Policy Letter

published vide Air HQ/25420/3/Lgl dated 04 February 2010 extracts of which

are reproduced as under:-

“Tele: 011-23010231/7128
Tele fax: 011-23012144
e-mail: jagair@aoa.iaf.in
Dept of JAG (Air)
Air HQ (VB)
Rafi Marg,
New Delhi-110106

Air HQ/25420/3/Lgl 04 Feb 10

HQ WAC IAF }
HQ SWAC IAF }
HQ CAC IAF }
HQ EAC IAF } (For SOA/SAAASO)
HQ SAC IAF }
HQ TC IAF }
HQ MC IAF }
HQ ANC } (AFCC)

DISCIPLINE : AIR WARRIORS

INDECENT & SCANDALOUS BEHAVIOUR
1. Para 564 of the Regulations for the Air Force, 1964 inter- alia stipulates
that every person in the Air Force is, at all times, to exert his influence
against all that tends to encourage vice and immorality. Every AF
personnel is supposed to conduct himself impeccably. His actions and
deeds have to be aboveboard. If a particular act or omission dishonours
and disgraces the air warrior’s character and seriously compromises his
standing as a member of the combatant force, the Service possesses the
right to take appropriate action against him. It is a settled preposition of
law that if an employee conducts himself in a way inconsistent with the
faithful discharge of his duty in the service, it amounts to misconduct.
That misconduct need not be a misconduct in the carrying on of the
Service or the business. It is sufficient if it is conduct that is prejudicial or
is likely to be prejudicial to the discipline, high traditions or to the
reputation of the Service.
2. In the backdrop of the above, it is proposed to lay down sound guidelines
on the following issues :-
(a) Homosexual conduct.
(b) Stealing affection of the wife of brother officer/airman/NC(E).
(c) Sexual harassment at a work place.
 34

(d) Improper acts in relation to ladies away from the work place.
3. Homosexual Conduct. xxxxxxxxxxx
4. xxxx
5. xxxx
6. xxxx
7. xxxx
8. Stealing Affection of the Wife of Brother Officer/Airman/NC(E). In the
close-knit social environment of the Air Force, it is absolutely imperative
that AF personnel respect the family lives of their colleagues. The
concept of ‘Community-Living’ in the campuses of AF Stations and Units
has a special significance in the lives of AF personnel. The
officers/airmen/ NCs(E) proceed on temporary duties, at times of
considerably long duration, leaving their families behind inside the AF
campuses. While away on temporary duty, there is an implied
confidence that their families are in the safe environment and will suffer
no harm. Therefore, if an air warrior establishes improper liaison/illicit
relationship with the wife of another air warrior, the concept of
‘community-living ‘ in the IAF will be severely compromised.
9. In such cases, it may be possible that the relationship between an Air
Force personnel and the wife of another AF personnel may be mutual
and complimentary, implying that the lady is also an active and willing
partner to such a relationship. In such cases, the onus is upon the Air
Force personnel to withdraw and desist from having such relationship.
The consensual nature of the relationship does not absolve the
concerned Air Force personnel from the consequences of his wrongful
act or reduce the gravity of such misconduct, in any manner. The
emphasis is upon the unbecoming nature of such an act.

10. After such a relationship is established by means of a C of I/Formal

Investigation or other report (s), no leniency is to be shown to the
blamed individual and prompt action is to be initiated for terminating
the services of such personnel under the relevant rules. In the case of
officers and warrant officers, the proceeding are to be forwarded to this
HQ along with the recommendations of the Controlling Command HQ,
for appropriate action.
11.Sexual harassment at a work place. xxxx
12.Improper Acts in Relation to Ladies Away From the Work Place. xxxx
13. xxxxx
14.This supersedes the earlier policy of this HQ issued vide Air HQ/C
23407/173/PS dated 16 May 72. The contents of this letter be
disseminated to all Stations/Units of your Command HQ, for due
compliance.
15.Please acknowledge.
Sd.
(PC Grover)
Air Cmde
JAG(Air)
 35

Copy to
SO to CAS BCO/VCOAS BCO/DCAS BCO/ DG(I&S) BCO/AOM
BCO/AOA BCO/AOP Stn/Units under Air HQ”

23. In so far the applicant not being present during the first few dates of

the C of I, the counsel has stated that the applicant was sent on temporary

duty, not to avoid his presence in the C of I but with a view to avoid any

untoward situation from taking place involving the applicant and Sqn Ldr

Vishak Nair after the death of his wife Sqn Ldr Anindita Dasgupta because it

was known to the environment that the applicant had a relationship with the

wife of Sqn Ldr Vishak Nair which the latter did not approve and there were

rumours that the death might have some connection with the said

relationship.

24. Further, it was not known to the C of I at the commencement of the

proceedings that “the character or professional reputation of the applicant was

likely to be blamed” and to commence with, there was no evidence with the C

of I to arrive at any such conclusion. But as the C of I progressed and having

examined and recorded evidence of fifteen witnesses it came to the

conclusion that character of professional reputation of the applicant was likely

to blame based on the evidence recorded till that stage. Accordingly, he was

called before the C of I and Para 790 (a), (b) and (c) of the Regulations were

duly applied against him.

25. They have further submitted that the ratio of the judgment quoted by

the applicant’s counsel of the Principal Bench of Armed Forces Tribunal, New

Delhi dated 01-05-2013 in the case of Col Kamal Deep Singh vs UOI and Ors

does not apply in the present case as the facts and circumstances of the two
 36

cases are different. So also the ratio of the judgment in the case of Lt Col R.D.

Sharma vs UOI & Ors.

26. The respondents have also relied on the confessional statement dated

14th December, 2012 (Exhibit ‘AA’), which was made by the applicant before an

independent officer and brought out in the C of I wherein the relationship of

the applicant with the deceased was revealed. The confessional statement

made voluntarily in presence of an independent officer is reproduced as

under:

“STATEMENT OF INDIVIDUAL MAKING CONFESSION

I, Flt Lt. Ishan Sharan (29675-F) F(P) hereby make the following confession
voluntarily without the threat, inducement or promise.
I, Flt Lt. Ishan Sharan (29675-F) F(P) hereby state that my relationship with
Sqn Ldr Anindita das gupta was as good friends till Aug 11. At this stage the
relationship reached a point whereas Annee have confessed to me her feelings
towards me and I also reciprocated to the same and didn’t take any action to
stop such development. After sometime I realized that whatever had happened
was not correct and when Annee have expressed her desire to back off and
told the same to her as well. After that whenever she tried to talk about this I
refused to talk about it. Thereafter, after a gap of one month she sent me a
mail, two days before I was proceeding on leave for marriage. This mail was
not seen by me however, Vishak saw this mail and asked Annee to not to stay
in touch with me. However, he didn’t speak to me on this issue.
When I came back from leave after getting married, Vishak spoke to me and
told me that he has forgiven Annee and that I should also forget about all this
and start refresh. Before this, during my leave I had informed my wife about
the entire situation. Thereafter I went for my BASCO and immediately after
returning proceeded on posting to Jodhpur.
At Jodhpur, initially, self, my wife and Vishak were here. And our interaction
was as friends. Annee have joined after a month. And thereafter our
interaction was as couple generally on weekends only.
At Jodhpur also, I could feel that the similar situation was developing as was
the case in Bareilly. However, there was an Error of Judgement on my part
again as I fail to take any step to stop it. I always thought that this was just a
phase which would pass by and didn’t inform any senior officer regarding the
same. That is all Sir.
Sd/- I. Sharan
Flt Lt
14 Dec 12
1515 hrs”
 37

27. The respondents have also relied on the statement of Mrs Anju, Witness

No.14, who had stated that on many occasions she had seen the applicant in

the house of the deceased both while her husband was present and also in the

absence of the husband. She particularly emphasized that the applicant spent

a lot of time with the deceased especially when the husband, i.e. Sqn Ldr

Vishak Nair was absent. She once saw them sleeping together in the bedroom

on a Sunday morning in the first week of November 2012 in each other’s arms.

She also stated that she also used to co-relate the presence of the applicant Flt

Lt Ishan Sharan after hearing his voice from the bedroom window.

28. The other issue that has been highlighted by the respondents is that the

contention of the applicant that Sqn Ldr Nair, the husband of the deceased

never made any complaint or grievance in this regard is not tenable since it is

clear from the record that although he did not file a formal complaint, i.e.

when he came to know of their relationship through the e-mail (Exihibit ‘U’),

he found it to be highly inappropriate and told his deceased wife to stop

interacting with Flt Lt Ishan Sharan. Thereafter he had called both of them and

with a view to give them a chance told them to forget about the past

relationship and to start afresh. Moreover, the respondents have stated that

the main cause of arguments between deceased wife and her husband on the

night of her death was her relationship with the applicant Flt Lt Ishan Sharan.

The evidence on record clearly establishes that he had entered into an

inappropriate, illicit and amorous relationship with the deceased thereby he

had committed misconduct of stealing the affection of the wife of a brother

officer.
 38

29. The respondents have relied heavily on an answer to Question No.162

that the Court of Inquiry made to Sqn Ldr Vishak Nair, which is reproduced as

under :

“Q.162. Did you suspect any physical relationship between Flt Lt

Ishan and Sqn Ldr A Dasgupta?
Ans : Initially not, but after going through their Facebook Chat
History on 25 Nov 12 it became apparent that they must
have been in physical relationship with each other”.

30. Hence, the respondents concluded that the relationship between the

deceased and the applicant was an adulterous relationship and that since this

illicit relationship continued unabated, Sqn Ldr Nair got angry with his wife Sqn

Ldr A. Dasgupta as he told her that he wanted separation from her. She initially

agreed and started living separately in the same house. On 27 November 2012

after returning from the party she told her husband that she had changed her

mind and did not want a separation, after which an argument ensued between

them and later on that night, Sqn Ldr A. Dasgupta committed suicide.

31. We have gone through the pleadings of both the parties, perused the

records of the Court of Inquiry in detail, as also the show-cause notice, its reply

and the detailed final order dismissing the applicant from service.

32. At the outset, it must be stated that this is a most unfortunate and a

dreadful incident wherein not only the applicant, Flt Lt Ishan Sharan and the

husband of the deceased, Sqn Ldr Vishak Nair have been deeply affected and

scarred for life but also their families and close friends as well as the family

and close friends of the deceased. We shall now attempt to analyze the whole

issue in part as well as holistically in order to arrive at a just and fair

conclusion. From the records of C of I and the pleadings on record the

following is apparent:-

(a) The deceased Mrs. Anindita Dasgupta and her husband Sqn Ldr Vishak
Nair fell in love and got married in the year 2008. In the year 2009 while they
 39

were both posted in Bareilly, they developed friendship with Flt Lt Ishan
Sharan, the applicant, who was then a bachelor and in service, junior to them.
However, the relationship between the deceased Sqn Ldr Anindita Dasgupta
and the applicant transcended the norms of friendship to the extent that she,
the deceased, expressed deep love to the applicant which has also been borne
by the e-mail that she had sent him, which is on record, as well as the printout
of 45 pages of a Facebook Chat Log between the two. Her husband Sqn Ldr
Vishak Nair while not suspecting a physical relationship certainly came to know
about the infatuation of his wife for the applicant and advised her to terminate
the relationship.

(b) The applicant during the period in Bareilly also decided to get married to
another lady with whom he was in love and married her (Ms Tamanna Singh)
on 11th March, 2012. However earlier, in December, 2011, according to the
applicant, the deceased told him that she wanted to leave her husband and be
with him. He stated that he was totally taken aback and told her not to talk
about this as he was already due to get married to Ms Tamanna Singh.

(c) On a day prior to the applicant’s marriage, according to the applicant, the
deceased once again asked him to reconsider what she had said earlier. He
stated that he once again told her that she should not be speaking to him.
Thereafter, as per his statement, she sent him a photograph of her left arm on
which she had made some cuts. He got worried and had told her to calm down
and concentrate on her marriage and let him concentrate on his. On his return
from leave after marriage he stated that Sqn Ldr Vishak Nair came to him and
told him that he had forgiven his wife and told him also to forget everything
and start afresh.

(d) From the statements of some of the witnesses in the C of I, it is

apparent that in Jodhpur both the couples remained on friendly terms. In fact
as per the statement of Sqn Ldr Vishak Nair in Mar 12 while at Bareilly, when
he discovered the draft email message for Flt Lt Ishan Sharan that his wife had
saved, he called him up and told him to stay away from them. He has also
stated that on breaking off all ties with Flt Lt Ishan Sharan, he found his wife
depressed and sulking all the time.

(e) After reaching Jodhpur, he told his wife that they would be on social
terms with Flt Lt Sharan and his wife Mrs Tamanna. However, it is apparent
that the deceased could not do away with a feeling of intense love towards the
applicant and continued to reach out to him at every possible occasion.

(f) As per the applicant’s statement he has admitted that they had feelings
for each other in Bareilly but after he got married he had backed off
completely. He emphasized that the affair in Bareilly was mutual and that he
did not lure the deceased in any manner whatsoever.

(g) Although the applicant was not obliged to, he made a confessional
statement to an independent officer detailed to record it. This statement
(supra) is in addition to the statement in the C of I which was recorded on oath
under the provisions of para 790(a) of the Regulations. In his confessional
statement he stated that he was in a relationship with the deceased from
August, 2011 but later realized that whatever had happened was not correct
 40

and when the deceased expressed her desire to leave her husband and be with
him, he was not expecting it and he decided to back off. After getting married
he stated that he was told by Sqn Ldr Vishak Nair to forget about the past and
start afresh. In his statement, he has confessed that after arriving at Jodhpur
initially their interaction as couples was only social but he could feel a similar
situation was developing as was the case in Bareilly. In his own words he has
stated, “At Jodhpur also I could feel the similar situation was developing as was
a case in Bareilly. However, there was an error of judgment on my part again
as I failed to take any step to stop it. I always thought that this was just a
phase which would pass by and did not inform any senior officer regarding the
same. That is all sir”. This statement was given by him voluntarily and has been
video graphed.

(h) The circumstances immediately preceding the suicide can be summed

up in these paragraphs as brought out in the C of I:-

i. On 24.11.2012 Sqn Ldr Vishak Nair, while on duty at ORP, came

across telephone logs of conversations between the applicant and
his wife of considerable duration.

ii. On 25.11.2012 the deceased and her husband had a fight over the
Facebook Chat Log. Based on the above, Sqn Ldr Vishak Nair wanted
a separation from his wife and told her to inform her parents. While
she initially agreed, she later on changed her mind and did not want
to inform her parents.

iii. In the C of I he had also stated that he did not actually want to
separate from her but wanted her parents to know about her
activities so that she could be stopped from doing so.

iv. On that fateful night on 27.11.2012, the husband of the deceased

Sqn Ldr was adamant on his decision to separate. The possibility of
marrying Flt Lt Ishan Sharan being non-existent and she must have
been in a state of emotional turmoil with feelings of isolation.

v. The deceased had landed herself in a very precarious situation

wherein she was unable to continue her relationship as a wife due
to her relationship with the applicant. Also there was a possibility of
a loss of face in the event the matter coming to the notice of her
parents owing to their high opinion about her husband.

vi. The applicant’s refusal to marry her along with the insistence of her
husband for a divorce put tremendous psychological stress and
emotional turmoil on the deceased who in any case appeared to
possess a highly strung and temperamental personality despite an
easy going and fun loving exterior. These two factors perhaps
pushed her to take her own life.
 41

33. Although we are of the opinion that the C of I has been done in an

extremely thorough manner, insofar as examination of the witnesses, the

deliberations and in arriving at the findings are concerned, we are constrained

to note the non-application of para 790 of the Regulations, right from the

commencement of the C of I during the examination of witness No. 1 Sqn Ldr

Vishak Nair on 02 Dec 12, who at the very beginning, stated that the

arguments between him and his deceased wife were regarding her friendship

with Flt Lt Ishan Sharan and their behavior (which was) highly inappropriate

and beyond the normal limits of friendship. Therefore, at this juncture itself

the C of I should have insisted on the presence of the applicant. Instead, he

was sent away from Jodhpur on temporary duty. Again, when witness No. 1

was recalled and re-examined on 7.12.2012 wherein the relationship of his

deceased wife with the applicant was highlighted, the applicant was not

present on that day too in contravention of the terms of para 790 of the said

Regulations. Most importantly when the statement of witness No. 14, Mrs.

Anju, the maid servant, was taken on 11.12.12 wherein she has alluded to

adultery between the deceased and the applicant, the applicant’s presence

was not insisted upon.

34. We believe it was imperative that the applicant should have been present

throughout the recording of this statement. However, it was only on 12.12.12

after recording of the statement of witness No. 15 Sqn Ldr Vishal Banka, that

the C of I deliberated upon the evidence recorded up to that stage and then

realized that the character or professional reputation of the applicant was

likely to be affected, and hence the Court decided to take recourse to para 790

(a) of the said Regulations against him. Thus only on 13.12.12, Flt Lt Ishan
 42

Sharan was called by the C of I under the provisions of para 790 (a) and (b) of

the said Regulations. The C of I then allowed him to examine the statements of

all witnesses including the documentary evidence produced up to that stage.

After that, he was permitted to record his confessional statement before an

independent recording officer and permitted to cross-examine Witness No. 14

Mrs. Anju, the maid servant. He was also permitted to, but he declined to

cross-examine Witness No.1, viz., Sqn Ldr Vishak Nair.

35. In the judgment of the Armed Forces Tribunal, Principal Bench, in the

case of Col Kamal Deep Singh vs. Union of India & Others (supra) the Tribunal

held:-

“The Army Rules 180 is very sacrosanct and it gives the full opportunity to the
incumbent against whom it is invoked when military reputation and
character is involved. In this case we find that rule was invoked against the
petitioner. That means Rule 180 was invoked right from the beginning and in
that 14 witnesses were examined in presence of the petitioner but
subsequently remaining witnesses i.e. upto 48 witnesses were examined
when petitioner was asked to go out and the deposition of the remaining
witnesses were taken and copies of statement was given to him for cross-
examining those witnesses by calling them again. It is true that petitioner
was give opportunity to cross examine these witnesses, but this conduct of
Court of Inquiry of asking the person against whom Rule 180 has been
invoked to go out and examine large number of witnesses in his absence is
something unheard of. The Rule 180 clearly mandates that the incumbent
should be given full opportunity to participate and to remain present. ……This
is not true spirit of invoking Rule 180 and we cannot subscribe to this. The
participation throughout inquiry is a must. Therefore, this illegality in
conducting of Court of Inquiry goes to the root of the matter and this renders
the entire Court of Inquiry vitiated.

22. ---------But in the present case, the Court of Inquiry was totally against
the true spirit of AR 180 and that cannot be sustained. Therefore we hold
that the Court of Inquiry was bad in the law.”

36. So using this very ratio, the non-application of para 790 of the Regulations

right from the very beginning has vitiated the C of I, as the initial statements of

the two important witnesses ie Witness No 1, Sqn Ldr Vishak Nair and Witness
 43

No 14, the maid Servant, Mrs Anju were made in the absence of the applicant.

The subsequent questioning of Witness No.14 and taking down additional

statements and questioning of Witness No.1 by the applicant from 13.12.12

onwards, cannot in any way controvert the fact that their initial statements

were made in the absence of the applicant. The authorities cannot justify non

application of the said regulation right at the very beginning in the C of I on

02.12.12 simply because they apprehended an untoward situation, although

fully being aware of the fact that the character of the applicant is likely to be

affected and that he was likely to be blamed. This untoward situation

continued to exist even on 13.12.12, ten days after the C of I first met and

the day the applicant was present in pursuance to the order of the C of I.

Hence, this ground taken by the counsel of the respondent appears to be

specious, to say the least. This act of calling the applicant to be present after

two crucial witnesses were examined in his absence, is also not in keeping with

the oft quoted legal maxim that has been cited in innumerable judgments

which states that not only must justice be done; it must also be seen to have

been done.

37. In the show-cause notice, the letter of JAG branch of the Air Force,

dated 04 February, 2010 (supra) extracts of which are reproduced in para 22

above, regarding indecent and scandalous behavior has been referred to.

38. Paragraphs 8, 9, and 10 of the letter and its wordings “stealing the

affection of a wife of a brother officer” smacks of patriarchy and punctilious

mindset. While certainly extra marital relations should not only be discouraged

and disapproved in no uncertain terms, to hold only one party responsible,

that is, the male and not the female who may be as educated, as mature, even

older and senior than the male is reflective of a pre-disposed and biased
 44

mindset that also assumes that the wife of a brother officer is the property or

chattel of the male and not an independent person in her own right who has

the freedom to choose to live her life on her own terms. It does not take into

account that in a marriage in the 21st century, a well qualified, educated wife

especially one in the Services and from a cosmopolitan background who holds

the same rank as her husband does have a mind of her own, a free will of her

own, may pursue a path, however abhorrent and objectionable to her

husband, including having an affair. In this case it is apparent that the

deceased lady officer wished to sustain the relationship and the applicant

though initially a willing partner does not seem to have “lured her into the

relationship.” An adulterous relationship in this particular case, while allegedly

existing in Bareilly in between Aug and Dec 2011, has not been conclusively

proven to have been in existence in Jodhpur.

39. The offence of adultery must be understood in the light of not only the

relevant IPC Section 497 governing it, but also in the light of prevailing social

mores. By the nature of offence, direct evidence of adultery may not exist.

However, even some evidence showing opportunity and desire between the

man committing adultery and the woman (wife) with whom he is doing so

must be shown to exist. If it is so proved in a Court of Law, then the evidence

has to satisfy the requirement prescribed of the word “proved” in Section 3 of

the Indian Evidence Act. Therefore, it is essential that inference of guilt is fully

established by unimpeachable evidence beyond a shadow of doubt which

unerringly points towards the guilt. No Court of Law can take cognizance of an

offence of adultery except upon a complaint made by the husband. In such a

case, it is necessary that a complaint is filed by the husband, who is the

aggrieved party.
 45

40. In this particular case, the husband though suspecting an adulterous

relationship in Bareilly, believed it had come to an end after he had warned his

wife as well as the applicant and also since that the applicant himself had got

married. Subsequently, as the husband assumed that since this relationship

had come to an end, coupled with the fact that his wife remaining depressed,

decided in resuming social relations with the applicant and the applicant’s

wife, with both couples meeting on a regular basis. There was no reason for

him to suspect anything untoward. However on seeing the Facebook chat log

of 2011 vintage between his wife and the applicant on 25th November, 2012, a

log that pertained to the previous place of posting in Bareilly, coupled with

evidence of long drawn out telephonic conversations between his wife and the

applicant when they were both on duty in different duty rooms of different

units which he discovered on 24 November 2012, led him to conclude that the

feelings of his wife towards the applicant were undiminished and hence he

became insistent on the divorce. It would not be out of place to mention that

most husbands in his position would have done the same, given that the

implicit trust he placed in his wife despite her past indiscretions, was believed

by him to have been shattered once again. As to a question of whether a

physical relationship actually existed in Jodhpur, the evidence of the maid

servant, Smt Anju, Witness No.14 is not conclusive, although it does point to a

great degree of intimacy and affection that the two had for each other.

41. However the conclusion that can be drawn is that the relationship was

certainly intimate in nature and not purely Platonic, wherein the deceased lady

officer continued to express her desire of love to the applicant which he has

conceded to but also admittedly, had failed to stop. Given the background of

such a situation as obtaining in Bareilly, it was improper for him to have

 46

continued to interact with her, when in the given circumstances, he could not,

beyond a point, offer any counseling to her. He should have appropriately

reported the matter to his senior or any senior he believed she had confidence

in, although knowing that the nature of his relationship with her would

perhaps become public.

42. As elucidated in the paper Causation in the Law published in the Stanford

Encyclopedia of Philosophy on Thurs Nov 8, 2001 and its substantive revision

Wed Nov 17, 2010, to explain causation in law, “One function, perhaps

fundamental, is forward-looking: that of specifying what will happen and by

what stages if certain conditions are present together. This use of cause serves

to provide recipes and make predictions. It also yields the idea of a causal

process. Another function is backward-looking and explanatory: that of

showing which earlier conditions best account for some later event or state of

affairs. A third function is attributive: that of fixing the extent of responsibility

of agents for the outcomes that follow.” In this particular case, it is the second

and third explanations that have led to the applicant being held responsible for

the events leading up to the suicide of Sqn Ldr Anindita Dasgupta.

43. The paper goes on to elucidate that in law “the second and third of these

functions of the notion of cause are prominent, often in combination. Many

legal inquiries are concerned to explain how some event or state of affairs

came about, especially an untoward event such as death or a state of affairs

such as insolvency. But in law the third function is particularly salient and

controversial. Whether someone is liable to punishment or to pay

compensation or is entitled to claim compensation often depends on showing

whether the person potentially liable or entitled has caused harm of a sort that

the law seeks to avoid. In law the main grounds of responsibility for harm are
 47

therefore (i) an agent's personal responsibility for causing harm and (ii) a

person's responsibility arising from the fact that he, she or it bears the risk of

having to answer in legal proceedings for the harm in question.

Both inside and outside the law many actions are regarded as wrongful

whether or not they cause tangible harm. Moreover the imposition of penalties

in civil law and of punishments in criminal law need not bear any relation to

the harm (if any) caused by the conduct for which the penalty or punishment is

imposed.

Legal responsibility is often imposed, in the context of interpersonal

relationships, on those who influence others by advising, encouraging, helping,

permitting, coercing, deceiving, misinforming or providing opportunities to

others that motivate or enable them to act in a way that is harmful to

themselves or to others.”

44. So in this case, the authorities should have asked themselves if there was

indeed a legal responsibility on the part of the applicant towards the suicide of

the lady officer or an adulterous relationship with her. If the answer to either

of these two questions was a “YES”, then they should have recommended his

trial by a GCM or recommended recourse to punishing him summarily under

Section 86 of the Air Force Act 1950.

45. An extract from Section 86 of The Air Force Act, 1950 is reproduced as
under :-

“86. Punishment of Officers and warrant officers – An officer having power to

convene a general court-martial or such other officer as is with the consent of
the Central Government, specified by 1[the Chief of the Air Staff] may, in the
prescribed manner, proceed against an officer below the rank of squadron
leader or a warrant officer, who is charged with an offence under this Act, and
award one or more of the following punishments, that is to say, -

(a) forfeiture of seniority, or in the case of any of them whose

promotion depends upon length of service, forfeiture of service
 48

for the purpose of promotion for a period not exceeding twelve

months, but subject to the right of the accused previous to the
award to elect to be tried by a court-martial.
(b) Severe reprimand or reprimand.
(c) *******
(d) *******”

1 Subs. By Act 19 of 1955, sec. 2 and Sch. for “the Commander-in-

Chief”

46. If however, the answer was a “NO”, then the Air Force authorities should

not have viewed it only through the narrow prism of their policy of 04 Feb

2010 (supra) that “no leniency whatsoever is to be shown to him and prompt

action is to be initiated for the termination of his services under the relevant

rules. “, but could have, after due process, awarded him a reproof under para

712 of the Regulations that has been amplified by Air Force Order 03/2008.

47. Relevant extracts of Air Force Order 3/2008 paras14-20 which includes

Para 712 of the Regulations for the Air Force 1964 (Reprinted Edition 2003) are

set out as under:-

“AWARD OF CENSURE

14. Censure is a matter of custom of Service, in accordance with which, it

may take the form of ‘Reproof’, ‘Displeasure’ or ‘Severe Displeasure’, and may
be awarded for offences/lapses which are not of such a serious nature as to
merit disciplinary action under the Air Force Act, 1950, or where disciplinary
action is considered inexpedient or impracticable. Award of censure may, at
times, be construed to amount to condonation of the offence barring
disciplinary action under the Act. Therefore, censure is not be awarded, when
there is a likelihood of any superior authority considering disciplinary action
under the Air Force Act, 1950.
15. Censure is not to be awarded by Air Force authorities to personnel of
other services serving with the Air Force. However, if the Air Force authority,
under whom a person belonging to another service is serving, considers that in
the interest of discipline, such a person requires to be censured, the details of
the case are to be forwarded to Air HQ [JAG (Air)] through proper channel with
suitable recommendations of the Command HQ. After due consideration, Air
HQ will refer the case to the appropriate Service HQ or take such action, as
deemed fit.
 49

Officers
16. Reproof. The authorities who may award ‘Reproof’ to officers, the
circumstances and the manner of its award and record have been specified in
Para-712 of the Regulations for the Air Force (1964).
Extract of Para 712 of Regulations for Air Force (1964)
712. Reproof of Officers and Warrant Officers.
(a) A Commanding Officer or any superior Air Force officer may
reprove an officer or warrant officer under the command for an offence which,
in his opinion, is not to such a serious nature as to merit disciplinary action
under the Air Force Act, 1950. The reproof of an officer or warrant officer is not
a recognized punishment under the Act and will not be entered in the officer’s
or warrant officer’s service record through it may be referred to, if necessary, in
a confidential report on the officer or warrant officer concerned. In order to
avoid any confusion with a ‘reprimand’ under the Act, it is not to be referred to
by any term other than ‘reprove’ or ‘reproof’.
(b) Great care will be taken that the procedure in Sub Para (a) is not
adopted when any superior authority is likely to consider that the offence calls
for disciplinary action under the Air Force Act, 1950, as the reproof might, in
certain circumstances, be held to amount to condonation of the offence barring
disciplinary action under the Act.
17. The AOC-in-C/AOA/CO may also reprove an officer who was serving
under his command at the time of the commission/omission of the impugned
act or omission.
18. Severe Displeasue/Displeasure. ‘ Severe Displeasure’/’Displeasure’
may be awarded to an officer by the Central Government of the Chief of the Air
Force Staff, or the AOC-in-C under whom the officer is serving or was serving at
the time of the commission/omission of the impugned act/omission or
misconduct or by the AOA, if the officer is serving, or at the time as aforesaid,
was serving in Air HQ or in a Unit under the direct administrative control of Air
HQ.
19. ‘Severe Displeasure’/’Displeasure’ of the Central Government will
normally be conveyed in the form of a letter and the same will be kept
permanently in the personal file of the officer.
20. ‘Severe Displeasure’ by the CAS or the AOC-in-C/AOA will be expressed in
terms of a period not exceeding 36 months in the case of award by the CAS and
not exceeding 18 months in the case of award by the AOC-in-C/AOA. The
period of award of ‘Severe Displeasure’ (preferably be awarded in multiples of
six months) is to be specified at the time when such Censure is approved by the
competent authority. There will be no period of award for ‘Displeasure’. A copy
of the letter conveying ‘Severe Displeasure’/’Displeasure’ of the COS, AOC-in-
C/AOA to the officer will be kept permanently in the personal file of the
concerned officer at both Air HQ (JDPO-2) and his Unit.
 50

48. In O.A. No. 41 of 2013, the Regional Bench at Mumbai of the Armed

Forces Tribunal in the case of N. Kalyankumar vs. Union of India & Ors. which

pertained to the allegations of stealing the affection of the wife of a brother

officer and adultery amongst other allegations, delivered a judgment on

25.06.2014, the relevant portion of which is reproduced below :

“ Under these circumstances, we find that the order of discharge from service
against the applicant is very harsh, severe and shockingly disproportionate to
his misdemeanor or misconduct. In Ranjit Thakur V/s. Union of India & Ors.
(1987) 3 Supreme Court Cases 611, their Lordships observed thus :

“25. Judicial review generally speaking, is not directed against a decision,

but is directed against the “decision making process”. The question of choice
and quantum of punishment is within the jurisdiction and discretion of the
court martial. But the sentence has to suit the offence and the offender. It
should not be vindictive or unduly harsh. It should not be so disproportionate
to the offence as to shock the conscience and amount in itself to conclusive
evidence of bias. The doctrine of probability, a part of the concept of judicial
review, would ensure that even on an aspect which is, otherwise, within the
exclusive province of court martial, if the decision of the Court even as to
sentence is an outrageous defiance of logic, then the sentence would not be
immune from correction. Irrationality and perversity are recognized grounds
of judicial review. In Council of Civil Service Unions V. Minister for the Civil
Service, Lord Diplock said :
“Judicial review has I think developed to a stage today when without
reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds on which
administrative action is subject to control by judicial review. The first ground
I would call “illegality”, the second “irrationality” and the third “procedural
impropriety”. That is not to say that further development on a case by case
basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in future of the principle of
‘proportionality’ which is recognized in the administrative law of several of
our fellow members of the European Economic Community;….”
26. In Bhagat Ram V. State of Himachal Pradesh this Court held :
“It is equally true that the penalty imposed must be commensurate with the
gravity of the misconduct and that any penalty disproportionate to the
gravity of the misconduct would be violative of Article 14 of the
Constitution”.
The above observations by the Hon’ble Supreme Court would be aptly
applicable to the facts and circumstances of the present case. We are aware
that we are not sitting in appeal against the order of conviction or sentence
passed under section 15 of the Armed Forces Tribunal Act by the Court Martial,
but in judicial review under section 14 of the Armed Forces Tribunal Act. But in
judicial review, as held by the Supreme Court in Ranjit Thakur if the penalty
imposed by the authority is disproportionate to the misconduct, that will be
violative of Article 14 of the Constitution”.
 51

49. While not condoning extra marital relationships, we must, at the same

time, reflect upon the changing mores of our society. With women joining the

Armed Forces in large numbers, working closely and socialising with their male

counterparts, it is unreasonable to expect that the Armed Forces would be

immune to social changes in relationships between the two sexes, aided in no

small measure by rapidly advancing technology. While such issues adversely

impact on unit cohesion and ethos of the Services and should be rightly

discouraged, the time has come when aspects such as unfortunate break ups

of existing marital relationships, consensual relationships with others and

infidelity should not be viewed so seriously as to lead to the dismissal or even

graver punishments that the IPC and statutory Acts of the Army, Navy and Air

Force provide for.

50. In the final analysis it appears that administrative action by way of

dismissal of the applicant by the Government of India based on a flawed C of I

was harsh especially when it is observed that the deceased seemed insistent

on continuing with the relationship. It is also agreed that in these sensitive

circumstances it would have been unwise and inexpedient too, to have tried

the applicant by a GCM. The officer, we feel, should have been either

summarily tried under Sec 86 of the Air Force Act, or censured under para 712

of the Regulations, or at best, been asked to resign his commission under the

Air Force Rules 16(8) (supra) instead of being dismissed from service. This

option at that point in time could have been exercised by the Air Force

authorities. It is regrettable that none of the above options were considered

by the Air Force authorities and they proceeded with a single minded intent to
 52

dismiss the applicant from service expeditiously without taking into account

the circumstances that led to the tragedy.

51. However, at this belated stage when much water has flown under the

bridge, a quietus needs to be put on the issue, and when the two main

protagonists i.e. the applicant and the husband of the deceased would still be

struggling to come to terms with this tragic episode and would have moved on

with their lives. Therefore, it would be imprudent to revisit this sensitive C of I,

despite the fact that provisions of para 790 of the Regulations were not

applied right from the beginning of the C of I, as it would reopen old wounds.

It is also admitted that after this unfortunate incident and after the dismissal

of the applicant from service, it would be inexpedient and unwise to ask the

Air Force authorities to take a fresh look at the entire episode in the light of

the conclusions we have drawn. However, we cannot allow the stigma of

dismissal to continue to remain on record given the special circumstances of

the case. Hence, we believe that the ends of justice would be adequately

served if the dismissal from service of the applicant is converted into release

from service under Rule 13 of the Air Force Rules, 1969, which is reproduced

as under:

“13. Release. A person subject to the Act may be released from the air force in
accordance with these rules, or in accordance with any orders or instructions
made in that behalf by or under the authority of the Central Government”.

52. With the above observations and findings, the application is allowed in
part and the applicant is to be considered as released from Service from the
date of his dismissal i.e. 28 June 2013 with whatever financial benefits (if any)
that he may be entitled to.

53. The application is thus disposed of.

54. There will be no order as to costs.

 53

55. Let a plain copy of this order, duly countersigned by the Tribunal Officer,

be supplied to the parties after observing the requisite formalities.

(Lt Gen Gautam Moorthy) ( Justice Amar Saran )

Member (Administrative) Member (Judicial)
ss