The Delhi High Court on Tuesday issued a notice on a petition filed by an Indian Air Force (IAF) officer who was fired in connection with the accidental firing of a BrahMos combat missile that landed in Pakistan in March last year.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna sought the Centre’s response on Ex-Wing Commander Abhinav Sharma’s petition challenging the termination order through the Ministry of Defence, the Chief of Air Staff, and others. The court has asked that responses be filed within six weeks and rejoinders, if any, be filed within another four weeks.
Sharma has challenged the termination order issued against him on August 23, 2022, under Section 18 of the Air Force Act, 1950. He was assigned as an Engineering Officer at the time of the incident, which occurred during a Squadron simulation exercise.
As an Engineering Officer, the petitioner claims that he was only given professional and practical training for maintenance duties and that he was never given training on how to conduct operations.
“The petitioner was not trained against the counts of blame apportioned to him in the Court of Inquiry and he acted in complete obedience of the SOP. The petitioner had no experience conducting operations or dealing with operational emergencies, and the respondents acted in a completely malafide manner by issuing the Impugned Termination Order,” the plea stated.
The petition also claims that by invoking Section 18 of the Air Force Act to terminate the petitioner, the authorities “intentionally circumvented” the process for initiating disciplinary action as well as the requirement of a Court Martial trial.
The plea submits that the petitioner performed all of his duties in accordance with the Combat SOP governing the operations, and the incident was entirely operational in nature.
“Despite the fact that the Petitioner was an Engineering Officer, the Court of Inquiry blamed him for failing to perform external checks on the combat connectors of combat missiles, which continued to be connected to FCS Junction Box 1 & 3, while the same was not the role and duty of the petitioner,” the plea stated.
During the hearing, Senior Advocate N Hariharan, who represented the petitioner, stated that the IAF officer was appointed on the engineering side and served on the engineering side until the date of his termination.
“They did away with the court martial procedure and used section 18 as a camouflage to terminate my service. One aspect was the operational aspect, and the other was the engineering part’s maintenance. I did my duties,” he submitted.
Hariharan also argued that if the petitioner’s trial had taken place through the court martial procedure, the true picture of the incident would have emerged.
“According to the Air Force Act, termination can occur only after a court martial. Instead of holding a court martial, they issued the order under Section 18 and terminated me. There was a preliminary investigation, but ultimately charges must be framed through court martial, which they avoided because there was a policy failure,” he stated.
On the other hand, ASG Chetan Sharma, appearing for the Centre, raised a preliminary objection, arguing that the petitioner was discharged from the Air Force under Section 18 of the Air Force Act, which cannot be challenged unless there is evidence of mala fide.
“To be sure, this is the case in which we were humiliated in front of the international community. The missile landed in Pakistan rather than India. It could have resulted in a war, and that country made a representation to the United Nations,” he explained.
Sharma informed the court that, in addition to the petitioner, similar action was taken against three other officers, one of whom was the commanding officer.
“Does the petition contain any allegations of mala fide? You must name someone. There is no mala fide. The impugned order was passed in August 2022. We are almost 8 months down the line. This man is well-paid and employed with a multinational corporation. This is a luxury litigation,” Sharma stated.
He further stated, “The other three officers are not coming to court. He returns after eight months and fully participates in the investigation. There is no claim that natural justice has been harmed. He must allege mala fide in the manner, process, and details, how mala fide has worked itself out.”
The petitioner was represented by Senior Advocate N Hariharan and Advocates J Rajesh, Amaan Shreyas, Amartya Sharan and Jaitegan Singh.
The counts of blame framed against the petitioner by the Court of Inquiry stated that he failed to perform external checks as the Engineering Officer of the Combat team during the simulated exercise.
It was also claimed that the petitioner failed to ensure the safe transit of the convoy by failing to disconnect the combat connectors of all missiles loaded on the Mobile Autonomous Launcher (MAL) prior to convoy movement, thereby violating the combat SOP.
Lastly, the petitioner was accused of failing to intervene to prevent the MAL from engaging in an unsafe act of launching the missile from the station, which resulted in the accidental firing.
