Brahmos Missile Misfire: Delhi High Court Issues Notice On Indian Air Force Officer's Plea Against Termination

The Delhi High Court Tuesday issued notice on a plea filed by an Indian Air Force (IAF) officer who was sacked in connection with the accidental firing of a BrahMos combat missile which landed in Pakistan in March last year. 

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna sought response of the Union of India through Ministry of Defence; Chief of Air Staff and others on Ex-Wing Commander Abhinav Sharma's plea challenging the termination order. The court has asked replies be filed within six weeks and rejoinder, if any, within further 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 posted as Engineering Officer when the incident occurred during a simulation exercise performed by the Squadron.

It is the petitioner’s case that he was imparted professional and practical training only for duties which are purely of maintenance in nature and that he was never imparted training on conduct of operations, being an Engineering Officer.

“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 in conducting operations and handling operational emergencies and the Respondents acted in a completely malafide manner by issuing the Impugned Termination Order,” the plea states.

The petition further states that by invoking Section 18 of the Air Force Act for terminating the petitioner, the authorities “intentionally circumvented” the process for initiating disciplinary action and the requirement of trial by a Court Martial.

The plea submits that the petitioner performed all his duties as per the Combat SOP governing the operations and that the cause of the incident was solely operational in nature.

“Although the Petitioner was an Engineering Officer, the Court of Inquiry apportioned him blame for failure to perform external checks of the combat connectors of combat missiles, which continued to remain connected to FCS Junction Box 1 & 3, while the same was not the role and duty of the Petitioner,” the plea stated.

During the course of hearing, Senior Advocate N Hariharan representing the petitioner submitted that the IAF officer was appointed on the engineering side and continued to serve on the engineering side till 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 other other was the maintenance which was done on the engineering part. I did my duties…,” he submitted.

Hariharan further contended that if the petitioner’s trial would have taken place through the procedure of court martial, then the real picture behind the incident would have come out.

“Termination as per Air Force Act can happen only post court martial. What they have done is instead of holding court marital, they issued the order under section 18 and terminated me. There was a preliminary enquiry but ultimately charges are to be framed by way of court martial, which they avoided because there was a policy failure,” he said.

On the other hand, ASG Chetan Sharma appearing for Union of India raised a preliminary objection and submitted that the petitioner was dismissed from service under section 18 of Air Force Act which cannot be challenged unless some ground of mala fide is made out.

“Admittedly, this is the matter where we stood embarrassed before the international community. The missile didn’t land in India, it landed in Pakistan. It could’ve led to a situation of war and that country made a representation to the United Nations,” he said.

Sharma apprised the court that apart from the petitioner, similar action was taken against three other officers, including the commanding officer.

“Is there any allegation of mala fide in the petition? You have to name somebody. There is no mala fide. The impugned order was passed in August 2022. We are almost 8 months down the line. This man is gainfully employed with a multi national company with a heavy salary. This is a luxury litigation,” Sharma said.

He continued: “The other three officers are not coming to court. He is coming after eight months and also participates in the enquiry fully. There is no allegation of natural justicie being affected. He has to allege mala fide in the manner, the process, the 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 mention that he failed to carry out external checks being the Engineering Officer of the Combat team during simulated exercise.

It was also alleged that petitioner failed to ensure safe transit of convoy by not ensuring disconnection of combat connectors of all missiles loaded on Mobile Autonomous Launcher (MAL) prior to the convoy movement, thereby violating the combat SOP.

Lastly, it was alleged that the petitioner failed to intervene to prevent the MAL from committing an unsafe act of launching the missile from the station which resulted in the accidental firing.

Title: Wing Commander Abhinav Sharma v. Union of India & Ors.