CASE NO.: Appeal (civil) 2668 of 2002 PETITIONER: Union of India and Ors RESPONDENT: Rajesh Vyas DATE OF JUDGMENT: 07/02/2008 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2668 OF 2002
(With C.A. No 2669, 2670, 2671 and 2672 of 2002)
Dr. ARIJIT PASAYAT, J.
1. These five appeals have a common matrix in the
judgment of a Division Bench of the Rajasthan High Court at
Jodhpur dated 26.9.2000. Eight Special Appeals were filed by
the Union of India and Others under Section 18 of the
Rajasthan High Court Ordinance, 1949 (in short the
‘Ordinance’). Challenge in the Special Appeals was to the order
passed by a learned Single Judge of the High Court allowing
the writ petitions filed. It was held that the dispute in writ
petitions was squarely covered in favour of the writ petitioners
by a judgment of this Court in Union of India and Ors. v.
Corporal A.K. Bakshi and Anr. (1996 (3) SCC 65). The High
Court by the common impugned judgment upheld the view of
the learned Single Judge in four cases and in two cases held
that the appeals filed by the Union of India deserved to be
allowed. In four cases filed by the Union of India before this
Court, the Division Bench upheld the view of the learned
Single Judge and held that the order was passed in clear
violation of the principles of natural justice.
2. In the said appeals, stand of the Union of India is that
show cause notice was issued to which reply was furnished by
the respondent in each case and after consideration of the
same, the order of discharge was passed.
3. In the two appeals, which were decided in favour of the
Union of India it was held that show cause notice was duly
issued and there was no reply. Against one such order Civil
Appeal No.2670 of 2002 has been filed.
4. Learned counsel for the appellant-Union of India
submitted that the original records were produced before the
High Court. They clearly indicate that show cause notice was
issued which fact was not disputed by the respondents. The
fact that each of such respondents had replied is also not
disputed. It is the stand of the Union of India that both
learned Single Judge and the Division Bench went wrong in
holding that without consideration of the replies the order of
discharge had been passed.
5. In one of the appeals i.e. Civil Appeal No. 2668 of 2002
learned counsel for the respondents submitted that the order
of discharge does not indicate any consideration of the show
cause notice reply. In the other three cases, there is no
appearance on behalf of the respondents.
6. In appeal filed by Santosh Singh i.e. Civil Appeal No.
2670 of 2002 the High Court categorically found that show
cause notice was not responded to. There is no appearance
on behalf of the appellant when the matter was called.
7. It appears that the Habitual Offenders’ Policy was
formulated as a result of a project study on offences of
‘absence without leave’ and other offences committed by
Airmen made by the Institute of Defence Management, which
brought out the salient features regarding the existence of
habitual offenders amongst Airmen in Indian Air Force. It was
found that there was a specific hard core group of airmen in
the Air Force who have been contributing regularly and
predominantly to the annual offence statistics in the Air Force,
year after year. This group of Airmen have been a strong
source of adverse influence on the general discipline of other
Airmen in the service. Some adverse effects noticed were as
follows:
(a) serious adverse effect and influence on the general
morale and discipline, especially on the young
airmen joining various units from the training
centers.
(b) Unit level administration was kept pre-occupied
with these chronic in discipline cases impinging on
time which was otherwise required for constructive
activity.
(c) Very often, at some stage or the other, airmen from
this group were found to commit serious offences
not only within but also outside the Air Force,
thereby tarnishing the image of the service, and
(d) Invariably many of these airmen were not
performing well in their trades also.
8. Hence, their overall contribution to the service was
negligible. By passage of time, some of these airmen have been
promoted and have attained the ranks of a senior Non-
Commissioned Officers’ and thus, such senior staff were very
poor example to others particularly the younger Airmen. Thus,
having regard to the existence of habitual offenders amongst
the airmen and the adverse effects of their repetitive acts of
indiscipline which undermined the general discipline and
administration of the Indian Air Force. Air Head quarters
decided to lay down the Habitual Offenders Policy for
discharging such Airman prescribing the guidelines to deal
firmly with such habitual offenders. In paragraph 4 of the said
policy it was prescribed that those airmen; who met any one of
the following individual criteria were to be treated as habitual
offenders and considered for discharge under Rule 15(2)(g)(ii)
of the Air Force Rules, 1969 (in short the “Rules”):
(a) Total number of punishment entries six
and above (including Red and Black ink
entries);
(b) Four Red ink punishment entries; and
(c) Four punishment entries (Red and Black
ink entries includes) for repeated commission
of any one specific type of offence such as dis-
obedience, insubordination, AWL, breaking out
of camp, offence involving alcohol, mess
indiscipline, use of abusive/threatening
language.
9. That the red ink entries are for punishment higher in the
scale of the punishment under Section 82 of the Air Force Act,
1982 (in short the ‘Act’) while the black ink entries are for
punishment lower in scale in Section 82. The detailed actions
and procedure which were required to be followed to
implement the policy for discharge are given in the appendix to
the policy which was known as the “Procedure for Discharge”.
Habitual offenders who were not found suitable for retention
in service were initially placed in two categories, (a) habitual
offenders who have already crossed the criteria as laid down
vide paragraph 4 (a), (b) and (c) of the policy guidelines, and (b)
offenders who are on the threshold. Warning had to be given
as per the procedure to an Airman who was on the threshold
and he was called upon to improve his conduct and behaviour
and that in case he committed any further offence, and came
within the purview of an habitual offender he would be liable
to be discharged. In case he commits any further offence then
would be given a show cause notice and, thereafter discharge
was to be ordered by the competent authority under Rule
15(2)(g)(ii).
10. As noted above, policy for discharge of habitual offender
was considered by this Court in A.K. Bakshi’s case (supra).
After analyzing the policy, it was observed that the whole idea
underlying the policy was to weed out the indisciplined
personnel from the force. It was further observed that it was a
discharge simplicitor and as such it cannot be held as
termination of service by way of punishment for misconduct.
11. The materials relevant for the consideration of the reply
given by the concerned officials are part of the record. There is
no dispute that the original records were produced before the
High Court. Though in the discharge order there is no specific
reference to the consideration by the appropriate authority, as
a matter of fact the reply in each case was considered. After
due consideration of the reply, the recommendation was that
the AOP may be pleased to approve the discharge of concerned
officials as unsuitable for retention in service. Various officials
considered the matter and the AOP accepted the
recommendation for discharge under Rule 15(2)(g)(ii) of the
Rules. Thereafter, discharge order was passed where it is
categorically noted that the competent authority i.e. AOP was
pleased to accord the approval of discharge of the concerned
officials from service. In the discharge order it is also stated
that instructions on discharge of a airman as contained in
AFO 291/77, 40/89 and the letter of the Air Force Records
Office dated 28.11.1991 were strictly complied with. Above
being the position, the learned Single Judge and the Division
Bench were wrong in holding that the reply given to the show
cause notice was not considered. The factual scenario is to the
contrary.
12. Above being the position, the judgments of the learned
Single Judge and the Division Bench cannot be maintained
and are set aside in each case.
13. So far as Civil Appeal No.2670 of 2002 is concerned there
is no appearance on behalf of the appellant when the matter
was called. In fact, he had filed an affidavit in response to the
show cause notice and he had stated that he had no
explanation to offer and that he had no clarification. That
being so, learned Single Judge was not justified in allowing his
writ petition. The Division Bench of the High Court was
justified in allowing the Special Appeal so far as he is
concerned. In his case the order of the High Court needs no
interference.
14. In the ultimate result, Civil Appeal No.2670 of 2002 is
dismissed while the other appeals are allowed. There shall be
no order as to costs.