CIVIL APPEAL NO. 2668 OF 2002
(With C.A. No 2669, 2670, 2671 and 2672 of 2002)
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
(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
(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
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
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
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.
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