Union of India and Ors Vs. Rajesh Vyas  Insc 151 (7 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NO. 2668 OF 2002 (With C.A. No 2669,
2670, 2671 and 2672 of 2002) Dr. ARIJIT PASAYAT, J.
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.
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.
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.
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.
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.
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.
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:
adverse effect and influence on the general morale and discipline, especially
on the young airmen joining various units from the training centers.
Unit level administration was kept pre-occupied with these chronic in
discipline cases impinging on time which was otherwise required for
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
Invariably many of these airmen were not performing well in their trades also.
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"):
Total number of punishment entries six and above (including Red and Black ink
Four Red ink punishment entries; and
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.
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".
offenders who were not found suitable for retention in service were initially
placed in two categories,
offenders who have already crossed the criteria as laid down vide paragraph 4
(a), (b) and (c) of the policy guidelines, and
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
noted above, policy for discharge of habitual offender was considered by this
Court in A.K. Bakshi's case (supra).
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.
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.
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.
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.
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.