Supreme Court of India
UNION OF INDIA AND ORS.versusCORPORAL AK. BAKSHI AND ANR.
- Citation
- 1996 INSC 309
- Decided
- 23 February 1996
- Disposal
- Appeal(s) allowed
- Bench
- S C AGRAWAL
Holding
Discharge of habitual offenders under Rule 15(2)(g)(ii) is a discharge simpliciter based on unsuitability for retention and does not amount to a punitive dismissal under Rule 18.
Summary
Corporal AK Bakshi and Corporal Sobhanan, each having accrued six punishment entries for misconduct, were discharged from the Indian Air Force under the Policy for Discharge of Habitual Offenders, which directs that such cases be dealt with under Rule 15(2)(g)(ii) of the Air Force Rules, 1969. They challenged the discharge through writ petitions in the Karnataka High Court. While the single judge dismissed the petitions, the division bench reversed, holding that the discharge amounted to a punitive dismissal under Rule 18 and was therefore invalid. The Supreme Court examined the distinction between Rule 15(2)(g)(ii), which authorises discharge for unsuitability, and Rule 18, which deals with dismissal as punishment for misconduct. It held that the policy‑driven discharge is a simple discharge based on unsuitability, not a punitive removal, and that the procedure prescribed under the policy had been duly followed. Consequently, the High Court’s reversal was set aside and the single judge’s order restored.
Issues considered
- Whether a discharge of an airman under the Policy for Discharge of Habitual Offenders, invoked via Rule 15(2)(g)(ii) of the Air Force Rules, constitutes a termination of service as punishment for misconduct under Rule 18.
- Whether the Policy for Discharge of Habitual Offenders is valid and its procedure complies with the requirements of the Indian Air Force Act, 1950.
Legislation cited
- Air Force Act, 1950s. 18, s. 189, s. 19, s. 20, s. 22
Subjects
Indian Air Forcehabitual offendersdischargeRule 15(2)(g)(ii)Rule 18military lawservice terminationpolicy directiveadministrative lawwrit petition
Judgment
\
A UNION OF INDIA AND ORS.
v.
CORPORAL AK. BAKSHI AND ANR.
FEBRUARY 23, 1996
B (S.C. AGRAWAL AND G.T. NANAVATI, JJ.]
Indian Air Force Rules, 1969: Rule 15(2)(g)(ii) & Rule 18: Habitual
Offenders-Discharge from Indian Air Force in pursuance of Policy Directive
--
dated August 14, 1984-Whether mere discharge simpliciter envisaged under
C Rule 15(2)(g)(ii) or tennination of se1vice for misconduct under Rule 18.
Indian Air Force Act, 1950: Sections 22 & 189 read with Rule
15(2)(g)(ii) & Rule 18: Habitual offenders-Discharge of from Indian Air
Force in pursuance of Policy for Discharge of Habitual Offenders as
D presclibed in Policy Directive dated August 14, 1984-Validity of.
Section 22 of the Air Force Act, 1950 provides for retirement, release
or discharge from service of persons subject to !he Act, by such authority
and in such manner as may be prescribed. Sub-section (1) of section 189
empowers the Central Government to make rules for carrying into effect
E the provisions of the Act. Clause (a) of sub-section (2) of section 189
authorises the making of rules to provide for the removal, retirement,
.release or discharge from service of persons subject to the Act•.
Rule 15(2)(g)(ii) of the Air Force Rules, 1969, framed under section
-
189 of the Act empowers the Air Officer-in-Charge Administration to
F discharge persons, enrolled under the Act, found unsuitable for retention
in the Air Force. Rule 18 of the said Rules provides for dismissal or
removal of a person subject to the Act.
The Air Headquarters vide Policy Directive dated August 14, 1984
G laid down the Policy for Discharge of Habitual Offenders prescribing the
guidelines to deal firmly with them. Paragraph 4 of the said Policy
categorized airmen with total of six and above punishment entries as
habitual offenders to be considered for discharge. The Appendix to the
said policy detailed the procedure for discharge.
H The respondent corporals had been punished for six offences. In
986
} U.0.1.v. AK. BAKSHI 987
accordance with the procedure for discharge they were issued notices by A
the Group Captain to show cause as to why for the said acts of indiscipline
they should not be discharged from service under rule 15(2)(g)(ii) of the
Rules for having become habitual offenders liable for discharge. The
recommendation made for their discharge, after considering the replies,
was accepted by the Air Officer-in-Charge Administration and approved B
by the Air Officer-in-Charge Personnel, and orders for their discharge
issued.
The Single Judge of the High Court dismissed their writ petitions
against the said discharge orders. However, on writ appeals the Division
Bench took the view that rule 15(2)(g)(ii) makes provision for termination C
of services for causes not involving any misconduct and rule 18 provides
for termination by way of punishment for misconduct. Allowing the ap-
peals it held that discharge under the Policy for Discharge amounts to
termination of the services of the airmen for misconduct which led to their
conviction and award of punishment under the Act falling under rule 18
of the Rules, and is not mere discharge simpliciter envisaged under rule D
.15(2)(g)(ii) of the Rules.
Allowing the appeals and restoring the judgment of the Single Judge,
the Court
HELD : 1. The Division Bench of the High Court was in error in
E
setting aside the orders of discharge of the respondents from the Indian
Air Force passed in pursuance of the Policy for Discharge of Habitual
Offenders. (996-D; 996-C]
2. The Policy for Discharge envisages that in cases where an airman F
has been awarded punis.hments six times for misconduct, he is to be
treated as a habitual offender and action for his discharge from service
should be taken against him under rule 15(2)(g)(ii) of the Rules. This
action for discharge is not by way of punishment for the misconducts for
which he has already been punished. The basic idea underlying the policy
for discharge is that recurring nature of punishments for misconduct G
imposed on an airman renders him unsuitable for further retention in the
Air Force. Suitability for retention in the Air Force has to be determined
on the basis of record of service. The punishments that have been imposed
earlier being part of the record of service have to be taken into considera-
tion for the purpose of deciding whether such person is suitable for H
988 SUPREME COURT REPORTS [1996) 2 S.C.R.
\
A retention in the Air Force. The discharge in such circumstances is, there·
fore, discharge falling under rule 15(2)(g)(ii) and it cannot be held to be
termination of service by way of punishment for misconduct falling under
rule 18 of the Rules. [995-G-H; 996-A-B]
3. It is not disputed that in both the cases the procedure prescribed
B under the Policy for Discharge has been followed. The orders for discharge
of the respondents thus do not suffer from any infirmity. [996-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 630-31
of 1993.
c From the Judgment and Order dated 4.3.92 of the Karnataka High
Court in W.A. Nos. 78·, 141and152 of 1992.
P.P. Malhotra, T.V. Ratnam, Ms. Anil Katiyar and Ms. Sushma Suri
for the Appellants.
D
Bhim Sen Sehgal for Mitter & Mitter Co. for Respondent No. 1.
Dr. N.M. Ghatate, S.V. Deshpande and S. Kulshrestha for the
Resondents.
E The Judgment of the Court was delivered by
S.C. AGRAWAL, J. The question which falls for consideration in
these appeals is whether an order for discharge from the Indian Air Force
in accordance with the procedure laid down in the Policy for Discharge of
Habitual Offenders under Rule 15(2)(g)(ii) of the Air Force Rules, 1969,
F as prescribed in the Policy Directive dated August 14, 1984, [hereinafter
referred to as 'the Policy for Discharge'] amounts to removal by way of
punishment falling under Rule 18 of the Air Force Rules, 1969 (hereinafter
referred to as 'the Rules').
The Air Force Act, 1950 (hereinafter referred to 'the Act'), in
G Chapter IV, makes provisions for conditions of st:rvice of every person
subject to the Act. Section 18 prescribes that the every person subject to
the Act shall hold office during the pleasure of the President. Section 19
empowers the Central Government to dismiss or remove from service any
person subject to the Act. The said power is subject to the provisions of
H the Act and the rules and regulations made thereunder. Section 20 deals
} U.0.1. v. AK. BAKSHI [S.C. AGRAWAL, J.) 989
with the power of the Chief of the Air Staff and other officers in the matter A
of Clismissal, removal or reduction of persons subject to the Act. Section
22 lays down that any person subject to the Act may be retired, released
or discharged from tlie service by such authority and in such manner as
may be prescribed. Sub-section (1) of Section 189 confers on the Central
Government the power to make rules for the purpose of carrying into effect B
the provisions of the Act. Clause (a) of sub-section (2) of Section 189
authorises the making of rules to provide for the removal, retirement,
release or discharge from the service of persons subject to the Act. In
exercise of the power conferred by Section 189 the Central Government
has framed the Rules. Rule 15 specifies the authorities who are competent
to authorise discharge from service of persons subject to the Act for· the C
specified causes and also the manner in which the said power is to be
exercised. Rule 15 reads as under :
"15. Authorities empowered to authorise discharge :-
(1) Each of the authorities specified in column 3 of the Table below D
shall be the authority competent in respect of persons subject to
the Act specified in column 1 thereof for the causes specified in
column 2 and in the manner specified in column 4, to discharge
such persons from the service.
E
(2) Any power conferred by this rule on any of the aforesaid
authorities may also be exercised by any other authority superior
(O it.
TABLE
F
Cause of Competent Special
Oass to Authority
discharge authorise Instructions
Persons (a) x x x x x
enrolled (b) x x x x x
under the G
Act who (c) x x x x x
have been (d) x x x x x
arrested.
(e) x x x x x
(t) x x x x x
990 SUPREME COURT REPORTS (1996) 2 S.C.R.
A (g) His
services Ix x x x
no longer
required-
(i) x x x x x
B (ii) Unsuitable
Air Officer l/C
for retention in x
Administration
the Air Force
Rule 16 deals with dismissal or removal of officers for misconduct
C and prescribes the procedure to be followed in that regard. Rule 17 deals
with removal from service of officer on grounds that he is unfit to be
retained in service due to inefficiency, physical disability or othe~ ground
other than misconduct. Rule 18 deals with dismissal or removal of~ person
subject to the Act other than an office~.
D A project study on 'absence without leave' (AWL) of airmen cover-
ing the period 1978 to 1983 made by the Institute of Defence Management
brought out the following salient features regarding the existence of
habitual offenders among airmen :
"(a) There is a specific hard core group of airmen in the Air Force
E (about 1288 in number from all trades) who have been contributing
regularly and predominantly to the annual offence statistics in the
Air Force year after year. Further breakdown of the group based
on the number of punishments and the corresponding number of
airmen in each of these sub-groups is as under :-
F
Groups based on No. of Progressive
punishments on record Airmen Total
11 and above 17 17
10 7 24 .....
9 11 35
G 8 22 57
~'
7 56 113
6 80 193
5 145 338
4 339 677
3 611 1288
H
1 U.0.1. v. AK BAKSHI [S.C. AGRAWAL, J.] 991
{b) This group of airmen has not been repeating AWL offences, A
but also other offences and ·
(c) This group of airmen have been a strong source of adverse
influence on the general discipline of other airmen in the service.
Adverse Effects : B
3. The main adverse effects flowing out of the repetitive indis-
cipline perpetrated by this group of habitual offenders were :
(a) Serious adverse effect on the general morale and discipline,
especially on the young airmen joining various Units from the C
training centres.
(b) Unit level administration is kept preoccupied with these
chronic indiscipline cases impinging on time which is otherwise
required for constructive activity. D
(c) Very often, at some stage or the other, airmen from this group
are found to commit serious offences not only within but also
outside the Air Force, thereby tarnishing the image of the service.
(d) Invariably many of these airmen are not performing well in E
their trades also. Hence their overall contribution to the service is
negligible.
(e) Some of the airmen of this group have been promoted and
have attained the ranks of SNCOs (Sgts. and above). Such SNCOs
are a very poor example to others particularly the younger airmen." F
Having regard to the existence of habitual offenders among the
airmen and the adverse effects of their repetitive indiscipline of habitual
offenders among the airmen on the general discipline and administration
of the Indian Air Force, the Air Headquarters decided to lay down the G
Policy for Discharge prescribing the guidelines to deal firmly with such
habitual offenders. In paragraph 4 of the said policy it was prescribed :
"Airmen who meet any one of the following individual criteria are
to be treated as habitual offenders and considered for discharge
under Rule 15(2)(g)(ii) of Air Force Rules, 1969 :- H
'
'
992 :slJl'REME COURT REPORTS (1996] 2 S.C.R.
l
A (a) Total number of punishment entries six and above (including
Red and Black ink entries) :
(b) Four Red ink punishment entries: -
(c) Four punishment entries (Red and Black ink entries included)
B
-
for repeated commission of any one specific type of offence such
as disobedience, insubordination, AWL, breaking out of camp,
offences involving alcohol, mess indiscipline, use of abusive/
threatening language, etc."
c The detailed actions and procedures which are required to be fol-
lowed to implement the Policy for "Jischarge are given in the Appendix to
the policy (hereinafter referred to as 'the Procedure for Discharge'). By
paragraph 3 of the Procedure for Discharge habitual offenders who may
not be found suitable for retention in service are initially placed in two
D categories, viz., (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. Under paragraph 7 Units/Stations
are required to order Boards of Officers to scrutinize the service docu-
ments (conduct sheets) of all airmen with a view to identify and list out the
habitual offenders and potential habitual offenders as per 'the criteria laid
E down in paragraph 4 (a), (b) and (c) of the policy guidelines. Copies of
the proceedings of the Board of Officers are required to be forwarded to
the Command Head-quarters and Air Force Records. Under paiagraph 9
airmen of both categories are to be warned in writting by the Commanding
Officer personally about the implication of their persisting in acts of
F indiscipline and they are to be in-formed that firstly, they are getting
another opportunity to mend themselves and an addition of another
punishment entry (either Red or Black) in their record will result in their
discharge. Under paragraph 11 conduct sheet of the airman is required to
be reviewed by the Adjutant of the unit concerned every time an airman
put on charge is found guilty and punished to ascertain whether the
G offender falls in any of the categories and, if so, to initiate appropriate
action where necessary. Under paragraph 13 it is required that whenever
an airman of the above two categories is awarded another punishment, his
case is to be immediately reported by the Unit to the Command concerned.
In paragraph 14 it is provided that all cases of the two categories, i,e, those
H who have already crossed the criteria laid down for qualifying as habitual
.... U.0.1.v. AK.BAKSHI [S.C.AGRAWAL,J.] 993
offenders and those on the threshold of doing the same, reported to A
Command Headquarters either by the initial Board of Officers or in-
- dividually, are to be monitored by the Command Headquarters and on
receipt of intimation regarding award of another puilishment in such cases
the Command Headquarters are to issue show cause notice to the in-
dividual. By paragraph 15 it is required that all cases of airmen who have B
been served with show cause notices are to be individually forwarded with
all the relevant replies/details/documents/recommendations to Directorates
of PS and PA at AIR Headquarter at the earliest. Paragraph 16 makes
provision for scrutinising of the cases by the Directorate of PS and for
forwarding the same to the Directorate of PA with their recommendations.
Under paragraph 17, the Directorate of PA has to submit the cases to Air C
Officer Incharge Personnel for his approval and then to intimate follow up
action with Air Force Records Officer.
Both the respondents, namely, Corporal AK. Bakshi and Corporal
Sobhanan, had been punished for six offences and in accordance with the D
Procedure for Discharge show cause notices were issued to them by the
Group Captain of Headquarters Training Command, IAF, Bangalore,
acting for Air Officer. Commanding-in-Chief, requiring them to show cause
as to why for the said acts of indiscipline they should not be discharged
from service under Ru!e 15(2)(g)(ii) of the Rules for having become a
habitual offender liable for discharge. They submitted their replies to the E
show cause notice. After considering the said replies, recommendation for
discharge was IJ.ade and the said recommendation was accepted by the Air
Officer-in-charg~ Administration which was finally approved by the Air
Office-in-charge Personnel and thereafter the orders for their discharge
were issued. Feeling aggrieved by the said orders of discharge, the respon- F
dents filed writ petitions (C.W.P Nos. 12320 of 1990 and 5850 of 1990) in
the High Court of Karnataka. Both the writ petitions were dismissed by
- the learned single Judge by judgment dated January 3, 1992. The said
respondents filed writ appeals (W.A. Nos. 141 of 1992 and 152 of 1992)
against the said decision of the learned single Judge. The said appeals have
been allowed by the Division Bench of the High Court by the impugned G
judgment dated March 4, 1992. The High Court has rejected the contention
urged on behalf of the respondents that the Policy for Discharge is liable
to be struck down for the reason that it permits the counting of offences
for which the airmen were convicted and punished prior to August 1984.
The High Court has, however, held that termination of the services of H
994 SUPREME COURT REPORTS [1996] 2 S.C.R.
A persons subject to the Act could be by way of punishment for causes
involving their misconduct or may be for causes not involving their miscon-
duct, i.e., not by way of punishment. Rule 15(2)(g)(ii) makes provision for ...__
termination of services for causes not involving any misconduct and Rule
18 provides for termination by way of punishment for misconduct. It was
held that discharge under the Policy for Discharge amounts to termination
B of the services of the airman for misconduct which led to his conviction
and award of punishment under the Act falling under Rule 18 of the Rules
and is not mere discharge simpliciter envisaged under Rule 15(2)(g)(ii) of
the Rules. The High Court has also found that show cause notice was
-
issued to the respondents by the Group Captain at the Command Head-
C quarters and not by the Air Officer- in-charge who is empowered to dismiss
on account of misconduct which led to his conviction under Rule 18 of the
Rules.
The question which thus arises for consideration in these appeals is
whether an order of discharge passed in pursuance of the Policy for
D Discharge cannot be regarded as discharge under Rule 15(2)(g)(ii) and has
to be treated as termination of the service for misconduct falling under
Rule 18. We have already set out Rule 15(2)(g)(ii). We may now take note
of Rule 18 which provides as under :
E "18. Dismissal or removal of a person subject to the Act other than
mi officer:- Save in a case where a person subject to the Act other
than an officer is dismissed or removed from the service on the.
ground of conduct which had led to his conviction by a criminal
court or a court martial, no such person shall be dismissed or
removed under sub-section (1) or sub-section (3) of section 20
unless he has been informed of the ·particulars of the cause of
action against him and allowed reasonable time to state in writing
any reasons he may have to urge against his dismissal or removal
...
from the service.
(2) Notwithstanding anything contained in sub rule (1), if in the
G
·-
opinion of the officer competent to order the dismissal or.removal
of such person, it is not expedient or reasonably practicable to
comply with the provisions of sub-rule (1), he may after certifying
to that effect, order the dismissal or removal.
H (3) All cases of dismissal or removal without complying with the
J,
U.0.1.v. AK. BAKSHI [S.C.AGRAWAL,J.] 995
procedure prescribed in sub-rule (1) shall, without delay, be A
reported to the Central Government."
A perusal of the said Rule indicates that it deals with persons other
than officers subject to the Act. Sub-rule (1) provides that no such person
- shall be dismissed or removed under sub-section (1) or sub-section (3) of B
section 20 unless he has been informed of the particulars of the cause of
action against him and allowed reasonable time to State in writing any
reasons he may have to urge against his dismissal or removal from the
service. This requirement is dispensed with in cases where a person is
dismissed or removed from service on. ground of conduct which has led to
his conviction by a criminal court or court martial. In other words, except C
in cases where the dismissal or removal from service is on the ground of
conduct which has led to his conviction by a criminal court or court martial,
if a person subject to the Act is dismissed or removed from the service he
must be informed about the particulars of the cause of action against him
and must be afforded an opportunity to make his submissions against the D
proposed dismissal or removal. Sub-rule (2) dispenses with the require-
ment of issuing notice in cases where an officer competent to order the
dismissal or removal is of the opinion that it is not expedient or reasonably
practicable to comply with the provisions of sub-rule (1) and in such cases
he may after certifying to that effect order the dismissal or removal,
Sub-rule (3) lays down that all cases of dismissal or removal without E
complying with the provisions of sub-rule (1) must be reported to the
Central Government without delay.
According to the High Court, the provisions of Rule 18 are attracted
, in cases ·where a person is discharged on the basis of the Policy for p
Discharge for the reason that the action for discharge has been taken on
the basis of six punishments which have been imposed on him. We find it
difficult to endorse this view of the High Court. The punishments referred
to in the Policy for Discharge are punishments that have been imposed for
misconduct under the relevant provisions of the Act and the Rules. The
Policy for Discharge envisages that in cases where an airman has been G
awarded such punishments six times, he is to be treated as a habitual
offender and action for his discharge from service should be taken against
him under Rule 15(2)(g)(ii) of the Rules. This action for discharge is not
by way of punishment for the misconducts for which he has akeady been
punished. The basic idea underlying the Policy for Discharge is that H
996 SUPREME COURT REPORTS . [1996] 2 S.C.R.
A recurring nature of punishments for misconduct imposed on an airman
renders him unsuitable for further retention in the Air Force. Suitability
for retention in the Air Force has to be determined on the basis of record
of service. The punishments that have b~en imposed earlier being part of
the record of service have to be taken into consideration for the purpose
B of deciding whether such person is suitable for retention in the Air Force.
The discharge in such circumstances is, therefore, discharge falling under
Rule 15(2)(g)(ii) and it cannot be held to be termination of service by,~ay
of punishment for misconduct falling under Rule 18 of the '"Rules. We are,
therefore, unable to agree with the High Court that i~rmination of services
on the basis of the Policy for Discharge does ~ot constitute discharge under
C Rule 15(2)(g)(ii) but amounts to removal for misconduct under Rule 18 of
the Rules. ,11 '
It is not, ~isputed that in both these cases the procedure prescribed
under the;E>olicy for Discharge has been followed. The orders for discharge
of the re~pondents thus do not suffer from any infirmity and the Division
D B~;;_ch of the High Court was in error in setting aside the said orders.
The appeals are, therefore,. allowed, the Judgmei:it of the Division
Bench of the High Court dated March 4, 1992 in W.A. Nos. 141 of 1992
and 152 of 1992 is set aside and the judgment of the learned single Judge
E dated January 3, 1992 dismissing the writ petitions filed by the respondents
is restored. No order as to costs.
P.S.S. Appeals allowed.
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