Holding

The Supreme Court held that the replies to the show‑cause notices were duly considered, making the discharge orders valid and the High Court judgments erroneous, except in the case where the appellant did not appear.

Summary

The Union of India and others sought to discharge several Airmen under the Habitual Offenders Policy, issuing show‑cause notices and receiving replies from the respondents. The respondents challenged the discharges, alleging that the replies to the show‑cause notices were not considered, thereby violating natural justice. The Rajasthan High Court Single Judge held the discharges invalid, a view affirmed by the Division Bench in four of the five appeals. The Supreme Court examined the records and found that, contrary to the High Court's view, the replies were duly considered before the competent authority approved the discharges under Rule 15(2)(g)(ii) of the Air Force Rules. Consequently, the Court set aside the High Court judgments in the four appeals, allowing them, but dismissed the fifth appeal (Civil Appeal No. 2670) where the appellant had not appeared and had filed an affidavit stating no explanation. The Court affirmed that the discharge process complied with the principles of natural justice.

Issues considered

Whether the discharge orders under the Habitual Offenders Policy complied with the principles of natural justice, specifically whether the replies to the show‑cause notices were considered.
Whether the High Court erred in holding that the replies were not taken into account before discharging the Airmen.

Legislation cited

Air Force Rules, 1969s. Rule 15(2)(g)(ii)
Rajasthan High Court Ordinance, 1949s. Section 18

Subjects

Service LawDischarge of AirmenHabitual Offenders PolicyNatural JusticeShow Cause NoticeMilitary DisciplineAir Force Rules

Judgment

le [2008] 2 S.C.R. 571

.... _ \ UNION OF INDIA AND ORS . A
·-t- II.
~ RAJESH VYAS
I
(Civil Appeal No. 2668 of 2002)
FEBRUARY 7 2008 I

B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

-.\ Service Law:
j.

Air Force Rules, 1969; r.15(2)(g)(ii)!Air Force Act, 1982;
S.82: c
Discharge of Airmen from service in terms of guidelines
issued under Habitual Offenders Policy- Issuance of warning
to Airmen to improve their conduct and behaviour - Before
ordering discharge of delinquent airmen, a show cause notice
D
was issued for committing further offence by them - Delinquent
airmen discharged from service by competent authority after
" due service of show cause notice and consideration of reply
in each case complying with relevant instruction in connection
" thereof- On facts, Courts below were wrong in holding that the
reply to show cause notice was not considered by the authority E
- Hence, judgment of the Single Judge as a/so Division Bench
of the High Court set aside - However, in the facts and
circumstances of the connected appeal (C.A. No. 2670 of 2002),
Division Bench of the Hjgh Court rightly set aside order of
Single Judge - No interference with the order of the High Court F
' "' in that case called for.
Respondents filed writ petitions against the order of
discharge passed by the appellants. The petitions were
allowed by the Single Judge of the High Court holding
that the order of discharge was passed by the authorities G
,, in clear violation of principles of natural justice. Appeals
filed against the order of the Single Judge were dismissed
by the Division Bench of the High Court upholding the
view of Single Judge in four cases, against which present
571 H
572 SUPREME COURT REPORTS [2008) 2 S.C.R.

A appeals were filed by the ·appellants. ~ _,,
4·

Appellant-Union of India contended that the original ,_
~-

records were produced before the High Court, which
clearly indicate that show cause notice was issued; that
the fact that each of such respondents had replied to show
B cause notice is also not disputed by respondents; that
both Single Judge and the Division Bench of the High
Court went wrong in holding that without consideration ~·
-4.
of the replies the order of discharge had been passed.

c Respondents submitted that the order of discharge
does not indicate any consideration of reply to the show
cause notice.
Dismissing Civil Appeal No.2670 of 2002 and allowing
the other appeals, the Court
D
HELD: 1.1 It appears that the Habitual Offenders'
Policy was formulated by the appellants as a result of a ......
project study on offences of 'absence without leave' ~
and other offences committed by Airmen, which brought
out the salient features regarding the existence of
E
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
F Airmen have been a strong source of adverse influence
>.'
on the general discipline of other Airmen in the service.
(Para - 7) [575-G, H; 576-A]
. 1.2 In terms of the Habitual Offenders Policy, warning ·
had to be given to an Airman who was on the threshold
G
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
H
UNION OF INDIA AND ORS. v. RAJ ESH VYAS 573

. ·f'\ cause notice and, thereafter discharge was to be ordered A
I
by the competent authority under r. 15(2)(g)(ii) of the Air
Force Rules, 1969. (Para - 9) [577-E, F]
2. The materials relevant for the consideration of the
reply given by the concerned officia·ls are part of the
record. There is no dispute that the original records were B
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
to show cause notice in each case was considered. After
due consideration of the reply, the recommendation was c
that the competent authority may be pleased to approve
the discharge of concerned officials as unsuitable for
retention in service. Various officials considered the
matter and the competent authority finally accepted the
recommendation for discharge under r.15(2)(g)(ii) of the D
Rules. Thereafter, discharge order was passed where it
)I._ 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 E
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. The Single Judge and the Division Bench
of the High Court were wrong in holding that the reply
given to the show cause notice was not considered. F
. . .4.
The factual scenario is to the contrary. Hence, the
judgments of the Single Judge and the Division Bench
cannot be maintained and are set aside. (Paras - 11 &
12) [578-A-F]
3. So far as Civil Appeal No.2670 of 2002 is concerned G
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 stating that he had
no explanation and any clarification to offer. That being
so, Single Judge was not justified in allowing his writ H
574 SUPREME COURT REPORTS [2008] 2 S.C.R.

A petition. The Division Bench of the High Court was / .
--t- ,v
justified in allowing the Special Appeal filed by the I

appellant so far as he is concerned. Hence, in this case
the order of the High Court needs no interference. (Para
- 13) [578-F, G; 579-A]
B CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2668
of 2002.
From the Judgment and Order dated 26.09.2000 of the 1
A
High Court of Judicature for Rajasthan at Jodhpur in D.B. Special
c Appeal (W) No. 771 of 1998.
WITH '
'
C.A. No 2669, 2670, 2671 and 2672 of 2002.
R. Mohan, A.S.G., I. Venkatanarayana, Arvind Shukla,
D Kiran Bhardwaj, Ajay Sharma, B.K. Prasad and B.V. Balaram
Das for the Appellants.
,~
B.D. Sharma, Vyas and Dr. Aaray Lingaiah for the
Respondent. ,.
E The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. These five appeals have a I
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
F 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 w'rit
G 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 Unio:J) of India deserved to be
H allowed. In four cases filed by the Union of India before this Court,

..
'

-
~· ~
UNION OF INDIA AND ORS. v. RAJ ESH WAS
[PASAYAT, J.]
575

the Division Bench upheld the view of the learned Single Judge A
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 is~ued to which reply was furnished by
B
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 c
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 D
fact that each of such respondents had replied is also not
;I.. 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. E
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. F
"'- 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.
G
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 H
/

576 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
j-4
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
B 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 1
..l
joining various units from the training centers.
c
(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
D 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.
E
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
F 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
G
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
H
\

UNION OF INDIA AND ORS. v. RAJ ESH VYAS 577
[PASAYAT, J.]

· "'· 4 (in short the "Rules"): A
(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 B
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.
c
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 D
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) E
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 F
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).
G
10. As noted above, policy for discharge of habitual
offender was considered by this Court in AK Bakshi's case
(supra). After analyzing the policy, it was observed that the whole
idea underlying the poiicy was to weed out the indisciplined
personnel from the force. It was further observed that it was a H
/ ~,

578 SUPREME COURT REPORTS [2008] 2 S.C.R.

A discharge simplicitor and as such it cannot be held as termination
of service by way of punishment for misconduct.
+ '
I 4

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
B 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 1 ·
theAOP may be pleased to approve the discharge of concerned
C 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
D 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 APO
291/77, 40/89 and the letter of the Air Force Records Office
dated 28.11.1991 were strictly complied with. Above being
E 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
F 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
G 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
~o. 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
H
I

k,-

UNION OF INDIA AND ORS. v. RAJ ESH VYAS 579
[PASAYAT, J.]

case the order of the High Court needs no interference. A
14. In the ultimate result, Civil Appeal No.2670 of 2002 is
dismissed while the other appeals are allbwed. There shall be
no order as to costs.
S.K.S. Civil Appeal Nos. 2668, 2669, 2671 and B
2672 of 2002 allowed.
Civil Appeal No. 2670 of 2002 dismissed.