JUDGMENT R.K. Agrawal, J.
1. Special Appeal No. 865 of 1999 has been filed by the appellant-writ petitioner, Sugreev Singh Desuriya, against the judgment and order dated 24.11.1995 passed by the learned single Judge, whereby, the learned single Judge, dismissed the Misc. Writ Petition No. 3320 of 1991 with the following observations :
"In my opinion as the petitioner has not prayed for any relief against any punishment order either minor or major, but apprehending some punishment, he has prayed for direction to the respondents not to discharge the petitioner prematurely.
The main grievance shown by the petitioner with regard to the warning contained in Annexure-23 which refers to previous action taken against the petitioner and the warning by itself is not indicative of the ultimate order of discharge. In my opinion, the warning issued to the petitioner as contained in the letter dated 5th April, 1990, is only to warn so that he may improve and mend himself by which his good acts and discipline may be reflected. In my opinion, this warning by itself is neither any punishment nor any cognizance can be taken for interference in exercise of powers under Article 226 of the Constitution.
With regard to the administrative actions, there is departmental remedy provided, which the petitioner has already availed. The petitioner has not prayed for quashing of any punishment awarded to him or any adverse order passed against him in the present writ petition. Moreover, as stated earlier, the petitioner has been discharged from service and whatever objection he has to raise, the same can be looked into at the time of hearing of the validity of the action of discharge from the service."
For the above reasons, the petition is dismissed."
2. Special Appeal No. 867 of 1999 has been filed by the appellant-writ petitioner Sugreev Singh Desuriya against the judgment and order dated 18.1.1996 passed by the learned single Judge in Writ Petition No. 4231 (S/S) of 1992. whereby, the learned single Judge had dismissed the writ petition with the following observations :
"The main relief claimed by the petitioner in the present petition appears to be for quashing the order of discharge and for his continuance in service. The other reliefs relating to promotion, etc. claimed in the petition could be considered only after the petitioner has been reinstated in services.
In so far as the challenge to the warning letter issued to the petitioner, the warning by itself is neither any punishment nor in any manner it effects the reputation of the petitioner or casts any stigma or imputation. The warning has been issued to warn the petitioner to be careful and to mend his ways and activities as already sufficient adverse material has been placed on the service record and his case may be considered on the basis of service for action discharge.
In my opinion, the warning does not in any manner prejudice the petitioner's case nor does it cast any stigma on his character and conduct. In fact the warning letter was given with the intention to warn the petitioner to be more cautious and be more careful in performance of his duties. The previous warning establishes the bona fides of the action taken against the petitioner and is in conformity with the rules and correct procedure.
The award of the punishment, entries are borne out from the material on record and thus punishment entries having been provisionally awarded against which the petitioner has already been afforded adequate opportunity to defend himself.
Coming to the order of discharge I am of the opinion that adverse material placed on record by the respondents fully justified, their caution and specially when in defence service an outstanding merit and discipline is required. The adverse material indicates that the respondents were fully Justified in taking the above action. In my opinion, the order is neither arbitrary nor based on irrelevant considerations and nor there is non-application of mind by the concerned authority. The grounds raised in the petition do not establish that the impugned order suffers from any illegality or infirmity. The petition is devoid of merit and is accordingly dismissed."
3. Both the appeals are taken up together, as they relate to the same writ petitioner-appellant and are being decided by a common judgment.
4. We have heard the appellant-writ petitioner, Sugreev Singh Desuriya in person and Sri S.K. Rai. learned Additional Standing Counsel for the Central Government.
5. Briefly stated, the facts giving rise to the present appeals are as follows :
"The appellant-writ petitioner was at the relevant time holding the rank of Air Corporal, a noncommissioned Officer in the Indian Air Force. According to the appellant-writ petitioner, he had been protesting against the illegal action of the respondents. He had been given adverse remarks and minor punishments in the conduct-sheet on account of bias and prejudice of the Superior Officers without any fault on his part. He had already made representation to the higher authorities against the adverse remarks and minor punishments, but no action had been taken by the higher authorities. According to him, in some cases the authorities did not even apply their mind and without looking to the correct facts have rejected the representations, whereas some of them had remained undecided. The appellant-writ petitioner has been discharged from service under the provisions of Rule 15. Clause (2) (g) (ii) contained in Chapter-VII of the Air Force Rules. 1969. It appears that the appellant-writ petitioner was awarded 14 days confinement to camp on 26.7.1985, which was entered in red ink in his conduct sheet. He was reprimanded on 27.5.1987 and 1.11.1987. He was again severely reprimanded on 21.1.1988 and 29.1.1988. which were written in red ink. He was issued a warning on 5.4.1990 informing him that he is on the threshold of becoming a habitual offender and one more punishment entry (either red or black) will result in discharge from the service. Thus, he was warned to mend himself and act in a manner of good order and discipline. The appellant-writ petitioner failed to improve and he was severely reprimanded on 15.6.1991 and on 24.9.1991. which were entered in red ink in his conduct sheet. After giving a show cause notice and considering his explanation, the appellant-writ petitioner was discharged from service on 14.11.1991 on the ground of 'Services no longer required and unsuitable retention for Air Force'."
6. The appellant-writ petitioner submitted before us that he was charged falsely on all the occasions and tried summarily in an arbitrary manner. He ought to have been tried by Court Martial, where he would have got opportunity to know the charges framed against him, entitled to cross examine witnesses and make statement in his defence, the denial of which had resulted in gross violation of justice. He further submitted that he had made representation against the adverse entry/censure warning issued to him which were not considered at all and even when the application for redressal of his grievances filed by him for disposal was pending, a warning letter was issued to him on 5.4.1990, which is wholly illegal and arbitrary. He further submitted that Rules 15 and 24 of the Air Force Rules. 1969. as also the confidential policy of Habitual Offenders Airman (Discharge) adopted by the Indian Air Force is ultra vires and arbitrary. According to him the respondent cannot discharge him from service on the basis of some confidential policy, which was not made known to him. Thus, he submitted that the order of discharge is liable to be set aside.
7. Sri S.K. Rai learned additional standing counsel, however, submitted that the appellant-writ petitioner had been given entries in Red and Black ink' in his conduct book and when it increased to more than four, a warning letter was issued lo him to mend his ways. When another red entry was given, he was issued a show cause notice to show cause as to why he should not be discharged to which the appellant-writ petitioner replied and thereafter he was discharged from service. He further submitted that this policy of Discharge of Habitual Offender applied by the Indian Air Force, has been subject-matter of consideration before the Hon'ble Supreme Court in the case of Union of India and Ors. v. Corporal A.K. Bakshi and Anr. AIR 1996 SC 1368, The Hon'ble Supreme Court has upheld the order of discharge on the basis of this policy. He further submitted that in the said policy, the basic idea in the said policy is that recurring nature of punishment for misconduct imposed on an Airman renders him unsuitable for further retention in the Air Force and is not by way of punishment for the mis-conducts for which he has already been punished. The policy cannot be said to be ultra vires or illegal.
8. It is not in dispute that the following entries were given to the appellant-writ petitioner in his Conduct Book :
Date of Offence Nature of Misconduct Punishment awarded 26.7.1985(AC)
(a) Failed to carry out the duties of key orderly of this squadron properly in that he handed over the keys to an unauthorised person 653001 A. C. Sharma (Elect. /Fet) without proper authority on 26th July, 1985.
14 days Confinement to Camp
(b) Reporting late to wring control Registry for collection /despatch of official main pertaining to this squadron while on mail orderly duty.
(c) While on Mail orderly duty, misplaced the two copies of SRO (No. 28 and 29) on 30th July, 1989.
27.5.1987 Absented himself from duty at 7.00 hrs. on 27.5.1987 and reported back to duty at 7.00 hrs, on 28.5.1987 Total absence 23 hrs. 59 mts. (Black ink).
Reprimand 1.11.1987 Failed to book in/in the Airmen book out/in Register at 2359 on 1.11.1987. Till he booked al Main Guard Room at 7.30 hrs. on 2.11.1987. (Total absence of 7.00 hrs. and 31 mts-1. [Blue ink].
Reprimand 21.1.1988
1. Disobeying the orders of 223417 FMWO Kalimullah by preparing ac C-1140 instead of ac C-1119and C 1164.
2. Used insubordinate language to Sqn. Ldr.
N. K. Jain, a Superior Officer by saying 'I am working for the nation and I am not doing my personal work'. [Red lnk].
Severely Reprimanded 29.1.1988
1. Addressed three Personal application dated 29.1.1988, 2.2.1988 and 2.2.1988 directly to the AOC-in-C/AF.
2. Use insubordinate language and criticising Superior Officer that is WG CDR O. P. Sharma [Red Ink].
Severely Reprimanded
9. He was issued a warning on 5.4.1990. Thereafter, again an entry in red ink 'Severely Reprimanded' was made in his conduct book on 15.6.1991 for an offence committed on 2.5.1991 and again on 24.9.1991 for an offence committed on 9.8.1991.
10. The policy for discharge as reproduced by the Hon'ble Supreme Court in the case of Union of India v. A.K. Bakshi (supra) provides that the Airmen, who meet anyone of the following Individual criteria are to be treated as habitual offenders and considered for discharge under Rule 15 (2) (g) (ii) of the Air Force Rules. 1969 :
(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) for repeated commission any one specific type of offence such as disobedience, insubordination. AWL. breaking out of camp, offence involving alcohol, mass indiscipline, use of abusive/ threatening language, etc.
11. The Hon'ble Supreme Court in the case of Union of India v. A. K. Bakshi (supra) has upheld the order of discharge based upon the aforesaid policy. The Hon'ble Supreme Court has held as follows :
"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 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 already been punished. The basic idea underlying the policy for discharge is that 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 been imposed earlier being part of the record of service have to be taken into consideration for the purpose 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 way of punishment for misconduct falling under Rule 13 of the Rules.
We are therefore, unable to agree with the High Court that termination of services on the basis of the policy for discharge does not constitute discharge under Rule 15 (2) (g) (ii) but amounts to removal for misconduct under Rule 18 of the Rules.
It is not disputed that in both these cases, the procedure prescribed under the policy for discharge has been followed. The order for discharge of the respondents thus do not suffer from any infirmity and the Division Bench of the High Court was in error in setting aside the said orders."
12. The appellant-writ petitioner falls under one of the aforesaid categories. The respondents have followed the procedure of giving a warning as also issuing a show cause notice after he again incurred a red ink entry in the conduct book and after considering the explanation, had discharged him from service, which cannot be said to be contrary to the policy of discharge of habitual offender.
13. The contention of the appellant-writ petitioner is that the aforesaid policy is ultra vires and Illegal, cannot be accepted, inasmuch as he had failed to show any illegality in the said policy. The procedure followed for discharging of a habitual offender is in conformity with the principles of natural justice, equity and fair play, as at the initial stage, a warning is issued to the person concerned to mend the ways and thereafter a show cause notice is also given before discharging an airman.
14. So far as the contention that Rule 15 of the Air Force Rules, 1969, is ultra vires and illegal is concerned, we do not find any illegality in the said Rules.
15. It may also be mentioned here that for the minor punishment awarded to the appellant-writ petitioner, he was given adequate opportunity of placing his defence and the same was in accordance with the Rules and the procedure provided by the various orders. The learned single Judge has found that the appellant-writ petitioner has been given full opportunity to represent against the award of minor punishment for his misconduct. Moreover, all his representations made against the minor punishments have been rejected by the authorities. Therefore, no exception can be taken to the procedure adopted by the respondents.
16. So far as the question as to whether the appellant-writ petitioner ought to have been tried by a Court Martial and not in a summary manner under Section 82 of the Act is concerned, it is open to the authorities to proceed either under Section 73 or under Section 82 against the appellant-writ petitioner. If it has been proceeded under Section 82 of the Air Force Act, 1950. it cannot be said that the minor punishment awarded to the appellant-writ petitioner is without jurisdiction.
17. In view of the foregoing discussions, we do not find any infirmity in the judgment and order passed by the learned single Judge. Both the special appeals fail and are dismissed.