1. Discharge of airmen as habitual offenders under Rule 15(2)(g)(ii) of Air Force Rules, 1969 — Dispute whether such action constitutes removal by way of punishment under Rule 18. (Para 1 , 7 )
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1996 Supreme(SC) 459
1996(2) Supreme 308
SUPREME COURT OF INDIA
S.C. Agrawal and G.T. Nanavati, JJ.
Union of India & Ors. -Appellants
versus
Corporal A.K. Bakshi & Anr. -Respondents
Civil Appeal Nos. 630-31 of 1993
Decided on 23-2-1996
IMPORTANT POINT
An order of 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 does not amount to removal from service by way of punishment falling under Rule 18 of the Air Force Rules, it is a discharge under Rule 15(2)(g)(ii).
Headnote:Air Force Act, 1950-Section 189-Air Force Rules, 1969-Rules 15 and 18-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 Air Force Rules as prescribed in the Policy Directive dated 14.8.1984 -Writ Petition against-Dismissed by Single Judge-Reversed by DB on appeal-DB holding that Rule 18 attracted if there was discharge under "the Policy of Discharge"-Whether correct? (No).
Held: 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 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 airmen 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 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 18 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. (Para 10)
It is not disputed that in both these cases the procedure prescribed under the Policy for Discharge has been followed. The orders 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. (Para 11)
Held finally: The appeals are, there- fore, allowed, the judgment 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 dated January 3, 1992 dismissing the writ petitions filed by the respondents is restored. No order as to costs. (Para 12)
Legal Category Hierarchy
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administrative law
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service law
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military law
- conditions of service
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military law
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service law
Table of Contents
2. Whether discharge under the Policy for Discharge for habitual offenders amounts to termination for misconduct under Rule 18 or discharge simpliciter under Rule 15(2)(g)(ii). (Para 7 )
3. Discharge for habitual offense is a determination of unsuitability for retention based on service records, not a punishment for misconducts already penalized. (Para 10 )
4. Discharge of a habitual offender under Rule 15(2)(g)(ii) for unsuitability for retention is distinct from removal as a punishment for misconduct under Rule 18. (Para 10 )
5. Appeals allowed — High Court Division Bench judgment set aside — Single Judge's order dismissing writ petitions restored. (Para 11 , 12 )
6. Does discharge of a habitual offender under Rule 15(2)(g)(ii) of the Air Force Rules, 1969, constitute removal by way of punishment under Rule 18?
No. Such discharge is based on the recurring nature of punishments which renders the person unsuitable for further retention in service. It is a determination of suitability based on service records, not a punishment for the misconducts for which the person was already penalized. (Para 10 )
7. What is the legal distinction between Rule 15(2)(g)(ii) and Rule 18 of the Air Force Rules, 1969?
Rule 15(2)(g)(ii) provides for discharge from service for causes not involving misconduct, known as discharge simpliciter, whereas Rule 18 provides for dismissal or removal from service specifically as a punishment for misconduct. (Para 7 , 10 )
8. How is suitability for retention in the Air Force determined for habitual offenders?
Suitability is determined based on the record of service. If an airman's record shows a recurring pattern of punishments for misconduct, they may be treated as a habitual offender and considered unsuitable for further retention in the service. (Para 10 )
JUDGMENT
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, 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 ).
2. The Air Force Act, 1950 (hereinafter referred to as the Act ), in Chapter IV, makes provisions for conditions of service of every person subject to the Act. Section 18 prescibes that 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 the Act and the rules and regulations made thereunder. Section 20 deals with the power of the Chief of the Air Staff and other officers in the matter of dismissal, 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 the 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 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. Rules 15 specifies the authorities who are competent to authorise discharge from service of persons subject to the Act for the 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 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.
(2) Any power conferred by this rule on any of the aforesaid authorities may also be exercised by any other authority superior to it.
TABLE
Class Cause of discharge to Competent authority authorise Special Instructions
Persons enrolled under the Act who have been arrested. (a) x x(b) x x(c) x x(d) x x (e) x x(f) x x(g) His servicesno longer required, -(i) x x (j) Unsuitable for retention the Air Force. X X X X X X X X XX X X X X X X X X X X X Air Officeri/cAdministration X X XX X X X X XX X X X X X X X XX X X
3. Rule 16 deals with dismissal or removal of officers for misconduct 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 other ground other than misconduct. Rule 18 deals with dismissal or removal of a person subject to the Act other than an officer.
4. A project study on absence without leave, (AWL) of airmen covering 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 (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 :-
Groups
