The initiation of disciplinary action against an officer after being discharged by a criminal court is impermissible, highlighting the importance of maintaining procedural fairness and equal treatment in military justice.

JUDGMENT :

DIPANKAR DATTA, J.

THE CHALLENGE

1. Appellant is a septuagenarian by now. He happened to be an Indian Air Force¹[Air Force] personnel, prior to his dismissal²[vide order dated 22nd September, 1993] more than three decades back by the Central Government³[Government]. Power under Section 19 of the Air Force Act, 1950⁴[AF Act] read with Rule 16 of the Air Force Rules, 1969⁵[AF Rules] was exercised by the Government owing to the appellant having used criminal force against a junior officer and leaving him in a desolate place in the night, from where his mortal remains were later found. A Single Judge of the High Court of Delhi⁶[High Court] set aside the dismissal⁷[vide judgment dated 23rd September, 1999 in Civil Writ Petition No. 4019 of 1995 ] on the ground that the administrative act of dismissal was barred by the three-year limitation period, envisaged in Section 121 of the AF Act. However, while hearing an intra-court appeal⁸[LPA No. 545/1999] preferred by the Government and its officers, vide the impugned judgment and order dated 11th January, 2008⁹[impugned order], a Division Bench reversed the judgment and order of the Single Judge under challenge holding that the bar of limitation did not apply. Also, upon perusal of the case records, the Division Bench noted additional grounds in support of such dismissal (to be discussed at a later part of this judgment). Consequently, the order of dismissal was restored, giving rise to Civil Appeal No. 6929/2009 by special leave granted on 5th October, 2009.

FACTUAL MATRIX

2. Facts, relevant for our decision on this appeal, are as follows:

a. Appellant was commissioned in the Air Force as Pilot Officer in the year 1972.

b. The incident is of the year 1987, at which time the appellant was posted as ‘Senior Operation Officer’ to 147 Squadron of the Air Force.

c. The said squadron was posted in a remote village in the Thar desert and stationed in a building belonging to the General Reserve Engineer Force¹⁰[GREF].

d. It was alleged that an individual¹¹[driver], employed as a driver with GREF, in an inebriated state had caused damage to the radar, an instrument of critical operational importance in desert conditions, and committed certain other acts of misconduct.

e. On the night of 29th March, 1987, the appellant along with four others, took the driver away from the camp in a jeep and left him at a secluded location approximately 5 kilometres from the nearest Border Security Force post and about 30 kilometres from the Air Force camp. A missing report was lodged with the civil police on 31st March, 1987, and on 2nd April, 1987, the mortal remains of the driver recovered from the same location.

f. From the records, it is discernible that the appellant acted pursuant to the directions of his superior, a Wing Commander¹²[Wg. Cmdr.], who had instructed him to remove the driver from the camp on account of his disruptive conduct under the influence of alcohol, and with a view to preventing any untoward incident in anticipation of an inspection by the Air Officer Commanding-in-Chief, South Western Air Command¹³[AOC-i-C], being the highest ranking officer commanding a major command in the Air Force, on the next day.

g. On the basis of these allegations, an FIR was lodged by GREF personnel against the appellant and others. Simultaneously, a Court of Inquiry was instituted. Nearly two years later, in January 1989, “disciplinary proceedings” were initiated against the appellant; however, in the same month, the Air Force abandoned such proceedings by exercising its powers under Section 124 ¹⁴[124. Choice