ORDER

1. Rule. With the consent of Counsel for the parties the petition is taken up for final hearing.

2. This writ petition challenges the discharge of the petitioner from service upon incurring 4th red entry for repeated overstay after the petitioner's leave expired on 2.4.2002. The relevant policy for a habitual offender on consideration for discharge under Rule 15 (2) (g) (ii) of the Air Force Rules, 1969 reads as follows:

(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) incurred for repeated commission of any one specific type of offence such as disobedience, insubordination, absence without leave, breaking out of camp, offences involving alcohol, mess indiscipline, use of threatening and abusive language.

3. The petitioner, on having been incurred three punishment entries, was duly warned in writing by his Commanding Officer on 20.2.2002 to desist from further acts of indiscipline as any additional punishment entry would entail his discharge from service under the habitual offenders policy.

4. Inspite of the aforesaid warning the petitioner incurred another entry on account of punishment imposed on him on account of over stay of 30 days inspite of the expiry of his leave on 2nd April, 2002.

5. Since the petitioner after incurring four punishment entries was to be categorized as habitual offenders, as per the aforesaid policy a show cause notice was issued to him on 25th September, 2002 asking him to show cause as to why he should not be discharge from the service under Rule 15 (2) (K) read in conjunction with Rule 15 (2) of the Air Force Rules, 1969. In reply to the show cause notice the petitioner has pleaded as follows:

My overstay of leave was due to domestic and financial problems. I had difference with my wife/in-laws. They had the intention of demanding compensation from my salary which I was not agreed to. They threatened me with divorce and annulment. To counter them I was under the impression that I need not pay them in case of not being an employee anymore. So I did not resume back after my leave. After returning, I was counselled by CO and was informed about my having to pay the compensation even being jobless. He also made me refuse my commitments towards my children and also towards my aging parents.

Now at this juncture I would like to state that I have been working to utmost satisfaction of my seniors and have now realised my mistake and understood the seriousness of the situation. I further state that I sincerely promise to abide by the rules and serve in a distinguished way. Hence I may please be excused for my past mistakes and give a fresh chance to settle in my life and serve the nation with pride. It will be a great solace to my entire family and will ever remain indebted to the service.

6. Petitioner's reply was not found satisfactory and his services were discharged w.e.f. 9th January, 2003 vide annexure R-5 dated 23.12.2002.

7. The order of discharge has been challenged by the petitioner in the present writ petition. The learned Counsel for the petitioner has contended that the very harsh view has been taken for recording his 4th red ink entry because during that period while he was overstaying as his father had died. He has submitted that a more humanitarian approach should have been adopted in the petitioner's case. However, in the reply to the show cause notice the plea of father's illness was not taken by the petitioner as is evident from the above extract. The petitioner's overstay started from 2nd April, 2002 and ended on 2nd May, 2002 when the petitioner rejoined his service. The Petitioner's father died on 18th May, 2002 for which he had been duly granted leave. The plea of father's illness had not been taken in reply to the show cause notice and therefore cannot now be urged as a ground. In any event the death