Madhya Pradesh High Court
Ravindra Nath Tripathi vs The Union Of India & Ors. on 17 February, 2022
Author: Ravi Malimath
Bench: Ravi Malimath
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE PURUSHAINDRA KUMAR KAURAV
WRIT PETITION No. 360 of 2002
Between:-
RAVINDRA NATH TRIPATHI S/O SHRI
RAM SEWAK TRIPATHI, BALAGHAT
ROAD, DUNDA SEONI, DISTRICT-SEONI
M.P.
.....PETITIONER
(IN PERSON )
AND
UNION OF INDIA, THROUGH: THE
SECRETARY, MINISTRY OF DEFENCE,
NEW DELHI.
....RESPONDENT
(BY SHRI SANDEEP KUMAR SHUKLA - ADVOCATE)
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Reserved on : 27.01.2022
Delivered on : 17 .02.2022
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Per : Justice Purushaindra Kumar Kaurav :
ORDER
The petitioner has challenged the order dated 27.07.2000 (Annexure P/2), whereby, in compliance of the order dated 31.7.2000, the W.P. No.360 of 2002
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petitioner was issued a certificate of discharged from the regular Air Force Service. He has also questioned the constitutionality of Section 82, 83, 84 and 86 of the Air Force Act, 1950 (hereinafter referred to as "Act of 1950) and Rule 24 and 31 of the Air Force Rules 1969 (hereinafter referred to as "Rules of 1969") being ultra vires and in violation of Article 14 of the Constitution of India; Section 50(b) of the Air Force Act, 1950 being ultra vires and in violation of Article 22(2) of the Constitution of India and Rule 15(2)(g)(ii) of the Air Force Rules, 1969 being ultra vires and in violation of Article 20(2) of the Constitution of India.
2. The facts of the case in short are that the petitioner was enrolled in Indian Air Force on 22.10.1990 on the rank of Corporal, at No.2216 Squadron, Air Force C/o 56 APO. The petitioner was served with a warning dated 21.6.1999 (Annx.P/5) of "Potential Habitual Offenders". It was stated in notice that since the petitioner was at the threshold of falling in the category of Habitual Offender, hence he was cautioned and counselled to mend himself and desist from acts of indiscipline and was also warned that any additional punishment will render him liable for discharge from service under Rule 15(2)(g)(ii) of the Rules of 1969.
3. It is also seen from the facts that on 27.03.2000 (Annx.P/3), a show cause notice was issued to the petitioner stating that during his total service of 09 years and 2 months as on 31.12.1999, he was summarily tried and punished on as many as six occasions. All were "Red Ink"
entries. Out of which, two "Red Ink" entries were not considered which were awarded for refusal to take part in "SHRAMDAN", therefore, only four "Red Ink" entries were being considered. It was also stated that despite warning notice dated 21.6.1999, the petitioner indulged in an act of indiscipline on 13.11.1999 and on 15.12.1999, therefore, he was awarded "Reprimand" for the said act on 31.12.1999. It was further stated W.P. No.360 of 2002
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that the perusal of conduct sheet of the petitioner indicated that he was a poor airman material and not amenable to the service discipline. Taking into consideration the aforesaid acts of indiscipline, the petitioner was directed to show cause as to why he should not be discharged from service under Rule 15(2)(g)(ii) of the Rules of 1969. In the said show- cause notice dated 27.03.2000 (Annx.P/3) "Red Ink" entries earned by the petitioner upto 31.12.1999 were taken into consideration. However, on 13.03.2000 (Annex.P-7), the petitioner was awarded one more "Red Ink"
entry for absenting himself from duty from 1330 Hours on 24.8.1999 till he reported back to Main Guard Room at 0030 hours on 21.09.1999 (Total absence 27 days and 11 hours) which, however, is not the part of show cause notice, neither the same was considered for his discharge.
4. Pursuant to the said show cause notice, the petitioner submitted his reply on 08.04.2000 (Annx.P/6) and had alleged several allegations against Air Force authorities. That apart, he pointed out various anomalies in the provisions of the Act of 1950 and in the Rules of 1969, made thereunder, to submit that the provisions of dealing with officers and staff applies differently, the same is discriminatory and arbitrary. While questioning various practices prevalent in the department, the petitioner in para-E of his reply has stated that the decision on the show cause notice be taken at the earliest latest by sixty days and the same be communicated to him, and if the petitioner is discharged from service then a letter in this regard be given to him signed by Air Officer I/C Administration to fulfill the requirement of Rule 15(2)(g)(ii) of the Rules of 1969.
5. In pursuance to the order of discharge of the petitioner dated 31.07.2000 (Annx.R-4) in exercise of power under the provisions of Chapter-III, Rule 15(2)(g)(ii) of the Rules of 1969, vide the impugned W.P. No.360 of 2002
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certificate dated 27.07.2000 (Annx.P-2), the petitioner has been informed of his discharge from regular Air Force Service w.e.f. 31.07.2000 without reserving liability.
6. The petitioner has submitted that the punishment of "Admonition" on 11.06.1993 for over stayed leave for 23 days and 15 hours was uncalled for and the same was without his control as he suffered Amoebic Colitis and Amoebic Hepatitis for which he was advised by the Doctor to take rest for four weeks. It is for the aforesaid reason he could not report on duty within time and, therefore, the said act should not be treated as punishment and it should be treated only a warning. So far as his second punishment dated 23.09.1998 is concerned, since he was suffering from Typhoid, therefore, he requested for extension of leave well within time which was not granted.
7. He stated that the trial for second punishment was predetermined as decision was already taken on 21.09.1998, whereas, the trial was conducted on 23.09.1998 which, however, was recalled on an application of the petitioner but later-on on the same charge as severe punishment of "Reprimand" was inflicted on the petitioner on 15.12.1998. The 3rd punishment dated 21.06.1999 for overstay of leave by 7 days was also uncalled for in view of the application of the petitioner for permission to appear in Civil Examination (Competitive) for which he obtained sanction of his Commanding Officer. Since the petitioner was already undergoing intense mental agony on account of earlier 2 punishments, therefore, he thought it proper to look for alternate employment and, therefore, he chose to appear in MPPSC Examination, 1998 knowing well that as soon as he will report to his Unit, he will be discharged from service. The petitioner also questioned the fourth punishment dated 31.12.1999 for overstay of leave granted to him from 0001 hours on 13.11.1999 till he W.P. No.360 of 2002
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reported back to main Guard Room at 0015 hours on 15.11.1999 and absenting himself from duty at 0800 hours on 15.12.1999 till he reported to main Guard room at 1900 hours on 19.12.1999. According to him, he was on leave till 10.11.1999 and he requested for extension for 4 days but he was granted only 2 days extension with permission to report on 14.11.1999. On 10.12.1999, he received a call from home about serious illness of his son. The petitioner had to reach his home to take care of his son and, therefore, he immediately applied for leave but the same was not granted. When he found that his son is recovered from illness, he immediately returned to his Unit.
8. Apart from the aforesaid contentions, the petitioner challenges the constitutional validity of Section 82, 83, 84 and 86 of the Act of 1950 being ultra vires in violation of Article 14 of the Constitution of India. According to petitioner there are different procedures of trial for different rank of persons according to their status. He states that the procedure of trial is highly discriminatory and does not provide equal protection of law to all. He submits that under Section 83 of the Act of 1950 various offences have been given which need sanction before trial by an officer having power to convene a district court martial but the same is not required for the persons who have not been enrolled as combatants. He also states that the punishment specified in Clauses (a), (b), (c), (e),(g) and (j) of section 82 shall not be awarded to any person who is of the rank of non-commissioned Officer, whereas, the punishment specified in Clause (f) of the said section shall not be awarded to any person below the rank of a non-commissioned Officer. The punishment of "officers" and "warrant officers" has been separately mentioned in Section 86 of the Act of 1950. The protection which has been provided to the other category of officers is not available to the airmen going for trial under Section 82 of W.P. No.360 of 2002
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the Act of 1950. He states that the protections are provided to those who are superior in ranks, however, according to the mandate of the Constitution, the protection is more necessary for the lowest rank people as the superior officers normally engaged in ill treating their subordinates. Section 82 of the Act of 1950 is silent about the reasoned order/ decision. Thus, the same violates very principle of natural justice. Section 82 and 86 do not permit any person to be defended by the legal practitioner, therefore, they cannot be said to be in consonance with the Article 14 and 21 of the Constitution of India, as the fair hearing is not ensured. The exclusion of the mandate of Article 21 of the Constitution from the application of Section 82 of the Act of 1950 is unconstitutional.
9. The challenge to the constitutional validity of Section 50(b) of the Act of 1950 is on the ground that the provisions of the said Section are inconsistent with Article 22(2) of the Constitution of India. According to him, Article 22(2) of the Constitution mandates that every person who is arrested or detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, whereas, Section 50(b) of the Act of 1950 permits custody upto 48 hours, without the same person being produced before any judicial authority.
10. The next challenge made by the petitioner is to Rule 15(2)(g)(ii), Rule 24 and 31 of the Rules of 1969. According to him, the aforesaid rules are in violation of Article 20(2) of the Constitution, as no person shall be prosecuted and punished for the same offence more than once, whereas, the petitioner was already punished by forfeiture of his pay and allowances for each of the offences for which he has been discharged. He submits that Rule 24 and 31 of the Rules of 1969 prescribe two procedures for summary disposal of charges. Rule 24 of the Rules of 1969 applies for procedure and the trial for offence under section 82 of W.P. No.360 of 2002
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the Act of 1950, whereas, Rule 31 of the Rules 1969 applies when a charge against an "officer" or "warrant officer" is to be summarily disposed of under section 86 of the Act of 1950. He also attacks the validity of Rule 24 and 31 of the Rules of 1969 on the ground that the same are violative of Article 14 of the Constitution of India.
11. Lastly, he submits that under Section 39(b) of the Act of 1950, "overstayed leave without sufficient cause" is an offence and not overstayed leave alone. Punishment for an act which is not an offence under the Act of 1950 is also contrary to Section 82 of the Act of 1950 and, therefore, the policy of habitual offenders is not in consonance with the scheme of the Act of 1950.
12. The petitioner, to substantiate his case, has placed reliance on the decisions of the Supreme Court viz Veerendra Kumar Dubey Vs. Chief of Army Staff and others1 , Narain Singh Vs. Union of India and others2and decision of Orissa High Court in Abhay Kumar Nayak Vs. Union of India (UOI) and others3.
13. The respondents have filed their return and have supported the impugned action. It is submitted that entire action has been taken strictly in accordance with law. Firstly, a warning notice was served on the petitioner on 21.06.1999 followed by a show cause notice. After considering the reply to the show cause notice submitted by the petitioner in accordance with the Policy of habitual offender, the AOP found that the petitioner had not improved despite efforts by his section and unit authorities. The Air Officer Incharge Personnel (AOP) Air Headquarter, Vayu Bhawan, New Delhi had approved the discharge of the petitioner on 17th July, 2000 under the provisions of Air Force Rules, 1969 as his 1 2016(2) SCC 627.
2 2019(9) SCC 253.
3 O.J.C.No.1981 of 1984 decided on 23.07.1985.
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service were no longer required as unsuitable for retention in the Indian Air Force w.e.f. 31.7.2000. The decision of the AOC dated 17.07.2000 has been placed on record as Annexure R-4 with the reply filed by the Union of India. Since the petitioner did not offer any proper explanation, therefore, the impugned action was taken. The representation dated 27.01.2001 submitted by the petitioner before the Chief of the Air Staff was also considered and the same was found to be lacking in substance and devoid of merits, therefore, it was rejected on 07.06.2001.
14. It is also submitted that the Policy of Habitual Offenders has already been upheld by the Supreme Court in the case of Union of India and others Vs. Corporal A.K.Bakshi and another4 which has further been relied upon by the Principal Bench of Armed Forces Tribunal in the case of B.S.Dahiya Vs. Union of India and others5 and in the case of EX SWR Sant Singh Chauhan Vs. The Chief of Army Staff and others6. It is the specific case of the respondents that under Article 33 of the Constitution, the Parliament is empowered to modify the rights conferred in Part-III of the Constitution in respect of members of Armed Forces. The Supreme Court in the case of Lt.Col. Prithi Pal Singh Bedi Vs. Union of India and others7, in the context of the provisions of the Army Act 1950, the provisions of which are pari materia to the provisions of Air Force Act 1950, has held that there are two conflicting public interests; maintaining discipline in the Armed Forces to safeguard the national security to ensure enjoyment by the people of India of their fundamental rights and the rights of the members of Armed Forces themselves to fundamental rights. The respondents have also relied upon the decision of Supreme Court in 4 (1996) 3 SCC 65.
5 O.A.No.38/2009 decided on 12.01.2010 6 O.A.No.47/2009 decided on 28.10.2009.7 (1982) 3 SCC 140.
W.P. No.360 of 2002- 9 -
Union of India and others Vs. Ex.Flt. Lt. G.S.Bajwa8 where the constitutional validity of the Air Force Act, 1950 has been upheld holding that the Act of 1950 is a law duly enacted by the Parliament in exercise of its plenary legislative jurisdiction read with Article 33 of the Constitution of India. The same cannot be held to be invalid merely because it has the effect of restricting or abrogating the rights guaranteed under Article 21 of the Constitution of India or for that reason under any of the provisions of Part-III of the Constitution.
15. We have heard the petitioner in person, learned counsel representing Union of India and perused the record.
16. The Defence Forces of India, before it attained independence were being governed by three Acts namely, Indian Army Act, 1911, the Indian Navy Discipline Act, 1934 and the Indian Air Force Act, 1932. Some of the provisions of these Acts were found to be becoming out of date and insufficient for modern requirements and due to constitutional changes, the need for revision became imperative. It was, therefore, in the process of revising those Acts, it was found that a new Air Force Act should be brought into force as the earlier enactment i.e. Indian Air Force Act, 1932 required comprehensive relook and accordingly, the Indian Air Force Bill, 1949 was introduced in the Parliament. The Act of 1950 which received the assent of President on 18.05.1950 has come into force w.e.f. 22.07.1950, which relates to Entry-2 of List-I of the Seventh Schedule of the Constitution.
17. Section 4 (viii) of the Act of 1950 defines "airman" as under:-
(viii) "airman" means any person subject to this Act other than an officer"
Section 4 (xx) of the Act of 1950 defines "non-commissioned officer" as under:-
8 (2003) 9 SCC 630.W.P. No.360 of 2002
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(xx) "non-commissioned officer" means a person holding a non-commissioned rank or an acting non-commissioned rank in the Air Force, and includes any person holding a non-
commissioned rank or any acting non-
commissioned rank in [any Air Force Reserve or the Auxiliary Air Force] when subject to this Act;"
Section 4 (xxiii) of the Act of 1950 defines "officer" as under:-
(xxiii) "officer" means a person commissioned, gazetted or in pay as an officer in the Air Force, and includes :-
(a) an officer of [any Air Force Reserve or the Auxiliary Air Force] who is for the time being subject to this Act;
(b) in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the regular Army or the Navy;
but does not include a junior commissioned officer, warrant officer, petty officer or non- commissioned officer;"
Section 4 (xxvii) of the Act of 1950 defines "superior officer" as under:-
(xxvii) "superior officer", when used in relation to a person subject to this Act, includes a warrant officer and a non-commissioned officer, and as regards persons serving under such conditions as may be prescribed, an officer, junior commissioned officer, warrant officer, petty officer and non-commissioned officer of the regular Army or the Navy;"
Section 4 (xxix) of the Act of 1950 defines "warrant officer" as under:-
(xxix) "Warrant officer" means a person appointed, gazetted or in pay as a Warrant Officer of the Air Force and includes an acting warrant officer, a master warrant officer, and a W.P. No.360 of 2002
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warrant officer of [any Air Force Reserve or the Auxiliary Air Force] who is for the time being Subject to this Act;"
18. The aforesaid definitions clearly suggest that there are various ranks of the officers such as "officer", "warrant officer" and "non- commissioned officer" etc. and a separate category of "airman" is created which would mean that any person subject to the provisions of the Act other than an officer. Under Section 18, the Presidential pleasure in relation to Air Forces is wholly untrammeled and the President has unqualified power to dismiss an Air Force Officer. Section 19 of the Act of 1950 empowers the Central Government to dismiss, or remove from the service any person subject to the provisions of this Act and the Rules and Regulations. Section 20 of the Act of 1950 prescribes dismissal, removal or reduction by Chief of the Air Staff for other than an officer. Section 22 of the Act of 1950 empowers such authority in a manner as may be prescribed under the Act to retire, release or discharge any person subject to the Act from the service by such authority as may be prescribed. The Act of 1950 draws clear distinction between the three categories of retirement, release and discharge. The language of the section itself seems to be unequivocal yet all doubts on this point are further set at rest when reference is made to Rule 13, 14 and 15 of the Rules of 1969. Rule 13 separately provides for "release" from the Air Force while Rule 15 specifically deals with "discharge". Section 23 of the Act of 1950 requires a certificate to be furnished on termination of service of every warrant officer, or enrolled person, who is dismissed, removed, discharged, retired or released from the service. Section 26 of the Act of 1950 prescribes remedy to aggrieved airman who deems himself wronged by any superior or other officer. Section 27 of the Act of 1950 prescribes W.P. No.360 of 2002
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remedy for any officer who deems himself wronged by his commanding officer or any superior officer.
19. In order to appreciate the submission of the petitioner challenging constitutionality of the provisions of the Act of 1950 and Rules of 1969, some of the provisions are being reproduced as under :-
Provisions of the Air Force Act, 1950 "39. Absence without leave.--Any person subject to this Act who commits any of the following offences, that is to say,--
(a) absents himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information from proper authority that any unit or detachment to which he belongs, has been ordered on active service, fails, without sufficient cause, to re-join without delay; or
(d) without sufficient cause fails to appear at the time fixed, at the parade or place appointed for exercise or duty; or
(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or
(f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or
(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
50. Irregularity in connection with arrest or confinement--Any person subject to this Act who commits any of the following offences, that is to say,--
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(a) unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation; or
(b) having committed a person to air force custody fails without reasonable cause to deliver at the time of such committal, or as soon as practicable, and in any case within forty-eight hours thereafter, to the officer or other person into whose custody the person arrested is committed, an account in writing signed by himself of the offence with which the person so committed is charged; shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.
"82. Punishment of persons other than officers and warrant officers-- Subject to the provisions of section 84, a commanding officer or such other officer as is, with the consent of the Central Government, specified by 1[the Chief of the Air Staff], may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,--
(a) detention up to twenty-eight days;
(b) confinement to the camp up to fourteen days;
(c) extra guards or duties not exceeding three in number:
(d) deprivation of acting rank;
(e) forfeiture of badge pay;
(f) severe reprimand or reprimand;
(g) fine upto fourteen day's pay in any one month;
(h) penal deductions under clause (g) of section 92;
(i) admonition;
(j) any prescribed field punishment up to twenty-eight days, in the case of a person on active service.
83. Requirement of sanction in certain cases--
(1) Subject to the provisions of sub-section (2), the punishments mentioned in section 82 shall not be inflicted in respect of an offence under any of the sections 34, 35 W.P. No.360 of 2002
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and 36 when committed on active service or under any of the sections 37, 38, 40, 42 (f) and (g), 43, 47, 52, 60, 62, 63, 64, 66(a), (b) and (c) and 71 except with the previous sanction in writing of an officer having power to convene a district court-martial.
(2) The said punishments may be awarded without such sanction in the case of any offence other than an offence under section 34 or section 71, committed by persons who have not been enrolled as combatants.
84. Limit of Punishments under Section 82- (1) An Award of punishment under section 82 shall not include field punishment in addition to one or more of the punishments specified in clauses (a) and (b) of that section.
(2) In the case of an award of two or more of the punishments specified in clauses (a), (b) and (c) of the said section, the punishment specified in clause (b) or clause
(c) shall take effect only at the end of the punishment specified in clause (a).
(3) When two or more of the punishments specified in the said clauses (a) and (b) are awarded to a person conjointly, or when already undergoing one or more of the said punishments, the whole extent of the punishments shall not exceed in the aggregate forty-two days.
(4) The punishments specified in clauses (a), (b), (c), (e),
(g) and (j) of section 82 shall not be awarded to any person who is of the rank of non-commissioned officer or was, at the time of committing the offence for which he is punished, of such rank.
(5) The punishments specified in clause (f) of the said section shall not be awarded to any person below the rank of a non-commissioned officer.
86. Punishment of Officers and warrant officers.- An officer having power to convene a general court-martial or such other officer as is, with the consent of the Central W.P. No.360 of 2002
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Government, specified by 1[the Chief of the Air Staff] may, in the prescribed, manner proceed against an officer below the rank of squadron leader or warrant officer, who is charged with an offence under this Act, and award one or more of the following punishments, that is to say,--
(a) forfeiture of seniority, or in the case of any of them whose promotion depends upon length of service, forfeiture of service for the purpose of promotion for a period not exceeding twelve months, but subject to the right of the accused previous to the award to elect to be tried by a court-martial;
(b) severe reprimand or reprimand;
(c) stoppage of pay and allowance until any proved loss or damage occasioned by the offence of which he is convicted is made good but subject to the right of the accused specified in clause (a);
(d) forfeiture of pay and allowances for a period not exceeding three months for an offence under clause (e) of section 42 in so far as it consists of neglect to obey flying orders or under section 62 or section 63.
Provisions of the Air Force Rules, 1969 "15(2)(g)(ii) 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.
(g) His services no longer required :
(ii)Unsuitable for retention in the Air Force.
24. Disposal of the charge or adjournment for taking down the summary of evidence .--(1) Every charge against a person subject to the Act shall be heard in the W.P. No.360 of 2002
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presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.
(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he thinks the charge ought not to be proceeded with.
(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall, without unnecessary delay, either:--
(a) dispose of the case summarily; or
(b) [refer the case to the proper superior air force authority for sanction under section 83; or]
(c) adjourn the case for the purpose of having the evidence reduced to writing.
(4) Where the case is adjourned for the purpose of having the evidence reduced in writing, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.
(5) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down.
(6) The evidence of each witness when taken down, as provided in sub-rules (4) and (5), shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed. Any statement of the accused [* * *] shall be added in writing and read over to him.
(7) The evidence of the witnesses and the statement, if any, of the accused shall be recorded in the English W.P. No.360 of 2002
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language. If the witness or accused, as the case may be, does not understand English the evidence or statement, as recorded; shall be interpreted to him in a language which he understands.
(8) If a person cannot be compelled to attend as a witness, or if owning to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot, in the opinion of the commanding officer or the officer taking the summary (to be certified in writing by the commanding officer or such officer), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
[(9) (a) Any witness who is not subject to the air force law may be summoned by order under the hand of the commanding officer of the accused to attend the hearing of the charge under sub-rule (1) or to attend the adjourned hearing for the purpose of having the evidence reduced to writing under sub-rule (4).
(b) The summons shall be in Form "C-1" as provided in the Third Schedule.]
31. Summary disposal of charge against officers and warrant officers .--(1) [When a charge against an officer or warrant officer is to be summarily disposed of under section 86,]a copy of the summary of evidence shall be delivered to him free of charge as soon as practicable after its preparation, and in any case not less than forty-eight hours before such disposal.
(2) The officer dealing with the case summarily under section 86 shall hear the witnesses, if any, in the presence of the accused, but may dispense with the hearing of every or all witnesses if the accused person consents in writing thereto.
[(3) If the accused person demands that the evidence be taken on oath, the officer dealing with the case summarily shall administer to each witness before he gives his W.P. No.360 of 2002
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evidence, the oath or affirmation as prescribed in rule 118, but the accused person shall not be sworn.] (4) The accused may put questions in cross-examination to any witness, call any witnesses and make a statement in his defence.
(5) The proceedings shall be recorded as far as practicable in accordance with Form D.1 or Form D.2 (as may be appropriate) of the forms for use for summary disposal of charges against officers and warrant officers contained in the Fourth Schedule and in every case in which a punishment is awarded, the original and a certified true copy of the proceedings together with the summary of evidence shall be forwarded through the proper channel to the superior air force authority as defined in section 89."
Since the Union of India justified the provisions, under challenged, on the strength of Article 33 of the Constitution, therefore, it is appropriate to reproduce Article 33 of the Constitution. The same reads as under:-
"33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.-- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,--
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to
(c), W.P. No.360 of 2002
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be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.]"
It is the further stand of the Union of India that in view of Article 33 of the Constitution, and provisions of Section 21 of the Act of 1950, the petitioner cannot challenge the provisions as contrary to Part-III of the Constitution. Section 21 of the Act of 1950 is reproduced as under :
"21. Power to modify certain fundamental rights in their application to persons subject to this Act.--Subject to the provisions of any law for the time being in force relating to the Air Force or to any branch thereof, the Central Government may, by notification, make rules restricting in such manner and to such extent as may be specified the right of any person subject to this Act--
(a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations;
(b) to attend or address any meeting or to take part in any demonstration organized by any body of persons for any political or other purposes;
(C) to communicate with the press or to publish or cause to be published any book, letter or other document."
20. Section 82 of the Act of 1950 provides for punishment of persons other than officers and warrant officers. According to this section one or more of the punishments prescribed in clause (a) to (j) of section 82 can be awarded to persons other than officers and warrant officers. Section 83 of the Act of 1950 provides for requirement of sanction in certain cases. Section 84 prescribes for limit of punishment under section 82 and section 86 provides for punishment of officers and warrant officers. To appreciate the challenge putforth by the petitioner, the import and ambit of Article 33 of the Constitution requires to be considered as to which extent the W.P. No.360 of 2002
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fundaments rights can be restricted or abrogated. Since the challenge to the provisions of the Act of 1950 and to the Rules of 1969 is mainly based on violation of Article 14, 15, 20(2), 21 and 22(2) of the Constitution which is part of Fundamental Right Chapter-III of the Constitution and incidentally Article 33 is also a part of Fundamental Right Chapter-III of the Constitution. 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 authorizes 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 powers conferred by Section 189 the Central Government has framed the Rules. Rule 15 specifies the authorities who are competent to authorize discharge from service of persons subject to the Act for the specified clauses and also the manner in which the said power is to be exercised. 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 officers on grounds that he is unfit to be retained in service due to inefficiency, physical disability or other grounds other than misconduct. Rule 18 deals with dismissal or removal of a person subject to the Act other than an officer. Rule 24 of the Rules of 1969 postulates disposal of the charge or adjournment for taking down the summary of evidence and Rule 31 postulates summary disposal of charge against officers and warrant officers.
21. The constitution Bench of the Hon'ble Supreme Court in the matter of Ramswaroop Vs. Union of India9 had an occasion to consider the question whether the restriction or abrogation of the fundamental rights in 9 AIR 1965 SC 247.
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exercise of the powers conferred by Article 33 of the Constitution is limited to one set out in Section 21 of the Air Force Act or not. In the said decision, the Hon'ble Supreme Court has held that each and every provision of the Armed Force Act is a law made by Parliament and that if any such provision tends to effect the fundamental right under part-III of the Constitution, that provisions does not, on that account, become void, as it must be taken that Parliament has in the exercise of its power under Article 33 of the Constitution, made the requisite modification to effect the respective fundamental rights.
22. The Hon'ble Supreme Court in another decision of Prithi Pal Singh Bedi7 had considered the constitutional validity of Rule 22, 23, 25 and 40 of Army Rules, 1954, whether the same are in violation of the fundamental rights of petitioners guaranteed under Article 14 and 20 of the Constitution. All the petitioners in the said case before the Hon'ble Supreme Court were under Article 32 of the Constitution against convening general court martial to try each petitioner in respect of the charges framed against each of them. The contention was that a trial by a court martial would result in deprivation of personal liberty and it can only be done as per Article 21 of the Constitution, by procedure established by law, and not by the law, prescribing such procedure not satisfies the trust prescribed by Article 14 and 19 of the Constitution. The question before the Hon'ble Supreme Court was that how far the aforesaid contention about violation of Article 21 of the Constitution is available in view of the provisions contained in Article 33 of the Constitution. The Hon'ble Supreme Court has observed that while ascertaining the limits of inroads or encroachment made by legislation enacted in exercise of powers conferred by Article 33 of the Constitution, on the guaranteed fundamental rights to all citizen of this country without W.P. No.360 of 2002
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distinction, in respect of Armed Personnel, the court should be vigilant to hold the balance between two conflicting public interest :- namely, necessity of disciplines in Armed Personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilized life. Therefore, every provision of the Army Act, enacted by the Parliament, if in conflict with the fundamental rights conferred by part-III, shall have to be read subject to Article 33 of the Constitution as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between part-III of the Constitution and the Army Act. Taking into consideration, the extent and import of Article 33, the Hon'ble Supreme Court in that case has held that it is not possible to accept the submission that the law prescribing procedure for trial of offences by court martial must satisfy the requirement of Article 21. The Hon'ble Supreme Court has also considered expression "Officer" in the context of the provisions of the Army Act which included various categories of Officers set out in the Act. It has been observed that by the very definition an "officer" would be a person belonging to the upper bracket in the Armed Forces and any person other than an officer subject to the provisions of the Act would necessarily imply persons belonging to the lower category in the Army services. The distinction of two procedures under Rule 22, 23 and 24 was found to be quite rational and understandable keeping in mind various factors such as education, knowledge, intelligence of the different persons belonging to different brackets. In paragraph No.37, the Hon'ble Supreme Court repelled the contentions that Rule 22, 23 and 24 are ultra W.P. No.360 of 2002
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vires in view of the provisions contained in Rule 25 to Article 21 of the Constitution.
23. The Hon'ble Supreme Court had an occasion to consider the constitutional validity of Section 21 of the Army Act, 1950 read with Chapter-IV of the Army Rules, 1954 whether the same is within the scope and ambit of Article 33 of the Constitution and if it is, whether Central Government is right in issuing notification making section 21 of the Army Act, 1950 and Chapter -IV of the Army Rules, 1954 applicable to the General Reserve Engineering Course. While considering the aforesaid question in the matter of R.Viswan and others Vs. Union of India10 it has been held that the court will not ordinarily interfere with the decisions of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 of the Army Act, 1950 was held to be constitutionally valid as being within the power conferred under Article 33 of the Constitution.
24. The Hon'ble Supreme Court had an occasion to consider failure to provide counsel of accused choice at State expense whether is in violation of Article 21 of the Constitution. While considering the aforesaid aspect in the matter of Ex.Flt. G.S.Bajwa 8 it has been held that the provisions of the Act cannot be challenged on the ground that they infringe the fundamental right guaranteed to the respondent under Article 21 of the Constitution of India. Since, the Air Force Act is a law duly enacted by Parliament in exercise of its plenary legislative jurisdiction read with Article 33 of the Constitution of India, the same cannot be held to be invalid merely because it has the effect of restricting or abrogating the 10 (1983) 3 SCC 401.
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rights guaranteed under Article 21 of the Constitution of India or for that reason under any of the provisions of Part-III of the Constitution.
25. The Hon'ble Supreme Court in the matter of Corporal A.K.Bakshi 4 had an occasion to consider policy for discharge of habitual offenders under Rule 15(2)(g)(ii) of the Rules of 1969 in the context of Article 311(2) of the Constitution. Almost a similar argument was advanced in that case also so as to challenge the discharge on the ground that the said discharge amounts to removal by way of punishment falling under Rule 18 of the Rules of 1969. In the present case also apart from the other contentions it has also been argued by the petitioner that the said Rule and policy is violative of Article 20(2) of the Constitution and the petitioner cannot be punished for same offence for more than one occasion. The petitioner tries to establish an argument that for all offences there was already a forfeiture of pay and allowances, and therefore, those offences cannot be made basis for his discharge under Rule 15(2)(g)(ii) of the Rules of 1969. It has been noted that the Indian Air Force decided to lay down the policy for discharge prescribing the guidelines to deal firmly for such habitual offenders having regard to the existence of habitual offenders among the airman and the adverse effect of their repetitive indiscipline. The Hon'ble Supreme Court in the said decision has considered that the policy for discharge envisages that in cases where an airman has been awarded such punishment of more than prescribed 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 of 1969. Such an action for discharge was found to be not by way of punishment for the misconduct for which he has already been punished. The basic idea underlying the policy for discharge is that recurring nature of punishment for misconduct imposed on an airman renders him W.P. No.360 of 2002
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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 the service. The punishment that has 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 was found to be discharge falling under Rule 15(2)(g)(ii) of the Rules of 1969 and was held to be not termination of service by way of punishment for misconduct falling under Rule 18 of the Rules of 1969.
26. So far the reliance placed by the petitioner in the decision of the Hon'ble Supreme Court in the case of Veerendra Kumar Dubey1 is concerned the Hon'ble Supreme Court in this case has found that a competent authority did not conduct any inquiry into the allegations made against the individual concerned. The aforesaid decision has been rendered in the context of Army Rules, 1954 where an order of discharge was passed by the competent authority against an Operator in the Corps of Artillery of Indian Army. The Hon'ble Supreme Court has set aside the order of discharge against the appellant of that case in the context of the facts and circumstances of the aforesaid case. The appellant therein had completed the services of nearly 12 years. In the present case when a warning notice of potential habitual offender was given to the petitioner, he had three Red entries in his conduct sheet. When he earned fourth Red ink entry on 31.12.1999, thereafter, he was given show cause notice on 27.3.2000. It is noticed that even before the action could be taken, he earned another Red ink entry which although was not taken into consideration while passing the order of discharge, however, the same can be taken into consideration to adjudge the indiscipline of the petitioner.
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27. The other decision of the Hon'ble Supreme Court in the case of 2 Narain Singh is concerned, it is seen that the Hon'ble Supreme Court taking into consideration 13 years, 7 months and 6 days service of the appellant and he was left with one year, 5 months and 20 days more to become eligible for pensionable services and the four Red entries in that case were earned by the appellant between 07.06.1993 to 03.05.1994, whereas, not a single Red entry was earned by him from 1982 to 07.06.1993. The said decision, therefore, is in the facts and circumstances of that case and the petitioner cannot be held entitled for the same treatment as has been given to the appellant of that case by the Hon'ble Supreme Court.
28. Keeping in mind the rank structure of Officers and airmen under the Act of 1950, their mode of induction into service, their eligibility criteria and the nature of duties and responsibilities which they discharge coupled with the fact that the provisions of the Act of 1950 are aimed to bear the responsibility of safeguarding Indian Air Space which is a national interest, such a Force has to have the highest level of discipline and zero tolerance policy. The Indian Air Force is an air arm of the Indian Air Force. The airmen is the backbone of the Air Force Services. Under such circumstances, the normal principle of service jurisprudence cannot be made applicable to the Defence Services. Sometimes rules and regulations enacted by the authorities for the Officers of different rank may differ for the object sought to be achieved by such differential treatment. The Hon'ble Supreme Court in the matter of Union of India (UOI) and Others Vs. SC Bagari11 had considered the validity of Army Order on the ground that the benefit of study leave was available only to Commissioned Officers and not to the person like the petitioner therein 11 (1999) 3 SCC 709.
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who was not a Commissioned Officer and was working as a Havildar/ Clerk in Indian Army. The Full Bench of the High Court of Himachal Pradesh came to the finding that the duties and knowledge of a clerk are also important and, therefore, rejected the stand of Union of India and held that higher educational qualification is also necessary for Clerical Staff. However, the Supreme Court has held that the character and duties of Junior Commissioned Officers and Non-Commissioned Officers are different to that of regular Commissioned Officers and the competent authority thought it fit and proper that case of study leave for Commissioned Officers should be considered and the same benefit should not be given to the Officers of other categories. It further held that it cannot be said that the Army Order in question was arbitrary or irrational for the reasons sought to be achieved by way of said Army Order.
29. Article 33 of the Constitution of India empowers the Parliament to determine to what extent any of the rights conferred by Part-III of the Constitution will be applicable to the members of the Forces charged with the maintenance of public order. Such a provision is made to ensure proper discharge of duties and maintenance of discipline amongst the class of Forces mentioned in Article 33 of the Constitution. For the reasons stated in the preceding paragraphs, we do not find any reason to declare any of the provisions under challenged to be unconstitutional as they are saved by Article 33 of the Constitution.
30. In view of aforesaid, we do not find any merit in the petition. Hence, the petition fails and is hereby dismissed.
(RAVI MALIMATH) (PURUSHAINDRA KUMAR KAURAV)
CHIEF JUSTICE JUDGE
MKL.
MANOJ Digitally signed by MANOJ KUMAR LALWANI
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,
ou=HIGH COURT OF MADHYA PRADESH,
postalCode=482001, st=Madhya Pradesh,
KUMAR
2.5.4.20=ad36bd0a68daf2238756985812b125262 81ad9d6703a41595304a2e8195ef028, pseudonym=3050F1D083ED3727ADE7D79B55E8 D2D9ECCF44E5, serialNumber=8C3E535065CECE45851C1EF8F4C LALWANI 941F5F7BBEFDAF1B1EDF887C4DEDED3DA0AA3, cn=MANOJ KUMAR LALWANI Date: 2022.02.17 12:58:22 +05'30' W.P. No.360 of 2002
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