Delhi High Court
Ex. Wing Commander V. Mehta vs Union Of India & Ors. on 1 September, 2008
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No.70 of 1995
Reserved on: 14.08.2008
% Date of decision: 01.09.2008
EX. WING COMMANDER V. MEHTA ...PETITIONER
Through: Gp. Capt. Karan Singh Bhati with
Mr. Abhishek Gautam,
Advocates.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. Sanjay Katyal with
Mr. Ranjeet Kumar Jha,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
SANJAY KISHAN KAUL, J.
1. The Air Force personnel deputed to ferry AN-32 aircrafts from Russia to India, utilized the stoppage on the way at Dubai to purchase dutiable and contraband goods and on detection, the same has resulted in disciplinary action against such service personnel including the petitioner.
2. The petitioner was commissioned in the Air Force in the Flying Branch on 16.10.1965. A team of 32 personnel was detailed to ferry three AN-32 aircrafts from Russia to India. The team consisted of three Captains, Wing Commander WP (C) No.70 of 1995 Page 1 of 15 B.S. Bakshi, Flight Lieutenant S. Katoch and the petitioner, who was also a Wing Commander. The team also included one Wing Commander J. Jaggi, who was the Logistic Member and Wing Commander A.K. Chaturvedi as the Engineering Member. It is the common case of the parties that before leaving for Russia all the members were given detailed briefing at the Air Headquarters regarding Custom rules & regulations and each member signed a declaration that he had read and understood the same. The rules stipulated that:
"(a) No contraband goods were to be carried in the aircraft.
(b) No parcels were to be accepted unless they were authorized.
(c) No unaccompanied baggage was to be carried and/or to be off loaded at Jamnagar unless it was authorized by Air Headquarters, and;
(d) No luggage was to be accepted unless it was properly manifested and had clear and legible markings."
3. The routing for bringing the aircrafts to Delhi was through Dubai. The aircrafts after refueling at Dubai landed at Jamnagar on 8.6.1988. The DRI officials asked all the crew members to declare the items brought by them. It is the case of the petitioner that he declared the items brought by him and paid duties of Rs.4,137.00 while out of other crew members some declared a few items. A search was carried out by the Directorate of Revenue Intelligence, which found a large number of dutiable goods in the aircraft captained by the petitioner. Such dutiable goods were found in the other aircrafts also but in the aircraft of the petitioner apart WP (C) No.70 of 1995 Page 2 of 15 from dutiable goods, two gold biscuits of hundred grams each were found concealed in a briefcase. These contraband goods were valued at Rs.2,85,260.00 at the time of seizure. No one claimed the ownership of the gold biscuits and in fact, all the goods were seized. The goods were absolutely confiscated after issuing a show cause notice under Section 124 of the Customs Act, 1962 as well as Section 79 of Gold (Control) Act, 1968 by the Collector of Customs (Gujarat) on 21.8.1989. The conduct of the petitioner as well as the other two Captains was found blameworthy on account of various lapses. The petitioner was found blameworthy on the following grounds:
"(a) Failure to ensure that all crew members comply with the customs regulations and declare all their baggage for customs check on arrival.
(b) Failure to ensure that his crew members do not make purchases in excess of foreign exchange/other currency allowed to be carried by them.
(c) Failure to ensure that no unidentified/unaccounted baggage is taken on board, which could jeopardize the security of the Aircraft.
(d) Failure to ensure proper security of the service load in that the contents of mother case are not tampered and items of personal baggage are not put inside the mother cases."
4. The Court of Inquiry recommended a serious view to be taken of the alleged mass connivance of all the crew members and for disciplinary/administrative action against fourteen (14) persons including the petitioner. An additional Court of Inquiry was ordered on 28.1.1989 which took a serious view of the matter.
5. The petitioner received a communication dated 21.2.1990 expressing displeasure of the Air Officer Commanding-in- WP (C) No.70 of 1995 Page 3 of 15 Chief, Central Air Command. However, this letter was cancelled without giving any reasons and it is the case of the petitioner that no further action could have been taken once the displeasure was given which really amounted to a censure. There was no review of the censure as per procedure and further action was barred as per the Air Force Order 2 to 7/79.
6. However, a show cause notice was issued to the petitioner dated 24.4.1990 under Section 19 of the Air Force Act, 1950 (hereinafter referred to as the said Act) read with Rule 16 of the Air Force Rules, 1969 (hereinafter referred to as the said Rules) as to why he should not be dismissed/removed from service. The said provisions read as under:
"19. Termination of service by Central Government. - Subject to the provisions of this Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service any person subject to this Act."
.... .... .... .... .... .... .... .... ....
16. Dismissal or removal of officers for misconduct. - (1) An officer may be dismissed or removed from service for misconduct by the Central Government, but before doing so and subject to the provisions of sub-rule (2) he shall be given an opportunity to show cause against such action. (2) Where the dismissal or removal of an officer is proposed on ground of misconduct which has led to his conviction by a criminal court, or where the Central Government is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to do so, it shall not be necessary to given an opportunity to the officer of showing cause against his dismissal or removal. (3) Where an officer has been convicted by a criminal court and the Central Government after examining the judgment of the criminal court in his case and considering the recommendation about him of the Chief of the Air Staff, is of opinion that further WP (C) No.70 of 1995 Page 4 of 15 retention of such officer in the service is undesirable, that Government may dismiss or remove such officer from the service.
(4) In any case not falling under sub-rule (3), when the Chief of the Air Staff after considering the reports on an officer's misconduct, is of opinion that the trial of the officer by a court-martial is inexpedient or impracticable but the further retention of the officer in the service is undesirable, he shall so inform the officer and subject to the provisions of sub-rule (5) furnish to the officer all reports adverse to him calling upon him to submit in writing within a reasonable period to be specified, his explanation in defence and any reasons which he may wish to put forward against his dismissal or removal.
(5) The Chief of the Air Staff may withhold from disclosure any report adverse to an officer or any portion thereof, if in his opinion its disclosure is not in the interests of the security of the State. (6) If no explanation is received from the officer within the specified period or if the explanation received is considered to be not satisfactory or, when so directed by the Central Government, the reports against the officer as well as his explanation if any, shall be submitted to the Central Government by the Chief of the Air Staff together with his recommendation as to the dismissal or removal of the officer from the service.
(7) The Central Government may, after considering the reports against the officer and his defence, if any, and the recommendations of the Chief of the Air Staff, dismiss or remove the officer from service. (8) In this rule and in rule 17 the Chief of the Air Staff while submitting a case to the Central Government may recommend that instead of removing an officer from service, he may be compulsorily retired or that he should be called upon to resign his commission, and the Central Government in passing orders may instead of removing an officer from service, compulsorily retire him or give the officer an option to submit his resignation, and if he refuses to do so, remove him from the service."
7. The petitioner replied to the show cause notice on 12.6.1990. The petitioner pleaded that he had declared the dutiable items and each crew member was responsible for his personal conduct. The petitioner also claimed that Wing WP (C) No.70 of 1995 Page 5 of 15 Commander J. Jaggi of the Logistic Branch was responsible for loading of service cargo and in addition, the petitioner had also instructed him to keep a watch on the private baggage as it was not possible for the petitioner to keep a watch on the private baggage sitting in the cockpit of the aircraft. However, the Chief of Air Staff recorded an order dated 24.10.1990 recommending the removal of the petitioner putting responsibility on the petitioner who was the Captain of the aircraft. Consequently the impugned order dated 13.2.1992 was passed by the Central Government which ordered the removal of the petitioner from services under the aforesaid provisions of the said Act and the said Rules. A similar action was also taken against Wing Commander B.S. Bakshi.
8. A show cause notice was issued to the petitioner dated 22.7.1992 asking him to explain as to why his pension should not be forfeited under Para 16 of the Regulations of the Air Force, 1961 (hereinafter referred to as the said Regulations). The petitioner objected to the same vide reply dated 30.7.1992 and after considering the reply an order was passed on 6.1.1993 whereby the petitioner was held entitled to 50 per cent of the pension. It may be noticed that in the case of Wing Commander B.S. Bakshi the sanction was for 90 per cent of the pension vide order dated 29.9.1992.
9. The petitioner preferred an appeal in respect of the grant of only 50 per cent pensionary benefit on 3.2.1993 and another review petition on 5.12.1993 but to no avail. WP (C) No.70 of 1995 Page 6 of 15
10. Learned counsel for the petitioner sought to emphasize that each of the personnel had been fully briefed of the requirement of declaration of any goods brought by them and the petitioner as Captain took the further precaution to brief his crew. This was not even disputed by the crew members in the statements given in the Court of Inquiry. A caution was also extended to them on landing of the aircraft. Thus, if individual crew members did not declare the items brought by them for the purposes of payment of duty, the petitioner cannot be penalized for the same. The petitioner himself had declared the dutiable goods brought by him. The only blame laid at the door of the petitioner is of supervisory lapses while the petitioner had taken all due precautions. It was submitted that Wing Commander, J. Jaggi, the logistic member was responsible for taking over the aircraft in service cargo and loading the same in the aircraft. The petitioner had specifically instructed him to keep a watch on the personal baggage of the crew members as the petitioner had to perform onerous duty of captaining the aircraft on a long journey. The petitioner has been imposed with the punishment of removal from service while the other crew members have been let off lightly with lighter punishments. Some of these persons including Wing Commander, J. Jaggi even earned promotions.
11. Learned counsel for the petitioner emphasized that the list of goods showed that most of them were of the kind which could have been brought by the crew members in the country by paying duty and were within their limit of foreign WP (C) No.70 of 1995 Page 7 of 15 exchange issued to them. The two gold biscuits were recovered from a briefcase and it had not been possible to identify the ownership of the same as the briefcase remained unclaimed. A proper bill was found along with the name of the dealer located at Dubai from whom the gold biscuits were purchased and the authorities ought to have made an endeavour to find out the ownership of the gold biscuits.
12. Learned counsel for the respondents, on the other hand, sought to emphasize that the petitioner cannot absolve himself of his obligations as a Captain to ensure that nothing prohibited by law is carried in his aircraft. There were a large number of dutiable foreign goods found in the aircraft captained by the petitioner. The inventory of goods showed that it ran into ten (10) pages including Video Cameras, Still Cameras, Iron, Mixer, Musical Instruments, Cordless Phones, Electric Massager, Decoration Pieces, Hot Plates, Personal Computers, etc. The list consisted of 64 such items apart from the briefcase where the gold biscuits were found. These gold biscuits were found concealed in the upper folder of the briefcase. It was, thus, submitted that such a large quantum of goods could not have been brought into the aircraft without the knowledge of the petitioner. The recovery of the two gold biscuits and the tampered seal of the mother case were serious lapses. Learned counsel emphasized that the entrustment of the work to Wing Commander, J. Jaggi, as stated by the petitioner, was at best an internal arrangement as it was WP (C) No.70 of 1995 Page 8 of 15 not part of the duty of Wing Commander, J. Jaggi. The statement of Wing Commander, J. Jaggi further showed that though the petitioner had requested him to assist the petitioner in keeping a check on the personal baggage, as per Wing Commander, J. Jaggi he had brought it to the notice of the petitioner when he noticed heavy and unusually large items. He further stated that only after confirmation from the Captain the baggage was allowed to be taken on board.
13. In our considered view, the quantum of goods brought in as also the factum of the contraband goods in the aircraft were serious lapses for which the petitioner cannot shift the blame on others. The petitioner as Captain was in-charge of the aircraft. It was his duty to monitor the personal baggage. The petitioner ought to have ensured that at least the baggage was identified in respect of the person who had brought it but even this basic precaution was not fulfilled. The result was that the contraband gold biscuits were left without ownership. This would imply that a briefcase was loaded in the aircraft without knowing who had brought it in. This would certainly be a security lapse by any standard.
14. The statement of Wing Commander, J. Jaggi, clearly shows that though he assisted the petitioner, the work was not left to be supervised alone by him. Not only that whatever goods were allowed to be brought into the aircraft were so allowed only after permission from the petitioner. The petitioner as a Captain had higher responsibility and he WP (C) No.70 of 1995 Page 9 of 15 failed to perform his supervisory role. The action against the petitioner on this account cannot, thus, be faulted as a case of lack of material evidence against the petitioner.
15. The second submission advanced by learned counsel for the petitioner is based on the plea that the petitioner could not have been proceeded against departmentally once he had already been awarded a displeasure for his supervisory role by Air Officer Commanding-in-Chief, Central Air Command as the same would be contrary to AFO 227/77. It was, thus, the submission of the learned counsel for the petitioner that the letter could not have been withdrawn and the petitioner proceeded against for a more rigorous penalty. This aspect has been emphasized by the petitioner in reply to the show cause notice but to no avail. Not only that the Chief of Air Staff is stated to have erroneously believed that the petitioner was solely responsible for the entry of foreign goods in the aircraft which was contrary to the Court of Inquiry.
16. Learned counsel for the respondents submitted that this plea of the petitioner was on an assumption that the petitioner had been awarded a displeasure in terms of provisions of AFO 227/77. This was specifically denied and it was submitted that the expression "displeasure" was used by the concerned officer in a generic sense conveying his unhappiness to all concerned. An important aspect emphasized was that in order to constitute a displeasure within the meaning of AFO 227/77 there are certain pre- requisites. The displeasure as contemplated is in the form WP (C) No.70 of 1995 Page 10 of 15 of a censure which could be awarded only if the following conditions are fulfilled:
a. The misconduct being investigated by a Court of Inquiry or formal investigation.
b. A show cause notice given to the individual officer to offer his explanation.
c. A consideration of the explanation.
d. The displeasure awarded conveyed to the individual
officer and kept in his personal file.
17. The aforesaid procedure was not followed in the case of the petitioner but what was conveyed vide letter dated 21.2.1990 was unhappiness over the incident. In the case of the petitioner, there was no show cause notice issued nor any letter issued in the name, individually, or placed in the personal dossier. Even this letter had been cancelled vide communication dated 4.5.1990 to obviate the possibility of a confusion in this behalf. In the case of Flight Lieutenant, S. Katoch, a censure was passed by following the due procedure and the displeasure was recorded after the same as a final punishment, thus, the same is distinguishable from that of the case of the petitioner where generally displeasure was expressed at the conduct of the petitioner.
18. In rebuttal learned counsel for the petitioner sought to emphasize that the procedural formalities were in the nature of a precaution for the person against whom the censure was to be made and the failure to comply with the same could not be used as a defence by the respondents. WP (C) No.70 of 1995 Page 11 of 15
19. On examination of the aforesaid issue, we find that a displeasure was expressed to the petitioner but the same was withdrawn. However, what is material is not the withdrawal of the displeasure but whether it could not be said to be a displeasure within the meaning of AFO 227/77.
It is not even in dispute that the procedure under AFO 227/77 was not followed. No show cause notice was issued to the petitioner nor any explanation called for. If the said punishment would have been questioned it could not have withstood the scrutiny of law. It is this aspect which apparently made the respondents withdraw the displeasure to take action in accordance with law. No prejudice was caused to the petitioner. The petitioner cannot be permitted to contend that if the procedure of AFO 227/77 is not followed the petitioner can challenge the same and get it quashed but the respondents cannot withdraw it having not followed the procedure. We are, thus, unable to accept the plea of the learned counsel for the petitioner that he has already been punished once and cannot be again punished for the same offence/action.
20. The third submission of the learned counsel for the petitioner centers around the invocation of Rule 16 of the said Rules. The Rule can be invoked if it is inexpedient to hold General Court Martial. Learned counsel for the petitioner, thus, contended that neither the Chief of Air Staff nor the Central Government had recorded a single reason as to why the Court Martial proceeding was inexpedient in the case of the petitioner. This aspect was WP (C) No.70 of 1995 Page 12 of 15 important as the DRI had merely confiscated the items and did not take any further action.
21. The records, however, show that the Chief of Air Staff did accord his satisfaction on the file in terms of Rule 16 of the said Rules and taking into consideration the nature of the deficiency in conduct on behalf of the petitioner it cannot be said that the decision of not holding an inquiry is so erroneous as to call for interference of this Court under Article 226 of the Constitution of India. No doubt the DRI merely confiscated the items even though it could have taken a more serious view of the matter. The factum of all the persons being service personnel possibly weighed with the DRI. Nobody came to take ownership of contraband goods seized. The undisputed fact, thus, emerges is that there were large number of dutiable goods apart from the contraband goods found in the aircraft of the petitioner which could not have been brought in without the collusion or negligence of the petitioner. The responsibility laid at the door of the petitioner. We, thus, find no merit in the submission.
22. The last aspect emphasized by learned counsel for the petitioner relate to the percentage of pensionary benefits. Learned counsel pleaded that there was no reason warranting forfeiture of 50 per cent pensionary benefits in the case of the petitioner while in the case of Wing Commander B.S. Bakshi the amount was only 10 per cent.
23. The respondents have produced the record in respect of the aforesaid to substantiate a due consideration of this aspect. WP (C) No.70 of 1995 Page 13 of 15 The two Officers were in command of two different aircrafts. The amount of dutiable goods recovered from the aircraft of the petitioner were valued at Rs.2,85,260.00 which included two gold biscuits being contraband items worth Rs.70,000.00. In the case of Wing Commander B.S. Bakshi the value of dutiable goods were Rs.39,935.00 and the number of dutiable goods were less. There were no contraband goods recovered from the aircraft of Wing Commander B.S. Bakshi. The value of goods seized in the case of the petitioner was much higher. It is this aspect which has weighed with the Central Government while ordering forfeiture of pensionary benefits in the case of Wing Commander B.S. Bakshi to the extent of 10 per cent while in the case of the petitioner the forfeiture of pensionary benefits is to the extent of 50 per cent. The competent authorities have duly considered this aspect and even the representation made by the petitioner dated 3.2.1993 has been examined and reviewed after due consideration. Once again, there is no ground to interfere with this aspect under Article 226 of the Constitution of India as the factors taken into account by the competent authorities are germane and not irrelevant.
24. Learned counsel for the petitioner did seek to emphasize that there had been past blemishless career of the petitioner but that by itself cannot come to the aid of the petitioner when the petitioner has been found blameworthy on four accounts as mentioned aforesaid. There has been WP (C) No.70 of 1995 Page 14 of 15 some redemption for the petitioner in the form of forfeiture of pensionary benefits only to the extent of 50 per cent.
25. We do not find any merit in the petition and the same is dismissed leaving the parties to bear their own costs.
SANJAY KISHAN KAUL, J.
SEPTEMBER 01, 2008 MOOL CHAND GARG, J.
b'nesh
WP (C) No.70 of 1995 Page 15 of 15