Om Parkash Bhardwaj vs The Union of India (UOI)

S.K. Kapur, J.—The Petitioner, a citizen of India, joined the Indian Air Force in 1939 and held the rank of a Wing Commander at the time of his impugned dismissal from service. The Petitioner alleges that he made a complaint to the Central Government u/s 27 of the Air Force Act against a superior office which resulted in a counter-complaint against him whereupon he was subjected to certain investigations by the Special Police Establishment regarding some bribery and corruption. It is claimed by the Petitioner that the Special Police Establishment informed him that there was no truth in any of the allegations made against him. Ultimately, a charge-sheet was framed against the Petitioner on 12th March, 1958, which contained allegations that:

(a) the Petitioner mortgaged a car with the President of India as security for a loan of Rs. 10,000 though the car did not belong to him;

(b) the Petitioner furnished a false sale receipt for the said car;

(c) the Petitioner made some false statements in his application to the Chief Controller of Imports for the purpose of getting an import licence; and

The Petitioner obtained a free ticket from one S. Sundra, Managing Director of Messrs Electronics Limited. New Delhi and this was done in consideration of his agreement to render certain services to S. Sundra.

On 11th April, 1958, another charge-sheet was framed against the Petitioner alleging that he permitted certain deviations in the design of military boxes to be supplied to the Army by two firms thereby causing a considerable loss to the State. This charge-sheet is alleged to have been framed against the Petitioner on the basis of certain facts emerging out of an enquiry by Wing Commander Bhaskaran. It is alleged that in that enquiry Wing Commander Bhaskaran had examined certain persons and recorded their statements at the back of the Petitioner and without his knowledge. In the second charge-sheet, it was inter alia recited--

In the event of your having no satisfactory explanation or defence, I propose to recommend to the Central Government to dismiss you from service.

The Petitioner submitted replies to the charge-sheets on 18th April, 1958 and 30th April, 1958, denying the charges. By his letter, dated 18th April, 1958 (copy Annexure ''C'' to the petition), the Petitioner asked for an opportunity to cross-examine certain witnesses and examine certain files and documents. In reply to this request of the Petitioner he was informed by a letter, dated 19th April, 1958, as follows:

It is correct that the misconduct attributed to you in the ''show-cause'' notice, dated 11th April, 1958, has been based on information which came to the notice of this Headquarters during another investigation. If the officer conducting the investigation had blamed you without allowing you to be present or cross-examine the witnesses, it would have been held to be legally incorrect. But in serving a ''show-cause'' notice for the termination/dismissal from service on the grounds of misconduct, it is not material from which source the information concerning the misconduct was received by this Headquarters and as long as all evidence relevant to the misconduct attributed to you is furnished, you cannot justifiably claim that you have been prejudiced in submitting your defence.

The Petitioner alleges that though he submitted this reply, dated 30th April, 1958, to the second charge-sheet, he could not give an adequate explanation since the necessary facilities had been denied to him. It is alleged that after the Petitioner had submitted his replies he was not informed whether they were found to be satisfactory or not, that there was no trial by a Court Martial, that no witnesses were examined in support of the charges alleged and that he was not even given an opportunity to cross-examine the witnesses whose statements had been earlier recorded at his back or to adduce any oral or documentary evidence in support of his defence. The Petitioner on 1st September, 1958, received a communication from the Commanding Officer, Air Force Station, dismissing him from service u/s 19 of the Indian Air Force Act on the ground of "moral turpitude". The dismissal was to take effect from 1st September, 1958. The Petitioner on 12th September, 1958, addressed another letter asking for an opportunity to explain the case personally and, if necessary, to produce witnesses. By the said letter he also made an enquiry as to which of the two charges mentioned in the two charge-sheets had been found proved against him. The Petitioner received a reply, dated 27th October, 1958, saying inter alia that his dismissal was validly and properly ordered and that he had been dismissed on account of his misconduct referred to in the second show-cause notice, dated 11th April, 1958. In paragraphs 22 to 24 of the petition an effort has been made by the Petitioner to explain the delay in filing the writ petition, which was filed in January, 1963. It is alleged that the Petitioner had been making various representations seeking redress of his grievances. Two representations are alleged to have been made to the Prime Minister of India on 24th November, 1958 and 5th February, 1959 and one representation to the President of India on 6th October, 1961. Reply to the representation made to the President of India is stated to have been received by him on 12th December, 1961. The allegations in the Petitioner proceed to say that when the Petitioner was making all these representations, prosecution was launched against him in Court with respect to the first charge-sheet, being trial No. 34 of 1960 in December, 1960, but he was acquitted on 2nd November, 1962 and an appeal against his acquittal was also dismissed. Mr. C.B. Aggarwala, the learned Counsel for the Petitioner, pointed out that the prosecution in fact started in August, 1959 and it was in view of these circumstances that the Petitioner could not file his petition before January, 1963. I must confess that I am not at all satisfied with the explanation about delay. It is admitted on behalf of the Petitioner that the statute does not give any right of making representations and I do not think that the time spent in making representations to the Prime Minister and the President of India by way of mercy appeals can be pleaded in justification of delay. It is then said that his prosecution started in August, 1959, which completely occupied Petitioner''s attention. Here again, I would say that the mere fact of commencement of prosecution could not stand in the way of the Petitioner seeking redress in this Court against the order of his dismissal. Apart from that, the dismissal order was made in September, 1958 and still for about one year thereafter no writ petition was filed. Having regard to all these circumstances, I would say that the Petitioner has failed to explain the delay and the petition should be dismissed on that ground.

Since considerable arguments have been addressed to me regarding the construction of the statute and violation thereof, I would briefly deal with the same out of deference to the arguments at the bar. The first contention on behalf of the Petitioner is that no order against the Petitioner could have been made u/s 19, as has been done, dismissing him except after trial by a Court-Martial. The argument proceeds that power to dismiss u/s 19 is merely a power of execution of an order passed by a Court-Martial. Chapter VI of the Air Force Act, 1950, prescribes the various offences and Section 73 the punishments awardable by Court-Martial. Clause (f) of Section 73 provides dismissal from service as one of the punishments. The contention of Mr. Aggarwala, the learned Counsel for the Petitioner, is that since the allegations made against him fell within Chapter VI, the only alternative available to the Respondent was to put the Petitioner on trial and if the Court-Martial awarded him the punishment of dismissal from service, dismiss him in exercise of powers u/s 19. According to Mr. Aggarwala, the punishment awarded by a Court-Martial u/s 73 does not take effect proprio vigore but has to be given effect to by the Central Government u/s 19. He has drawn my attention also to Chapter XIII, providing for execution of sentences. There appears to be no force in the contention of Mr. Aggarwala and, in my opinion, the punishments awarded by the Court Martial take effect proprio vigore subject of course to certain confirmations provided by the statute. It is not, in my opinion, correct to suggest that even though the sentence awarded by a Court-Martial is confirmed under Chapter XII, yet, if the punishment be dismissal, it has to be given effect to by the Central Government u/s 19. Chapter XIII, dealing with execution of sentences merely deals with the procedure and the method in which the sentence is to be executed and does not, as is sought to be contended at the bar on behalf of the Petitioner, provide that some external authority has to give effect to the punishment awarded by the Court-Martial Moreover, if Mr. Aggarwala''s argument is accepted, there would be no method provided in the Act for executing some of the punishments mentioned in Section 73. One of such punishments, which I may quote by way of illustration, would be the punishment of reprimand. After attending to all the provisions of the Act and the circumstances my conclusion is that the power conferred on the Central Government to terminate service is independent and not dependent on any punishment awarded by a Court-Martial.

There then remains to consider the other argument of Mr. Aggarwala that if the Central Government exercised powers to dismiss, it must do so after due enquiry and due compliance with the demands of natural justice, particularly when dismissal is by way of punishment. The argument is that a stigma has been attached to the Petitioner in the dismissal order which has been passed without due enquiry in disregard of rules of natural justice and, therefore, is not a valid older. On behalf of the Respondent, on the other hand, it has been contended that dismissal u/s 19 does not confer a justiciable right and, in any case, the show cause notice having been issued to the Petitioner and his replies considered, the requirements of natural justice had been met. Having heard the learned Counsel thus far I reserved orders to consider whether it is open to me at all to go into the question of violation of natural justice. Having considered the arguments at the bar, in my opinion, there is no merit in the contention of the Petitioner. Section 18 of the said Act provides the tenure of service to be during the pleasure of the President. Section 19 gives an absolute power to the Central Government to dismiss or remove from service "any person subject to this Act". It is abundantly recognised that persons who enter the military service and take the state''s pay and who are content to act under the President''s commission, although they do not cease to be citizens in respect of responsibility, yet they do, by a compact which is intelligible and which requires only the statement of it to recommend it to the consideration of any one of common sense become subject to military rule and military discipline. In case of civil servants certain special safeguards have been provided by Article 311 of the Constitution. Those safeguards admittedly do not extend to the army personnel. Admittedly, no rules have been framed in this behalf and there is, therefore, no question of any violation thereof. If any rules had been framed and violated, possibly different considerations may have arisen. As the law however, stands at present it seems to recognise that employment in Army is not a right but only a privilege revocable by the sovereign at will and efficient management demands that power to appoint should necessarily include the power to dismiss. In Army matters the legislature has conferred on the Government the same proprietary rights as provided to employers to hire and fire without restrictions. Reliance has been placed by Mr. Aggarwala on certain decisions under the Industrial Disputes Act holding that even in a case where under the standing orders it is permissible to terminate the services with one month''s notice or payment in lieu thereof without assigning any reason, it is not open to the employer to exercise that power in an arbitrary or capricious manner and the bona fides as well as the justifiability of the employer''s act can be enquired into by the Tribunals constituted under the Industrial Disputes Act. I do not think that that principle can be extended to matters of army discipline. In my opinion, any alleged violation of natural justice in the matter of dismissal or removal from service does not confer a justiciable right on the persons subject to the Air Force Act, 1950.

In the result, this petition must fail and is dismsised with no order as to costs.