JUDGMENT G.S. Sistani, J.
1. In this writ petition, under Articles 226/227 of the Constitution of India, the petitioner has prayed that orders in the nature of writ of mandamus be passed directing the respondent to reinstate the petitioner with retrospective effect with consequential benefits. The brief facts of the case are that the petitioner joined the respondents on 29.03.1982. During the period 02.04.1982 to 26.09.1985 he carried out his duties with honest and sincerity. During the aforesaid period the petitioner has submitted that he was granted leave and he overstayed for which he was given 7 days imprisonment. Various other punishments were also given to the petitioner during the aforesaid period which include 14 days imprisonment on 02.12.1986, 28 days imprisonment on 14.03.1988, 7 days imprisonment on 30.08.1989 and 7 days imprisonment on 30.03.1990. It has been submitted that all these punishments were awarded to the petitioner without any fault on his part and without issuing him any show cause notices or any explanation from him.
2. It is pleaded that vide Order dated 28.05.2001, the petitioner was wrongly and illegally terminated from his service by the respondents w.e.f from 12.05.2001 without any fault or negligence on the part of the petitioner. The service benefits have also not been paid to him. The respondents have not complied with the provisions of natural justice. Neither any notice was issued to the petitioner nor he was afforded any opportunity to explain the position. The grounds for termination of his service were false and baseless.
3. The respondents have filed their counter affidavit. It has been contended by the respondents that the present writ petition is liable to be dismissed on the grounds of delay and latches, as the petitioner has approached this Court after more than 13 years of his discharge. The petitioner has failed to give any explanation for the delay in approaching this Hon'ble Court. The petitioner has also not exhausted the remedies which were available to him. It would be useful to reproduce Paras 'A' to 'F' of Para 7 of the Counter Affidavit:
A. That the petitioner No. 6376715 Ex. Sep. Rishimuni Rai, was enrolled in the Army on 20th March, 1982 and discharged from service under Item III (v) annexed to Army Rule 13(3) as "service no longer required" with effect from 17th May, 1990 (FN).
B. That the petitioner during his 8 years 49 days of service was awarded six punishments on different occasions which are enumerated hereunder:
a) 7 days RI in Military custody on 27th September, 1983 for an offence under Army Act Section 63 by the Officer Commanding 501 ASC Bn.
b) 14 days detention on 19th December, 1985 for an offence under Army Act Section 39(b) for Overstay of leave for 27 days by CO 528 ASC Bn.
c) 14 days RI in military custody on 02 December, 1986 for an offence under Army Act Section 39(b) for overstay of leave for 73 days by Officer Commanding, HQ Wing, ASC Centre (South).
d) 28 days RI in Military custody on 14th March, 1988 for offence under Army Act 39 (b) for overstay of leave for 73 days by OC HQ Wing, ASC Centre (South).
e) 7 days RI in Military custody on 30th August, 1989 for an offence under Army Act 39(b) for overstay of leave for 13 days by CO 536 ASC Bn.
f) 7 days RI in Military custody on 30th March, 1990 for offence under Army Act Section 63 by OC 536 ASC Bn.
C. That in order to curb indiscipline in the army, Army Headquarters vide letter No. A/13216/159/AG/PS(D) dated 28th December, 1988 had delegated the discretionary power to the OC Unit either to retain the individual having incurred four or more red ink entries or to discharge them being undesirable soldiers. The petitioner, on having incurred four red ink entries, his case was referred to 536 ASC Bn. vide ASC Records (Supply) letter No. 6376715/T8/536/Doc-IV dated 11th may, 1989. Accordingly, a show cause notice was served on the petitioner vide 536 ASC Bn. Letter No. 632638/Sup/ST-12 dated 06, June, 1989. The petitioner vide petition dated 17th June, 1989 requested that he be given an opportunity and he be retained in service. A sympathetic view was taken by CO 536 ASC Bn. and the petitioner was considered for retention.
D. That on 30th August, 1989, the petitioner was again awarded punishment under Army Act Section 39(b) and thereby he incurred another red ink entry, making five red entries. Accordingly, the petitioner was served with show cause notice vide 536 ASC Bn. letter No. 632638/6376715-N/ST-12, daed 10th September, 1989. Again on his request and on an assurance given by him that he would show improvement, another opportunity was given to him.
E. That thereafter, however, the petitioner showed no signs of improvement. He again committed an offence on 21st March, 1990 and was punished under Army Act Section 63. On 28th March, 1990, again a show cause notice was served upon the petitioner vide 536 ASC Bn. letter No. 632638/Sup/ST-12 dated 28th March, 1990. Considering it detrimental to discipline, his case for discharge from service as "service no longer required" was recommended by CO 536 ASC Bn. in IAFY-1948 and sanctioned by General Officer Commanding 36 Infantry Division on 10th April, 1990 and finally SOS with effect from 17th May, 1990.
F. That the petitioner's accounts has been closed as under:
a) Service gratuity after deduction of debit balance of Rs. 2320/- Rs. 5000/
b) AFPP Fund balance Rs. 4842/-
c) AGI maturity benefits Amount contributed Along with interest.
4. Learned Counsel for the respondents submitted that Rule 13(3)III(v) clearly empowers the authorities to pass an order of discharge simplicitor. The order of discharge is intended to relieve a person from service without casting any stigma on the service of the person. It is not by way of punishment but is a power vested in the competent authority to discharge a person from army service and is quite distinct from dismissal from service. The Rules have provided an inbuilt procedure before a person can be discharged. Show cause notice should be served upon the person and after receiving his reply, if any, the competent authority has to examine the matter in all seriousness and then pass an order of discharge, if necessary. This power is obviously not a punitive power but is normally exercised after taking the service record of a person in mind and examining his utility in the service in the years to come. At this stage we may refer to a recent judgment of a Division Bench of this Court in the case of Capt. Raj Kumar Singhal v. Union of India and Anr. (WP(C) No. 1450/2001 decided on 27th July, 2006) where the Court has held as under:
15. Learned Counsel for the respondents further contended that in spite of repeated warnings and counselling by the commanding officer, the petitioner continued with his acts of indiscipline which included absence from duty or found in state of intoxication while on duty. Due to the behavior under the Policy of habitual offenders circulated on 14.8.1984 the services of the petitioner warranted the action of his discharge. The respondents have filed along with a counter affidavit, a copy of the conduct-sheet of the petitioner which shows that the petitioner has been awarded 4 red entries and 6 black entries. Mr. Dilip Mehra, learned Counsel for the respondents contended that although the policy dated 14.8.1984 are only guidelines and the petitioner has been discharged under Rule 15(2)(g)(ii) of the Air Force Rules, 1969, which reads as under:
15. Authorities empowered to authorise discharge. - (1) & 2. xxxx
TABLE
Class Cause Competent Special
Discharge authority Instructions
to authorise
discharge
------------------------------------------------------------------------
1. 2. 3. 4.
------------------------------------------------------------------------
Person enrolled (a) to xxxxxx xxxxxx
under the Act (F) xxxxxxxx
who have attested.
(g) His services
no longer required:
(i) xxxx
(ii) Unsuitable Air Officer i/c
for retention Administration"
in the Air
Force
10. Learned Counsel for the respondents further submitted that at no point of time the petitioner ever contested the punishment so awarded from time to time. It was argued that the case of the petitioner is squarely covered, as per the policy letter dated 14.8.1984; and even assuming without admitting that Rule 74 has been violated, still the petitioner has been awarded total nine punishments, red and black combined.
11. We have heard learned Counsel for the parties and have given our thoughtful consideration as well as perused the record. The counsel for the respondents has taken us through the policy. The entire aim and object of the policy is to deal firmly with the habitual offenders. The policy is based on a study conducted by the Institute of defense Management regarding the existence of habitual offenders among airmen. As per the study the effect of repetitive indiscipline has a serious adverse effect on the general morale and discipline, especially on the young airman joining various Units from the training centres.
12. The first contention of the petitioner, that as per the show cause notice only three red ink entries have been shown, is factually incorrect.
13. Para 2 of the show cause notice mentions that in the total service of six years and eleven months the petitioner was tried and punished on as many as seven occasions, out of which four are red ink entries. A copy of the conduct-sheet was annexed to the show cause notice. The show cause notice goes on to state further that in spite of written warning the petitioner again indulged in acts of indiscipline which included absence from duty on two occasions and was found in the state of intoxication while on duty. In the writ petition the petitioner has nowhere mentioned whether he had replied to the show cause notice or not. The petitioner in terms of the communication dated 27.9.1991 addressed to the Chief of Air Staff had requested the respondents for supply of four documents on the ground that he had misplaced all his documents; and even in that list he never requested for reply to the show cause notice. The only inference that can be drawn is that no reply to the show cause notice was given. The court cannot lose track of the fact that the main ethos of the policy letter dated 14.8.1984 was to weed out habitual offenders among the airmen, as they had an adverse effect on the general discipline and administration in the Air Force. The conduct-sheet which has been filed by the respondents, as Annexure R-1, clearly shows that the petitioner was completely indisciplined and despite warning letter dated 22.12.1987 he refused to make any amends. The acts of indiscipline of the petitioner are totally unbecoming of a member of the Armed Force. The respondents have followed the procedure which is required to be implemented, as per the policy of discharge. Petitioner was duly warned vide letter dated 22.12.1987 about the implications of his persisting in the acts of indiscipline and even one additional punishment would result in discharge from the Air Force under the provisions of Rule 15(2)(g)(ii) of the Air Force Rule, 1969. The petitioner was thereafter issued a show cause notice and was discharged from service. Having perused the conduct-sheet of the petitioner, the warning letter dated 22.12.1987 and show cause notice dated 4.10.1989, we find that the respondents completely followed the procedure, as per the policy dated 14.8.1984 for discharge of the petitioner. The Hon'ble Supreme Court of India in the case of Union of India v. Corporal A.K. Bakshi and Anr. has held that the basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him 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 service. Relevant portion of the same reads as under:
The punishments referred to in the Policy for Discharge are punishments that have been imposed for misconduct under the relevant provisions of the Act and the Rules. The Policy for Discharge envisages that in cases where an airman has been awarded such punishments six 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. This action for discharge is not by way of punishment for the misconducts for which he has already been punished. The basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him 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 service. The punishments that have 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 is, therefore, discharge falling under Rule 15(2)(g)(ii) and it cannot be held to be termination of service by way of punishment for misconduct falling under Rule 18 of the Rules.
14. The plea raised by the learned Counsel for the petitioner that there is violation of Rule 74 of the Air Force Rules 1969 as two separate punishments have been awarded for separate offences in a common trial held on 8.3.1989 is of no help to the petitioner as in all ten punishments have been awarded to the petitioner as per the conduct sheet annexed as Annexure-R.1.
15. The plea taken by the respondents, thus is not without merit. The petitioner himself has been responsible for his acts of misconduct, has been awarded punishments and found to be unsuitable for retention in the Indian Air Force. We find no infirmity in the order of discharge dated 21.10.1993.
5. In the present case since the petitioner had incurred 4 red ink entries, his case was referred to 536 ASC Bn vide ASC Records (Supply) letter No. 6376715/T8/536/Doc-IV dated 11 May 1989, and accordingly a show cause notice dated 6.6.1989 was served on the petitioner. In reply to the aforesaid show cause notice the petitioner in terms of his petition dated 17.6.1989 requested that he be given an opportunity and be retained in service. A sympathetic view was taken and the petitioner was retained in service. That thereafter on 30.8.1989 the petitioner was again awarded a punishment under Section 39(b) of the Army Act and thereby he incurred another red ink entry making a total of 5 red ink entries. The petitioner was once again served with a show cause notice dated 10.9.1989 and in reply thereto he assured that he would improve himself and thus another opportunity be given to him . The petitioner showed absolutely no sign of improvement, and another offence was committed by him on 21.3.1990 as a result thereof he was punished under Section 63 of the Army Act. The respondents were forced to issue another show cause notice dated 28.3.1990, and thereafter orders for discharge were passed against the petitioner. Despite the show cause notices the petitioner made no effort to improve himself. By no stretch of imagination it can be stated that the respondents have not followed the due process of law or have not complied with the provisions of natural justice.
6. We find no infirmity in the order of discharge, as it does not suffer from element of bias or arbitrariness nor it offends the principles of natural justice. For the reasons aforesaid the present petition is dismissed, while leaving the parties to bear their own costs.