Ex. Sq. Leader Anil Gupta vs Union Of India (Uoi) And Ors.
1998 Latest Caselaw 564 Del

JUDGMENT

K. Ramamoorthy, J.

1. The writ petitioner was removed from service by order dated the 8th of July, 1994. The order reads as under:-

"1. WHEREAS, a Show Cause Notice No. Air HQ/21641/16068/P01(F) dated 12 Feb 93 was served on Sqn.Ldr.A.Gupta (16068) F(P) requiring him to show cause as to why he should not be removed from the service under Section 19, Air Force Act, 1950 read with Rule 17 Air Force Rules, 1969 for avoiding flying duties and showing lack of confidence in flying.

2. AND WHEREAS, the said Sqn Ldr A Gupta (16068) F(P), submitted a reply to the said Show Cause Notice bearing reference No. 325/16068/PF/12 dated 16 Apr 93 urging therein his reasons against the proposed action. .

3. AND WHEREAS, his reply to the said Show Cause Notice has not been found satisfactory.

4. NOW THEREFORE, the Central Govt after considering the reply of Sqn Ldr A Gupta (16068) F(P) to the said Show Cause Notice and the recommendations of the Chief of the Air Staff, in exercise of the powers conferred by Section 19 Air Force Act, 1950 and Rule 17 Air Force Rules, 1969, orders the removal from the service of Sqn Ldr A Gupta (16068) F(P)."

2. The petitioner has challenged this order. On the 12th of February, 1996, the Government of India issued a show-cause notice, which reads as under:-

"1. WHEREAS, you were commissioned in the Indian Air Force on 15 June, 1980;

2. AND WHEREAS, you were removed from service on the ground of avoiding flying duties and showing lack of confidence in flying, under Section 19 of the Air Force Act, 1950 read with Rule 17 of the Air Force

Rules, 1969 by the Central Government vide Govt. of India, Ministry of defense letter No. Air HQ/21901/16068/PO 3(F)/924/US/D(Air-III)/94 dated 08 Jul 94 and struck off strength of the Air Force with effect from 27 Jul 94;

3. AND WHEREAS, in view of your removal from the service, the grant of retiring gratuity to you is at the discretion of the President under the provisions of Regulation 24 of Pension Regulations for the Air Force, Part-I (1961);

4. AND WHEREAS, having regard to the circumstances leading to your removal from the service, the President of India proposes to forfeit entire retiring gratuity otherwise admissible to you under provisions of Regulation 24 of Pension Regulations for the Air Force, Part I(1961).

5. NOW THEREFORE, in accordance with Regulation 24 of the Pension Regulations for the Air Force (Part-I), the President of India has directed to issue this show cause notice calling upon you to submit in writing your explanation in defense containing any reasons and special circumstances, as to why entire retiring gratuity should not be forfeited Your explanation in defense is to be submitted to the undersigned within a period of 30 days of the receipt of this notice by you, failing which it shall be presumed that you have no explanation or reasons to urge against the proposed action, and action will be taken accordingly."

3. The petitioner filed an explanation by his letter dated the 11th of March, 1996 in the following terms:-

"1. In reference to letter No. Air/HQ./7211/PP&R/ P-3/242/A/D (Pen/Sers) dated 12th February, 1996, I have to submit following few lines for your kind and sympathetic consideration with regard to release of my retiring gratuity as envisaged under Reg.24 of Pension Regulation for the Air Force Part-1 (1961).

2. It was some time in 1988 that I was under tremendous pressure from my family to quit flying which I overcome in 1992 and then I was fit to fly. I requested through an application dt. 29 July 92 addressed to ACC 32 Mg AF my willingness to fly, however no heed was paid and subsequently I was removed from the Air Force.

3. During non-flying tenure I performed my duties to the best satisfaction of my superiors which can be verified from Annual Confidential Reports raised on me. It goes to show that I was not fit to fly due some family problems but I was mentally fit to perform all other jobs which AF en- trusted and assigned me from time to time.

4. In earnest truthfulness I did not want to be a flying hazard when I was not mentally fit to fly but undertook all my jobs with utmost sincerity & honesty.

5. At this juncture when I am no more With Indian Air Force I have no other place to turn to as I do not possess any academic qualification

worth mentioning since I joined I.A.F. through N.D.A. after passing Indian School Certificate.

6. I have a family consisting of wife, two small children & dependent widowed mother. With a stigma of removal from service, I cannot be look beyond a job of security Guard at the most in a private Organisation.

7. I, therefore, most humbly request your Excellency to grant me retiring gratuity which will be a big solace & I will be able to feed my family."

4. On the 26th of August, 1997, the petitioner had filed the writ petition claiming the following reliefs:-

"It is humbly prayed that the Hon'ble Court may be pleased: (i) To allow this petition.

(ii) To issue appropriate writ, order or direction to quash the letter of the respondent dated 12/2/96 (Annex 'C1'), order payment of leave encashment and retiring gratuity as admissible and payment of appropriate interest on the sum due from 27/7/94 till the date of payment."

5. During the pendency of the writ petition, the Government of India passed an order on the 17th of February, 1998 granting 75% pensionary benefits to the petitioner. The order reads as under:-

"I am directed to refer to the explanation dated 11.3.96 in response to this . Ministry's Memorandum No. Air HQ/24268/7211/PP&r-3/242/A/d(Pen/Sers), dated 12th February, 1996 and having regard to the circumstances of the case leading to the removal of the officer from service, the President is pleased to decide to sanction 75% of pensionary benefits to Sqn.Ldr. Anil Gupta (16068) F(P) to which he would have been entitled to had he retired in the normal manner on the date of removal.

2. This issues with the concurrence of Finance Division of the Ministry vide their UO No. 204/Pen/98, dated 21.21998."

6. The other benefits - retiral gratuity and leave encashment - have not been granted to the petitioner.

7. The learned counsel for the petitioner, Mr. P.KAggarwal, submits that the termination of the services of the petitioner had been an administrative action under Section 19 of the Air Force Act, 1950, and therefore, the petitioner cannot be denied the leave encashment and retiral gratuity.

8. The learned counsel for the respondents, Ms.Nimi Mehta, that the respondents had acted within the ambit of Rule 17 of the Air Force Rules, 1969 and also the letter dated the 14th of March, 1994 issued by the Government, which is filed as Annexure R-11. Rule 17 of the Air Force Rules, 1969 reads as under:-

"Removal from service of officers on grounds other than misconduct:-(1) When the Chief of the Air Staff is satisfied that an office is not to be retained in service due to "inefficiency, physical disability or other ground other than misconduct of officer: (a) Shall be so informed.

(b) Shall be furnished with particulars of all matters adverse to him; and

(c) Shall be called upon to submit in writing within a reasonable period, any reason he may wish to urge for not being removed from the service. Provided further that the Chief of the Air Staff may withhold from disclosure the particulars of any matter adverse to the officer, or any portion thereof, if in his opinion, its disclosure is not n the interests of the security of the State.

(2) If no reply is received from the officer within the specified period, or the reasons submitted by him are considered not satisfactory by the Chief of the Air Staff, the matter shall be submitted to the Central Government for Orders together with the explanation of the officer, if any, and the recommendation of the Chief of the Air Staff for the removal of the officer from the service.

(3) The Central Government may, after considering the explanation, if any, of the officer and the recommendations of the Chief of the Air Staff, and after satisfying itself that the failure, where applicable, to disclose matters adverse to the officer was in the interests of the security of the State may remove or compulsorily retire the officer from the service."

9. The letter issued by the Government of India, Annexure-11, reads as under: -

"I am directed to refer to this Ministry's letter No. 90054/AG/PS2(b)/D(AG) dated 20 Aug 90 under which officers JCO's and OR of the Army and their equivalents in the Navy and Air Force who are compulsorily retired/discharged from service on disciplinary grounds, have been allowed to encash their unutilised Annual leave accumulated for the purpose of encashment, subject to the ceiling, made of accumulation and conditions provided herein. The President is now pleased to decide that the ceiling on Annual Leave accumulated for encashment be enhanced in terms of this Ministry's letters NO.F.14(3)/88/D(AG), dated 30th December, 1991 and 10th January 1992, subject to the following conditions:-

(a) The enhancement will be subject to the ceiling and mode of accumulation prescribed in the letters dated 30 Dec. 91 and in Jan 92 mentioned above.

(b) Such encashment will be allowed only in cases where the disciplinary authority has not imposed any reduction in the amount of pension, including gratuity, as provided in this Ministry's letter No. 90054/AG/PS2(b)/5348/D(AG), dated 20 Aug 90 referred to above.

In cases, where any redaction in the amount of pension (including gratuity) has been imposed encashment of leave shall not be permitted.

These order shall take effect from 30 December, 1991.

This letter issues with the concurrence of Ministry of defense (Finance Division) vide their u.o.No. 124-PA, dated -2-1994."

10. The learned counsel for the petitioner, Mr. P.K.Aggarwal, submitted that in view of the peculiar circumstances in which administrative action was taken against the petitioner in terminating his services, the petitioner's case would not come within the parameter laid down in the letter dated the 14th of March, 1994 and, according to the learned counsel, Rule 17 of the Air Force Rules, 1969 deals with a different situation.

11. The fact that the petitioner has been removed from service is not disputed. After the show-cause notice dated the 12th of February, 1996, the Government of India had passed the order on the 17the of February, 1998 considering the explanation submitted by the petitioner. The contention on behalf of the petitioner that the letter of the Government of India dated the 14th of March, 1994 would not apply is not acceptable. By order dated the 17th of February, 1998, the petitioner is given 75% pension. The petitioner was removed from service on account of his unsuitability. to the job. Under these circumstances, I am not able to exercise my discretion to grant any relief to the petitioner. Accordingly, the writ petition is dismissed.

12. There shall be no orders as to costs.