Avimanyu Panda (Ex. Sgt.) vs Union Of India & Ors.
1999 Latest Caselaw 11 Del

ORDER

Case Note:

Army Law - Discharge--Non compliance of principles of natural justice--Arbitrary exercise of power of discharge after dropping the Court Martial proceedings--Order of dismissal, set aside.

Held:

After the dropping the proceedings for holding the court martial, as I had noticed above, the show-cause notice was issued on the 14th of July, 1995. A perusal of the record would show that the Wing Commandar, CJA had expressed the view that if court martial is ordered to be held, that would subject the young girl of impressionable age a lot of embarrassing questions, and, therefore, according to him, the AOC-in-C may order summary disposal under Section 82 of the Air Force Act, 1950.

But the AOC-in-C, on the 3rd of July, 1995, before permitting the issuance of the show-cause notice, had directed the initiation of action under Section 20(3) of the Air Force Act, 1950. What influenced the AOC-in-C to pass the order was that his investigation revealed that the petitioner was involved in two similar incidents--one at hospital at Banglore and the other at Sick Quarters Training Command (Unit). These were not formally reported on the request of the victims or their families. The respondents apparently, while not being aware of their Constitutional obligations, cannot assume things on the basis of material not made available to the petitioner and without any evidence and come to a decision. The view of the AOC-in-C that the holding of a court martial will require the complainant to say things in Court which will be traumatic for her, is wholly irrelevant. It is not professed that any national security is involved.

Therefore, here is a case where decision had been taken to dismiss the petitioner from service and thereafter the show-cause notice was issued. It is quite un-understandable as to how when the respondents, dealing with the matter administratively, could take a decision that if court martial is held, that would embarrass the complainant and, therefore, the petitioner should be removed from service. In our democratic polity, any decision could be taken only in accordance with law. Taking a final decision and issuing show-cause notice is an arbitrary exercise of power and is violative of Article 14 of the Constitution of India. The view taken by the respondents is a view which would not be taken by a person properly instructed in law. The respondents had completely accepted case of the complainant without any basis and that is wholly illegal. Accordingly, the writ petition is allowed and the order of dismissal date 21.8.1995 and the order poxes by the appellate authority dated 12.1.1996 are set aside.

K. Ramamoorthy, J.

1. The petitioner was dismissed from service on the 21st of August, 1995 by the competent authority. He preferred an appeal. That was dismissed and conveyed to the petitioner on the 12th of January, 1996. The petitioner has filed the writ petition challenging the order of dismissal.

2. The petitioner was enrolled in the Indian Air Force as a Combatant Member on the 29th of October, 1979. After 16 years of service, he was promoted to the rank of Sergeant. On the 5th of July, 1993, the petitioner was posted in 810 Signal Unit, Air Force, where he was to perform the duties of a Laboratory Assistant in the Medical Laboratory since he had undergone specialised training from Command Hospital Bangalore. On the 27th of April, 1995, the Commanding Officer issued a chargesheet under Section 354 of the Indian Penal Code read with Section 71 of the Air Force Act, 1950. The allegation is that the petitioner committed an act of outraging the modesty of one girl who came for medical checkup. It is not necessary to set out the nature of the charges against the petitioner.

3. A summary of evidence was directed to be recorded. By letter dated the 9th of May, 1995, the petitioner was informed that his case had been referred to the competent authority for the purpose of convening a District Court Martial. The letter dated the 9th of May, 1995 reads as under:

"1. You are hereby informed that a case of civil offence that is to say, using criminal force to a woman, to outrage hr modesty, punishable under Section 354 of Indian Penal & Air Force discipline is being referred to Competent Air Force Authority who can convene a District Martial for their decision.

2. You are hereby given an opportunity to decide a Defending Officer who are law qualified, in the list attached with the same note. You may also give an alternate name for this purpose and the officer will be provided to you for your defense, as per their availability.

3. A specimen certificate in which you are to opt the name of Defending Officer are attached herewith for your completion & return the same to the undersigned immediately."

4. On the 13th of May, 1995, another letter was sent to the petitioner. It was again reiterated that the petitioner's case was being referred to the competent authority for the purpose of convening a District Court Martial. No District Court Martial was convened and the petitioner did not receive any intimation in respect of convening of the District Court Martial. A showcause notice dated the 14th of July, 1995 was issued to the petitioner stating that the petitioner was guilty of committing an offence punishable under Section 354 IPC read with Section 71 of the Indian Air Force Act, 1950. On the 24th of July, 1995, the petitioner submitted his explanation. By order dated the 21st of August, 1995, the petitioner was dismissed from service. The authority had not given any reasons. No inquiry was conducted against the petitioner. In paragraph 9 of the dismissal order dated 21.8.1995 it is stated: "AND WHEREAS, the AOCinC, Western Air Command, IAF having considered your reply dated 24 Jul 95, has ordered on 17 Aug that you are to be dismissed from Air Force under Section 20(3) AF Act, 1950."

5. The petitioner preferred an appeal to the Chief of the Air Staff. On the 12th of January, 1996, the Deputy Director Personal Services for Chief of the Air Staff informed the petitioner that his appeal had been dismissed.

6. Mr.R.N.Sharma, the learned counsel for the petitioner formulated the following points that:

1. Rule 18 of the Air Force Rules, 1969 had not been complied with and certificate under Rule 18(2) of the Air Force Rules, 1969 had not been issued by the competent authority and Rule 17 of the Air Force Rules, 1969 had also not been followed.

2. The respondents have violated the provisions of Rule 24 of the Air Force Rules, 1969.

3. The respondents relied upon a statement alleged to have been given by the petitioner, which is found at page 165 as Annexure RK. According to the learned counsel for the petitioner, Mr.R.N.Sharma, no such statement was given by the petitioner and if the petitioner had given such a statement, the Commanding Officer would have taken his signature, and, therefore, the statement referred to in Annexure RK cannot be relied upon.

4. The respondents had also not followed the provisions of Rule 27 of the Air Force Rules, 1969.

5. In framing the charge, Rule 36 of the Air Force Rules, 1969 had not been followed.

7. The learned counsel for the petitioner, Mr.R.N.Sharma submitted that when the Commanding Officer had given up the convening of the District Court Martial, the respondents could not take action under Section 20(3) of the Air Force Act, 1950. The respondents filed the counter on the 21st of August, 1996. The respondents had denied the 'chit' relied upon by the petitioner, which, according to the petitioner, was sent by some superior authority, on the basis of which he had to help the girl who came for some tests. It is not necessary to go into the probative value of the 'chit'.

8. According to the respondent, the misconduct of the petitioner was reported by the mother of the girl to Wing Commander M.N.Sharma, Senior Medical Officer of the Unit. The Wing Commander Sharma conducted informal investigation and recorded the statements of the complainant girl and her mother. He had also recorded the statements of Medical Inspection Room's staff, Ms.Julka, and B.D.Sharma, Medical Assistant and also the petitioner. The Wing Commander M.N.Sharma brought the incident to the notice of Unit Administrtion. On the 27th of April, 1995, a summary trial was conducted by the Group Captain S.K.Soni, the Commanding Officer of the petitioner. The trial was conducted under Section 82 of the Air Force Act, 1950 and the procedure laid down under Rule 24 of the Air Force Rules, 1969. During that trial, all the witnesses were heard independently in the presence of the petitioner. The petitioner was given full opportunity to cross examine the witness. At the conclusion of the hearing of the charges, the Commanding Officer was of the opinion that the charges ought to be proceeded with and the Wing Commander S.P.Sharma of the Unit was detained by the commanding officer to conduct summary of evidence. A form of chargesheet as per Rules 34 & 37 of the Air Force Rules, 1969 was raised against the petitioner. The procedure prescribed under Rule 24 had been followed prior to recording of summary evidence. The petitioner had misrepresented the contents of the letters dated the 9th of May, 1995 and the 13th of May, 1995. The authority concerned had only stated that the matter had been referred to the competent Air Force authority, who can convene a District Court Martial. It was never stated that the petitioner's case was being referred to for the purpose of convening a District Court Martial.

9. It is stated in paragraph 3(xi) of the reply filed by the respondents: "Here is submitted that the application for trial by the Court Martial submitted by the Commanding Officer of 810 SU, AF (the Commanding Officer of the petitioner) was duly considered by the Air Officer CommandinginChief, Headquarters Western Air Com mand, Indian Air Force, the authority competent to convene a District Court Martial after obtaining the advice of Command Judge Advocate of the Command (as per para 734 of Regulations for the Air Force, 1964 (Revised Edition). Air Officer Commandingin Chief, Headquarters Western Air Command, Indian Air Force also has the inherent powers to dismiss or remove an airman (other than officer or Warrant Officers) under Section 20, subSection (3) of Air Force Act, 1950. The Air Officer CommandinginChief, Headquarters, Western Air Command, Indian Air Force having considered the case, the sensitive nature of the offence and visualising the embarrassment which could have been caused to the young girl (Miss Suman Kumari Verma) during examination/cross examination in the Court Martial decided that instead of taking disciplinary action against the petitioner administrative action is to be initiated under Section 20, subSection 3 of Air Force Act, 1950. Pursuant to the to the directions by the Air Officer CommandinginChief, Headquarters, Western Air Command, Indian Air Force, a showcause notice was served upon the petitioner in pursuance of Rule 18 of Air Force Rules, 1969. The orders to initiate action having been given by the competent Air Force authority personally on file and the showcause notice was signed by the Chief Personnel Staff Officer of Headquarter, Western Air Command, Indian Air Force on behalf of the Air Officer Command inginChief."

10. According to the respondents in the counter, the preliminary inquiry in the form of informal investigation was carried out by Wg Cdr M.N.Sharma on the 25th of April, 1995. It is stated that there was no further requirement of additional inquiry in the form of court of inquiry. Rule 27 of the Air Force Rules, 1969 gives jurisdiction to an Air Officer CommandinginChief to reject the application for trial prior to court martial and direction could be issued for administrative action under Section 20(3) of the Air Force Act, 1950. The Air Officer CommandinginChief is competent to convene District Court Martial and has the authority to reject the application and direct administrative action. Provisions of Rule 81 of the Air Force Rules 1969 had not been complied with. It is stated in the counter by the respondents: "It would be pertinent to submit here that the petitioner was given all opportunities to prove his innocence during application of Rule 24, according to summary of evidence and while replying to the showcause notice."

11. It is further stated in the counter by the respondents: "AOCinC, HQ, WAC, IAF also has the inherent powers to dismiss or remove an airman (other than Warrant Officers) under Section 20 of Air Force Act, 1950. Air Officer CommandinginChief, Western Air Command, Indian Air Force having considered the reply to showcause notice given by the petitioner and also the case, the sensitive nature of the offence and visualising the embarrassment which could have been caused to the young girl (Miss Suman Kumari Verma) during examination/crossexamination in the Court Martial decided that instead of taking disciplinary action against the accused, administrative action is to be initiated under Section 20 SubSection 3 of Air Force Act, 1950."

12. With reference to the point taken by the petitioner about the competence of the officer issuing the showcause notice, it is stated in the counter:

"pursuant to the directions by the Air Officer Commanding in Chief, Headquarters, Western Air Command, Indian Air Force, a showcause notice was served upon the petitioner in persuance of Rule 18 of Air Force Rules 1969. The order to initiate action having been given by the competent Air Force authority personally on file and the showcause notice was signed by the Chief Person nel Staff Officer of Headquarters, Western Air Command, Indian Air Force on behalf of the Air Officer CommandinginChief."

The order of dismissal was passed by the Air Officer Commanding inChief who was the competent authority to pass the order.

13. Dealing with the point raised by the petitioner relating to court of inquiry, it is stated in the counter: "Purpose of a Court of Inquiry is to assist the Commanding Offi cer in decision making. This purpose is served depending upon volume of data in evidence, by informal investigation, Formal investigation or a Court of Inquiry. This particular incident was a clear case where evidence data collation was minimal. The whole incident had appeared to have taken place solely in the toilet of laboratory with minimal witnesses for corroborated evidence. Therefore, it was justified to apply Rule 24 Air Force Rules, 1969 based on the complaint and the informal investigation. This was done. Rule 24 Air Force Rules, 1969 was applied. The petitioner was informed during the proceeding of application of Rule 24 by the Commanding Officer that the petitioner could cross examine any witness, bring any evidence or witness in his favour and also make a statement in his favour. The petitioner cross examined two witnesses (including the complainant) and also made statement in his defense (Annexure C). The petitioner was also given full opportunity to crossexamine any witness and make a statement and bring any evidence or witnesses in his favour during the recording of Summary of Evidence. He crossexamined all relevant witnesses and had also made a statement in his defense (copies of proceedings of Rules 24 of Summary of Evidence refer Annexure RA and RB). Therefore, all opportunity was given to the petitioner to put up his defense. The defense put up by him by way of crossexamining witnesses and by his own statements during application of Rule 24 of Air Force Rules, 1969 and during the recording of Summary of Evidence was duly considered by appropriate authorities in 810 su, AF and later by HQ WAC, IAF. Therefore, this statement of the petitioner is totally false."

14. The application for trial submitted by the Commanding Officer of 810 Unit was considered by the Air Officer CommandinginChief(HQ) and after obtaining the advice of Command Judge Advocate of the Command (as per para 734 of Regulations for the Air Force 1964 (Revised Edition), the Air Officer CommandinginChief is empowered to dismiss or remove an airman under Section 20 of the Air Force Act, 1950. The respondents had prayed for the dismissal of the writ petition. The respondents had filed the following documents along with the counter:

S. Particulars No.

1. Reply on behalf of the respondents

2. Annexure R-1: Informal investigation carried out by Wing Commander MN Sharma (13628-B) Med.

3. Annexure R-B: Summary of Evidence recorded by Wing Commander SP Sharma, (14138-A) AE(L).

4. Annexure R-C: Certificate for application of Rule 24 as per AFO 290/76 by Commanding Officer.

5. Annexure R-D: IAFF(P) 13 Charge Report.

6. Annexure R-E: IAFF(P) 24 Minor Offence Report.

7. Annexure R-F: Formal Charge Sheet.

8. Annexure R-G: Requisite certificate for the Recording Officer and duly signed by the petitioner as having complied with the provision and Rules 24 (Sub-Rules 4,5,6 & 7).

9. Annexure R-H: Extract of Section 82 of Air Force Act, 1950, Rules 24, 34, 35, 36 & 37 of Air Force Rules, 1969.

10. Annexure R-J: General Application for leave.

11. Annexure R-K: Statement of petitioner as recorded by Commanding Officer duly application of Rule 24 of Air Force Rule, 1969 under Section 82 of Air Force Act, 1950.

12. Annexure R-L: Orders for dismissal.

13. Annexure R-L: Orders for dismissal.

14. Annexure R-M: Certificate of explanation of the contents of the Dismissal Orders to the petitioner by the Commanding Officer.

15. The learned counsel for respondents, Mr.A.K.Vali submitted that disciplinary proceedings/administrative action are exclusive and the respondents had followed the procedure prescribed. The learned counsel further submitted that sufficient opportunity was given to the petitioner, and after considering the explanation, the impugned order was passed which has been confirmed by the appellate authority.

16. Mr.R.N.Sharma, the learned counsel for the petitioner, submitted that the respondents had started proceedings to convene a District Court Martial and in doing so, they had not followed Rule 27 of the Air Force Rules, 1969. The learned counsel for the petitioner, Mr.R.N.Sharma, also submitted that there was a violation, with reference to contents of the charges, of Rule 36 of the Air Force Rules, 1969.

17. The fact is that the disciplinary action initiated against the petitioner was given a goby and the respondents did not think it fit to pursue the same.

18. The respondents had taken action under Rule 18 of the Air Force Rules, 1969. The respondents had traced their power, to Section 20 of the Air Force Act, 1950. Section 20 of the Air Force Act, 1950 reads as under:

"Dismissal, removal or reduction by Chief of the Air Staff and other officers._(1) The Chief of the Air Staff may dismiss or remove from the service any person subject to this Act other than an officer.

(2) The Chief of the Air Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer.

(3) An officer having power not less than an less an air officer incharge of a command or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer.

(4) On active service, an officer commanding the air forces in the field may reduce to a lower rank or to the ranks any warrant officer or noncommissioned officer under his command.

(5) The Chief of the Air Staff or an officer specified in sub section (3) may reduce to a lower class in the ranks any airman other than warrant officer or noncommissioned officer.

(6) The Commanding officer of an acting noncommissioned officer, or if he has no such substantive rank to the ranks.

(7) The exercise of any powers under this section shall be subject to the other provisions contained in this Act and the rules and regulations made thereunder."

19. Rule 18 of the Air Force Rules, 1969 reads as under:

Dismissal or removal of a person subject to the Act other than an officer._Save in a case where a person subject to the Act other than an officer is dismissed or removed from the service on the ground of conduct which had led to his conviction by a criminal court or a court martial, no such person shall be dismissed or removed under subsection (1) or subsection (3) of Section 20 unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writ ing any reasons he may have to urge against his dismissal or removal from the service.

(2) Notwithstanding anything contained in subrule (1), if in the opinion of the officer competent to order the dismissal or remov al of such person, it is not expedient or reasonably practicable to comply with the provisions of subrule (1), he may after certifying to that effect, order the dismissal or removal.

(3) All cases of dismissal or removal without complying with the procedure prescribed in subrule (1) shall without delay, be reported to the Central Govern."

20. The petitioner was given showcause notice on the 14th of July, 1995. Within ten days, he was asked to submit his explanation. He asked for his conduct sheets and he wanted extension of time. His request was not complied with. The showcause notice reads as under:

SHOW CAUSE NOTICE

1. WHEREAS, you were enrolled in the Air Force on 29 Oct 79 at ASC, Bhubaneshwar and assigned the trade of Med Asst;

2. AND WHEREAS, while on the posted strength of 810 SU, AF on 25 Apr 95, you were doing your duty as Lab Asst at MI Room (BIO SU, AF);

3. AND WHEREAS, Miss Suman Kumar Verma Daughter of 253654 JWO Vijay Shanker Verma Ach GD of 27 ED had reported sick on 25 Apr 95;

4. AND WHEREAS, Miss Suman Kumari Verma was advised by the Lady Doctor to give blood and urine sample;

5. AND WHEREAS, while doing your duty as Lab Asst, delayed taking blood sample and asked Miss Suman Kumari Verma to wait for col lection of urine sample and you volunteered to assist her in taking urine sample when it was not required;

6. AND WHEREAS, when Miss Suman Kumari Verma went inside the toilet, you also went inside and asked her to sit in the toilet and you gave cotton to Miss Suman Kumari Verma to clean her private parts;

7. AND WHEREAS, you rubbed the test tube bottle against her genitals thereby committing an offence of using criminal force against a woman with intention to outrage her modesty, an offence under Section 354 IPC read kn conjunction with Section 71 of the Air Force Act, 1950;

8. Now, therefore, you are to show cause as to why you should not be dismissed from the service under subSection 3 of Section 20 of the Air Force Act, 1950 for committing the above said offence. If you have anything to urge in your defense, your reply to the show cause notice should reach your Commanding Officer within 10 days of the receipt of the show cause notice. If no reply is received, it will be presumed that you have nothing to state in your defense and action, as deemed fit, will be taken;

9. You are to acknowledge the receipt of this show cause notice;

10. This notice is issued on the orders of the AOCinC, WAC, IAF;"

21. The petitioner submitted his explanation on the 24th of July, 1995 within the time granted. On the 21st of August, 1995 the order of dismissal was issued. The said order reads as under:

DISMISSAL FROM SERVICE

1. WHEREAS, you were enrolled in the Air Force on 29 Oct 79 at ASC, Bhubaneshwar and assigned the trade of Med Asst;

2. AND WHEREAS, while on the posted strength of 810 SU, AF on 25 Apr 95, you were doing your duty as Lab Asst at MI Room (BIO SU, AF);

3. AND WHEREAS, Miss Suman Kumar Verma Daughter of 253654 JWO Vijay Shanker Verma Ach GD of 27 ED had reported sick on 25 Apr 95;

4. AND WHEREAS, Miss Suman Kumari Verma was advised by the Lady Doctor to give blood and urine sample;

5. AND WHEREAS, while doing your duty as Lab Asst, delayed taking blood sample and asked Miss Suman Kumari Verma to wait for col lection of urine sample and you volunteered to assist her in taking urine sample when it was not required;

6. AND WHEREAS, when Miss Suman Kumari Verma went inside the toilet, you also went inside and asked her to sit in the toilet and you gave cotton to Miss Suman Kumari Verma to clean her private parts;

7. AND WHEREAS, you rubbed the test tube bottle against her genitals thereby committing an offence of using criminal force against a woman with intention to outrage her modesty, an offence under Section 354 IPC read kn conjunction with Section 71 of the Air Force Act, 1950;

8. AND WHEREAS, a show cause notice in terms of Section 20(3) AF Act, 1950, was served upon you on 14 Jul 95 by AOCinC, Western Air Command, IAF vide WAC/2801/4/98/PA dated 14 Jul 95 requiring you to make your submission, if any, against your contemplated dismissal;

9. AND WHEREAS, the AOCinC, Western Air Command, IAF having considered your reply dated 24 Jul 95, has ordered on 17 Aug 95 that you are to be dismissed from Air Force under Section 20(3) AF Act, 1950;

10. Now, therefore, this communication is issued to you to convey the above order of the AOCin C."

22. The petitioner filed an appeal to the Chief of Air Staff on the 12th of January, 1996. The appellate authority dismissed the appeal. On the 2nd of March, 1996, the writ petition was presented in this Court.

23. The point to be considered is whether the respondents could resort to Rule 18 of the Air Force Rules, 1969 to pass the order of dismissal after having dropped the disciplinary action, and whether the respondents had any materials to sustain the order of dismissal. It is a basic principle of law that no employee could be dismissed from service without any basis. This point was being mooted out before Courts and the development of this aspect could be traced. On behalf of the respondents, the point that was being urged before all courts has been that the power to take administrative action is independent and it is only a subjective satisfaction and the objective consideration of the materials placed on records.

24. In "S.K.Rao Vs. Union of India", 1968 (1) Lab.I.C.60 (Delhi), Rule 14 of the Army Rules, 1954, which is in pari materia with Rule 18, was challenged as being ultra vires the provisions of the Act. It was contended on behalf of the petitioner in the writ petition that the power under Rule 14 of the Army Rules, 1954 was not independent and it was subject to Section 45 of the Army Act, 1950 and the power should be exercised in accordance with the Act and the Rules. This Court held that Rule 14 of the Army Rules, 1954 was ultra vires and the writ petition was allowed on that ground. This Court did not go into the merits of the case.

25. In "Union of India Vs. Ex.Kanor Ranbir Singh Sidhu", , the Second Lieutenant in the Army was dismissed from service under Section 19 of the Army Act, 1950. The officer filed a suit challenging the action and relied upon the judgment of this Court in "S.K.Rao Vs. Union of India", 1968 (1) Lab.I.C.60 (Delhi), contending that the charge of insubordination, being covered under Section 42(e) of the Army Act, 1950, no action under Section 19 of the Army Act, 1950 could be taken. The learned trial Judge accepted the contention and decreed the suit. On appeal, the decree of the Trial Court was confirmed. The Union of India filed a second appeal before the Allahabad High Court. Before the learned Single Judge, the appellant, Union of India, contended that the decision relied upon by the plaintiff in that case was being subject matter of appeal before the Supreme Court, and, therefore, the ratio in that case cannot be relied upon by the plaintiff. The Allahabad High Court held: "The courtmartial contemplated under the Act is an independent body for punishing an officer who on conviction is found to have committed an offence. The power given to the President and the Central Government under Sections 18 and 19 are parallel powers to two distinct bodies. Section 18 is only a reiteration of the power given by the Constitution. Section 19 is an additional power given to a new authority, i.e., Central Government and has, therefore, been made subject to the provisions of the Act and the rules. No section of the Act restricts the power of dismissal or removal conferred by S. 19. On the other hand, the power conferred of punishment by the courtmartial is subject to the confirmation of the Central Government. Because some other authority has also been conferred power to punish for offences, that cannot mean and cannot imply that the Central Government is stripped of the power of dismissal or removal. In a democratic constitution where President is the figure head and acts under the advice of the Ministers, the powers conferred under Section 19 is to ensure the control of the Central Government also over the defense person nel. It is not disputed that on the relevant date there were no rules or regulations framed under the Act and the Army Act was the solitary Act under which action had been taken. If no rules and regulations have been framed, the power cannot be said to be nonexistent. The purpose of rules and regulations is to serve the purpose of provisions of the enactment and cannot make any change in the provision. The rule only could be framed laying down the procedure for the exercise of the power given in Section 19. With due respect to the observations of the Bench of the Delhi High Court made in S.K.Rao's case, 1968 Lab IC 60 which is the subjectmatter of appeal before the Supreme Court. I am not prepared to accept that Section 19 of the Act is not independent power to the Central Government to dismiss or remove persons."

26. The Supreme Court in "Union of India Vs. S.K.Rao", the judgment of this Court [1968 (1) Lab.I.C. 60]. The Supreme Court held:

"Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person subject to the Army Act. Section 191(2)(a) specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. It follows that there may be a valid rule whereunder, subject to the other provisions of the Act, the Central Government may remove a person from the service. Rule 14 is such a rule; it is, therefore, not ultra vires.

It was argued that the words "subject to the provisions of this Act" occurring in Section 19 makes Section 19 n subject to Section 45, and the Central Government has thus no power to remove a person from the service in derogation of the provisions of Sec tion 45. But the power under Section 19 is an independent power. Although Section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service. Section 45 provides that on conviction by Courtmartial an offi cer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned. For removal from service under Section 19 of the Army Act, read with Rule 14 of the Army Rules, 1954, a Courtmartial is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive."

27. In "Gurudial Singh Cheema Vs. The Union of India & Others", 1976 Lab.I.C. 59 (Delhi), a Division Bench of this Court dealt with the case of a Corporal, who was dismissed from service. What happened in that case was: Two motorcycles were stolen from the Air Force Station, Palam on the night of 3rd/4th June, 1965. A Court of Inquiry was conducted and it transpired that the petitioner was responsible for the theft. He was informed of the same. Based on that, notice was issued to him as to why he should not be removed from service. The prosecution launched before the First Class Magistrate, New Delhi did not frame any charge against the petitioner in that case. The petitioner in that case was dismissed from service on the basis of the opinion that could be gathered from the Court of Inquiry. The order of dismissal was challenged on the ground that the proceedings of a court of inquiry would not be admissible in evidence under Rule 137 (g), and, therefore, the order of dismissal was vitiated. This Court rejected that argument and dismissed the writ petition.

28. This Court expressed the view that the proceedings of the Court of Inquiry were not used as evidence against the petitioner because it was not necessary that any fact should be proved against him before his dismissal. This Court further held that the authorities could take them into account as reasons for his removal without the contravention of Rule 137 (g). This Court observed: "The proceedings of the court of inquiry are not evidence against a person to be removed in view of Rule 137 (g). Nevertheless, they may lead to the removal of the person like the petitioner merely because they can act on the same way as adverse confidential report or an anonymous complaint can act. It is only if a statute or statutory rules requires the natural justice procedure to be followed that the power of removal is subject to some limitation. But in the absence of a statute or statutory rules it is not subject to such limitation."

29. The Division Bench was conscious of the position: "Of course, action under Section 20 cannot be without rhyme or reason. Action would be taken for some reason. Such reason may be that the authority competent to act under Section 20 may believe that some one subject to the Air Force Act should no longer be kept in service or should be removed from service. Such a reason may be supported either by some information or some opinion or some data or some facts proved or unproved. For instance, adverse confidential report may result in such a removal, or an anonymous complaint may have the same result."

30. In "Harbhajan Singh Vs. Ministry of defense, Government of India & Others", 1982 (2) SLR 782, this Court took the view that the discretion to dispense with the holding of court martial under Rule 14 of the Army Rules, 1954 was justiciable. This Court allowed the writ petition filed by the writ petitioner on the ground that once Section 122, which speaks of limitation for taking action, stood attracted, no action under Rule 14 of the Army Rules, 1954 could be taken.

31. In "Chief of the Army Staff & Others Vs. Major Dharam Pal Kukrety", , the Supreme Court considered the scope of Rule 14 of the Army Rules, 1954. The respondent before the Supreme Court was holding substantive rank of Captain and the acting rank of Major. The court martial was convened on the charges framed against him. The court martial held that he was not guilty of the charges. The General Officer, Commanding Madhya Pradesh, Bihar and Orissa area, did not confirm the verdict and sent back the finding for revision. The same General Court Martial reassembled and took the same view. Thereafter, the Chief of the Army Staff issued the showcause notice under Rule 14 of the Army Rules, 1954. That was challenged before the Allahabad High Court. The Allahabad High Court allowed the writ petition. The Supreme Court, dealing with the power of the Chief of the Army Staff to issue showcause notice under Rule 14 under the circumstances of the case, posed the question: "This being the position, what then is the course open to the Central Government of the Chief of the Army Staff when the finding of a court martial even on revision is perverse or against the weight of evidence on record?" The Supreme Court held: "The crucial question, therefore, is whether the Central Govern ment or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government or the Chief of the Army Staff to have recourse to that Rule in the first instance without directing trial by a courtmartial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohib its the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a courtmartial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word "inexpedient" as meaning "not expedi ent; disadvantageous in the circumstances, unadvisable, impoli tic." The same dictionary defines "expedient" inter alia as meaning "advantageous, fit, proper, or suitable to the circum stances of the case." Webster's Third New International Diction ary also defines the term "expedient" inter alia as meaning characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper or advantageous under the circumstances."

32. The Supreme Court allowed the appeal holding: "In such circumstances, to order a fresh trial by a courtmartial could certainly by said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the respondent under Rule 14, which he did. The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law."

33. The ratio laid down by the Supreme Court is that the authority acting under Rule 14 of the Army Rules, 1954 could exercise the power of dismissal if there are materials on record. The findings rendered by the General Court Martial were not confirmed by the competent authority. The Supreme Court, as could be seen from the judgment, held that the finding by the General Court Martial was perverse and, therefore, the Supreme Court held that the showcause notice was within the jurisdiction of the authority. Therefore, the Court has to see whether there are materials on record to sustain the action under the power purported to be exercised.

34. In "Lt.Col.(T.S.) H.C.Dhingra Vs. Union of India & Another", 1988 (2) Delhi Lawyer (DB) 109, a Division Bench of this Court had to again consider the scope of Rule 14 of the army Act, 1954 in the light of Section 122 of the Army Act, 1950. The Division Bench held: "Apart from everything else, we fee that the impugned action against the petitioner, based on the opinion "that your further retention in service is undesirable", initiated just a month before he was due to retire from service in normal course, is unjust and unreasonable, particularly when the authority stood by and allowed the period of three years prescribed for his trial by court martial to expire by their own inaction."

35. Mr.R.N.Sharma, the learned counsel for the petitioner, referred to the judgment of the learned Single Judge of the Punjab & Haryana High Court in "Capt. Jatinder Pal Singh Toor Vs. Union of India & Others", 1989 (1) SLR 31, wherein the learned Single Judge had expressed the view that holding of court martial was not sine qua non for holding court martial. That point is not relevant for this case.

36. In "S.N.Mukherjee Vs. Union of India", , a Constitution Bench of the Supreme Court held: "It must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasijudicial functions is required to record the reasons for its decision."

37. In the instant case, we are dealing with the different situation. Therefore, this case is not of any assistance to the petitioner.

38. The Rajasthan High Court dealt with the scope of Rule 14 of the Army Rules, 1954 and Section 122 of the Army Act, 1950 in "Major Radha Krishna Vs. Union of India & Others", 1993 (7) SLR 43. The Rajasthan High Court followed the judgment of this Court delivered in "Lt. Col.(T.S.) H.C. Dhingra Vs. Union of India & Another", 1988 (2) Delhi Lawyer (DB) 109. The learned Single Judge of the Rajasthan High Court relied upon the view of this Court in Dhingra's case and said:

"Thus, it is clear that Major Dharam Pal's case was decided in view of absence of express provision for holding a fresh court martial in the peculiar circumstances of that case. The prohibi tion of Section 121 of the Act was not confirmed and it did not become final, as a result of which it could not be said that he was "acquitted" by the General Court Martial. Therefore, the decision in that case is clearly distinguishable on facts, and, is of no avail to the respondents in the present case."

In my opinion, the view taken by the division bench of Delhi High Court deserves to be accepted."

39. This judgment was reversed by the Davison Bench of the same High Court. That was set aside and the judgment of the learned Single Judge was restored by the Supreme Court in "Major Radha Krishan Vs. Union of India & Others", 1996 III AD SC 636. I shall advert it to a little later.

40. A Full Bench of this Court considered the scope of judicial review in Army matters in "Ex. Major N.R. Ajwani & Others", 1994 (5) SLR 692. The Full Bench traced the development of law and noticed: "The scope of judicial review has undergone a sea change over the years. In council of Civil Service Unions Vs. Minister for the Civil Service, 1985 AC 374 it is observed that on three grounds an administrative action is subject to judicial review; (i) illegality, (ii) irrationality; and (iii) procedural impropriety. The recent judgments of the Supreme Court in Kehar Singh & Anoth er Vs. Union of India & Another, , Sarojini Ramaswamy Vs. Union of India & Others, and S.R.Bommai & Others etc. Vs. Union of India & Others. etc. JT 1994 (2) page 215, have extended the scope of judicial review even beyond administrative action."

41. The Full Bench further posited:

"In matters relating to Armed Forces, the exclusionary provisions contained in Clause (2) of Article 136 in respect of appellate jurisdiction of Supreme Court and Clause (4) of Article 227 dealing with supervisory jurisdiction of the High Court, do not trammel the power of judicial review separately vested in these superior Courts under Article 136 and Article 226 of the Consti tution.

In Kehar Singh's case (supra) the Supreme Court observed:

"In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Rani v. Union of India. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by selfdenial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. In Special Reference No.1 of 1964, Gajendragadkar, C.J. speaking for the majority of this Court observed:

".....Whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution..."

This Court in fact proceeded in State of Rajasthan Vs. Union of India to hold:

So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. This is the essence of the rule of law, and in Minerva Mills Ltd. Vs. Union of India, Bhagwati, J. said: it will be noted that the learned Judges observed in S.P.Sampath Kumar v. Union of India that this was also the view of the majority Judges in Minerva Mills Ltd. v. Union of India."

"14. Upon the considerations to which we have adverted, it ap pears to us clear that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judi cial review."

42. The Full Bench held:

"In our opinion, the concept of camouflage is a facet of judicial review and the Court would lift the veil in all cases where it appears that power is used for a collateral purpose under the cloak or garb of innocuous form of an order and determine the true character of the order under challenge.

Under the circumstances, for the aforementioned reasons the answer to the reference is that an order under Section 18 of the Army Act read with Article 310 of the Constitution of India invoking the doctrine of pleasure of President is subject to judicial review to ascertain whether the same is exercised law fully and not vitiated for malafides or based on extraneous grounds and that the order can be challenged on the ground that it is a camouflage."

43. In the light of this, the order impugned has to be examined by this Court cannot be disputed by the respondents.

44. Usha Mehra, J. was invited to adjudicate on the scope of Rule 14 of the Army Rules, 1954 and Section 122 of the Army Act, 1950 in "Lt. Col. Jagga Singh Vs. Union of India & Another", 1995 IV AD (Delhi) 333. The learned Judge followed the judgment of the Rajasthan High Court. The learned Judge rested her decision on the following reasoning: "In this case also no reason has been assigned for not holding the General Court Martial. Nor any explanation has been given as to on what report the Chief of the Army Staff satisfied himself to come to the conclusion that the holding of the General Court Martial was inexpedient or impracticable."

45. Vijender Jain, J., the learned Judge referring to the facts in "Piare Lal Vs. Union of India & Others", 1996 I AD (Delhi) 145, said:

"The respondents themselves have admitted in paragraph 4 of the counter which they have filed that the petitioner was not tried at all after the preliminary step of the record of evidence but he was proceeded under Rule 26 of the Rules, which reads:

"Retirement of enrolled persons on grounds of unsuitabilityWhere a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force the Commandant may, after giving such enrolled person an opportunity of showing cause (except where he considers it to be impracticable to give such opportunity), retire from the Force the said enrolled person."

It is evident that retirement of person on the ground of unsuit ability does cast a stigma. In Jagdish Mitter Vs. Union of India :

"No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But, it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in Government service, it ex pressly casts, a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge"

Therefore, in the present case, when the respondent has proceeded pursuant to Rule 48 and record of evidence was prepared in the absence of any material on record to show that it was inexpedient to remove the petitioner on the basis of summary of evidence by convening of courtmartial or other proceedings as provided under the Act and Rules framed thereunder simplicitor retiring the petitioner under Rule 26 was arbitrary and the action of the respondent cannot be sustained in the eyes of law. In purported exercise of administrative powers under Rule 26 in respect of allegation of misconduct and trial thereby for general court martial respondent could not override the statutory bar of the relevant Rules in this regard. No administrative act can discard, destroy and annul statutory provisions. The statutory provisions cannot be circumvented merely on an administrative opining that it is impracticable to hold a trial by General Court Martial once the process has started otherwise in all cases there is a danger of abuse of powers which have been given under Rule 26 of the Rules. Rajasthan High Court in the case of Major Radha Krishna Vs. Union of India & Ors. 1993 (7) SLR page 43 held:

"Trial by court martial and notice for terminating of service under Section 19 of the Army Act read with Rule 14 of the Army Rules cannot be invoked unless the Chief of the Army Staff re corded his satisfaction about the inexpediency or impracticabili ty of the trial of the petitioner by court martial after consideration of the report recording the misconduct of the petitioner. When no reason for arriving at such a decision are given and the delinquency related to the year 198283 and thereafter delinquent continued in service without any complaint then in those circum stances notice seems to have been issued only to overcome difficulty created by the judgment of the court and is not based on relevant considerations. In such circumstances the opinion of the Chief of Army Staff is based on wholly irrelevant and extraneous considerations. Therefore, show cause notice was liable to be quashed."

In this case no reason has been assigned nor given at the time of arguments by learned counsel for the respondent as to why the proceedings were not allowed to be continued after record of evidence was prepared by the respondent pursuant to Rule 48, nor any material has been brought before the Court as to how the Commandant or the DIG satisfied themselves that action be initi ated under Rule 26 for the discharge on the ground that normal procedure was inexpedient or impracticable."

46. In "Major Radha Krishan Vs. Union of India & Others", 1996 III AD SC 636, where the Division Bench of the Rajasthan High Court upset the judgment of the learned Single Judge of the same High Court, which was challenged before the Supreme Court, the Supreme Court approved the judgment of this Court in "Lt.Col.(T.S.) H.C.Dhingra Vs. Union of India & Another", 1988 (2) Delhi Lawyer (DB) 109 by observing: "We are therefore in complete agreement with the observations made by the Delhi High Court in H.C.Dhingra's case (supra) that in purported exercise of administrative power under rule 14, in respect of allegations of misconduct triable by Court Martial, the authorities cannot override the statutory bar of subsection (1) of Section 122 of the Act for no administrative act or fiat can discard, destroy or annual a statutory provision."

47. Their Lordships had explained the scope of Rule 14 of the Army Rules, 1954 by giving an illustration which would amplify the scope of the rule. The Supreme Court posited: "The purport of the above Rule can be best understood by way of an illustration. The Chief of Army Staff receives a report which reveals that an Army Officer has treacherously communicated intelligence to the enemy an Offence punishable under Section 34 of the Act. He however finds that to successfully prosecute the officer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit some documents, disclosure of which will not be advisable in the interest of the security of the State. In such an eventuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be impracticable and/or inexpedient. But to dispense with a trial on a satisfaction de hors the misconduct like the bar of limitation in the present case will be wholly alien to Rule 14(2)."

48. It is in the context of this dictum by the Supreme Court, in my view, the facts of the instant case have to be examined.

49. A Division Bench of this Court, to which I was a member, considered the legality of order of dismissal, in exercise of administrative power, of constable on the ground that he was absent without leave. This Court held:

The admitted facts are: that the petitioner was enrolled in Border Security Force (for short 'BSF') on 15th April, 1988, and joined 124 Bn. BSF. He was posted to 22 Bn. BSF on 28th January, 1989. Sixty days Earned Leave was granted to him with effect from 21st January, 1991 to 23rd March, 1991. Respondent's case is that, the petitioner did not report back to his Unit for more than 30 days and thereby overstayed beyond the leave period. A oneman Court of enquiry under Section 62 of the Border Security Force Act (hereinafter referred to as 'the Act') was constituted. Based upon the opinion of the Court of Enquiry, it is alleged that the petitioner was declared 'deemed to be a deserter'. Subsequently, a show cause notice was sent to the petitioner on 13.2.1992 tentatively proposing to terminate his services by way of dismissal. Petitioner did not file any reply thereto. As such on 29.6.1992 through order Annexure P1 he was dismissed from service by the Commandant, 22 Bn., BSF as per the provisions of Section 11(2) of Act read with Rule 177 of the Rules framed thereunder.

The challenge to the impugned orders is on the ground that the dismissal by the Commandant in exercise of his administrative powers is without following either of the three alternative specified in Sections 19 and 20 of the Act and Rules 20, 21 and 22 of the Rules, treating the absence without leave as a miscon duct. As such the impugned order has been passed without follow ing mandatory provisions of the Act the same is bad in law.

We have heard counsel for the parties and been taken through the record.

The show cause notice dated 18.2.1992 reads:

"You are overstaying leave without any sanction permission w.e.f.24.3.91. I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal. If you have anything to urge in your defense or against the proposed action, you may do so before 31st March, 1991. In case no reply is received by that date, it will be inferred that you have no defense to put forward."

A bare reading of the notice reveals that the opinion formed by the Commandant that the petitioner's retention in service was undesirable is because of the alleged absence without leave with effect from 24.3.1991. Accordingly, it was proposed to terminate his service for which he was called upon to show cause as to why his services be not terminated by an order of dismissal. On failure of the petitioner to submit any reply the following order was passed on 29th June, 1992:

"I have gone through the case of overstaying against No.88622527 Const.Sombir Singh of `F' Coy of this Unit. He was given an opportunity to show cause vide this office L/No.142/Estt./Disc/22/92/1218 dated 18.2.92 but he has deliberately avoided accepting the show cause notice which has been returned undelivered. I am satisfied that he is overstaying leave w.e.f.24.3.91 without sufficient cause and his further retention in service is undesirable. I, therefore, dismiss him from service with effect from 24.6.92(AN).

xx xx xx xx xx xx"

The order of dismissal, as noticed above, has been passed by the Commandant administratively in exercise of the powers under Section 11(2) of the Act. The opinion was formed by the Comman dant because of the misconduct of overstaying the leave without sufficient cause. Overstaying leave without sufficient cause is a misconduct for which it was necessary for the respondents to have tried the petitioner under Section 48 of the Act for the offence under Section 19A of the Act. Such proceedings which could be initiated against him; since absence without leave is an offence for which the petitioner could be charged with the said offence and tried by Security Force Court i accordance with the provisions of the Act and the Rules framed thereunder; were not initi ated. Even an opinion was not formed that it was not feasible to try the petitioner by Security Force Court. The petitioner's services, thus, could not have been dispensed with in exercise of administrative powers under Section 11(2) of the Act. The case is fully covered by the decision of a Division Bench of this Court in Sees Ram Vs. Union of India and Others (CW.1809/93 decided on 6.9.1996)."

50. The learned counsel for the petitioner, Mr. R.N. Sharma, submitted that the respondents could have continued the disciplinary proceedings and if court martial had been held, the whole facts would have come to light and the court would have been in a position to decide on evidence whether the petitioner could be found guilty of the offences alleged against him. After the dropping the proceedings for holding the court martial, as I had noticed above, the showcause notice was issued on the 14th of July, 1995. A perusal of the record would show that the Wing Commandar, CJA had expressed the view that if court martial is ordered to be held, that would subject the young girl of impressionable age a lot of embarrassing questions, and, therefore, according to him, the AOCinC may order summary disposal under Section 82 of the Air Force Act, 1950. Section 82 of the Air Force Act, 1950 reads as under:

Punishment of persons other than officers and warrant officers._Subject to the provisions of Sec. 84, a commanding officer or such other officer as is, with the consent of the Central Government, specified by 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 twentyeight 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) gin up to fourteen days' pay in any one month;

(h) penal deductions under Cl.(g) of Sec. 92;

(i) admonition;

(j) any prescribed field punishment up to twentyeight days, in the case of a person on active service."

51. But the AOCinC, on the 3rd of July, 1995, before permitting the issuance of the showcause notice, had directed the initiation of action under Section 20(3) of the Air Force Act, 1950. What influenced the AOCinC to pass the order was that his investigation revealed that the petitioner was involved in two similar incidents _ one at hospital at Banglore and the other at Sick Quarters Training Command (Unit). These were not formally reported on the request of the victims or their families. The respondents apparently, while not being aware of their Constitutional obligations, cannot assume things on the basis of material not made available to the petitioner and without any evidence and come to a decision. The view of the AOCinC that the holding of a court martial will require the complainant to say things in Court which will be traumatic for her, is wholly irrelevant. It is not professed that any national security is involved.

52. Therefore, here is a case where decision had been taken to dismiss the petitioner from service and thereafter the showcause notice was issued. It is quite ununderstandable as to how when the respondents, dealing with the matter administratively, could take a decision that if court martial is held, that would embarrass the complainant and, therefore, the petitioner should be removed from service. In our democratic polity, any decision could be taken only in accordance with law. Taking a final decision and issuing showcause notice is an arbitrary exercise of power and is violative of Article 14 of the Constitution of India. The view taken by the respondents is a view which would not be taken by a person properly instructed in law. The respondents had completely accepted case of the complainant without any basis and that is wholly illegal. Accordingly, the writ petition is allowed and the order of dismissal date 21.8.1995 and the order passed by the appellate authority dated 12.1.1996 are set aside.

53. The petitioner shall be reinstated in service with all consequential benefits.

54. There shall be no orders as to costs.