Ex. Wing Commander V. Mehta vs Union Of India & Ors.
2008 Latest Caselaw 1502 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.70 of 1995


                                                  Reserved on: 14.08.2008
%                                              Date of decision: 01.09.2008


EX. WING COMMANDER V. MEHTA            ...PETITIONER
                   Through: Gp. Capt. Karan Singh Bhati with
                            Mr.      Abhishek      Gautam,
                            Advocates.


                                   Versus


UNION OF INDIA & ORS.                               ...RESPONDENTS
                            Through:    Mr. Sanjay Katyal with
                                        Mr.    Ranjeet     Kumar   Jha,
                                        Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?              Yes

2.        To be referred to Reporter or not?               Yes

3.        Whether the judgment should be                   Yes
          reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The Air Force personnel deputed to ferry AN-32 aircrafts

from Russia to India, utilized the stoppage on the way at

Dubai to purchase dutiable and contraband goods and on

detection, the same has resulted in disciplinary action

against such service personnel including the petitioner.

2. The petitioner was commissioned in the Air Force in the

Flying Branch on 16.10.1965. A team of 32 personnel was

detailed to ferry three AN-32 aircrafts from Russia to India.

The team consisted of three Captains, Wing Commander

B.S. Bakshi, Flight Lieutenant S. Katoch and the petitioner,

who was also a Wing Commander. The team also included

one Wing Commander J. Jaggi, who was the Logistic

Member and Wing Commander A.K. Chaturvedi as the

Engineering Member. It is the common case of the parties

that before leaving for Russia all the members were given

detailed briefing at the Air Headquarters regarding Custom

rules & regulations and each member signed a declaration

that he had read and understood the same. The rules

stipulated that:

"(a) No contraband goods were to be carried in the aircraft.

(b) No parcels were to be accepted unless they were authorized.

(c) No unaccompanied baggage was to be carried and/or to be off loaded at Jamnagar unless it was authorized by Air Headquarters, and;

(d) No luggage was to be accepted unless it was properly manifested and had clear and legible markings."

3. The routing for bringing the aircrafts to Delhi was through

Dubai. The aircrafts after refueling at Dubai landed at

Jamnagar on 8.6.1988. The DRI officials asked all the crew

members to declare the items brought by them. It is the

case of the petitioner that he declared the items brought by

him and paid duties of Rs.4,137.00 while out of other crew

members some declared a few items. A search was carried

out by the Directorate of Revenue Intelligence, which found

a large number of dutiable goods in the aircraft captained

by the petitioner. Such dutiable goods were found in the

other aircrafts also but in the aircraft of the petitioner apart

from dutiable goods, two gold biscuits of hundred grams

each were found concealed in a briefcase. These

contraband goods were valued at Rs.2,85,260.00 at the

time of seizure. No one claimed the ownership of the gold

biscuits and in fact, all the goods were seized. The goods

were absolutely confiscated after issuing a show cause

notice under Section 124 of the Customs Act, 1962 as well

as Section 79 of Gold (Control) Act, 1968 by the Collector of

Customs (Gujarat) on 21.8.1989. The conduct of the

petitioner as well as the other two Captains was found

blameworthy on account of various lapses. The petitioner

was found blameworthy on the following grounds:

"(a) Failure to ensure that all crew members comply with the customs regulations and declare all their baggage for customs check on arrival.

(b) Failure to ensure that his crew members do not make purchases in excess of foreign exchange/other currency allowed to be carried by them.

(c) Failure to ensure that no unidentified/unaccounted baggage is taken on board, which could jeopardize the security of the Aircraft.

(d) Failure to ensure proper security of the service load in that the contents of mother case are not tampered and items of personal baggage are not put inside the mother cases."

4. The Court of Inquiry recommended a serious view to be

taken of the alleged mass connivance of all the crew

members and for disciplinary/administrative action against

fourteen (14) persons including the petitioner. An

additional Court of Inquiry was ordered on 28.1.1989 which

took a serious view of the matter.

5. The petitioner received a communication dated 21.2.1990

expressing displeasure of the Air Officer Commanding-in-

Chief, Central Air Command. However, this letter was

cancelled without giving any reasons and it is the case of

the petitioner that no further action could have been taken

once the displeasure was given which really amounted to a

censure. There was no review of the censure as per

procedure and further action was barred as per the Air

Force Order 2 to 7/79.

6. However, a show cause notice was issued to the petitioner

dated 24.4.1990 under Section 19 of the Air Force Act,

1950 (hereinafter referred to as the said Act) read with Rule

16 of the Air Force Rules, 1969 (hereinafter referred to as

the said Rules) as to why he should not be

dismissed/removed from service. The said provisions read

as under:

"19. Termination of service by Central Government. - Subject to the provisions of this Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service any person subject to this Act." .... .... .... .... .... .... .... .... ....

16. Dismissal or removal of officers for misconduct. - (1) An officer may be dismissed or removed from service for misconduct by the Central Government, but before doing so and subject to the provisions of sub-rule (2) he shall be given an opportunity to show cause against such action.

(2) Where the dismissal or removal of an officer is proposed on ground of misconduct which has led to his conviction by a criminal court, or where the Central Government is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to do so, it shall not be necessary to given an opportunity to the officer of showing cause against his dismissal or removal.

(3) Where an officer has been convicted by a criminal court and the Central Government after examining the judgment of the criminal court in his case and considering the recommendation about him of the Chief of the Air Staff, is of opinion that further

retention of such officer in the service is undesirable, that Government may dismiss or remove such officer from the service.

(4) In any case not falling under sub-rule (3), when the Chief of the Air Staff after considering the reports on an officer's misconduct, is of opinion that the trial of the officer by a court-martial is inexpedient or impracticable but the further retention of the officer in the service is undesirable, he shall so inform the officer and subject to the provisions of sub-rule (5) furnish to the officer all reports adverse to him calling upon him to submit in writing within a reasonable period to be specified, his explanation in defence and any reasons which he may wish to put forward against his dismissal or removal.

(5) The Chief of the Air Staff may withhold from disclosure any report adverse to an officer or any portion thereof, if in his opinion its disclosure is not in the interests of the security of the State.

(6) If no explanation is received from the officer within the specified period or if the explanation received is considered to be not satisfactory or, when so directed by the Central Government, the reports against the officer as well as his explanation if any, shall be submitted to the Central Government by the Chief of the Air Staff together with his recommendation as to the dismissal or removal of the officer from the service.

(7) The Central Government may, after considering the reports against the officer and his defence, if any, and the recommendations of the Chief of the Air Staff, dismiss or remove the officer from service.

(8) In this rule and in rule 17 the Chief of the Air Staff while submitting a case to the Central Government may recommend that instead of removing an officer from service, he may be compulsorily retired or that he should be called upon to resign his commission, and the Central Government in passing orders may instead of removing an officer from service, compulsorily retire him or give the officer an option to submit his resignation, and if he refuses to do so, remove him from the service."

7. The petitioner replied to the show cause notice on

12.6.1990. The petitioner pleaded that he had declared the

dutiable items and each crew member was responsible for

his personal conduct. The petitioner also claimed that Wing

Commander J. Jaggi of the Logistic Branch was responsible

for loading of service cargo and in addition, the petitioner

had also instructed him to keep a watch on the private

baggage as it was not possible for the petitioner to keep a

watch on the private baggage sitting in the cockpit of the

aircraft. However, the Chief of Air Staff recorded an order

dated 24.10.1990 recommending the removal of the

petitioner putting responsibility on the petitioner who was

the Captain of the aircraft. Consequently the impugned

order dated 13.2.1992 was passed by the Central

Government which ordered the removal of the petitioner

from services under the aforesaid provisions of the said Act

and the said Rules. A similar action was also taken against

Wing Commander B.S. Bakshi.

8. A show cause notice was issued to the petitioner dated

22.7.1992 asking him to explain as to why his pension

should not be forfeited under Para 16 of the Regulations of

the Air Force, 1961 (hereinafter referred to as the said

Regulations). The petitioner objected to the same vide

reply dated 30.7.1992 and after considering the reply an

order was passed on 6.1.1993 whereby the petitioner was

held entitled to 50 per cent of the pension. It may be

noticed that in the case of Wing Commander B.S. Bakshi

the sanction was for 90 per cent of the pension vide order

dated 29.9.1992.

9. The petitioner preferred an appeal in respect of the grant of

only 50 per cent pensionary benefit on 3.2.1993 and

another review petition on 5.12.1993 but to no avail.

10. Learned counsel for the petitioner sought to emphasize that

each of the personnel had been fully briefed of the

requirement of declaration of any goods brought by them

and the petitioner as Captain took the further precaution to

brief his crew. This was not even disputed by the crew

members in the statements given in the Court of Inquiry. A

caution was also extended to them on landing of the

aircraft. Thus, if individual crew members did not declare

the items brought by them for the purposes of payment of

duty, the petitioner cannot be penalized for the same. The

petitioner himself had declared the dutiable goods brought

by him. The only blame laid at the door of the petitioner is

of supervisory lapses while the petitioner had taken all due

precautions. It was submitted that Wing Commander, J.

Jaggi, the logistic member was responsible for taking over

the aircraft in service cargo and loading the same in the

aircraft. The petitioner had specifically instructed him to

keep a watch on the personal baggage of the crew

members as the petitioner had to perform onerous duty of

captaining the aircraft on a long journey. The petitioner has

been imposed with the punishment of removal from service

while the other crew members have been let off lightly with

lighter punishments. Some of these persons including Wing

Commander, J. Jaggi even earned promotions.

11. Learned counsel for the petitioner emphasized that the list

of goods showed that most of them were of the kind which

could have been brought by the crew members in the

country by paying duty and were within their limit of foreign

exchange issued to them. The two gold biscuits were

recovered from a briefcase and it had not been possible to

identify the ownership of the same as the briefcase

remained unclaimed. A proper bill was found along with

the name of the dealer located at Dubai from whom the

gold biscuits were purchased and the authorities ought to

have made an endeavour to find out the ownership of the

gold biscuits.

12. Learned counsel for the respondents, on the other hand,

sought to emphasize that the petitioner cannot absolve

himself of his obligations as a Captain to ensure that

nothing prohibited by law is carried in his aircraft. There

were a large number of dutiable foreign goods found in the

aircraft captained by the petitioner. The inventory of goods

showed that it ran into ten (10) pages including Video

Cameras, Still Cameras, Iron, Mixer, Musical Instruments,

Cordless Phones, Electric Massager, Decoration Pieces, Hot

Plates, Personal Computers, etc. The list consisted of 64

such items apart from the briefcase where the gold biscuits

were found. These gold biscuits were found concealed in

the upper folder of the briefcase. It was, thus, submitted

that such a large quantum of goods could not have been

brought into the aircraft without the knowledge of the

petitioner. The recovery of the two gold biscuits and the

tampered seal of the mother case were serious lapses.

Learned counsel emphasized that the entrustment of the

work to Wing Commander, J. Jaggi, as stated by the

petitioner, was at best an internal arrangement as it was

not part of the duty of Wing Commander, J. Jaggi. The

statement of Wing Commander, J. Jaggi further showed that

though the petitioner had requested him to assist the

petitioner in keeping a check on the personal baggage, as

per Wing Commander, J. Jaggi he had brought it to the

notice of the petitioner when he noticed heavy and

unusually large items. He further stated that only after

confirmation from the Captain the baggage was allowed to

be taken on board.

13. In our considered view, the quantum of goods brought in as

also the factum of the contraband goods in the aircraft

were serious lapses for which the petitioner cannot shift the

blame on others. The petitioner as Captain was in-charge

of the aircraft. It was his duty to monitor the personal

baggage. The petitioner ought to have ensured that at

least the baggage was identified in respect of the person

who had brought it but even this basic precaution was not

fulfilled. The result was that the contraband gold biscuits

were left without ownership. This would imply that a

briefcase was loaded in the aircraft without knowing who

had brought it in. This would certainly be a security lapse

by any standard.

14. The statement of Wing Commander, J. Jaggi, clearly shows

that though he assisted the petitioner, the work was not left

to be supervised alone by him. Not only that whatever

goods were allowed to be brought into the aircraft were so

allowed only after permission from the petitioner. The

petitioner as a Captain had higher responsibility and he

failed to perform his supervisory role. The action against

the petitioner on this account cannot, thus, be faulted as a

case of lack of material evidence against the petitioner.

15. The second submission advanced by learned counsel for

the petitioner is based on the plea that the petitioner could

not have been proceeded against departmentally once he

had already been awarded a displeasure for his supervisory

role by Air Officer Commanding-in-Chief, Central Air

Command as the same would be contrary to AFO 227/77. It

was, thus, the submission of the learned counsel for the

petitioner that the letter could not have been withdrawn

and the petitioner proceeded against for a more rigorous

penalty. This aspect has been emphasized by the

petitioner in reply to the show cause notice but to no avail.

Not only that the Chief of Air Staff is stated to have

erroneously believed that the petitioner was solely

responsible for the entry of foreign goods in the aircraft

which was contrary to the Court of Inquiry.

16. Learned counsel for the respondents submitted that this

plea of the petitioner was on an assumption that the

petitioner had been awarded a displeasure in terms of

provisions of AFO 227/77. This was specifically denied and

it was submitted that the expression "displeasure" was

used by the concerned officer in a generic sense conveying

his unhappiness to all concerned. An important aspect

emphasized was that in order to constitute a displeasure

within the meaning of AFO 227/77 there are certain pre-

requisites. The displeasure as contemplated is in the form

of a censure which could be awarded only if the following

conditions are fulfilled:

a. The misconduct being investigated by a Court of

Inquiry or formal investigation.

b. A show cause notice given to the individual officer to

offer his explanation.

             c.        A consideration of the explanation.

             d.        The displeasure awarded conveyed to the individual

                       officer and kept in his personal file.

17. The aforesaid procedure was not followed in the case of the

petitioner but what was conveyed vide letter dated

21.2.1990 was unhappiness over the incident. In the case

of the petitioner, there was no show cause notice issued nor

any letter issued in the name, individually, or placed in the

personal dossier. Even this letter had been cancelled vide

communication dated 4.5.1990 to obviate the possibility of

a confusion in this behalf. In the case of Flight Lieutenant,

S. Katoch, a censure was passed by following the due

procedure and the displeasure was recorded after the same

as a final punishment, thus, the same is distinguishable

from that of the case of the petitioner where generally

displeasure was expressed at the conduct of the petitioner.

18. In rebuttal learned counsel for the petitioner sought to

emphasize that the procedural formalities were in the

nature of a precaution for the person against whom the

censure was to be made and the failure to comply with the

same could not be used as a defence by the respondents.

19. On examination of the aforesaid issue, we find that a

displeasure was expressed to the petitioner but the same

was withdrawn. However, what is material is not the

withdrawal of the displeasure but whether it could not be

said to be a displeasure within the meaning of AFO 227/77.

It is not even in dispute that the procedure under AFO

227/77 was not followed. No show cause notice was issued

to the petitioner nor any explanation called for. If the said

punishment would have been questioned it could not have

withstood the scrutiny of law. It is this aspect which

apparently made the respondents withdraw the displeasure

to take action in accordance with law. No prejudice was

caused to the petitioner. The petitioner cannot be

permitted to contend that if the procedure of AFO 227/77 is

not followed the petitioner can challenge the same and get

it quashed but the respondents cannot withdraw it having

not followed the procedure. We are, thus, unable to accept

the plea of the learned counsel for the petitioner that he

has already been punished once and cannot be again

punished for the same offence/action.

20. The third submission of the learned counsel for the

petitioner centers around the invocation of Rule 16 of the

said Rules. The Rule can be invoked if it is inexpedient to

hold General Court Martial. Learned counsel for the

petitioner, thus, contended that neither the Chief of Air

Staff nor the Central Government had recorded a single

reason as to why the Court Martial proceeding was

inexpedient in the case of the petitioner. This aspect was

important as the DRI had merely confiscated the items and

did not take any further action.

21. The records, however, show that the Chief of Air Staff did

accord his satisfaction on the file in terms of Rule 16 of the

said Rules and taking into consideration the nature of the

deficiency in conduct on behalf of the petitioner it cannot

be said that the decision of not holding an inquiry is so

erroneous as to call for interference of this Court under

Article 226 of the Constitution of India. No doubt the DRI

merely confiscated the items even though it could have

taken a more serious view of the matter. The factum of all

the persons being service personnel possibly weighed with

the DRI. Nobody came to take ownership of contraband

goods seized. The undisputed fact, thus, emerges is that

there were large number of dutiable goods apart from the

contraband goods found in the aircraft of the petitioner

which could not have been brought in without the collusion

or negligence of the petitioner. The responsibility laid at

the door of the petitioner. We, thus, find no merit in the

submission.

22. The last aspect emphasized by learned counsel for the

petitioner relate to the percentage of pensionary benefits.

Learned counsel pleaded that there was no reason

warranting forfeiture of 50 per cent pensionary benefits in

the case of the petitioner while in the case of Wing

Commander B.S. Bakshi the amount was only 10 per cent.

23. The respondents have produced the record in respect of the

aforesaid to substantiate a due consideration of this aspect.

The two Officers were in command of two different aircrafts.

The amount of dutiable goods recovered from the aircraft of

the petitioner were valued at Rs.2,85,260.00 which

included two gold biscuits being contraband items worth

Rs.70,000.00. In the case of Wing Commander B.S. Bakshi

the value of dutiable goods were Rs.39,935.00 and the

number of dutiable goods were less. There were no

contraband goods recovered from the aircraft of Wing

Commander B.S. Bakshi. The value of goods seized in the

case of the petitioner was much higher. It is this aspect

which has weighed with the Central Government while

ordering forfeiture of pensionary benefits in the case of

Wing Commander B.S. Bakshi to the extent of 10 per cent

while in the case of the petitioner the forfeiture of

pensionary benefits is to the extent of 50 per cent. The

competent authorities have duly considered this aspect and

even the representation made by the petitioner dated

3.2.1993 has been examined and reviewed after due

consideration. Once again, there is no ground to interfere

with this aspect under Article 226 of the Constitution of

India as the factors taken into account by the competent

authorities are germane and not irrelevant.

24. Learned counsel for the petitioner did seek to emphasize

that there had been past blemishless career of the

petitioner but that by itself cannot come to the aid of the

petitioner when the petitioner has been found blameworthy

on four accounts as mentioned aforesaid. There has been

some redemption for the petitioner in the form of forfeiture

of pensionary benefits only to the extent of 50 per cent.

25. We do not find any merit in the petition and the same is

dismissed leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

SEPTEMBER 01, 2008                            MOOL CHAND GARG, J.
b'nesh