Jai Bhagwan vs Union Of India And Ors.
2013 Latest Caselaw 1046 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                              Decided on : 4th March, 2013


+                        W.P.(C) 1211/2013


      JAI BHAGWAN                                          ..... Petitioner

                         Through:        Mr. J.S. Mann, Advocate

                         versus

      UNION OF INDIA AND ORS                               ..... Respondents

Through: Mr. Satya Saharawat, Advocate for Mr. Ankur Chhibber, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. In this writ petition, the order of the Armed Forces Tribunal (AFT) dated 9.10.2012 dismissing the writ petitioner's application, which has been challenged. The petitioner had questioned his discharge from service of the Air Force by the order dated 5.5.2011.

2. The brief facts of the case are that the petitioner was enrolled with Indian Air Force as Airman on 27.06.2006. He submits that he claims to have had an unblemished record of service till May, 2010. After that, during

the year in rapid succession in June, August, September and November, 2010, "red ink entries" were awarded to him in respect of his conduct. The first two pertain to his overstaying the leave; he was awarded 14 days' penalty of confinement to camp in each occasion. For the next two red ink entries, various minor misconducts were alleged; he was awarded penalty of 8 days and 12 days of being confined to camp. Significantly, neither at that time, nor contemporaneously, does the petitioner appear to have protested these orders; he did not seek any remedies questioning them.

3. It is contended that the penalty orders could not be questioned because the legal provisions enabling an aggrieved Air Force personnel to do so, were complex and not easily understandable by a lay man. The petitioner claims to be a lay man but educated upto 12 th standard. In this background of circumstances, the impugned order discharging the petitioner from service on the basis of a provision which entitled the Air Force to discharge any personnel who earned more than three red ink entries, was invoked. The petitioner approached the AFT which after considering the pleadings, dismissed the application. The Tribunal reasoned as follows:

"2. The respondents have filed reply, supporting the action and contending that in these proceedings, seeking to challenge the discharge, the sustainability of the punishments awarded to the petitioner, from time to time, which constituted red ink entries, cannot be allowed to be assailed, as they have not been assailed at the appropriate time. Then, the domestic problems projected by the petitioner have also been contested on facts also, inasmuch, as according to the petitioner, as pleaded in para 4.5 that he married on 24.03.2010 and unfortunately, immediately thereafter he had family

problems i.e. matrimonial dispute with the wife, the mother suffered from old age ailment, while his father had expired 17 years ago, and that the younger brother was not having concentration towards his studies, due to family problems; the respondents have contested by taking the stands, that the petitioner had never brought out anything regarding his matrimonial dispute, nor did he ever apply for any leave on that count, rather he has never produced any document with the department about his having, at all, married, much less did he seek permission for getting married, rather he himself admitted in his personal application for posting on compassionate grounds, that his marriage could not be solemnised due to some domestic problems, and social pressure. Copy of that application has been produced on record as Annexure R-1. Various other grounds have also been taken, including that, in the reply to the show cause notice he had accepted the punishment awarded to him, and had only pleaded, that the punishments were not according to the gravity of the offence.

3.We have heard learned counsel for either side, and have gone through the record.

4. In our view, in view of the judgment of Delhi High Court dated 02.07.2012, passed in W.P.(C) No. 5747/2011 in "Om Lat Vs. Union of India & Ors.", in these proceedings the petitioner cannot be allowed to challenge the correctness or sustainability of the punishments awarded to him, which constituted red ink entries. The Division Bench in para 21 had clearly held that "As far as the red ink entries given to the petitioner is concerned, they were not challenged by the petitioner and if that be so, then the petitioner could not challenge the earlier punishments awarded to him on account of the red ink entries given to him for taking the action under Rule 13 of the Army Rules...................".

5. Apart from this, so far the other aspects raised by the

petitioner are concerned, they all stand answered by this bench in the judgment rendered in O.A. No. 117/2010 "Ex. Gnr. Satish Kumar Vs. Union of India & Ors." Decided on 03.07.2012, the judgment of the regional Bench, Chandigarh passed in T.A. No. 355/2010 "Jasbir Singh Vs. Union of India" (January, 2011) and yet another judgment of regional Bench, Chandigarh dated 29.09.2010 passed in T.A. No. 94/2009 "Jagdish Singh Vs. Union of India".

6.Following the aforesaid judgments, we do not find any ground to interfere in favour of the petitioner. The petition, thus, has no force and is dismissed."

4. Learned counsel argued that the Tribunal fell into error in not seeing that the red ink entries were made malafide. He pointed out that the concerned Wing Commander to whom the petitioner was expected to - and in fact did report, bore him some malice as a result of which he made repeated red ink entries. It was submitted that the Tribunal's remark that the petitioner did not challenge the red ink entries, could not be accepted because he was not aware of the legal remedies available to him.

5. Counsel also submitted, lastly, that the provisions of the Indian Air Force, which enabled an aggrieved Airman to appeal to the higher authorities cannot be comprehended or understood properly and that the petitioner, a lay man, therefore, could not avail all such appellate remedies.

6. It is evident from the Tribunal's order, and the preceding discussion that the provision invoked by the Indian Air Force was at a fairly early stage of the petitioner's career. No doubt, he did not have any blemish in his career for four years. However, the two incidences of his overstaying the

leave in repeated succession as it were, on account of alleged matrimonial problems and the old age of his mother, should have warned him to improve his record. Instead he appears to have continued with the same kind of behaviour which earned him two subsequent red ink entries. Apart from alleging malafides, in a bare and vague manner, and even impleading the concerned superior officer, i.e. Wing Commander, as a party personally in the proceedings before the ACT, the petitioner does not appear to have made any specific allegation as to why such official bore any malice.

7. This Court is also unpursuaded by the submission that the petitioner could not avail of his remedies on account of his being unlettered or uninformed about the provisions of law which are complex. The petitioner is an Airman, who has an extent of educational attainment. If, in fact, repeated and unwarranted penalty orders were made, he could have easily availed of legal remedies by making himself aware through his friends, sympathisers or colleagues about the existence of such reliefs. Clearly he did not do so.

8. This court is mindful of the fact that being a public servant and a armed force personnel, the insistence by the superior officer of adherence to certain basic minimum standards, in the circumstances, was not only warranted or justified in the larger public interest. That the Indian Air Force deemed the petitioner to be unfit to be retained in the service at a fairly early stage of his career, only highlights the nature of the repeated unacceptable behaviour he indulged in.

9. Having regard to all the circumstances, this Court is of the opinion

that no fault or infirmity can be found with the impugned order of the Tribunal nor can this Court intervene with the discharge order in any manner as being arbitrary or unreasonable, warranting judicial review under Article 226 of the Constitution.

10. The petition is, therefore, dismissed without any order as to the costs.

S. RAVINDRA BHAT (Judge)

SUDERSHAN KUMAR MISRA (Judge) MARCH 04, 2013 rd