Delhi High Court
Ex Flight Cadet Mohit Bhandari vs Union Of India & Ors on 28 February, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 07.02.2019
% Judgment Pronounced on: 28.02.2019
+ W.P.(C) 4306/2017
EX FLIGHT CADET MOHIT BHANDARI ..... Petitioner
Through: Mr.Murari Tiwari and Mr.Rahul
Kumar and Mr.Sahej Uban,
Advocates.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Kirtiman Singh, CGSC with
Ms.Shruti Dutt and Mr.Waize Ali
Noor, Advocates for UOI/Respondent
no.1.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J.
1. The instant writ petition assails the order dated 20.12.2016 passed by
the respondent by which the petitioner has been terminated from his
cadetship on the ground of misconduct, arising on account of having
stolen a debit card from the personal bag of another Flight Cadet and
withdrawing Rs.5,000/- from his account through ATM located at the
Cadet Mess. The petitioner has prayed, inter-alia, for quashing the
speaking order dated 20.12.2016 as well as directing the respondents
to reinstate the petitioner and permit him to resume his training from
the stage he had been terminated, with consequential benefits.
2. A few background facts necessary to adjudicate the present petition
are that the petitioner is an alumnus of Sainik School and claims to
having been a bright, meritorious and hard working student. After
completing his 10+2 (intermediate), he joined the NDA and after
successfully completing training therein, joined Air Force Academy,
Hyderabad on 01.07.2013. Between 15.07.2013 and 20.07.2013, the
petitioner successfully completed Air Crew Course.
3. Flight Cadet Shubhojeet Roy was a close friend of the petitioner,
while they were undergoing training together at the NDA. On
24.09.2013 the petitioner found an ATM Card along with the pin
number, belonging to Flight Cadet Shubhojeet Roy in the changing
room. He used the ATM Card and withdrew Rs.5,000/- from the
ATM. When Flight Cadet Shubhojeet Roy learnt that money had
been withdrawn from his account by someone, he complained to the
Instructor about the incident.
4. Looking at the seriousness of the matter, the respondents ordered an
investigation into the matter under Air Force Act and Rules and
CCTV footage of the ATM centre was also obtained. On 27.09.2013,
the petitioner confessed in writing that he had stolen the debit card of
his fellow Flight Cadet and had withdrawn Rs.5,000/-, after he
realized that the CCTV footage would reveal his action. In view of
this confession, Para 14 of the AFO-05/2012 was invoked and
Training Review Board (TRB) proceedings were initiated.
5. The TRB recommended termination of his training and this was
approved by the competent authority i.e. Air Officer-in-charge
(Personnel) at Air Headquarters.
6. On 27.11.2013, a letter was addressed to the father of the petitioner
that the training of the petitioner was terminated.
7. The petitioner challenged the termination of his training by way of a
writ petition bearing W.P.(C) No.2772/2014 in this Court. Division
Bench of this Court called for the records of the respondents. Files
showed that the Chief Flying Instructor under whom the petitioner
was undergoing training had been called upon to offer his comments
and he had reported that there was nothing adverse against the
petitioner and that petitioner had been undergoing his training and
classes regularly. His general behavior was good. Similar comments
were offered by the Training Coordination Officer and Senior
Instructor (Outdoor Training). This court also looked into a letter
written by the petitioner to the Chief of Air Staff on 01.12.2013
wherein the petitioner had confessed to what he had done, and
realized his mistake. The letter stated that he was an alumnus of
Sainik School and right from his childhood, his only dream was to
join the Air Force. He pointed out that prior to the incident, both in
School and NDA, there had never been any complaint against him and
had an unblemished record. Division Bench also went through Air
Force Order in question and noted down the various penalties that are
provided for, depending on the gravity of misconduct. Court was of
the view that, no doubt para 18 vests the power with the TRB to
recommend termination of training, but there is a range of penalties
which are listed and termination was only one of them. Court also
noted and considered the stand of the respondents that theft was an act
of serious indiscipline for a Cadet under training with the Armed
Forces and, therefore, the petitioner deserved nothing less than
termination of his training. Having gone through the facts of the case,
the Court came to a conclusion that certain parameters had been
overlooked, before taking the decision to terminate the training of the
petitioner viz. reports of the Instructors in the hierarchy, indicating his
general character, behavior, discipline and performance; not once in
three years at NDA, anything adverse was noted; he had never been
warned or cautioned. The Court was of the view that looking at the
totality of the facts and the background of the petitioner, this being a
solitary wrong, warranted re-examination by the respondents.
Accordingly, the petition was disposed of vide order dated
19.07.2016, setting aside the penalty of termination of training. The
Court directed the Chief of Air Staff to reappraise the record of the
proceedings held by the TRB and take further action, after considering
the observations and directions in its judgment. Some relevant paras
of the judgment are extracted below:
"13. No doubt para 18 vests the power to recommend
termination of training, we find that this is the last but
one penalty which is listed. The range is from denial of
privileges, performing extra duties and extra drills,
reprimand, admonition, severe reprimand, re-flighting
and deferment of commission.
14. An act of delinquency would have a range from being
vagrant-passing through maladjustment and incorrigible,
to reach the end of the spectrum : of uncontrolled and
dangerous behaviour. Whenever a discretion is vested
concerning a penalty to be levied for a wrong it is
obvious that the intent of the law is to tamper justice in
the enforcement of the letter of the law. Further, if the
law casts an obligation on the authority vested with the
power to levy a penalty to take into account not only the
gravity of the wrong but even the previous history
regarding the general character of the wrong doer, a
meaning would have to be given to said factors required
to be taken into account by the disciplinary authority. As
noted above, clauses (c) and (d) of para 12 of the AFO
applicable cast an obligation upon the Review Training
Board to factor in the overall performance of the
petitioner during his traineeship as a flying cadet and
consider his discipline in the academy. This arduous task
of determining as to what should the penalty be levied has
been made simple for the members of the Review
Training Board by the guiding factors listed in clauses (c)
and (d) of para 12 of the AFO. The two clauses require
that the punishment should not be disproportionate to the
crime keeping in view the general character of the wrong
doer.
18. We find that except for highlighting that theft was a
serious indiscipline, the members of the Board have
nowhere recorded, though it forms a record of the
proceedings, that they had considered the report given by
the Chief Flying Instructor, Chief Ground Instructor,
Training Coordination Officer, Senior Instructor
(Outdoor Training) as also the Chief Instructor (Flying);
all of which show that petitioner's general character,
behaviour, discipline and performance during training
was of that of a disciplined cadet. Not once in three years
was anything adverse noted. He had attended his training
classes regularly and had also undertaken the outdoor
training with the commitment which was required. In his
three years' traineeship he had not been warned or
cautioned even once.
19. We accordingly conclude that two important
guidelines in the sentencing policy, which are beneficial
to the petitioner, have been overlooked. The backdrop to
the said two guiding principles is the fact that since
childhood the petitioner aspired to be a member of the
armed force. He studied in a Sainik School. Keeping in
view his general conduct and commitment to become an
honourable flying officer evinced during his three years'
training at the academy the solitary wrong which may be
a serious offence, warranted mitigating factors to be
intertwined properly in the penalty levied; and since
guidelines framed by the authorities are found to be
vitiated we dispose of the petition setting aside the
penalty imposed of termination of traineeship; directing
the Chief of the Air Staff to peruse our decision and
keeping in view paragraph 12 of AFO 5/2012 reappraise
the record of the proceedings held by the Training
Review Board and take note of the reports submitted by
the Chief Flying Instructor, Chief Ground Instructor,
Training Co-ordination Officer, Senior Instructor
(Outdoor Training) and the Chief Instructor (Flying) and
thereafter decide on the penalty to be imposed. Keeping
in view the penalty which is imposed at the remanded
stage further action as per law would be taken."
8. Pursuant to the directions issued by the Court dated 19.07.2016, the
respondents passed a speaking order dated 20.12.2016. Operative
portion of the said order is extracted herein:
"NOW, THEREFORE, the undersigned, keeping in mind
the directions of the Hon'ble Delhi High Court, having
taken into consideration entire circumstances of the case,
the Ex-Flt Cdt's overall performance in other facets of
training, his past record and relevant provisions of AFO
05/2012 decided that, the termination of cadetship as
approved by the competent authority was just and proper
and the training of the Ex-Flt Cdt Mohit Bhandari
(175794-K be terminated."
Aggrieved by this order, the petitioner has filed the present petition.
9. Learned counsel for the petitioner contends that the speaking order
dated 20.12.2016 is illegal and arbitrary inasmuch as the order clearly
shows that the directions and observations passed by this court in the
earlier decision dated 19.07.2016 have not been taken into account.
He submits that the Division Bench had clearly noted that only
because the offence of theft was a serious one, that itself was not
enough to penalize the petitioner with an extreme penalty of
termination of training and the Court had, therefore, remanded the
matter for considering various other factors, such as background of
the petitioner, report of his instructors, his overall performance in the
training etc. He further contends that in passing the impugned
speaking order, the respondents have merely gone by the offence itself
and thus the purpose of remand has been defeated. Learned counsel
also argued that even in case of serious acts of indiscipline Air Force
order mandates that the respondents must consider the overall
performance of Flight Cadet as well as previous history and there is a
range of punishments which are provided besides the extreme penalty
of termination of training. Learned counsel has also argued that it is a
fact and also a matter of record that the performance of the petitioner
during the training was satisfactory and all his Instructors have given
a satisfactory report. He also points out that there had been nothing
adverse against him either in his professional training or his conduct.
He has been a bright student right from his school days and there was
nothing adverse against him in his training at the NDA. The
submission is that no doubt the petitioner had stolen the ATM Card,
but there was no intent or motive to commit an offence and the
petitioner is not a person with a criminal propensity. He submits that
this was a stand alone aberration in his life and the punishment of
termination has shattered his childhood dream of becoming an Air
Force Pilot.
10. Per contra, learned counsel for the respondent has vehemently
opposed the petition. It is submitted that the act of the petitioner in
having stolen ATM card of a cadet in Air Force Academy is a very
serious act of indiscipline and Air Force Order No.5/2012 also
categorizes it in the list of serious acts of indiscipline. He further
argued that this is also a pointer to the fact that the petitioner lacks
officer like qualities and has attitudinal deficiency. He also lacks
moral courage inasmuch as after having committed the act of theft, he
did not own up the same and it was only when he realized that the
complaint had been lodged and the CCTV footage would perhaps
reveal his involvement, that he confessed to the act of stealing the
ATM card.
11. Learned counsel further contended that honesty and integrity are
considered as hall marks of Defence Forces. These virtues become
particularly vital in the Armed Forces where great emphasis is placed
on faith, trust and camaraderie between its trainees or officers. It is
pointed out that even three years of training at the NDA, where the
basic ethos of honesty and integrity are engrained in each cadet, has
not impacted the petitioner and it only goes to show that he would
never acquire Officer Like Quality (OLQ) and is, therefore, unfit to be
an officer with Armed Forces. The argument is that trust, faith,
honesty and integrity are essential qualities in the Armed Forces and
dilution of these will be detrimental to the foundation of Armed
Forces. Thus, continuing the petitioner, who is guilty of the act of
theft, will be against the high values and tradition of the Indian Air
Force. It is also submitted that if the petitioner could not resist
temptation for a small monetary gain, it would be dangerous to
commission him in the Indian Air Force and entrust him with flying
Air Crafts and confidential information relating to security of the
Nation. Learned counsel for the respondent contended that the
observations as well as the directions of this court have been taken
into account. The respondents had constituted a Board of Officers
and the reports rendered by the various Instructors of the petitioner as
well as his previous conduct and performance were taken due notice
of, and only after carefully analyzing them, the final decision was
taken by the Competent Authority to terminate the petitioner.
12. We have heard the learned counsels for the parties and also perused
the pleadings. To satisfy ourselves, we have seen the original file of
the respondents in which the decision was taken by them.
13. In view of the main plank of the argument of the learned counsel for
the petitioner being that the Court had laid down parameters and
guidelines for the respondents to re-examine the matter, but
respondents have, in total defiance of the said directions, again
imposed the penalty of termination of training and have therefore
ignored the judgment and have not reviewed the penalty of
termination, we had asked for production of the original file. We have
gone through the original file in which the case of the petitioner was
processed and we have also gone through the proceedings of the
Board of the Officers who have reviewed the earlier proceedings of
the TRB. A perusal of the file shows that after the matter was
remanded back by this court, Board of the Officers, was constituted
by the respondents to reassess the earlier TRB proceedings. The
terms of reference were to reassess the proceedings conducted in
October, 2013 taking into consideration the performance of the
petitioner, as reflected by the reports rendered by various Instructors,
as well as his past disciplinary record and his school background.
14. We find that before coming to a final decision the Board of the
Officers had infact looked into the remarks of the Chief Flying
Instructor, Chief Ground Instructor, Training Coordination Officer,
Senior Instructor (outdoor training) and Chief Instruction (flying).
They have also looked into the circumstances leading to the
commission of the theft as well as his previous history. It is only after
a detailed analysis based on these parameters that the Board of
Officers gave an opinion for termination of the training. Various
provisions of the Air Force Order have also been analysed, as
reflected in the proceedings. Therefore, the contention of the
petitioner that the directions of the Court have been ignored is not
borne out from the official record and is, thus, rejected. The Court
had only directed the respondents to look into certain parameters and
take a decision afresh. The ultimate decision was left to the
respondents and there was no direction in the said judgment to impose
an alternative penalty to that of termination of training.
15. As regards the contention that the AFO 05/2012 provides for penalties
other than termination of training and therefore there was every
discretion available to the respondents to impose a lesser penalty, we
find that the Board of Officers have carefully analysed the provisions
of the Air Force Order 05/2012. The Board has observed that the
AFO listed out various acts of indiscipline/misdemeanour, likely to be
committed by the Flight Cadets, during the training period, and
prescribed a wide range of punishments depending on severity of the
acts of indiscipline and the number of times, it is repeated. It also
took into account that Air Force Order provides for consideration of
past conduct and performance in other activities while awarding a
punishment. Having analysed the provisions, the Board reached a
conclusion that in cases of offences or acts of indiscipline like
theft/fraud which are serious acts of misconduct and depict lack of
officer like quality, termination of training is ordinarily the norm.
What has weighed is the fact that honesty and integrity are hall-mark
of Armed Forces. The Flight Cadet during the training period are
tested not only for their professional competence but also for their
integrity and honesty and an act of theft is an indication of their moral
fibre and such cadets cannot be considered suitable to be
commissioned in the Forces.
16. We have gone through the provisions of AFO 05/2012. The acts of
delinquency of flight cadets can be broadly categorized into four
categories :
(a) Minor aberration due to maladjustment, Minor misdemeanours.
For these, para 8 provides minor penalties.
(b) Major acts of indiscipline but not involving lack of Officer Like
Quality. For this mild to moderate range of punishments are
prescribed in paras 12 and 13.
(c ) A higher degree of indiscipline, but the cadet possess basic
Officer Like Quality.
For this, punishments like deferment of Commission and Reflighting
are provided.
(d) For acts which constitute gross indiscipline or lack of Officer
Like Quality or attitudinal deficiency, termination of training is
recommended.
17. The acts of theft/fraud/forgery have been classified in para 9 (d) of the
AFO and come under the heading „serious indiscipline‟. Para 12 of
the AFO provides corrective measures for „serious indiscipline‟ and
also lays down the procedure for investigation etc when such an act is
alleged to be committed. Para 18 provides the Competent Authorities
and the Penalties that can be imposed by them. Para 18 (d) gives the
power to Commandant/AOC/Station Commander to order a TRB and
award or recommend any of the punishments enumerated therein.
Recommendation of termination of training is one of the punishments
provided. Significantly para 23 lays down the guidelines for the TRB.
23 (d) mandates the TRB to consider the past conduct of the cadet,
earlier warnings etc. before making recommendations. Most relevant
provision to the present case is para 23(3)(e). This provision
stipulates that a flight cadet should be considered for deferment of
Commission and Reflighting only if he/she possesses basic officer
like quality. In all other cases it provides that termination of training
may be recommended. Para 23(3)(f) further reiterates that all cases of
gross indiscipline/lack of OLQ should normally be recommended for
termination of training. Para 24 also provides the recommendation
that can be given by the TRB and that the scale of punishment
provided should be based on the gravity of the act. Para 24 (d)
includes the punishment of termination of training.
18. Therefore, a careful analysis of AFO shows that acts like
theft/fraud/forgery are considered as highest level of indiscipline and
since these are indicators of lack of OLQ, penalty of termination of
training is provided for. The respondents have acted as per the
provision of the Air Force Order and after considering overall facts
and circumstances, have awarded termination of training, and in our
view, rightly so.
19. The contention of the learned counsel for respondents that honesty
and integrity are the hall mark of the military profession is not without
basis. When a cadet joins training there are two facets which are
important and are necessary for making an officer. The first is the
professional competence which includes academics, outdoor activities
sports etc. However, the second and equally important aspect, is that
he must possess Officer Like Quality, as ultimately, after
Commissioning as an officer, he would be privy to a lot of sensitive
and confidential information relating to security of the Nation. This
facet becomes more important in the case of the petitioner as he was
undergoing training in the Air Force Academy and was to be
commissioned as a pilot in the Indian Air Force. It needs no emphasis
that being a pilot he would be entrusted with flying Air Crafts, would
have access to sensitive data relating to Air Force stations,
equipments etc. and therefore, virtues like honesty and integrity
become extremely important.
20. The argument of the learned counsel for the petitioner that there was
nothing adverse against him, either during his tenure in Sainik School
or the NDA Academy and this was a standalone aberration, is though
appealing at the first blush, but cannot be a ground to condone the act
of theft committed by him. While we would refrain from commenting
on the conduct, it would be relevant to state that if at the slightest
opportunity the petitioner had succumbed to stealing, the respondents
are not wrong in arguing that he lacked Officer Like Quality. The
contention of respondents that he did not even own up the act of theft
at the first instance which establishes lack of moral courage, is also
justified. A Cadet to be recruited to the Armed Force must be worthy
of confidence and should be a person of utmost rectitude, impeccable
character and integrity. It is very important for a country to have a
fighting Force comprising of morally upright, effective, righteous
officers. They are expected to provide security to the Nation and its
people and therefore, the training Academies have to ensure that
ethical, upright and principled people find their way into the Forces. It
is thus imperative that only those who are worthy of the confidence
and trust are drawn into the Forces.
21. We also agree with the respondents that 3 years of training in NDA,
where ethos of the Armed Forces are engrained into the cadet, also
had no effect on the petitioner. Discipline and officer like quality are
the heart and soul of any armed force personnel and any relaxation in
the standard of discipline and integrity can prove disastrous for the
Nation. Respondents are right that if the petitioner is given a lenient
treatment, it would set a wrong precedent for future cadets and
officers, which the Armed Forces can never afford.
22. The contention of learned counsel for the petitioner that the
punishment of termination of training is highly disproportionate, is in
our view, misplaced. Proportionality of punishment, is a
jurisprudence in service law, which is applicable to disciplinary
matters wherein an employee has put in several years of services and
the question is one of balancing his service with the penalty. This
jurisprudence in our view cannot be imported to a case of a trainee or
a probationer. When a person is under training or is a probationer,
who has to be confirmed, the concept that applies is of „suitability‟.
Since this is a threshold stage, when the person has to be evaluated as
suitable or unsuitable for the commission or confirmation respectively
the question of proportionality cannot be applied. As already pointed
out above, the purpose of training in the academy of the Armed
Forces is to judge the cadet as being suitable or otherwise to be
commissioned in the Force. Character of a person is vital for
adjudging his suitability for the job. Anne Frank has rightly summed
up „character‟ in these lines:
"The final forming of a person‟s character lies in their own
hands"
A starting point, therefore, during the training period would be
to weed out those who may be professionally competent but show a
propensity of misdemeanors. The respondents have the responsibility
to prescribe high standards of rectitude and uprightness for people
making their way into the uniformed Forces and thus their action of
weeding out those who do not, in their wisdom, come up to the level
of required standards cannot be faulted by us. It is also to be noticed
that there are no allegations of any malice towards anyone either in
the Academy or the members of the TRB. We are, thus, persuaded to
uphold the action of the respondents, as we find no ground to take a
contrary view.
While we are conscious that the present case does not relate to
probation and confirmation but we can draw an analogy from the
service jurisprudence applicable to the concept of confirmation. Just
as in this case, the training period is to adjudge the suitability, during
the period of probation, an employee is adjudged for confirmation. In
several judgments, the Apex Court and this Court has held that it is
always open to the employer to consider the entire record of the
employee to determine whether he is suitable for confirmation or his
services should be terminated. Apex Court in the case of Hyderabad
Municipal Corporation vs. M. Krishnaswami Mudliyar 1985 (2)
SCC 9 held that there is no right in an employee to be confirmed
merely because he had completed the period of probation and passed
the requisite tests. The very purpose of confirmation implies exercise
of judgment by the confirming authority on overall suitability for
permanent absorption in a service. Likewise in the present case, the
purpose of specialized training in the Air Force Academy was to
adjudge the professional competence of the petitioner as well as his
overall suitability before he was commissioned as an officer in the
Indian Air Force. At this stage, therefore, officer like qualities have
to be adjudged and in a case like this, where a cadet lacks the basic
OLQs the decision to terminate him cannot be termed as wrong.
23. The respondents had been directed by this Court to re-examine the
proceedings of the initial TRB, under certain parameters laid down by
the court. Having reassessed the TRB proceedings taking into
account all parameters, the respondents in their wisdom have come to
a conclusion that the petitioner lacks the basic OLQ and is not suitable
to be commissioned. Needless to say, only the respondents have the
expertise to decide as to who is suitable or not to be commissioned,
and this court is not equipped to take such a decision on their behalf.
It is a settled law that in a judicial review this Court can only interfere
in the decision-making process and not substitute its own decision for
the decision of the Government. Empathy and sympathy can have no
place in matters of discipline in the Forces. Having looked through
the files, we find no fault with decision making process and therefore,
we find no reason to interfere with the punishment imposed by the
respondents.
24. The writ petition is accordingly dismissed and the order of
termination is hereby upheld.
25. No order as to costs.
JYOTI SINGH
(JUDGE)
G. S. SISTANI
(JUDGE)
FEBRUARY 28, 2019
ssc
