Ex. Sqn. Ldr. R. Sood vs Union of India Ministry of Defence through Secretary & Ors.

CIVIL APPEAL Nos. 6929 - 6930 OF 2009

EX. SQN. LDR. R. SOOD … APPELLANT

VS.

UNION OF INDIA & ORS. … RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

THE CHALLENGE

1. Appellant is a septuagenarian by now. He happened to be an Indian Air

Force1 personnel, prior to his dismissal2 more than three decades back

by the Central Government3. Power under Section 19 of the Air Force

Act, 19504 read with Rule 16 of the Air Force Rules, 19695 was exercised

by the Government owing to the appellant having used criminal force

against a junior officer and leaving him in a desolate place in the night,

from where his mortal remains were later found. A Single Judge of the

High Court of Delhi6 set aside the dismissal7 on the ground that the

administrative act of dismissal was barred by the three-year limitation

Signature1 Air Force Not Verified

vide order dated 22nd September, 1993 2 by Digitally signed rashmi dhyani pant

Government 3 Date: 2026.04.15 18:30:30 IST Reason:

4

AF Act 5 AF Rules 6 High Court 7 vide judgment dated 23rd September, 1999 in Civil Writ Petition No. 4019 of 1995 1 period, envisaged in Section 121 of the AF Act. However, while hearing

an intra-court appeal8 preferred by the Government and its officers, vide

the impugned judgment and order dated 11th January, 20089, a Division

Bench reversed the judgment and order of the Single Judge under

challenge holding that the bar of limitation did not apply. Also, upon

perusal of the case records, the Division Bench noted additional grounds

in support of such dismissal (to be discussed at a later part of this

judgment). Consequently, the order of dismissal was restored, giving

rise to Civil Appeal No. 6929/2009 by special leave granted on 5th

October, 2009.

FACTUAL MATRIX

2. Facts, relevant for our decision on this appeal, are as follows:

a. Appellant was commissioned in the Air Force as Pilot Officer in the

year 1972.

b. The incident is of the year 1987, at which time the appellant was

posted as ‘Senior Operation Officer’ to 147 Squadron of the Air

Force.

c. The said squadron was posted in a remote village in the Thar desert

and stationed in a building belonging to the General Reserve

Engineer Force10.

d. It was alleged that an individual11, employed as a driver with GREF,

in an inebriated state had caused damage to the radar, an

8 LPA No. 545/1999 9 impugned order 10 GREF 11 driver 2 instrument of critical operational importance in desert conditions,

and committed certain other acts of misconduct.

e. On the night of 29th March, 1987, the appellant along with four

others, took the driver away from the camp in a jeep and left him

at a secluded location approximately 5 kilometres from the nearest

Border Security Force post and about 30 kilometres from the Air

Force camp. A missing report was lodged with the civil police on

31st March, 1987, and on 2nd April, 1987, the mortal remains of the

driver recovered from the same location.

f. From the records, it is discernible that the appellant acted pursuant

to the directions of his superior, a Wing Commander12, who had

instructed him to remove the driver from the camp on account of

his disruptive conduct under the influence of alcohol, and with a

view to preventing any untoward incident in anticipation of an

inspection by the Air Officer Commanding-in-Chief, South Western

Air Command13, being the highest ranking officer commanding a

major command in the Air Force, on the next day.

g. On the basis of these allegations, an FIR was lodged by GREF

personnel against the appellant and others. Simultaneously, a Court

of Inquiry was instituted. Nearly two years later, in January 1989,

“disciplinary proceedings” were initiated against the appellant;

however, in the same month, the Air Force abandoned such

12 Wg. Cmdr.

13 AOC-i-C 3 proceedings by exercising its powers under Section 12414 of the AF

Act, opting instead to have the appellant tried by a criminal court

rather than by a Court Martial.

h. More than two weeks before the lapse of one year, i.e., on 12th

January, 1990 to be precise, all the accused (appellant and others)

were discharged of all offences by the Sessions Court which found

that no prima facie case was made out against them and also

because sanction under Section 197 of the Code of Criminal

Procedure, 1973 had not been obtained. The said order of

discharge, having not been challenged, attained finality.

i. Thus, the criminal proceedings against the appellant stood closed.

What followed was an administrative action, which forms the crux

of the lis.

j. The three-year period from the date of the alleged offence (29th

March, 1987) expired on 28th March, 1990. As per Section 121(1)

of the AF Act “no trial by court-martial of any person subject to this

Act for any offence shall be commenced after the expiration of a

period of three years from the date of such offence”. Thus, initiation

of court martial by the time the appellant was discharged by the

criminal court had become time barred.

14

124. Choice between criminal court and court-martial.—When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the Chief of the Air Staff, the officer commanding any group, wing or station in which the accused prisoner is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in Air force custody.

4

k. A day after expiry of the limitation period as aforesaid, i.e., on 30th

October, 1990, upon invocation of Section 1915 of the AF Act read

with Rule 16 of the AF Rules, a notice was served upon the appellant

calling upon him to show cause why he should not be

dismissed/removed from service. Rule 16(4) empowers the Chief of

Air Staff to initiate administrative action against an officer where,

upon consideration of the material on record, he forms the opinion

that trial by court-martial is inexpedient or impracticable. Rule 16,

to extent relevant, is reproduced below:

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 give 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) ….

15

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.

5 (7) ….

(8) ….

l. Appellant answered the notice to show cause by his response dated

19th February, 1991 by, inter alia, stating that:

i. Initiation of departmental proceedings against him was

unsustainable in law, as he had already been discharged by a

competent criminal court after due consideration of all available

material. If the Air Force was aggrieved by the said discharge

order, it ought to have challenged the same in revision; however,

no such action was undertaken.

ii. There was not even an iota of evidence to establish that the body

recovered was that of a male or female, much less that of the

driver.

iii. There were serious procedural irregularities in the Court of

Inquiry proceedings, including reliance on documents such as

the FIR and Post-Mortem Report which were never formally

produced or exhibited, coercion of witnesses, and the absence

of the Inquiry Officer during substantial parts of the proceedings.

iv. The decision of the Chief of Air Staff declaring the trial by Court-

Martial as inexpedient and impracticable was taken without due

application of mind, particularly when the Air Force itself had

opted for trial before a criminal court. It was further pointed out

that the Appellant had been discharged on 12th January 1990,

while the limitation period of three years expired on 28th/29th

March 1990, thereby leaving sufficient time for initiation of

6 Court-Martial proceedings. Despite having over fifteen days

available, no such action was taken by the Air Force.

m. However, the answer of the appellant not having been found

satisfactory, on 22nd September, 1993, he was dismissed from

service.

n. It is apposite to note that while the appellant was dismissed from

service, the Commanding Officer namely, the Wg. Cmdr., on whose

order the appellant allegedly took the driver away from the camp

and left him at quite a distance, was awarded ‘severe displeasure’

of 3 years.

o. Dejected, the appellant filed a writ petition challenging his dismissal

from service. The Single Judge allowed the petition and quashed

the dismissal order after finding that the dismissal was time barred

as per Section 121 of the AF Act (which barred commencement of

court martial after three years from the date of offence). The intra-

court appeal thereagainst carried by the respondents was initially

dismissed on 18th September, 2000; however, on 15th February,

2002, the Supreme Court remitted the matter for fresh

consideration. Upon remand, the Division Bench passed the

impugned order.

IMPUGNED ORDER

3. Upon perusal of Section 121 of the AF Act, the Division Bench observed

that the limitation period prescribed therein pertains to the

commencement of “trial by a court-martial”, whereas Rule 16 of AF Rules

7 concerns the power of the Air Force to initiate administrative action.

Placing reliance upon the decision (more particularly paragraphs 43 and

44) of this Court in Union of India v. Harjeet Singh Sandhu16

(wherein this Court while interpreting analogous provisions of the Army

Act, 195017 and the Army Rules, 195418 held that limitation period

applicable to court-martial proceedings does not extend to

administrative action), the Division Bench concluded that Section 121 of

the AF Act does not prescribe limitation period for initiation of an

administrative action under Rule 16 of the AF Rules.

4. Further, in Harjeet Singh Sandhu (supra), this Court had also held that

if the initiation of administrative action is found to be a colourable

exercise of power, such action would be liable to be vitiated. On this

aspect, the Division Bench found no abuse of process in the initiation of

proceedings against the appellant.

5. Also, the Division Bench recorded additional reasons and found the

dismissal of the appellant to be proper. Upon examination of the case

records, the Division Bench noted the reasoning given by the authority

preceding the dismissal of the appellant and ultimately ruled in favour

of allowing the appeal of the respondents.

6. Consequently, the order of the Single Judge, which had held the

disciplinary action to be time-barred, was set aside.

7. Para 16 of the impugned order reads as follows:

16. We have also examined the original file produced by the appellant

- Indian Air Force. Reading of the notings on the said file will reveal

16 (2001) 5 SCC 593 17 Army Act 18 Army Rules 8 that order of summary dismissal was passed not merely on the ground that disciplinary action had become time barred, but on account of seriousness of the misconduct which it was felt was bordering on perversity, and also keeping in mind the relationship between the two services, viz. Indian Air Force and GREF. It was observed that it had far-reaching ramifications. It was felt that there is sufficient moral convincing evidence to show culpability of the officer in the sordid episode, which eventually resulted in loss of human life. It is in these circumstances it was held that it was inexpedient and impracticable to proceed departmentally against the officer but retaining him in the services was undesirable. …… (emphasis ours)

8. “Moral convincing evidence to show culpability … ” ~ this aspect of the

impugned order caught our attention prompting us to call for the original

file of the disciplinary proceedings and the subsequent dismissal order.

ORIGINAL FILE

9. The original file having been placed before us by Ms. Archana Pathak

Dave, learned Additional Solicitor General appearing for the

respondents, we had the occasion to peruse the same.

10. We regret to record at the outset that the Division Bench omitted to

notice substantial portion of the proceeding notes. At least, this is the

impression we form upon reading the impugned order. It would,

therefore, be our endeavour to refer to all relevant proceeding notes

having a bearing on the issues which we are tasked to decide.

11. On perusal of the original file, it is observed that the Air Force, vide

proceeding note dated 5th June, 1992, after recording its reasons,

recommended to the Government that the appellant be dismissed from

service. This recommendation was followed by a series of

communications exchanged between the Government and the Air Force

concerning the quantum of punishment to be imposed upon the

9 appellant. Queries were also raised as to why the appellant’s

commanding officer had been visited with a comparatively less severe

punishment.

12. The Air Force, as noted, recommended on 5th June, 1992 that the

appellant be dismissed from service.

a. Despite the appellant having been set free (not acquitted, but

discharged) by a criminal court, what could have been the reason

for the Air Force to initiate disciplinary action against the appellant?

In this regard, we found paragraph 8 of the proceeding note dated

5th June, 1992 relevant, reading as follows:

8. In the meanwhile, civil police had filed a case against the Air Force personnel involved in the sordid episode under Section 146, 365 and 304 read with Section 149 of IPC in the Sessions Court at Jaisalmer.

During the progress of the case two of the accused persons had retired from service. Since they were also co-accused in the case, it was not possible to take over the case and try them by a Court Marital. Moreover, the facts and circumstances of the case dictated that it was advisable to wait for the verdict of the Court before deciding future course of action in the case. The sessions judge has pronounced his judgment ‘discharging’ the accused persons on the grounds, firstly, that the prosecution has not been able to establish prima facie case against the accused persons on the charges preferred against them and secondly on grounds of some technical lapses on part of the prosecution. The net result of the accused person having been ‘discharged’ is that in the eye of law the accused persons have neither been acquitted nor convicted. Thus, Air Force Authorities are free to take action against those of the accused persons who are still serving in the AF.

(emphasis ours)

b. Further, paragraph 9 discusses as to why criminal proceedings could

not be initiated against the appellant and the convincing evidence

finding him guilty. It reads:

Although, the alleged misconduct constituted an offence under the air force Law, it would not be possible to bring Sqn Ldr Sood to book by resorting to disciplinary action as the offence has become time- barred. At the same time keeping in view the seriousness of the misconduct bordering perversity on the part of Sqn Ldr Sood, his

10 seniority and the fact that he gave an extremely poor account of himself as an officer before his subordinates, with far reaching ramifications, as also for the maintenance of desirable relationship between the two services, it is felt that for what he has done, further retention of Sqn Ldr R Sood in the IAF is not desirable. Regardless of the fact that civil court has 'discharged' Sqn Ldr Sood on the ground that the prosecution had not obtained prior permission of the Central Government before instituting the criminal case against the accused. However, there is sufficient morally convincing evidence against him showing his culpability in the sordid episode resulting eventually in the loss of a human life.

(emphasis ours)

c. The correctness of the reasons given by the authority (as

aforesaid), shall be examined in the next segment of this judgment.

13. In subsequent proceeding notes, we found that the appellant’s

Commanding Officer, the Wg. Cmdr., was also found guilty by the Court

of Inquiry and subsequently awarded ‘severe displeasure for 3 years’.

However, as recorded, this approach of grant of such petty punishment

to the Wg. Cmdr. was questioned by the officers themselves in various

proceeding notes.

a. In proceeding note dated 19th June, 1992, signed by the Under

Secretary, we found:

2. Perusal of COI proceedings of AF & GREF reveal that the CO, Wg Cdr … has been held responsible along with Sqn Ldr Sood for the unfortunate demise of Shri … . It is not understood as to why Wg Cdr … has been let off by ‘SD’ for 3 years and Sqn Ldr Sood has been rec. for dismissal from service.

3. Wg. Cdr … instead of concealing the episode should have reported the matter to higher authorities.

4. File relating to Wg Cdr … may kindly be linked.

(emphasis ours)

b. The then Squadron Leader responded to this query of the Under

Secretary (recorded in proceeding note dated 30th June, 1992) by

stating that the death of the driver was directly attributable to the

appellant. The note reads:

11

4. It would thus be seen from the above that the misconduct on the part of Wg Cdr … was of supervisory in nature which did not directly contribute to the death of … . Whereas the misconduct of Sqn Ldr Sood in leaving … who was totally drunk, almost naked and mentally and physically a wreck at a far away deserted place in the middle of night, was not only bordering on perversity but devoid of any humane feelings. Death of … was directly attributable to his this callous action.

Because skeleton of … was found exactly at the same place where he was left on the night of 29-30 March 87.

5. In view of the above, a more severe punishment is called for Sqn Ldr R Sood that what has been awarded to Wg Cdr … .

(emphasis ours)

c. The Under Secretary again questioned this approach in proceedings

dated 28th August, 1992 and asked for an opinion of the Legal

Advisor (Defence):

15. It is not understood as to why Wg Cdr … ’s case has not been forwarded to the Ministry for dismissal/removal for his misconduct after the stay was vacated by the High Court of Punjab and Haryana, Chandigarh. It may be seen from the para-wise comments given by Air HQ vide Encl 2-A in the link file, that Wg Cdr … gave instructions to Sqn Ldr Sood to take … to BSF Post at Miyajilar Road on 29th March, 1987. Next morning he was informed by Sqn Ldr Sood that … instead of being dropped at BSF Post, had been left at a place far beyond BSF Post. Wg Cdr … reacted by telling Sqn Lar Sood that if somebody enquired about the whereabouts of …, he should be informed that they had let him off. Thus it is quite clear that Wg Cdr … instructed his sub-ordinate to supress the truth regarding the whereabouts of … .

16. Wg Cdr … is also worth blaming for not reporting this unusual incident to higher authorities at 41 Wing AF.

17. From the above, it is quite evident that Wg Cdr … being the commanding officer of 147 Sqn AF is equally responsible for the unfortunate death of … of 95 RCC (GREF). It is suggested that the file may be sent to L.A. (Defence) for seeking his considered opinion regarding dismissal/removal in the case of both Sqn Ldr R.Sood, Adm and Wg Car …, who has been awarded severe displeasure for three years by CAS. This will ensure that no discriminatory approach is followed in the case of officers who are found to have done more or less similar misconduct.

(emphasis ours)

d. The legal advisor replied (note dated 9th September, 1992) by

stating that action taken against the Wg. Cmdr. cannot be reopened

due to lack of competency. The note reads:

12

The case of Wg Cdr … appears to be distinguishable for the misconduct in question was never committed by Sq. Ldr. Sood with the connivance and concurrence of Wg. Cdr. … . Furthermore, the Dept is said to have awarded severe displeasure to Wg Cdr … . That being so, the administration competency seems to have been exhausted and the matter is closed and the same cannot be revived for reviewing/revising by the concerned authority in the absence of an enabling provision. Though as regards Sq. Ldr. Sood, the Dept’s proposal seems to be in order. However, in view of the aforesaid the matter may be personally discussed by the concerned Dept officer with the undersigned on a prior appointment.

(emphasis ours)

e. The case, at one point, was discussed by the Joint Secretary (Air)

with the Defence Secretary, whose query and answer thereof are

traceable in proceeding note dated 18th February, 1993, reading as

under:

4. The next query raised by Defence Secretary is about the culpability of the Commanding Officer especially when he had ordered his junior to leave the deceased in an out of the way place. Defence Secretary also desired to know what exactly was the CO’s recorded order. ……

6. Wg Cdr … , the C.O., retired on 30.11.92 on superannuation and no further action can be taken against him, even if it is accepted that he was equally culpable. In any case, the fact that he was punished administratively by the Air Force authorities effectively foreclosed the option of further action against him. This certainly was not the correct course of action considering the fact that through this a C.O. was being allowed to escape the responsibility for the instruction given by him to his subordinates, and the action taken by them in pursuance of such instructions.

7. Sq. Ldr Sood has now been proposed for dismissal from service under Section 19 of the Air Force Act. The only question to be considered now is whether Sqn Ldr Sood should get some benefit, like compulsory retirement rather than dismissal, from the leniency shown by the Air Force authorities in the case of Wg Cdr … . If approved, CAS could be asked to personally review the case and give his well considered views on the punishment to be given to Sqn Ldr Sood.

(emphasis ours)

f. The case was again sent back to the Chief of Air Staff seeking his

views regarding the quantum of punishment. Vide proceeding note

dated 10th March, 1993, the then Air Marshal replied by stating that

13 “Central Government enjoys full powers to resort to any course of

action without the need to make any subsequent reference to the

CAS unless a new material fact has been received subsequent to

the receipt of the case by the Central Govt.”

14. This note was followed by the appellant’s dismissal from service vide

order dated 22nd September, 1993, reading as follows:

3. NOW THEREFORE, After considering the misconduct as stated in the aforesaid Show Cause Notice against the said Sqn Ldr R Sood, his defence and the recommendation of the CAS, the Central Gov in exercise of the powers conferred by Section 19, AF Act 1950 and Rule

16. Air Force Rules, 1969 hereby order the dismissal from the service of Sqn Ldr R Sood (12785) Adm.

ISSUES

15. Following issues arise for decision in the present case:

a. Whether the initiation of administrative action against the appellant

was proper and justified after he had been discharged by a criminal

court in respect of the same alleged offence arising out of the same

set of facts?

b. Independent of the above, whether the reasons recorded in the

proceeding note dated 5th June, 1992 are sustainable in law, or are

vitiated on account of perversity?

c. To what relief, if any, is the appellant entitled should the answers to

the above turn to be favourable to him?

INITIATION OF ADMINISTRATIVE ACTION – WHETHER PROPER AND JUSTIFIED?

16. Bare reading of the excerpts from the original file unmistakably reflects

deep differences in the overall approach of the officers to the issue. The

14 ongoing deliberations left the officers divided, with one side pushing for

aggressive action and the other advocating caution.

17. In the proceeding note dated 5th June, 1992, the authority, after taking

note of the fact that the appellant had been discharged by a criminal

court, noted that administrative action can still be initiated against the

appellant since the effect of a discharge is that the appellant was neither

“acquitted nor convicted” (see: paragraph 12). Based on this

understanding, the authority proceeded to initiate disciplinary action

against the appellant.

18. This understanding, at first glance, is fallacious. Discharge is a pre-trial

termination of proceedings for lack of evidence. As and when ordered,

discharge signifies and reinforces the position that there is no material

against the accused for him to stand trial. Whereas, acquittal is a post-

trial outcome declaring the accused either innocent due to lack of

credible material or on account of grant of the benefit of doubt.

Insufficient evidence to even frame charges for standing trial would lead

to a discharge while evidence presented not proving guilt leads to

acquittal. In that sense, an accused discharged of a criminal offence

stands on a better footing than an accused who is finally acquitted after

a full-fledged trial. It is not the law that an accused, unless he is

acquitted, must still carry the label on his forehead that he is accused of

a criminal offence. Once an accused has been discharged, he is entitled

to avail of all benefits that are otherwise available to an acquitted person

and cannot be placed in a less advantageous position. We are left

15 surprised at the understanding of the officer who prepared the

proceeding note.

19. In support of our view of discharge standing on a ‘better footing’ than

acquittal, one may profitably refer to the decision of this Court in Yuvraj

Laxmilal Kanther v. State of Maharashtra19. The relevant paragraph

therefrom is reproduced below:

16. Section 227 CrPC deals with discharge. What Section 227 CrPC contemplates is that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient grounds for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. At the stage of consideration of discharge, the court is not required to undertake a threadbare analysis of the materials gathered by the 17 prosecution. All that is required to be seen at this stage is that there are sufficient grounds to proceed against the accused. In other words, the materials should be sufficient to enable the court to initiate a criminal trial against the accused. It may be so that at the end of the trial, the accused may still be acquitted. At the stage of discharge, court is only required to consider as to whether there are sufficient materials which can justify launch of a criminal trial against the accused. By its very nature, a discharge is at a higher pedestal than an acquittal. Acquittal is at the end of the trial process, may be for a technicality or on benefit of doubt or the prosecution could not prove the charge against the accused; but when an accused is discharged, it means that there are no materials to justify launch of a criminal trial against the accused.

Once he is discharged, he is no longer an accused.

(emphasis ours)

20. At this juncture, we consider it apposite to refer to the decision of the

three-Judge Bench of this Court in Harjeet Singh Sandhu (supra)

again.

21. The said decision supports the case of the armed forces, inasmuch as it

recognizes their authority to take disciplinary action even in

circumstances where the option of convening a court martial has become

19 2025 SCC OnLine SC 520 16 time-barred. In this regard, paragraphs 43 and 44 of the said decision

are relevant:

43. We are also of the opinion that Major Radha Krishan case [(1996) 3 SCC 507 : 1996 SCC (L&S) 761] lays down propositions too broad to be acceptable to the extent it holds that once the period of limitation for trial by court martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept different from impossibility (or impermissibility, for that matter). The view of the Court in that case should be treated as confined to the facts and circumstances of that case alone. We agree with the submission of the learned Additional Solicitor-General that the case of Dharam Pal Kukrety [(1985) 2 SCC 412 : 1985 SCC (Cri) 222] being a three-Judge Bench decision of this Court, should have been placed before the two-Judge Bench which heard and decided Major Radha Krishan case [(1996) 3 SCC 507 :

1996 SCC (L&S) 761] .

44. Reverting back to the two cases under appeal before us, we are of the opinion that the High Court was not right in allowing the two writ petitions filed by Harjeet Singh Sandhu and Harminder Kumar, respectively, by placing reliance on the decision of this Court in Major Radha Krishan case [(1996) 3 SCC 507 : 1996 SCC (L&S) 761] and holding that the exercise of power under Section 19 read with Rule 14 by the Chief of the Army Staff was vitiated solely on account of the bar of limitation created by Section 122 of the Act. ……….

(emphasis ours)

22. The aforesaid paragraphs were duly considered and relied upon by the

Division Bench while passing the impugned order, on the basis of which

it was held that the disciplinary action against the appellant were not

time-barred. We quite agree with this part of the impugned order.

23. However, significantly, another crucial aspect of the very same decision

– one that squarely operates against the armed forces (emphasis ours)

– appears to have escaped the attention of the Division Bench.

24. In Harjeet Singh Sandhu (supra), while examining Sections 19 and

125 of the Army Act and Rule 14 of the Army Rules, which are pari

materia Sections 19 and 124 of the AF Act and Rule 6 of the 1969 Rules,

respectively, this Court observed that where the commanding officer,

17 exercising discretion vested in him to choose between a trial by a

criminal court and a court-martial, opts for trial before a criminal court,

an acquittal of the accused by such court brings finality to the matter.

In such circumstances, the initiation or continuation of disciplinary action

would not be sustainable. The relevant passage from the said decision

is reproduced below for facility of appreciation:

26. It is relevant to note that when an offence is triable by a criminal court and also by a Court Martial, each having jurisdiction in respect of that offence, a discretion is conferred by Section 125 on the officer commanding to decide before which court the proceedings shall be instituted. Parliament has obviously made no such provision in the Act for the exercise of a choice between proceeding under Section 19 or convening of a Court Martial. The element of such option, coupled with the factors which would be determinative of the exercise of option, is provided by Rule 14(2). When an officer, subject to the Army Act, is alleged to have committed a misconduct, in view of Section 125 and Section 19 read with Rule 14, the following situation emerges. If the alleged misconduct amounts to an offence including a civil offence, Section 125 vests discretion in the officer commanding the Army, Army Corps Division or independent Brigade in which the accused person is serving or such other officer as may be prescribed, to decide before which court the proceedings shall be instituted i.e. before a Court Martial or a criminal court. If the decision is to have the delinquent officer tried by a criminal court and if he is acquitted by the criminal court, then that is the end of the matter. The pronouncement of judicial verdict would thereafter exclude any independent disciplinary action being taken against the delinquent officer on the same facts which constituted the misconduct amounting to an offence for which he was charged before the criminal court. …” (emphasis ours)

25. Though the law laid down in Harjeet Singh Sandhu (supra) is on

consideration of the provisions of the Army Act and the Army Rules,

there is no reason why it would not squarely apply to a case covered by

pari materia provisions of the AF Act and the AF Rules.

26. True though, as per Harjeet Singh Sandhu (supra), initiation of

administrative proceedings is barred when an accused is ‘acquitted’;

however, we find no reason for the ratio of the decision to not apply in

18 a case where the accused is ‘discharged’ (which stands on a better

footing than acquittal, as discussed supra). Once the appellant has been

discharged by the criminal court, that should mark the end of the matter.

27. Thus, the Air Force upon electing to have the alleged offence tried by

the criminal court20, it is clear (in view of the discussion above) that they

then cannot fall back on either a court martial or any disciplinary action.

Once the road is chosen, the traveller must walk it to the end.

28. Initiation of administrative proceedings for disciplinary action against the

appellant, we unhesitatingly hold, was bad in law and non-est.

29. This reason alone is sufficient to allow the present appeal. However, we

do not propose to rest our decision on this sole reason; we take the

discussion forward as to why, independent of the aforesaid discussion,

the disciplinary action is also otherwise considered by us to be flawed.

It is solely for the reason that the decision in Harjeet Singh Sandhu

(supra) is subsequent to the appellant’s dismissal from service and we

wish to test whether, even in view of the law prevailing prior thereto,

disciplinary action which had been taken was justified on facts and in

the circumstances.

REASONS GIVEN IN PROCEEDING NOTE DATED 5TH JUNE, 1992

30. The reasoning given in the proceeding note dated 5 th June, 1992 has

been noted above. From the same, we find absolutely no discussion on

the merits of the case.

20 See italicized part of paragraph 8 of the proceeding note dated 5th June 1992 (paragraph 12 of this judgment) 19

31. What is found is that there was sufficient “morally convincing evidence”

against the appellant. Such an expression, vague and indeterminate in

nature, falls far short of the standard required for recording findings in

disciplinary proceedings. It neither discloses the material relied upon nor

indicates the process of reasoning by which the authority arrived at its

conclusion.

32. Further, as noted above at paragraph 2(l), the appellant, in his reply to

the show cause notice, had raised various contentions which required

due consideration by the competent authority. However, it is a matter of

surprise that there is a complete absence of any discussion on such

contentions, particularly concerning the lack of evidence and the

illegality of the proceedings before the Court of Inquiry. Although some

discussion was undertaken regarding the permissibility of initiating

disciplinary proceedings after the appellant’s discharge by a criminal

court, even that aspect, in our view, remains doubtful (as discussed

supra). While adverting to the appellant’s reply, the authority merely

noted their dissatisfaction in respect thereof, at paragraph 15 of the

proceeding note dated 5th June, 1992:

15. At the outset, it must be stated that the reply to the show cause notice submitted by the officer was considered by us as well as the Deptt. of JAG (Air) and it was found to be not satisfactory. In our view, he has seriously misconducted himself, as a result of which a human life was lost.

33. While courts ordinarily refrain from examining the sufficiency or

adequacy of evidence in disciplinary matters, such restraint operates

only where the finding of guilt is preceded by a duly conducted inquiry.

In cases such as the present, where no regular inquiry was conducted

20 and the delinquent was deprived of the opportunity to test the evidence

through cross-examination, the scope of judicial review necessarily

becomes a bit more intrusive. In such circumstances, the show cause

notice, the reply thereto and the final order assume critical importance

as the primary safeguards of natural justice. Consequently, where the

delinquent furnishes a detailed explanation which is not ex facie frivolous

or untenable, the competent/disciplinary authority is under a legal

obligation to consider the same and pass a reasoned order

demonstrating due application of mind as to why the defence raised was

perceived to be unacceptable. A cryptic or mechanical rejection,

particularly one which does not even advert to the specific contentions

raised, falls foul of the principles of natural justice and renders the

decision arbitrary and unsustainable in law.

34. In the instant case, where the appellant was not privy to the proceedings

preceding his dismissal, any irregularity in the proceedings, if at all, can

only be raised at the time of judicial proceedings. Keeping this in view,

we have examined and reproduced the relevant notes from the original

file in detail.

ARBITRARINESS IN PUNISHMENT

35. Even assuming, for the sake of argument, that the decision to take

disciplinary action was otherwise proper, we find that the punishment

imposed upon the appellant is manifestly unreasonable.

36. What the Government missed is that the appellant was caught between

the devil and the deep sea. Had he disobeyed the instruction of the Wg.

21 Cmdr. by not removing the driver from the camp, he would risk being

proceeded against for insubordination and indiscipline. On the other

hand, the appellant has been punished for relocating the driver to

desolate surroundings; this, he did while acting on the instructions of

his superior. Though there is no definite material, we would assume that

the corpse found was of the driver who, having been left to fend for

himself, did not survive the harsh climate of the Thar; but , at the same

time, there is also no definite material to suggest that such relocation

was made by the appellant with any motive of harming him. Indeed, it

is revealed from the records that to keep the driver away from the next

day’s anticipated visit of the AOC-i-C (so that the driver does not create

any ruckus) was the real object intended to be achieved. It is also

evident that the Wg. Cmdr. had given specific instructions, which later

were even viewed as encouraging his subordinates to suppress the truth.

Possibly, the appellant had no other option but to obey the orders of his

superior. Non-consideration of these circumstances in course of the

decision-making process being writ large together with the absence of

reasoning in the order punishing the appellant, renders the same

arbitrary and unsustainable in law sufficient to vitiate the entire

proceedings against the appellant.

37. Before parting, while recounting that the appellant’s superior officer was

visited with the penalty of ‘severe displeasure for three years’, whereas

the appellant has been ordered to be dismissed from service, we find it

imperative to bear in mind that queries were repeatedly raised as to the

rationale for imposing such a comparatively lenient punishment upon

22 the senior officer, while punishing the appellant with dismissal. The only

explanation forthcoming was that the superior officer had already

superannuated and, therefore, no further action could be taken against

him. This explanation does little to assuage our concern. Maintaining and

carrying forward the high traditions and the standard of discipline in the

armed forces cannot be over-emphasized. The punishment of

‘displeasure’ was imposed on the Wg. Cmdr. before he had

superannuated. It is not for us to question the Government, in course of

these proceedings, why the Wg. Cmdr. was let off leniently; however,

the question that certainly looms large is why was the appellant singled

out for a harsher punishment despite his discharge from the criminal

case? The answer is not far to seek. The understanding of the law

relating to discharge, as noted above, was fallacious. We unhesitatingly

hold that when a comparatively less penalty has been imposed upon an

officer with a more significant role, such disparity ought to have weighed

with the authorities while determining the punishment to be inflicted

upon the appellant. While we do not for a moment suggest that undue

leniency shown to one should also be shown to the other, and are

conscious that one mistake cannot justify another, this is a case where

the ratio of the decision of this Court in Sengara Singh v. State of

Punjab21 would seem to apply. In the absence of distinguishing

features, the appellant ought to have been treated on a par with the Wg.

Cmdr. The principle of equality would be violated when a subordinate

officer is meted out the harshest punishment for complying with a

21 (1983) 4 SCC 225 23 wrongful order of his superior, while the latter who issued it gets a

lenient treatment leading to a reprieve of sorts. It could be so that to an

extent, the appellant had exceeded in what he was required to do by the

Wg. Cmdr., yet, sight cannot be lost that the order of the Wg. Cmdr.,

which was rooted in wrongdoing, was not demonstrated to be not

binding on the appellant.

RELIEF

38. Premised on the above, justice demands that the ignominy with which

the appellant had to survive the past more than three decades is

obliterated, the wrongful termination of his service be revoked and his

honour restored.

39. The order of dismissal from service dated 22nd September, 1993 stands

set aside. Appellant having since crossed the age of superannuation, he

cannot be reinstated in service. In law, however, he is entitled to claim

all consequential service benefits which would have accrued to him, had

he not been fastened with such illegal order of dismissal. Appellant could

not work beyond 22nd September, 1993 admittedly because of the illegal

order of termination and not owing to any fault on his part. Question

therefore arises, whether the principle of ‘no work, no pay’ would be

attracted? In view of the recent decisions of this Court in Ramesh

Chand v. Management of Delhi Transport Corporation22 and

Maharashtra State Road Transport Corporation v. Mahadeo 22 (2023) 19 SCC 97 24 Krishna Naik23, the requirement for being entitled to 100% back wages

is a statement on affidavit that the employee concerned has not been

reemployed since illegal termination of service. Though a negative

burden, such burden has to be discharged whereupon the onus would

shift to the employer to deny/dispute such statement. Here, there is no

material on record to show that the appellant did not take up any

employment/was not employed after 22nd September, 1993. We,

therefore, propose reduction of the claim to the extent of 50%.

40. Having regard to all relevant factors, we direct that the appellant shall

be entitled to the following benefits: (i) arrears of salary and allowances

to the extent of 50% from 23rd September, 1993 till the scheduled date

of his retirement from service; (ii) notional promotion, for which the

appellant’s case may be placed before the Review Departmental

Promotion Committee as per the governing rules for consideration; and

(iii) pensionary benefits as are admissible to him in law. The financial

benefits due and payable in terms of this order, including increased pay

subject to notional promotion being accorded, be calculated and paid to

the appellant with interest @ 9% per annum from the date of

presentation of the writ petition before the High Court (an unspecified

date of 1995, but the exact date must be gathered by the respondents

from the records) till date of payment.

41. Irrespective of service benefits, restoration of honour remains the

foremost concern of a defence personnel. We restore it with the direction

that on a date to be fixed by the Chief of Air Staff, the appellant shall be

23 (2025) 4 SCC 321 25 signed off in the normal manner he would have otherwise been entitled

to, but for the order of dismissal.

42. Directions as aforesaid be complied with, within a period of 3 months

from date of service of a copy of this judgment and order on the

respondents.

CONCLUSION

43. The impugned order appears to have been passed in “LPA No. 545/1999

and CM No. 3803/1999”. As per the record, Civil Appeal Nos. 6929/2009

and 6930/2009 arise from the final order passed in LPA No. 545/1999

and CM No. 3803/1999, respectively. However, there is no discussion in

the impugned order or in the case file regarding the disposal of CM No.

3803/1999. It could be so that the said application was not formally

disposed of by the High Court. Be that as it may, we set aside the

impugned order of the High Court; as such, the order, if any, passed in

CM No. 3803/1999 would also stand set aside. We order accordingly.

44. The appeals, thus, stand allowed.

45. Parties shall bear their own costs.

………………………….……………J. (DIPANKAR DATTA)

…………………..……………………J. (K.V. VISWANATHAN) New Delhi;

April 15, 2026.

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