Union Of India vs 794898 T Ex Corporal Abhishek Pandey

Union of India & Ors. .... Appellant(s) Versus

794898 T. Ex. Corporal Abhishek Pandey. …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

1. These Appeals are filed against the judgment of the

Armed Forces Tribunal, Regional Bench, Lucknow

(hereinafter, ‘the Tribunal’) by which the order of discharge

of the Respondent dated 17.01.2013 was set aside. The

Tribunal directed the payment of back wages to the extent

of 25 per cent.

2. The Respondent was enrolled in the Indian Air Force on

28.09.2004. A warning was issued to the Respondent on

18.04.2012. By that time, there were seven entries of

punishment (3 Red Ink and 4 Black Ink) in the Conduct

Sheet of the Respondent. The Respondent was informed by

1 the said letter dated 18.04.2012 that he was already in the

category of habitual offender. In accordance with the

Habitual Offenders Policy, the habitual offenders can be

considered for discharge from service under Rule 15 (2) (g)

(ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the

Air Force Rules, 1969 (hereinafter, ‘the Rules’), under the

Clause “His Service No Longer Required Unsuitable for

Retention in the Air Force”. The Respondent was cautioned

and counselled to mend himself and desist from acts of

indiscipline. He was also warned that any addition of

another punishment entry would render him liable for

discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2)

(k) read in conjunction with Rule 15(2) of the Rules.

3. A notice was issued to the Respondent on 11.07.2012,

directing him to show cause as to why he should not be

discharged from service under Rule 15 (2) (g) (ii) of the

Rules. There was a reference to the warning letter dated

18.04.2012 in the show cause notice. Even after the

issuance of the warning letter dated 18.04.2012, the

Respondent indulged in acts of indiscipline on 10.06.2012

and was awarded ‘Severe Reprimand’ on 13.06.2012 by his

2 | Page Commanding Officer. As the Respondent was not showing

any improvement, he was found to be a poor Airman

material and not amenable to service discipline. The

Respondent submitted his explanation on 05.08.2012 in

which he admitted that he had indulged in acts of

indiscipline due to bad company. He requested for a final

chance to improve. After considering the explanation

submitted by the Respondent, the Air Officer-in-Charge

approved the discharge of the Respondent from service

under Rule 15 (2) (g) (ii) of the Rules as he was found

unsuitable for the Indian Air Force.

4. The Respondent challenged his discharge before the

Tribunal by filing Original Application No.125 of 2013. He

relied upon a Policy dated 16.12.1996 governing the

habitual offenders/ potential habitual offenders. He

contended before the Tribunal that he was entitled for a

second warning before an order of discharge could have

been passed against him in accordance with the Policy. The

Tribunal accepted the submission made by the Respondent

and allowed the application. The order of discharge was set

aside. The Respondent was held to be entitled to all

3 | Page consequential benefits, including back wages which were

restricted to 25 per cent. The Review Application filed by

the Appellant was rejected by the Tribunal.

5. The only point that arises for our consideration in the

present case is the interpretation of the Policy dealing with

habitual offenders. The Air Force Policy dated 16.12.1996

was issued by the Air Force Headquarters, prescribing the

procedure to be followed while processing the cases of

habitual offenders. According to the Policy, an Airman is

entitled to be issued a precautionary warning (being a

habitual offender). The Airman has to be informed that he

would be getting another opportunity to mend himself and

any addition of another punishment entry, either Red or

Black, would result in his discharge from the service. Para 2

(b) of the Policy provides that whenever the case of an

Airman is considered by the competent authority for final

orders and he is afforded one more chance, a warning letter

is required to be issued to him by his Commanding Officer

again. The said warning letter shall be treated as a second

time warning. Para 3 of the Policy postulates that habitual

offenders shall be served with a show cause notice calling

4 | Page upon them to explain the reasons as to why the proposed

action of discharge from service shall not be taken against

them. The habitual offenders are entitled for an opportunity

to submit their explanation before an order of discharge is

passed.

6. The Tribunal was of the opinion that the Respondent

was given only one warning. As the second warning which

is mandatory according to the Policy was not given to the

Respondent, the Tribunal was of the view that the order of

discharge was vitiated. The Tribunal failed to take into

account the fact that para 2 (b) provides for a second

warning only when the competent authority considers

issuance of final orders but is also of the opinion that

another chance should be given to the Airman. The

requirement of the second warning letter would be only in

such circumstances.

7. The Respondent was initially a potential habitual

offender before he was considered as a habitual offender.

He was entitled for a warning to be issued in 2008.

Admittedly, there was a delay in issuance of the warning

letter. Ultimately, the warning letter was issued on

5 | Page 18.04.2012. The Respondent did not mend himself for

which reason a show cause notice was issued to him. Even

in the explanation to the show cause notice, the Respondent

did not dispute the allegations of misconduct made against

him. He, in fact, admitted to having indulged in acts of

indiscipline and sought for another opportunity to correct

himself. The show cause notice issued to the Respondent is

in accordance with the Habitual Offenders Policy. A second

warning letter is not required when it is decided to pass a

final order without giving another chance. There is no

violation of the procedure prescribed by the Policy dated

16.12.1996.

8. For the aforementioned reasons, the judgment of the

Tribunal is set aside. Accordingly, the Appeals are

allowed.

..…................................J [L. NAGESWARA RAO]

..…................................J [HEMANT GUPTA] New Delhi, November 08, 2019

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