OM PRAKASH SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Indian Air Force on 7.10.1988 in the trade of Mechanical Transport Driver (MTD). He was promoted to the rank of Corporal. On 10.3.1994 there was an accident involving a service vehicle which was being driven by the petitioner at Shillong. The aforesaid incident resulted in a District Court Martial (DCM for short) of the petitioner which was held from 25.4.1996 to 15.5.1996. Before the trial of the DCM the petitioner was served with the warning letter dated 10.8.1994 by Station Commander of 509 SU AF in terms of headquarter policy letter AIR HQ/C23406/685/PS of 14.8.1984. The petitioner was duly informed in terms of the aforesaid letter dated 10.8.1994 that he had been placed in the category of potential offender and he was being given another opportunity to mend himself and warned that another punishment entry would bring the petitioner under the category of habitual offender which would result in his discharge from service under Rule 15(2) (g) (ii) of the Air Force Rules, 1969. Meanwhile, the DCM against the petitioner assembled on 25.4.1996 and concluded on 15.5.1996. The DCM found the petitioner guilty of the offence and awarded him the following sentence:

(2.) The petitioner carried out his entire sentence and according to him he performed well in service and in fact in his last annual assessment he was assessed as an "Excellent Airman". The petitioner was served with the show cause notice dated 6.3.1997 calling upon him to show cause as to why he should not be discharged from service under rule 15(2) (g) (ii) of Air Force Rules, 1969. The petitioner duly replied to the show cause notice vide his letter dated 2.4.1997, however, to his surprise he received AIR FORCE RECORD OFFICE LETTER/2501/1/RW (DIS) dated 2.12.1997 whereby he was discharged from service. The petitioner served a notice dated 27.3.1998 upon the respondents for setting aside the order of discharge. Aggrieved by the letter dated 2.12.1997 the petitioner filed the present writ petition under Article 226 of the Constitution of India praying that directions, orders or writ in the nature of mandamus be passed to set aside the impugned discharge order dated 2.12.1997 passed by the competent authority, as null and void being illegal as ab initio and to direct the reinstatement of the petitioner in service with full back wages and all benefits.

(3.) At the very outset it was very fairly contended by learned counsel for the petitioner that he did not wish to challenge the policy of the Air Force dated 14.8.1994. It is submitted by learned counsel for the petitioner that the letter of discharge dated 2.12.1997 issued to the petitioner is in total violation of the principles of natural justice and fair-play. It is argued that the petitioner was issued a letter of warning dated 10.8.1994, in terms of the said letter the petitioner was informed that as per his conduct sheet he had been punished for three offences incurring three red entries and in case of another entry he would be liable to be discharged from service under rule 15(2) (g) (ii) of the Air Force Rules 1969. It is submitted that after receipt of the warning letter the petitioner did not commit any offence, although the petitioner was involved in an accident in Shillong on 10.3.1994 prior to the warning letter dated 10.8.1994. The DCM had only punished the petitioner relating to the accident in Shillong dated 10.3.1994, which was admittedly much before the issuance of the warning letter. Since no offence was committed after 10.3.1994 the letter of discharge dated 2.12.1997 is without any application of mind by the competent authority, the same has been issued in a mechanical manner without scrutinizing the facts and circumstances of the petitioner's case and is liable to be quashed. The learned counsel further submitted that the discharge letter is against the letter and spirit of the Air Force Policy dated 14.8.1984 in as much that the respondents had to take into account the punishment entry incurred by the petitioner for an offence committed by the petitioner prior to the issuance of warning letter.