OM PARKASH BHARDWAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a citizen of India, joined the Indian Air Force in 1939 and held the rank of a WingCommander at the time of his impugned dismissal from service. Thepetitioner alleges that he made a complaint to the Central Governmentunder section 27 of the Air Force Act against a Superior Officer whichresulted in a counter-complaint against him whereupon he was subjected to certain investigation by the Special Police Establishmentregarding some bribery and corruption. It is claimed by the petitionerthat the Special Police Establishment informed him that there wasno truth in any of the allegations made against him. Ultimately acharge-sheet was framed against the petitioner on 12/03/1958,which contained allegations that :-

(2.) the petitioner obtained a free ticket from one S. Sundra Managing Director of Messrs Electronics Limited, New Delhi and thiswas done in consideration of his agreement to render certainservices to S. Sundra.On 11/04/1958, another charge-sheet was framed against thepetitioner alleging that be permitted certain deviations in the design ofmilitary boxes to be supplied to the Army by two firms thereby causing a considerable loss to the State. This charge-sheet is alleged tohave been framed against the petitioner on the basis of certain factsemerging out of an enquiry by Wing Commander Bhaskaran. It isalleged that in that enquiry Wing Commander Bhaskaran had examinedcertain persons and recorded their statements at the back of thepetitioner and without his knowledge. In the second charge sheet it wasinter alia recited -

(3.) There then remains to consider the other argument of Mr.Aggarwala that if the Central Government exercised powers to dismiss,it must do so after due enquiry and due compliance with the demandsof natural justice, particularly when dismissal is by way of punishment. The argument is that a stigma has been attached to the petitioner in the dismissal order which has been passed without due inquiryin disregard of rules of natural justice and, therefore, is not a validorder. On behalf of the respondent on the other hand, it has beencontended that dismissal under section 19 does not confer a justiciableright and, in any case, the show cause notice having been issued tothe petitioner and his replies considered, the requirements of naturaljustice had been met. Having heard the learned counsel thus far Ireserve orders to consider whether it is open to me at all to go into thequestion of violation of natural justice. Having considered the arguments at the Bar in my opinion, there is no merit in the contentionof the petitioner. Section 18 of the said Act provides the tenure ofservice to be during the pleasure of the President. Section 19 givesan absolute power to the Central Government to dismiss or removefrom service 'any person subject to this Act.' It is abundantly recognised that persons who enter the military service and take the State'spay, and who are content to act under the President's commission, although they do not cease to be citizens in respect of responsibility, yetthey do, by a compact which is intelligible, and which requires only thestatement of it to recommend it to the considerition of any one ofcommon sense become subject to military rule and military discipline.In case of civil servants certain special safegurd, have been providedby Article 311 of the Constitution Those safeguards admittedly donot extend to the army personnel. Admittedly, no rules have beenframed in this behalf and there is, therefore, no question of anyviolation thereof. If any rules had been framed and violated, possiblydifferent considerations may have arisen As the law however standsat present it seems to recognise that employment in Army is not aright but only a privillege revocable by the sovereign at will andefficient management demands that power to appoint should necessarilyinclude the power to dismiss. In Army matters the Legislature hasconferred on the Government the same proprietary rights as providedto employers to hire and fire without restrictions. Reliance has beenplaced by Mr. Aggarwala on certain decisions under the IndustrialDisputes Act holding that even in a case where under the standingorders it is parmissible to terminate the services with one month'snotice or payment in lieu thereof without assigning any reason, it isnot open to the employer to exercise that power in an arbitiary orcapricious manner and the bona fides as well as the justifiability of theemployer's act can be enquired into by the Tribunals constitutedunder the Industrial Disputes Act. I do not think that that principlecan be extended to matters of army discipline. In my opinion, anyalleged violation of natural justice in the matter of dismissal or removal from service does not confer a justiciable right on the persons subject to the Air Force Act, 1950