SOHAN SINGH Vs. UNION OF INDIA AND ANOTHER

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution of India, the petitioner a, former corporal in the Indian Air Force, challenges an order of his discharge.

(2.) According to the petitioner he was recruited in the Force in 1963 as an Airman and was promoted to the rank of corporal in Sept., 1969. He completed 9 years of service in 1972 and contends that having been asked to give his option for an extension of 6 years further service, he sought the extension and the same was granted to him and be, therefore. drew his pay till Nov. 1973. He claims that on July 9, 1973, he was Informed for the first time that orders for his discharge had been issued. He sought reasons for it and was given an order of April 6, 1973 (Annexure-I). The impugned order of discharge is challenged by the petitioner, inter alia, on the ground that it was made by an officer who was not competent to do so; and that the order being ex-facie punitive and in that it states that the petitioner was unsuitable for retention in the Air Farce "(On disciplinary ground)" it was invalid inasmuch as it was made in violation of the principles of natural justice, in that the petitioner was not given any opportunity to show cause against the said order.

(3.) The petition is opposed. In the return to the rule it is stated that in terms of the relevant rules the petitioner had no claim to service after completing the initial 9 years of service; that no extension of service was granted to the petitioner and none was offered; that the petitioner continued in service even after the expiry of the initial period of service by virtue of the applicability of Rule 167 of the Defence of India Rules 1971; chat the petitioner was eventually discharged from service on the ground of unsuitability following a charge of alleged involvement in a case of theft; that the allegations were found to be well-founded in a court of inquiry in which the petitioner had ample opportunity to cross-examine witnesses, to produce his defence and of being heard; that the charge was eventually referred to the civilian court where criminal trial involving the petitioner and certain others has been pending during the material time; that the petition was liable to be dismissed because the petitioner deliberately concealed this material fact from this court; that the petitioner's services having been dispensed with under Rule 167 no further opportunity was called for; and that there was, therefore, no ground to interfere with the impugned order. In his rejoinder the petitioner, by and large, reiterated the averments made in the petition, disputed that it was not a case of extension, but a mere continuation of service under Rule 167, admitted that the court of inquiry had gone into the matter arising out of ',the charge of theft against the petitioner; and that the charge was at all material times and still subject-matter of a criminal trial in a court at Kanpur. The petitioner sought, and was granted, leave to amend the petition so as to raise an additional ground to assail the impugned order. By the additional ground the impugned order was assailed on the plea that Rule 167 did not empower the authority to discharge the petitioner, but merely entitled the petitioner to claim discharge.