# Sugreev Singh Desuriya v. The Central Government of India and others

- **Citation:** (2002) 1 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-04-03
- **Case number:** Special Appeal No. 865 of 1999
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sugreev-singh-desuriya-v-the-central-government-of-india-and-others-39143
- **Pages:** 7

## Headnote

Air Force Rules 1969- Rule 15 and 24-
Policy
to
discharge
the
habitual
offenders Airman- Policy can not be said
ultra vires or illegal.

Held-Para 8

Sri S.K. Rai, learned Additional Standing
Counsel, however, submitted that the
appellant- writ petitioner had been given
entries in Red and Black ink in his
conduct book and when it increased to
more than four, a warning letter was
issued to him to mend his ways. When
another red entry was goven, he was
issued a show cause notice to show
cause as to why he should not be
discharged to which the appellant- writ
petitioner replied and thereafter he was
discharged from service. He further
submitted that this policy of Discharge of
Habitual Offender applied by the Indian
Air Force, has been subject matter of
consideration
before
the
Hon'ble
Supreme Court in the case of Union of
India and others vs. Corporal A.K. Bakshi
and another reported in A.I.R. 1996 SC

## Text

1All] Sugreev Singh Desuriya V. The Central Government of India and others
289
under such circumstances, we do not find
any merit in the Special Appeal.

The Special Appeal being without
any merit fails and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD APRIL 3, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 865 of 1999

Sugreev Singh Desuriya
...Appellant
Versus
The Central Government of India and
others

 ...Respondents

Counsel for the Appellant:
Sri Sugreev Singh Desuriya
In Person

Counsel for the Respondents:
Sri S.K. Rai
Sri K.D. Nag
S.C.

Air Force Rules 1969- Rule 15 and 24-
Policy
to
discharge
the
habitual
offenders Airman- Policy can not be said
ultra vires or illegal.

Held-Para 8

Sri S.K. Rai, learned Additional Standing
Counsel, however, submitted that the
appellant- writ petitioner had been given
entries in Red and Black ink in his
conduct book and when it increased to
more than four, a warning letter was
issued to him to mend his ways. When
another red entry was goven, he was
issued a show cause notice to show
cause as to why he should not be
discharged to which the appellant- writ
petitioner replied and thereafter he was
discharged from service. He further
submitted that this policy of Discharge of
Habitual Offender applied by the Indian
Air Force, has been subject matter of
consideration
before
the
Hon'ble
Supreme Court in the case of Union of
India and others vs. Corporal A.K. Bakshi
and another reported in A.I.R. 1996 SC
1368. The Hon'ble Supreme Court has
upheld the order of discharge on the
basis of this policy. He further submitted
that in the said policy the basic idea in
the said policy is that recurring nature of
punishment for misconduct imposed on
an air man renders him unsuitable for
further retention in the Air Force and is
not by way of punishment for the mis
conducts for which he has already been
punished. The policy cannot be said to be
ultra- vires or illegal.

(Delivered by Hon'ble R.K. Agarwal, J.)

1. Special Appeal No. 865 of 1999
has been filed by the appellant writ
petitioner,
Sugreev
Singh
Desuriya,
against the Judgment and order dated
24.11.1995 passed by the learned Single
Judge, whereby, the learned Single Judge,
dismissed the Misc. Writ Petition No.
3320
of
1991
with
the
following
observations:

"In my opinion as the petitioner has
not prayed for any relief against any
punishment order either minor or major,
but apprehending some punishment he
has
prayed
for
direction
to
the
respondents not to discharge the petitioner
prematurely.

The main grievance shown by the
petitioner with regard to the warning
contained in Annexure No. 23, which
refers to previous action taken against the
petitioner and the warning by itself is not
indicative of the ultimate order of
discharge. In my opinion the warning
issued to the petitioner as contained in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
290
letter dated 5th April 1990, is only to warn
so that he may improve and mend himself
by which his good acts and discipline
maybe reflected. In my opinion this
warning
by
itself
is
neither
any
punishment nor any cognizance can be
taken for interference in exercise of
powers
under
Article
226
of
the
Constitution.

With regard to the administrative
actions there is departmental remedy
provided, which the petitioner has already
availed. The petitioner has not prayed for
quashing of any punishment awarded to
him or any adverse order passed against
him
in
the
present
writ
petition.
Moreover, as stated earlier, the petitioner
has been discharged from service and
whatever objection he has to raise the
same can be looked into at the time of
hearing of the validity of the action of
discharge from the service."

For the above reasons, the petition is
dismissed."

2. Special Appeal No. 867 of 1999
has been filed by the appellant-writ
petitioner Sugreev Singh Desuriya against
the judgment and order dated 18.1.1996
passed by the learned single Judge in Writ
Pettiion No. 4231(S/S) of 1992, whereby,
the learned Single Judge had dismissed
the writ petition with the following
observations:

"The main relief claimed by the
petitioner in the present petition appears
to be for quashing the order of discharge
and for his continuance in service. The
other reliefs relating to promotion etc.
claimed
in
the
petition
could
be
considered only after the petitioner has
been reinstated in services.
In so far as the challenge to the
warning letter issued to the petitioner, the
warning
by
itself
is
neither
any
punishment nor in any manner it effects
the reputation of the petitioner or casts
any stigma or imputation. The warning
has been issued to warn the petitioner to
be careful and to mend his ways and
activities as already sufficient adverse
material has been placed on the service
record and his case may be considered on
the basis of service for action discharge.

In my opinion, the warning does not
in any manner prejudice the petitioner's
case nor does it cast any stigma on his
character and conduct. In fact the warning
letter was given with the intention to warn
the petitioner to be more cautious and be
more careful in performance of his duties.
The previous warning establishes the
bonafides of the action taken against the
petitioner and is in conformity with the
rules and correct procedure.

The award of the punishment entries
are borne out from the material on record
and thus punishment entries having been
provisionally awarded against which the
petitioner has already been afforded
adequate opportunity to defend himself.

Coming to the order of discharge I
am of the opinion that adverse material
placed on record by the respondents fully
justified, their caution and specially when
in defence service an outstanding merit
and discipline is required. The adverse
material indicates that the respondents
were fully justified in taking the above
action. In my opinion, the order is neither
arbitrary
nor
based
on
irrelevant
considerations and nor there is nonapplication of mind by the concerned
authority. The grounds raised in the
1All] Sugreev Singh Desuriya V. The Central Government of India and others
291
petition
do
not
establish
that
the
impugned
order
suffers
from
any
illegality or infirmity. The petition is
devoid of merit and is accordingly
dismissed."

3. Both the appeals are taken up
together, as they relate to the same writ
petitioner-appellant and are being decided
by a common judgment.

4. We have heard the appellant-writ
petitioner, Sugreev Singh Desuriya in
person
and
Sri
S.K.Rai,
learned
Additional Standing Counsel for the
Central Government.

5. Briefly stated the facts giving rise
to the present appeals are as follows:

6. The appellant- writ petitioner was
at the relevant time holding the rank of
Air Corporal, a non Commissioned
Officer
in
the
Indian
Air
Forece.
According to the appellant-writ petitioner,
he had been protesting against the illegal
action of the respondents. He had been
given
adverse
remarks
and
minor
punishments in the conduct-sheet on
account of bias and prejudice of the
Superior Officers without any fault on his
part. He had already made representation
to the higher authorities against the
adverse remarks and minor punishments,
but no action had been taken by the higher
authorities. According to him in some
cases the authorities did not even apply
their mind and without looking to the
correct
facts
have
rejected
the
representation, whereas some of them had
remained undecided. The appellant-writ
petitioner has been discharged from
service under the provisions of Rule 15,
Clause-(2) (g) (ii) contained in ChapterVII of the Air Force Rules 1969. It
appears that the appellant-writ petitioner
was awarded 14 days confinement to
camp on 26.7.1985, which was entered in
red ink in his conduct sheet. He was
reprimanded on 27.5.1987 and 1.11.1987.
He was again severely reprimanded on
21.1.1988 and 29.1.1988, which were
written in red ink. He was issued a
warning on 5.4.1990 informing him that
he is on the threshold of becoming a
habitual
offender
and
one
more
punishment entry (either red or black) will
result in discharge from the service. Thus,
he was warned to mend himself and act in
a manner of good order and discipline.
The appellant-writ petitioner failed to
improve
and
he
was
serverely
reprimanded
on
15.6.1991
and
on
24.9.1991, which were entered in red ink
in his conduct sheet. After giving a show
cause
notice
and
considering
his
explanation, the appellant-writ petitioner
was
discharged
from
service
on
14.11.1991 on the ground of 'Services no
longer
required
and
unsuitable
retention for Air Force'.

7. The appellant-writ petitioner
submitted before us that he was charged
falsely on all the occasions and tried
summarily in an arbitrary manner. He
ought to have been tried by Court Martial,
where he would have got opportunity to
know the charges framed against him,
entitled to cross examine witnesses and
make statement in his defence, the denial
of which had resulted in gross violation of
justice. He further submitted that he had
made representation against the adverse
entry/censure warning issued to him
which were not considered at all and even
when the application for redressal of his
grievances filed by him for disposal was
pending, a warning letter was issued to
him on 5.4.1990, which is wholly illegal
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
292
and arbitrary. He futher submitted that
rule 15 and 24 of the Air Force Rules
1969, as also the confidential policy of
Habitual Offenders Airman (Discharge)
adopted by the Indian Air Force is ultravires and arbitary. According to him the
respondent cannot discharge him from
service on the basis of some confidential
policy, which was not made known to
him. Thus, he submitted that the order of
discharge is liable to be set aside.

8. Sri S.K. Rai, learned Additional
Standing Counsel, however, submitted
that the appellant-writ petitioner had been
given entries in 'Red and Black ink' in his
conduct book and when it increased to
more than four, a warning letter was
issued to him to mend his ways. When
another red entry was given, he was
issued a show cause notice to show cause
as to why he should not be discharged to
which the appellant-writ petitioner replied
and thereafter he was discharged from
service. He further submitted that this
policy of Dishcarge of Habitual Offender
applied by the Indian Air Force, has been
subject matter of consideration before the
Hon'ble Supreme Court in the case of
Union of India and others V.Corporal
A.K. Bakshi and another reported in
A.I.R. 1996 SC-1368. The Hon'ble
Supreme Court has upheld the order of
discharge on the basis of this policy. He
further submitted that in the said policy
the basic idea in the said policy is that
recurring
nature
of
punishment
for
misconduct imposed on an air man render
him unsuitable for further retention in the
Air Force and is not by way of
punishment for which he as already been
punished. The policy cannot be said to be
ultra vires or illegal.

9. It is not in dispute that the
following entries were given to the
appellant-writ petitioner in his Conduct
Book:
Date of
Offence
Nature of
Miscconduct
Punishment
awarded

26.7.1985
(AC)

(a) Failed to carry
out the duties of
key orderly of this
squardron
properly in that he
handed over the
keys
to
an
unauthorized
person
653001
A.C.
Sharma
(Elect./Fet)
without
proper
authority on 26
July, 1985

(b) Reporting late
to wring control
Registry
for
collection/despath
of official main
pertaining to this
squadron while on
mail orderly duty

(c) While on Mail
orderly
duty,
misplaced the two
copies
of
SRO
(No. 28&29) on 30
July, 1989

14
days
Confinement
to Camp
27.5.1987
Absented himself
from duty at 7.00
hrs on 27.5.1987
and reported back
to duty at 7.00 hrs
on 28.5.1987 total
absence 23 hrs 59
mts.
(Black ink)

Reprimand
1.11.1987
Failed
to
book
Reprimand
1All] Sugreev Singh Desuriya V. The Central Government of India and others
293
in/in the Airmen
book
out/
in
Register at 2359
on 1.11.87. Till he
booked at Main
Guard
Room
at
7.30
hrs.
on
2.11.1987.
(Total
absence of 7.00
hrs. and 31 mts.)
(Blue ink)

21.1.1988
1. Disobeying the
orders of 223417 F
MWO Kalimullah
by preparing ac C1140 instead ac C1119 & C1164
2.
Used
insubordinate
language to Sqn.
Ldr. N.K. Jain, a
Superior
Officer
by saying ' I am
working for the
nation and I am
not
doing
my
personal work'
(Red ink)

Severely
Reprimanded
29.1.1988
Addressed
three
Personal
application
dated
29.1.1988,2.2.1988
directly
to
the
AOC-in -C,/AF.
2.Use
insubordinate
language
and
criticizing Superior
Officer that is WG
CDR O.P.Sharma
(Red ink)

Severely
Reprimanded

10. He was issued a warning on
5.4.1990. Thereafter, again an entry in red ink
'Severely Reprimanded' was made in his
conduct book on 15.6.1991 for an offence
committed
on
2.5.1991
and
again
on
24.9.1991 for an offence committed on
9.8.1991.

11. The policy for discharge as
reproduced by the Hon'ble Supreme
Court in the case of Union of India Vs.
A.K.Bakshi (Supra) provides that the
Airman, who meet anyone of the
following individual criteria are to be
treated
as
habitual
offenders
and
considered for discharge under Rule
15(2)(g)(ii) of the Air Force Rules 1969.

[a] Total number of punishment entries
six and above including red and black ink
entries.

[b] Four red ink punishment entries

[c] Four punishment entries (red and
black ink entries included) for repeated
commission any one specific type of
offence
such
as
disobedience,
insubordination, AWL, breaking out of
camp, offence involving alcohol, mass
indiscipline, use of abusive/ threatening
language etc.

12. The Hon'ble Supreme Court in
the case of Union of India vs. A.K.
Bakshi (supra) has upheld the order of
discharge based upon the aforesaid policy.
The Hon'ble Supreme Court has held as
follows:

"The punishments referred to in the
policy for discharge are punishments that
have been imposed for misconduct under
the releveant provisions of the Act and the
Rules. The policy for discharge envisages
that in cases where an airman has been
awarded such punishments six times, he is
to be treated as a habitual offender and
action for his discharge from service
should be taken against him under Rule
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
294
15(2)(g)(ii) of the Rules. This action for
discharge is not by way of punishment for
the misconducts for which he has already
been punished. The basic idea underiying
the policy for discharge is that recurring
nature of punishments for misconduct
imposed on an airman renders him
unsuitable for further retention in the Air
force. Suitability for retention in the Air
Force has to be determined on the basis of
record of service. The punishments that
have been imposed earlier being part of
the record of service have to be taken into
consideration for the purpose of deciding
whether such person is suitable for
retention in the Air Force. The discharge
in such circumstances is, therefore,
discharge falling under rule 15(2)(g)(ii)
and it cannot be held to be termination of
service by way of punishment for
misconduct falling under Rule 13 of the
Rules. We are, therefore, unable to agree
with the High Court that termination of
services on the basis of the policy for
discharge does not constitute discharge
under Rule 15(2)(g)(ii) but amounts to
removal for misconduct under Rule 18 of
the Rules.

It is not disputed that in both these
cases the procedure prescribed under the
policy for discharge has been followed.
The order for discharge of the respondents
thus do not suffer from any infirmity and
the Division Bench of the High Court was
in error in setting aside the said orders."

13. The appellant-writ petitioner
falls under one of the aforesaid categories.
The respondents have followed the
procedure fo giving a warning as also
issuing a show cause notice after he again
incurred a red ink entry in the conduct
book
and
after
considering
the
explanation had discharged him from
service, which cannot be said to be
contrary to the policy of discharge of
habitual offender.

14. The contention of the appellantwrit petitioner is that the aforesaid policy
is ultra-vires and illegal, cannot be
accepted, Inasmuch as he had failed to
show any illegality in the said policy. The
procedure followed for discharging of a
habitual offender is in conformity with the
principles of natural justice, equity and
fair play, as at the initial stage a warning
is issued to the person concerned to mend
the ways and thereafter a show cause
notice is also given before discharging an
air man.

15. So far as the contention that
Rule 15 of the Air Force Rules 1969 are
ultravires and illegal is concerned, we do
not find any illegality in the said Rules.

16. It may also be mentioned here
that for the minor punishment awarded to
the appellant-writ petitioner, he was given
adequate opportunity of placing his
defence and the same was in accordance
with the Rules and the Procedure
provided by the various orders. The
learned Single Judge has found that the
appellant-writ petitioner has been given
full opportunity to represent against the
award of minor punishment for his
misconduct.
Moreover
all
his
representations made against the minor
punishments have been rejected by the
authorities. Therefore, no exception can
be taken to the procedure adopted by the
respondents.

17. So far as the question as to
whether
the
appellant-writ
petitioner
ought to have been tried by a CourtMartial and not in a summary manner
1All] Sugreev Singh Desuriya V. The Central Government of India and others
295
under section 82 of the Act is concerned,
it is open to the authorities to proceed
either under section 73 or under section
82 against the appellant-writ petitioner. If
it has been proceeded under section 82 of
the Air Force Act 1950, it cannot be said
that the minor punishment awarded to the
appellant-writ
petitioner
is
without
jurisdiction.

18. In view of the foregoing
discussions, we do not find any infirmity
in the judgment and order passed by the
learned Single Judge. Both the Special
appeals fail and are dismissed.
---------