Discharge From Air Force On Grounds Of cumulative Unsuitability; Not A Punishment: Gauhati HC
A Division Bench of the Gauhati High Court comprising Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury held that discharge of an airman under Rule 15(2)(g)(ii) of the Air Force Rules, 1969, based on cumulative red-ink entries reflecting unsuitability for service does not amount to punishment.
Background Facts
The petitioner joined the Indian Air Force as a trainee on 28th December 2011. He received four Red-Ink Entries against his name during his service. The first was awarded on 4th November 2016, then second on 24th May 2017 and a third on 20th August 2018. The authorities had proposed promoting him to the rank of Corporal on 1st July 2018, however this was kept on hold due to a pending departmental inquiry against him.
On 19th August 2018, he was assigned to Quick Reaction Team duty, but he was found severely intoxicated at the Air Force Dhaba located in the domestic area. He was awarded a fourth Red-Ink Entry on the same day for this misconduct. Subsequently, he was tried under the Air Force Act, 1950. He was awarded 7 days detention.
A show cause notice was issued to him under the Air Force Rules, 1969. It was asked that why he should not be discharged from service where he replied that he was innocent airman and was not aware of the consequences of the outcomes of those charges. Further he requested sympathetic consideration so that he could continue serving with full motivation.
Further, he filed revision applications against the detention award and the Red-Ink Entries but those were rejected. Later the petitioner was discharged from the service in the Indian Air Force. Aggrieved by this, the petitioner approached the Armed Forces Tribunal. The Tribunal rejected his Original Application.
Aggrieved by the rejection order, he filed the writ petition before the Gauhati High Court.
It was argued by the petitioner that discharging the petitioner from service amounted to imposing a punishment, and such punishment could not be inflicted in the manner it had been done. He contended that while passing the discharge order, the grounds raised by the petitioner in his reply to the show cause notice were not dealt with. He further submitted that the discharge order acknowledged the petitioner's good character, exceptional proficiency and general ability in trade. Therefore, awarding the extreme punishment of discharge from service was completely disproportionate.
On the other hand, it was argued by the UOI that the discharge order could not be termed as punishment. It was submitted that the discharge was ordered on the ground of unsuitability. It was further submitted that the certification of good character, exceptional proficiency and general ability in trade was recorded for the reason that the discharge was not a punishment, so that the petitioner may get future engagement elsewhere.
Findings of the Court
It was observed by the Division Bench that the power of discharge under the Air Force Rules, 1969 is different from imposing punishment under disciplinary provisions. The purpose of such discharge is to enable the competent authority to discontinue the service of an airman whose overall record renders him unsuitable for further retention in the force.
It was noted that the petitioner had accumulated four Red-Ink Entries, where the last one involved a serious act of indiscipline where he was found intoxicated while detailed for operational duty with a Quick Reaction Team.
It was held by the Division Bench that the Armed Forces operate under a strict disciplinary regime, and repeated misconduct of this nature can lead to a conclusion that the individual is unfit for continued service. It was further observed that the issuance of a show cause notice and the opportunity afforded to the petitioner to submit his reply demonstrated that the requirements of fairness had been duly observed.
It was further observed that the certification of good character in the discharge order, exceptional proficiency and general ability in the trade did not render the decision inconsistent or arbitrary. Such remarks are ordinarily recorded to indicate that the discharge is not by way of stigma or punishment, but is based on an assessment of overall suitability. Further such certification would ensure that the discharged individual is not prejudiced in seeking employment elsewhere.
With the aforesaid observations, the Tribunal's order was upheld by the Division Bench. Consequently the petition filed by the discharged petitioner was dismissed by the Division Bench.
Case Name : Dwipjyoti Talukdar Vs. The Union of India and Ors.
Case No. : WP(C)/4008/2023
Counsel for the Petitioner : S Banik, D. Borah
Counsel for the Respondents : DY.S.G.I., S K Medhi