Air Officer Commanding-in-Chief vs CPL Baliya SP

Umesh Chandra Banerjee, CJ

By the reason of the involvement of some serious questions, wherein one personnel of the disciplined force is involved, this Court thought it fit to dispose of the appeal from an Interlocutory order along with the writ petition.

It is however placed on record that in the normal circumstances this Court does not deem it fit and expedient to entertain an appeal from an Interlocutory order, but by reason of the factum of involvement of the issue as above this Court deemed it expedient to dispose both matters together.

The records depict that out of twenty (20) HPT-32 aircraft* on strength, fifteen (15) were offered for flying on 25-3-1994. The records further depict that in addition to the" strength of fifteen, one additional aircraft was inducted from R & SS directly. It appears further tliat of the sixteen (16) aircrafts at about 0600 hours on 25-3-1994 in fourteen (14) HPT-32 aircrafts snags started appearing and all the fourteen (14) snags appeared from FFS onwards and by the end of shift ''A'' i.e., 1330 hours, excepting the one inducted directly from R & SS, all the fifteen were identified to have various types of snags. Subsequently it was discovered that one could be rectified without much of a problem and as such fourteen (14) aircrafts are damaged on these two days i.e., 25th and 26th March, 1994. To assess, however, the situation and to ascertain the involvement in the matter Courts of Inquiry were formed and the matters were enquired into and the petitioner was charged with a deliberate act of causing damage to the training aircrafts. On the factual score it further appears that Show Cause Notices were issued together with the order of suspension and it is at this juncture, however, the judicial proceedings started. In one such matter, the learned single Judge observed:

" .....T, therefore, deem it fit to set aside the impugned order and permit the petitioner to give explanation to the show-cause notice within one month from the date of receipt of a copy of this order. On receipt of sucti an explanation, the respondents shall give an opportunity of being heard to the petitioner and pass a fresh order within one month from the date of receipt of the representation regarding the punishment that is required in respect of the misconduct. In case the punislintent happens to be different from the termination of service, the respondent shall also regularise his absence from the date of dismissal till the date of reinstatement"

It is pertinent to note that in the normal course of events law Courts would be rather slow to interfere in matters as disciplined forces, since judicial interference may at times erode the sense of values in the disciplined force resulting in the discipline of the forces being whittled down which cannot be ascribed to be a desirable event in our disciplined Air Force unless, of course, the act or acts of the concerned authority amount to a miscarriage of justice.

The contextual facts depict that there were in fact admitted damages to fourteen (14) of the aircraft kept reserve for training of such disciplined forces. The records depict that after the order, as noted above as passed by the learned single Judge, there \\vas an order directing the writ petitioner to join the services once again and he has in fact joined duty. Subsequently, however, in terms of the direction as contained in the order as above, steps were taken, inquiries were held, parties were given an opportunity and matters have been dealt with in great length, and eventually the concerned authority came to the conclusion that the writ petitioner should be dismissed from service. It is again this order which is being challenged before a learned single Judge in a further writ proceeding, in which the leaned single Judge thought it fit to direct an order of status quo, obviously meaning thereby not to implement the order of dismissal and the petitioner is continuing in service by reason of the order of slants quo as passed by the learned single Judge. It is against this order of status quo, the learned advocate appearing for the appellant submitted that it is to the grave prejudice of the Air Force Services that this order has been passed and it would be a near impossibility for the disciplined forces to maintain disciphne. The learned advocate contended that admittedly these damages have been caused to the aircrafts by reason of the deliberate acts on the part of the petitioner as would appear from detailed admissions, as recorded by the petitioner and question of there being any other punishment apart from an order of dismissal does not and cannot arise. The admissions taken recourse to by the appellant reads:

".....I wish to confess and speak the truth. I also make a plea for forgiveness. There is no one else involved in all these incidents. I alone broke all the wires. I have named all the other people earlier because I thought that by involving more people who rightfully will say no to the incidents, I am likely to be saved."

It is this admission or confession on which very strong reliance has been placed by the learned advocate appearing for the appellant. Without, however, going into the issue of admission at all, the fact remains that the petitioner is a member of the disciplined force, and to what extent judicial rcvicwability is available to the petitioner is the question involved in the matter. Is it for every act of assumed high-handedness that the law Courts should interfere? In our view, answer cannot but be in the negative. Judicial reviewability in matters like this is very restricted. Lord Brightman in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at p. 154. observed:

"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

In the same case Lord Hailsham stated:

"....It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Courts as the bodies making the decisions. It is intended to see that there the relevant authorities are within their powers in a proper manner."

The English Courts have been consistent in their approach to the problem that judicial review is protection and not a weapon. It is not concerned with the merits of a decision but the manner in which the decision was taken and it is thus different from an appeal.

In one of the recent decisions Tata Cellular Vs. Union of India, , the Supreme Court in paragraph 93 of the judgment observed:

"93. The duty of the Court is to confine itsrlf to the question of legality. Its concern should be:

Whether a decision-making authority exceeded its powers?

Committed an error of law.

Committed a breach of the rules of natural justice.

Reached a decision which no reasonable Tribunal would have reached, or

Abused its powers."

Involvement of a disciplined force as a matter of fact is a fact which has not been taken note of by the learned single Judges who have dealt with with the matters at earlier stages. Judicial review is strictly restricted,, and limited and it is only in the event of there being an abuse of process of law, judicial review can be had but not otherwise, There ought to be some amount of laxity to be given for proper maintenance and discipline and decorum in disciplined forces, and law Courts would not be able to otherwise to imbibe a sense of discipline in the personnel of the disciplined forces.

Turning attention on to the contextual facts and events, not placing any reliance thereon, let us now appreciate as to what extent the order permitting the concerned authority to take steps as it is said to have been taken justifiable. The learned single Judge, as noticed above, did permit the respondents to proceed with the matter of inquiry upon receipt of reply to the show cause notice. It is not that the termination of service was not even in the mind of the learned single Judge. That was very much under consideration so far as the learned single Judge is concerned, since the learned single Judge himself records "that in case the punishment happens to be different from termination of service". That is an indication as to the frame of the mind at the time of delivery of judgment so far as learned single Judge is concerned. The learned single Judge, as a matter of fact, did not rule out the possibility of termination of service. The learned single Judge has granted an express liberty to the respondents to pass a fresh order within a month from the receipt of the representation regarding punishment that is required in respect of the misconduct. Admittedly, mere is no appeal against this order and the learned single Judge permitted fullest liberty to proceed in accordance with the discipline of the forces and whatever is required to be done in accordance with the rules of the disciplined forces, the same ought to be done. Tliat is what the order of the learned single Judge records in no uncertain terms and the order has been very candid, clear and unambiguous to that extent. It is this requirement in respect of the misconduct which the respondent-authority thought it fit to enquire, culminating in the order of termination of service. Can the Court interfere and record a finding that the same is not required in respect of the misconduct? The answer to this again cannot but be in the negative. The Court cannot replace its view in respect of the misconduct and the punishment to be ascribed thereon, specially when the involvement of a disciplined force is concerned. The regularisation of absence, as spoken to by the learned single Judge, is only in the event the punishment is otherwise than termination. But the respondent-authority thought it fit to terminate his services, as such question of further regularisation does not and cannot arise.

We do not think it fit, therefore, to interfere and intervene or permit judicial reviewability in regard to an action as the present one, that is to say termination of service from the disciplined force, so far as the petitioner is concerned. The writ petition, therefore, is dismissed. Question of continuing with the appeal on the wake of dismissal of the writ petition does not arise.

The appeal, therefore, also stands dismissed accordingly. No order as to costs.