1 S.B.CIVIL WRIT PETITION NO. 3884/1997 Gulshan Raj Verma Vs. Union of India & Ors. Date of Order :: 09.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr S.K. Nanda, for the petitioner/s. Mr V.K. Mathur, for the respondents. ... The facts of the case are that the petitioner was enrolled in trade of Police with Indian Air Force on 7.10.1987. By a notice dated 9.11.1995 he was instructed to show cause as to why he be not discharged from services under Rule 15 (2)(g)(ii) of Air Force Rules, 1969 as per the procedure prescribed under the Airman Habitual Offenders Notification dated 14.8.1984. An explanation was submitted by the petitioner giving all necessary details relating to minor punishments on which the proposed discharge was founded. A Commanding Officer No.2212 Squadron Air Force c/o Air Force Station, Jaisalmer called on the petitioner on 17.10.1996 and issued with a clearance certificate in five copies with instruction to clear the stand w.e.f. 21.10.1996 (a.f.). A discharge certificate subsequent thereto was issued in the month of December 1996. Being aggrieved by the discharge in the manner aforesaid the petitioner preferred this petition for writ before this Court. By an order dated 27.8.1999 this Court directed the respondents to produce a copy of the discharge order and also record of the 2 competent authority satisfying itself regarding discharge of the petitioner from Air Force. The direction aforesaid was reiterated on 9.7.2008. The respondents in pursuant to the order aforesaid have produced a copy of the discharge order dated 26.9.1996 and also relevant portion of notings resulting into approval for discharge of the petitioner. After going through the documents aforesaid the contention of learned counsel for the petitioner is that the competent authority before accepting recommendation for discharging the petitioner did not apply its mind, as such, failed to act as per the Rule 15 (2)(g)(ii) of the Rules of 1969 and that make the impugned discharge bad. To substantiate the contention a reliance is placed upon Division Bench judgment of this Court in Union of India Vs. Tulsi Das reported in WLC (Raj) 1999(3) 1. wherein while considering a similar issue Court held as under: “Even reading of these two pages clearly shows that the Approving Authority has simply stated that para 5 is approved. Under the circumstances, it is difficult to accept the case of the appellants that the reply given by the respondent to the show cause notice was considered before passing the impugned order of discharge. The original files were not produced before the learned Single Judge. By annex. R/4 itself as produced in this appeal containing two pages, it is not 3 possible for us to accept the case of the appellants that the reply given by the respondent to the show cause notice was considered and that the impugned order was supported by reasons. The argument of the learned counsel for the appellants is that the order of discharge need not contain reasons by itself if it is otherwise shown that the reasons are found in the file supporting the order and that no prejudice was shown to have been caused to the respondent in passing the order of discharge when it was passed after considering the reply; according to him, in this view, there was no violation of the principles of nature justice in passing the impugned order of discharge. We do not accept this argument. The show cause notice, as already stated above, intended to given an opportunity to the respondent to explain his defence before passing the order of discharge; non-consideration of the reply given by the respondent to the show cause notice, in our view, has seriously prejudiced the case of the respondent and the impugned order of discharge was clearly in violation of the principles of natural justice. On this ground, the impugned order of discharge cannot be sustained. ” It is stated by counsel for the respondents that the approval to discharge the petitioner was granted by the competent authority by due application of mind after considering the notings made by other officers. 4 In the instant matter from examination of record it reveals that at the first instance the Directorate of Personnel Services made certain notings and also provided details regarding minor misconduct of the petitioner on basis of discharge of the petitioner was sought. The matter thereafter was recommended for approval of Air Officer Incharge Personnel, who is the authority competent to discharge the petitioner and presently respondent No.2 to the writ proceedings. The respondent No.2 simply mentioned on 6.9.1996 that, “Para 5 approved”. In pursuant to the approval granted in the fashion above the petitioner was discharged by the respondents under an order dated 26.9.1996, copy of that too is supplied to him through his counsel today only. From narration of the facts stated above it is apparent that while considering the recommendation made by the Directorate of Personnel Services the Air Officer Incharge Personnel has not applied his mind and he just in a mechanical manner acted upon recommendations. It is pertinent to note that a notice to show cause was given to the petitioner as to why he be not discharged from services as per the provisions of Rule 15 (2)(g) (ii) of the Rules of 1969 and the petitioner explained his version to the competent authority under communication dated 4.12.1995. The competent authority was required to consider the explanation submitted by the petitioner and further to apply his mind before granting approval for discharge of the petitioner. A discharge made in mechanical manner is highly unjust and arbitrary. The Division Bench in the case of Union of 5 India Vs. Tulsi Das (supra) in quite unambiguous terms held that such discharge in mechanical manner is not permissible, and therefore, in view of whatever discussed above I am inclined to accept this petition for writ. The issue now deserves consideration is about relief for which the petitioner is entitled. In normal course matter requires remission to the competent authority for reconsideration of entire matter, however, that shall not be appropriate in present case in view of the fact that the petitioner is out of force since October 1996 and he has already completed his term of engagement on 6.10.2007, thus, while accepting this petition for writ the order of discharge dated 26.9.1996 passed in pursuant to the directions given by the competent authority is declared bad, and therefore, is quashed. All consequential orders discharging the petitioner from Indian Air Force also stands quashed. In view of the fact that the petitioner has already completed his term of engagement on 6.10.2007, therefore, the respondents are directed to treat him in service till then and treat him retired from services subsequent thereto. The petitioner shall be entitled for all consequential benefits except the back wages for the term he remained out of employment. (GOVIND MATHUR), J. Jgoyal '