Discharge Stands On A Better Footing Than Acquittal; Delinquent Entitled To Avail Of All Benefits: Supreme Court Grants Relief To Ex- IAF Officer

The appeal before the Apex Court was filed by a septuagenarian former Indian Air Force personnel, who was dismissed from his services more than three decades back by the Central Government.

The Division Bench of Justice Dipankar Datta and Justice K.V. Viswanathan held,“True though, as per Harjeet Singh Sandhu (supra), initiation of administrative proceedings is barred when an accused is ‘acquitted’; however, we find no reason for the ratio of the decision to not apply in a case where the accused is ‘discharged’ (which stands on a better footing than acquittal, as discussed supra). Once the appellant has been discharged by the criminal court, that should mark the end of the matter.”

“Thus, the Air Force upon electing to have the alleged offence tried by the criminal court, it is clear (in view of the discussion above) that they then cannot fall back on either a court martial or any disciplinary action. Once the road is chosen, the traveller must walk it to the end”, it added.

AOR Abha R. Sharma represented the Appellant, while AOR Mukesh Kumar Maroria represented the Respondent.

Factual Background

The Appellant was commissioned in the Air Force as Pilot Officer in 1972. The incident is of the year 1987, at which time the appellant was posted as ‘Senior Operations Officer’ to 147 Squadron of the Air Force. It was alleged that an individual, employed as a driver with GREF, in an inebriated state, had caused damage to the radar and committed certain other acts of misconduct. On the night of March 29, 1987, the appellant, along with four others, took the driver away from the camp in a jeep and left him at a secluded location approximately 5 kilometres from the nearest Border Security Force post and about 30 kilometres from the Air Force camp.

Power under Section 19 of the Air Force Act, 1950, read with Rule 16 of the Air Force Rules, 1969, was exercised by the Government owing to the appellant having used criminal force against a junior officer and leaving him in a desolate place in the night, from where his mortal remains were later found. A Single Judge of the Delhi High Court set aside the dismissal on the ground that the administrative act of dismissal was barred by the three-year limitation period, envisaged in Section 121 of the AF Act. An intra-court appeal was preferred by the Government and its officers, and vide the impugned judgment, the Division Bench reversed the judgment holding that the bar of limitation did not apply. Consequently, the order of dismissal was restored, giving rise to the Civil Appeal in question.

Reasoning

The Bench noted the fact that an FIR was lodged by GREF personnel against the appellant and others. Simultaneously, a Court of Inquiry was instituted. Nearly two years later, “disciplinary proceedings” were initiated against the appellant; however, in the same month, the Air Force abandoned such proceedings by exercising its powers under Section 12414 of the AF Act, opting instead to have the appellant tried by a criminal court rather than by a Court Martial. Despite the appellant having been set free (not acquitted, but discharged) by a criminal court, the Air Force initiated disciplinary action against the appellant.

The Bench explained that discharge is a pre-trial termination of proceedings for lack of evidence, whereas acquittal is a post-trial outcome declaring the accused either innocent due to lack of credible material or on account of the grant of the benefit of doubt. “Once an accused has been discharged, he is entitled to avail of all benefits that are otherwise available to an acquitted person and cannot be placed in a less advantageous position. We are left surprised at the understanding of the officer who prepared the proceeding note”, it added.

The Bench was of the view that the Air Force, upon electing to have the alleged offence tried by the criminal court, could not fall back on either a court martial or any disciplinary action.The Bench thus held that the initiation of administrative proceedings for disciplinary action against the appellant was bad in law and non-est.

Coming to the facts of the case, the Bench noted that the appellant was punished for relocating the driver to desolate surroundings. This, according to the Bench, he did while acting on the instructions of his superior. There was no definite material to suggest that such relocation was made by the appellant with any motive of harming him and it was revealed from the records that to keep the driver away from the next day’s anticipated visit of the AOC-i-C (so that the driver does not create any ruckus) was the real object intended to be achieved.

The Bench also noticed that the Wg. Cmdr. had given specific instructions, which later were even viewed as encouraging his subordinates to suppress the truth. “Possibly, the appellant had no other option but to obey the orders of his superior. Non-consideration of these circumstances in course of the decision-making process being writ large together with the absence of reasoning in the order punishing the appellant, renders the same arbitrary and unsustainable in law sufficient to vitiate the entire proceedings against the appellant”, it held.

Thus, setting aside the order of dismissal from service, the Bench held the appellant entitled to arrears of salary and allowances to the extent of 50% from September 23, 1993 till the scheduled date of his retirement from service, notional promotion and pensionary benefits. Allowing the appeal, the Bench ordered, “Irrespective of service benefits, restoration of honour remains the foremost concern of a defence personnel. We restore it with the direction that on a date to be fixed by the Chief of Air Staff, the appellant shall be signed off in the normal manner he would have otherwise been entitled to, but for the order of dismissal.”

Cause Title: Ex. Sqn. Ldr. R. Sood v. Union of India (Neutral Citation: 2026 INSC 366)

Click here to read/download Judgment