Full Judgment Text
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CASE NO.:
Appeal (civil) 402-403 of 2004
PETITIONER:
Union of India & Ors
RESPONDENT:
Flight Cadet Ashish Rai
DATE OF JUDGMENT: 18/01/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Union of India and its functionaries calls in question
legality of the judgment rendered by a Division Bench of the
Allahabad High Court holding that the learned Single Judge
was right in quashing the orders dated 16.6.2000 and
27.6.2000, and further directing appellants to allow the
respondent to complete training from the stage he had left and
to act in terms of the instructions of the Headquarters, Indian
Air Force as regards re-testing.
Factual background in a nutshell as highlighted by the
appellants is as follows:-
The respondent was selected as a Flight Cadet to undergo
training to become a pilot in the Indian Air Force (in short ’Air
Force’). The concerned course for being commissioned as pilot
officer was course no. 157 which covered a period of 72 weeks.
It commenced on 5.2.1995. During training the respondent
complained of knee injury which was sustained prior to
training on 28.12.1994 due to a road accident. Since he
remained absent during the course, it was felt that he could
not be continued in the pilot course, flying training was
terminated and he was given option of joining Ab-initio
Navigator’s course which the respondent accepted and joined
in January 1998. The course was 86 Ab-initio Navigator’s
course. In November 1998, he was found to be lagging behind
in the studies and the training was terminated. Further
option was given to join Ground Duty Officer’s course which
the respondent opted to join and, in fact, in July 1999 joined
as a trainee in the Administrative branch which was to be held
at Air Force Academy in Ground Duty Officer’s Course No.
106. During such training the authorities came to know
various acts of misconduct on the part of the respondent. A
Court of Inquiry was conducted where the respondent
admitted the aberrations. A warning was given in November
1999. As he failed in three academic subjects, a Training
Review Board was formed and its opinion was forwarded to the
Headquarter for processing with the Central Government. He
was suspended from training on 1.2.2000 which in Air Force
terminology is called "Struck Off Ration Strength". He was
"routed home" pending final approval. Respondent filed a writ
petition on 1.2.2000 before the Allahabad High Court
challenging suspension of training where interim order was
passed allowing the respondent to continue training. The
respondent was directed to resume duty on 11.3.2000
whereas he actually reported for duty on 13.3.2000. On
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11.3.2000 he was again involved in drunken brawl outside the
Academy and was arrested and sent to policy custody. On
22.3.2000 the case was compounded by a Magistrate. On
2.4.2000 the Duty Officer of the Air Force Academy visited the
trainees’ mess and found the respondent smelling of liquor.
On 12/13.5.2000 the respondent in a drunken condition
physically assaulted co-trainees, used abusive language and
terrorized a large number of trainees by his violent behavior.
On 12.6.2000 he was involved in another criminal case in
having misused credit card of the other Cadets. First
information report was lodged, cognizance was taken and
warrants were issued. Since he failed in final examination he
was assessed to be unsuitable for further training by the
Review Board on 29.5.2000 and on 14.6.2000 his training was
terminated because of his failure in academics and for
maintaining low standard of discipline. The report was
forwarded to the Air Force Headquarters, he was "routed
home" and order of termination of Cadetship was passed.
Another writ petition was filed before the High Court
challenging termination of training. Both the writ petitions
were heard together and by order dated 25.5.2001 the learned
Single Judge allowed both the writ petitions and quashed the
orders dated 16.6.2000 and 27.6.2000. Writ appeals filed by
the present appellants were dismissed with the directions as
afore-noted. Learned Single Judge has directed that the
respondent be commissioned. By order dated 16.1.2003 the
judgment was stayed.
Learned Counsel for the appellants submitted that the
High Court has not noticed the relevant instructions and has
erroneously held that the procedure adopted by the authorities
was not proper. The learned Single Judge held that the
respondent like other co-examinees was entitled to grace
marks. It was further noted by the learned Single Judge and
the Division Bench that the benefit was not given to the
appellant. It was pointed out that there was no malafide
involved. There is no question of any design to deny benefits
as observed by learned Single Judge. In fact, with a view not to
jeopardize the career of a cadet various options were given
and, he was given different options at different point of time
taking into account his physical health.
Learned counsel for the respondent submitted that High
Court has taken note of legitimate expectations. The state of
mind of a young person with high hopes for serving the
country has been duly considered. There was no inquiry
conducted regarding various allegations and, in fact, after the
first instance of so-called blemish the authorities had
condoned the lapses and had closed the matter.
There should be judicial restraint while making judicial
review in administrative matters. Where irrelevant aspects
have been eschewed from consideration and no relevant aspect
has been ignored and the administrative decisions have nexus
with the facts on record, there is no scope for interference.
The duty of the court is (a) to confine itself to the question of
legality; (b) to decide whether the decision making authority
exceeded its powers (c) committed an error of law (d)
committed breach of the rules of natural justice and (e)
reached a decision which no reasonable Tribunal would have
reached or (f) abused its powers. Administrative action is
subject to control by judicial review in the following manner:
(i) Illegality: This means the decision-maker must
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understand correctly the law that regulates his
decision-making power and must give effect to
it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
In the instant case the High Court seems to have ignored
the relevant aspects and emphasized on irrelevant issues.
There were Review Boards on three occasions at Air Force
academy where the relevant factors regarding the academic
performance of the respondent as well as the disciplinary
cases were considered and termination of training was
recommended. The training termination proceedings were
forwarded to the Air Headquarters as well as the Government
of India which duly approved the same. That itself shows that
there was no mala-fides involved.
The learned Single Judge has clearly erred in holding
that the authorities were showing repugnance to the order of
the High Court and there was design to deny the
commissioning to the respondent as he had challenged
authorities of the Air Force. This conclusion is clearly without
any supportable material. The power of punishment is
contained in paragraph 3 of order no.46/98 dated 13.3.1998
which deals with disciplinary proceedings of the Cadet. The
extent of exercise of power by various authorities is delineated
in these instructions.
Air Force Order (AFO) No.79/73 issued by the Chief of
the Air Force Staff prescribes the procedure to deal with the
Cadets found/assessed unsuitable. Some of the relevant paras
need to be noted.
Paras 11, 12 and 15 of the AFO provide that a Cadet can
be unsuitable at any of the grounds namely, Indiscipline,
Medically Unfit or Lack of Officer Like Quality.
Para 18(a) further that failure in Final Exams is also a
ground for holding the cadet unsuitable and the training of an
unsuitable. Cadet can be suspended or terminated.
Para 19 of the AFO provides that before passing an
adverse order every time a Training Review Board consisting of
four members shall be constituted and the TRB will give
opportunity to the Cadet, will record statements and will
propose an action to be taken against the Cadet.
Para 22 of the AFO provides that the Training Review
Board (TRB) will also examine the past conduct, reasonable
likelihood to achieve required standards and Basic Officer like
qualities before making its recommendations.
Training Command Air Staff Instructions (in short TCASI)
deals with the procedure to be followed for periodic
assessment.
Para 11 of the TCASI Provides that the assessment shall
be made on the basis of marks of the Examination and on the
basis of assessing the Officer like Qualities (OLQ) in the cadet.
The cadet is required to pass such and every paper with
minimum 50% marks, and any lesser marks shall be assessed
as ’Failed’.
Para 16 provides that failed Cadets shall be treated in
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accordance with procedure provided in AFO 79 of 1973 as
amended by AFO 24 of 1976 dated 8.5.1976.
As is clearly evident from above, training of failed cadets
can be terminated. The learned Single Judge referred to the
instruction as quoted above. In instruction AFO 79/73 as
amended it is provided inter alia as follows:-
"12 Term "termination of training" means the
final elimination of a trainee from the training
which he is undergoing, whether or not he is
thereafter allowed to be trained for the duties
of some other branch of Service."
The question of allotment of grace marks is also governed
by the instructions and clearly the respondent was not entitled
to grace marks. The warning letters issued to the respondent
show that he had failed to secure the requisite pass
percentage and he was advised guidance and additional
coaching. In the final examinations he had failed in two
various subjects. In the confidential recommendation of the
latter Training Review Board dated 29.5.2000 various acts of
misconduct were noticed and that is why it was recommended
that his training be terminated. Though the learned counsel
for the respondents submitted that the respondent was not
given adequate opportunity to defend him, from the copies of
the proceedings which were filed, we find the plea to be
without substance. Opportunity for cross-examination while
making submissions affirmative statements was given.
Several Training Review Boards were held to look into the
questions of indiscipline and the failure in academics. This
amply proves that adequate opportunity was granted to the
respondent to explain his position. The High Court did not
keep in view the principles governing judicial review and acted
on surmises and conjectures, and quashed the orders passed
by the authorities.
The judgment of the Division Bench affirming that of the
learned Single Judge is clearly unsustainable and is quashed.
Appeal is allowed but in the circumstances without any
order as to costs.