D.D. Sinha, J.@mdashHeard the petitioner in person and Shri Sajjad Hussain, learned Counsel for the respondents. We have also sought assistance of Shri P. C. Grover, Wing Commander for the purpose of ascertaining procedural formalities involved in the matter of Court enquiry.
2. The petition is directed against the order dated 16-2-1994 passed by the respondent No. 1 Under Secretary to the Government of India whereby petitioner was compulsorily retired from the service. In order to adjudicate upon the controversy in question, we feel it necessary to consider few material relevant facts giving rise to passing of the impugned order by the respondent No. 1.
3. The petitioner was appointed to the permanent Commission as a Pilot Officer in the Logistics Branch of Indian Air Force on 14-7-1973. Prior to his posting at Nagpur, the petitioner was at Trivendrum since 28-10-1987. During tenure of his service in the Indian Air Force, the petitioner was posted at Leh in Laddakh, Nal in Rajasthan and few other places. The petitioner was finally transferred to Nagpur vide order dated 17-11-1990.
4. The petitioner was married to Mrs. Roopa Malhotra on 19-10-1973 as per Hindu rites. The marriage was also registered with the Registrar of Marriage on 5-9-1974. The couple was living happily for more than seventeen years. On 21-3-1992, Mrs. Roopa Malhotra lodged a complaint with the then Chief of the Air Staff against misdeeds of the petitioner and prayed for maintenance as well as appropriate action against the petitioner. In the said complaint, Mrs. Roopa Malhotra (complainant) stated that in the year 1990, she came to know that the petitioner had developed illicit relations with one Miss Anna Suja John when he was posted at Trivendrum. She strongly objected to their illicit relations and on account of that, the petitioner started torturing her brutally. The petitioner was posted at Nagpur on 12-11-1990. The complainant also came to Nagpur from Ambala and started residing with the petitioner at Nagpur. Since 1991, petitioner started asking complainant for mutual divorce. However, she did not agree for the same. The petitioner started beating her brutally and torturing her mercilessly on account of the other woman Miss Anna Suja John. It was further stated in the complaint that in the year 1991 itself, Miss Anna Suja John came to Nagpur and started staying with the petitioner and complainant Mrs. Roopa Malhotra at their residence at Nagpur. The complainant strongly objected in this regard and requested the petitioner not to have any relations with Miss Anna Suja John and tell her to leave Nagpur. When complainant could not bear the torture, she sought an interview with the then Air Marshal I. G. Krishna, PVSM, AVSM, VSM, AOC-in-C, HQ Maintenance Command, Indian Air Force and narrated her plight to him. The complaint further reveals that younger brother of the petitioner came to Nagpur and told the complainant that if she files a complaint against her husband, his career would be spoiled. He also promised that the second wife, namely, Miss Anna Suja John would go back to Kerala. However, it was noticed by the complainant that the situation did not improve and petitioner continued his illicit relations with other woman Miss Anna Suja John. The complainant had gone to Kanpur where she saw Miss Anna Suja John with her child residing in the parental house of the petitioner at Kanpur. At that time, she realised that she had been cheated by the petitioner as well as his brother. The petitioner abused the complainant in front of Miss Anna Suja John in filthy language. When they were at Kanpur, petitioner and Miss Anna Suja John used to sleep in one room and complainant Mrs. Roopa Malhotra was asked to sleep in other room. It was here at Kanpur, the petitioner told the complainant that he and Miss Anna Suja John are married. While they were at Kanpur, petitioner and Miss Anna Suja John were behaving as husband and wife and going to hotels and various other places together. The complaint further reveals that the same thing continued at Nagpur. The complainant tried her best to keep her nineteen years'' old marriage intact. However, it became impossible for the complainant to survive in that situation. The petitioner stopped providing her basic amenities, which are necessary for survival of an individual. It is also stated in the complaint that the petitioner in spite of being allotted official residence in Vayu Sena Nagar, Nagpur started residing in the rented accommodation in the city of Nagpur along with Miss Anna Suja John as husband and wife. The physical and mental torture was also increased alarmingly and life of the complainant became hell and, therefore, she was constrained to file the above referred complaint.
5. On the basis of the said complaint, on or about 8-4-1992, the Court of Enquiry was initiated against the petitioner by the concerned Authority. During pendency of the enquiry, a detailed statement of complainant Mrs. Roopa Malhotra was recorded by the Enquiry Officer in which she has given minute details and sequence of events and under what circumstances she was constrained to file the above referred complaint dated 21-3-1992 to the Chief of Air Staff. The Enquiry Officer also examined Shri V. K. Graver, Wing Commander as an independent witness, who was also asked to conduct investigation regarding allegations made by complainant Mrs. Roopa Malhotra against the petitioner. The report in this regard was submitted by Shri Grover. The petitioner had also taken part in the Court of Enquiry.
6. After conclusion of the Court of Enquiry by respondent No. 3 on 22-5-1993, entire material along with reports was forwarded to the Chief of the Air Staff and after considering these reports, Chief of the Air Staff was of the opinion that trial of the Officer by the Court Martial is inexpedient, but retention of such Officer in service is undesirable and, therefore, petitioner was issued show-cause notice dated 10-9-1992 by which petitioner was called upon to show cause as to why he should not be dismissed/removed from service u/s 19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules, 1969. The charges levelled in the show-cause notice against the petitioner on the basis of which proposed action was contemplated are :
(i) illicit relations of petitioner with Miss Anna Suja John and ill-treatment meted out and criminal force used by the petitioner to complainant Mrs. Roopa Malhotra as per complaint dated 21-3-1992;
(ii) the petitioner had contracted plural marriage with Miss Anna Suja John, which is contrary to para 578 of the Regulations for the Air Force (Revised Edition), 1964 as well as a child was born out of the said illegal wedlock;
(iii) though petitioner was posted at Nagpur with effect from 12-11-1990 and allotted an official accommodation at House No. 95/2, instead of staying with the family in the said accommodation, the petitioner had taken on rent of rupees two thousand one hundred per month a house ''Ram Raksha'', N-5, Laxmi Nagar, Nagpur and was staying with said Miss Anna Suja John as husband and wife;
(iv) when petitioner''s legally wedded wife Mrs. Roopa Malhotra objected to his behavior, petitioner used criminal force on her by slapping, kicking and beating her on numerous occasions. The petitioner had also demanded mutual divorce and on refusal by her to agree to the same, petitioner physically and mentally tortured her, deprived her of basic amenities and refused to give her sufficient subsistence allowance for her survival and the behavior and conduct of the petitioner was most unbecoming of an Air Force Officer.
7. The petitioner submitted representation dated 10-11-1992 by way of reply and requested to place the show-cause notice in abeyance in view of Clause 578(g) of the Regulations of Air Force (Revised Edition), 1964 as well as for grant of time to file reply upto 21-11-1992. Similarly, petitioner instead of submitting his proper reply to the above referred show-cause notice to the Authorities vide letter dated 22-12-1992 accused the then Air Chief Marshal Shri N. C. Nuri as instrumental for issuing the show-cause notice dated 10-9-1992. In the said communication, the petitioner also informed that Mrs. Roopa Malhotra alias Ruby Basu filed written statement on 1-10-1992 in Regular Civil Suit No. 887/1992 and xerox copy of her written statement was annexed in his earlier representation/letter dated 10-11-1992. It is also stated in the said letter that in view of statement of Mrs. Roopa Malhotra, the petitioner should not be asked to submit his explanation. Reference is made by the petitioner to Rule 16(4) of the Air Force Rules, 1969. The above referred letter dated 22-12-1992 is totally silent in regard to name of the person, who filed Regular Civil Suit No. 887/1992, against whom the suit was filed, purpose for which the suit was filed and reliefs sought in the suit. The petitioner had only made a reference to the written statement filed by Mrs. Roopa Malhotra in the said civil suit and a copy of the same was sent by the petitioner along with his letter dated 10-11-1992.
8. It is not disputed that the petitioner for the first time, informed the Authorities about pendency of Regular Civil Suit No. 887/1992 filed by him against complainant Mrs. Roopa Malhotra by his letter dated 23-4-1992 wherein petitioner stated that he had instituted Regular Civil Suit No. 887/1992 for permanent injunction against Mrs. Roopa Malhotra wherein injunction is sought to restrain her from residing in the present accommodation allotted to him by the Department.
9. It appears that reference note dated 12-4-1993 by Shri S. S. Saxena, the then Group Captain, which is annexed with the petition as Annexure VII, was prepared on the basis of investigation carried out in relations to the allegations made by Mrs. Roopa Malhotra vide her complaint dated 21-3-1992 as well as on the basis of proceedings conducted during Court of Enquiry and also on the basis of due consideration of the Chief of Air Staff, who opined that trial of the Officer by the Court Martial is inexpedient as well as impracticable, however, future retention of petitioner in service is undesirable. Therefore, as per directions of the Chief of the Air Staff, show-cause notice dated 10-9-1992 was issued to the petitioner as to why he should not be dismissed/removed from service under the provisions of section 19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules, 1969 for the acts of gross misconduct on the part of the petitioner. The Group Captain had also considered the replies dated 10-11-1992 and 22-12-1992 submitted by the petitioner. On the basis of the above referred facts and circumstances, it was considered that there is unimpeachable and irrefutable evidence available in the Court of Enquiry that the petitioner is guilty of entering into illicit relations with Miss Anna Suja John. The petitioner is also guilty of a most disgraceful conduct of sleeping with Miss Anna Suja John in the presence of his legally wedded wife Mrs. Roopa Malhotra. When Mrs. Roopa Malhotra protested to such a reprehensible and disgraceful misconduct on the part of the petitioner, he used criminal force and even beat her on several occasions and such beating became regular affairs. The petitioner, rented a separate house at Laxmi Nagar and started living there with Miss Anna Suja John. Similarly, there was also sufficient evidence available to prove that the petitioner and Miss Anna Suja John were living at Laxmi Nagar and they posed and behaved as husband and wife in the society. As such, petitioner being married and living in sin with another woman in an Air Force Camp, he had not only disregarded the norms of good behaviour and decency, but had seriously violated the sanctity of marriage and thus, had brought irreparable damage, disrepute and disgrace to service. The reference note was submitted to the M.O.D. for consideration of recommendations of Chief of Air Staff and passing final order in respect of petitioner for retiring him compulsorily from service in terms of section 19 of the Air Force Act, 1950 read with Rule 16(8) of the Air Force Rules, 1969.
10. It appears that the respondent No. 2 prepared a reference proceeding note dated 21-1-1994 and same was forwarded for approval to RRM in regard to compulsory retirement of the petitioner from service in terms of section 19 of the Air Force Act, 1950 read with Rule 16(8) of the Air Force Rules, 1969 and after necessary consideration and approval by the Central Government, the impugned order dated 16-2-1994 was passed, which is the subject matter of challenge in the instant petition.
11. The petitioner, who appeared in person, challenged the order of his compulsory retirement firstly on the ground of it being against Regulation 578(g) of the Defence Service Regulations for the Air Force (Revised Edition), 1964, which reads thus :
When a case of plural marriage has been brought before a Criminal or Civil Court, the Commanding Officer will not initiate administrative action till after the matter has been finally disposed of by the Court. When a person is charged for contracting plural marriage before a criminal Court, he will not be claimed for trial by Court Martial. Such person will inform his Commanding Officer immediately that a complaint is made against him in a Court of law and the Commanding Officer will then report the case to Air Headquarters (Directorate of Personal Services) through normal channel.
The petitioner submitted that since civil suit was filed by him in the year 1992 and same was continued upto 19-6-1993, i.e. the date on which decree was passed, proceedings in the Court of Enquiry ought to have been suspended and the Commanding Officer was not competent to initiate any administrative action against the petitioner in view of the above referred Regulation till disposal of the civil suit. Therefore, according to petitioner, entire proceedings of Court of Enquiry are violative of the above referred Regulation.
12. Shri Sajjad Hussain, learned Counsel for the respondents, contended that Regulation 578(g) contemplates a situation when a case of plural marriage has been brought before the Civil or Criminal Court. It is only in such contingency, the Commanding Officer is prohibited from initiating a departmental enquiry till disposal of the matter by the Court. In the instant case, the petitioner himself had filed a civil suit requesting the Court for annulment of his first marriage with Mrs. Roopa Malhotra, which cannot be said to be a suit of plural marriage against the petitioner. It is contended that the act of the petitioner is covered by clause (f) of Regulation 578, which reads thus:
When it is found that any person in whose case it is prohibited by law has contracted plural marriage, no disciplinary action by way of his trial by Court martial or u/s 82 or 86 of the Air Force Act, will be taken but only administrative action to terminate his service u/s 19 or 20 of the Air Force Act will be taken.
Hence, according to the learned Counsel, the contention raised by the petitioner in this regard is not correct.
13. We have considered the contentions raised by the petitioner and learned Counsel for the respondents as well as relevant facts and circumstances. Perusal of sub-clause (g) of Regulation 578 makes it clear that when a person is charged for contracting plural marriage before the competent Court, the Commanding Officer is prohibited from initiating any administrative action unless and until proceedings are finally disposed of by such Court. The remaining provisions of sub-clause (g) are not relevant for the purpose of controversy in question. In the instant case, the suit filed by the petitioner is for annulment of his first marriage with Mrs. Roopa Malhotra, which had taken place in the year 1973, which, in our opinion, does not fall within the ambit of sub-clause (g) of Regulation 578. On the other hand, on the date of initiation of Court of Enquiry against the petitioner, there was sufficient material before the Authorities to presume that the petitioner had contracted plural marriage with Miss Anna Suja John, which is prohibited by law and, therefore. Authorities were completely justified in initiating departmental action against the petitioner in view of sub-clause (0 of Regulation 578. Considering the scheme of the above referred Regulation, the contention raised by the petitioner in this regard is devoid of any merit and, therefore, same is rejected. Initiation of Court of Enquiry and continuation thereof during pendency of the suit, in our opinion, is not violative of sub clause (g) of Regulation 578 of the Regulations.
14. It is further contended by the petitioner that the Court of Enquiry was initiated against him for the alleged charges on the basis of complaint dated 21-3-1992 filed by Mrs. Roopa Malhotra. However, same was withdrawn by her on 17-5-1992. Hence, the Authorities could not have proceeded to consider the grievance made by Mrs. Roopa Malhotra in order to punish the petitioner by passing the impugned order. It is submitted that when the complaint itself was withdrawn by the complainant on 17-5-1992, there was no occasion for the Authorities to proceed further on the basis of the said complaint, which was no more in existence and could not be formed as a basis for taking action against the petitioner. Therefore, according to the petitioner, the impugned order is not just and proper.
15. The learned Counsel for the respondents submitted that the detailed statement of complainant Mrs. Roopa Malhotra recorded during Court of Enquiry, reveals the trauma, torture and brutality meted out to her by the petitioner on account of his second marriage with Miss Anna Suja John. It also reveals illicit relations of petitioner with Miss Anna Suja John as well as child born out of such wedlock. It is also contended that it is apparent that complaint was withdrawn by the complainant only under pressure and because of undue influence exercised by the petitioner and therefore, that by itself cannot absolve the petitioner from the allegations made in the complaint since enquiry was already instituted against the petitioner in order to find out whether he was guilty of any act or omission, which is prejudicial to the good order and discipline in the Air Force as well as whether the petitioner in fact had contracted plural marriage, which is prohibited under Hindu law which affects good order and discipline and whether he can be removed from service in view of section 19 of the Air Force Act, 1950 read with Rule 16(8) of the Air Force Rules, 1969. The learned Counsel contended that the Authorities were, therefore, justified in proceeding with the matter and passing the impugned order.
16. We have given our anxious thought to the above referred facts and circumstances and contentions raised by the learned Counsel. We have also perused the complaint dated 21-3-1992 filed by the complainant Mrs. Roopa Malhotra as well as her long, detailed and descriptive statement recorded during Court of Enquiry. After going through the above documents, it is crystal clear that the petitioner was married to complainant Mrs. Roopa Malhotra on 19-10-1973 as per Hindu rites and their marriage was also registered with the Registrar of Marriage on 5-9-1974. The complainant was living with the petitioner since her marriage as his legally wedded wife and was considered by others as his legally wedded wife. For about nineteen years, the petitioner never questioned validity of his marriage with complainant Mrs. Roopa Malhotra and they had a happy married life. At the relevant time, the petitioner being Squadron Leader was holding a very responsible position in the Indian Air Force. The discipline and character is the backbone of the Armed Forces and Officers are expected to act and behave in a manner befitting their respective positions. The Officers are also at all times responsible for ensuring that good order and discipline in the services is maintained. The Authorities are required under law to take into consideration as to whether any act, conduct or behaviour of any personnel of the Armed Forces is prejudicial to the good order in the Department and whether it affects the discipline. When we consider the issue in question on the backdrop of these aspects, it is clear to us that mere withdrawal of the complaint, which was obviously under pressure by the petitioner, does not legally prohibit the respondents from initiating administrative action against the petitioner for the misconduct. The Authorities are primarily concerned with the aspect of misconduct committed by the petitioner and whether such misconduct warrants action of compulsory retirement rather than finding out the cause as to how and why complaint was withdrawn. When it was brought to the notice of the Department by the complainant that the conduct, behaviour and actions of the petitioner were totally barbaric, cruel and intolerable due to his illicit relations with another woman, namely, Miss Anna Suja John, who was asked to live in the same house by the petitioner as his wife, in our opinion, the Department under the provisions of the Air Force Act and Rules was fully justified in initiating Court of Enquiry in order to find out whether the acts, behaviour and conduct of the petitioner render his retention in the Air Force undesirable, even though the complaint was withdrawn by the complainant under pressure. Even otherwise, after going through the complaint and statement of the complainant, it is clear to us that withdrawal of the complaint was obviously due to tremendous pressure exercised by the petitioner; otherwise the complainant could not have given such a long, lengthy and descriptive deposition before the Court of Enquiry, furnishing all the minute details in respect of torture, cruelty and brutality meted out to her by the petitioner as well as illicit relations of the petitioner with Miss Anna Suja John on account of second marriage and birth of the child out of such wedlock. After considering the complaint and position of the petitioner, we are sure that the complaint was withdrawn by the complainant only under heavy pressure. For the reasons stated above, the Department was justified in proceeding with the matter since object of proceeding against the petitioner was to find out whether conduct, behaviour and actions of the petitioner were prejudicial to good order and discipline of the Indian Air Force and whether his retention in Air Force was desirable or not. Hence, contention of the petitioner in this regard suffers from lack of merit.
17. Another contention raised by the petitioner is regarding violation of principles of natural justice. It is contended by the petitioner that he was not given proper opportunity to defend himself during the course of enquiry as well as by Chief of Air Staff before holding him guilty of the misconduct. It is contended that the respondents after initiation of Court of Enquiry, did not allow the petitioner to participate in the enquiry from the very beginning. The petitioner was called only as a witness in the said enquiry, It is further contended that the reply given by the petitioner on 10-11-1992 and 22-12-1992 to the show-cause notice dated 10-9-1992 was also not properly considered by the respondents and no opportunity of being heard was given to the petitioner before passing the impugned order. In order to substantiate his contention, reliance is placed by the petitioner on the judgment of the Apex Court in Yoginath D. Bagde vs. State of Maharashtra and another, JT 1999(6) SC 62.
18. The learned Counsel for the respondents submitted that in fact petitioner was given sufficient and fair opportunity to participate in the Court of Enquiry and petitioner had not only actively participated in such enquiry, but also cross-examined the witnesses and, therefore, it is not correct that the petitioner was not associated with the proceedings of Court of Enquiry. The petitioner did not give proper reply to show-cause notice dated 10-9-1992 and instead of that, petitioner sent letters dated 10-11-1992 and 22-12-1992 in which petitioner made a reference to Clause 578(g) of the Regulations as well as Civil Suit No. 887/92. The petitioner has not given even details as to for what purpose the said civil suit was filed, what is the subject matter of the civil suit, what is the stage of civil suit and what relief the petitioner is claiming in the civil suit. The said information was communicated by the petitioner to the respondents for the first time by letter dated 23-4-1993. However, by then Court of Enquiry in question was almost concluded. It is contended that in the above referred letters, petitioner had not given at all his explanation or defence in regard to grounds mentioned in the show-cause notice such as his illicit relations with Miss Anna Suja John, ill-treatment and criminal force meted out to Mrs. Roopa Malhotra, aspect of plural marriage, staying in rented accommodation other than official accommodation with Miss Anna Suja John and refusal to give even basic amenities to Mrs. Roopa Malhotra though he was given full opportunity to do so. It is contended by the learned Counsel that concept of principles of natural justice in the case of personnel belonging to Armed Forces should be viewed on different footing than that of Civil Servants. It is submitted that even Article 311 of the Constitution primarily deals with members of the Civil Services and Article 33 of the Constitution empowers the Parliament to modify the rights conferred by Part III in their application to the Forces. It is further submitted that in the instant case, petitioner was given ample opportunity of being heard and entire material placed on record by complainant Mrs. Roopa Malhotra, witness Shri Grover, letters dated 10-11-1992 and 22-12-1992 issued by the petitioner were considered by the Authorities before holding petitioner guilty of misconduct. It is, therefore, contended that the impugned order is not violative of principles of natural justice.
19. While considering the aspect of principles of natural justice, it is necessary to keep in mind that object underlying principles of natural justice is to prevent miscarriage of justice and secure fair play in the action. The object is also to exclude chances of arbitrariness and ensure fairness in the process of the decision making. We also cannot lose sight of the fact that principles of natural justice are neither codified in any statute nor embodied in the rules. The extent of their application, therefore, depends upon particular statutory framework whereunder jurisdiction has been conferred on the administrative Authority. The concept of principles of natural justice, however, has undergone a great deal of change in view of various judicial pronouncements over a period. The fundamental principle evolved in this regard is that no decision shall be given against a person without affording him reasonable opportunity of hearing. Another aspect which came to be associated with the concept of principles of natural justice is that every enquiry must be held in good faith, without bias and same should not be arbitrary and unreasonable.
20. Article 33 of the Constitution contains certain special provisions in regard to members of Armed Forces, which empower Parliament to make law determining the extent to which any of the rights conferred by Part III shall in their application to the members of Armed Forces be restricted or abrogated so as to ensure proper discharge of their duties and maintenance of discipline amongst them. It is equally important to keep in mind Clause 4 of Article 227 of the Constitution whereby power of superintendence of High Court over any Court or Tribunal constituted by or under any Act relating to Armed Forces has been excluded. It is, therefore, pertinent to note that even as per the mandate of the Constitution, the Institution i.e. Armed Forces, is considered differently taking into consideration the aims and objects of the laws relating to Armed Forces. However, under Article 226 of the Constitution, the High Court has a power of judicial review in respect of proceedings of Court Martial or administrative actions and can grant appropriate relief if the said proceedings or administrative actions have resulted in denial of fundamental rights guaranteed under Part III of the Constitution or if the proceedings suffer from jurisdictional error or any error of law apparent on the face of record.
21. On the backdrop of the above referred legal position, it will be proper to analyse the provisions of section 19 of the Air Force Act, 1950 and Rule 16 of the Air Force Rules, 1969. Section 19 reads thus :
Subject to the provisions of this Act and the Rules and Regulations made thereunder, the Central Government may dismiss, or remove from the service any person subject to this Act.
Section 19 is included in Chapter IV of the Act, which deals with conditions of service of personnel of Air Force. Section 19 contemplates that the Central Government is competent to dismiss or remove from service any person subject to the Air Force Act. Similarly, sub-rule (4) of Rule 16 of Air Force Rules, 1969 contemplates that when the Chief of Air Staff after considering the reports on an Officer''s misconduct is of the opinion that the trial of the Officer by a Court martial is inexpedient or impracticable, but further retention of such Officer in the service is undesirable, he shall, so inform the Officer and subject to the provisions of sub-rule (5) furnish to the officer all reports adverse to him calling upon him to submit in writing within a reasonable period, to be specified, his explanation in defence and any reasons which he may wish to put forward against his dismissal or removal. The Chief of Air Staff, therefore, in our opinion, in view of the above referred sub-rule (4) is competent to proceed against the petitioner administratively and recommend to the Central Government in view of sub-rule (8) of Rule 16 that the petitioner may be compulsorily retired from service. The only requirement of sub-rule (4) of Rule 16 in order to comply with the principles of natural justice is that the petitioner should be given opportunity by the Chief of Air Staff before recommending his removal from service to the Central Government. In the instant case, the show-cause notice dated 10-9-1992 was issued on the directions of the Chief of Air Staff whereby petitioner was called upon to show cause as to why he should not be dismissed/removed from service u/s 19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules, 1969. All the relevant grounds are also mentioned in the said show-cause notice and petitioner was called upon to give reply, if any, in his defence against the proposed action within twenty-one days. It was also made clear in the said show-cause notice that if petitioner fails to give reply within stipulated period, it shall be presumed that he has no reasons to advance against the proposed action and action will be taken accordingly. In our opinion, therefore, petitioner was given sufficient opportunity contemplated under the above referred rule, to defend his case before Chief of Air Staff in regard to his misconduct. It is also on the record that the concerned Authority has taken into consideration the letters dated 10-11-1992 and 22-12-1992 sent by the petitioner in the form of reply to the show-cause notice. The petitioner was also associated with the proceedings of Court of Enquiry. All these factors show that the petitioner was in fact given sufficient and fair opportunity to defend himself in the Court of Enquiry as well as even at the subsequent stage, which was prior to sending of recommendations by Chief of Air Staff to the Central Government for passing the impugned order of compulsory retirement.
22. The above referred judgment of the Apex Court relied upon by the petitioner, we are afraid, in the facts and circumstances of the present case, may not be applicable. The facts involved in the above referred judgment would show that the findings recorded by the Enquiry Officer were in favour of the delinquent and it was held that the charges were not proved and, therefore, Apex Court in the facts and circumstances of that case held that opportunity of hearing to the delinquent employee should have been given before reversing the findings. However, in the instant case, issue in question so far as principles of natural justice are concerned, stands on different footing, which is required to be visualised on the basis of requirement of the Act and Rules applicable as well as Article 33 of the Constitution and exclusion of employees of Armed Forces from application of provisions of Article 311 of the Constitution. After considering totality of the facts and circumstances as well as cumulative effect of provisions of law and concept of principles of natural justice, we are of the opinion that the petitioner was given full opportunity to give his explanation in regard to the grounds/charges mentioned in the show-cause notice dated 10-9-1992. After receipt of the said show-cause notice, the petitioner had sufficient opportunity to give his explanation and disclose his defence in respect of grounds mentioned in it. However, instead of availing the opportunity given to the petitioner by the respondents, the petitioner not only avoided to give true and proper information to the Authorities regarding charges/grounds levelled against him in the show-cause notice, but also indulged in giving evasive replies for the purpose of misleading the concerned Authorities with the ulterior motive to suppress true and correct facts from the concerned Authorities. The impugned order, therefore, is not violative of principles of natural justice and, therefore, challenge to this effect raised by the petitioner must fail.
23. As referred above, this Court under Article 226 of the Constitution has a power of judicial review. However, same is distinct from that of appellate power. The object of judicial review of the administrative actions is to keep the Administrative Authorities within the bounds of their power under law. The judicial review of administrative action can be extended to find out whether the administrative decision is arbitrary, unreasonable, unfair, unjust or contrary to the public interest and does not permit us to enter into merits of the conclusion arrived at by the Authority or interfere with the decision as if sitting in appeal. Taking into consideration ambit of jurisdiction of this Court in regard to judicial review of the administrative action, we feel that the impugned order does not suffer from lack of jurisdiction nor it is arbitrary, unfair, unjust or contrary to public interest and, therefore, it is not violative of Article 14 of the Constitution.
24. Lastly the petitioner has challenged the impugned order on the ground of mala fides. It is contended by the petitioner that before he was posted at Nagpur, he was frequently transferred to various places such as Leh in Laddakh and Nal in Rajasthan. The petitioner further submitted that he challenged those orders by filing representations and petitions before the Authorities and High Courts and succeeded in getting the orders either cancelled or modified. The petitioner also contended that since he refused to participate in the corrupt practices of the respondents and made a statutory complaint against Shri P. V. Ramchandran, then Vice Air Chief, he was victimised by passing the impugned order. The learned Counsel for the respondents submitted that the respondents have denied all these allegations of the petitioner as false and concocted.
25. We are unable to accept the contention raised by the petitioner firstly on the ground that the services of the petitioner were transferable and transfer is an incidence of service. Similarly, Authorities were well within their administrative powers to transfer the petitioner from one place to another in view of administrative exigencies and for smooth working of the Department. We see no reason to hold that the impugned order is mala fide merely because the petitioner was transferred from one place to another as suggested by him. Secondly, there is no material whatsoever placed on record by the petitioner, which would demonstrate that Shri P. V. Ramchandran, then Vice Air Chief, Shri B. C. Mandal, Under Secretary, Ministry of Defence or respondent No. 4 Shri Ramamurthi had any personal grudge against the petitioner. It is also pertinent to note that most of these top ranking Officers had already retired from service before the impugned order was passed. The very fact that the respondents instead of dismissing the petitioner from service, passed the order of compulsory retirement shows sympathetic attitude shown by the respondents towards petitioner while imposing punishment for misconduct. Hence, in our opinion, the impugned order is neither mala fide nor passed in colourable exercise of power by the respondents.
26. For the reasons stated above, the impugned order does not suffer from lack of jurisdiction. The same is not violative of principles of natural justice as well as Article 14 of the Constitution and is also not mala fide in nature. The petition is misconceived and devoid of substance and hence, the same is dismissed with costs. Rule is discharged. Interim order, if any, stands vacated.
After the judgment is pronounced and signed by us, the learned petitioner in person requested this court to suspend the effect and operation of this judgment for a period of 4 weeks in order to approach the Apex Court. Shri Sajjad Hussain the learned Counsel appears for the respondents opposed the request made by the petitioner. In the circumstances, we feel it proper to suspend the effect and operation of this judgment for a period of 4 weeks.
