Supreme Court restores honour of IAF officer dismissed 30 years ago over ‘superior’s orders’

Justices Dipankar Datta and K V Viswanathan pronounced the order on April 15.

“A cryptic or mechanical rejection, particularly one which does not even advert to the specific contentions raised, falls foul of the principles of natural justice and renders the decision arbitrary and unsustainable in law,” the Supreme Court said on April 15.

Justice demands that the ignominy with which the appellant had to survive the past three decades is obliterated, the wrongful termination of his service be revoked, and his honour restored, the order noted.

It continued that irrespective of service benefits, restoration of honour remains the foremost concern of a defence personnel.

An order, mortal remains and case of dismissal

The case dates back to March 1987, when Sood was posted as a senior operations officer in the Thar desert. Following instructions from his superior, a Wing Commander, he took an inebriated driver, who had allegedly damaged critical radar equipment, and left him at a secluded location, approximately 30 km from the Air Force camp. The driver’s mortal remains were recovered days later.

The Air Force initially opted to have Sood, and others tried by a criminal court rather than a court-martial, exercising discretion under Section 124 (choice between criminal court and court-martial) of the Air Force Act, 1950.

However, in January 1990, the sessions court discharged the accused, finding no prima facie case and noting the lack of required government sanction.

By the time of the discharge, the three-year limitation period for a court-martial under Section 121(1) of the Air Force Act had expired. The Air Force invoked Section 19 of the Act, read with Rule 16 of the Air Force Rules, to initiate administrative action, which eventually led to his dismissal in September 1993.

He challenged this before the Delhi High Court, where a division bench upheld this dismissal on the grounds that administrative actions are not bound by the limitation periods of the court martial.

‘Disciplinary action was fallacious’

• A bare reading of the excerpts from the original file unmistakably reflects big differences in the overall approach of the officers to the issue.
• The ongoing deliberations left the officers divided, with one side pushing for aggressive action and the other advocating caution.
• In the preceding note of June 5, 1992, the authority, after taking note of the fact that the appellant had been discharged by a criminal court, noted that administrative action can still be initiated against the appellant since the effect of a discharge is that the appellant was neither “acquitted nor convicted.”
• Based on this understanding, the authority proceeded to initiate disciplinary action against the appellant.
• This understanding, at first glance, is fallacious. Discharge is a pre-trial termination of proceedings for lack of evidence.
• As and when ordered, discharge signifies and reinforces the position that there is no material against the accused for him to stand trial.
• 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.
• Insufficient evidence to even frame charges for standing trial would lead to a discharge, while evidence presented not proving guilt leads to an acquittal.

‘Discharge stands on better footing than acquitted’

• In that sense, an accused discharged of a criminal offence stands on a better footing than an accused who is finally acquitted after a full-fledged trial.
• It is not the law that an accused, unless he is acquitted, must still carry the label on his forehead that he is accused of a criminal offence.
• 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.
• The Air Force, upon electing to have the alleged offence tried by the criminal court, it is clear from this court’s decision 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.
• Initiation of administrative proceedings for disciplinary action against the appellant, we unhesitatingly hold, was bad in law and non-est, the Supreme Court stated.

Vague justification: Order

• The reasoning given in the preceding note dated June 5, 1992 has been noted above. From the same, we find absolutely no discussion on the merits of the case, the Supreme Court stated.
• What is found is that there was sufficient “morally convincing evidence” against the appellant.
• Such an expression, vague and indeterminate in nature, falls far short of the standard required for recording findings in disciplinary proceedings.
• It neither discloses the material relied upon nor indicates the process of reasoning by which the authority arrived at its conclusion.
• The appellant, in his reply to the show-cause notice, had raised various contentions which required due consideration by the competent authority.
• However, it is a matter of surprise that there is a complete absence of any discussion on such contentions, particularly concerning the lack of evidence and the illegality of the proceedings before the Court of Inquiry.

Disparity in punishment

• Even assuming, for the sake of argument, that the decision to take disciplinary action was otherwise proper, we find that the punishment imposed upon the appellant is manifestly unreasonable.
• What the government missed is that the appellant was caught between the devil and the deep sea.
• Had he disobeyed the instruction of the Wing Commander by not removing the driver from the camp, he would risk being proceeded against for insubordination and indiscipline.
• On the other hand, the appellant has been punished for relocating the driver to desolate surroundings; this, he did while acting on the instructions of his superior.
• Though there is no definite material, we would assume that the corpse found was of the driver who, having been left to fend for himself, did not survive the harsh climate of the Thar; but, at the same time, there is also no definite material to suggest that such relocation was made by the appellant with any motive of harming him.
• Indeed, it is revealed from the records that to keep the driver away from the next day’s anticipated visit of the Air Officer Commanding-in-Chief (so that the driver does not create any ruckus) was the real object intended to be achieved.
• It is also evident that the Wing Commander had given specific instructions, which were later 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.