Habitual Offenders Policy = a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. Habitual Offenders Policy, the habitual offenders can be considered for discharge from service under Rule 15 (2) (g) (ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the Air Force Rules, 1969 (hereinafter, ‘the Rules’), under the Clause “His Service No Longer Required Unsuitable for Retention in the Air Force”. The Respondent was cautioned and counselled to mend himself and desist from acts of indiscipline. He was also warned that any addition of another punishment entry would render him liable for discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2) (k) read in conjunction with Rule 15(2) of the Rules = As the Respondent was not showing any improvement, he was found to be a poor Airman material and not amenable to service discipline. The Respondent submitted his explanation on 05.08.2012 in which he admitted that he had indulged in acts of indiscipline due to bad company. He requested for a final chance to improve. After considering the explanation submitted by the Respondent, the Air Officer-in-Charge approved the discharge of the Respondent from service under Rule 15 (2) (g) (ii) of the Rules as he was found unsuitable for the Indian Air Force.= The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances.= The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996. For the aforementioned reasons, the judgment of the Tribunal is set aside. Accordingly, the Appeals are allowed.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos.4780-4781 of 2018
Union of India & Ors.
…. Appellant(s)
Versus
794898 T. Ex. Corporal Abhishek Pandey.
…. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.

  1. These Appeals are filed against the judgment of the
    Armed Forces Tribunal, Regional Bench, Lucknow
    (hereinafter, ‘the Tribunal’) by which the order of discharge
    of the Respondent dated 17.01.2013 was set aside. The
    Tribunal directed the payment of back wages to the extent
    of 25 per cent.
  2. The Respondent was enrolled in the Indian Air Force on
    28.09.2004. A warning was issued to the Respondent on
    18.04.2012. By that time, there were seven entries of
    punishment (3 Red Ink and 4 Black Ink) in the Conduct
    Sheet of the Respondent. The Respondent was informed by
    1
    the said letter dated 18.04.2012 that he was already in the
    category of habitual offender. In accordance with the
    Habitual Offenders Policy, the habitual offenders can be
    considered for discharge from service under Rule 15 (2) (g)
    (ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the
    Air Force Rules, 1969 (hereinafter, ‘the Rules’), under the
    Clause “His Service No Longer Required Unsuitable for
    Retention in the Air Force”. The Respondent was cautioned
    and counselled to mend himself and desist from acts of
    indiscipline. He was also warned that any addition of
    another punishment entry would render him liable for
    discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2)
    (k) read in conjunction with Rule 15(2) of the Rules.
  3. A notice was issued to the Respondent on 11.07.2012,
    directing him to show cause as to why he should not be
    discharged from service under Rule 15 (2) (g) (ii) of the
    Rules. There was a reference to the warning letter dated
    18.04.2012 in the show cause notice. Even after the
    issuance of the warning letter dated 18.04.2012, the
    Respondent indulged in acts of indiscipline on 10.06.2012
    and was awarded ‘Severe Reprimand’ on 13.06.2012 by his
    2 | P a g e
    Commanding Officer. As the Respondent was not showing
    any improvement, he was found to be a poor Airman
    material and not amenable to service discipline. The
    Respondent submitted his explanation on 05.08.2012 in
    which he admitted that he had indulged in acts of
    indiscipline due to bad company. He requested for a final
    chance to improve. After considering the explanation
    submitted by the Respondent, the Air Officer-in-Charge
    approved the discharge of the Respondent from service
    under Rule 15 (2) (g) (ii) of the Rules as he was found
    unsuitable for the Indian Air Force.
  4. The Respondent challenged his discharge before the
    Tribunal by filing Original Application No.125 of 2013. He
    relied upon a Policy dated 16.12.1996 governing the
    habitual offenders/ potential habitual offenders. He
    contended before the Tribunal that he was entitled for a
    second warning before an order of discharge could have
    been passed against him in accordance with the Policy. The
    Tribunal accepted the submission made by the Respondent
    and allowed the application. The order of discharge was set
    aside. The Respondent was held to be entitled to all
    3 | P a g e
    consequential benefits, including back wages which were
    restricted to 25 per cent. The Review Application filed by
    the Appellant was rejected by the Tribunal.
  5. The only point that arises for our consideration in the
    present case is the interpretation of the Policy dealing with
    habitual offenders. The Air Force Policy dated 16.12.1996
    was issued by the Air Force Headquarters, prescribing the
    procedure to be followed while processing the cases of
    habitual offenders. According to the Policy, an Airman is
    entitled to be issued a precautionary warning (being a
    habitual offender). The Airman has to be informed that he
    would be getting another opportunity to mend himself and
    any addition of another punishment entry, either Red or
    Black, would result in his discharge from the service. Para 2
    (b) of the Policy provides that whenever the case of an
    Airman is considered by the competent authority for final
    orders and he is afforded one more chance, a warning letter
    is required to be issued to him by his Commanding Officer
    again. The said warning letter shall be treated as a second
    time warning. Para 3 of the Policy postulates that habitual
    offenders shall be served with a show cause notice calling
    4 | P a g e
    upon them to explain the reasons as to why the proposed
    action of discharge from service shall not be taken against
    them. The habitual offenders are entitled for an opportunity
    to submit their explanation before an order of discharge is
    passed.
  6. The Tribunal was of the opinion that the Respondent
    was given only one warning. As the second warning which
    is mandatory according to the Policy was not given to the
    Respondent, the Tribunal was of the view that the order of
    discharge was vitiated. The Tribunal failed to take into
    account the fact that para 2 (b) provides for a second
    warning only when the competent authority considers
    issuance of final orders but is also of the opinion that
    another chance should be given to the Airman. The
    requirement of the second warning letter would be only in
    such circumstances.
  7. The Respondent was initially a potential habitual
    offender before he was considered as a habitual offender.
    He was entitled for a warning to be issued in 2008.
    Admittedly, there was a delay in issuance of the warning
    letter. Ultimately, the warning letter was issued on
    5 | P a g e
    18.04.2012. The Respondent did not mend himself for
    which reason a show cause notice was issued to him. Even
    in the explanation to the show cause notice, the Respondent
    did not dispute the allegations of misconduct made against
    him. He, in fact, admitted to having indulged in acts of
    indiscipline and sought for another opportunity to correct
    himself. The show cause notice issued to the Respondent is
    in accordance with the Habitual Offenders Policy. A second
    warning letter is not required when it is decided to pass a
    final order without giving another chance. There is no
    violation of the procedure prescribed by the Policy dated
    16.12.1996.
  8. For the aforementioned reasons, the judgment of the
    Tribunal is set aside. Accordingly, the Appeals are
    allowed.
    ..……………………………..J
    [L. NAGESWARA RAO]
    ..……………………………..J
    [HEMANT GUPTA]
    New Delhi,
    November 08, 2019
    6 | P a g e
    7 | P a g e