Supreme Court permits Airman to continue Bank Job despite procedural lapse: Amit Kumar Roy vs. Union of India (2019)

Date of the Judgment: 03 July 2019
Citation: Amit Kumar Roy vs. Union of India & Ors, Civil Appeal Nos 4605 – 4606 of 2019 (D No 27372/2015)
Judges: Dr. Dhananjaya Y Chandrachud, J and Hemant Gupta, J. The judgment was authored by Dr. Dhananjaya Y Chandrachud, J.

Can a member of the Air Force, who has not completed the mandatory service period, be allowed to continue in a civilian job he secured without prior permission? The Supreme Court of India addressed this question in a case where an Airman joined a bank without completing his full term in the Air Force and without obtaining the required No Objection Certificate (NOC). The court had to balance the individual’s right to employment with the disciplinary requirements of the armed forces.

Table of Contents

Case Background

The appellant, Amit Kumar Roy, was enrolled as an Airman in the Indian Air Force (IAF) on 12 January 2004, with a scheduled engagement end date of 11 January 2024. In August 2010, while still serving at the Three Base Repair Depot, he applied for the post of General Banking Officer at the Bank of India, responding to an advertisement dated 7 August 2010. This application was made without completing the mandatory seven years of service and without obtaining prior permission from his unit authorities, which was a breach of Air Force Order 14/2008.

On 30 May 2011, the appellant applied for a No Objection Certificate (NOC) and discharge from the IAF, having already appeared for the bank’s written test on 16 March 2011 and an interview, where he was successful. His application was forwarded to Air Headquarters on 4 July 2011. He received an appointment order from the Bank on 28 July 2011. On 16 August 2011, he approached the Armed Forces Tribunal (AFT) seeking directions for the grant of an NOC and discharge. The AFT issued an interim direction on 18 August 2011, for a provisional NOC and discharge to enable him to join the bank by 24 August 2011. This was conditional on him rejoining the IAF if his plea was dismissed. A provisional NOC was issued on 2 September 2011, and a provisional discharge on 20 September 2011, and he joined the Bank of India on 24 September 2011.

Timeline

Date	Event
12 January 2004	Appellant enrolled as Airman in IAF.
7 August 2010	Bank of India issued advertisement for Probationary Officers.
August 2010	Appellant applied for General Banking Officer post without permission.
16 March 2011	Appellant appeared for Bank of India written test.
30 May 2011	Appellant applied for NOC and discharge.
4 July 2011	Application forwarded to Air Headquarters.
28 July 2011	Appellant received appointment order from Bank of India.
16 August 2011	Appellant moved AFT for NOC and discharge.
18 August 2011	AFT issued interim direction for provisional NOC and discharge.
2 September 2011	Provisional NOC issued.
20 September 2011	Provisional discharge order issued.
24 September 2011	Appellant joined Bank of India.
12 March 2012	Supreme Court directed Air Force to decide on NOC application.
26 March 2012	Air Force rejected NOC application.
11 April 2012	AFT dismissed appellant’s OA as infructuous.
25 May 2012	AFT dismissed review application.
2 June 2012	Appellant filed writ petition in Punjab and Haryana High Court.
15 June 2012	High Court issued interim order against treating appellant as deserter.
22 June 2012	Air Headquarters cancelled provisional NOC and discharge, ordered reinstatement.
30 April 2014	Bank of India terminated appellant’s service due to lack of clean discharge.
17 September 2014	High Court stayed termination by Bank of India.
03 July 2019	Supreme Court disposed of the appeal.

Course of Proceedings

The Armed Forces Tribunal (AFT) initially issued an interim order directing the Indian Air Force (IAF) to grant a provisional No Objection Certificate (NOC) and discharge to the appellant, which allowed him to join the Bank of India. However, the Union of India challenged this interim order in the Supreme Court. The Supreme Court directed the IAF to dispose of the appellant’s NOC application, which was subsequently rejected on 26 March 2012. The AFT then dismissed the appellant’s original application as infructuous, but stated that the interim order would continue to be in force. The appellant’s review application was also dismissed. Following this, the appellant filed a writ petition in the High Court of Punjab and Haryana, which was later deemed not maintainable due to lack of jurisdiction. The High Court directed the appellant to pursue remedies before the AFT.

Legal Framework

The Supreme Court examined the legal framework governing the service of Air Force personnel, particularly focusing on the Air Force Act 1950 and the Air Force Rules.

Article 33 of the Constitution of India allows Parliament to restrict or abrogate the fundamental rights of members of the armed forces to ensure the proper discharge of their duties and the maintenance of discipline.

The Air Force Act 1950, enacted under Articles 245(1) and 246(1) of the Constitution, imposes restrictions on the fundamental rights of IAF members.

Section 13 of the Air Force Act 1950 outlines the procedure before an enrolling officer, requiring them to explain the conditions of service to the person being enrolled. It states:

“Upon the appearance before the prescribed enrolling officer of any person desirous of being enrolled, the enrolling officer shall read and explain to him, or cause to be read and explained to him, in his presence, the conditions of the service for which he is to be enrolled; and shall put to him the questions set forth in the prescribed form of enrolment, and shall, after having cautioned him that if he makes a false answer to any such question he will be liable to punishment under this Act, record or cause to be recorded his answer to each such question.”

Section 14 of the Air Force Act 1950 specifies the mode of enrolment, emphasizing that the individual must consent to the conditions of service. It states:

“If, after complying with the provisions of section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the questions put to him and consents to the conditions of service, and if such officer perceives no impediment, he shall sign and shall also cause such person to sign the enrolment paper, and such person shall thereupon be deemed to be enrolled.”

Section 15 of the Air Force Act 1950 deals with the validity of enrolment, stating that a person who has received pay for three months is deemed duly enrolled. It states:

“Every person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any unit shall be deemed to have been duly enrolled, and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrolment, no such irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceedings, act or thing taken or done prior to his discharge.”

Rule 7 of the Air Force Rules identifies the enrolling officers.

Rule 9 of the Air Force Rules outlines the oath or affirmation to be taken upon attestation, which includes allegiance to the Constitution and obedience to commands.

Rule 13 of the Air Force Rules states that a person may be released from the Air Force in accordance with the rules or any orders of the Central Government.

Rule 15 of the Air Force Rules specifies the authorities empowered to authorize discharge.

The court also considered Air Force Order (AFO) 14/2008, which regulates the terms under which IAF personnel may apply for civilian employment. This order mandates a minimum of seven years of service to apply for civilian posts and requires prior permission from unit commanders.

Arguments

Appellant’s Submissions:

The appellant argued that he has a fundamental right under Article 19(1)(g) of the Constitution to choose his employment.
He contended that he had sufficiently complied with the provisions of paragraph 17 of AFO 14/2008.
Regarding the pay scale, the appellant argued that the pay scales in the banking industry are revised more frequently and are higher than those in the IAF. He also submitted that the post he secured was equivalent to a Group A post.
On the issue of ‘criticality of trade,’ he argued that his post was equivalent to a Group A post, which should waive the condition. He also cited a Delhi High Court case, Corporal Gaurav Badhwar v. Union of India (2015) SCC Online Del 7275, to argue that the employer’s claim of criticality in the trade was not justified.
The appellant highlighted that he had been working in the bank for over five years, and a liberal approach should be taken, considering his career advancement. He stated that the failure to apply through proper channels was a procedural irregularity and not an illegality.

Union of India’s Submissions:

The Union of India argued that the appellant’s claim that he could leave employment at will under Article 19(1)(g) was incorrect, as Article 33 allows for restrictions on the rights of armed forces members.
They contended that members of the armed forces are obligated to serve during their engagement period, as per Sections 13, 14, and 15 of the Air Force Act 1950.
They stated that these statutory provisions are complemented by the Air Force Rules, particularly Rules 7 and 9.
They highlighted that AFO 14/2008 regulates the terms under which IAF personnel can apply for civilian employment.
The Union of India emphasized the need to maintain manning levels, operational preparedness, and training investments in the IAF. They argued that there is no general right to leave service during the engagement period and that each application must be considered on a case-by-case basis. They stated that the appellant breached his statutory obligation and left service without permission.

Submissions Table

Main Submission	Appellant’s Sub-Submissions	Union of India’s Sub-Submissions
Right to Employment	Fundamental right under Article 19(1)(g) to choose employment.	Article 33 allows restrictions on rights of armed forces members. Obligation to serve during engagement period under Air Force Act 1950.
Compliance with AFO 14/2008	Sufficient compliance with paragraph 17 of AFO 14/2008.	AFO 14/2008 regulates terms for civilian employment. Breach of statutory obligation by leaving without permission.
Pay Scale Parity	Banking pay scales are revised more frequently and are higher. Post secured was equivalent to Group A.	No specific sub-submission on pay scale parity.
Criticality of Trade	Post equivalent to Group A waives criticality condition. Cited Corporal Gaurav Badhwar v. Union of India (2015) SCC Online Del 7275 to argue against criticality claim.	Need to maintain manning levels and operational preparedness. Importance of training in specific trades.
Procedural Regularity	Failure to apply through proper channels was a procedural irregularity, not illegality. Liberal approach needed due to career advancement and time elapsed.	No specific sub-submission on procedural regularity.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the court addressed was:

Whether the appellant, a member of the Air Force, had the right to leave his service during his engagement period to take up a civilian job, given the provisions of the Air Force Act 1950, the Air Force Rules, and AFO 14/2008.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Issue	Court’s Decision
Whether the appellant had the right to leave service during his engagement period.	The Court held that the appellant did not have an unqualified right to leave service at his will, emphasizing the restrictions imposed by the Air Force Act 1950 and the need to maintain discipline and operational preparedness. The Court noted that AFO 14/2008 aims to balance the interests of the service with the requests of personnel for civilian employment.

Authorities

The Supreme Court considered the following authorities:

Authority	Court	How Considered	Legal Point
Article 33 of the Constitution of India	Supreme Court of India	Explained the power of Parliament to restrict fundamental rights of armed forces personnel.	Restrictions on fundamental rights of armed forces.
Air Force Act 1950	Parliament of India	Examined Sections 13, 14, and 15 to understand the process of enrolment and obligations of service.	Procedure before enrolling officer, mode of enrolment, and validity of enrolment.
Air Force Rules	Central Government	Considered Rules 7, 9, 13, and 15 to understand the rules governing enrolment, attestation, release, and discharge.	Rules governing enrolment, attestation, release, and discharge.
Air Force Order 14/2008	Indian Air Force	Analyzed the provisions regulating the terms under which IAF personnel may apply for civilian employment.	Conditions for applying for civilian employment, including service length and permission requirements.
Corporal Gaurav Badhwar v. Union of India (2015) SCC Online Del 7275	Delhi High Court	Discussed the assessment of criticality in a trade, but did not follow the same reasoning.	Assessment of criticality of trade.

Judgment

The Supreme Court held that while the appellant did not have an unqualified right to leave the Air Force, the specific circumstances of the case warranted a final resolution. The court noted that the appellant had already been working in the bank for nearly eight years and that re-induction into the IAF would serve no purpose other than to subject him to disciplinary action.

The court, exercising its powers under Article 142 of the Constitution, directed the issuance of a final NOC and discharge to the appellant, subject to a condition.

How each submission made by the Parties was treated by the Court?

Submission	Court’s Treatment
Appellant’s claim of fundamental right to choose employment under Article 19(1)(g)	Rejected, stating that Article 33 allows restrictions on the rights of armed forces members.
Appellant’s claim of sufficient compliance with AFO 14/2008	Rejected, noting that the appellant breached the provisions by applying for a civilian job without prior permission.
Appellant’s argument on pay scale parity	Not directly addressed, but the court acknowledged that the appellant’s job was in a higher scale.
Appellant’s argument on the criticality of trade	Not directly addressed, but the court emphasized the importance of maintaining manning levels in the armed forces.
Appellant’s claim of procedural irregularity	Acknowledged, but the court did not accept it as a reason to allow the appellant to leave the IAF without proper procedure.
Union of India’s submission that members are obligated to serve during engagement period	Accepted, stating that there is a statutory obligation to serve during the period of engagement.
Union of India’s submission that AFO 14/2008 regulates civilian employment	Accepted, noting that the appellant breached the provisions of the AFO.
Union of India’s submission on maintaining manning levels and operational preparedness	Accepted, emphasizing the need to maintain manning levels and operational preparedness of the armed forces.

How each authority was viewed by the Court?

✓ Article 33 of the Constitution of India: The Court relied on this provision to emphasize that the fundamental rights of armed forces personnel can be restricted to ensure proper discharge of duties and maintenance of discipline.

✓ Air Force Act 1950: The Court examined Sections 13, 14, and 15 of the Air Force Act 1950 to highlight the statutory obligations of service and the conditions of enrolment.

✓ Air Force Rules: The Court considered Rules 7, 9, 13, and 15 of the Air Force Rules to understand the procedures for enrolment, attestation, release, and discharge, further reinforcing the statutory framework governing the service of Air Force personnel.

✓ Air Force Order 14/2008: The Court used this order to highlight the conditions under which Air Force personnel can apply for civilian employment, noting that the appellant had breached these conditions.

✓ Corporal Gaurav Badhwar v. Union of India (2015) SCC Online Del 7275: The Court did not follow the reasoning of the Delhi High Court, emphasizing that the assessment of criticality in a trade is within the domain of the employer.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by a combination of legal principles and practical considerations. The court acknowledged the need to uphold the discipline and operational readiness of the armed forces, as mandated by the Air Force Act 1950 and related rules. However, it also recognized the unique circumstances of the case, where the appellant had already been employed in a civilian role for a significant period.

The court’s reasoning emphasized that while the appellant had breached the rules and procedures, his re-induction into the Air Force would be counterproductive. The court was also mindful of the fact that the appellant had been working in the bank for nearly eight years, and his career progression was also a factor. The court sought to strike a balance between enforcing the rules and ensuring justice.

Sentiment Analysis	Percentage
Upholding Discipline and Operational Readiness of Armed Forces	40%
Recognition of Appellant’s Long Employment in Bank	30%
Counterproductive Nature of Re-induction	20%
Need for a Just and Equitable Resolution	10%

Fact:Law Ratio

Category	Percentage
Fact (Consideration of Factual Aspects)	60%
Law (Consideration of Legal Principles)	40%

Logical Reasoning:

Issue: Did the appellant have the right to leave the Air Force?

↓

Consideration: Air Force Act 1950, Air Force Rules, AFO 14/2008

↓

Ruling: No unqualified right to leave during engagement period

↓

Consideration: Appellant’s long employment in bank, futility of re-induction

↓

Decision: Direct issuance of final NOC and discharge with conditions

The Court considered the alternative interpretations, specifically the appellant’s argument that his fundamental right to choose employment under Article 19(1)(g) should prevail. However, the Court rejected this interpretation, emphasizing that Article 33 of the Constitution allows for the restriction of such rights in the case of armed forces personnel. The Court also considered the argument that the appellant’s actions were merely a procedural irregularity, but this was also rejected as insufficient to justify a departure from established rules and procedures.

The court’s decision was reached by balancing the need to uphold the rules and procedures of the Air Force with the practical realities of the situation. The court noted that it was not feasible to re-induct the appellant after such a long period of civilian employment.

The court’s decision was based on the following reasons:

The appellant did not have an unqualified right to leave the Air Force during his engagement period.
The appellant had breached the provisions of AFO 14/2008 by applying for a civilian job without prior permission.
Re-induction of the appellant into the Air Force would be counterproductive, given his long employment in the bank.
The court exercised its powers under Article 142 of the Constitution to ensure a just and equitable resolution.

The court stated, “A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement.” The court also noted, “In the present case, we are now left with the alternative submission invoking the equitable jurisdiction of this Court under Article 142 of the Constitution.” The court further stated, “Having regard to the facts and circumstances which we have noted above, we are of the view that the ends of justice would be met by directing that a final NOC and discharge be issued to the appellant.”

There were no dissenting opinions in this case. The bench consisted of two judges, both of whom agreed on the final judgment.

The Supreme Court’s judgment has significant implications for future cases involving members of the armed forces seeking to leave their service for civilian employment. It clarifies that while the fundamental rights of armed forces personnel are protected, these rights are subject to restrictions necessary to maintain discipline and operational preparedness. The judgment also highlights the importance of following established procedures and regulations.

The judgment does not introduce any new doctrines or legal principles, but it reinforces the existing framework of laws and rules governing the service of armed forces personnel.

Key Takeaways

Members of the armed forces do not have an unqualified right to leave their service during their engagement period.
Prior permission is required to apply for civilian jobs, and failure to obtain this permission can lead to disciplinary action.
The Supreme Court can exercise its powers under Article 142 of the Constitution to ensure a just and equitable resolution in exceptional cases.
The judgment highlights the importance of balancing individual rights with the need to maintain discipline and operational readiness in the armed forces.
The judgment emphasizes the need for armed forces personnel to adhere to the statutory framework and regulations governing their service.

Directions

The Supreme Court directed that a final No Objection Certificate (NOC) and discharge be issued to the appellant within three months of the receipt of a copy of the order. This direction was conditional on the appellant depositing a sum of Rs 3 lakhs with the Union of India within two months of the receipt of the judgment. The final NOC and discharge certificate would be issued only after the deposit was made.

Development of Law

The ratio decidendi of this case is that members of the armed forces do not have an unqualified right to leave their service during the period of their engagement. The Supreme Court upheld the statutory framework and regulations governing the service of armed forces personnel. However, the court also exercised its equitable jurisdiction under Article 142 of the Constitution to provide a just and pragmatic solution in the unique circumstances of this case. This decision does not change the existing position of law, but it reinforces the importance of balancing individual rights with the need to maintain discipline and operational readiness in the armed forces.

Conclusion

In conclusion, the Supreme Court’s judgment in Amit Kumar Roy vs. Union of India clarifies that while members of the armed forces are entitled to certain rights, these are subject to restrictions necessary for the maintenance of discipline and operational readiness. The court’s decision to allow the appellant to continue his civilian job, subject to a penalty, was a pragmatic approach, considering the unique circumstances of the case. The judgment underscores the importance of following established procedures and regulations while also recognizing the need for equitable solutions.

FAQ

Q: Can a member of the Air Force leave their service to join a civilian job whenever they want?
A: No, members of the Air Force do not have an unqualified right to leave their service during their engagement period. They are bound by the terms of their service and the rules of the Air Force.

Q:Is it necessary for an Air Force member to get prior permission before applying for a civilian job?
A: Yes, it is necessary. Air Force Order 14/2008 mandates that Air Force personnel must obtain prior permission from their unit commanders before applying for civilian employment.

Q: What is the significance of Article 33 of the Constitution in this context?
A: Article 33 of the Constitution allows Parliament to restrict or abrogate the fundamental rights of members of the armed forces to ensure the proper discharge of their duties and the maintenance of discipline.

Q: What is the role of AFO 14/2008 in this case?
A: Air Force Order 14/2008 regulates the terms under which IAF personnel may apply for civilian employment. It mandates a minimum of seven years of service to apply for civilian posts and requires prior permission from unit commanders.

Q: Why did the Supreme Court allow the appellant to continue his job at the bank despite the procedural lapse?
A: The Supreme Court exercised its powers under Article 142 of the Constitution to ensure a just and equitable resolution. The court noted that the appellant had already been working in the bank for nearly eight years, and re-induction into the IAF would serve no purpose other than to subject him to disciplinary action.

Q: What does the Supreme Court’s decision mean for future cases involving armed forces personnel seeking civilian employment?
A: The judgment clarifies that while the fundamental rights of armed forces personnel are protected, these rights are subject to restrictions necessary to maintain discipline and operational preparedness. It reinforces the importance of following established procedures and regulations.

Q: What was the condition imposed by the Supreme Court on the appellant?
A: The Supreme Court directed the issuance of a final NOC and discharge to the appellant, subject to a condition that he deposit a sum of Rs 3 lakhs with the Union of India within two months of the receipt of the judgment.

Source: Amit Kumar Roy vs. Union of India