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Squadron Leader Giri Narayana Raju Vs. Officer Commanding 48 Squadron and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 5017 of 1973
Judge
Reported inAIR1974All362
ActsAir Force Act, 1950 - Sections 190; Constitution of India - Article 14
AppellantSquadron Leader Giri Narayana Raju
RespondentOfficer Commanding 48 Squadron and ors.
Appellant AdvocateS.B. Chaudhary and ;R. Chaudhary, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....opposed - power to issue directions - order from headquarters hold position as if signed by chief of air staff. - - learned counsel for the petitioner has failed to point out anything in the air force act or the rules framed thereunder which either expressly or by necessary implication prohibit issuing of such instructions. what orders a superior authority would like to issue will necessarily depend upon the circumstances and exigencies appearing on the particular occasion. --failure to have been wearing a helmet at the time of riding, may be construed as neglect in case of an accident resulting in injuries, death, and may thus affect the question of attributability and/ or dependant's pension. ' 11. he urged that consequence of failing to comply with the impugned order has been..........on 28-3-1970 the air headquarters, new delhi issued instructions making it compulsory for the air force personnel to wear crash helmets with effect from april 1 of the year. certain enquiries were made from the air headquarters, which by a letter dated 10th june 1970, clarified that crash helmet was to be worn by every air force personnel when riding a motor cycle or a scooter, irrespective of the fact whether he was so riding on duty or off duty, whether in uniform or in plain clothes or whether riding on driver's seat or on a pillion seat. it was also made clear that the instructions contained therein apply equally to the rider of all forms of two wheeled motorised vehicles including motor cycles, scooters, scooterett, mopedes and motorett cycles, but not if any of the aforementioned.....
Judgment:
ORDER

H.N. Seth, J.

1. This petition under Article 226 of the Constitution is by Sq. Ldr. Giri Narain Raju.

2. On 28-3-1970 the Air Headquarters, New Delhi issued instructions making it compulsory for the Air Force Personnel to wear crash helmets with effect from April 1 of the year. Certain enquiries were made from the Air Headquarters, which by a letter dated 10th June 1970, clarified that crash helmet was to be worn by every Air Force personnel when riding a motor cycle or a scooter, irrespective of the fact whether he was so riding on duty or off duty, whether in uniform or in plain clothes or whether riding on driver's seat or on a pillion seat. It was also made clear that the instructions contained therein apply equally to the rider of all forms of two wheeled motorised vehicles including motor cycles, scooters, scooterett, mopedes and motorett cycles, but not if any of the aforementioned vehicles were attached with a side car. It was further clarified that these instructions do not apply to Sikh personnel or others who while riding on such conveyance wear turban.

3. On 4-7-1973, the petitioner was found riding a scooter without wearing it crash helmet. He was required to explain his conduct. After the petitioner gave his explanation, his Commanding Officer found that he had contravened the instructions issued by the Air Headquarters and informed him about the displeasure of the Air Force Officer Commanding-in-Chief of the Central Air Command. He also directed that the aforesaid warning be reflected in his annual confidential report. Being aggrieved by the aforesaid order, Sq. Ldr. Giri Narain Raju filed this petition and prayed that the instructions issued by the Air Headquarters requiring Air Force personnel to wear crash helmets while riding two wheeled moto-rised vehicles when not on duly, and the communication dated 27th July 1973 from his Commanding Officer informing him that he had incurred the displeasure of the Air Force Officer Commanding-in-Chief of the Central Command, be quashed.

4. First submission made by the learned counsel appearing for the petitioner is that neither is there any provision in the Air Force Act 1950 or the Rules or Regulations framed thereunder which requires the Air Force personnel to wear a crash helmet while riding a scooter on personal business, nor is there any law which authorises the Air Headquarters to issue such a direction. Accordingly, the impugned instructions, were completely without jurisdiction.

5. The Air Force Act of 1950 has been enacted in order to consolidate and amend the law relating to the administration of the Air Force of this country. In so far as the Air Force Act has made provisions on the subjects mentioned therein those provisions are to prevail and no orders or instructions which are contrary to the provisions of the Air Force Act or the Rules framed thereunder can be issued. Learned counsel for the petitioner has failed to point out anything in the Air Force Act or the Rules framed thereunder which either expressly or by necessary implication prohibit issuing of such instructions. However, the real question that arises for consideration in this connection is whether it is open to the Air Force authorities to issue orders or directions which, though not prohibited by the Act or the Rules, are not specifically covered by them.

6. Regulations for the Air Force, issued under the authority of Government of India, have been compiled in a book entitled 'Defence Services Regulations, Regulations for the Air Force'. Chapter II of the Regulations lavs down the organization of the Air Force. Regulation 7 provides that the Supreme Command of the armed forces (of which Air Force is a component) is vested in President of India and the Chief of the Air Staff is responsible to the President through the Central Government for the administration and organization of the Air Force. Regulation 8 then provides that Air Headquarters comprises of the Chief of the Air Staff and his principal staff officers viz. the Vice-Chief of the Air Officer in charge administration and the Air Officer in charge of maintenance. It also lays down that the staff at the Headquarters shall consist of three branches viz. the Air Staff Branch, the Administration Branch and the Maintenance Branch, each branch being organised into directorates. Detailed organization and functions of these branches are laid down in the Directory of duties issued by the Chief of the Air Staff. Chief of the Air Staff has issued directions that the Directorate of Personnel Service in the Administration Branch is to deal with the question of dress regulations and physical fitness of Air Force personnel. It follows that all the Air Force personnel are subject to the command of the President which power is to be exercised through the Chief of the Air Staff. Various orders can be issued which have to be obeyed by all Air Force personnel. The President of India, acting through the Chief of the Army Staff can authorize even subordinate officers to issue orders to persons under their respective command. Such orders will also have to be obeyed. In the very nature of things it is for any one to classify or codify all types of orders that a superior is expected to pass in connection with the discipline, training and performance of duties by defence force personnel. What orders a superior authority would like to issue will necessarily depend upon the circumstances and exigencies appearing on the particular occasion. It would^ therefore, be futile to urge that if there is no specific provision under the Act or the Rules or the Regulations it will not be open to superior officers to issue orders or directions, to the persons under their command. In my opinion, once a person has joined the Air Force or any other wing of the Defence Force, he is subject to all orders which are issued by his superiors, so long as those orders do not contravene any provision of law or regulations and the subordinates would be bound to carry them out. Orders issued by Air Force authorities therefore, cannot be challenged on the ground that there is no provision in the Act or the Rules authorizing them to issue such order.

7. Sri S. B. Chaudhari, learned counsel for the petitioner then argued that in any case, the superior officers cannot issue orders or directions in contravention of specific provisions contained in the Acts, Rules or the Regulations framed thereunder. He invited my attention to paragraph 917 of the Regulations which provides that Air Force orders on matters of administrative nature affecting the Air Force Formation and Units as a whole, are to be issued by the Chief of the Air Staff. He contends that in this case, the direction that all Air Force personnel must use crash helmets has been issued by the Air Headquarters and not by the Chief of the Air Staff. He even goes further and urges that the Chief of the Air Staff also could not issue such a direction, as he had not been authorized to issue such an order by the rules framed by the Central Government under Section 189 of the Air Force Act. As stated earlier, it is not necessary that every order passed by the Chief of the Air Staff must be backed by some section or some rule framed under the Air Force Act. Accordingly, the fact that the Rules framed under Section 189 of the Air Force Act do not authorise the Chief of the Air Staff to issue directions of the nature impugned before me, has no significance. The respondents have justified the order on the ground that as provided in Regulation No. 8 of Chapter VII of the Regulations framed for the Air Force, it is Chief of the Air Staff who is responsible for the Administration and Organisation of the Air Force as a whole though in this connection he is answerable to the President of India through the Central Government. The Chief of the Air Staff is competent to issue all such administrative directions which as stated earlier are not contrary to the provisions of the Act or the Rules framed thereunder. The only question therefore that remains to be considered in this connection is whether the instructions issued by the Air Force Headquarters can be equated with the orders passed by the Chief of the Air Staff or not. Regulation 8 makes it clear that the Air Headquarter comprises of the Chief of the Air Staff and the other officers mentioned therein, viz. Vice-Chief of the Air Staff, the Deputy Chief of the Air Staff and the Air Officer In charge Administration and the Air Officer In charge Maintenance, are merely the principal staff officers of the Chief of the Air Staff. These staff officers are placed in charge of various branches under the Chief of the Air Staff. Being on the staff of the Chief of the Air Staff, they act on behalf of the Chief of the Air Staff. Accordingly, every order emanating from the Air Headquarter can be deemed to be an order issued by the Chief of the Air Staff, even though it has not been signed by the Chief of the Air Staff. The argument that as the impugned order was issued by the Headquarter as distinguished from the Chief of the Air Staff, it contravened paragraph 917 of the Regulation, therefore, has no force and deserves to be rejected.

8. I may point it out here that Sri Chand Kishore learned Standing Counsel, tried to urge that paragraph 917 makes it incumbent for the Chief of the Air Staff to issue orders in respect of matters of administrative nature only when those orders are to affect Air Force Formation of Units as a whole. He contended that in this case the order was intended to cover only such persons in the Unit who drove two-wheeled motorised vehicles and did not affect the unit as a whole. In the circumstances, paragraph 917 had no application and the order issued by the Air Headquarter or by an officer who has been put incharge of Administration by the Chief of the Staff was fully competent. However, in the view which I have expressed above viz. that every order issued from the Air Headquarter will be deemed to be an order issued by and on behalf of the Chief of the Air Staff, it is not necessary for me to go into the question whether or not the impugned order was an order of administrative nature affecting the Units of the Air Force as a whole.

9. Learned counsel for the petitioner urged that detailed regulations regarding the nature of dress to be worn by Air Force personnel is contained in Chapter IX of the aforesaid regulations. This chapter consists of regulations Nos. 401 to 426 wherein detailed provisions have been made about the type of clothes that Air Force personnel are expected to wear on various occasions. These Regulations do not require the Air Force personnel to wear crash helmets. Accordingly, it is not possible for the Air Force authorities to prescribe a dress in a manner which is not consistent with these regulations. I am unable to accept this submission. Prescription of dress and the circumstances in which it is to be worn in regulations Nos. 401 to 426 is not exhaustive. As explained above it is always open to Air Force Authorities to issue instructions which are not inconsistent with the regulations. I find nothing in the impugned instructions which is inconsistent with Regulations Nos. 401 to 426.

10. Sri Chaudhari then referred to paragraph 7 of the clarification issued by the Air Headquarters. (Annexure II to the petition) wherein it was mentioned as follows:--

'Failure to have been wearing a helmet at the time of riding, may be construed as neglect in case of an accident resulting in injuries, death, and may thus affect the question of attributability and/ or dependant's pension.'

11. He urged that consequence of failing to comply with the impugned order has been laid down in the aforesaid clarification which provides that failure to wear crash helmet could merely be treated as neglect which might possibly affect the question of attributability and or dependant's pension. It was therefore not open to the authorities to warn the petitioner and to direct that the warning be reflected in his annual confidential roll, thereby affecting his chances of promotion. I am unable to accept this submission. Annexure 2 is a mere clarification with regard to one of the grave consequences that may follow in case an airman, riding a vehicle like scooter or motor cycle, without wearing crash helmet, met with an accident i.e. in such a case, he may be considered to have been negligent, thereby affecting his dependant's pension or any compensation that may be payable to him. The object merely was to impress upon the airmen that it was in their own interest to wear crash helmets while riding scooters etc. It was never intended to be an exhaustive list of the consequences that would follow if any airman did not obey the order issued by the Air Headquarter. No clarification to acquaint the Air Force personnel that they were bound to obey the orders issued by the Air Force Headquarter, and the consequence of not obeying the same was either necessary or was intended to be communicated by the aforesaid clarification.

12. Next point urged by the learned counsel for the petitioner is that the impugned instructions are discriminatory and are as such liable to be quashed. The discrimination alleged by the petitioner is that while the instructions exempt all Sikhs from wearing crash helmets, they make it obligatory for airmen like the petitioner who is not a Sikh to wear the crash helmet. According to him this is discrimination without any basis and offends Article 14 of the Constitution. I am unable to accept this submission. The object of the instructions is to assure greater personal safety to an airman travelling on two wheeed motorised vehicles so that in case of accident if he is thrown on road, chances of receiving head injury may be minimised. In the first place, the impugned instructions do not classify the Air Force personnel riding such vehicles between Sikhs and non-Sikhs. It merely clarifies that the instructions do not apply to Sikhs or other persons who wear turban while riding motor cycle etc. It is true that generally Sikhs wear turbans and the clarification merely recognised that fact. In fact the instructions were not to apply to any person who wore turban while riding motor cycle or scooter. The classification, therefore, is between persons who ride on such vehicles with and without turban. Moreover, in case of an accident the chances of receiving head injury in the rider wearing turban are minimized to a great extent and in the same way in which they are minimised in the case of riders wearing crash helmets. Wearing of turban by Sikh personnel has a religious significance for them and their religious sentiments have throughout been respected by all concerned in this country. Accordingly turban has been made a part of their uniform. It has therefore, not been considered proper to require Sikh airmen to wear crash helmet in place of turban. It is also apparent that there is no point in requiring any one to wear crash helmet on top of turban. In the circumstances, the classification between Sikhs and other personnel wearing turban and those not wearing turban while riding scooter etc. would be reasonable. On the face of it, the instructions would apply to Sikh personnel driving such a vehicle without a turban as well. But it is not necessary for me to express any final opinion on that point.

13. Lastly learned counsel for the petitioner contended that it was not possible for the respondents to have prescribed any dress including head gear to be worn while the Air Force personnel was off duty. This argument, in my opinion, has no substance. While dealing with the administration of the Air Force it is open to the Chief of the Air Staff and the President of India to issue directions or orders which have to be obeyed by all airmen whether on duty or off duty. In various paragraphs of the Manual the expression 'off duty' has been used in a general sense viz. while not performing official work. But that does not mean that while an Air Force personnel is off duty, has ceased to be an Air Force personnel and becomes not subject to the directions or orders which may be issued by his superior. Submission made by the learned counsel for the petitioner, if accepted would lead to absurd results, for if a person is off duty it will not be possible for the superiors to issue any directions or to call him back to duty. Even though at a particular time a person may not be on duty still he would be an airman bound to obey the orders of his superiors.

14. Learned counsel for the petitioner also contended that the statement made in Annexure 4 that as a result oi the lapse on his part, the petitioner has incurred displeasure of the Air Officer Commanding in Chief of the Central Air Command, amounts to a punishment and as such deserves to be quashed. As I understand, this argument was raised for the purpose of showing that in view of Clause 7 of Annexure 2 to the writ petition, it was not open to the respondents to visit the petitioner with any consequence other than provided therein. I have already repelled that submission in earlier part of this judgment. Even if incurring of displeasure by the Air Officer Commanding in Chief, results in punishment or censure, it has not been shown to me how inflicting of that punishment is vitiated in any manner. Before inflicting the punishment (if it be so) the petitioner had been given an opportunity to offer his explanation and the same had been considered by the relevant authorities.

15. As none of the submissions made by the petitioner has any substance the writ petition fails and is dismissed with costs.


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