Full Judgment Text
1
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S) 7603 OF 2019
(Arising out of Civil Appeal Diary No.17096 of 2017)
Union of India & Ors. ..…Appellant(s)
Versus
Lt. Col. Kuldeep Yadav ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
Admit.
2. The moot question involved in this appeal is: whether the
Armed Forces Tribunal despite noting that the punishment of
censure awarded by the competent authority cannot be faulted,
ought to have interfered on the specious ground that “Severe
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2019.09.25
17:53:26 IST
Reason:
Displeasure (Recordable)” was not commensurate and excessive
in the facts of the present case; and to direct the competent
2
authority to award censure other than “Severe Displeasure
(Recordable)”, merely because censure can also be of Severe
Displeasure (NonRecordable) or mere Displeasure, as the case
may be? The incidental question is: whether this approach,
inevitably, entails in sitting over the subjective satisfaction of the
competent authority in the matter of awarding punishment?
3. The respondent was commissioned in the Army Corps of
th
Electronics and Mechanical Engineering (EME) on 6 December,
1997. He was posted to UNDOF, Golan Heights as Transport
th th
Officer w.e.f. 5 July, 2008 to 4 July, 2009. In January 2009, or
around that time, he came in contact with a foreign national Miss
De Oliviera Sueli Montilha (in short Ms. Sueli) of Brazil, who was
working with Nazha and Darwish a subcontractor company for
United Nations in Syria. While posted at UNDOF, the work place
of the respondent was Headquarters Counter Insurgency Force
th
(U) (HQ CIF (U)) w.e.f. 5 July, 2009 as AQMG. He was then
detailed for Officers Advance Computer Technical (OACT) course
Serial No.20 at Military College of Electronics and Mechanical
th
Engineering (MCEME), Secunderabad w.e.f. 4 June, 2011 to
rd
23 March, 2012.
3
4. It is stated that the respondent continued to remain in
contact with Ms. Sueli through emails, phone calls, skype, short
messaging system (SMS) and personal meetings for over two
years from 2009 to 2011. He also stayed with her at the Army
th
premises, 2 STC Officers Mess, Guest Room in Goa from 12
th
October, 2011 to 15 October, 2011.
5. Upon cognition of the stated misdemeanour of the
respondent, a Staff Court of Inquiry was convened by the
Headquarters, Southern Command to investigate into the
circumstances under which the respondent came in contact with
a foreign national and stayed with her at the Army premises in
Goa, in contravention of the “Instructions on Contact with
Foreign Nationals, 1987” (for short, “ 1987 Instructions ”). The
Staff Court of Inquiry was finalised with directions of General
Officer CommandinginChief, Southern Command (GOCinC).
Consequent thereto, a show cause notice was issued to the
th
respondent vide letter dated 25 January, 2013, so as to give an
opportunity to the respondent to explain and show cause as to
why censure be not awarded to him. The relevant extract of the
show cause notice reads thus:
4
“SHOW CAUSE NOTICE
1. A court of inquiry was convened by HQ Southern
Command to investigate into the circumstances under
which you allegedly made contact with a foreign
national and stayed with Miss De Oliviera Sueli
Montilha of Brazil at HQ 2 STC Officers Mes, Goa with
effect from 12 Oct to 15 Oct 2011 in contravention of
the “Instructions on contact with Foreign Nationals
1987”
2. The proceedings of said court of inquiry were placed
before the General Officer Commanding in Chief,
Southern Command, who has found you prima facie
blameworthy for the following lapses:
(a) For violating the provisions of paras 7, 13,
44 and 45 of “instructions on contact with
foreign nationals 1987” issued by Army
Headquarters on following counts:
(i) Unauthorisedly having contact with Miss
Sueli De Oliveira Montilha, a foreign
National, through emails, phone calls,
skype, short messaging system (SMS) and
personal meetings for over two years from
2009 to 2011.
(ii) Unauthorisdely and improperly writing
letters dated 11 October 2010 and 3
March 2011 of sponsorship to Indian
Embassy Damascus (Syria) for facilitating
Miss Sueli De Oliveira Montilha’s visit to
India.
(iii) Personally meeting Miss Sueli De Oliveira
Montilha during her visits to India four
time from 03 to 08 Jul 2010, 13 to 24
December 2010, 01 to 05 April 2011 and
12 to 15 October 2011.
(iv) Unauthorisedly bringing and staying with
Miss Sueli De Oliveira Montilha in the
Army premises in Goa from 12 to 15
October 2011.
(b)
For violating the instructions on use of
internet by Army personnel issued vide
5
directorate General of Military Intelligence,
General Staff, Integrated Headquarters of
Min of Defence (Army) vide their letter No.
A/38024/1/MI11 dated 03 October 2011
on following counts:
(i) Unauthorisedly keeping official documents
in your laptop which was being routinely
connected to the internet as brought out
by the court of inquiry.
(ii) Maintaining facebook account revealing
your rank, name and unit location
…………………..”
6. The respondent submitted his response to the show cause
notice, which was duly considered by the competent authority.
th
Finally, the competent authority vide decision dated 10 May,
2013, found respondent blameworthy of all the lapses attributed
to him in the show cause notice and conveyed Severe Displeasure
(Recordable) to the respondent. The relevant portion of the said
communication reads thus:
“……………………….
3. Commandant Military College of Electronics and
Mechanical Engineering, Secunderabad has opined
that although the lapse committed by the officer is
inexcusable on moral grounds but now the officer has
been conducting himself in exemplary manner. The
officer on professional front has an outstanding record
and achieved consistently phenomenal grades right
from his school days and thereafter on all courses in
the Army. He is a high caliber officer and considering
the lapses as one time indiscretion as claimed by the
officer and the fact that he has a long way ahead, a
lenient view may be taken.
6
4. From the record of service of the officer
attached with his Reply to his Show Cause Notice, it is
evident that officer has done well in all the courses. He
was accordingly graded as per his performance.
However, doing exceedingly well in his service as
brought out above, does not give license to the
officer to commit lapses / misdemeanors and
conduct himself in an unofficer like manner as
mentioned in the Show Cause Notice bearing No
A/2405020/338/DV2 dated 25 January 2013.
Infact, such officers with good career profile are
expected to conduct themselves in a more
exemplary manner worth emulating by others.
Further, the officer had put in sufficient service
and was holding the rank of Lieutenant Colonel at
the relevant time of committing the lapses /
misdemeanors. His remaining in constant contact
with the foreign national for about two years,
staying with her in Officer’s Mess at Goa and
violating instructions on use of internet by Army
personnel as mentioned in the Show Cause Notice
are inexcusable as these are not one time
indiscretion / aberration but repetition of the same
time and again .
5. Considering all the facts and circumstances of
the case, I find IC57351N Lieutenant Colonel Kuldeep
Yadav blameworthy of all the lapses attributed to him
in Headquarters Southern Comd. Show Cause Notice
bearing No A/2405020/338/DV2 dated 25 January
2013.
6. In view of the above, I direct that my ‘Severe
Displeasure (Recordable)’ conveyed to IC57351N
Lieutenant Colonel Kuldeep Yadav of Military College
Electronics and Mechanical Engineering,
Secunderabad.”
(emphasis supplied)
7. The respondent resorted to a statutory complaint before the
competent authority, which, after due consideration of all the
7
th
grounds urged by the respondent vide order dated 26 February,
2014, rejected the same. The relevant part of the said order reads
thus:
“………………
AND WHEREAS, the Complainant has prayed for the
following:
(a) The award of ‘Sever Displeasure (Recordable)’ be
set aside and he be pardoned considering it to be a
onetime aberration.
(b) Alternatively, ‘Severe Displeasure (Recordable)’
be mitigated to ‘Severe Displeasure (Non Recordable)’
considering his outstanding career and 16 years of
unblemished service record to enable him to go
through the Number 3 Selection Board based on his
merit and not let one mistake affect his entire life and
career.
AND WHEREAS, perusal of documents on record
reveal the following :
(a) The Complainant was found blameworthy for
violating provisions of para 7, 13, 44 and 45 of
“Instructions on Contact with Foreign Nationals
1987” . He had unauthorized contact with Ms Sueli De
Oliveira Montilha, a Foreign National through email,
phone calls, Skype, SMS and personally meeting four
times during her visits to India between January 2009
to October 2011.
(b) The Complainant unauthorizedly wrote letters of
sponsorship to Indian Embassy in Damascus (Syria)
for facilitating Ms Sueli De Oliveira Montilha’s visit to
India.
(c) The Complainant violated the policy instructions
on use of internet by Army personnel issued by
Directorate General of Military Intelligence, Integrated
Headquarters of Ministry of Defence (Army) vide their
8
letter dated 03 October 2011 by keeping official
documents in his laptop which was routinely
connected to internet and maintained a ‘Face Book
Account’ revealing his rank, name and unit location.
The laptop was also used personally by Ms Sueli De
Oliveira Montilha on a number of occasions thereby
giving her access to classified documents.
The Complainant had put in 13 years and 10
(d)
months of service at the relevant time and was holding
the rank of Lieutenant Colonel. The lapses on his
part for violation of ‘Instructions on Contact with
Foreign Nationals1987’ and Policy Instructions
dated 03 October 2011 on use of internet by Army
Personnel, issued by Directorate General of
Military Intelligence, Integrated Headquarters of
Ministry of Defence (Army) are serious in nature,
The award of ‘Severe Displeasure (Recordable)’ by
GOCinC Southern Command on 10 May 2013 is
commensurate to the lapses on the part of the
Complainant.
(e) Exemplary Record of Service and outstanding
performance of the Complainant prior to and after
the award of Censure are as such no grounds for
.
redressal
(f) The Complainant remained in constant contact
with the foreign national for about two years; staying
with tier in Officer’s Mess of Number 2 Signals
Training Centre, Goa from 12 October 2011 to 15
October 2011, thereby violating the laid down
instructions. Considering his rank and status, the
award of ‘Severe Displeasure (Recordable)’ to the
Complainant is fair, just and legal and does not
merit any mercy .
(g) The Complainant has contended that he will be
screened by Number 3 Selection Board for promotion
to the next rank in May 2014 and Censure will have
adverse affect on his entire career.
The award of a
Censure does not debar an officer from being
considered for promotion |and may not by itself
affect his promotion. However, while it is
9
operative, it is taken cognizance of as part of the
officer’s overall Record of Service in assessing his
performance for such promotion. The effect of a
Recordable Censure on promotion would be
considered in its totality based on his overall
performance .
6. AND NOW THEREFORE, having considered the
Statutory Complaint in its entirety alongwith available
documents on record, the Central Government finds
that the contentions raised by the Complainant lack
merit. The Statutory Complaint dated 22 June 2013
submitted by IC57351N Lieutenant Colonel Kuldeep
Yadav, is rejected.
(VN Raveendran)
Under Secretary to the Government of India”
(emphasis supplied)
8. Eventually, the respondent carried the matter before the
Armed Forces Tribunal Principal Bench, New Delhi (for short,
“ Tribunal ”) by filing Original Application No.555 of 2014. The
Tribunal first considered the ground urged by the respondent
that the show cause notice was not legal and valid as the same
was issued in violation of 1987 and 2011 Instructions. According
to the respondent, the said Instructions could not be invoked
against him. The Tribunal, however, opined that the purpose of
1987 Instructions would be defeated, if a narrow interpretation
was to be given thereto i.e., it applies only at the initial contact
with the foreign national and not to cases involving subsequent
10
and continued contact with the officer. The Tribunal then noted
that in response to the subject show cause notice, respondent
admitted the allegations made against him but had prayed for a
lenient view. The Tribunal thus held that the challenge to the
validity of the show cause notice cannot be countenanced at the
instance of the respondent.
The Tribunal then dealt with the next ground urged by the
9.
respondent regarding non applicability of 2011 Instructions.
Even that plea came to be rejected on the finding that mere
clerical error pertaining to incorrect mention of the date of
Instructions, would not change the nature of allegations or vitiate
the show cause notice, moreso, in light of acceptance of the
allegations by the respondent. The Tribunal noted that due to
quoting of incorrect year of instructions, no prejudice is caused
to the respondent. Besides, the respondent had clearly
understood the allegations made against him in the show cause
notice. It further noted that the challenge was not with regard to
the source of power of the competent authority.
The Tribunal then considered the next ground urged by the
10.
respondent that the rejection of his statutory complaint was not
due to foreign national having opportunity to have access to
11
“Classified Documents”. Whereas, the allegation was only about
the possibility of access to official documents on the respondent’s
laptop. The Tribunal, however, observed that it would make no
difference nor render the order of Severe Displeasure (Recordable)
invalid on that count alone. It then went on to observe that even
nonconsideration of exemplary service record of the respondent,
whilst rejecting the statutory complaint by the appropriate
authority per se would not vitiate the order of Severe Displeasure
(Recordable).
11. The Tribunal then proceeded to consider the argument of
the appellant herein that the order of Severe Displeasure
(Recordable) should not be interfered with. While dealing with
this contention, the Tribunal noted that the respondent had not
intentionally suppressed his real identity and had offered
explanation in reference to Question No.19 of the Staff Court of
Inquiry Proceeding. The respondent had clearly stated that he did
not disclose that he was staying with foreign national lady, due to
personal reasons from family point of view. The Tribunal held
that that fact had commended to the competent authority for
which, no allegation is noted in the show cause notice relating
12
to wrong personal details given by the respondent in the register
of the Army Guest House.
The Tribunal then proceeded to deal with the justness of the
12.
order awarding “Severe Displeasure (Recordable)”. While doing
so, it adverted to the policy regarding award of Severe
Displeasure (Recordable) to Officers and JCOs vide letter dated
rd
23 April, 2007 and another policy on “Code of Conduct of
Selection Boards by Quantification System” issued by the
th
Military Secretary Branch, IHQ MoD (Army) dated 4 January,
2011. After adverting to these policies, the Tribunal noted that
the competent authorities of Army, while taking cognizance of the
misdeed of the respondent in maintaining contact with a foreign
national without due permission and violating security related
instructions, did not find the charge serious enough to proceed
against the respondent with disciplinary action. However, the
appropriate authority was content to deal with the respondent
administratively, by awarding him Severe Displeasure
(Recordable). The Tribunal then noted that this award coincided
with all three chances of No.3 Selection Board for the respondent.
13
After having said this, the Tribunal proceeded to observe as
follows:
“36. We have perused the communication dated
03.06.2013 on “Lifting of DV Ban on IC 57351N Lt Col
Kuldeep Yadav”, the document in the dossier of the
applicant put up to the Members of No.3 Selection
Board, whose para 2 (j) has been amended vide letter
dated 12.09.2016, when the hearing of this case was
in progress. The said action on the part of the
respondent has no bearing on the proceeding of No.3
Selection Board, as the receiver does not reveal non
selection of the applicant only on the ground of award
of censure.
37. Having held so, we shall now proceed to examine
as to whether punishment of ‘Severe Displeasure
(Recordable)’ is too harsh, having regard to his
conduct as well as service profile, as the same leads to
the denial of promotion to the applicant. As noticed
above, the applicant has a brilliant service profile and
is a very efficient and meritorious officer. There was no
blemish against him prior to issuance of show cause
notice which led to awarding the censure.
38. The Policy of awarding of censure provides that the
censure, which can be ‘Severe Displeasure
(Recordable)’, ‘Severe Displeasure (NonRecordable)’
and ‘Displeasure’, is awarded for an act, conduct,
omission or offences of minor nature and not in case
involving moral turpitude, fraud, theft, dishonesty and
misappropriation. The respondent authority having
issued the show cause notice asking the applicant to
show cause as to why he should not be censured, has
accepted the fact that the applicant’s act or conduct is
not serious, but of minor nature and not an act
involving moral turpitude, fraud, theft, dishonesty or
misappropriation, for which one has to be tried either
by Court Martial or by prosecution in a Civil Court.
The applicant in his reply to the show cause notice has
14
admitted the allegations, made against him which also
reflects his intention of not concealing anything from
the authority. The respondent authority has also
condoned the action of the applicant in furnishing
wrong information in the guest list of the guest room
relating to his service details by not levelling said
allegation in the show cause notice issued. The
documents in the Laptop of the applicant were also not
‘Classified’ documents. Had those documents be of
sensitive nature touching even remotely the security of
the state the applicant would have been tried by the
Court Martial. That apart, as discussed above, had the
award of censure not coincide with all the three
chances of No.3 Selection Board, the applicant would
have been selected for promotion. As noticed above,
the respondents themselves have found those
allegations as not serious warranting trial by Court
Martial.
39. The applicant, however, undoubtedly has to
punished for his lapses, which he has admitted. Hence
though we are of the considered opinion that while the
action of the respondents in awarding censure cannot
be faulted, punishment of ‘Severe Displeasure
(Recordable)’ does not commensurate with the act and
conduct of the applicant having regard to the facts and
circumstances involved as it leads to denial of
promotion to otherwise a bright officer.
40. We, therefore, while setting aside the impugned
order dated 10.05.2013 passed by the Respondent
No.3, awarding ‘Severe Displeasure (Recordable)’,
remand the matter to the Respondent No.3 to
reconsider the same and to take any of the
administrative action permissible under the Policy laid
down on Award of Censure of Officers and JCO’s
circulated vide communication dated 23.04.2007,
other than ‘Severe Displeasure (Recordable)’. Based on
the said decision, the Competent Authority shall
consider the Applicant for promotion by No.3 Selection
Board as a ‘fresh case’ in accordance with the Rules.
15
41. The OA is accordingly allowed to the extent
indicated above. No costs.”
13. This decision is the subject matter of challenge in the
present appeal. Thus, the limited challenge is regarding the
interference with the awarding of Severe Displeasure (Recordable)
by the disciplinary authority. That has been done despite a
categorical finding that the fact situation of this case warrants a
censure against the respondent, for having violated the above
stated Instructions.
14. It is urged that the quantum and nature of punishment is
the sole prerogative of the disciplinary authority; and in the
present case, that discretion has been exercised with due
consideration of all the relevant matters. It is urged that the
punishment awarded to the respondent by no standards can be
labelled as shockingly disproportionate. However, the Tribunal
got swayed away on tenuous reasoning; and interfered with a just
decision of the appropriate authorities. The reasoning adopted by
the Tribunal is palpably replete with error apparent on the face of
the record, if not perverse. Inasmuch as, merely because the
authorities chose to proceed against the respondent
16
administratively instead of resorting to Court Martial, does not
warrant a conclusion that awarding of Severe Displeasure
(Recordable), despite the nature of misdemeanour of the
respondent, was excessive or shockingly disproportionate.
Further, the Tribunal has completely undermined, if not glossed
over, the seriousness of the allegations against the respondent as
noted in the show cause notice, which, the respondent had
unwaveringly accepted and beseeched the authority to take a
lenient approach being a onetime aberration or to borrow his
words, “a momentary loss of indiscretion”.
It is urged by the appellant that brilliant service record of
15.
the respondent cannot wash away the indiscretion which could
have escalated to threats concerning national security. Further,
the authorities were fully conscious about the service record of
the respondent and after duly considering all aspects decided to
award Severe Displeasure (Recordable). The acts of commission
and omission of the respondent, which, he admitted to have
indulged in, were inexcusable and warranted a serious
departmental action. Indisputably, the respondent had admitted
to have remained in touch with a foreign national for over two
17
years including having facilitated her to visit India and also
stayed with her in the Army officers’ mess guest room by making
false entries in the respective diary and giving false identity that
foreign national was his wife. The lesser action of censure of
Severe Displeasure (Recordable), therefore, by no standards can
be said to be untenable on facts or in law. To buttress the above
submissions, reliance is placed on Ranjit Thakur Vs. Union of
1
,
India and Others B.C. Chaturvedi Vs. Union of India and
2
Others , Union of India and Others Vs. Bodupalli
3 4
, ,
Gopalaswami Union of India Vs. Parma Nanda Mithilesh
5
Singh Vs. Union of India and Others , General CourtMartial
6
,
and Others Vs. Col. Aniltej Singh Dhaliwal Union of India
7
and Others Vs. Dwarka Prasad Tiwari and S.R. Tewari Vs.
8
Union of India and Another .
16. The respondent, on the other hand, would adopt the
reasons recorded by the Tribunal, to justify the interference with
1 (1987) 4 SCC 611
2
(1995) 6 SCC 749
3 (2011) 13 SCC 553
4 (1989) 2 SCC 177
5 (2003) 3 SCC 309
6
(1998) 1 SCC 756
7 (2006) 10 SCC 388
8 (2013) 6 SCC 602
18
the censure of “Severe Displeasure (Recordable)”. According to
the respondent, since the Tribunal granted him substantive relief
by directing the competent authority to award any other censure
(namely, “Severe Displeasure (NonRecordable)” or “Displeasure”),
he did not deem it necessary to assail the impugned order. It is
urged that the impugned censure order deserves to be quashed
because the very foundation of the show cause notice was
misplaced. Moreover, the members to No.3 Selection Boards (SB
3) were misled due to furnishing of wrong disciplinary inputs
concerning the respondent, leading to incorrect decision. Further,
the extant Discipline & Vigilance Policy (DV Policy) came to be
wrongly applied. Similarly, the Military Secretary Branch Policy
(MSB Policy) was inapplicable. Additionally, the order of the
Central Government on the statutory complaint filed by him was
unsustainable. It is urged that awarding of censure of Severe
Displeasure (Recordable) has had a punitive effect, including on
career progression of the respondent. Thus, it is urged that in the
interest of justice, the respondent may be allowed to challenge
the order of the Tribunal rejecting his claim on merits.
19
17. According to the respondent, the GOCinC, Southern
Command had found lapses of respondent to be of a minor
nature. The Tribunal also took note of the fact that the
documents on the respondent’s laptop were not classified
documents. That would dilute the seriousness of the allegation
against the respondent. In that, presence of official documents on
the laptop (albeit easily accessible to a foreign national), would
still not be a case of serious security issue warranting award of
censure.
18. The respondent has also invited our attention to the
analysis made by the Tribunal in reference to the allegations
made against him in the show cause notice and in the order of
the competent authority. It is urged that accepting the
explanation offered by the respondent, had the effect of
condoning the alleged misdemeanour of the respondent regarding
furnishing of incorrect information in the guest list of the Army
Guest House. Presumably, for that reason, the same does not
find place in the opinion formed by the concerned authority
whilst awarding censure. Further, it was not a case of intentional
or deliberate act of the respondent. The respondent had frankly
20
admitted the acts attributed to him and urged upon the
authority, to take a lenient view of the matter as a onetime
aberration keeping in mind his past impeccable service records.
19. According to the respondent, the punishment awarded by
GOCinC, Southern Command was shockingly disproportionate.
In any case, even if the authority intended to award censure as
rd
per the Censure Policy dated 23 April, 2007, the authority had
at least three options:
(a) Severe Displeasure (Recordable)
(b) Severe Displeasure (NonRecordable) and
(c) Displeasure
It is, therefore, urged that the Tribunal was justified in taking the
view that even if it was a case of censure, awarding of Severe
Displeasure (Recordable) was shockingly disproportionate or
excessive.
20. Furthermore, it is contended that the Tribunal was
competent to examine the validity of the order passed by the
appropriate or competent authority both on questions of law
and facts in terms of Section 14 (5) of the Armed Forces
Tribunal Act, 2007. In fact, the Tribunal could have itself
substituted the punishment to a lesser degree, such as
21
displeasure, in the peculiar facts of the present case; instead of
remanding the matter to the competent authority for
reconsideration. The Tribunal has thus abdicated its authority by
relegating the respondent before the competent authority.
According to the respondent, any other punishment of censure
than simple displeasure, would be harsh and disproportionate.
The respondent submits that the order passed by the Tribunal is
unexceptional and if this Court intends to interfere therewith, the
respondent be granted liberty to challenge the decision of the
Tribunal concerning the grounds on merits of the action taken
against him. The respondent has also placed on record the latest
th
policy regarding the award of censure to officers dated 11
August, 2017, which classifies the types of censures that can be
awarded and the validity period thereof.
21. We have heard Mr. ANS Nadkarni, learned ASG, counsel
for the appellants and Mr. Rahul Kaushik, counsel for the
respondent.
22. It is no more res integra that the Tribunal is competent and
empowered to interfere with the punishment awarded by the
appropriate authority in any departmental action, on the ground
22
that the same is excessive or disproportionate to the misconduct
proved against the delinquent officer. However, exercise of that
power is circumscribed. It can be invoked only in exceptional and
rare cases, when the punishment awarded by the disciplinary
authority shocks the conscience of the Tribunal or is so
unreasonable that no reasonable person would have taken such
an action. The Tribunal, ordinarily, is not expected to examine
the quantum and nature of punishment awarded by the
disciplinary authority as a court of appeal and substitute its own
view and findings by replacing the subjective satisfaction arrived
at by the competent authority in the backdrop of the evidence on
record.
23. Indeed, it is open to the Tribunal to direct the disciplinary
authority to reconsider the penalty imposed by it; and in
exceptional and rare cases, may itself impose appropriate
punishment to shorten the litigation by recording cogent reasons
therefor. The reported decisions pressed into service by the
appellants have consistently taken this view. In the present case,
the Tribunal has adopted the former option, of relegating the
respondent before the competent authority for reconsideration of
23
the punishment but, at the same time, hedged by an observation
that awarding of censure in the facts of the present case was
inevitable.
24. Let us, therefore, revert to the reasons weighed with the
Tribunal, as can be discerned from paragraph No.37 onwards of
the impugned judgment in particular, reproduced hitherto. The
Tribunal first noted that awarding of Severe Displeasure
(Recordable), may have impacted the promotional prospects of
the respondent. It then proceeded to enquire, as to whether the
punishment is too harsh having regard to the conduct as well as
service profile of the respondent who was considered to be a
very efficient and meritorious officer. The Tribunal was impressed
by the fact that there was no blemish against the respondent,
prior to the issuance of the show cause notice.
Indeed, the past service records of the delinquent officer
25.
may be germane for awarding punishment. But in the present
case, the same had been duly noticed by the competent authority
as also by the authority considering the statutory complaint filed
by the respondent. That becomes evident from the decisions of
both the authorities. For, the competent authority was very much
24
conscious about the said position, as is reflected from paragraph
th
No.4 of his order dated 10 May, 2013 (reproduced at paragraph
No.6 hereinabove). In the same way, the higher authority whilst
rejecting the statutory complaint filed by the respondent vide
th
order dated 26 February, 2014 took note of this aspect as is
clear from the extract reproduced in paragraph No.7 hereinabove.
26. The Tribunal also erroneously assumed that the competent
authority opted to resort to administrative action by awarding
censure instead of Court Martial, because it had condoned the
misconduct of respondent being of a minor nature and not being
a case involving moral turpitude, fraud, theft, dishonesty and
misappropriation. This basis is plainly misdirected and not in
conformity with the applicable policy regarding award of censure
rd
to Officers and JCO’s circulated vide communication dated 23
April, 2007. In fact, the Tribunal has extracted the relevant
portion of the said policy, which clearly predicates that in cases,
which are not of a minor nature and not an act involving moral
turpitude, fraud, theft, dishonesty, financial irregularities or
misappropriation where trial by a Court Martial is not practicable
or is inexpedient due to other reasons, may if found appropriate,
25
be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the
discretion of the GOCinC for consideration of the award of
censure by the COAS/Government. The case of the respondent
would certainly fall within the purview of the said clause.
Indubitably, just because the competent authority chose to
dispense with the disciplinary action of Court Martial qua the
respondent, does not make the misconduct and misdemeanour of
the respondent any less serious much less to be of a minor
nature as assumed by the Tribunal. Notably, the Tribunal has
taken such erroneous approach despite having noticed that the
respondent had admitted all the allegations made against him in
the show cause notice.
The Tribunal was then impressed by the fact that the
27.
respondent had admitted the allegations made against him in the
show cause notice. That conduct of the respondent, according to
the Tribunal, unravelled the fair and candid intention of the
respondent to not conceal anything from the authority. The
Tribunal completely glossed over the seriousness of the
allegations articulated in the show cause notice that the
respondent continued to remain in contact with the foreign
26
national for over two years including facilitated her to visit India
and then also stayed with her in the official mess at Goa by not
disclosing her real identity. If that misconduct of the respondent
had not come to the notice of the appropriate authority, the
respondent would have continued to indulge in the same
manner. Concededly, it is not a case of an aberration or a one
time indiscretion of the respondent as pleaded by him. Realising
the seriousness of the situation, the respondent was well advised
to admit the allegations and invite a lenient action of awarding of
censure only, instead of facing Court Martial. Initiating Staff
Court of Inquiry against the respondent, therefore, in no way,
tantamount to condoning his lapses by the authority concerned
as such. Whereas, it is a just exercise of power in terms of clause
rd
5 of the Censure Policy dated 23 April, 2007, which reads thus:
“5. Cases which are not a minor nature and yet do not
involve moral turpitude, fraud, theft or dishonesty and
where trial by a Court Martial is not practicable being
time barred or is expedient due to other reasons, may
if found appropriate, be forwarded to Integrated HQ of
MoD (Army) (DV Dte) at the discretion of the GOCinC
for consideration of the award of censure by the
COAS/Govt.”
28. The Tribunal also committed a palpable error in opining
that the show cause notice does not contain allegation against
27
the respondent, regarding furnishing wrong information in the
guest list of the Army Guest House. The show cause notice vividly
describes the serious lapses committed by the respondent such
as in clause 2(a) (iv), namely, “unauthorisedly” bringing and
staying with Ms. Sueli, a foreign national, in the Army premises
th th
in Goa from 12 October, 2011 to 15 October, 2011. This
allegation was sufficient to include the misdemeanour of the
respondent of having furnished wrong information in the guest
list of the guest house. This allegation has been admitted by the
respondent.
29. The Tribunal also got swayed away by the fact that the
allegation made in the show cause notice did not mention about
“classified” documents on the laptop. It was of the view that only
if reference was to be made to “classified” documents, it would
have been a case of sensitive nature touching upon the security
of the nation. What has been glossed over by the Tribunal, is
that, the allegation against the respondent in the show cause
notice is about unauthorisedly keeping “official” documents in his
laptop including the crucial information regarding his rank,
name and unit location, and further the laptop containing such
28
official documents/information was routinely connected to the
internet and made easily accessible to a foreign national. This
allegation has been admitted by the respondent in his response
to the show cause notice. The respondent merely wanted the
competent authority to take a lenient view, being momentary loss
of indiscretion.
30. The Tribunal then adverted to the fact that the award of
censure coincided with all the three chances of No.3 Selection
Board. That may be the effect of censure on promotion. As per
the Censure Policy, the intended punishment being permissible
and the competent authority being satisfied that the same is
commensurate with the seriousness of the uncontroverted
allegations against the respondent, for the reasons recorded in
that regard by it, such satisfaction cannot be lightly brushed
aside as being excessive or unjust. Accordingly, even this reason
weighed with the Tribunal is unstatable and tenuous.
31. Having carefully analysed the erroneous basis on which the
Tribunal came to hold that the punishment of Severe Displeasure
(Recordable) is not commensurate with the lapses of the
respondent, we have no hesitation in concluding that the
29
Tribunal committed manifest error in interfering with the award
of censure of Severe Displeasure (Recordable), in the facts of this
case. In our opinion, the basis on which the Tribunal chose to
interfere being indefensible, the conclusion reached by the
Tribunal on such edifice must fall to the ground.
32. We are of the considered opinion that in the backdrop of the
incontroverted allegations, as articulated in the show cause
notice issued to the respondent, reproduced in paragraph No.5
hitherto, the same may warrant a stern action against the
respondent; and, thus, the discretion exercised by the competent
authority in terms of the stated policy to deal with the respondent
administratively cannot be faulted with and must be upheld,
including the award of censure of Severe Displeasure
(Recordable) being commensurate thereto.
We are conscious of the argument of the respondent that if
33.
this Court was to overturn the conclusion of the Tribunal, may
permit the respondent to challenge the decision of the competent
authority on merits. In our opinion, the Tribunal has already
dealt with the grounds on which challenge thereto was founded;
and rightly rejected the same, taking into account the admission
30
of the respondent in his written response to the show cause
notice. Once, the respondent chose not to controvert the
allegations made against him in the show cause notice and
pursued the matter with the competent authority only for taking
a lenient view, he cannot be permitted to resile from that
position. It would result in allowing the respondent to approbate
and reprobate. That cannot be countenanced. Therefore, the
prayer of the respondent to permit him to challenge the adverse
findings of the Tribunal qua him on merits of the admitted
allegations, is declined.
34. In view of the above, this appeal must succeed. The
impugned judgment and order of the Armed Forces Tribunal is
quashed and set aside. Instead, the decision of the Government
th
of India dated 30 April, 2014, rejecting the statutory complaint
of the respondent and upholding the order passed by the GOC
th
inC dated 10 May, 2013 is restored.
35. Appeal is allowed in the above terms, with no order as to
costs. All pending applications are also disposed of in terms of
this decision.
31
……………………………..J
(A.M. Khanwilkar)
……………………………..J
(Ajay Rastogi)
New Delhi;
September 25, 2019.