Full Judgment Text
2026 INSC 7
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2026
(Arising out of Special Leave Petition (Civil) No.19815 of 2025)
42605-B CDR YOGESH MAHLA …Appellant
VERSUS
UNION OF INDIA & OTHERS …Respondents
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. This appeal has been filed against the judgment and order
dated 10.07.2025 passed by the High Court of Delhi in Writ
Petition (C) No.9295 of 2025.
3. Briefly stated the facts of the case are that the appellant
was commissioned in the Indian Navy on 01.01.2006,
subsequently promoted to the rank of Commander and later
Signature Not Verified
Digitally signed by joined INS Shakti as Commander (Engineering) in April 2022.
RADHA SHARMA
Date: 2026.02.02
18:05:03 IST
Reason:
1
4. On 02.03.2024, the Complainant who was working as a
Principal Medical Officer wrote a letter to Capt. J. Sachdeva,
Commanding Officer, INS Shakti alleging that the appellant,
during the course of his deployment, committed acts of sexual
harassment against her on different occasions and in pursuance
to the said complaint, the Internal Complaints Committee (for
short, “ICC”) was constituted on 08.03.2024 under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (for short “POSH Act”) .
5. Thereafter , between the period of 02.04.2024 to 08.05.2024,
the ICC conducted an inquiry into the complaint and upon
culmination of the said inquiry, a report was submitted
recommending that appropriate action may be initiated against
the appellant. Based on the findings and recommendations of the
ICC report, a show cause notice dated 05.03.2025 was issued to
the appellant calling upon him to show cause within ten days of
the receipt of the said notice as to, whether, his services should
not be terminated in terms of Regulation 216 of the Regulations
for the Navy Part-II (Statutory) read with Section 15(2) of the
2
Navy Act, 1957 (herein after called ‘Regulations’ for the sake of
convenience).
6. Being aggrieved by the report, the recommendations made
by the ICC constituted by the respondents and the Show Cause
Notice dated 05.03.2025, the appellant herein filed O.A.
No.1024/2025 with M.A. No.2228/2025 before the Armed Forces
Tribunal, Principal Bench, New Delhi (“the Tribunal” for the sake
of convenience) seeking the following reliefs:
“(a) To quash the proceedings and the recommendations
of the Internal Complaints Committee constituted
vide Eastern Naval Command General Order
No.2/2024; and
(b) To quash the Show Cause Notice dated 05.03.2025
issued by Respondent No.2 for showing cause against
termination of the Applicant's services; and
(c) Such further order or orders, direction / directions
be passed as to this Learned Tribunal may deem fit
and proper in accordance with law.”
7. At this stage itself it may be noted that the appellant herein
sought the following two-fold reliefs before the Tribunal:
firstly, assailing the proceedings and recommendations of
the ICC constituted vide Eastern Naval Command
General Order No.2/2024; and
3
secondly, seeking quashing of the Show Cause Notice
dated 05.03.2025 issued by respondent No.2 for
showing cause against termination of the appellant’s
services.
8. The Tribunal by its order dated 30.05.2025 observed at
paragraphs 17 to 20 as under:
“17. In view of the above, we are of the considered
opinion that, at this stage, when only a show cause
notice has been issued, it is neither appropriate nor
legally tenable for this Tribunal to interfere or assume
the role of the disciplinary authority. The applicant is at
liberty to submit his detailed representation to the
competent authority raising all the objections and
grounds as may be available to him under law. It is only
upon the conclusion of that process and exhaustion of
remedies that any cause of action may accrue for
invoking the jurisdiction of this Tribunal.
18. The findings and observations made hereinabove are
purely prima facie and are limited to the consideration
of whether interference is warranted at this initial stage,
where only a show cause notice has been issued. They
shall not be construed as final conclusions on the issues
involved.
19. Accordingly, the Original Application stands
dismissed. There shall be no order as to costs.
20. In view of the dismissal of the Original Application,
the interim protection and stay granted on 16.04.2025
also stand vacated.”
4
9. Being aggrieved by the said order, the appellant herein
preferred W.P.(C)No.9295/2025 along with Miscellaneous
Applications. The Division Bench of the High Court of Delhi while
dismissing the Writ Petition vide the impugned order dated
10.07.2025 observed at paragraph 19 as hereunder:
“19. In that view of the matter, the right of appeal against
the recommendations of the ICC, as envisaged in Section
18 (1) of the POSH Act, is obviously not available to the
petitioner. Any appeal, therefore, that the petitioner may
choose to prefer would have to be in accordance in such
manner as may be prescribed.”
10. Furthermore, Paragraphs 39 to 42 of the impugned order of
the High Court read as under:
“39. The writ petition is, accordingly, dismissed in
limine .
40. We make it clear that we have not expressed any
merit on the allegations against the petitioner or the
merits of the show cause notice and that the adjudication
of the show cause notice would proceed uninfluenced by
the decision of the Tribunal or by our judgment insofar
as the merits of the case are concerned.
41. We have only examined whether a case for
interference with the Tribunal’s decision not to entertain
the OA has made out or not. In our view, no such case is
made out.
42. We extend the time to file the reply to the show
cause notice by two weeks from today.”
5
11. We have heard learned senior counsel, Mr. Sanjiv Sen and
learned counsel, Mr. Akshay Bhandari for the appellant and
learned ASG, Mr. Vikramjeet Banerjee for the respondents at
length. We have perused the material on record in detail.
12. It was submitted on behalf of the appellant that the appeal
filed before the Tribunal was under Section 14 of the Armed
Forces Tribunal Act, 2007 (for short “AFT Act, 2007”) read with
Section 18 of the POSH Act. For ease of reference the said
provisions are extracted as under:
“ 14. Jurisdiction, powers and authority in service
matters . - (1) Save as otherwise expressly provided in
this Act, the Tribunal shall exercise, on and from the
appointed day, all the jurisdiction, powers and authority,
exercisable immediately before that day by all courts
(except the Supreme Court or a High Court exercising
jurisdiction under articles 226 and 227 of the
Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person
aggrieved by an order pertaining to any service matter
may make an application to the Tribunal in such form
and accompanied by such documents or other evidence
and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service
matters, the Tribunal shall, if satisfied after due inquiry,
as it may deem necessary, that it is fit for adjudication by
it, admit such application; but where the Tribunal is not
so satisfied, it may dismiss the application after recording
its reasons in writing.
6
(4) For the purpose of adjudicating an application, the
Tribunal shall have the same powers as are vested in a
Civil Court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit in respect of the following
matters, namely—
(a) summoning and enforcing the attendance of
any person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and
124 of the Indian Evidence Act, 1872 (1 of
1872), requisitioning any public record or
document or copy of such record or
document from any office;
(e) issuing commissions for the examination of
witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or
deciding it ex parte;
(h) setting aside any order of dismissal of any
application for default or any order passed
by it ex parte; and
(i) any other matter which may be prescribed by
the Central Government.
(5) The Tribunal shall decide both questions of law
and facts that may be raised before it.”
7
Section 18 of the POSH Act is extracted as under:
“ 18. Appeal.— (1) Any person aggrieved from the
recommendations made under sub-section (2) of section
13 or under clause (i) or clause (ii) of sub-section (3) of
section 13 or sub-section (1) or subsection (2) of section
14 or section 17 or non-implementation of such
recommendations may prefer an appeal to the court or
tribunal in accordance with the provisions of the service
rules applicable to the said person or where no such
service rules exist then, without prejudice to provisions
contained in any other law for the time being in force, the
person aggrieved may prefer an appeal in such manner as
may be prescribed.
(2) The appeal under sub-section (1) shall be preferred
within a period of ninety days of the recommendations.”
13. It was submitted on behalf of the appellant that the two-fold
challenge made before the Tribunal has not been perceived in its
proper perspective. The Tribunal primarily proceeded on the
basis that what was in issue was the Show Cause Notice dated
05.03.2025 and since the matter was at the preliminary stage,
there was always an opportunity for the appellant to reply to the
same and there would have been consideration of the said reply
and further action taken in accordance with law. Learned senior
counsel and learned counsel for the appellant submitted that the
Tribunal failed to note that the Show Cause Notice dated
05.03.2025 was premised on the report of the ICC and its
8
recommendations. It was submitted that when the same were in
challenge before the Tribunal it could not have been held that
only a Show Cause Notice was in challenge. This is because the
Show Cause Notice was on the basis of the report of the ICC. If
the Tribunal had gone into the question as to, whether, the
report of the ICC was correct and in accordance with law or not,
the consequential issue regarding correctness or otherwise of the
Show Cause Notice would also have been considered by the
Tribunal. However, in the instant case the Tribunal proceeded to
consider only certain contentions of the appellant with regard to
the correctness or otherwise of the report and recommendations
of the ICC and simply proceeded to hold that since an
opportunity was being given to the appellant to reply to the
impugned Show Cause Notice, there was no further necessity of
considering any other aspect of the case and hence dismissed the
Original Application which was, in fact, an appeal under Section
18 of the POSH Act.
14. It was pointed out that the appellant became worse off when
he assailed the Tribunal’s order before the High Court inasmuch
as the High Court observed that the appellant had no right to
9
approach the Tribunal under Section 18 of the POSH Act. It was
submitted that the High Court has misconceived the object and
purpose of the appeal that was filed by the appellant herein
before the Tribunal inasmuch as the correctness or otherwise of
the report and recommendations of the ICC was also a subject
matter of challenge before the Tribunal. The High Court was not
right in holding that the appellant had no right of appeal under
Section 18 of the POSH Act. On the other hand, Section 18 could
be read within the scope, meaning and ambit of Section 14 of the
AFT Act, 2007 and that was precisely the appeal that was filed by
the appellant herein. It was contended that since the High Court
was not right in dismissing the Writ Petition by holding that the
appellant had no right of appeal under Section 18 of the POSH
Act, therefore, the impugned orders of the High Court as well as
the Tribunal may be set aside and the matter may be remanded
to the said Tribunal for a reconsideration of the appeal filed by
the appellant herein which was under Section 18 of the POSH
Act and in accordance with law.
10
15. Per contra , learned ASG appearing for the respondents
vehemently contended that the action initiated by the
respondents vis-à-vis the Show Cause Notice dated 05.03.2025
was in accordance with Section 15(2) of the Navy Act, 1957 read
with Regulation 216 of the Regulations, 1967 which for ease of
reference are extracted as under:
Section 15(2) of the Navy Act, 1957:
“15. Tenure of service of officers and sailors.—
(1) xxx
(2) Subject to the provisions of this Act and
the regulations made thereunder,—
(a) the Central Government may dismiss or
discharge or retire from the naval service
any officer or sailor;
(b) the Chief of the Naval Staff or any
prescribed officer may dismiss or
discharge from the naval service any
sailor.”
Regulation 216 of the Navy (Discipline and
Miscellaneous Provisions) Regulations, 1967:
“216. Misconduct of Officers-termination of service
by Government on grounds of misconduct:- (1) When it
is proposed to terminate the service of an officer under
section 15 on account of misconduct, he shall be given
an opportunity to show cause in the manner specified in
sub-regulation (2) against that action:
11
Provided that this sub-regulation shall not apply:-
(a) Where the service is terminated on the
ground of misconduct which has led to his
conviction by a civil court; or
(b) Where the Government is satisfied that for
reasons, to be recorded in writing, it is not
expedient or reasonably practicable to give to
the officer an opportunity of showing cause.
(2) When after considering the reports on an officer’s
misconduct, the Government or the Chief of the Naval
Staff is satisfied that the trial of the officer by a court-
martial is inexpedient or impracticable, but is of the
opinion that the further retention of the said officer in the
service is undesirable, the chief of the Naval Staff shall so
inform the officer together with all reports adverse to him
and he shall be called upon to submit, in writing, his
explanation and defence;
Provided that the Chief of the Naval Staff may withhold
from disclosure any such report or portion thereof it, in
his opinion, its disclosure is not in the interest of the
security of the state.
(3) In the event of the explanation of the officer being
considered unsatisfactory by the Chief of the Naval Staff,
or when so directed by the Government, the case shall be
submitted to the Government with the officer’s defence
and the recommendation of the Chief of the Naval Staff as
to the termination of the officer’s service in the manner
specified in sub-regulation (5).
(4) DELETED
(5) When submitting a case to the Government under
sub-regulation (3), the Chief of the Naval Staff shall make
his recommendation whether the officer’s service should
be terminated and if so, whether the officer should be-
12
(a) dismissed from the Naval Service; or
(b) discharged from the service; or
(c) called upon to retire; or
(d) called upon to resign.
(6) The Government after considering the reports and
the officer’s defence, if any, as the case may be, and the
recommendation of the Chief of the Naval Staff, may
dismiss or discharge the officer with or without pension
or call upon him to retire or resign and on his refusing to
do so, the officer may be compulsorily retired or
discharged from the service on pension or gratuity, if any,
admissible to him.”
16. Learned ASG also submitted that the allegations against the
appellant are serious in nature and have been proved as is
evident on a reading of the report of the ICC. In the
circumstances, on there being satisfaction, the Show Cause
Notice was issued on the basis of sub-regulation (2) of the
Regulation 216 of the Regulations. An opportunity to reply to the
said Show Cause Notice is permitted under the said Regulations.
Instead of replying to the show cause notice, the appellant
attempted to assail the same before the Armed Forces Tribunal
which was therefore right in dismissing the said case and the
High Court was also right in dismissing the Writ Petition.
13
17. It was contended by learned ASG that any action which is
initiated in terms of Section 15 of the Navy Act read with
Regulation 216 of the Regulations cannot be the subject matter
of an appeal before the Tribunal at the stage of issuance of the
Show Cause Notice. If at all, the said appellant was aggrieved by
any order to be made in future the same could have been a
subject matter of appeal before the said Tribunal. Therefore, the
Tribunal was justified in not interfering at the stage of issuance
of the Show Cause Notice. He, therefore, submitted that there is
no merit in this appeal.
18. We have considered the arguments advanced at the Bar and
given our anxious consideration to the fact that the Show Cause
Notice dated 05.03.2025 issued by respondent No.2 herein was
premised on the basis of the report of the ICC and further on
certain incidental findings of the ICC. No doubt the power under
Section 15 of the Navy Act read with Regulation 216 could be
exercised but on following foundational facts:
Firstly, the report of the officer’s misconduct must be
considered meaningfully;
14
Secondly, the Government or the Chief of Naval Staff is
satisfied that the trial of the officer by a court-martial is
inexpedient or impracticable; and
Thirdly, there must be an opinion formed that further
retention of the said officer in the service is undesirable.
19. When all these facts co-exists then the Chief of Naval Staff
shall inform the officer together with all reports adverse to him
and he shall be called upon to submit, in writing, his explanation
and defence. The disclosure of the report to the officer may be
withheld if it is not in the interest of the security of the State. If
the explanation of the officer is considered unsatisfactory by the
Chief of Naval Staff, the case shall be submitted to the
Government with the officer’s defence and the recommendation of
the Chief of the Naval Staff as to the termination of the officer’s
service in the manner specified in Regulation 216(5). While
submitting the case to the Government, the Chief of Naval Staff
shall make his recommendation as to whether the officer’s
service should be terminated or not. If it has to be terminated
then whether he should be-
15
(a) dismissed from the Naval Service; or
(b) discharged from the service; or
(c) called upon to retire; or
(d) called upon to resign.
20. The Government after considering the report and the
officer’s defence, if any, and the recommendation of the Chief of
the Naval Staff, may dismiss or discharge the officer with or
without pension or call upon him to retire or resign and on his
refusing to do so, the officer may be compulsorily retired or
discharged from the service on pension or gratuity, if any,
admissible to him.
21. In the instant case what is an issue is the power to
terminate the services of an officer by invoking sub-section (2) of
Regulation 216 of the Regulations on the one hand and the right
of a person who has been charged with serious and grave
misconduct by the ICC to assail the correctness of the said report
and its findings by way of an appeal.
22. Section 18 of the POSH Act provides that if there is adverse
recommendation made by the ICC under Section 13(3)(i) an
16
appeal could be made to the Court or the Tribunal in terms of the
service rules.
23. In this regard, we find that Regulation 216 is general in
nature vis-à-vis any complaint that could be made against a
naval officer or other persons serving the Navy whereas Section
18 is specific inasmuch as it is under a special enactment which
enables a person who intends to assail the report and
recommendations of the ICC to proceed under that provision to
the Tribunal by filing an appeal under Section 18 of the POSH
Act which the appellant has done so in the instant case.
24. Section 14 of the AFT Act, 2007 when read in juxtaposition
with Section 18 of the POSH Act, we find that the appellant
herein had rightly approached the Tribunal so as to assail the
report as well as the recommendations of the ICC. The Tribunal
ought to have considered the correctness of the said report in
accordance with law. The Show Cause Notice dated 05.03.2025
was premised on the basis of the recommendations of the ICC.
25. In the circumstances, the Show Cause Notice was not
simply a preliminary notice as such, it was a notice relatable
17
directly to the report and the recommendations of the ICC which
were a subject matter of challenge before the Tribunal.
26. In the circumstances, we find that the High Court was not
right in holding that the appellant had no right under Section 18
of the POSH Act. We find that the Tribunal has not adjudicated
the appeal filed by the Tribunal in terms of the Section 18 of the
POSH Act read with Section 14 of the AFT Act, 2007 but has
primarily proceeded on the basis that what was in issue was
essentially the Show Cause Notice dated 05.03.2025 and this
was at a preliminary stage of the proceedings, whereas the appeal
under Section 18 of POSH Act was the subject matter of OA
No.1024 of 2025.
27. For these reasons, we find that the interest of justice would
be served in the instant case if the impugned orders are set aside
and the matter is remanded to the Tribunal for afresh
adjudication and consequently, O.A. No.1024/2025 is restored
on the file of the Tribunal. Ordered as above.
28. Since the parties are represented by their respective
counsel, they shall appear before the Tribunal on 09.02.2026
18
without expecting separate notices from the Tribunal and the
Tribunal is requested to dispose of the said Original Appeal in
accordance with the observations made above and in accordance
with law and as expeditiously as possible.
29. Consequently, pending consideration of the appeal being
O.A. No.1024/2025, the Show Cause Notice dated 05.03.2025
shall not be acted upon.
30. We clarify that we have not made any observations on the
merits of the case.
31. This appeal is disposed of in the aforesaid terms.
Pending application(s), if any, shall stand disposed of.
……………………………………J.
(B.V. NAGARATHNA)
……………………………………J.
(UJJAL BHUYAN)
NEW DELHI;
JANUARY 20, 2026
19
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2026
(Arising out of Special Leave Petition (Civil) No.19815 of 2025)
42605-B CDR YOGESH MAHLA …Appellant
VERSUS
UNION OF INDIA & OTHERS …Respondents
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. This appeal has been filed against the judgment and order
dated 10.07.2025 passed by the High Court of Delhi in Writ
Petition (C) No.9295 of 2025.
3. Briefly stated the facts of the case are that the appellant
was commissioned in the Indian Navy on 01.01.2006,
subsequently promoted to the rank of Commander and later
Signature Not Verified
Digitally signed by joined INS Shakti as Commander (Engineering) in April 2022.
RADHA SHARMA
Date: 2026.02.02
18:05:03 IST
Reason:
1
4. On 02.03.2024, the Complainant who was working as a
Principal Medical Officer wrote a letter to Capt. J. Sachdeva,
Commanding Officer, INS Shakti alleging that the appellant,
during the course of his deployment, committed acts of sexual
harassment against her on different occasions and in pursuance
to the said complaint, the Internal Complaints Committee (for
short, “ICC”) was constituted on 08.03.2024 under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (for short “POSH Act”) .
5. Thereafter , between the period of 02.04.2024 to 08.05.2024,
the ICC conducted an inquiry into the complaint and upon
culmination of the said inquiry, a report was submitted
recommending that appropriate action may be initiated against
the appellant. Based on the findings and recommendations of the
ICC report, a show cause notice dated 05.03.2025 was issued to
the appellant calling upon him to show cause within ten days of
the receipt of the said notice as to, whether, his services should
not be terminated in terms of Regulation 216 of the Regulations
for the Navy Part-II (Statutory) read with Section 15(2) of the
2
Navy Act, 1957 (herein after called ‘Regulations’ for the sake of
convenience).
6. Being aggrieved by the report, the recommendations made
by the ICC constituted by the respondents and the Show Cause
Notice dated 05.03.2025, the appellant herein filed O.A.
No.1024/2025 with M.A. No.2228/2025 before the Armed Forces
Tribunal, Principal Bench, New Delhi (“the Tribunal” for the sake
of convenience) seeking the following reliefs:
“(a) To quash the proceedings and the recommendations
of the Internal Complaints Committee constituted
vide Eastern Naval Command General Order
No.2/2024; and
(b) To quash the Show Cause Notice dated 05.03.2025
issued by Respondent No.2 for showing cause against
termination of the Applicant's services; and
(c) Such further order or orders, direction / directions
be passed as to this Learned Tribunal may deem fit
and proper in accordance with law.”
7. At this stage itself it may be noted that the appellant herein
sought the following two-fold reliefs before the Tribunal:
firstly, assailing the proceedings and recommendations of
the ICC constituted vide Eastern Naval Command
General Order No.2/2024; and
3
secondly, seeking quashing of the Show Cause Notice
dated 05.03.2025 issued by respondent No.2 for
showing cause against termination of the appellant’s
services.
8. The Tribunal by its order dated 30.05.2025 observed at
paragraphs 17 to 20 as under:
“17. In view of the above, we are of the considered
opinion that, at this stage, when only a show cause
notice has been issued, it is neither appropriate nor
legally tenable for this Tribunal to interfere or assume
the role of the disciplinary authority. The applicant is at
liberty to submit his detailed representation to the
competent authority raising all the objections and
grounds as may be available to him under law. It is only
upon the conclusion of that process and exhaustion of
remedies that any cause of action may accrue for
invoking the jurisdiction of this Tribunal.
18. The findings and observations made hereinabove are
purely prima facie and are limited to the consideration
of whether interference is warranted at this initial stage,
where only a show cause notice has been issued. They
shall not be construed as final conclusions on the issues
involved.
19. Accordingly, the Original Application stands
dismissed. There shall be no order as to costs.
20. In view of the dismissal of the Original Application,
the interim protection and stay granted on 16.04.2025
also stand vacated.”
4
9. Being aggrieved by the said order, the appellant herein
preferred W.P.(C)No.9295/2025 along with Miscellaneous
Applications. The Division Bench of the High Court of Delhi while
dismissing the Writ Petition vide the impugned order dated
10.07.2025 observed at paragraph 19 as hereunder:
“19. In that view of the matter, the right of appeal against
the recommendations of the ICC, as envisaged in Section
18 (1) of the POSH Act, is obviously not available to the
petitioner. Any appeal, therefore, that the petitioner may
choose to prefer would have to be in accordance in such
manner as may be prescribed.”
10. Furthermore, Paragraphs 39 to 42 of the impugned order of
the High Court read as under:
“39. The writ petition is, accordingly, dismissed in
limine .
40. We make it clear that we have not expressed any
merit on the allegations against the petitioner or the
merits of the show cause notice and that the adjudication
of the show cause notice would proceed uninfluenced by
the decision of the Tribunal or by our judgment insofar
as the merits of the case are concerned.
41. We have only examined whether a case for
interference with the Tribunal’s decision not to entertain
the OA has made out or not. In our view, no such case is
made out.
42. We extend the time to file the reply to the show
cause notice by two weeks from today.”
5
11. We have heard learned senior counsel, Mr. Sanjiv Sen and
learned counsel, Mr. Akshay Bhandari for the appellant and
learned ASG, Mr. Vikramjeet Banerjee for the respondents at
length. We have perused the material on record in detail.
12. It was submitted on behalf of the appellant that the appeal
filed before the Tribunal was under Section 14 of the Armed
Forces Tribunal Act, 2007 (for short “AFT Act, 2007”) read with
Section 18 of the POSH Act. For ease of reference the said
provisions are extracted as under:
“ 14. Jurisdiction, powers and authority in service
matters . - (1) Save as otherwise expressly provided in
this Act, the Tribunal shall exercise, on and from the
appointed day, all the jurisdiction, powers and authority,
exercisable immediately before that day by all courts
(except the Supreme Court or a High Court exercising
jurisdiction under articles 226 and 227 of the
Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person
aggrieved by an order pertaining to any service matter
may make an application to the Tribunal in such form
and accompanied by such documents or other evidence
and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service
matters, the Tribunal shall, if satisfied after due inquiry,
as it may deem necessary, that it is fit for adjudication by
it, admit such application; but where the Tribunal is not
so satisfied, it may dismiss the application after recording
its reasons in writing.
6
(4) For the purpose of adjudicating an application, the
Tribunal shall have the same powers as are vested in a
Civil Court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit in respect of the following
matters, namely—
(a) summoning and enforcing the attendance of
any person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and
124 of the Indian Evidence Act, 1872 (1 of
1872), requisitioning any public record or
document or copy of such record or
document from any office;
(e) issuing commissions for the examination of
witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or
deciding it ex parte;
(h) setting aside any order of dismissal of any
application for default or any order passed
by it ex parte; and
(i) any other matter which may be prescribed by
the Central Government.
(5) The Tribunal shall decide both questions of law
and facts that may be raised before it.”
7
Section 18 of the POSH Act is extracted as under:
“ 18. Appeal.— (1) Any person aggrieved from the
recommendations made under sub-section (2) of section
13 or under clause (i) or clause (ii) of sub-section (3) of
section 13 or sub-section (1) or subsection (2) of section
14 or section 17 or non-implementation of such
recommendations may prefer an appeal to the court or
tribunal in accordance with the provisions of the service
rules applicable to the said person or where no such
service rules exist then, without prejudice to provisions
contained in any other law for the time being in force, the
person aggrieved may prefer an appeal in such manner as
may be prescribed.
(2) The appeal under sub-section (1) shall be preferred
within a period of ninety days of the recommendations.”
13. It was submitted on behalf of the appellant that the two-fold
challenge made before the Tribunal has not been perceived in its
proper perspective. The Tribunal primarily proceeded on the
basis that what was in issue was the Show Cause Notice dated
05.03.2025 and since the matter was at the preliminary stage,
there was always an opportunity for the appellant to reply to the
same and there would have been consideration of the said reply
and further action taken in accordance with law. Learned senior
counsel and learned counsel for the appellant submitted that the
Tribunal failed to note that the Show Cause Notice dated
05.03.2025 was premised on the report of the ICC and its
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recommendations. It was submitted that when the same were in
challenge before the Tribunal it could not have been held that
only a Show Cause Notice was in challenge. This is because the
Show Cause Notice was on the basis of the report of the ICC. If
the Tribunal had gone into the question as to, whether, the
report of the ICC was correct and in accordance with law or not,
the consequential issue regarding correctness or otherwise of the
Show Cause Notice would also have been considered by the
Tribunal. However, in the instant case the Tribunal proceeded to
consider only certain contentions of the appellant with regard to
the correctness or otherwise of the report and recommendations
of the ICC and simply proceeded to hold that since an
opportunity was being given to the appellant to reply to the
impugned Show Cause Notice, there was no further necessity of
considering any other aspect of the case and hence dismissed the
Original Application which was, in fact, an appeal under Section
18 of the POSH Act.
14. It was pointed out that the appellant became worse off when
he assailed the Tribunal’s order before the High Court inasmuch
as the High Court observed that the appellant had no right to
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approach the Tribunal under Section 18 of the POSH Act. It was
submitted that the High Court has misconceived the object and
purpose of the appeal that was filed by the appellant herein
before the Tribunal inasmuch as the correctness or otherwise of
the report and recommendations of the ICC was also a subject
matter of challenge before the Tribunal. The High Court was not
right in holding that the appellant had no right of appeal under
Section 18 of the POSH Act. On the other hand, Section 18 could
be read within the scope, meaning and ambit of Section 14 of the
AFT Act, 2007 and that was precisely the appeal that was filed by
the appellant herein. It was contended that since the High Court
was not right in dismissing the Writ Petition by holding that the
appellant had no right of appeal under Section 18 of the POSH
Act, therefore, the impugned orders of the High Court as well as
the Tribunal may be set aside and the matter may be remanded
to the said Tribunal for a reconsideration of the appeal filed by
the appellant herein which was under Section 18 of the POSH
Act and in accordance with law.
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15. Per contra , learned ASG appearing for the respondents
vehemently contended that the action initiated by the
respondents vis-à-vis the Show Cause Notice dated 05.03.2025
was in accordance with Section 15(2) of the Navy Act, 1957 read
with Regulation 216 of the Regulations, 1967 which for ease of
reference are extracted as under:
Section 15(2) of the Navy Act, 1957:
“15. Tenure of service of officers and sailors.—
(1) xxx
(2) Subject to the provisions of this Act and
the regulations made thereunder,—
(a) the Central Government may dismiss or
discharge or retire from the naval service
any officer or sailor;
(b) the Chief of the Naval Staff or any
prescribed officer may dismiss or
discharge from the naval service any
sailor.”
Regulation 216 of the Navy (Discipline and
Miscellaneous Provisions) Regulations, 1967:
“216. Misconduct of Officers-termination of service
by Government on grounds of misconduct:- (1) When it
is proposed to terminate the service of an officer under
section 15 on account of misconduct, he shall be given
an opportunity to show cause in the manner specified in
sub-regulation (2) against that action:
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Provided that this sub-regulation shall not apply:-
(a) Where the service is terminated on the
ground of misconduct which has led to his
conviction by a civil court; or
(b) Where the Government is satisfied that for
reasons, to be recorded in writing, it is not
expedient or reasonably practicable to give to
the officer an opportunity of showing cause.
(2) When after considering the reports on an officer’s
misconduct, the Government or the Chief of the Naval
Staff is satisfied that the trial of the officer by a court-
martial is inexpedient or impracticable, but is of the
opinion that the further retention of the said officer in the
service is undesirable, the chief of the Naval Staff shall so
inform the officer together with all reports adverse to him
and he shall be called upon to submit, in writing, his
explanation and defence;
Provided that the Chief of the Naval Staff may withhold
from disclosure any such report or portion thereof it, in
his opinion, its disclosure is not in the interest of the
security of the state.
(3) In the event of the explanation of the officer being
considered unsatisfactory by the Chief of the Naval Staff,
or when so directed by the Government, the case shall be
submitted to the Government with the officer’s defence
and the recommendation of the Chief of the Naval Staff as
to the termination of the officer’s service in the manner
specified in sub-regulation (5).
(4) DELETED
(5) When submitting a case to the Government under
sub-regulation (3), the Chief of the Naval Staff shall make
his recommendation whether the officer’s service should
be terminated and if so, whether the officer should be-
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(a) dismissed from the Naval Service; or
(b) discharged from the service; or
(c) called upon to retire; or
(d) called upon to resign.
(6) The Government after considering the reports and
the officer’s defence, if any, as the case may be, and the
recommendation of the Chief of the Naval Staff, may
dismiss or discharge the officer with or without pension
or call upon him to retire or resign and on his refusing to
do so, the officer may be compulsorily retired or
discharged from the service on pension or gratuity, if any,
admissible to him.”
16. Learned ASG also submitted that the allegations against the
appellant are serious in nature and have been proved as is
evident on a reading of the report of the ICC. In the
circumstances, on there being satisfaction, the Show Cause
Notice was issued on the basis of sub-regulation (2) of the
Regulation 216 of the Regulations. An opportunity to reply to the
said Show Cause Notice is permitted under the said Regulations.
Instead of replying to the show cause notice, the appellant
attempted to assail the same before the Armed Forces Tribunal
which was therefore right in dismissing the said case and the
High Court was also right in dismissing the Writ Petition.
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17. It was contended by learned ASG that any action which is
initiated in terms of Section 15 of the Navy Act read with
Regulation 216 of the Regulations cannot be the subject matter
of an appeal before the Tribunal at the stage of issuance of the
Show Cause Notice. If at all, the said appellant was aggrieved by
any order to be made in future the same could have been a
subject matter of appeal before the said Tribunal. Therefore, the
Tribunal was justified in not interfering at the stage of issuance
of the Show Cause Notice. He, therefore, submitted that there is
no merit in this appeal.
18. We have considered the arguments advanced at the Bar and
given our anxious consideration to the fact that the Show Cause
Notice dated 05.03.2025 issued by respondent No.2 herein was
premised on the basis of the report of the ICC and further on
certain incidental findings of the ICC. No doubt the power under
Section 15 of the Navy Act read with Regulation 216 could be
exercised but on following foundational facts:
Firstly, the report of the officer’s misconduct must be
considered meaningfully;
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Secondly, the Government or the Chief of Naval Staff is
satisfied that the trial of the officer by a court-martial is
inexpedient or impracticable; and
Thirdly, there must be an opinion formed that further
retention of the said officer in the service is undesirable.
19. When all these facts co-exists then the Chief of Naval Staff
shall inform the officer together with all reports adverse to him
and he shall be called upon to submit, in writing, his explanation
and defence. The disclosure of the report to the officer may be
withheld if it is not in the interest of the security of the State. If
the explanation of the officer is considered unsatisfactory by the
Chief of Naval Staff, the case shall be submitted to the
Government with the officer’s defence and the recommendation of
the Chief of the Naval Staff as to the termination of the officer’s
service in the manner specified in Regulation 216(5). While
submitting the case to the Government, the Chief of Naval Staff
shall make his recommendation as to whether the officer’s
service should be terminated or not. If it has to be terminated
then whether he should be-
15
(a) dismissed from the Naval Service; or
(b) discharged from the service; or
(c) called upon to retire; or
(d) called upon to resign.
20. The Government after considering the report and the
officer’s defence, if any, and the recommendation of the Chief of
the Naval Staff, may dismiss or discharge the officer with or
without pension or call upon him to retire or resign and on his
refusing to do so, the officer may be compulsorily retired or
discharged from the service on pension or gratuity, if any,
admissible to him.
21. In the instant case what is an issue is the power to
terminate the services of an officer by invoking sub-section (2) of
Regulation 216 of the Regulations on the one hand and the right
of a person who has been charged with serious and grave
misconduct by the ICC to assail the correctness of the said report
and its findings by way of an appeal.
22. Section 18 of the POSH Act provides that if there is adverse
recommendation made by the ICC under Section 13(3)(i) an
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appeal could be made to the Court or the Tribunal in terms of the
service rules.
23. In this regard, we find that Regulation 216 is general in
nature vis-à-vis any complaint that could be made against a
naval officer or other persons serving the Navy whereas Section
18 is specific inasmuch as it is under a special enactment which
enables a person who intends to assail the report and
recommendations of the ICC to proceed under that provision to
the Tribunal by filing an appeal under Section 18 of the POSH
Act which the appellant has done so in the instant case.
24. Section 14 of the AFT Act, 2007 when read in juxtaposition
with Section 18 of the POSH Act, we find that the appellant
herein had rightly approached the Tribunal so as to assail the
report as well as the recommendations of the ICC. The Tribunal
ought to have considered the correctness of the said report in
accordance with law. The Show Cause Notice dated 05.03.2025
was premised on the basis of the recommendations of the ICC.
25. In the circumstances, the Show Cause Notice was not
simply a preliminary notice as such, it was a notice relatable
17
directly to the report and the recommendations of the ICC which
were a subject matter of challenge before the Tribunal.
26. In the circumstances, we find that the High Court was not
right in holding that the appellant had no right under Section 18
of the POSH Act. We find that the Tribunal has not adjudicated
the appeal filed by the Tribunal in terms of the Section 18 of the
POSH Act read with Section 14 of the AFT Act, 2007 but has
primarily proceeded on the basis that what was in issue was
essentially the Show Cause Notice dated 05.03.2025 and this
was at a preliminary stage of the proceedings, whereas the appeal
under Section 18 of POSH Act was the subject matter of OA
No.1024 of 2025.
27. For these reasons, we find that the interest of justice would
be served in the instant case if the impugned orders are set aside
and the matter is remanded to the Tribunal for afresh
adjudication and consequently, O.A. No.1024/2025 is restored
on the file of the Tribunal. Ordered as above.
28. Since the parties are represented by their respective
counsel, they shall appear before the Tribunal on 09.02.2026
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without expecting separate notices from the Tribunal and the
Tribunal is requested to dispose of the said Original Appeal in
accordance with the observations made above and in accordance
with law and as expeditiously as possible.
29. Consequently, pending consideration of the appeal being
O.A. No.1024/2025, the Show Cause Notice dated 05.03.2025
shall not be acted upon.
30. We clarify that we have not made any observations on the
merits of the case.
31. This appeal is disposed of in the aforesaid terms.
Pending application(s), if any, shall stand disposed of.
……………………………………J.
(B.V. NAGARATHNA)
……………………………………J.
(UJJAL BHUYAN)
NEW DELHI;
JANUARY 20, 2026
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