Judgment & Order dated 16 Jul 2025 in OA-18/2023 on 16 July 2025

1. The instant Original Application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 seeking following reliefs: -

- i) To quash and set aside the Impugned order No. 36501/19757/Inf/2022/MS-19/55/SC/2023-RoG/Stat dated 5th April, 2023 issued by the Under Secretary to the Govt. of India rejecting the applicant's statutory complaint dated 22 July, 2022.

- ii) To quash and set aside the decision of the Selection Board (TS) so far the applicant is concerned, as held on 22nd Sep 2021 as "Fresh Case"; March, 2022 as "First Review" case and October, 2022 as "Final Review" case.

- iii) To quash and set aside the Censure order dated 31st Mar 2019 issued by the GOC, Dakshin Bharat Area.

- iv) To direct the authorities to promote the applicant to the Time Scale rank of Colonel with effect from the date of his entitlement with all service benefits.

- *v) To direct the authorities to revoke the Censure order dated 31 Mar 2019 issued by the GOC, Dakshin Bharat Area, same being passed illegally without following the due process of law.*

- *vi) To direct the authorities not to take into consideration the Censure order dated 31st Mar 2019 while considering applicant's service profile same being non sustainable in law.*

- *vii) To pass such other or further order(s) as the learned Tribunal deems it fit and proper.*

2. The applicant IC-55451A Lt. Colonel RD Sharma was commissioned in the Army on 26 August, 1995 into 7 Bn. MADRAS Regt. In due course, the applicant was promoted to the rank of Lieutenant Colonel on 26 April 2009. At the time of pre-commissioning training, he has been in the merit and he has put in 28 years of meritorious service and held various appointments in Peace, Field, HAA/ Counter Insurgency etc. including instructor appointments wherein he rendered his service without any blemish. The applicant was the 2nd in Command of the 18 MADRAS when his unit was in the UN Peace Keeping Mission in Congo and the Unit did exceedingly well by getting awards of two Unit Citations. It is also stated that the applicant is also the recipient of two Chief of Army Staff Commendation Cards (COAS CC) i.e. in 1999 and 2004 respectively. The Applicant is due for retirement on 31 Dec 2025.

3. The applicant was considered for promotion to the substantive rank of Colonel (Time Scale) on 22 Sep 2021 as "Fresh Case". But the applicant was "Not Approved" for promotion to the said rank purportedly on the basis of his overall service profile. The applicant was again considered by the Selection Boards in March, 2022 as "First Review" and in October 2022 as "Final Review" case for promotion to the substantive rank of Colonel (Time Scale) wherein he was "Not Approved" for promotion on the basis of his overall service profile.

4. Thus, being aggrieved by non-approval of his promotion to the substantive rank of Colonel (Time Scale) in violation of the AO 09/2005, which lays down the criteria and guidelines for grant of promotion to the substantive rank of Colonel (Time Scale), the applicant submitted a Statutory Complaint on 23 July 2022 against the decision of the initial Selection Board praying for granting promotion to the rank of Colonel (TS) with effect from the original date of his entitlement to such promotion by setting aside the decision of the Selection Board. The applicant's Statutory Complaint was rejected vide impugned order No.36501/19757/ Inf/ 2022 /MS-19/55/ SC/2023-RoG/Stat dated 5th April, 2023 assigning the reason of his such non approval for promotion as due to his overall profile, relative merit and comparative evaluation as assessed by the Col (TS) Selection Board.

5. The Army Order 09/2005, which governs the Time Scale promotion provides that an officer under consideration for Time Scale promotion shall not have obtained less than average marks in dependability, integrity, loyalty and decisiveness and it is confirmed from the applicant's ACRs that in none of his ACRs, he has been rated less than average. Furthermore, as per the aforesaid Army Order, another condition precedent for consideration for promotion is that individual shall not have any adverse comment in last six ACRs of the officer. In the disciplinary part also, there is no legally valid disciplinary case against the applicant either initiated/pending or finalised for the offences in the nature narrated in the aforesaid AO 09/2005. Hence, there is no deficiency in the service profile of the applicant in any of the field required for promotion to the rank of Colonel (TS) with effect from his initial consideration by Time Scale Selection Board,

6. The applicant apprehends that the authorities while considering his empanelment for promotion may have considered the punishment of "Severe Displeasure" illegally and arbitrarily awarded to him on some non-est ground on 31.03.2019.

7. The facts leading to the awarding of the punishment of "Severe Displeasure" to the applicant are as follows: - *i) The applicant was posted to 18 MADRAS on 17th May 2010 when the Unit was on UN Mission. He was Second-in-Command of the Unit. On return of the Unit from the UN Mission, Subedar Major Raju Kurian of the Unit*

submitted a complaint dated 12 August, 2011 against the Commanding Officer of the Unit, namely Col. V.V.Bhaskar alleging inter-alia acts of dishonesty, misuse of manpower and misappropriation of Regimental Funds.

ii) On receipt of the Complaint, a Court of Inquiry was convened to investigate the veracity of the said complaint and also of the contents of a report initiated by Col. Bhaskar on an incident while the Unit was in UN Mission. During enquiry, the complainant in his statement only once named the applicant as the silent spectator of the accused Col. V.V.Bhaskar's misdeed by not reporting the same to the higher authorities. Based on the findings of the Court of Inquiry, HQ Southern Command recommended disciplinary attachment against Colonel V V Bhaskar, Subedar Major Raju Kurian and the applicant without following the due process of law. In pursuance of the recommendation for Disciplinary Attachment, Army HQ issued Disciplinary Vigilance Ban against the applicant on 28.06.2012 and subsequently issued Disciplinary Attachment Order on 01.11.2012 attaching the applicant with 47 Infantry Brigade till finalization of disciplinary action pending against him.

8. Being aggrieved by the illegal and arbitrary orders of the authorities in imposing Disciplinary Vigilance ban, order of attachment and initiating disciplinary action, the applicant approached the Hon'ble AFT, Chennai Bench by filing Original Application No. O.A. No. 52 of 2013 praying for quashing and setting aside the aforesaid Orders initiated based on the opinion of the Court of Inquiry ordered on 29.11.2011.

9. The Hon'ble Tribunal vide Judgment and Order dated 12.09.2013 declared that the aforesaid Court of Inquiry suffers from infirmity and quashed the attachment order dated 01.11.2012 as well as charges framed against the applicant. Further, the Hon'ble Tribunal also directed the respondents to stop disciplinary action against the applicant based on the opinion of the above-mentioned Court of Inquiry.

10. However, even after quashing and setting aside of the aforesaid Court of Inquiry by the Hon'ble Tribunal, the respondent authorities vide order dated 21.12.2013 convened a fresh Court Of Inquiry exactly on the same issues which were adjudicated and set aside by the Hon'ble Tribunal and pursuant to the subsequent Convening Order dated 21.12.2013, the applicant was once again attached and directed to report to 54 HQ Artillery Brigade to take part in the Court Of Inquiry in violation of the Judgment and Order dated 12.09.2013 passed in OA No.52/2013.

11. Being aggrieved by the illegal, arbitrary and malafide action of the respondents authorities, the applicant again approached the Hon'ble Armed Forces Tribunal, Chennai by filing OA No.65/2014 praying for quashing and setting aside the Convening Order dated 21.12.2013 passed by Head Quarters 54 Infantry Division, to issue directions to the respondents (Army Head Quarters) to cancel the Discipline and Vigilance Ban dated 28.06.2012, to pass other further orders against the respondents to pay adequate compensation to the applicant for the harassment caused and also to impose a penalty on GOC HQ 54 Infantry Division for again convening a Court Of Inquiry on an issue which is no longer res integra being defiant in nature per se.

12. The Hon'ble Tribunal after perusal of the records and hearing the parties to the OA No.65/2014, vide order dated 16.07.2014, was pleased to set aside Impugned Convening Order dated 21.12.2013 opining the same to be tainted with mala fide and biased against the applicant. The Hon'ble Tribunal further observed that when the Discipline and Vigilance Ban dated 28.06.2012 and the Disciplinary Attachment Order dated 01.11.2012 were already quashed in the previous OA No. 52/2013 and the present Convening Order dated 21.12.2013 has also been set aside, therefore, any Attachment Order passed against the applicant reverting him back leading to Discipline and Vigilance Ban, if any, is also not sustainable.

13. In the aforesaid order dated 16.07.2014 passed in OA No. 65/2014, the Tribunal has also made it clear that the respondents are always at liberty to find out the truth and Inquire Into the veracity of the allegations made in the complaint by Sub Maj Raju Kurian against Col V. V. Bhaskar by initiating a fresh Convening Order in general as per law, however the applicant shall not be named in such a Convening Order. In the said order it was also made clear that any Court of Inquiry to be convened on the basis of the same complaint shall be done by a Formation Commander, outside the jurisdiction of 54 Infantry Division.

14. Consequent upon the order dated 16.07.2014 passed In OA No. 65/2014, the applicant was returned to his Unit 249 and in August, 2014 the applicant was posted as Officer Commanding to Kargil Battle School, Dras. Thereafter, the applicant was again on 03.11.2016 attached under Army Instruction 30/86 to 1 EME Centre, Hyderabad for completion of pending disciplinary action. During the attachment of the applicant at 1 EME Centre there were no correspondences/information regarding any disciplinary proceeding until 08.02.2019, on which date a Show Cause Notice was issued by the GOC Dakshin Bharat Area to the applicant on the basis of the same Court of Inquiry which was set aside by the Hon'ble AFT, Chennai in respect of the applicant asking to reply as to why Censure of the GOC Dakshin Bharat Area should not be awarded for the lapses mentioned in the Show Cause Notice to the applicant.

15. In response to the Show-Cause Notice dated 08.02.2019, applicant on 14.03.2019 submitted his reply denying the allegations made against him in the Show Cause Notice dated 08.02.2019. However, without considering the reply in proper perspective, the Respondent authority illegally and arbitrarily went ahead and passed Censure Order of "Severe Displeasure" on 31 March, 2019 contrary to the aforementioned two Judgments of the Armed Forces Tribunal, Chennai.

16. That against the Censure order of the GOC, Dakshin Bharat Area dated 31 March, 2019, the applicant submitted a Statutory Complaint on 31 Jan 2022. But same has not yet been disposed of by the authorities and without disposing of the same, the authorities proceeded with the First Review and Final Review of the Selection Board (TS), i.e., the order of Censure has played a role in deciding the suitability of the applicant for promotion to the rank of Colonel (TS) by the Selection Board for Colonel (Time Scale) thereby causing prejudice to him and depriving the applicant from the fair consideration by the Selection Board (TS).

17. That the authorities with malafide intention, illegally and arbitrarily awarded the applicant "Severe Displeasure" on some non-established grounds. Thus, this learned Tribunal may be pleased to set aside the rejection of applicant's promotion to the TS colonel rank and may allow applicant's promotion to the rank of Colonel (TS) since the date of his entitlement with all ancillary service benefits.

18. The learned Counsel for the applicant has also taken reliance of *OA 1605 of 2022 Lt. Col Sandeep Mishra Vrs. Union of India and Ors. with OA 1702/2022 Lt. Col. Sumit Acharya Vrs. Union of India and Ors.*, of AFT, Principal Bench, New Delhi wherein at para 8 & 9 it is observed that: -

8. The applicants here have been awarded the censure of 'Severe Displeasure' of the GOC-in-C Command on 14.06.2022 as per the old Censure policy dated 11.08.2017. As per this old policy dated 11.08.2017, the validity of a censure by the GOC-in-C Command is operative for 10 years from the date of award. As per the new common ensure policy issued vide Joint Armed Forces Order 01/2023, a censure of 'Severe Displeasure' awarded by the GOC-in-C Command is to be operative for the period as specified by awarding authority up to a maximum of THREE years from the date of award. Also, during the operative period, if a Censure has been considered once as a part of a Selection Board Promotion Board, it will cease to be operative thereafter. However, the new policy states 'However, censures awarded earlier will be operative for the period as per original award and the provisions of the instant policy will come into effect from the date of issue of the Censure Policy by MoD/DMA'. Both the applicants have since been considered by No 3 SB and promoted to the rank of Col and are presently commanding their respective units.

9. This would imply that if both these applicants (Censure in Jun 2022) are being considered for a foreign assignment/important appointment in 2028 along with their batch mates, one of whom has been awarded a similar censure by a GOC-in-C as per the new policy in Dec 2023, the censure of the applicants would still be operative as they would have only completed 06 years from the date of award, while the censure awarded to their batch mate in Dec 2023 will no longer be operative since the maximum period of validity of a censure by the GOC-in-C is only three years. This, in our view is a travesty of injustice as the applicants and their batch mates are unequal in their disciplinary status, merely because of the direction that past cases will be governed by the old policy. In our considered view it is, therefore, imperative that the validity of all the past cases which are operative as on the date of issue of the new policy, that is 30.10.2023, must be regulated as per the revised validity criteria and necessary endorsements made in the record of the concerned officers by the authority which awarded the censure under the old policy."

19. Per contra, learned counsel for the respondents in reply affidavit has submitted that the applicant was commissioned in Inf (Madras Regt) on 26 Aug 1995. Being aggrieved by his non empanelment to the rank of Col (TS) by Col (TS) Selection Board (First Review) held in Sep 2021, the applicant submitted a Statutory Complaint dated 23 Jul 2022. The competent authority duly examined the said complaint in the light of his overall profile, previous compliant, other relevant documents and recommendations of AHQ. After due consideration of all aspects of the complaint and viewing it against the redress sought, it emerged that all CRs in the reckonable profile are fair, objective, well corroborated, consistent, performance based, technically valid and it tune with his overall profile. There being no evidence of any bias or subjectivity, none of the CRs merit any interference.

20. The applicant has not been empanelled for promotion on account of his overall profile, relative merit and comparative evaluation as assured by the Col (TS) Selection Board. Accordingly, the competent authority rejected the Statutory Complaint dated 23 Jul 2022 vide detailed order dated 05 Apr 2023. The judgment arrived at by the SB, while considering the officer for the rank of Col (TS), has taken into account the overall service profile and discipline criteria as given Para 4 of AO 09/2005 which enshrines that the gravity and nature of the offence will be examined and promotion will not be recommended if the disciplinary case involved moral turpitude, gross negligence, acts of cowardice or un-officer like behaviour.

21. Learned Counsel for the Respondents 1 to 4 has also filed additional affidavit in reply wherein, inter alia, it is stated that the applicant was attached with 1 EME Centre for initiation of disciplinary proceedings vide Additional Directorate General, Discipline & Vigilance Branch, Integrated Headquarters of Ministry of Defence (Army) letter No C/06270/SC/688/AG/DV-2 dt 11 May 2016.

22. Meanwhile, HQ 21 Corps vide their letter dated 17 June 2015 had recommended to drop the case against the applicant, in view of the fact that no Court of Inquiry can be ordered in isolation in respect of the officer without **affecting the** ongoing discipline cases against Col V V Bhaskar SM, ex CO, 18 MADRAS and Shri Raju Kurian K, ex Sub Maj of 18 MADRAS, and the case will become time barred. The said recommendations of HQ 21 Corps were considered by HQ Southern Command and on 15 July 2015, it was decided that the discipline proceedings against the applicant may be initiated by carrying out Hearing of Charge under Army Rule 22. Accordingly, the applicant was attached with 1 EME Centre, Secunderabad for initiation of discipline action vide Additional Directorate General, Discipline & Vigilance Branch, Integrated Headquarters of Ministry of Defence (Army) dated 11 May 2016. Documents related to discipline action were received from HQ 54 Infantry Division by 1 EME Centre on 11 Mar 2017. However, 1 EME Centre had taken up a case with HQ Southern Command (Judge Advocate General), to examine the possibility of initiation of administrative action instead of discipline proceedings, as discipline action was going to be time barred as per Sec 122 Army Act, 1950. HQ Southern Command vide their Report Application on Trial dated 23 November 2017 advised that subject case may be time barred and advised that Administrative Action may be taken based on the Statement of Case. Accordingly, Statement of Case along with Recommendations of Commanders in Chain was forwarded to HQ Southern Command on 25 April 2018, for initiation of Administrative Action against the officer, based on the advice of Judge Advocate General Branch, HQ **Southern Command**. Further, HQ Southern Command thereafter, intimated that General Officer Commanding-in-Chief, Southern Command has approved the Administrative Action against the applicant. Accordingly, draft directions of General Officer Commanding, Dakshin Bharat Area & Show Cause Notice were approved vide HQ Southern Command letter No D/2402926/RDS/1DV-2 dated 12 January 2019.

23. Finally, Directions of General Officer Commanding for Administrative Action against the officer was finalised and Show Cause Notice was served to the officer 08 Feb 2019 for lapses found based on the deposition of the officer as Prosecution Witness Number 1 in the General Court Martial of the applicant.

24. It is also submitted that the reply to Show Cause Notice was submitted by the Officer vide his letter No 55451/SCN/Per dated 14 Mar 2019, has been taken on record in all facts before serving Censure by the Competent Authority on 31 March 2019, elaborated in the succeeding paras. The officer has denied any involvement with handling funds of the unit and has alleged that the then Commanding Officer, Col V V Bhaskar and Sub Maj Raju Kurian were involved in handling all illegal funds. It is pertinent to mention here that the officer has, in his statement in GCM had stated that he did sign certificate, certifying that all accounts were produced before the Quarterly Audit Board. The jurisdiction of the officer that this was the trend being followed and he **could not alter** the same as the Officiating Commanding Officer is not tenable under these circumstances. The certificate was signed by the officer, knowing fully that it was procedurally incorrect to do so. As the Officiating Commanding Officer, the officer has a solemn responsibility to report the matter to his superiors. Further, the officer has accepted in his statement as witness in the General Court Martial that he was aware of the existence of a Non-Canteen Store Department fund, however, he did not report the same to his senior authority. It would be in fitness to consider, that the officer has given the said statement under oath during the General Court Martial proceedings, which gives authenticity to them and the same may be relied on. As also, the officer states in his reply to Show Cause Notice that he did not disclose details of Non-Canteen Store Department fund during the Audit Board as it was being utilised for the welfare of the troops. The argument does not justify signing of illegal documents and not disclosing the same during Audit Board proceedings. The officer has stated that he was kept away from the accounts

of the unit, however, he has signed several documents as accounts officer and even as Officiating Commanding Officer. The officer has misinterpreted the DSR Para 36 & 37 in stating that he did not make any changes to the illegal happenings in the unit as he was only Officiating. It is not understood what compelling circumstances existed that forced the officer to sign the illegal cert and his failure to report the matter to his superiors. The same has not been sufficiently justified by him in his reply to the Show Cause Notice.

25. It is stated that as per Policy on Award of Censure and Present Circumstances, Additional Directorate General, Discipline & Vigilance Branch letter No 32908/AG/DV-1 (P) dt 11 Aug 2017, reads:- *(i) Para 10. "Before the issue of a letter awarding Censure, the authority concerned shall obtain an explanation by way of a show cause notice from the officer concerned regarding his response/vindication of his stand in respect of an alleged lapse and consider the same dispassionately in its entirety. Such a notice can be issued either on the basis of the proceedings of a Court of Inquiry or otherwise". In the instant case, a SCN was issued to the offcr based of the Statement of Case and recommendations/directions of superior mil auth, hence issued of SCN was legally tenable.*

*(ii) Para 11. "In order to facilitate the preparation of a reply to the notice, the officer concerned will be provided with a copy of the*

*Court of Inquiry proceedings, if held, less the findings and opinion of the court and comments of the superior officer in chain. "Where a Court of Inquiry has not been held, the officer will be supplied with all the documents/material based on which the show cause notice has been issued. In the instant case, a copy of deposed statement of Prosecution Witnesses 1, was provided to the officer for preparing the reply to SCN on 08 Feb 19. Hence, the same is legally in order.*

*(iii) The procedure for initiation of administrative action is legally tenable since due process of law has been followed by affording adequate opportunity to the offi in the form of SCN and also due consideration towards the reply was placed by the competent authority, before finally awarding a censure to the officer."*

26. It is also stated in the additional affidavit that while examining the extracts of statements deposed as Prosecution Witness No 1, it is apparent that he was given adequate opportunity to cross examine the accused in the General Court Martial of ColV V Bhaskar. It is also pertinent to note that the officer had rendered his statement on Oath as per Army Rule 140, at this belated stage he may not raise the contention that the same was coerced.

27. On above grounds respondents has prayed for dismissal of the Original Application filed by the applicant.

28. During the course of in-camera hearing, Respondent No – 4 (MS Branch, IHQ of MoD(Army)) produced the original Colonel (TS) Selection Board Proceedings in respect of the Applicant conducted in September 2021(Fresh), March 2022 (First Review) and October 2022 (Final Review). In all these considerations the Applicant was Not Recommended primarily due to the operability of the censure award of 'Severe Displeasure'. The remarks endorsed by the Selection Board in all three considerations has been: - *"The case of the officer has been considered by the Selection Board and graded 'Not Empanelled'. The judgement arrived at by the SB, while considering the officer for the rank of Colonel (TS), has taken into account the discipline criteria as given vide Para 4 of AO 9/2005 which enshrines that the 'gravity and nature of the offence will be examined and the promotion will not be recommended if the disciplinary case involved moral turpitude, gross negligence, acts of cowardice or un-officer like behaviour.'"*

29. We have heard the submissions by the Ld Counsels, in-camera perusal of Selection Board Proceedings submitted by Respondent No-4 and other documents including the citations on record.

**Facts and Chronology of the Case**

30. The applicant was Prosecution Witness in a GCM against his Commanding Officer, Col VV Bhaskar wherein in he made certain statements amounting to signing documents in his capacity as Officiating Commanding Officer, as per prevalent practices, pertaining to accounts of the Unit deployed in United Nations Mission in Congo to which he was temporarily posted as 2IC.

31. Based on the statements of the Applicant in the GCM, case for disciplinary proceedings were initiated against him and accordingly Discipline and Vigilance Ban was imposed on the Applicant wef 11 September 2012. Thus aggrieved, the Applicant approached Hon'ble AFT, Chennai Bench (OA 52/2013) praying for quashing and setting aside the disciplinary proceedings that was based on a Court of Inquiry ordered on 29 November 2011, page 10

32. **The Hon'ble Tribunal vide Judgment and Order dated 12.09.2013 declared that the aforesaid Court of Inquiry suffers from infirmity and quashed the attachment order dated 01.11.2012 as well as charges framed against the applicant. Further, the Hon'ble Tribunal also directed the respondents to stop disciplinary action against the applicant based on the opinion of the above-mentioned Court of Inquiry.**

33. However, even after quashing and setting aside of the aforesaid Court of Inquiry by the Hon'ble AFT Chennai, the respondent authorities vide order dated 21.12.2013 convened a fresh Court of Inquiry exactly on the same issues which were adjudicated and set aside by the Hon'ble Tribunal The applicant was once again attached and was directed to report to 54 HQ Artillery Brigade to take part in the Court of Inquiry.

34. Being once again aggrieved, the applicant approached the Hon'ble Armed Forces Tribunal, Chennai by filing OA No.65/2014 praying for quashing and setting aside the Convening Order dated 21.12.2013 passed by Head Quarters 54 Infantry Division. **The Hon'ble Tribunal after perusal of the records and hearing the parties vide order dated 16.07.2014 set aside Impugned Convening Order dated 21.12.2013 opining the same to be tainted with mala fide and biased against the applicant. The Hon'ble Tribunal further observed that when the Discipline and Vigilance Ban dated 28.06.2012 and the Disciplinary Attachment Order dated 01.11.2012 were already quashed in the previous OA No. 52/2013 and the present Convening Order dated 21.12.2013 has also been set aside, therefore, any Attachment Order passed against the applicant reverting him back leading to Discipline and Vigilance Ban, if any, is also not sustainable. The Tribunal also made it clear that the respondents are always at liberty to find out the truth and Inquire Into the veracity of the allegations made in the complaint by Sub Maj Raju Kurian against Col V. V. Bhaskar by initiating a fresh Convening Order in general as per law, however the applicant shall not be named in such a Convening Order. In the said order it was also made clear that any Court of Inquiry to be**

**convened on the basis of the same complaint shall be done by a Formation Commander, outside the jurisdiction of 54 Infantry Division.**

35. However, on 03 November 2016 the Applicant was yet again attached to 1 EME Centre for the completion of pending disciplinary actions. There was no communication between the Applicant and the Army Authorities wrt to any disciplinary proceedings between 03 November 2016 and 08 February 2019 (a period of 32 months).

36. In the intervening period, the Respondents deliberated on the disciplinary proceedings against the Applicant and arrived at the conclusion that no fresh Court of Inquiry can be initiated against the Applicant in isolation without affecting the individuals in the GCM and moreover the same would-be time barred. Thus, a decision was taken by the Respondents to initiate administrative actions against the Applicant based on a Statement of Case dt 13.03.2018.

37. Consequently on 08.02.2019, a Show Cause Notice was issued to the Applicant by GOC Dakshin Bharat Area: - *"2. Whereas the General Court Martial Proceedings in respect of Colonel V V Bhaskar, SM, were placed before the General Officer Commanding, DB Area, who has found you blameworthy of the following: -*

(a) For signing and submitting a false certificate as Officiating Commanding Officer of the Unit during the Quarterly Audit Board of all Unit Accounts for the Quarter ending September 2010.

(b) For improperly omitting to report the illegal orders given to you in October 2010 by Col VV Bhaskar, SM to, not to produce the Non-CSD Fund account book for quarterly Audit Board to any superior authority.

(c) That having come to know that IC 46126 A Col VV Bhaskar, SM, was maintaining an unauthorised Regt-II account, improperly omitted to report the same to superior officer.

5. A copy of the statements of Prosecution Witnesses (PWs) 1, 24, 28 and 31 at General Court Martial Proceedings is enclosed for your assistance in preparing your reply to the Show Cause Notice."

38. In the reply to the Show Cause Notice, the Applicant denied all the allegations of wrong doing as he was only an "officiating commanding officer" and has quoted Regulations for the Army Para 37(1) – **"an officer in temporary command of a Unit will not issue any standing orders or alter those which are at the time in force"**. Subsequently the Applicant was awarded 'Severe Displeasure' on 31 March 2019 by GOC Dakshin Bharat Area.

39. The Applicant had also submitted a Statutory Complaint dt 31 January 2022 against the award of 'Severe Displeasure'. The status of the Statutory Complaint is not found in any documents produced in front of this Tribunal.

40. The Applicant was considered for the Time Scale rank of Colonel by three Selection Boards in September 2021, March 2022 and October 2022 and was not recommended in any of these. In all these considerations the Applicant was Not Recommended primarily due to the operability of the censure award of 'Severe Displeasure'. The Applicant had submitted Statutory Complaint in July 2022 against his non empanelment impugning the Selection Board of September 2021 that was rejected by the Competent Authority.

41. The awards of Censure are based on the DV Directorate Policy Letter dated 11.08.2017 on 'Award of Censure to Officers of Armed Forces'. The Policy specifies that authority to award censure is granted to specific ranks, including the Central Government and the Chief of Army Staff (COAS). As per this Policy, a censure awarded by the General Officer Commanding of an Area is operative for Ten Years effective from date of award.

42. The DV Directorate Policy letter dated 11.08.2017 has now been superseded by Joint Armed Forces Order 01/2023 dated 30.10.2023 issued by MoD/Dept of Mil Affairs. This latest Order provides a comprehensive framework on award of censure to officers of the Armed Forces. As per this policy, the Central Government holds the authority to award censure with permanent effect, while senior commanders like the COAS, CNS and CAS can impose censure for specified periods ranging from one to five years, depending on the severity and level at which it is awarded. The operational period of censure affects its implications on promotion and selection, once considered by a Selection or Promotion Board, it ceases to be operative for future considerations.

**Our Considerations**

43. The main issues for our consideration are as mentioned below: -

- (a) Issue No - 1. Is the Statement of Case, initiated by the Respondents, recommending administrative actions instead of disciplinary actions, and consequent Show Cause Notice to the Applicant, tenable in the face of quashed C of I proceedings and later quashed convening order for fresh C of I proceedings by the Hon'ble AFT Chennai on 12.09.2013 and 16.07.2014 respectively?

- (b) Issue No - 2. Tenability of the award of 'severe displeasure' to the Applicant that is based on statements during the GCM proceedings that itself was based on the findings of C of I that was quashed by Hon'ble AFT Chennai in respect of the Applicant.

- (c) Issue No - 3. Should the operable period of the Censure be governed by the latest policy on the subject?

44. Issue Nos 1 & 2 being inter-related will be dealt concurrently,

45. On perusal of records we find that while converting the disciplinary proceedings to an administrative action, the Statement of Case initiated by the Respondents makes mentions of statement of witnesses made during the GCM Proceedings that has reference to the initial complaint by Subedar Major Raju Kurian against Colonel VV Bhaskar, SM and financial irregularities committed by him. It is during the course of C of I investigating the allegations made by Subedar Major Raju Kurian that the name of the Applicant was included in the subsequent GCM as co-accused.

46. In their Order dated 12.09.2013, Hon'ble AFT Chennai while adjudicating on the issue of the Applicant for the C of I, observes that Army Instruction No 30 of 1986 clearly states: - *"The Army Instruction clearly states that such attachment is to be ordered only when a prima facie case against an officer is established and not during investigation. In the instant case, the very fact that Army Rule 180 had not been invoked against the petitioner would render a finding of a prima facie case against the petitioner unsustainable and therefore, the attachment order issue under the provisions of Army Instructions would also be legally not sustainable. The charges that have been framed against the petitioner also suffer from the infirmity of being based on findings of a Court of Inquiry which stands vitiated in respect of the petitioner. In the light of above discussions, we are*

*inclined to hold that the Court of Inquiry suffers from the infirmity of non-compliance of Army Rule 180 and therefore, the disciplinary actions that have been initiated against the petitioner is liable to be quashed being legally not sustainable".*

47. Subsequent attempt by the Respondents to initiate a fresh C of I against the Applicant was also quashed by the Hon'ble AFT Chennai vide their Judgement dated 16.07.2014: - *"13. ....submission (by the respondents) is quite contra to the Convening Order in which the applicant and others were shown as the persons against whom the Court of Inquiry has been ordered. No doubt the applicant may be a witness to ascertain the veracity of the allegations made generally in the complaint. Similarly, the veracity of the contents of the report made by Col VV Bhaskar should also be investigated. When both the complaint and the report do not prima facie incriminate the applicant, the Court of Inquiry cannot be asked to ascertain culpability of / lapses by the applicant in specific. This would clearly show the biased attitude of the Convening Officer who ordered the convening of Court of Inquiry on 21.12.2013...In the said circumstances, we are of the considered opinion that the impugned Convening Order is tainted with malafide and bias against the applicant and is liable to be set aside."*

48. In the same ibid Order, the Hon'ble AFT Chennai allowed the liberty to the Respondents to find the truth and inquiring into the veracity of the allegations made in the complaint made by Subedar Major Raju Kurian and the subsequent report submitted by Colonel VV Bhaskar, SM regarding the alleged irregularities. **There are no documents on record showing such an inquiry was ever conducted by the respondents against the Applicant.** On the contrary, by choosing to pursue administrative actions against the Applicant, we find, that the Respondents have relied upon the statements made by the Applicant along with few other witnesses and findings of the C of I that was found to be malafide and biased by the Hon'ble AFT Chennai. However, we have also noted that the statements in the GCM were made under oath and the Applicant has chosen not to cross question either Colonel VV Bhaskar, co-accused; Subedar Major Raju Kurian or other PWs.

49. Be that as it may, we are of considered view that ignoring undermentioned documents and actions mentioned at Para 2 Show Cause Notice dated 08.02,2019 will amount to degrading the highest standards of integrity, discipline and probity expected from our Armed Forces and for which a fresh Court of Inquiry is not warranted to ascertain the omissions and commissions committed by the Applicant: - *"(a) For signing and submitting a false certificate as Officiating Commanding Officer of the Unit during the Quarterly Audit Board of all Unit Accounts for the quarter ending September 2010.*

*(b) For improperly omitting to report the illegal orders given to you in October 2010 by Colonel VV Bhaskar, SM, to, not to produce the Non-CSD Fund account book for quarterly Audit Board to any superior authority.*

*(c) That having come to know that IC 46126A Col VV Bhaskar, SM was maintaining an unauthorised Regt-II account, improperly omitted to report the same to superior officer."*

50. Thus, the censure of 'severe displeasure' awarded to the Applicant by way of administrative actions are reasonable and without malafide or bias.

51. While examining the Issue No – 3, pertaining to the operable period of the censure, we lean squarely on the Hon'ble AFT(PB), New Delhi Judgment in OA 1605/2022 and OA 1702/2022 dated 27 September 2024. In this Order, the Ld AFT deliberated upon the two policy documents governing the award of Censures to the Officers of the Armed Forces viz., DV Directorate Letter dated 11.08.2017 and the latest Joint Forces Order No 1 / 2023 dt 30.10.2023.

52. **As per the old policy dated 11.08.2017 validity of a severe displeasure awarded by GOC Area is operative for 10 years whereas in the latest Joint Forces Order 01/2023 the severe displeasure awarded by**

**GOC Area is to be operative as specified by awarding authority up to a maximum of two years from date of award. During the operative period, if a censure has been considered once as a part of Selection Board or Promotion Board, it will cease to be operative thereafter. The Ld AFT (PB) further observed: -**

*"9. ....In our considered view it is, therefore, imperative that the validity of all the past cases which are operative as on the date of issue of new policy, that is 30.10.2023 must be regulated as per the revised validity criteria and necessary endorsements made in the record of the concerned officers by the authority which awarded the censure under the old policy."*

53. We find that the censure awarded to the Applicant was considered repeatedly over three consecutive Selection Boards, though, as per the prevalent policy dt 11.08,2017, yet punished the Applicant in perpetuity for the same omission thus degrading the principle of natural justice and proportionality. We are of the view that the ends of justice would be met if the provisions of latest Joint Armed Forces Order 01/2023 dt 30.10.2023 is applied on validity of the "Severe Displeasure" awarded to the Applicant on 31 March 2019 by GOC Dakshin Bharat Area i.e. the award of 'Severe Displeasure' is operable up to the maximum period of two years subject to the stipulated condition of "During the operative period, if a censure has been considered once as a part of Selection Board or Promotion Board, it will cease to be operative thereafter".

54. We, therefore, partially allow the OA 18/2023 and direct the following: -

- (a) The validity of the 'Severe Displeasure' awarded to the Applicant on 31 March 2019 be operable for a period of two years from the date of award i.e. up to 31 March 2021.

- (b) Necessary endorsement be accordingly made in the dossier of the Applicant and other records at various HQs.

- (c) The Applicant be allowed all consequential benefits of the relief thus granted and he be considered by an appropriate Selection Board for the rank of Colonel (TS) before his date of superannuation.

55. No orders to cost.

(Lt. Gen P. Gopalakrishna Menon) Member (A)

(Justice Shailendra Shukla) Member (J)

Date : 16.07.2025

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