UNION OF INDIA & ORS. versus LT. COL. KULDEEP YADAV on 25 September 2019

[2019] 15 S.C.R. 662

SUPREME COURT REPORTS

[2019] 15 S.C.R.

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UNION OF INDIA & ORS.

v.

LT. COL. KULDEEP YADAV

(Civil Appeal No.7603 of 2019)

BSEPTEMBER 25, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Service Law – Censure – Respondent was commissioned inthe Army Corps of Electronics and Mechanical Engineering (EME)in the year 1997 – In 2009, he came in contact with a foreignCnational and remained in contact with her for over two years from2009 to 2011 – He also stayed with her at the Army premises/Armyguest house and did not disclose her true identity – A staff enquirywas conducted, consequent to which a show cause notice wasissued to the respondent – The competent authority foundDrespondent blameworthy of all the lapses and conveyed SevereDispleasure (Recordable) to the respondent – Respondent filed astatutory complaint before the competent authority, which wasrejected – Thereafter, respondent filed original application beforethe Armed Forces Tribunal – Tribunal despite noting that thepunishment of censure awarded by the competent authority, cannotEbe faulted, held that punishment of ‘Severe Displeasure(Recordable)’ was not commensurate with the act and conduct ofthe applicant – Further, Tribunal remanded the matter to thecompetent authority to award censure other than ‘SevereDispleasure (Recordable)’ – On appeal, held: The Tribunal isFcompetent and empowered to interfere with the punishment awardedby the appropriate authority in any departmental action, however,exercise of the power is circumscribed and it can be invoked onlyin exceptional and rare cases – The Tribunal, ordinarily, is notexpected to examine the quantum and the nature of punishmentawarded by the disciplinary authority as a Court of appeal andGsubstitute its own view and findings by replacing the subjectivesatisfaction arrived at by the competent authority in the backdropof the evidence on record – In the instant case, the Tribunal tookan erroneous approach despite having noticed that the respondenthad admitted all the allegations made against him in the showHcause notice – It was not a case of an aberration or a one time indiscretion of the respondent – Respondent continued to remainin contact with foreign national for over two years – Further, hefurnished wrong information in the guest list of the guest house –Respondent admitted that he unauthorisedly kept ‘official’documents in his laptop including the crucial information regardinghis rank, name and unit location and the laptop was routinelyconnected to the internet and made easily accessible to a foreignnational – Tribunal committed manifest error in interfering with theaward of censure of Severe Displeasure (Recordable) – Therefore,the award of censure of ‘Severe Displeasure (Recordable)’ passedby the competent authority upheld.

Allowing the appeal, the Court

HELD: 1. It is no more res integra that the Tribunal iscompetent and empowered to interfere with the punishmentawarded by the appropriate authority in any departmental action,on the ground that the same is excessive or disproportionateto the misconduct proved against the delinquent officer.However, exercise of that power is circumscribed. It can beinvoked only in exceptional and rare cases, when thepunishment awarded by the disciplinary authority shocks theconscience of the Tribunal or is so unreasonable that noreasonable person would have taken such an action. TheTribunal, ordinarily, is not expected to examine the quantum andnature of punishment awarded by the disciplinary authority as acourt of appeal and substitute its own view and findings byreplacing the subjective satisfaction arrived at by the competentauthority in the backdrop of the evidence on record. [Para 22][679-H; 680-A-B]

2. Indeed, it is open to the Tribunal to direct thedisciplinary authority to reconsider the penalty imposed by it;and in exceptional and rare cases, may itself impose appropriatepunishment to shorten the litigation by recording cogent reasonstherefor. The reported decisions pressed into service by theappellants have consistently taken this view. In the present case,the Tribunal has adopted the former option, of relegating therespondent before the competent authority for reconsiderationof the punishment but, at the same time, hedged by anobservation that awarding of censure in the facts of the presentcase was inevitable. [Para 23] [680-C-D]

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A3. The Tribunal erroneously assumed that the competentauthority opted to resort to administrative action by awardingcensure instead of Court Martial, because it had condoned themisconduct of respondent being of a minor nature and not beinga case involving moral turpitude, fraud, theft, dishonesty andmisappropriation. This basis is plainly misdirected and not inBconformity with the applicable policy regarding award of censureto Officers and JCO’s circulated vide communication dated 23[rd]April, 2007. In fact, the Tribunal has extracted the relevantportion of the said policy, which clearly predicates that in cases,which are not of a minor nature and not an act involving moralCturpitude, fraud, theft, dishonesty, financial irregularities ormisappropriation where trial by a Court Martial is not practicableor is inexpedient due to other reasons, may if found appropriate,be forwarded to Integrated HQ of MoD (Army) (DV Dte) at thediscretion of the GOC-in-C for consideration of the award ofcensure by the COAS/Government. The case of the respondentDwould certainly fall within the purview of the said clause.Indubitably, just because the competent authority chose todispense with the disciplinary action of Court Martial qua therespondent, does not make the misconduct and misdemeanourof the respondent any less serious much less to be of a minorEnature as assumed by the Tribunal. Notably, the Tribunal hastaken such erroneous approach despite having noticed that therespondent had admitted all the allegations made against himin the show cause notice. [Para 26] [681-B-E]

4. The Tribunal was then impressed by the fact that theFrespondent had admitted the allegations made against him in theshow cause notice. That conduct of the respondent, accordingto the Tribunal, unravelled the fair and candid intention of therespondent - to not conceal anything from the authority. TheTribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that theGrespondent continued to remain in contact with the foreignnational for over two years including facilitated her to visit Indiaand then also stayed with her in the official mess at Goa by notdisclosing her real identity. If that misconduct of the respondenthad not come to the notice of the appropriate authority, theHrespondent would have continued to indulge in the same manner.

Concededly, it is not a case of an aberration or a one timeindiscretion of the respondent as pleaded by him. Initiating StaffCourt of Inquiry against the respondent, therefore, in no way,tantamount to condoning his lapses by the authority concernedas such. [Para 27] [681-F-H; 682-A-B]

5. The Tribunal also committed a palpable error in opiningthat the show cause notice does not contain allegation againstthe respondent, regarding furnishing wrong information in theguest list of the Army Guest House. The show cause noticevividly describes the serious lapses committed by therespondent such as in clause 2(a) (iv), namely, “unauthorisedly”bringing and staying with a foreign national, in the Armypremises in Goa from 12[th] October, 2011 to 15[th] October, 2011.This allegation was sufficient to include the misdemeanour of therespondent of having furnished wrong information in the guestlist of the guest house. This allegation has been admitted by therespondent. [Para 28] [682-D-E]

6. The Tribunal also got swayed away by the fact that theallegation made in the show cause notice did not mention about“classified” documents on the laptop. It was of the view thatonly if reference was to be made to “classified” documents, itwould have been a case of sensitive nature touching upon thesecurity of the nation. What has been glossed over by theTribunal, is that, the allegation against the respondent in theshow cause notice is about unauthorisedly keeping “official”documents in his laptop including the crucial informationregarding his rank, name and unit location, and further the laptopcontaining such official documents/information was routinelyconnected to the internet and made easily accessible to a foreignnational. This allegation has been admitted by the respondentin his response to the show cause notice. The respondent merelywanted the competent authority to take a lenient view, beingmomentary loss of indiscretion. [Para 29] [682-F-H]

7. Having carefully analysed the erroneous basis on whichthe Tribunal came to hold that the punishment of SevereDispleasure (Recordable) is not commensurate with the lapsesof the respondent, we have no hesitation in concluding that theTribunal committed manifest error in interfering with the award A

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Aof censure of Severe Displeasure (Recordable), in the facts ofthis case. In our opinion, the basis on which the Tribunal choseto interfere being indefensible, the conclusion reached by theTribunal on such edifice must fall to the ground. [Para 31] [683- C-D]

BRanjit Thakur v. Union of India and Others (1987) 4SCC 611 : [1988] 1 SCR 512 ; B.C. Chaturvedi v.Union of India and Others (1995) 6 SCC 749 : [1995]4 Suppl. SCR 644 ; Union of India and Others v.Bodupalli Gopalaswami (2011) 13 SCC 553 : [2011]11 SCR 326 ; Union of India v. Parma Nanda (1989)C2 SCC 177 : [1989] 2 SCR 19 ; Mithilesh Singh v.Union of India and Others (2003) 3 SCC 309 : [2003]2 SCR 377 ; General Court-Martial and Others v. Col.Aniltej Singh Dhaliwal (1998) 1 SCC 756 : [1997] 6Suppl. SCR 470 ; Union of India and Others v.Dwarka Prasad Tiwari (2006) 10 SCC 388 : [2006] 7DSuppl. SCR 217 ; S.R. Tewari v. Union of India andAnother (2013) 6 SCC 602 : [2013] 8 SCR 988 –referred to.

From the Judgment and Order dated 07.12.2016 of the ArmedForces Tribunal, Principal Bench at New Delhi in O.A. No. 555 of 2014.

ANS Nadkarni, ASG, V. D. Makhija, Sr. Adv., S. S. Rebello, RajatNair, Praveen, A. K. Sharma, Mukesh Kumar Maroria, Advs. for theHAppellants.

Rahul Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi SatyapriyaSatyam, Advs. for the Respondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Admit.

2. The moot question involved in this appeal is: whether theArmed Forces Tribunal despite noting that the punishment of censureawarded by the competent authority cannot be faulted, ought to haveinterfered on the specious ground that “Severe Displeasure(Recordable)” was not commensurate and excessive in the facts ofthe present case; and to direct the competent authority to award censureother than “Severe Displeasure (Recordable)”, merely because censurecan also be of Severe Displeasure (Non-Recordable) or mereDispleasure, as the case may be? The incidental question is: whetherthis approach, inevitably, entails in sitting over the subjective satisfactionof the competent authority in the matter of awarding punishment?

3. The respondent was commissioned in the Army Corps ofElectronics and Mechanical Engineering (EME) on 6[th] December, 1997.He was posted to UNDOF, Golan Heights as Transport Officer w.e.f.5[th] July, 2008 to 4[th] July, 2009. In January 2009, or around that time, hecame in contact with a foreign national Miss De Oliviera Sueli Montilha(in short Ms. Sueli) of Brazil, who was working with Nazha and Darwisha sub-contractor company for United Nations in Syria. While postedat UNDOF, the work place of the respondent was HeadquartersCounter Insurgency Force (U) (HQ CIF (U)) w.e.f. 5[th] July, 2009 asAQMG. He was then detailed for Officers Advance ComputerTechnical (OACT) course Serial No.20 at Military College of Electronicsand Mechanical Engineering (MCEME), Secunderabad w.e.f. 4[th] June,2011 to 23[rd] March, 2012.

4. It is stated that the respondent continued to remain in contactwith Ms. Sueli through e-mails, phone calls, skype, short messagingsystem (SMS) and personal meetings for over two years from 2009 to2011. He also stayed with her at the Army premises, 2 STC OfficersMess, Guest Room in Goa from 12[th] October, 2011 to 15[th] October,2011.

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A5. Upon cognition of the stated misdemeanour of the respondent,a Staff Court of Inquiry was convened by the Headquarters, SouthernCommand to investigate into the circumstances under which therespondent came in contact with a foreign national and stayed with herat the Army premises in Goa, in contravention of the “Instructions onContact with Foreign Nationals, 1987” (for short, “1987BInstructions”). The Staff Court of Inquiry was finalised with directionsof General Officer Commanding-in-Chief, Southern Command (GOC-in-C). Consequent thereto, a show cause notice was issued to therespondent vide letter dated 25[th] January, 2013, so as to give anopportunity to the respondent to explain and show cause as to whyCcensure be not awarded to him. The relevant extract of the show causenotice reads thus:

“SHOW CAUSE NOTICE

1. A court of inquiry was convened by HQ Southern Commandto investigate into the circumstances under which you allegedlyDmade contact with a foreign national and stayed with Miss DeOliviera Sueli Montilha of Brazil at HQ 2 STC Officers Mes,Goa with effect from 12 Oct to 15 Oct 2011 in contravention ofthe “Instructions on contact with Foreign Nationals 1987”

2. The proceedings of said court of inquiry were placed beforethe General Officer Commanding in Chief, Southern Command,who has found you prima facie blameworthy for the followinglapses:

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(a) For violating the provisions of paras 7, 13, 44 and 45 ofF“instructions on contact with foreign nationals 1987”issued by Army Headquarters on following counts:

(i) Unauthorisedly having contact with Miss Sueli DeOliveira Montilha, a foreign National, through emails,phone calls, skype, short messaging system (SMS)and personal meetings for over two years from 2009to 2011.

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(ii) Unauthorisdely and improperly writing letters dated11 October 2010 and 3 March 2011 of sponsorshipto Indian Embassy Damascus (Syria) for facilitatingMiss Sueli De Oliveira Montilha’s visit to India.

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(iii) Personally meeting Miss Sueli De Oliveira Montilhaduring her visits to India four time from 03 to 08 Jul2010, 13 to 24 December 2010, 01 to 05 April 2011and 12 to 15 October 2011.

(iv) Unauthorisedly bringing and staying with Miss SueliDe Oliveira Montilha in the Army premises in GoaBfrom 12 to 15 October 2011.

(b) For violating the instructions on use of internet by Armypersonnel issued vide directorate General of MilitaryIntelligence, General Staff, Integrated Headquarters ofMin of Defence (Army) vide their letter No. A/38024/1/MI-11 dated 03 October 2011 on following counts:

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(i) Unauthorisedly keeping official documents in yourlaptop which was being routinely connected to theinternet as brought out by the court of inquiry.

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(ii) Maintaining facebook account revealing your rank,name and unit location

…………………..”

6. The respondent submitted his response to the show causenotice, which was duly considered by the competent authority. Finally,the competent authority vide decision dated 10[th] May, 2013, foundrespondent blameworthy of all the lapses attributed to him in the showcause notice and conveyed Severe Displeasure (Recordable) to therespondent. The relevant portion of the said communication reads thus:

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3. Commandant Military College of Electronics and MechanicalEngineering, Secunderabad has opined that although the lapsecommitted by the officer is inexcusable on moral grounds but nowthe officer has been conducting himself in exemplary manner.The officer on professional front has an outstanding record andachieved consistently phenomenal grades right from his schooldays and thereafter on all courses in the Army. He is a highcaliber officer and considering the lapses as one time indiscretionas claimed by the officer and the fact that he has a long wayahead, a lenient view may be taken.

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A4. From the record of service of the officer attached with hisReply to his Show Cause Notice, it is evident that officer hasdone well in all the courses. He was accordingly graded as perhis performance. However, doing exceedingly well in hisservice as brought out above, does not give license to theofficer to commit lapses / misdemeanors and conductBhimself in an unofficer like manner as mentioned in theShow Cause Notice bearing No A/2405020/338/DV-2 dated25 January 2013. Infact, such officers with good careerprofile are expected to conduct themselves in a moreexemplary manner worth emulating by others. Further, theCofficer had put in sufficient service and was holding therank of Lieutenant Colonel at the relevant time ofcommitting the lapses / misdemeanors. His remaining inconstant contact with the foreign national for about twoyears, staying with her in Officer’s Mess at Goa andviolating instructions on use of internet by Army personnelDas mentioned in the Show Cause Notice are inexcusableas these are not one time indiscretion / aberration butrepetition of the same time and again.

5. Considering all the facts and circumstances of the case, I findIC-57351N Lieutenant Colonel Kuldeep Yadav blameworthy ofEall the lapses attributed to him in Headquarters Southern Comd.Show Cause Notice bearing No A/2405020/338/DV-2 dated 25January 2013.

6. In view of the above, I direct that my ‘Severe Displeasure(Recordable)’ conveyed to IC-57351N Lieutenant ColonelFKuldeep Yadav of Military College Electronics and MechanicalEngineering, Secunderabad.”

(emphasis supplied)

7. The respondent resorted to a statutory complaint before theGcompetent authority, which, after due consideration of all the groundsurged by the respondent vide order dated 26[th] February, 2014, rejectedthe same. The relevant part of the said order reads thus:“………………

AND WHEREAS, the Complainant has prayed for theHfollowing:- UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV[A. M. KHANWILKAR, J.]

(a) The award of ‘Sever Displeasure (Recordable)’ be setaside and he be pardoned considering it to be a one-time aberration.

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(b) Alternatively, ‘Severe Displeasure (Recordable)’ bemitigated to ‘Severe Displeasure (Non Recordable)’considering his outstanding career and 16 years ofBunblemished service record to enable him to go throughthe Number 3 Selection Board based on his merit andnot let one mistake affect his entire life and career.

AND WHEREAS, perusal of documents on record reveal thefollowing :- C

(a) The Complainant was found blameworthy forviolating provisions of para 7, 13, 44 and 45 of“Instructions on Contact with Foreign Nationals1987”. He had unauthorized contact with Ms Sueli DeOliveira Montilha, a Foreign National through e-mail,phone calls, Skype, SMS and personally meeting fourtimes during her visits to India between January 2009to October 2011.

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(b) The Complainant unauthorizedly wrote letters ofsponsorship to Indian Embassy in Damascus (Syria) forfacilitating Ms Sueli De Oliveira Montilha’s visit to India.

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(c) The Complainant violated the policy instructions on useof internet by Army personnel issued by DirectorateGeneral of Military Intelligence, Integrated Headquartersof Ministry of Defence (Army) vide their letter dated03 October 2011 by keeping official documents in hislaptop which was routinely connected to internet andmaintained a ‘Face Book Account’ revealing his rank,name and unit location. The laptop was also usedpersonally by Ms Sueli De Oliveira Montilha on a numberof occasions thereby giving her access to classifieddocuments.

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(d) The Complainant had put in 13 years and 10 months ofservice at the relevant time and was holding the rankof Lieutenant Colonel. The lapses on his part forviolation of ‘Instructions on Contact with Foreign H

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Nationals-1987’ and Policy Instructions dated 03October 2011 on use of internet by ArmyPersonnel, issued by Directorate General ofMilitary Intelligence, Integrated Headquarters ofMinistry of Defence (Army) are serious in nature,The award of ‘Severe Displeasure (Recordable)’by GOC-in-C Southern Command on 10 May 2013is commensurate to the lapses on the part of theComplainant.

(e) Exemplary Record of Service and outstandingperformance of the Complainant prior to and afterthe award of Censure are as such no grounds forredressal.

(f) The Complainant remained in constant contact with theforeign national for about two years; staying with tierin Officer’s Mess of Number 2 Signals Training Centre,Goa from 12 October 2011 to 15 October 2011, therebyviolating the laid down instructions. Considering hisrank and status, the award of ‘Severe Displeasure(Recordable)’ to the Complainant is fair, just andlegal and does not merit any mercy.

(g) The Complainant has contended that he will be screenedby Number 3 Selection Board for promotion to the nextrank in May 2014 and Censure will have adverse affecton his entire career. The award of a Censure doesnot debar an officer from being considered forpromotion |and may not by itself affect hispromotion. However, while it is operative, it istaken cognizance of as part of the officer’s overallRecord of Service in assessing his performance forsuch promotion. The effect of a RecordableCensure on promotion would be considered in itstotality based on his overall performance.

6. AND NOW THEREFORE, having considered the StatutoryComplaint in its entirety alongwith available documents on record,the Central Government finds that the contentions raised by theComplainant lack merit. The Statutory Complaint dated 22 June 2013 submitted by IC-57351N 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 ArmedForces Tribunal Principal Bench, New Delhi (for short, “Tribunal”)by filing Original Application No.555 of 2014. The Tribunal firstconsidered the ground urged by the respondent - that the show causenotice was not legal and valid as the same was issued in violation of1987 and 2011 Instructions. According to the respondent, the saidInstructions could not be invoked against him. The Tribunal, however,opined that the purpose of 1987 Instructions would be defeated, if anarrow interpretation was to be given thereto i.e., it applies only at theinitial contact with the foreign national and not to cases involvingsubsequent and continued contact with the officer. The Tribunal thennoted that in response to the subject show cause notice, respondentadmitted the allegations made against him but had prayed for a lenientview. The Tribunal thus held that the challenge to the validity of theshow cause notice cannot be countenanced at the instance of therespondent.

9. The Tribunal then dealt with the next ground urged by therespondent regarding non applicability of 2011 Instructions. Even thatplea came to be rejected on the finding that mere clerical errorpertaining to incorrect mention of the date of Instructions, would notchange the nature of allegations or vitiate the show cause notice,moreso, in light of acceptance of the allegations by the respondent. TheTribunal noted that due to quoting of incorrect year of instructions, noprejudice is caused to the respondent. Besides, the respondent hadclearly understood the allegations made against him in the show causenotice. It further noted that the challenge was not with regard to thesource of power of the competent authority.

10. The Tribunal then considered the next ground urged by therespondent that the rejection of his statutory complaint was not due toforeign national having opportunity to have access to “ClassifiedDocuments”. Whereas, the allegation was only about the possibility ofaccess to official documents on the respondent’s laptop. The Tribunal, A

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Ahowever, observed that it would make no difference nor render theorder of Severe Displeasure (Recordable) invalid on that count alone.It then went on to observe that even non-consideration of exemplaryservice record of the respondent, whilst rejecting the statutory complaintby the appropriate authority per se would not vitiate the order of SevereDispleasure (Recordable).B

11. The Tribunal then proceeded to consider the argument of theappellant herein that the order of Severe Displeasure (Recordable)should not be interfered with. While dealing with this contention, theTribunal noted that the respondent had not intentionally suppressed hisreal identity and had offered explanation in reference to Question No.19Cof the Staff Court of Inquiry Proceeding. The respondent had clearlystated that he did not disclose that he was staying with foreign nationallady, due to personal reasons from family point of view. The Tribunalheld that that fact had commended to the competent authority for which,no allegation is noted in the show cause notice - relating to wrongDpersonal details given by the respondent in the register of the ArmyGuest House.

12. The Tribunal then proceeded to deal with the justness of theorder awarding “Severe Displeasure (Recordable)”. While doing so, itadverted to the policy regarding award of Severe DispleasureE(Recordable) to Officers and JCOs vide letter dated 23[rd] April, 2007and another policy on “Code of Conduct of Selection Boards byQuantification System” issued by the Military Secretary Branch, IHQMoD (Army) dated 4[th] January, 2011. After adverting to these policies,the Tribunal noted that the competent authorities of Army, while takingcognizance of the misdeed of the respondent in maintaining contact withFa foreign national without due permission and violating security relatedinstructions, did not find the charge serious enough to proceed againstthe respondent with disciplinary action. However, the appropriateauthority was content to deal with the respondent administratively, byawarding him Severe Displeasure (Recordable). The Tribunal then notedGthat this award coincided with all three chances of No.3 Selection Boardfor the respondent. After having said this, the Tribunal proceeded toobserve as follows:

“36. We have perused the communication dated 03.06.2013 on“Lifting of DV Ban on IC 57351N Lt Col Kuldeep Yadav”, theHdocument in the dossier of the applicant put up to the Members of No.3 Selection Board, whose para 2 (j) has been amendedvide letter dated 12.09.2016, when the hearing of this case wasin progress. The said action on the part of the respondent hasno bearing on the proceeding of No.3 Selection Board, as thereceiver does not reveal non selection of the applicant only onthe ground of award of censure.

37. Having held so, we shall now proceed to examine as towhether punishment of ‘Severe Displeasure (Recordable)’ is tooharsh, having regard to his conduct as well as service profile, asthe same leads to the denial of promotion to the applicant. Asnoticed above, the applicant has a brilliant service profile and isa very efficient and meritorious officer. There was no blemishagainst him prior to issuance of show cause notice which led toawarding the censure.

38. The Policy of awarding of censure provides that the censure,which can be ‘Severe Displeasure (Recordable)’, ‘SevereDispleasure (Non-Recordable)’ and ‘Displeasure’, is awarded foran act, conduct, omission or offences of minor nature and not incase involving moral turpitude, fraud, theft, dishonesty andmisappropriation. The respondent authority having issued theshow cause notice asking the applicant to show cause as to whyhe should not be censured, has accepted the fact that theapplicant’s act or conduct is not serious, but of minor nature andnot an act involving moral turpitude, fraud, theft, dishonesty ormisappropriation, for which one has to be tried either by CourtMartial or by prosecution in a Civil Court. The applicant in hisreply to the show cause notice has admitted the allegations, madeagainst him which also reflects his intention of not concealinganything from the authority. The respondent authority has alsocondoned the action of the applicant in furnishing wronginformation in the guest list of the guest room relating to hisservice details by not levelling said allegation in the show causenotice issued. The documents in the Laptop of the applicant werealso not ‘Classified’ documents. Had those documents be ofsensitive nature touching even remotely the security of the statethe applicant would have been tried by the Court Martial. Thatapart, as discussed above, had the award of censure not coincidewith all the three chances of No.3 Selection Board, the applicant A

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would have been selected for promotion. As noticed above, therespondents themselves have found those allegations as notserious warranting trial by Court Martial.

39. The applicant, however, undoubtedly has to punished for hislapses, which he has admitted. Hence though we are of theconsidered opinion that while the action of the respondents inawarding censure cannot be faulted, punishment of ‘SevereDispleasure (Recordable)’ does not commensurate with the actand conduct of the applicant having regard to the facts andcircumstances involved as it leads to denial of promotion tootherwise a bright officer.

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40. We, therefore, while setting aside the impugned order dated10.05.2013 passed by the Respondent No.3, awarding ‘SevereDispleasure (Recordable)’, remand the matter to the RespondentNo.3 to reconsider the same and to take any of the administrativeaction permissible under the Policy laid down on Award ofCensure of Officers and JCO’s circulated vide communicationdated 23.04.2007, other than ‘Severe Displeasure (Recordable)’.Based on the said decision, the Competent Authority shallconsider the Applicant for promotion by No.3 Selection Boardas a ‘fresh case’ in accordance with the Rules.

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41. The OA is accordingly allowed to the extent indicated above.No costs.”

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13. This decision is the subject matter of challenge in the presentappeal. Thus, the limited challenge is regarding the interference withthe awarding of Severe Displeasure (Recordable) by the disciplinaryauthority. That has been done despite a categorical finding that the factsituation of this case warrants a censure against the respondent, forhaving violated the above stated Instructions.

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14. It is urged that the quantum and nature of punishment is thesole prerogative of the disciplinary authority; and in the present case,that discretion has been exercised with due consideration of all theGrelevant matters. It is urged that the punishment awarded to therespondent by no standards can be labelled as shockinglydisproportionate. However, the Tribunal got swayed away on tenuousreasoning; and interfered with a just decision of the appropriateauthorities. The reasoning adopted by the Tribunal is palpably repleteHwith error apparent on the face of the record, if not perverse. Inasmuch as, merely because the authorities chose to proceed against therespondent administratively instead of resorting to Court Martial, doesnot 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 hascompletely undermined, if not glossed over, the seriousness of theallegations against the respondent as noted in the show cause notice,which, the respondent had unwaveringly accepted and beseeched theauthority to take a lenient approach being a one-time aberration or toborrow his words, “a momentary loss of indiscretion”.

15. It is urged by the appellant that brilliant service record ofthe respondent cannot wash away the indiscretion which could haveescalated to threats concerning national security. Further, the authoritieswere fully conscious about the service record of the respondent andafter 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 warranteda serious departmental action. Indisputably, the respondent had admittedto have remained in touch with a foreign national for over two yearsincluding having facilitated her to visit India and also stayed with her inthe Army officers’ mess guest room by making false entries in therespective diary and giving false identity that foreign national was hiswife. The lesser action of censure of Severe Displeasure (Recordable),therefore, by no standards can be said to be untenable on facts or inlaw. To buttress the above submissions, reliance is placed on RanjitThakur Vs. Union of India and Others[1], B.C. Chaturvedi Vs. Unionof India and Others[2], Union of India and Others Vs. BodupalliGopalaswami[3], Union of India Vs. Parma Nanda[4], Mithilesh SinghVs. Union of India and Others[5], General Court-Martial and OthersVs. Col. Aniltej Singh Dhaliwal[6], Union of India and Others Vs.Dwarka Prasad Tiwari[7] and S.R. Tewari Vs. Union of India andAnother[8].

1 (1987) 4 SCC 611

2 (1995) 6 SCC 7493 (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

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A16. The respondent, on the other hand, would adopt the reasonsrecorded by the Tribunal, to justify the interference with the censureof “Severe Displeasure (Recordable)”. According to the respondent,since the Tribunal granted him substantive relief by directing thecompetent authority to award any other censure (namely, “SevereDispleasure (Non-Recordable)” or “Displeasure”), he did not deem itBnecessary to assail the impugned order. It is urged that the impugnedcensure order deserves to be quashed because the very foundation ofthe show cause notice was misplaced. Moreover, the members to No.3Selection Boards (SB-3) were misled due to furnishing of wrongdisciplinary inputs concerning the respondent, leading to incorrectCdecision. Further, the extant Discipline & Vigilance Policy (DV Policy)came to be wrongly applied. Similarly, the Military Secretary BranchPolicy (MSB Policy) was inapplicable. Additionally, the order of theCentral Government on the statutory complaint filed by him wasunsustainable. It is urged that awarding of censure of SevereDispleasure (Recordable) has had a punitive effect, including on careerDprogression of the respondent. Thus, it is urged that in the interest ofjustice, the respondent may be allowed to challenge the order of theTribunal rejecting his claim on merits.

17. According to the respondent, the GOC-in-C, SouthernCommand had found lapses of respondent to be of a minor nature. TheETribunal also took note of the fact that the documents on the respondent’slaptop were not classified documents. That would dilute the seriousnessof the allegation against the respondent. In that, presence of officialdocuments on the laptop (albeit easily accessible to a foreign national),would still not be a case of serious security issue warranting award ofcensure.F

18. The respondent has also invited our attention to the analysismade by the Tribunal in reference to the allegations made against himin 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 respondentGregarding furnishing of incorrect information in the guest list of the ArmyGuest House. Presumably, for that reason, the same does not find placein the opinion formed by the concerned authority whilst awardingcensure. Further, it was not a case of intentional or deliberate act ofthe respondent. The respondent had frankly admitted the acts attributedHto him and urged upon the authority, to take a lenient view of the matter as a one-time aberration keeping in mind his past impeccable servicerecords.

19. According to the respondent, the punishment awarded byGOC-in-C, Southern Command was shockingly disproportionate. In anycase, even if the authority intended to award censure as per the CensurePolicy dated 23[rd] April, 2007, the authority had at least three options:

(a) Severe Displeasure (Recordable)

(b) Severe Displeasure (Non-Recordable) and

(c) Displeasure

It is, therefore, urged that the Tribunal was justified in taking theview that even if it was a case of censure, awarding of SevereDispleasure (Recordable) was shockingly disproportionate or excessive.

20. Furthermore, it is contended that the Tribunal was competentto examine the validity of the order passed by the appropriate orcompetent authority - both on questions of law and facts - in terms ofSection 14 (5) of the Armed Forces Tribunal Act, 2007. In fact, theTribunal could have itself substituted the punishment to a lesser degree,such as displeasure, in the peculiar facts of the present case; insteadof remanding the matter to the competent authority for reconsideration.The Tribunal has thus abdicated its authority by relegating the respondentbefore the competent authority. According to the respondent, any otherpunishment of censure than simple displeasure, would be harsh anddisproportionate. The respondent submits that the order passed by theTribunal is unexceptional and if this Court intends to interfere therewith,the respondent be granted liberty to challenge the decision of theTribunal concerning the grounds on merits of the action taken againsthim. The respondent has also placed on record the latest policy regardingthe award of censure to officers dated 11[th] August, 2017, whichclassifies the types of censures that can be awarded and the validityperiod thereof.

21. We have heard Mr. ANS Nadkarni, learned ASG, counsel forthe appellants and Mr. Rahul Kaushik, counsel for the respondent.

22. It is no more res integra that the Tribunal is competent andempowered to interfere with the punishment awarded by theappropriate authority in any departmental action, on the ground that thesame is excessive or disproportionate to the misconduct proved against A

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Athe delinquent officer. However, exercise of that power is circumscribed.It can be invoked only in exceptional and rare cases, when thepunishment awarded by the disciplinary authority shocks the conscienceof the Tribunal or is so unreasonable that no reasonable person wouldhave taken such an action. The Tribunal, ordinarily, is not expected toexamine the quantum and nature of punishment awarded by theBdisciplinary authority as a court of appeal and substitute its own viewand findings by replacing the subjective satisfaction arrived at by thecompetent authority in the backdrop of the evidence on record.

23. Indeed, it is open to the Tribunal to direct the disciplinaryauthority to reconsider the penalty imposed by it; and in exceptionalCand rare cases, may itself impose appropriate punishment to shortenthe litigation by recording cogent reasons therefor. The reporteddecisions pressed into service by the appellants have consistently takenthis view. In the present case, the Tribunal has adopted the formeroption, of relegating the respondent before the competent authority forDreconsideration of the punishment but, at the same time, hedged by anobservation that awarding of censure in the facts of the present casewas inevitable.

24. Let us, therefore, revert to the reasons weighed with theTribunal, as can be discerned from paragraph No.37 onwards of theEimpugned judgment in particular, reproduced hitherto. The Tribunal firstnoted that awarding of Severe Displeasure (Recordable), may haveimpacted the promotional prospects of the respondent. It then proceededto enquire, as to whether the punishment is too harsh having regard tothe conduct as well as service profile of the respondent - who wasconsidered to be a very efficient and meritorious officer. The TribunalFwas impressed by the fact that there was no blemish against therespondent, prior to the issuance of the show cause notice.

25. Indeed, the past service records of the delinquent officer maybe germane for awarding punishment. But in the present case, the samehad been duly noticed by the competent authority as also by the authorityGconsidering the statutory complaint filed by the respondent. Thatbecomes evident from the decisions of both the authorities. For, thecompetent authority was very much conscious about the said position,as is reflected from paragraph No.4 of his order dated 10[th] May, 2013(reproduced at paragraph No.6 hereinabove). In the same way, theHhigher authority whilst rejecting the statutory complaint filed by the respondent vide order dated 26[th] February, 2014 took note of this aspectas is clear from the extract reproduced in paragraph No.7 hereinabove.

26. The Tribunal also erroneously assumed that the competentauthority opted to resort to administrative action by awarding censureinstead of Court Martial, because it had condoned the misconduct ofrespondent being of a minor nature and not being a case involving moralturpitude, fraud, theft, dishonesty and misappropriation. This basis isplainly misdirected and not in conformity with the applicable policyregarding award of censure to Officers and JCO’s circulated videcommunication dated 23[rd] April, 2007. In fact, the Tribunal has extractedthe relevant portion of the said policy, which clearly predicates that incases, which are not of a minor nature and not an act involving moralturpitude, fraud, theft, dishonesty, financial irregularities ormisappropriation where trial by a Court Martial is not practicable or isinexpedient due to other reasons, may if found appropriate, be forwardedto Integrated HQ of MoD (Army) (DV Dte) at the discretion of theGOC-in-C for consideration of the award of censure by the COAS/Government. The case of the respondent would certainly fall within thepurview of the said clause. Indubitably, just because the competentauthority chose to dispense with the disciplinary action of Court Martialqua the respondent, does not make the misconduct and misdemeanourof the respondent any less serious much less to be of a minor natureas assumed by the Tribunal. Notably, the Tribunal has taken sucherroneous approach despite having noticed that the respondent hadadmitted all the allegations made against him in the show cause notice.

27. The Tribunal was then impressed by the fact that therespondent had admitted the allegations made against him in the showcause notice. That conduct of the respondent, according to the Tribunal,unravelled the fair and candid intention of the respondent - to not concealanything from the authority. The Tribunal completely glossed over theseriousness of the allegations articulated in the show cause notice - thatthe respondent continued to remain in contact with the foreign nationalfor over two years including facilitated her to visit India and then alsostayed with her in the official mess at Goa by not disclosing her realidentity. If that misconduct of the respondent had not come to the noticeof the appropriate authority, the respondent would have continued toindulge in the same manner. Concededly, it is not a case of an aberrationor a one time indiscretion of the respondent as pleaded by him. Realisingthe seriousness of the situation, the respondent was well advised to admit A

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Athe allegations and invite a lenient action of awarding of censure only,instead of facing Court Martial. Initiating Staff Court of Inquiry againstthe respondent, therefore, in no way, tantamount to condoning his lapsesby the authority concerned as such. Whereas, it is a just exercise ofpower in terms of clause 5 of the Censure Policy dated 23[rd] April, 2007,which reads thus:B

“5. Cases which are not a minor nature and yet do not involvemoral turpitude, fraud, theft or dishonesty and where trial by aCourt Martial is not practicable being time barred or is expedientdue to other reasons, may if found appropriate, be forwarded toCIntegrated HQ of MoD (Army) (DV Dte) at the discretion ofthe GOC-in-C for consideration of the award of censure by theCOAS/Govt.”

28. The Tribunal also committed a palpable error in opining thatthe show cause notice does not contain allegation against the respondent,Dregarding furnishing wrong information in the guest list of the ArmyGuest House. The show cause notice vividly describes the seriouslapses 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 in Goa from 12[th] October, 2011 to 15[th] October,2011. This allegation was sufficient to include the misdemeanour of theErespondent of having furnished wrong information in the guest list ofthe guest house. This allegation has been admitted by the respondent.

29. The Tribunal also got swayed away by the fact that theallegation made in the show cause notice did not mention aboutF“classified” documents on the laptop. It was of the view that only ifreference was to be made to “classified” documents, it would have beena case of sensitive nature touching upon the security of the nation. Whathas been glossed over by the Tribunal, is that, the allegation againstthe respondent in the show cause notice is about unauthorisedly keeping“official” documents in his laptop including the crucial informationGregarding his rank, name and unit location, and further the laptopcontaining such official documents/information was routinely connectedto the internet and made easily accessible to a foreign national. Thisallegation has been admitted by the respondent in his response to theshow cause notice. The respondent merely wanted the competentHauthority to take a lenient view, being momentary loss of indiscretion.

30. The Tribunal then adverted to the fact that the award ofcensure coincided with all the three chances of No.3 Selection Board.That may be the effect of censure on promotion. As per the CensurePolicy, the intended punishment being permissible and the competentauthority being satisfied that the same is commensurate with theseriousness of the uncontroverted allegations against the respondent,for the reasons recorded in that regard by it, such satisfaction cannotbe lightly brushed aside as being excessive or unjust. Accordingly, eventhis reason weighed with the Tribunal is unstatable and tenuous.

31. Having carefully analysed the erroneous basis on which theTribunal 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 Tribunal committed manifesterror in interfering with the award of censure of Severe Displeasure(Recordable), in the facts of this case. In our opinion, the basis on whichthe Tribunal chose to interfere being indefensible, the conclusion reachedby the Tribunal on such edifice must fall to the ground.

32. We are of the considered opinion that in the backdrop of theincontroverted allegations, as articulated in the show cause notice issuedto the respondent, reproduced in paragraph No.5 hitherto, the same maywarrant a stern action against the respondent; and, thus, the discretionexercised by the competent authority in terms of the stated policy todeal with the respondent administratively cannot be faulted with andmust be upheld, including the award of censure of Severe Displeasure(Recordable) being commensurate thereto.

33. We are conscious of the argument of the respondent that ifthis Court was to overturn the conclusion of the Tribunal, may permitthe respondent to challenge the decision of the competent authority onmerits. In our opinion, the Tribunal has already dealt with the groundson which challenge thereto was founded; and rightly rejected the same,taking into account the admission of the respondent in his writtenresponse to the show cause notice. Once, the respondent chose not tocontrovert the allegations made against him in the show cause noticeand pursued the matter with the competent authority only for taking alenient view, he cannot be permitted to resile from that position. It wouldresult in allowing the respondent to approbate and reprobate. That cannot A

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Abe countenanced. Therefore, the prayer of the respondent to permithim to challenge the adverse findings of the Tribunal qua him on meritsof the admitted allegations, is declined.

34. In view of the above, this appeal must succeed. The impugnedjudgment and order of the Armed Forces Tribunal is quashed and setBaside. Instead, the decision of the Government of India dated 30[th] April,2014, rejecting the statutory complaint of the respondent and upholdingthe order passed by the GOC-in-C dated 10[th] May, 2013 is restored.

35. Appeal is allowed in the above terms, with no order as tocosts. All pending applications are also disposed of in terms of thisCdecision.

Ankit Gyan

Appeal allowed.

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