UNION OF INDIA & ORS. versus BRIG. DEVINDER SINGH on 23 August 2019

[2019] 11 S.C.R. 1 [2019] 11 S.C.R. 207

UNION OF INDIA & ORS.

v.

BRIG. DEVINDER SINGH

(Civil Appeal Nos. 2047-2048 of 2011)

AUGUST 23, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Armed Forces: After action reports and Annual credentialreports – Judicial review of – Case of respondent-Brigadier thatBattle Performance Report, After-Action Report, Report of ArmyHeadquarters Military Operations Directorate and Reportssubmitted by the High-Power Committee regarding Kargil War to becorrectly recorded recognising his performance in Operation Vijay– Direction by the tribunal that facts to be correctly entered in theReport at the relevant places – Sustainability of – Held: Notsustainable – After-Action Report is a compilation of the reportssubmitted by the Officers at the time of engagement – Such reportsare collected and maintained for the purposes of future strategicstudies and have no adverse consequences in respect of any Officeras no adverse action is taken on the basis of such reports – Alsoreports do not have any civil consequences, thus, is not subject tojudicial review by the tribunal or the Courts – Tribunal or the Courtis not the Authority to appreciate the historical facts as it is for theexperts and Officers in the Armed Forces to record such facts interms of the procedure established by them – Furthermore, this Courtneither has the expertise nor has the jurisdiction to sit over thereports furnished by the Officers in respect of credit to the Officersinvolved in the Operation Vijay – Thus, the direction of the tribunalis set aside.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2047-2048 of 2011.

From the Judgment and Order dated 17.05.2010 of the ArmedForces Tribunal, Principal Bench at New Delhi in T.A. No. 272 of 2010and order dated 07.09.2010 in R.A. No. 25 of 2010

Ms. Sonia Mathur, Sr. Adv., Ms. Priyanka Das, Ms. ChinmayeeChandra, Vrinda Rao, A. K. Sharma, Mrs. Anil Katiyar, Advs. for theAppellants.

207

A

B

CDE

F

G

H

ALt. Col. K. Ramesh, Vibhuti Sushant Gupta, Archana R., HimanshuKalra, Ram Naresh Yadav, Advs. for the Respondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.B1. The challenge in the present appeals is to an order passed bythe Armed Forces Tribunal[1] on May 17, 2010 directing the appellantsthat the facts should be correctly entered in the reports at the relevantplaces and that the Annual Confidential Report[2] written by Lt. Gen.Kishan Pal as Adjudicating Authority for the period November, 1998 toCJune, 1999 be expunged as a whole.

2. It is categorical stand of the appellants that the order of theTribunal so as to expunge the ACR written by Lt. Gen. Kishan Pal is notbeing challenged by the appellants in the present appeals as said part ofthe order of the Tribunal has been given effect to. The only directionDunder challenge is that the facts should be correctly entered in the reportsat the relevant place.

3. The respondent herein was promoted to the post of Brigadierin May, 1998 and assumed the Command of 70 Infantry Brigade thendeployed in Kashmir Valley in counter insurgency duties in operationERakshak in the year 1999. His Brigade Headquarter was associated toLadakh Sector subsequently. As per the respondent, he forecasted thepattern of Kargil intrusion but the same was summarily dismissed by hissenior officers.

4. The grievance of the respondent is that Battle PerformanceFReport, After-Action Report, Report of Army Headquarters MilitaryOperations Directorate and Reports submitted by the High-PowerCommittee of the Government of India regarding Kargil War[3] should becorrectly recorded recognising his performance in Operation Vijay.

5. It may be stated that the above said Reports are preparedGduring the action and after the War is completed for review and forfurther studies at subsequent stages for strategic purposes. Suchdocuments are confidential and are not in public domain.

1 Tribunal

2 ACRH3 Operation Vijay

6. The learned Tribunal issued directions for correction in Para192 in the After-Action Report wherein, the impression sought to begiven is that Eastern Flank was headed by Brig. Ashok Dugal but as perMaj. Gen. Budhwar, GOC of 3 Infantry Division, Brig. Ashok Dugalwas called to coordinate and assist the Eastern Flank and notsuperimposed upon the respondent. The direction of the Tribunal was tocorrect the After-Action Report accordingly.

7. The only question is whether the respondent can seek recordingof After-Action Report in the manner sought by him. The After-ActionReport is a compilation of the reports submitted by the Officers at thetime of engagement. Such reports are collected and maintained for thepurposes of future strategic studies and have no adverse consequencesin respect of any Officer as no adverse action is taken on the basis ofsuch reports. In fact, the respondent has been conferred Vishisht SevaMedal as the Commander of an Infantry Brigade in the NorthernCommand who was given the responsibility for the conduct of alloperations in Batalik-Yaldor Sector during Operation Vijay.

8. We find the issue raised is more to take credit by the Officersengaged in Operation Vijay. The reports do not have any civilconsequences, therefore, is not subject to judicial review by the Tribunalor the Courts. The order having civil consequences has already been setaside and not appealed by the appellants. Therefore, maintenance ofrecords for future strategic studies is not open to challenge in exerciseof power of judicial review.

9. In fact, in the synopsis furnished by the learned counsel for therespondent, it is mentioned that the respondent does not want anypersonal relief from the Court but only wants correct historical facts tobe drawn and declared by this Court.

10. The Tribunal or the Court is not the Authority to appreciatethe historical facts as it is for the experts and Officers in the ArmedForces to record such facts in terms of the procedure established bythem. This Court neither has the expertise nor has the jurisdiction to sitover the reports furnished by the Officers in respect of credit to theOfficers involved in the Operation Vijay.

11. Consequently, the direction of the Tribunal to correct the After-Action Report or other such reports cannot be sustained and is, therefore,set aside. The appeals are accordingly allowed.

Nidhi Jain

Appeals allowed.

AB

C

D

E

F

G

H