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SUPREME COURT OF INDIA
A.M. Khanwilkar, Ajay Rastogi, JJ.
Union of India & Ors. – Appellants
Versus
Lt. Col. Kuldeep Yadav – Respondents
Civil Appeal No(s) 7603 of 2019 (Arising out of Civil Appeal Diary No. 17096 of 2017)
Decided on : 25-09-2019
(A) Armed Forces Tribunal Act, 2007 – Section 14 (5) – Punishment of censure – Scope of interference – Misdemeanour by respondent – Limited challenge is regarding interference with awarding of Severe Displeasure (Recordable) by disciplinary authority – Tribunal is competent and empowered to interfere with punishment awarded by appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to misconduct proved against delinquent officer – However, exercise of that power is circumscribed – It can be invoked only in exceptional and rare cases, when punishment awarded by disciplinary authority shocks conscience of Tribunal or is so unreasonable that no reasonable person would have taken such an action – Tribunal, ordinarily, is not expected to examine quantum and nature of punishment awarded by disciplinary authority as a court of appeal and substitute its own view and findings by replacing subjective satisfaction arrived at by competent authority in backdrop of evidence on record – It is open to Tribunal to direct disciplinary authority to reconsider penalty imposed by it – In exceptional and rare cases, may itself impose appropriate punishment to shorten litigation by recording cogent reasons therefor – In present case, Tribunal has adopted former option of relegating respondent before competent authority for reconsideration of punishment but, at the same time, hedged by an observation that awarding of censure in the facts of present case was inevitable. [Instructions on Contact with Foreign Nationals, 1987] (Paras 22 and 23)
(B) Service Law – Punishment – Armed Forces – Misdemeanour by respondent – Punishment of censure – Past service records of delinquent officer may be germane for awarding punishment – In present case, same had been duly noticed by competent authority as also by authority considering statutory complaint filed by respondent – Just because competent authority chose to dispense with disciplinary action of Court Martial qua respondent, does not make misconduct and misdemeanour of respondent any less serious much less to be of a minor nature as assumed by Tribunal – Tribunal completely glossed over seriousness of allegations articulated in show cause notice that respondent continued to remain in contact with foreign national for over two years including facilitated her to visit India and then also stayed with her in official mess at Goa by not disclosing her real identity – Initiating Staff Court of Inquiry against respondent, in no way, tantamount to condoning his lapses by authority concerned as such – Allegation was sufficient to include misdemeanour of respondent of having furnished wrong information in guest list of guest house – This allegation has been admitted by respondent – Tribunal committed manifest error in interfering with award of censure of Severe Displeasure (Recordable) – Impugned judgment and order of Armed Forces Tribunal quashed and set aside – Instead, decision of Government of India rejecting statutory complaint of respondent and upholding order passed by GOC-in-C restored. (Paras 25, 26, 27, 28,31 and 34)
Facts of the Case:
Moot question involved in this appeal is: whether Armed Forces Tribunal despite noting that punishment of censure awarded by the competent authority cannot be faulted, ought to have interfered on the specious ground that “Severe Displeasure (Recordable)” was not commensurate and excessive in the facts of present case; and to direct the competent authority to award censure other than “Severe Displeasure (Recordable)”, merely because censure can also be of Severe Displeasure (Non-Recordable) or mere Displeasure, as the case may be? The incidental question is: whether this approach, inevitably, entails in sitting over subjective satisfaction of the competent authority in the matter of awarding punishment?
Findings of the Court:
Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of admitted allegations, is declined.
Result : Appeal allowed.
JUDGMENT
A.M. Khanwilkar, J.
Admit.
2. The moot question involved in this appeal is: whether the Armed Forces Tribunal despite noting that the punishment of censure awarded by the competent authority cannot be faulted, ought to have interfered on the specious ground that "Severe Displeasure (Recordable)" was not commensurate and excessive in the facts of the present case; and to direct the competent authority to award censure other than "Severe Displeasure (Recordable)", merely because censure can also be of Severe Displeasure (Non-Recordable) or mere Displeasure, as the case may be? The incidental question is: whether this approach, inevitably, entails in sitting over the subjective satisfaction of the competent authority in the matter of awarding punishment?
3. The respondent was commissioned in the Army Corps of Electronics and Mechanical Engineering (EME) on 6th December, 1997. He was posted to UNDOF, Golan Heights as Transport Officer w.e.f. 5th July, 2008 to 4th July, 2009. In January 2009, or around that time, he came in contact with a foreign national Miss De Oliviera Sueli Montilha (in short Ms. Sueli) of Brazil, who was working with Nazha and Darwish a sub-contractor company for United Nations in Syria. While posted at UNDOF, the work place of the respondent was Headquarters Counter Insurgency Force (U) (HQ CIF (U)) w.e.f. 5th July, 2009 as AQMG. He was then detailed for Officers Advance Computer Technical (OACT) course Serial No. 20 at Military College of Electronics and Mechanical Engineering (MCEME), Secunderabad w.e.f. 4th June, 2011 to 23rd March, 2012.
4. It is stated that the respondent continued to remain in contact with Ms. Sueli through e-mails, phone calls, skype, short messaging system (SMS) and personal meetings for over two years from 2009 to 2011. He also stayed with her at the Army premises, 2 STC Officers Mess, Guest Room in Goa from 12th October, 2011 to 15th October, 2011.
5. Upon cognition of the stated misdemeanour of the respondent, a Staff Court of Inquiry was convened by the Headquarters, Southern Command to investigate into the circumstances under which the respondent came in contact with a foreign national and stayed with her at the Army premises in Goa, in contravention of the "Instructions on Contact with Foreign Nationals, 1987" (for short, "1987 Instructions"). The Staff Court of Inquiry was finalised with directions of General Officer Commanding-in-Chief, Southern Command (GOC-in-C). Consequent thereto, a show cause notice was issued to the respondent vide letter dated 25th January, 2013, so as to give an opportunity to the respondent to explain and show cause as to why censure be not awarded to him. The relevant extract of the show cause notice reads thus:
"SHOW CAUSE NOTICE
1. A court of inquiry was convened by HQ Southern Command to investigate into the circumstances under which you allegedly made contact with a foreign national and stayed with Miss De Oliviera Sueli Montilha of Brazil at HQ 2 STC Officers Mes, Goa with effect from 12 Oct to 15 Oct 2011 in contravention of the "Instructions on contact with Foreign Nationals 1987"
2. The proceedings of said court of inquiry were placed before the General Officer Commanding in Chief, Southern Command, who has found you prima facie blameworthy for the following lapses:
(a) For violating the provisions of paras 7, 13, 44 and 45 of "instructions on contact with foreign nationals 1987" issued by Army Headquarters on following counts:
(i) Unauthorisedly having contact with Miss Sueli De Oliveira Montilha, a foreign National, through emails, phone calls, skype, short messaging system (SMS) and personal meetings for over two years from 2009 to 2011.
(ii) Unauthorisdely and improperly writing letters dated 11 October 2010 and 3 March 2011 of sponsorship to Indian Embassy Damascus (Syria) for facilitating Miss Sueli De Oliveira Montilha's visit to India.
(iii) Personally meeting Miss Sueli De Oliveira Montilha during her visits to India four time from 03 to
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