(Order of the Tribunal made by Justice ACA Adityan)
1) According to the applicant, a retired Havildar of the Indian Army, he joined as a DMT (Driver Motor Transport) in the Corps of Artillery of Indian Army on 09.03.1984. After serving with unblemished record of service in the Indian Army for 25 years, he retired from service. He was promoted to the rank of Lance Naik on 15.07.1994 and was also promoted to the rank of Havildar on 01.10.2002 and then he has become eligible for the promotion as JCO (Naib Subedar). He was meeting the age criteria for promotion as well as ACR Criteria for promotion from the post of Havildar to Naib Subedar (DMT) as on 30.11.2007. The applicant has also served in counter insurgency arrears in Jammu and Kashmir during 2003-2004 as a Motor Transport Havildar.
1(a) He was controlling the fleet of 17 vehicles and 24 Drivers. The Screening Board has also cleared in the year 2006 for extension of service for two years in the rank of Havildar with effect from 08.03.2008. He was also in the promotion zone and expecting promotion in the year 2008-2009. He has applied for extension of service for 2 years specifically and with the hope that he will be promoted to the rank of Naib Subedar. There was no complaint or any adverse remark ever received in the performance of his duties and his conduct where his performance has always been commended by superior officers. From mid of October to mid November 2008 the applicant was performing the duties of officiating Battery Havildar Major in addition to his normal duties as MT Havildar in addition to these duties, in this period in between he was also given the duties of officiating regimental Havildar Major. The applicant did the duties assigned to him diligently and without any slackness.
1(b) 29 Field Battery was commanded by Lt Col Niraj Singh who was posted out on 29.07.2008 after which no regular incumbent Battery Commander was posted in the Battery. The applicant had to work under one Major S.K.Prakash who was officiating Battery commander, got annoyed personally rather than professional short coming of the applicant. Major Prakash also warned the applicant that he will spoil applicants career. The applicant realised later that in order to favour applicants junior the then No.15113982M Havildar Vadivellu (DMT), the Major Prakash behaved with the applicant indifferently and arbitrarily downgraded the applicants ACR to âAverage grading based on false, unjustified and untenable warnings to the applicant after the lapse of the assessment year 2007-2008. Consequently, upon the recommendation of the said Major S.K.Prakash, applicants junior was promoted to the rank of Naib Subedar arbitrarily superseding the applicant.
1(c) The applicants ACR for the assessment period 01.10.2007 to 30.09.2008 was due from 01.10.2008 onwards and although the applicant completed 90 days under battery commander, Lt Col Niraj Singh who got posted out on 29.07.2008 had not filled applicants annual confidential report and thereafter irregular incumbents remained posted as Battery commander of applicant battery ie., 29 Field Battery under 40 Medium Regiment. In the Handling / taking over of the charge of the Battery Entry tookplace on 16.10.2008, it has been written in Para 12 that ACRs of all Havildars be forwarded to Lt Col Niraj Singh. But for the reasons best known to the Unit authorities applicants ACR was not forwarded to Lt Col Niraj Singh for initiation. Although he has not completed 90 days of physical service under IC64789M Major S.K.Prakash, still the applicants ACR was written by the said Officer, who never had adequate time to assess the applicants physical performance as Havildar holding the appointment of MT Havildar.
1(d) Major S.K.Prakash took over the command of the Battery 29 Med Battery on 16.10.2008 and to applicants surprise and astonishment he was issued with warning letter dated 15.10.2008 under the signature of officiating Battery Commander, stating that while performing the duties of officiating BHM on 14.10.2008, the applicant disobeyed his orders and it shows the applicants lackadaisical attitude towards job. The applicant was issued with another warning dated 21.10.2008 arbitrarily and with malicious intent in which it was stated that while performing the duties of officiating BHM on 21st October 2008, sent No.15143205K L/Nk (DMT) Sujesh MP to Lalgarh as a Jeep Driver without informing to Battery S/JCO and Battery Commander. However, the applicant knew clearly that the above mentioned individual was detailed for 12 ms cross country competition, which was scheduled to be held on 21st October 2008, in reality the applicant was not detailed the said personnel, it was pleaded accordingly to the Battery commander who was refused to accept the same. Thereafter, on 06.11.2008, the applicant was given another warning in which it was stated that on 05.11.2008 while performing the duties of officiating RHM despite clear instructions, after completion of control of Arty fire by Supported Arms cadre the personnel attending the course were sent without interview of the commanding instructions. The applicant brought to the notice of the authorities that there were no instructions given to him to get the personnel interviewed by commanding officer and the movement orders, LRC and Railway warrants to these personnel were issued by 28 and 29 Medium Battery and dispatched without any applicants role still he was warned for the incident without having any involvement, but merely to create record to spoil applicants career and make proof for spoiling applicants ACR. Without considering the representations made by the applicant before the competent authorities, in January 2009 a charge sheet was filed against the applicant for having written a letter directly to Senior record officer and awarded Severe reprimand on 26th September 2009. All these warnings and punishments were issued beyond the assessment period for the ACR 2008, ie., from 01.10.2007 to 30.09.2008, but have been formed the basis of the ACR for the year 2008, wherein the applicant was given low grading ACR (Average) without non-recommendation for promotion making the applicant ineligible for the promotion for the rank of Naib Subedar. The applicant was made to sign the blank ACR form and have been told that the applicant was given âAverage grading making him ineligible for promotion as Naib Subedar. Accordingly, the applicant was discharged from service on 31st March 2010. The applicant relied on the following cases in support of his contentions-
(i) Brig Commodore CP George Vs. Chief of Naval Staff 58 (1995) KLT 578
(ii) Jaideep Mitra Vs. The Union of India, WP(C).No.6857 of 2008
(iii) Brig KN Misra Vs. The Union of India SWP No.1209/1994,
(iv) Indian National Congress Vs. Institute of Social Welfare and others 2002 (5) SCC 685
(v) State of Punjab Vs. Khemi Ram, AIR 1970 SC
In the case of Commodore CP George Vs. Chief of Naval Staff [58 91995) KLT 578], wherein the applicant was awarded âCensureâ arbitrarily by the authorities by which he lost his promotion, however the Honourable Court has found that the way the punishment was awarded in frivolous situation and the case was upheld and the applicant was given promotion.
1(e) After exhausting all the remedies available to the applicant under the statute, the applicant has come forward with this application with the following prayer- âIn the above circumstances, the applicant has no other alternative efficacious remedy other than to file this Original Application before this Tribunal for suitable relief and prays that the above errors of laws apparent on the face of the records, the order of statutory complaint dated 8th February 2010, be quashed / set aside and the respondents be directed to reinstate the applicant into the service with Naib Subedar retrospectively with all consequential benefits and expunging all the punishment awarded illegally.â
2. The respondents in their joint counter would contend that the individual was meeting all criteria for promotion before AUPB held during November 2008. Individuals statement regarding his spotless unblemished service career is incorrect. He was awarded âSevere Reprimand under Army Act Section 48 on 8th December 2004 while serving with 30 RR Bn. The individual was meeting all the eligibility criteria except ACR and disciplinary criteria. He was awarded âSevere Reprimand under Army Act Section 48 on 8th December 2004 and further awarded âSevere Reprimand on 25th September 2009 under Army Act Section 63 while serving with 40 Med Regt (SP) and also not meeting the ACR criteria at the time of AUPB required to be forwarded to Arty Records during November 2009. While performing the duties of Officiating Battery Havildar Major (BHM) in addition to MT Havildar, the applicant was warned verbally on number of occasions by his Officiating Battery Commander. When he refused to show any improvement, the Officiating Battery Commander endorsed the warnings in writing on 15th October 2008, 21st October 2008 and 6th November 2008. However, thereafter his interest in the Battery affairs and his contribution was found wanting by the Officiating Battery Commander.
2(a) Lt Col Neeraj Singh, who was Commanding the 29 Medium Battery, was posted out to 93 Infantry Brigade on 28th July 2008 in the mean time Maj SK Prakash had taken over the charge of Battery Commander with effect from 19th February 2008 from Major Ritik Sharma as there were no regular incumbents as Battery Commander (Photocopy of Handing/Taking over certificate attached as Appx-A). Lt Col Neeraj Singh was tenanting the appointment of Second-in-Command. All the ACRS of 29 Medium Battery for the period from 1st October 2007 to 30th September 2008 were initiated by Major SK Prakash. Early ACR of NCOs of 29 Medium Battery could not have been initiated by Lt Col Neeraj Singh as the early ACR can only be initiated 60 days before due date ie., 2nd August 2008 as per Para 9(b) of AO 1/2002/MP. Three warnings in writing were issued to the individual on 15th October 2008, 21st October 2008 and 6th November 2008 by Major SK Prakash for his inadequate interest in performing his duties and careless attitude failed to achieve the desired result and had no bad intention to support any junior in promotion. He was awarded âaverage grading during the reporting year 2008 on assessing the performance of the individual and the same was communicated to the individual. On the basis of the ACR criteria and discipline, the next promotion to the applicant was superseded. The applicant had served under the Initiating Officer Major SK Prakash for 144 days (Details attached in Appx-B).
2(b) The applicant was issued with first warning on 15th October 2008 after repeated verbal warnings for his inadequate interest in performing his duties and careless attitude to achieve the desired results before initiating his ACR for the year 2008. Major SK Prakash proceeded on 27 days part of Annual Leave from 15th September 2008 to 11th October 2008 and rejoined from leave on 12th October 2008 (Copy of Part II Order No.85 dated 12th October 2008 attached as Appx-C). The applicant has received the above warning from Major SK Prakash on 15th October 2008 and put his signature on the office copy (Appx-D). Allegations made by the applicant against Major SK Prakash are all false.
2(c) The second warning was issued to the applicant on 21st October 2008 for detailment of personnel without informing his Battery Commander. L/Nk Suresh MP had to perform in sports competition, however the individual was detailed by the applicant for duties else where. It shows the negligence of the duty of the applicant as he did not show any improvement after receiving first warning. Third warning was issued to the applicant on 6th November 2008 while performing the duties of Officiating RHM in exercise are for not getting the personnel interviewed by Commanding Officer before they were returning back to their parent unit, the procedure being followed for personnel going out on termination of a professional cadre. Applicant was responsible for the lapse and failed to perform his duties properly.
2(d) On 28th January 2009, the applicant forwarded a complaint directly to Senior Record Officer, Artillery Records, Nasik Road Camp with a copy to Mr A.K.Antony, Honourable Defence Minister, Ministry of Defence, Government of India, New Delhi, and again he submitted a statutory compliant addressed to Integrated HQ of Ministry of Defence (Army), Adjutant Generals Branch, Additional Dte General MP/MP-8 (I of R), West Block III, RK Puram, New Delhi, regarding redressal on his Annual Confidential Report for the year 2008 and next higher promotion in contravention to para 557 of Regulations for the Army 1987, wherein the channel for correspondence by the service personnel has been clearly laid down. The applicant has taken personal interview of Commanding Officer Col Dipendra Rawat on 5th February 2009 regarding redressal of ACR 2008 and Promotion, the procedure of complaints was explained to him by the Commanding Officer. Advance copy of applicants statutory complaint was received from HQ 33 Army Bde vide their letter No.CF/14494810H/RM/A dated 21st March 2009. It was processed to higher authorities as per laid down channel. A Show Cause Notice was served to the applicant vide Unit letter No.CF/14494810/07/A dated 20th March 2009 (copy attached as Appx-E) to take disciplinary action for violating laid down channel of correspondence and an opportunity was given to him to forward his reply within thirty days on receipt of show cause notice. Applicant refused to receive the show cause notice and the same was handed over to him in the presence of three witnesses. A Court of Inquiry was held to investigate the circumstances under which the applicant violated the laid down channel of correspondence contrary to Para 557 of Defence Services Regulations for the Army 1987. Court of Inquiry proceedings recommended for taking disciplinary action against the applicant. The applicant was awarded punishment under Army Act Section 63 âSevere Reprimand on 25th September 2009 for not following proper channel to solve his grievance. Hence, the applicant was ineligible for further promotion. The statutory complaint was rejected by the Chief of Army Staff and the applicant was informed accordingly in writing. Inspite of several warnings issued to the applicant prior to the initiation of his ACR for the year 2008, the applicant has not shown any improvement and hence he was awarded âAverage grading commensurate to his performance and not to make him ineligible for further promotion. The allegation made by the applicant that he has signed on blank ACR is incorrect. As per Part I of the ACR form, individual has signed on the form after filling up required information and signed on the required certificate of period served under IO and RO and he also certified the facts and signed it as correct. (CTC of the ACR form is enclosed as Appx-F). Under such circumstances, the application is devoid of any merit and is liable to be rejected.
3. The respondents have filed an additional reply statement contending that the applicants application challenging the Summary Trial proceeding, which was held against him during 2004-2009 is not maintainable in view of Section 3(o) of the Armed Forces Tribunal Act 2007 since this Tribunal has no jurisdiction.
4. We heard the learned Counsel Mr.Venkatadri appearing for the applicant and the learned Senior Central Government Standing Counsel Mr.V.Balasubramanian and the learned JAG Officer Lt Col Sandeep Kumar appearing for the respondents and considered their respective submissions.
5. Now the point for determination in this application is whether the order of rejection passed on the statutory complaint dated 8th February 2010 preferred by the applicant is liable to be set aside for the reasons stated in the affidavit to the application and also the consequential relief of reinstating the applicant into service in the rank of Naib Subedar with retrospective effect with all consequential benefits after expunging all the punishments awarded to the applicant is allowable?
6. THE POINT:-The ACR relating to the applicant for the period from 01.10.2007 to 30.09.2008 was called for by this Tribunal and the original ACR for the above said period relating to the applicant was produced by the respondents and perused by us. The learned counsel appearing for the applicant in his elaborate argument would contend that as per Para 44 of Army Order 1/2002/MP (Confidential Reports of JCOs and NOCs), the âAverage grading shall be communicated to the personnel against whom the same was given. Para 44 reads as follows-
ââAverage assessment in any personal quality or demonstrated performance or in overall grading is not an adverse grading, thus, needs no justification in the pen picture. However, since âAverage grading adversely effects promotion prospects of JCO/NCO including grant of honorary commission/rank, it will be communicated. However, where a Ratee as though been graded â Average but â Not Recommended for promotion, the same will be justified in the pen picture by the Reporting Officer(s) and the grading including pen picture will be communicated to the Ratee.â
Basing his arguments on the above said Para 44, the learned counsel appearing for the petitioner would contend that the applicant, who has been awarded âAverage grading was communicated about the said adverse âAverage grading only on 1.6.2009 even though the said âAverage grading was awarded to him as early as on 31.10.2008. But, a perusal of the original Confidential Report relating to the applicant for the period 1.10.2007 to 30.09.2008 produced by the respondents would go to show that the Initiating Officer had given âAverage grading, Box grading, Grade-4, on 31.10.2008 and the applicant has also signed in the communication slip. Subsequently, the Pen-Picture recorded by the Reviewing Officer viz Commanding Officer dated 31.10.2008 was also communicated to the applicant on 19.12.2008 and the applicant has also signed in the same. So, the contention of the learned counsel appearing for the applicant that the applicant was communicated about his âAverage grading and the pen-picture of the IO and RO only on 1.6.2009 cannot be sustainable. It is seen from the Appendix to the original Confidential Report relating to the applicant for the period from 01.10.2007 to 30.09.2008, only the extract of ACR for the year 2008 was furnished to the applicant on 1.6.2009 to enable him to face Summary Trial initiated against him in the year 2009. The extract of ACR shows that the date below the signature of IO also is dated 1.6.2009, which will clearly go to show that only an extract of the ACR of the confidential report for the year 2008 was furnished to the applicant after he was made aware of the same as early as on 9.12.2008. If the case of the applicant that he was furnished with the extract of ACR and was communicated with the adverse grading in the ACR of the year 2008 only on 1.6.2009, then he would have recorded in the extract of ACR itself about his protest by recording that without prejudice to his right he is receiving the extract on 1.6.2009 after an inordinate delay. Further, Maj SK.Prakash had joined duty on 19.2.2008 after taking over charge from Maj Ritik Sharma and not joined only on 16.10.2008 as contended by the applicant in his petition.
6(a) The learned counsel appearing for the applicant relying on a judgment of the Madras High Court in W.P.No.7584 of 2002dated 25.03.2004 would contend that in the case of the petitioner therein viz. K.V.Singh, his promotion to the post of Brig from Col was considered by the Court on the basis of the written entries in the Confidential Report for the period from 1.9.1994 to 31.8.1995. The relevant observation in the said Judgment by the learned Judge after relying on a ratio laid down in 1994(3)SCC 357 (Union of India Vs. Upendra Singh) runs as follows:-
âIt is apparent on the face of the impugned proceedings dated 22.3.2001 that the petitioner was not considered for the promotion from the post of Colonel to Brigadier, as he obtained very low figurative assessment viz., 8 points. It is true that the promotion from the post of Colonel to Brigadier is only a selection post, but not a promotional post and particularly, when it relates to army, due care has to be shown in the matter of such selection process, as it requires to maintain high level of integrity in the interest of the nation at large.
â¦â¦â¦â¦â¦ there cannot be any second opinion that the power of judicial review of this Court conferred under Article 226 of the Constitution of India, should be sparingly exercised only with respect to the decision making process, but not with reference to the decision taken by the selection authorities in the matter of promotion from the post of Colonel to Brigadier.â
In the case on hand, there is absolutely no material produced before this Tribunal to show that the applicants junior viz. Hav. Vadivellu who had the same ACR grading as that of the applicant has been promoted to the rank of Naib Subedar during 2008. Under such circumstances, We are of the considered view that the grading given by the competent authority like IO and RO cannot be interfered with by this Tribunal since there is no material to show that the adverse grading given to the applicant in his ACR relating to the period from 01.10.2007 to 30.09.2008 is malafide and recorded with malice and bias. In the statutory complaint preferred by the applicant, the applicant has challenged only the grading given in his ACR relating to the period from 01.10.2007 to 30.09.2008. Under such circumstances, We are of the considered view that adverse grading given in the ACR of the applicant for the period from 01.10.2007 to 30.09.2008 by the competent authority cannot be interfered with by this Tribunal.
6(b) The learned JAG Officer in support of his contention that the Courts cannot interfere with the award of grading in ACRs would rely on a Judgment of the Principal Bench of the Armed Forces Tribunal in T.A.No.198 of 2010 (Col PK Nair Vs. Union of India and others), wherein the learned Bench has relied on a judgment of the Honourable Apex Court in 2001(10) SCC 424 (Lt Col Amrik Singh Vs. Union of India and Others) wherein relevant passage in the said judgment runs as follows:-
âAlthough before the year 1985-86 and even subsequently the performance of the appellant had been so good that he got marks 7, 8 and 9 in a number of years, but ultimately, what is relevant for the purpose of the present case are ACRs for 5 years prior to 1990 which includes the year 1985-86 and that contains one adverse remark. That adverse remark in the present case cannot be said to be an irrelevant matter for the purpose of consideration of the appellant for promotion as Lt Colonel along with his batchmates in 1990â¦â¦..
â¦â¦.. Therefore, it is not possible to grant any relief to the appellant in spite of the fact that his performance in the subsequent years has been shown to be very good and his ratings were very high. Ultimately the single adverse remark of 1985-86 by the Reviewing Officer had stood in his way, not only at the time of original consideration but also when the matter considered afresh pursuant to the directions of the High Court. The result may be unfortunate. But the scope of the jurisdiction of the High Court being very limited, one cannot go into the correctness of the adverse remarks nor into the assessment made by the Selection Board on the two occasions.â
6(c) The learned Senior Central Government Standing Counsel Mr.V.Balasubramanian also brought to the notice of this Tribunal the conduct of the applicant against the Defence Service Regulation 557. The applicant instead of giving vent to his grievance to his immediate superior officer as per the rules has preferred a complaint directly to the Honourable Minister for Defence Shri.A.K.Antony by addressing him in letter dated 28th January 2009 while he was in service. The Regulation 557 of the Defence Service Regulations reads as follows:-
âIn no circumstances will officers, JCOs, WOs, OR or NCs(E) address the President, the Head of a State, a Minister, the Chief of Army Staff, or any Army Commander, or any Principal Staff Officer at Army Headquarters, or Heads of the Services, or any other superior formation commander on any official or service matter except through the authorised channels.
Officers are forbidden to visit higher commands on regimental or personal matters, unless previous sanction, in writing, has been obtained from their immediate superior.â
So, viewed from any angle, this Tribunal is of the view that the relief asked for under this application cannot be granted in favour of the applicant since the same is devoid of any merit. Point is answered accordingly.
7. In fine, the application is dismissed, but in the circumstances of this case, there is no order as to costs.