J.P. Singh, J.
1. Seeking quashing of show cause notice dated 08.08.2006 of the Chief of Staff, 16 Corps, annulment of order dated 04.09.2006 of Corps Commander 16 Corps and a direction for promotion to the rank of A/Col, Lt. Col. Veerender Mohan petitioner, functioning as Deputy Judge Advocate General 16 Corps, has filed this Petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K.;
2. The case set up by the petitioner in his petition, in nut shell, is that a false complaint made by a lady officer (Capt. Ms. X {it is not considered proper to disclose the name of the lady officer additionally because she has not been arrayed as a party respondent to this writ petition}), resulting in the constitution and holding of a Court of Inquiry, had found the petitioner responsible for 'various misdemeanours' and ultimately culminating in communication of a 'Severe Displeasure (Recordable)' to the petitioner.
3. The petitioner says that right from the day of arrival on posting of Capt. Ms. X to his office she started misrepresenting that she was over due for promotion to the substantive rank of Captain and petitioner may process her case as such. On being informed by the petitioner that he had no authority to promote her because the policy guidelines did not permit her promotion Ms. X is stated to have pressurised him through Brigadier A. K. Malik, Brigadier Administration HQ 16 Corps. The petitioner had informed respondent No. 4 Major General B. S. Jaswal about few false statements made by the lady officer against him to the General Officer Commanding, but rather than proceeding against Ms. X, he was threatened of dire consequences and deprivation of promotion. The petitioner says that a complaint was later managed at the instructions of Captain Ms. X against him, which resulted in issuance of a show cause notice and later communication of Severe Displeasure (Recordable) on the basis of the findings of the Court of Inquiry.
4. The petitioner questions the constitution of Court of Inquiry and its proceedings, show cause notice, and order dated 4th of September, 2006, saying that the principles of natural justice had been violated by the respondents in not supplying him the findings of the Court of Inquiry before issuing the show cause notice, which did not contain 'definite and specific lapses', in unambiguous terms, and that the expression 'various misdemeanours' used by the 4th respondent in the show cause notice was vague and ambiguous. He says that he had been cleared for promotion by the Selection Board and could not be deprived of this promotion on the basis of Severe Displeasure, which, the petitioner says, was not a known punishment in the Army and would not operate as bar for his promotion. He says that the witnesses, who had been produced during the Court of Inquiry, had not even remotely involved him in any act of omission and commission, misconduct or misdemeanour and the conclusion drawn by the respondents, attributing various misdemeanours on the basis of Court of Inquiry was perverse and unjust.
5. Respondents have opposed the admission of this writ petition to Hearing, saying that Effective Alternate Remedy under Section 27 of the Army Act was available to the petitioner and having omitted to have recourse to the remedy available to him, he cannot seek judicial review of the orders of the respondents. They further say that in accordance with the policy guidelines on promotions the petitioner was entitled to get his case considered in the 'Special Review' devised by the policy guidelines to redress genuine grievances of the persons belonging to the Army.
6. Dealing with the case set up by the petitioner in the writ petition the respondents say that petitioner and the lady officer, Ms. X, joined Head Quarters, 16 Corps as officiating Deputy Judge Advocate General and officiating Assistant Judge Advocate General on 20.03.2006 respectively when the lady officer had completed her two years of service and was entitled to the rank of Captain from the date she had assumed the appointment of officiating Assistant Judge Advocate General. The petitioner and the lady officer had been staying in adjacent rooms in Officer's Mess guest rooms when the petitioner started making un-officer like suggestions to the lady officer by asking her to stay with him in the accommodation which may be hired in the civil area which the lady officer had declined. While working in the office the petitioner would call the lady officer, make her sit in front of him for long duration and would make unwarranted gestures and invariably keep staring her. The petitioner would fry various means and methods to harass the lady officer at the work place, asking her to handle disciplinary cases about which she did not have requisite experience. This ultimately landed the lady officer in the hospital as a case of 'Panic Disorder'. It was from the hospital that the lady officer lodged a formal complaint on 7th of May, 2006, alleging harassment by the petitioner at her work place. A Court of Inquiry was constituted by the General Officer Commanding 16 Corps to investigate the allegations made by the lady officer against the petitioner. Rule 180 of the Army rule was duly complied with and both the officers provided opportunity as warranted under rules. The Court of Inquiry found the petitioner blame worthy for 'various misdemeanours being inimical to military discipline as also to the functional efficiency'. A show cause notice was issued to the petitioner, And considering his reply and the Court of Inquiry proceedings, the General Officer Commanding 16 Corps awarded 'Severe Displeasure' (Recordable) against the petitioner.
7. Meeting the plea set up by the petitioner as to his entitlement to physical promotion to the rank of A/Col., the respondents say that under the existing Promotion policy, being uniformly and consistently followed in the army for physical promotion of empanelled officers to the rank of Colonel consequent to empanelment, an officer would be promoted to the next rank, provided his performance was satisfactory i.e. there was no drop in performance during the interim period from the date of approval of the Selection Board to the date of physical promotion. In case an officer was awarded a Censure (Recordable) it would constitute 'drop in performance' warranting consideration of the officer's case, afresh by the Selection Board in Special Review where the Board would re-consider the case of the officer along with censure and additionally the Annual Confidential Report input(s). It was only after such review that he would be promoted in accordance with the promotion policy and in case he was not found fit for promotion by the Special Review Board, his earlier empanelment would be cancelled. The final promotion, in such case, the respondents say, would thus depend on the out come of the Special Review consideration. They place reliance on Circular No. 04502/MS policy dated 27.07.1995.
8. The petitioner did not choose to have the services of his counsel and opted to project his case on his own. He was permitted to do so. He, however, later filed written submissions.
9. Questioning the show cause notice and validity of order dated 4th September, 2006, petitioner submits that the respondents had violated the principles of natural justice by omitting to communicate him 'definite and specific lapses', which were required to be replied by him. Relying on Letter No. 32908/AG/DV-1(P) dated 16th of October, 2000 he urges that the respondents had violated their own guidelines by omitting to communicate and supply definite and specific lapses attributable to him in unambiguous terms, which would render the show cause notice unsustainable. Elaborating his submissions, he urges that there was no evidence on records before the Court of Inquiry, warranting issuance of Show Cause Notice, or, for that matter, order dated 4th of September, 2006. His further submission is that furnishing of enquiry proceedings less findings of Court of Inquiry was not requisite compliance of the principles of natural justice. Reliance is placed by him on D. C. Aggarwal v. State Bank of India 1991(2) Supreme Cases Today, 430 to urge that inquiry without evidence was unsustainable.
10. To support his submissions he refers to Surjit Singh Aulakh v. Punjab & Haryana High Court 1992(1) Supreme Cases Today, 587, Managing Director, ECIL, Hyderabad v. B. Karunakar : (1994)ILLJ162SC . He refers to Sher Bahadur v. Union of India and Ors. 2002(2) SC Services Law Judgments, 294 and S.N. Mukherjee v. Union of India : 1990CriLJ2148a .
11. Shri Vikas Singh, Learned Additional Solicitor General of India, appearing with Sh. V.K. Magoo, Assistant Solicitor General, submitted that instructions relating to the award of Censure on which the petitioner had placed reliance, were Non-statutory and were thus required to be considered directory in nature unless non-compliance thereof had resulted in miscarriage of justice. He submits that the petitioner had been supplied the complaint made by the lady officer alongwith a copy of the Court of Inquiry, which included the statements of the witnesses and the documents which were produced during the course of inquiry minus however the findings and the opinion of the Court of Inquiry, which in terms of the guidelines were not required to be supplied to him when he was served with the Show Cause Notice. The petitioner did not raise any such grievance that the Show Cause Notice was vague and no specific charges had been mentioned, in response to the notice. He rather, submitted a detailed reply, meeting each and every allegation made out in the complaint against him as well as the allegations coming out of the proceedings of the Court of Inquiry. Learned Counsel says that the petitioner had neither been prejudiced nor disabled in any manner whatsoever in submitting his reply to various misdemeanours on the part of the petitioner that had given rise to the complaint and were found inimical to the military discipline and functional efficiency. Learned Counsel says that in view of the availability of equally efficacious remedy under Section 27 of the Army Act and by way of Special Review the present writ petition did not warrant its admission to hearing.
12. I have considered the submissions of the petitioner, his written submissions and the submissions made by Learned Senior Counsel for the respondents. The pleadings of the parties too have been perused.
I propose to deal with the issues raised at the time of consideration of this petition seriatim as follows:
Ist submission:
13. Plea of the petitioner that proceedings of the Court of Inquiry were sham and actuated by malafidies attributable to Lt. Gen. T. K. Saproo, Corps Commander, Major General B. S. Jaswal, Chief of Staff and Brigadier A. K. Malik, Brigadier Administration of 16 Corps, on examination of records of Court of Inquiry, which were made available by learned Counsel for the respondents, does not appear to be sustainable. The records clearly demonstrate that the proceedings had been conducted in accordance with the provisions of law governing the conduct of such proceedings and full opportunity had been allowed both to the petitioner as also to the lady officer to project their version and cross examine the witnesses, who had appeared during the Court of Inquiry proceedings.
14. Rule 180 of the Army Rules too has been found to have been complied with in its letter and spirit. The petitioner appearing as witness No. 10 in the Court of Inquiry had made a statement running into eleven pages and spread over 18 paragraphs, dealing with each and every aspect of the allegations appearing in the complaint against him and regarding the statement which the lady officer had made against him. On the request of the petitioner to go through the statement of witnesses as and when those were recorded during the Court of Inquiry, he was permitted to do so. Before preparation of the defence he was again permitted on his request to go through the statements of witnesses recorded during the Court of Inquiry. The lady officer had been cross examined by the petitioner at length.
15. I, therefore, do not see any unfairness of any type whatsoever on the part of the Presiding Officer holding the Court of Inquiry. There is no material on records on the basis whereof it may even remotely be assumed that the enquiry was in any manner unfair or for that matter sham as the petitioner had unjustifiably alleged it to be so. The first submission made by the petitioner that the proceedings of the Court of Inquiry were sham and actuated by malafidies attributed to the officers of the army is, therefore, found to be untenable.
2nd submission:
16. The main thrust of the petitioner in this petition to question the show cause notice and order dated 4th September, 2006 is the violation of principles of natural justice. Both sides have placed reliance on policy Letter No. 32908/AG/DV-l(P) dated 16th of October, 2000, which consolidates existing instructions on award of Censure to Officers and JCO's. It would thus be appropriate to refer to relevant paragraphs of this policy letter to appreciate the submissions raised at the Bar. These paragraphs read thus:
AWARD OF CENSURE TO OFFICERS & JCOs'.
1. The aim of this letter is to consolidate the existing instructions on award of Censure.
2. The award of Censure is an administrative action, in keeping with the customs of the service. It can be awarded to officers, including MNS officers and re-employed officers, and JCOs. Censure is not award3ed to a warrant officer or OR. It takes the form of 'Severe Displeasure' or 'Displeasure' of the officer awarding the censure.
3. Censure is awarded for an act, conduct, omission or offences of a minor nature and not in a case involving moral turpitude, fraud, theft, dishonesty and misappropriation. The later are to be tried by a Court Martial or by prosecution in a civil court in accordance with para 432 of the Regulations for the Army, 1987.
4. Members of a Court Martial and a Court of Inquiry will not be awarded any censure ether individually or collectively in the performance of such duties. Where, however, factual proof exists of such persons having fallen from the high standards of integrity expected of such an august body, the competent authority should unhesitatingly initiate disciplinary action against such erring persons under the provisions of the Army Act. A Commanding Officer holding a Summary court Martial does not fall under the above definition and hence may be censured subject to exercising utmost discretion, by a competent authority for proved malafide/culpable negligence in the performance of such duties.
5. Cases which are not of a minor nature and yet do no involve moral turpitude fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is inexpedient due to other reasons, may if found appropriate, be forwarded to Army HQ (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COASD/Govt.
8. 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/JCO concerned regarding his response/vindication of his stand in respect of an alleged lapse and consider dispassionately in its entirety. Such a notice can be issued either on the basis of the findings of a Court of Inquiry or otherwise. The show cause notice shall emanate from/on behalf of the authority which has approved it and whose censure is proposed to be awarded. Once the authority specified in Para 6 directs issue of a show cause notice; a staff officer may issue the show cause notice on behalf of the authority whose censure it is proposed to be awarded. The show cause notice must be issued in triplicate for retention of a copy as office copy by unit and two copies of the addressee, (one copy for obtaining his receipt and subsequent return to originator).
9. In order to facilitate the preparation of a reply to the notice, the individual 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 officers in chain. Where a Court of Inquiry has not been held the individual will be supplied with all the documents/material based on which the show cause notice has been issued.
10. The notice must contain definite and specific lapses in unambiguous terms to which the explanation in sought.
11. The show cause notice must clearly specify the time within which the recipient shall submit his rely, falling which, an ex-parte decision shall be taken. The time stipulated should be reasonable taking into account the availability of documents/evidence, if any, required to facilitate the reply. The time so stipulated will not ordinarily be more than 30 days from the date of receipt of the show cause notice by the recipient i.e., the person to whom it is addressed.
15. Where all formalities mentioned in Paras 9 to 14 above have been completed and a decision has been taken to award a censure, but the officer/JCO has moved out to another Command prior to the award being communicated, the letter containing the censure will be forwarded to the individual through the Command Headquarters where he is actually serving and the signature of the individual obtained.
Effect of Censure on Promotion:
23. The award of a censure does not debar an officer from being considered for promotion and may not by itself affect his promotion. However, while it is operative, it is taken cognisance of as part of the officer's overall record of service in assessing his performance for such promotion. The effect of a recordable censure on promotion would be considered in its totality on the overall performance. A censure ceases to have any effect on promotion once it is inoperative.
Redressal of Girvenaces.
24. Complaints against the award of censure may be submitted and processed in terms of para 364 of the Regulations for the Army (Revised Edition) 1987. An authority superior to the authority who awarded the censure may cancel the award, remit a portion or whole of it, or Commute it to a non-recordable censure if, in the opinion of that authority, the censure is illegal, unjust or excessive. However, while granting redress by mitigating the award,. The competent authority must invariably mention the date from which the said order is to be operative.
25. The case of award of Censure to an officer/JCO cannot be reopened and processed afresh, save in exceptional cases where it suffers from lack of jurisdiction abinitio or non application of mind or a malafide exercise thereof is evident from the fact and circumstances of the given case.
17. Plea of the petitioner that non furnishing of the findings and opinion of Court of Inquiry had violated the principles of natural justice, does not appear to me to be tenable because the policy letter relied upon by the parties to this petition specifically excludes, in its paragraph No. 10, the supply of the findings and opinion of the Court of Inquiry to the individual who is issued a show cause notice as to why he be not awarded Censure.
18. All that paragraph No. 9 of the Policy letter referred to herein above contemplates is to provide a copy of the Court of Inquiry proceedings, minus the findings and opinion of the Court of Inquiry and comments of the superior officers in chain and if no Court of Inquiry had been held, the documents/material based on which the show cause notice had been issued so as to ensure and facilitate the preparation of reply to the show cause notice. Paragraph No. 9 further, in nut shell, contemplates that the individual may not explain any difficulty in preparation of reply to the show cause notice in the absence of any such material which he may like to peruse before preparation of his reply.
19. The petitioner does not dispute the supply of the copy of Court of Inquiry proceedings containing the statements of witnesses and documents produced by the parties. He does not question even policy letter No. 32908/AG/DV-1(P) dated 16th of October, 2000, which governs the procedure to be followed by the respondents before award of Censure to officers and JCO's. This policy letter is in the nature of additional service conditions governing the service of the petitioner.
20. While applying the rule of audi alteram partem a Court, tribunal or authority has to bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to further ensure that there was no failure of justice. It is this objective which has to guide them in applying the rule to varying situations that arise before them. There may be situations where the interest of State or public interest may call for curtailing of the rule of audi alteram partem and in such situations, the Court may have to balance public/State interest with the requirements of natural justice and arrive at an appropriate decision. The policy letter of the respondents has been devised, keeping the State interest and the interest of Army in view. Non-supply of findings and opinion of the Court of Inquiry to the persons governed by the provisions of the Army Act is thus the unavoidable curtailment of rule of audi alteram partem, which curtailment, in my opinion, is quite justified and would not in any way cause any prejudice to the petitioner who had attended all through the Court of Inquiry proceedings, participated in it, cross examined the witnesses produced during the Court of Inquiry and had all along the occasion to see as to what evidence had appeared against him in the Court of Inquiry proceedings, in preparing his reply to the show cause notice.
21. I am supported in taking this view by a judgment of Hon'ble Supreme Court of India, reported as State Bank of Patiala and Ors. v. S.K. Sharma : (1996)IILLJ296SC , where principle of the curtailment of the rule of audi alteram partem had been taken as an accepted exception to the general rules of audi alteram partem. In view of the law laid down by Hon'ble Supreme Court of India, no discussion may be necessary on the judgments cited by the petitioner in his written submissions, which require furnishing of enquiry report to a delinquent before taking any disciplinary action against him.
22. Dealing with the principles of natural justice applicable to departmental proceedings, Hon'ble Supreme Court of India in its recent pronouncement reported as A. Sudhakar v. Post Master General Hyderabad and Anr. : (2006)IILLJ540SC has held that the principles of natural justice are not embodied principles. The Courts are required to see as to whether non-observance of any of the said principles in a given case had resulted in denial of justice. If there had been substantial compliance with the procedure, the Courts may not interfere.
23. In view of the aforementioned two judgments of Hon'ble Supreme Court of India and the facts of this case, I am, therefore, of the view that non-supply of the findings and opinion of the Court of Inquiry would not violate the principles of natural justice when the petitioner had full opportunity of participating in the Court of Inquiry proceedings, knowing the nature of allegations levelled against him in the complaint and during the course of inquiry and making his submissions in regard to his defence, after going through the statements of all the witnesses and documents produced during the course of Court of Inquiry proceedings.
3rd submission:
24. The third submission of the petitioner too pertains to the violation of the principles of natural justice. The petitioner says that definite and specific lapses in unambiguous terms had not been contained in the show cause notice, absence whereof, according to him, would amount to violation of the principles of natural justice.
25. It is true that paragraph No. 10 of the policy letter does prescribe that show cause notice must contain definite and specific lapses in unambiguous terms, to which the explanation was sought, and the show cause notice served upon the petitioner does not contain definite and specific lapses, as pleaded by the petitioner; But the question that may fall for consideration is as to whether omission of 'definite and specific' lapses in the show cause notice would amount to violation of the principles of natural justice when the complaint, out of which these allegations had emanated, had been supplied to the petitioner along with Court of Inquiry proceedings, statements of witnesses and the documents produced by the parties during the Court of Inquiry proceedings. Before proceeding further to consider this aspect of the matter, regard needs to be had to what was held by Hon'ble Supreme Court of India in State Bank of Patiala v. S.K. Sharma reported as : (1996)IILLJ296SC :
We may summarise the principles emerging from the above discussion. (There are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire where (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - 'no notice', 'no opportunity' and ' no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted thereform, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision, which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquen employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquen officer has waived the said requirement, either expressly or by his consent. If he is found to have waived it, then the order of punishment cannot be set aside on the ground if the said violation. If, on the other hand, it is found that the delinquen officer/employee has not waived of or that the provision could not be waived by him then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice ort the test of fair hearing, as i may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for the matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between 'no opportunity' and no adequate opportunity, i.e., between ' no notice'/' no hearing' and ' no fair hearing'. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such casers, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the later case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from totality of the circumstances, the delinquent office/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf ate laid down elsewhere.]
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure and there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests if State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
26. After receipt of show cause notice dated 8th of August, 2006, the petitioner had sent his reply running into ten paragraphs, explaining his position and referring to each and every aspect of the allegations appearing against him in the complaint besides touching the legal aspects too. His reply reads thus:
1. Please refer to your letter No. 2701/AC/A3(PC) dated 08 Aug 2006.
2. The prerogative rests with the Corps Cdr to draw adverse observations, but, I would like to submi that one stroke of his pen would put a stigma on my character and reputation for something that is falsely structured and proved to be so through clinching evidence of the independent witnesses which include not only the staff/dvr of my office who had been posted out for the duration of the C of 1, but, also the clk of legal cell who worked under the complainant for good 30 days. Not only that it would just wipe out my 24 years of hard and sincere work in the Army, as an Infantry Officer serving in high altitudes, field areas including CI operations AND AS AN OFFICER IN THE jag DEPT IN PLACES LIKE VALLEY FOR THREE TENURES IN CI OPERATIONS. I AM APPROVED FOR THE NEXT RANK (Col) for part more than 1 1/2 years and awaiting to pick up. A clear vacancy will be created on 01 Sep 2006 as confirmed by the controlling MS br.
3. It is not the first time that ladies are serving under or with me. It has been at least for the past 16 years that the ladies have been serving in the same set up or with me with complete mutual trust and respect without allowing any personal problems to break the said trust or respect for each other. At no point of time, any lady ever raised a finger much less causing such a damaging harm as Capt, Rajni Sharma has on her promotion related issue.
4. While I was busy streamlining the functioning of the branch that had been without a DJAG for nearly five months, and, also clearing the files/cases besides resolving the personal problems of Capt. Rajni Sharma, she was busy contriving against me misusing her learning's about harassment at workplace acquired during a diploma course recently because she had been told on 23 Mar 2006 i.e. on the fourth day of her getting posted in this HQ, that the policies did not permit her promotion to the substantive rank of Capt which she had been demanding. Efforts on my part as well as my staff to locate relevant policies, if any, based on which she could be promoted have all gone down the drain.
5. Applying to plain logic, had the alleged events taken place and were so alarming that she started complaining to her friend and some senior officers as also getting it published in the media, would she have been accompanying me to/back from the office in same Gypsy, have had meals together in the ladies room of the 'A' Officers Mess' or come to my guest room or the office unhesitatingly while even I used to be all alone or come to me to seek permission or all kinds of guidance including on personal issues like accommodation etc or come and sat in the waiting room during the recess of the inquiry fearlessly. The answer of anyone would be 'NO' to said and so many other similar questions on probability. Any adverse inference or cognizance would tantamount to crating a precedent at least with in the Corps zone which can be used as a tool by other like minded men and women to blackmail their senior officers. What would be required is simply a conspiracy amongst two-three persons. One becoming a victim and others as witnesses to say that the planted victim had told to him/her/them about the harassment.
6. None of the laws provides for a presumption wherein a complaint by a women against a man or vice-versa conveyed to a third person is to be presumed to be true. The day such presumptions are legally allowed, there wouldn't be inquiries and the moment a friend or some other person ratifies the complaint of the complainant, action would be launched straightway as is permissible in a few extreme cases under the Indian Evidence Act eg dowry death and abetment to suicide of a woman etc. That would open a gateway to many innocents facing a similar ordeal and facilitating the conceited women workers to openly start blackmailing their male colleagues or superiors as in the instant case. Even in landmark judgment in Vishakh's case, the apex court of our country, while defining harassment at workplace, has not suggested any adverse presumption to be taken simply because a complaint has been lodged. That is why apex court had laid down the guidelines for investigating into such complaints by a committee first to infer its correctness or otherwise.
7. Such complaints are to be decided based on the entire material on record. And, it should not be difficult at all to infer adversely where other allegations or statements in the same complaint have been proved to be false by evidence of independent witnesses or circumstantial evidence.
8. Material exaggerations in the original complaint, at the time of inquiry should make the task of decision makers even simpler in gauging the ill-intentions of the complainant against the complainee. Repeated lies during investigations by the complainant on every issue are enough for the court and the authorities to reject her entire complaint or the allegations as false. What else is required to judge the credibility of the complainant by a court of inquiry after she had lied to the Presiding Officer of the Court of Inquiry levelling a false allegation that I had tried to snatch away her mobile telephone and that he had seen it so happening, which has also been endorsed in the court of inquiry proceedings. Similarly, can her statements re relied on when she had been caught by yourself for having made false statements regarding issuance of counselling letters by me and over tasking of work. Any pick and choose will not only be iniquitous, but, very demoralizing even for those witnesses whose testimony is rejected.
9. In view of the above, I would reiterate that the facts, as abundantly brought out in the Court of Inquiry proceedings, have proved the allegations and related statements as false, faked and contrived. Therefore, with all humility and respects for the Corps Cdr, I plead to him to drop any observations of misdemeanor that he may have drawn against me. I wish to re-assure him that neither any thing as alleged had ever taken place nor would be allowed to take place. The canons of military discipline and functional efficiency have always been kept at the highest pedestal by me and shall so continued to be kept.
10. Last, but not the least, I also request for restoration of my honour and redressal of the agony suffered by me and my family for the past about four months on frivolous and fabricated allegations by Capt. Rajni Sharma using most insubordinate means/language and going to the media in flagrant violation of all norms and ethos of the Army. Had there been an iota of truth, yourself as the COS and also in the capacity of Offg Corps Cdr would not have told the Army Cdr that the lady officer had been contriving.
27. Perusal of the reply of the petitioner to the show cause notice shows that neither had he been disabled nor prejudiced in any manner whatsoever either in preparing his reply to the show cause notice or for that matter in projecting his view point on factual or legal aspect of the case as to why Censure be not awarded to him. His reply on the other hand indicates that he was aware about each and every allegation levelled in the complaint and the nature of evidence, which had been produced during the Court of Inquiry. Every minute detail, which could have been commented upon on the proceedings of Court of Inquiry, evidence and legal aspect of the case, had been dealt with by the petitioner while submitting his reply to the show cause notice.
28. For all what has been said above, I am thus of the considered view that petitioner had neither been prejudiced nor disabled in submitting his reply to the show cause notice and absence of specific and definite instances of misdemeanour attributed to the petitioner in the show cause notice, had not, in any way, disabled him in preparing his reply or projecting his view point as to whether or not Censure be awarded to him.
Applying the ratio of judgment of Hon'ble Supreme Court of India (supra) and in view of what has been said herein above, the complaint of the petitioner regarding violation of principles of natural justice, is thus, found to be unjustified.
4th submission:
29. Plea of the petitioner that his entitlement to the rank of A/Col in view of his empanelment by the Selection Board could not be taken away pursuant to the award of Censure to him because Censure as such was not a punishment, needs to be considered in the light of policy Circular No. 04502/MS Policy dated 27th July, 1995. This policy letter reads thus:
SELECTION BOARDS: SPECIAL REVIEW
Introduction.
1. An officer is given three considerations for promotion by selection to the next higher rank. These are, Initial Consideration, First Review and Final Review. Initial consideration is given with all reports upto and including the cut off year on record. For each successive consideration i.e. First and Final Review an additional report is a mandatory requirement. Officers not approved in the final Review are considered finally superseded.
2. However, under certain circumstances, officers cases for promotion may be reviewed under the directions of the competent authority. Any such consideration, other than the three normal considerations, is known as a 'special Review'.
AIM
3. The aim of this letter is to lay down the policy on the grant of Special Review to the officers for promotion to select ranks of Lt. Col and above.
Circumstances Under Which Special Review may be Granted:
4. Special Review will be granted for the following reasons:
(a) Change in profile.
(b) Drop in performance after the officer is approved for promotion by the competent authority.
(c) For physical promotion of officers in low medical category (LMC), who have already been approved for promotion. Such considerations are known as 'Special Review (Medical), which is applicable for select ranks upto Cols only.
5. The procedure for granting 'Special Review' is given in subsequent paras.
Change in Profile
6. A change in profile may occur due to any of the following reasons:
(a) Expunction of remarks including figurative assessment in any of the reports which were considered by the Selection Board(s).
(b) Setting aside of remission of punishments or censures which were operative at the time of screening of an officer's case.
7. Procedure
(a) The number of 'Special Review(s) granted will be determined by the point of time at which the change in profile has occurred.
(b) An officer will be given a 'Special Review' for each normal consideration already given to him after the point of time at which change in his profile has occurred. Example 1 at appx 'A' refers.
(c) Any consideration which is still due to the officer after the incorporation of the change in his record of service, will be given in the normal manner and will not be termed as 'Special Review'. Example 2 at appx 'A' refers.
(d) For officers upto the rank of Col. MS, 4CR will be responsible for the incorporation of change in the record of service of the. officer. MS 5 will, thereafter, obtain the approval of the competent authority to grant the officer 'Special Review(s). MS(X) will be responsible for Brigs and above both for incorporation of change in the record of service of officers and for obtaining approval of the competent authority.
(e) When an officer is considered as a Special Review case, this consideration will be based on amended records consequent to redressal/relief granted to him by the competent authority. Any punishment or censure (recordable and operative) awarded to the officer till the date of consideration will also be incorporated in the amended profile.
8. Restoration of Seniority if, in the case of an officer already approved for promotion as a First Review or final Review Selectee there is a change in the material with which he has been approved, he will be eligible for Special Review(s) for restoration of seniority. If approved in any of the 'Special Reviews', his seniority will be adjusted accordingly. However, if the officer is no approved, the Selection Board grading with which he was initially approved, will stand. Example 3 a appx 'A' refers.
Drop in Performance
9. An Officer, who in the opinion of the MS, during the intervening period between the approval for promotion and physical promotion does not maintain a satisfactory level of performance, will be treated as case of 'Drop in Performance'. Such an officer will be given 'Special Review(s) in the manner explained below.
10. Procedure
(a) Once the 'Drop in Performance' in respect of an officer has been established, he will be given a Special Review with the following material on record:
(i) All reports up to and including the report which established the 'Drop in Performance'.
(j) An additional report earned during the same or the subsequent reporting year.
(k) Any punishment or censure (recordable) awarded will the time of consideration.
(b) Officers who show a 'Drop in Performance' due to the award of a punishment or censure (recordable) will be given a 'Special review' with the following on record.
(I) Punishment or censure.
(II) All reports earned upto the reporting year in which the punishment or censure was awarded.
(c) Each case of 'Drop in Performance' will be granted only one Special review. If not approved, the concerned officer will be given normal review(s), if due.
Special Review (Medical)
11. Officers who are approved for promotion to select ranks upto Col by the Competent Authority but are not physically promoted due to their placement in lower than acceptable permanent medical classification will be reviewed in terms of our letter No. 3974/LM/MS 5B dated 30 Jan 87 by Special Review (Medical) Selection Board (SRMB). Officers on approval will retain their original seniority as explained in Example 4 of Appendix 'A'.
12. Rogrant of Acting Bank Relinquished on Medical Grounds An officer who had Relinquished acting rank due to absence from duty for period exceeding six months in accordance with Para 5 of Appendix 'A' to SAI5/5/74, may be regranted the acting rank at the discretion of the competent authority provided, on the resumption of duty, he continues to remain in the acceptable medical classification. If placed in lower than acceptable permanent medical classification, he will be given Special Review (Medical) in the same manner as other approved officers placed in LMC as per provisions of MS Branch letter quoted in Para 11 above.
13. This letter supersedes MS Branch letter No. 31526/P/MS 5B dated 10 Jun 85.
30. In terms of the promotion policy, which is followed in the army for promotion of empanelled officers to the rank of Col. and above, which has not been questioned by the petitioner in this petition, an officer would be entitled to promotion to the next rank provided his performance was satisfactory indicating, inter alia, no 'Drop in Performance' during the period of his approval by the Selection Board and the date of his physical promotion. In case, during the intervening period, an officer was awarded a Censure (Recordable), it would be considered 'Drop in Performance'' warranting his consideration afresh by the Selection Board which had empanelled him. The said Selection Board would consider the officer along with the Censure and additional Annual Confidential Report inputs, and in case he was approved in 'Special Review', he would be empanelled and physically promoted in accordance vim the policy. In case he was not empanelled in such 'Special Review Consideration', the officer would be de-empanelled.
31. Promotion in army is not a condition of service. No officer has an indefeasible right to seek promotion as of right. All that he is entitled to is his consideration for promotion. Consideration for promotion may be regulated by the employer by floating rules, regulations and policy guidelines. So long as these rules, regulations and policy guidelines were applicable to the officers/employees, an employee may not be heard to complain of compliance of such procedure prescribed for considering the officer for promotion. The petitioner cannot, thus have any legitimate grievance about the procedure which was required to be followed by the respondents in his case when he had been awarded Censure (Recordable), which would require re-consideration or (sic) case in Special Review.
32. Award of Censure to army personnel during the tenure of their service is a time tested concept. It is in accordance with the prescribed policy of the Indian army. Award of Censure cannot thus be questioned by the petitioner, as an event, which would not effect his consideration, as such, for promotion. Petitioner cannot avoid the procedure which the respondents in terms of their policy, had devised to reconsider him in the 'Special Review Board' in view of his 'Drop in Performance' because of there being a recordable censure against him. Plea of the petitioner that censure, as such, was not a punishment, therefore, does not have any merit. The fourth submission of the petitioner, therefore, fails and is rejected.
5th submission:
33. The plea of the petitioner that order dated 04.09.2006 was unsustainable would not, in my opinion, survive for consideration in view of the findings that the proceedings of the Court of Inquiry did not suffer from any vice of unfairness and there was no illegality in the show cause notice. That apart, order dated 04.09.2006 of General Officer Commanding 16 Corps has not been shown to be suffering from any legal infirmity. Perusal of the order indicates that the General Officer Commanding 16 Corps had, after analysing the Court of Inquiry and petitioner's reply to the show cause notice, observed various misdemeanours on the part of the petitioner, which had been found to be inimical to the military discipline and to the functional efficiency. Judicial review on such disciplinary matters may not thus be permissible in the absence of any exceptional case having been set up by the petitioner in his writ petition questioning the aforementioned order.
34. In view of the remedy provided under Policy letter No. 04502/MS Policy dated 27th July, 1995 the petitioner had an effective remedy of seeking consideration of his case in the Special Review. He had, additionally, the remedy of raising his grievance against the action of the army authorities before the Central Government or an appropriate authority specified as such, under Section 27 of the Army Act.
35. In such like cases, as has been projected by the petitioner in this writ petition, jurisdiction under Article 226 of the Constitution of India and Section 103 of the Constitution of Jammu and Kashmir may not be invoked as a substitute of the remedies provided under the Statutes, Rules and Policy guidelines.
36. Rather than approaching this Court, it would have been proper for the petitioner to have first exhausted the remedies available to him under the policy guidelines and the provisions of the Army Act.
37. For all what has been said above, I am of the view that the petitioner has not been able to make out a case for admission of the writ petition to hearing.
This writ petition is, accordingly, dismissed.
38. Anything said in this judgment shall not, however, affect consideration of petitioner's case by the respondents in accordance with the policy guide lines in Special Review or otherwise. They are required to take their own independent decision on the facts and circumstances of the case, uninfluenced by the observations made in this judgment,, keeping, however, the service career of the petitioner and his professional performance in view.