Hav M Sudalaimuthu Versus the Chief of Army Staff and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1117156
CourtArmed forces Tribunal AFT Principal Bench New Delhi
Decided OnMay-06-2010
Case NumberT.A. No. 43 of 2010 & (Delhi High Court W.P (C) No. 331 of 1998)
JudgeMANAK MOHTA, JUDICIAL MEMBER & HONOURABLE MR. JUSTICE LT GEN Z.U.SHAH, ADMINISTRATIVE MEMBER
Excerpt:
1. the applicant had submitted a writ petition (civil) no. 331 of 1998 in the delhi high court to consider the applicant for promotion to naib subedar with effect from 8.3.1996 with consequential benefits and for quashing the punishment order dated 4.4.1996 by which he was awarded “severe reprimand”. the same was transferred to the armed forces tribunal on 28.10.2009. 2. the brief relevant facts of the case are as follows. that the applicant was enrolled as sepoy in the army on 27.10.1975. he was promoted to the rank of havildar. while posted in 159 general hospital (159 gh) he was working as nco in charge of ration store. the applicant was approved to the rank of naib subedar (nb sub) vide amc record letter dated 29.2.1996 with effect from 8.3.1996. this promotion was withheld by 159 gh vide order dated 11.3.1996 on the plea that disciplinary action was contemplated against him. 3. it is further stated that on 7.3.1996 the applicant was charged with wilful issuance of ten litres of kerosene oil to a civilian mazdoor shri raj kumar of station house officer of ferozepur cantonment with the cash memo made in the name of nk gopal dutt, who was attached for ration to 159 gh. on 16.2.1996 the applicant had issued ten litres of kerosene and five kilos of sugar to hav mukesh of 407 fd amb who was not attached for rations to 159 gh. it is submitted that on 4.4.1996 the applicant was awarded punishment of “severe reprimand” by the commanding officer (co) col p pavithran, without hearing of the charge or recording any proceedings in the presence of the applicant. the applicant explained to the co that he had not committed any irregularity or misappropriation. he was however awarded a punishment of “severe reprimand” under army act section 80. it is alleged that the applicant was denied any opportunity to defend himself. on 29.6.1996 the applicant submitted a review petition to his co to reconsider the punishment of “severe reprimand”. it is averred that no speaking order was passed on the review petition. 4. it is contended by the applicant that the “severe reprimand” on 4.4.1996 debarred him from promotion for one year ie. up to 5.4.1997. adverse remarks were also endorsed in his annual confidential report (acr) for 1995 – 96 by his reviewing officer without any warning or performance counselling. the applicant made a statutory representation dated 19.4.1997 which was upheld by ddms, hq western command and the adverse remarks were expunged. directions were also given that the applicant may be promoted if he fulfilled all other criteria for promotion. 5. it is alleged that the applicant had already been approved for promotion to the rank of nb sub and his promotion orders issued. he had become entitled for promotion, but the same was denied to him. 6. the applicant has prayed that the award of punishment of “severe reprimand” be quashed and he be promoted nb sub with retrospective effect from 8.3.1996 with all consequential benefits. 7. the respondents in their counter affidavit have stated that the applicant had been approved for promotion vide letter dated 29.2.1996 subject to fulfilment of eligibility conditions as laid down in amc roi 41/83. the applicant was however awarded a punishment of “severe reprimand” on 4.4.1996 which made him ineligible for promotion for one year from the date of award. it is submitted that the punishment was correctly awarded. the co had heard the applicant as per appendix “a” to army order 24/94 and the applicant declined to cross examine any witnesses. the case of applicant was reviewed against the vacancy which arose on 1.5.1997 but he did not meet the annual confidential report criteria because he was graded “average” with “not recommended” in acr of 1996. therefore, he was denied promotion. the respondents have recommended that the application be rejected. 8. in a rejoinder to the counter affidavit, the applicant has stated that he was awarded “severe reprimand” on 4.4.1996 and his promotion can only be withheld for one year from that date. the respondents have not given any reasons for denying him promotion after the said period of one year ie. upto 4.4.1997. it is further contended that both the charges for which he was awarded “severe reprimand” were false and punishment was without legal justification. the applicant contends that ddms headquarter western command had given him relief in his statutory petition against his acr for the year 1995 – 96. the denial of promotion to the rank of naib subedar is wrong and illegal. 9. in their additional counter reply the respondents have stated that the promotion order of the applicant had been issued on 29.2.1996. however the applicant got involved in a disciplinary case on 10.2.1996 and was awarded “severe reprimand” on 4.4.1996. the vacancy for promotion was withdrawn. the applicant was again considered for promotion against a vacancy of 1.5.1997 but was superseded for not fulfilling acr grading criteria since he was graded “average” and “not recommended” for promotion in his acr for 1996. the applicant submitted a statutory complaint against the same which was rejected by the chief of army staff (coas) on 8.10.1998. 10. during the pendency of the writ petition on the application of applicant on 18.11.1998 the hon”ble delhi high court passed the order directing the respondent to promote the applicant to the higher rank with effect from 1.5.1997 on or before 31.1.1999 without prejudice to the rights of either parties but no order with consequential relief was passed. it is further revealed that in compliance of court order the applicant was promoted to the higher rank with effect from 1.5.1997. 11. we have heard the arguments and perused the records. during the course of arguments learned counsel for the applicant submitted that the applicant was wrongly denied promotion. the punishment of “severe reprimand” is not sustainable as no proper opportunity to defend his case was given. it is further contended that the acr for the year 1995-96 have been expunged by the competent authority. therefore in all respect he was entitled for promotion. he may be awarded promotion with effect from 8.3.1997. on the contrary learned counsel for the respondents rebutted the contention and submitted that “severe reprimand” was awarded after following laid down procedure. it was also contended that the adverse remarks in acr were not expunged by the competent authority. we have considered the rival submissions. we are not convinced that the punishment of “sever reprimand” was given without following due procedure. the contentions raised in this respect are not sustainable. the acr of the applicant was expunged by the competent authority. the contentions of the respondent are also not tenable in view of para 364 of army regulations. on the basis of the aforesaid discussion and material on record the applicant was entitled for promotion from 1.5.1997 when the vacancy existed since he was entitled for promotion. hon”ble delhi high court in the interim order dated 18.11.1998 have passed the order that the applicant be promoted with effect from 1.5.1997. we confirm that he is entitled for the same. he is also entitled for all consequential benefits with effect from 1.5.1997. thus on the basis of the aforesaid discussion the application is partly allowed. no orders as to costs.
Judgment:

1. The applicant had submitted a writ petition (civil) No. 331 of 1998 in the Delhi High Court to consider the applicant for promotion to Naib Subedar with effect from 8.3.1996 with consequential benefits and for quashing the punishment order dated 4.4.1996 by which he was awarded “Severe Reprimand”. The same was transferred to the Armed Forces Tribunal on 28.10.2009.

2. The brief relevant facts of the case are as follows. That the applicant was enrolled as Sepoy in the Army on 27.10.1975. He was promoted to the rank of Havildar. While posted in 159 General Hospital (159 GH) he was working as NCO in charge of ration store. The applicant was approved to the rank of Naib Subedar (Nb Sub) vide AMC Record letter dated 29.2.1996 with effect from 8.3.1996. This promotion was withheld by 159 GH vide order dated 11.3.1996 on the plea that disciplinary action was contemplated against him.

3. It is further stated that on 7.3.1996 the applicant was charged with wilful issuance of ten litres of kerosene oil to a civilian mazdoor Shri Raj Kumar of Station House Officer of Ferozepur Cantonment with the cash memo made in the name of Nk Gopal Dutt, who was attached for ration to 159 GH. On 16.2.1996 the applicant had issued ten litres of kerosene and five kilos of sugar to Hav Mukesh of 407 Fd Amb who was not attached for rations to 159 GH. It is submitted that on 4.4.1996 the applicant was awarded punishment of “Severe Reprimand” by the Commanding Officer (CO) Col P Pavithran, without hearing of the charge or recording any proceedings in the presence of the applicant. The applicant explained to the CO that he had not committed any irregularity or misappropriation. He was however awarded a punishment of “Severe Reprimand” under Army Act Section 80. It is alleged that the applicant was denied any opportunity to defend himself. On 29.6.1996 the applicant submitted a review petition to his CO to reconsider the punishment of “Severe Reprimand”. It is averred that no speaking order was passed on the review petition.

4. It is contended by the applicant that the “Severe Reprimand” on 4.4.1996 debarred him from promotion for one year ie. up to 5.4.1997. Adverse remarks were also endorsed in his Annual Confidential Report (ACR) for 1995 – 96 by his reviewing officer without any warning or performance counselling. The applicant made a statutory representation dated 19.4.1997 which was upheld by DDMS, HQ Western Command and the adverse remarks were expunged. Directions were also given that the applicant may be promoted if he fulfilled all other criteria for promotion.

5. It is alleged that the applicant had already been approved for promotion to the rank of Nb Sub and his promotion orders issued. He had become entitled for promotion, but the same was denied to him.

6. The applicant has prayed that the award of punishment of “Severe Reprimand” be quashed and he be promoted Nb Sub with retrospective effect from 8.3.1996 with all consequential benefits.

7. The respondents in their counter affidavit have stated that the applicant had been approved for promotion vide letter dated 29.2.1996 subject to fulfilment of eligibility conditions as laid down in AMC ROI 41/83. The applicant was however awarded a punishment of “Severe Reprimand” on 4.4.1996 which made him ineligible for promotion for one year from the date of award. It is submitted that the punishment was correctly awarded. The CO had heard the applicant as per Appendix “A” to Army Order 24/94 and the applicant declined to cross examine any witnesses. The case of applicant was reviewed against the vacancy which arose on 1.5.1997 but he did not meet the annual confidential report criteria because he was graded “Average” with “Not Recommended” in ACR of 1996. Therefore, he was denied promotion. The respondents have recommended that the application be rejected.

8. In a rejoinder to the counter affidavit, the applicant has stated that he was awarded “severe reprimand” on 4.4.1996 and his promotion can only be withheld for one year from that date. The respondents have not given any reasons for denying him promotion after the said period of one year ie. upto 4.4.1997. It is further contended that both the charges for which he was awarded “severe reprimand” were false and punishment was without legal justification. The applicant contends that DDMS Headquarter Western Command had given him relief in his statutory petition against his ACR for the year 1995 – 96. The denial of promotion to the rank of Naib Subedar is wrong and illegal.

9. In their additional counter reply the respondents have stated that the promotion order of the applicant had been issued on 29.2.1996. However the applicant got involved in a disciplinary case on 10.2.1996 and was awarded “severe reprimand” on 4.4.1996. The vacancy for promotion was withdrawn. The applicant was again considered for promotion against a vacancy of 1.5.1997 but was superseded for not fulfilling ACR grading criteria since he was graded “average” and “not recommended” for promotion in his ACR for 1996. The applicant submitted a statutory complaint against the same which was rejected by the Chief of Army Staff (COAS) on 8.10.1998.

10. During the pendency of the writ petition on the application of applicant on 18.11.1998 the Hon”ble Delhi High Court passed the order directing the respondent to promote the applicant to the higher rank with effect from 1.5.1997 on or before 31.1.1999 without prejudice to the rights of either parties but no order with consequential relief was passed. It is further revealed that in compliance of Court order the applicant was promoted to the higher rank with effect from 1.5.1997.

11. We have heard the arguments and perused the records. During the course of arguments learned counsel for the applicant submitted that the applicant was wrongly denied promotion. The punishment of “severe reprimand” is not sustainable as no proper opportunity to defend his case was given. It is further contended that the ACR for the year 1995-96 have been expunged by the competent authority. Therefore in all respect he was entitled for promotion. He may be awarded promotion with effect from 8.3.1997. On the contrary learned counsel for the respondents rebutted the contention and submitted that “severe reprimand” was awarded after following laid down procedure. It was also contended that the adverse remarks in ACR were not expunged by the competent authority. We have considered the rival submissions. We are not convinced that the punishment of “sever reprimand” was given without following due procedure. The contentions raised in this respect are not sustainable. The ACR of the applicant was expunged by the competent authority. The contentions of the respondent are also not tenable in view of Para 364 of Army Regulations. On the basis of the aforesaid discussion and material on record the applicant was entitled for promotion from 1.5.1997 when the vacancy existed since he was entitled for promotion. Hon”ble Delhi High Court in the interim order dated 18.11.1998 have passed the order that the applicant be promoted with effect from 1.5.1997. We confirm that he is entitled for the same. He is also entitled for all consequential benefits with effect from 1.5.1997. Thus on the basis of the aforesaid discussion the application is partly allowed. No orders as to costs.