Case: UNION OF INDIA Vs. LT. COL. KULDEEP YADAV

respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April, 2007, which reads thus: ?5. Cases which are not a minor nature and yet do not involve moral turpitude, fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is expedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Govt.? 28. The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the 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 the 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, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.Indeed, the past service records of the delinquent officer may be germane for awarding punishment. But in the present case, the same had been duly noticed by the competent authority as also by the authority considering the statutory complaint filed by the respondent. That becomes evident from the decisions of both the authorities. For, the competent authority was very much conscious about the said position, as is reflected from paragraph No.4 of his order dated 10 th May, 2013 (reproduced at paragraph No.6 hereinabove). In the same way, the higher authority whilst rejecting the statutory complaint filed by the respondent vide order dated 26 th February, 2014 took note of this aspect as is clear from the extract reproduced in paragraph No.7 hereinabove.26. The Tribunal also erroneously assumed that the competent authority opted to resort to administrative action by awarding censure instead of Court Martial, because it had condoned the misconduct of respondent being of a minor nature and not being a case involving moral turpitude, fraud, theft, dishonesty and misappropriation. This basis is plainly misdirected and not in conformity with the applicable policy regarding award of censure to Officers and JCO?s circulated vide communication dated 23 rd April, 2007. In fact, the Tribunal has extracted the relevant portion of the said policy, which clearly predicates that in cases, which are not of a minor nature and not an act involving moral turpitude, fraud, theft, dishonesty, financial irregularities or misappropriation where trial by a Court Martial is not practicable or is inexpedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Government. The case of the respondent would certainly fall within the purview of the said clause. Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal. Notably, the Tribunal has taken such erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April,The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the 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 the 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, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.