Case: K. S. SAHU Vs. UNION OF INDIA &amp; ORS

2. On 31st July 2002, the appellant joined Indian Navy as a sailor. The appellant was selected by the Service Selection Board to undergo training for being commissioned as an officer. He underwent initial training at INS Mandovi at Goa for a period of two years from 7th July 2002. On 21st June 2009, he was sent for training at Indian Naval Academy, Ezhimala (for short, INA). He was required to complete 5th and 6th terms of training at INA. On 1st December 2010, a communication was issued by the Integrated Headquarters of the Ministry of Defence (Navy), Government of India informing that the competent authority has accorded approval to the withdrawal of the appellant from INA and revert him to his original rank and branch as a sailor without loss of seniority. Being aggrieved by the said decision, the appellant filed Original Application under Section 14 of the Armed Forces Tribunal Act, 2007 before the said Tribunal. By the impugned judgment, the Original Application has been dismissed.

Reasoning: 6. In the present case, impugned action which was the subject matter of challenge before the said Tribunal, was of the withdrawal of the appellant from the course which he was undergoing in INA. Regulation 216 of the said Regulations deals with the termination of service of an officer by the Government on the ground of misconduct. Clause (1) of Regulation 216 contemplates the issuance of show cause notice to the officer. Clause (2) of the Regulation 216 requires information to be given to the officer about all reports adverse to him and to give an opportunity to him to submit his explanation and defence in writing. However, the action of withdrawal of the appellant from the course was not taken in terms of Regulation 216. The said Regulation is applicable to termination of service. In this case, the service of the appellant has not been terminated.14. Before we deal with the legal submissions, we may note here that on 14th January 2011, the appellants father made a representation to the Chief of the Naval Staff for reconsideration of the action of withdrawal. He requested on behalf of the family that one more opportunity may be granted to the appellant. He assured that if the appellant was given one more chance, there wont be any complaint against him. By the letter dated 8th March 2011, the Commodore of Integrated Headquarters of the Ministry of Defence (Navy) informed the appellants father that the case of the appellant was reconsidered and after reconsideration of the entire case, the request made by the appellants father could not be accepted on the grounds mentioned therein. It was mentioned therein that the appellant was offered every opportunity to improve. In fact, feedback on his progress at INA was communicated to the appellants father and he was requested to guide the appellant and encourage him to show progress. The said communication recorded that as the appellant met the mandatory educational requirement of the University of Goa, in the Graduation ceremony conducted on 27th November 2010, a B.Sc Degree of Goa University was granted to the appellant. By another letter dated 18th February 2011, the Commander and Training Captain clarified that the invitation for the passing out parade to be held on 5th December 2010 was dispatched to the appellants father on 22nd October 2010 as a procedural norm. The appellants father was informed on 2nd December 2010 about the decision of the Headquarters of approving the proposal for withdrawal of the appellant. He specifically stated that on 2nd December 2010, Lt. Commodore Ashutosh Bobade informed the appellants father over telephone about the said decision and requested him to avoid attending passing out parade. It is stated in the said letter that the appellant never participated in the passing out parade. We may also note here that an appeal was thereafter preferred by the appellant to the Central Government on 7th July 2011.15. Regulation 216 deals with the dismissal of an officer from service on disciplinary grounds. The appellant has not been dismissed from service. On the contrary, his service as a sailor was protected and even his seniority was protected. The withdrawal did not affect his service in any manner. In this case, we are not dealing with disciplinary action, but the action of withdrawal of the appellant from the course on the ground that the appellant was found deficient in basic character and other officer like qualities. As narrated above, based on the search of his cabin, a show cause notice was issued way back on 16th July 2009 to the appellant calling for his explanation. The appellant accepted that he was in possession of objectionable articles including pornographic magazines. Though a recommendation was made for withdrawal on 6th November 2009, the appellant was only relegated and was given one more opportunity to improve. Even thereafter, the appellant indulged in tampering with the record which led to the issuance of a fresh show cause notice and warning to the appellant on 11th May 2010. Only thereafter, on 26th June 2010 that a proposal was submitted to the Naval Headquarters for grant of approval to the proposed action of withdrawal.16. We are dealing with a very disciplined force like the Navy. The appellant who was already in Naval service as a sailor was given an opportunity to undergo training. While assessing whether the appellant was found deficient in basic character and other officer like qualities, the conduct of the appellant, which is reflected from the Inquiry Report, two show cause notices and his own statement, has been taken into consideration. We have already quoted relevant Rules which provide that only the withdrawal on medical grounds will be governed by Regulation 216 of the said Regulations. There are four other grounds mentioned therein, on the basis of which, withdrawal can be made. As can be seen from the said Rules and considering the fact that the question was of continuing training of the appellant, the competent authority could have always taken the decision of withdrawal on the basis of its subjective satisfaction of the existence of one of the grounds for withdrawal provided in the Rules. In this case, the subjective satisfaction of the competent authority is on the basis of material on record. At least on two occasions, the appellant was put to notice and warning and was given an opportunity to explain his conduct. While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record, certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess.17. As regards the argument that the power of withdrawal could have been exercised only by the Government, in the counter affidavit, reliance has been placed on the letter dated 17th August 2001 of the Ministry of Defence of the Government of India. The Chief of Personnel (COP) has been delegated the powers of withdrawal of officers and cadets under training. Hence, no fault can be found with the action of withdrawal on the ground that the approval of the Government was not taken.18. A perusal of the impugned judgment of the Tribunal shows that the entire material has been carefully examined by the Tribunal. The Tribunal consisted of an administrative member who is an expert in the field as he was a Lieutenant General. The entire conduct of the appellant during training at INA has been considered in the context of the qualities which an officer of the Navy must possess and the discipline required to be maintained in the Navy. While taking action of withdrawal, the competent authority has ensured that the service of the appellant with Navy is not affected in any manner and even the Degree of University of Goa has been conferred on the appellant.