Union Of India vs Lt. Col. Kuldeep Yadav

3. The respondent was commissioned in the Army Corps of Electronics and Mechanical Engineering (EME) on 6 th December, 1997. He was posted to UNDOF, Golan Heights as Transport Officer w.e.f. 5th July, 2008 to 4th July, 2009. In January 2009, or around that time, he came in contact with a foreign national Miss De Oliviera Sueli Montilha (in short Ms. Sueli) of Brazil, who was working with Nazha and Darwish a sub­contractor company for United Nations in Syria. While posted at UNDOF, the work place of the respondent was Headquarters Counter Insurgency Force (U) (HQ CIF (U)) w.e.f. 5th July, 2009 as AQMG. He was then detailed for Officers Advance Computer Technical (OACT) course Serial No.20 at Military College of Electronics and Mechanical Engineering (MCEME), Secunderabad w.e.f. 4 th June, 2011 to 23rd March, 2012.

4. It is stated that the respondent continued to remain in contact with Ms. Sueli through e­mails, phone calls, skype, short messaging system (SMS) and personal meetings for over two years from 2009 to 2011. He also stayed with her at the Army premises, 2 STC Officers Mess, Guest Room in Goa from 12 th October, 2011 to 15th October, 2011.

5. Upon cognition of the stated misdemeanour of the respondent, a Staff Court of Inquiry was convened by the Headquarters, Southern Command to investigate into the circumstances under which the respondent came in contact with a foreign national and stayed with her at the Army premises in Goa, in contravention of the “Instructions on Contact with Foreign Nationals, 1987” (for short, “1987 Instructions”). The Staff Court of Inquiry was finalised with directions of General Officer Commanding­in­Chief, Southern Command (GOC­in­C). Consequent thereto, a show cause notice was issued to the respondent vide letter dated 25th January, 2013, so as to give an opportunity to the respondent to explain and show cause as to why censure be not awarded to him. The relevant extract of the show cause notice reads thus:

7. The respondent resorted to a statutory complaint before the competent authority, which, after due consideration of all the 7 grounds urged by the respondent vide order dated 26 th February, 2014, rejected the same. The relevant part of the said order reads thus:

6. In view of the above, I direct that my ‘Severe Displeasure (Recordable)’ conveyed to IC­57351N Lieutenant Colonel Kuldeep Yadav of Military College Electronics and Mechanical Engineering, Secunderabad.” (emphasis supplied)

40. We, therefore, while setting aside the impugned order dated 10.05.2013 passed by the Respondent No.3, awarding ‘Severe Displeasure (Recordable)’, remand the matter to the Respondent No.3 to reconsider the same and to take any of the administrative action permissible under the Policy laid down on Award of Censure of Officers and JCO’s circulated vide communication dated 23.04.2007, other than ‘Severe Displeasure (Recordable)’. Based on the said decision, the Competent Authority shall consider the Applicant for promotion by No.3 Selection Board as a ‘fresh case’ in accordance with the Rules. 15

41. The OA is accordingly allowed to the extent indicated above. No costs.”

13. This decision is the subject matter of challenge in the present appeal. Thus, the limited challenge is regarding the interference with the awarding of Severe Displeasure (Recordable) by the disciplinary authority. That has been done despite a categorical finding that the fact situation of this case warrants a censure against the respondent, for having violated the above stated Instructions.

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 23 the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.

34. In view of the above, this appeal must succeed. The impugned judgment and order of the Armed Forces Tribunal is quashed and set aside. Instead, the decision of the Government of India dated 30th April, 2014, rejecting the statutory complaint of the respondent and upholding the order passed by the GOC­ in­C dated 10th May, 2013 is restored.

35. Appeal is allowed in the above terms, with no order as to costs. All pending applications are also disposed of in terms of this decision.

……………………………..J (A.M. Khanwilkar) ……………………………..J (Ajay Rastogi) New Delhi;

September 25, 2019.