Service Law – Censure – Respondent was commissioned in the Army Corps of Electronics and Mechanical Engineering (EME) in the year 1997 – In 2009, he came in contact with a foreign national and remained in contact with her for over two years from 2009 to 2011 – He also stayed with her at the Army premises/Army guest house and did not disclose her true identity – A staff enquiry was conducted, consequent to which a show cause notice was issued to the respondent – The competent authority found respondent blameworthy of all the lapses and conveyed Severe Displeasure (Recordable) to the respondent – Respondent filed a statutory complaint before the competent authority, which was rejected – Thereafter, respondent filed original application before the Armed Forces Tribunal – Tribunal despite noting that the punishment of censure awarded by the competent authority, cannot be faulted, held that punishment of ‘Severe Displeasure (Recordable)’ was not commensurate with the act and conduct of the applicant – Further, Tribunal remanded the matter to the competent authority to award censure other than ‘Severe Displeasure (Recordable)’ – On appeal, held: The Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, however, exercise of the power is circumscribed and it can be invoked only in exceptional and rare cases – The Tribunal, ordinarily, is not expected to examine the quantum and the 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 – In the instant case, the Tribunal took an erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice – It was not a case of an aberration or a one time indiscretion of the respondent – Respondent continued to remain in contact with foreign national for over two years – Further, he furnished wrong information in the guest list of the guest house – Respondent admitted that he unauthorisedly kept ‘official’ documents in his laptop including the crucial information regarding his rank, name and unit location and the laptop was routinely connected to the internet and made easily accessible to a foreign national – Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable) – Therefore, the award of censure of ‘Severe Displeasure (Recordable)’ passed by the competent authority upheld.
Allowing the appeal, the Court
HELD: 1. 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. [Para 22] [679-H; 680-A-B]
2. 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. [Para 23] [680-C-D]
3. The Tribunal 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. [Para 26] [681-B-E]
4. 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. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. [Para 27] [681-F-H; 682-A-B]
5. 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 a foreign national, in the Army premises in Goa from 12th October, 2011 to 15th 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. [Para 28] [682-D-E]
6. 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. [Para 29] [682-F-H]
7. 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. [Para 31] [683C-D]
Ranjit Thakur v. Union of India and Others (1987) 4 SCC 611 : [1988] 1 SCR 512 ; B.C. Chaturvedi v. Union of India and Others (1995) 6 SCC 749 : [1995]
4 Suppl. SCR 644 ; Union of India and Others v. Bodupalli Gopalaswami (2011) 13 SCC 553 : [2011]
11 SCR 326 ; Union of India v. Parma Nanda (1989)
2 SCC 177 : [1989] 2 SCR 19 ; Mithilesh Singh v. Union of India and Others (2003) 3 SCC 309 : [2003]
2 SCR 377 ; General Court-Martial and Others v. Col. Aniltej Singh Dhaliwal (1998) 1 SCC 756 : [1997] 6 Suppl. SCR 470 ; Union of India and Others v. Dwarka Prasad Tiwari (2006) 10 SCC 388 : [2006] 7 Suppl. SCR 217 ; S.R. Tewari v. Union of India and Another (2013) 6 SCC 602 : [2013] 8 SCR 988 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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