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(REPORTABLE)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S) 7603  OF 2019 (Arising out of Civil Appeal Diary No.17096 of 2017)

Union of India & Ors.  ..…Appellant(s)  

Versus

Lt. Col. Kuldeep Yadav  ….Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

Admit.

2. The moot question involved in this appeal is: whether the

Armed Forces  Tribunal  despite  noting that the  punishment  of

censure awarded by the competent authority cannot be faulted,

ought to  have interfered  on the  specious  ground  that “Severe

Displeasure (Recordable)” was not commensurate and excessive

in the facts  of the  present  case;  and  to  direct the  competent

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authority to award censure other than “Severe Displeasure

(Recordable)”, merely because censure can also be of Severe

Displeasure (Non­Recordable) or mere Displeasure, as the case

may be? The incidental question is: whether this approach,

inevitably, entails in sitting over the subjective satisfaction of the

competent authority in the matter of awarding punishment?  

3. The respondent  was commissioned  in  the  Army Corps of

Electronics and Mechanical Engineering (EME) on 6th 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. 4th  June, 2011 to

23rd March, 2012.

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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 12th

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:

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“SHOW CAUSE NOTICE

1. A court of inquiry was convened by HQ Southern Command to investigate into the circumstances under which you allegedly made contact with a foreign national and stayed with Miss De Oliviera Sueli Montilha of Brazil at HQ 2 STC Officers Mes, Goa with effect from 12 Oct to 15 Oct 2011 in contravention of the “Instructions on contact with Foreign Nationals 1987”

2. The proceedings of said court of inquiry were placed before the General Officer Commanding in Chief, Southern Command, who has found you prima facie blameworthy for the following lapses:

(a) For violating the provisions of paras 7, 13, 44 and 45 of “instructions on contact with foreign nationals 1987” issued by Army Headquarters on following counts:

(i) Unauthorisedly having contact  with Miss Sueli De Oliveira Montilha, a foreign National, through emails, phone calls, skype, short messaging system (SMS) and personal meetings for over two years from 2009 to 2011.  

(ii) Unauthorisdely and improperly writing letters dated 11 October 2010 and 3 March 2011 of sponsorship to Indian Embassy Damascus (Syria) for facilitating Miss Sueli  De Oliveira Montilha’s visit to India.

(iii) Personally meeting Miss Sueli De Oliveira Montilha  during  her visits to India four time from 03  to  08  Jul  2010,  13 to  24 December 2010, 01 to 05 April 2011 and 12 to 15 October 2011.

(iv) Unauthorisedly bringing and staying with Miss Sueli De Oliveira Montilha in the Army premises in Goa from 12 to 15 October 2011.

(b) For violating the instructions on use of internet by Army personnel issued vide

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directorate General of Military Intelligence, General Staff,  Integrated Headquarters of Min of Defence (Army) vide their letter No. A/38024/1/MI­11 dated 03 October 2011 on following counts:

(i) Unauthorisedly keeping official documents in your laptop which was being routinely connected to the internet as brought out by the court of inquiry.

(ii) Maintaining facebook account revealing your rank, name and unit location …………………..”

6. The respondent submitted his response to the show cause

notice, which was duly considered by the competent authority.

Finally, the competent authority  vide decision dated 10th  May,

2013, found respondent blameworthy of all the lapses attributed

to him in the show cause notice and conveyed Severe Displeasure

(Recordable) to the respondent. The relevant portion of the said

communication reads thus:  

“………………………. 3. Commandant Military College of Electronics and Mechanical Engineering, Secunderabad has opined that  although  the lapse  committed  by the  officer is inexcusable on moral grounds but now the officer has been conducting  himself in exemplary  manner. The officer on professional front has an outstanding record and achieved consistently phenomenal grades right from his school days and thereafter on all courses in the Army. He is a high caliber officer and considering the lapses as one time indiscretion as claimed by the officer and the fact that he has a long way ahead, a lenient view may be taken.

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4. From the record of service of the officer attached with his Reply to his Show Cause Notice, it is evident that officer has done well in all the courses. He was accordingly graded as per his performance. However, doing exceedingly well in his service as brought  out above,  does  not  give license to the officer to commit lapses / misdemeanors and conduct himself in an unofficer like manner as mentioned  in  the Show Cause Notice  bearing No A/2405020/338/DV­2 dated 25 January 2013. Infact,  such officers  with good career  profile  are expected to conduct themselves in a more exemplary manner worth emulating by others. Further,  the  officer  had put  in  sufficient  service and was holding the rank of Lieutenant Colonel at the relevant time of committing the lapses / misdemeanors.  His remaining in constant contact with the foreign national for about two years, staying with her in Officer’s Mess at Goa and violating instructions on use of internet by Army personnel as mentioned in the Show Cause Notice are inexcusable as these are not one time indiscretion / aberration but repetition of the same time and again.  

5. Considering all  the  facts and circumstances of the case, I find IC­57351N Lieutenant Colonel Kuldeep Yadav blameworthy of all the lapses attributed to him in Headquarters Southern Comd. Show Cause Notice bearing No A/2405020/338/DV­2 dated 25 January 2013.

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)

7. The respondent resorted to a statutory complaint before the

competent  authority,  which,  after  due  consideration of  all the

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grounds urged by the respondent vide order dated 26th February,

2014, rejected the same. The relevant part of the said order reads

thus:   

“………………

AND WHEREAS, the Complainant has prayed for the following:­

(a) The award of ‘Sever Displeasure (Recordable)’ be set aside and he be pardoned considering it to be a one­time aberration.

(b) Alternatively,  ‘Severe Displeasure (Recordable)’ be mitigated to ‘Severe Displeasure (Non Recordable)’ considering  his outstanding career and  16 years of unblemished service record to enable him to go through the Number 3 Selection Board based on his merit and not let one mistake affect his entire life and career.

AND WHEREAS, perusal of documents on record reveal the following :­

(a) The Complainant was found blameworthy for violating  provisions  of  para  7,  13,  44 and 45 of “Instructions on Contact with Foreign Nationals 1987”. He had unauthorized contact with Ms Sueli De Oliveira Montilha, a Foreign National through e­mail, phone calls, Skype, SMS and personally meeting four times during her visits to India between January 2009 to October 2011.

(b) The Complainant unauthorizedly wrote letters of sponsorship to Indian Embassy  in Damascus  (Syria) for facilitating Ms Sueli De Oliveira Montilha’s visit to India.

(c) The Complainant violated the policy instructions on use of internet by Army personnel issued by Directorate General of Military Intelligence, Integrated Headquarters of Ministry of Defence (Army) vide their

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letter dated 03 October 2011 by keeping official documents in his laptop which was routinely connected to internet and  maintained  a ‘Face  Book Account’ revealing his rank, name and unit location. The laptop was also used personally by Ms Sueli De Oliveira Montilha on a number of  occasions thereby giving her access to classified documents.

(d) The Complainant had put  in 13 years and 10 months of service at the relevant time and was holding the rank  of Lieutenant  Colonel.  The lapses  on  his part for violation of  ‘Instructions on Contact with Foreign Nationals­1987’ and Policy Instructions dated 03 October 2011 on use of internet by Army Personnel, issued by Directorate General of Military Intelligence, Integrated Headquarters of Ministry of Defence (Army) are serious in nature, The award of ‘Severe Displeasure (Recordable)’ by GOC­in­C Southern Command on 10 May 2013 is commensurate to the lapses on the part of the Complainant.

(e) Exemplary Record of Service and outstanding performance of the Complainant prior to and after the award of Censure are as such no grounds for redressal.

(f) The Complainant remained in constant contact with the foreign national for about two years; staying with tier in Officer’s Mess of Number 2 Signals Training Centre, Goa from 12 October 2011 to 15 October 2011, thereby violating the laid down instructions.  Considering his rank and status, the award of ‘Severe Displeasure (Recordable)’ to the Complainant is fair, just  and  legal  and does  not merit any mercy.

(g) The Complainant has contended that he will be screened by Number 3 Selection Board for promotion to the next rank in May 2014 and Censure will have adverse affect  on his  entire  career.  The award of  a Censure does not debar an officer from being considered for promotion |and may not by  itself affect his promotion. However, while it is

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operative, it is taken cognizance of as part of the officer’s overall Record of Service in assessing his performance  for  such promotion.  The effect  of  a Recordable Censure on promotion would be considered in its totality based on his overall performance.  

6.   AND  NOW THEREFORE, having considered the Statutory Complaint in its entirety alongwith available documents on record, the Central  Government  finds that the contentions raised by the Complainant lack merit.  The Statutory Complaint dated 22 June 2013 submitted by IC­57351N Lieutenant Colonel Kuldeep Yadav, is rejected.

(VN Raveendran) Under Secretary to the Government of India”

  (emphasis supplied)

8. Eventually, the respondent carried the  matter  before the

Armed Forces  Tribunal  Principal  Bench,  New Delhi (for short,

“Tribunal”)  by filing  Original  Application No.555 of  2014.  The

Tribunal first considered the ground urged by the respondent ­

that the show cause notice was not legal and valid as the same

was issued in violation of 1987 and 2011 Instructions. According

to the  respondent, the  said  Instructions could  not  be  invoked

against him. The Tribunal, however, opined that the purpose of

1987 Instructions would be defeated, if a narrow interpretation

was to be given thereto i.e., it applies only at the initial contact

with the foreign national and not to cases involving subsequent

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and continued contact with the officer. The Tribunal then noted

that in response to the subject show cause notice, respondent

admitted the allegations made against him but had prayed for a

lenient view. The Tribunal  thus held that the challenge to the

validity of the show cause notice cannot be countenanced at the

instance of the respondent. 9. The Tribunal then dealt with the next ground urged by the

respondent regarding non applicability of 2011 Instructions.

Even that  plea came to  be rejected  on the finding that  mere

clerical error pertaining to incorrect mention of the date of

Instructions, would not change the nature of allegations or vitiate

the show cause  notice,  moreso, in light of acceptance of the

allegations by the respondent.  The Tribunal  noted that due to

quoting of incorrect year of instructions, no prejudice is caused

to the respondent. Besides, the respondent had clearly

understood the allegations made against him in the show cause

notice. It further noted that the challenge was not with regard to

the source of power of the competent authority.    10. The Tribunal then considered the next ground urged by the

respondent that the rejection of his statutory complaint was not

due to foreign  national having opportunity to have access to

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“Classified Documents”. Whereas, the allegation was only about

the possibility of access to official documents on the respondent’s

laptop. The Tribunal, however, observed that it would make no

difference nor render the order of Severe Displeasure (Recordable)

invalid on that count alone. It then went on to observe that even

non­consideration of exemplary service record of the respondent,

whilst rejecting the statutory complaint by the appropriate

authority per se would not vitiate the order of Severe Displeasure

(Recordable).  

11. The Tribunal then proceeded to consider the argument of

the appellant herein that the order of Severe Displeasure

(Recordable)  should  not  be  interfered with.  While  dealing  with

this contention, the Tribunal noted that the respondent had not

intentionally suppressed his real identity and had offered

explanation in reference to Question No.19 of the Staff Court of

Inquiry Proceeding. The respondent had clearly stated that he did

not disclose that he was staying with foreign national lady, due to

personal  reasons  from family  point  of  view. The Tribunal  held

that that fact  had  commended  to the  competent  authority for

which, no allegation is noted in the show cause notice ­ relating

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to wrong personal details given by the respondent in the register

of the Army Guest House.  

12. The Tribunal then proceeded to deal with the justness of the

order  awarding “Severe  Displeasure (Recordable)”.  While  doing

so, it adverted to the policy regarding award of Severe

Displeasure (Recordable) to Officers and JCOs vide letter dated

23rd  April, 2007 and another policy on “Code of Conduct of

Selection Boards by Quantification System” issued by the

Military Secretary Branch, IHQ MoD (Army) dated 4th  January,

2011. After adverting to these policies, the Tribunal noted that

the competent authorities of Army, while taking cognizance of the

misdeed of the respondent in maintaining contact with a foreign

national  without  due permission and violating  security related

instructions, did not find the charge serious enough to proceed

against the respondent  with disciplinary action.  However, the

appropriate authority was content to deal  with the respondent

administratively, by awarding him Severe Displeasure

(Recordable). The Tribunal then noted that this award coincided

with all three chances of No.3 Selection Board for the respondent.

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After having said this, the Tribunal proceeded to observe as

follows:  

“36. We have perused the communication dated 03.06.2013 on “Lifting of DV Ban on IC 57351N Lt Col Kuldeep Yadav”, the document  in  the dossier  of the applicant  put  up to the  Members  of  No.3  Selection Board, whose para 2 (j) has been amended vide letter dated 12.09.2016, when the hearing of this case was in progress. The said action on the part of the respondent has no bearing on the proceeding of No.3 Selection Board, as the receiver does not reveal non selection of the applicant only on the ground of award of censure.  

37. Having held so, we shall now proceed to examine as to whether punishment of ‘Severe Displeasure (Recordable)’ is too harsh, having regard to his conduct as well as service profile, as the same leads to the denial  of  promotion to  the applicant.  As noticed above, the applicant has a brilliant service profile and is a very efficient and meritorious officer. There was no blemish against him prior to issuance of show cause notice which led to awarding the censure.  

38. The Policy of awarding of censure provides that the censure, which can be ‘Severe Displeasure (Recordable)’, ‘Severe Displeasure (Non­Recordable)’ and ‘Displeasure’, is awarded for an act, conduct, omission or offences of minor nature and not in case involving moral turpitude, fraud, theft, dishonesty and misappropriation. The respondent authority having issued the show cause notice asking the applicant to show cause as to why he should not be censured, has accepted the fact that the applicant’s act or conduct is not serious, but of minor nature and not an act involving moral turpitude, fraud, theft, dishonesty or misappropriation, for which one has to be tried either by Court Martial  or by prosecution in a Civil  Court. The applicant in his reply to the show cause notice has

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admitted the allegations, made against him which also reflects his intention of not concealing anything from the authority. The respondent authority has also condoned the action of the applicant in furnishing wrong information in the guest list of the guest room relating to his service details by not levelling said allegation in the show cause notice issued. The documents in the Laptop of the applicant were also not ‘Classified’ documents. Had those documents be of sensitive nature touching even remotely the security of the state the applicant would have been tried by the Court Martial. That apart, as discussed above, had the award of censure not coincide with all the three chances of No.3 Selection Board, the applicant would have been selected  for  promotion.  As noticed above, the respondents themselves have found those allegations  as  not serious  warranting trial  by  Court Martial.

39. The applicant, however, undoubtedly has to punished for his lapses, which he has admitted. Hence though we are of the considered opinion that while the action of the respondents in awarding censure cannot be faulted, punishment of ‘Severe Displeasure (Recordable)’ does not commensurate with the act and conduct of the applicant having regard to the facts and circumstances involved as it leads to denial of promotion to otherwise a bright officer.  

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.

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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.  

14. It is urged that the quantum and nature of punishment is

the sole prerogative of the disciplinary authority; and in the

present case, that discretion has been exercised with due

consideration  of all the relevant  matters. It is  urged that the

punishment awarded to the respondent by no standards can be

labelled  as  shockingly  disproportionate.  However, the  Tribunal

got swayed away on tenuous reasoning; and interfered with a just

decision of the appropriate authorities. The reasoning adopted by

the Tribunal is palpably replete with error apparent on the face of

the record, if  not  perverse. Inasmuch as,  merely  because the

authorities chose to proceed against the respondent

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administratively instead of resorting to Court Martial, does not

warrant a conclusion that awarding of Severe Displeasure

(Recordable), despite the nature of misdemeanour of the

respondent, was excessive or shockingly disproportionate.

Further, the Tribunal has completely undermined, if not glossed

over, the seriousness of the allegations against the respondent as

noted in the show cause notice, which, the respondent had

unwaveringly  accepted  and  beseeched the  authority to take  a

lenient approach being a one­time aberration or to borrow his

words, “a momentary loss of indiscretion”.   15. It is urged by the appellant that brilliant service record of

the respondent cannot wash away the indiscretion which could

have escalated to threats concerning national security. Further,

the authorities were fully conscious about the service record of

the respondent and after duly considering all aspects decided to

award Severe Displeasure (Recordable). The acts of commission

and omission of the respondent,  which, he admitted to  have

indulged in, were inexcusable and warranted a serious

departmental action. Indisputably, the respondent had admitted

to have remained in touch with a foreign national for over two

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years including having facilitated her to visit India and also

stayed with her in the Army officers’ mess guest room by making

false entries in the respective diary and giving false identity that

foreign national  was  his  wife.  The lesser  action  of censure  of

Severe Displeasure (Recordable), therefore, by no standards can

be said to be untenable on facts or in law. To buttress the above

submissions, reliance is placed on Ranjit Thakur Vs. Union of

India and Others1,  B.C. Chaturvedi Vs. Union of India and

Others2,  Union of India and Others Vs. Bodupalli

Gopalaswami3,  Union of India Vs. Parma Nanda4,  Mithilesh

Singh Vs. Union of India and Others5, General Court­Martial

and Others Vs. Col. Aniltej Singh Dhaliwal6,  Union of India

and Others Vs. Dwarka Prasad Tiwari7 and S.R. Tewari Vs.

Union of India and Another8.

16. The respondent, on the other hand, would adopt the

reasons recorded by the Tribunal, to justify the interference with

1 (1987) 4 SCC 611 2 (1995) 6 SCC 749 3 (2011) 13 SCC 553 4 (1989) 2 SCC 177 5 (2003) 3 SCC 309 6 (1998) 1 SCC 756 7 (2006) 10 SCC 388 8 (2013) 6 SCC 602

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the  censure  of “Severe  Displeasure (Recordable)”.  According to

the respondent, since the Tribunal granted him substantive relief

by directing the competent authority to award any other censure

(namely, “Severe Displeasure (Non­Recordable)” or “Displeasure”),

he did not deem it necessary to assail the impugned order. It is

urged that the impugned censure order deserves to be quashed

because the very foundation of the show cause notice was

misplaced. Moreover, the members to No.3 Selection Boards (SB­

3)  were  misled  due to furnishing  of  wrong  disciplinary inputs

concerning the respondent, leading to incorrect decision. Further,

the extant Discipline & Vigilance Policy (DV Policy) came to be

wrongly applied. Similarly, the Military Secretary Branch Policy

(MSB Policy) was inapplicable. Additionally, the order of the

Central Government on the statutory complaint filed by him was

unsustainable. It is  urged that  awarding  of censure  of  Severe

Displeasure (Recordable) has had a punitive effect, including on

career progression of the respondent. Thus, it is urged that in the

interest of justice, the respondent may be allowed to challenge

the order of the Tribunal rejecting his claim on merits.

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17. According to the respondent, the GOC­in­C, Southern

Command had found lapses of respondent to be of a minor

nature. The Tribunal also took note of the fact that the

documents on the respondent’s laptop were not classified

documents. That would dilute the seriousness of the allegation

against the respondent. In that, presence of official documents on

the laptop (albeit easily accessible to a foreign national), would

still not be a case of serious security issue warranting award of

censure.  

18. The respondent has also invited our attention to the

analysis  made  by the  Tribunal in reference to the  allegations

made against him in the show cause notice and in the order of

the competent authority. It is urged that accepting the

explanation offered by the respondent, had the effect of

condoning the alleged misdemeanour of the respondent regarding

furnishing of incorrect information in the guest list of the Army

Guest House.  Presumably, for that  reason, the same does not

find place in the opinion formed by the concerned authority

whilst awarding censure. Further, it was not a case of intentional

or deliberate act of the respondent. The respondent had frankly

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admitted the acts attributed to him and urged upon the

authority, to take  a lenient  view of the  matter  as  a  one­time

aberration keeping in mind his past impeccable service records.  

19. According to the respondent, the punishment awarded by

GOC­in­C, Southern Command was shockingly disproportionate.

In any case, even if the authority intended to award censure as

per the Censure Policy dated 23rd April, 2007, the authority had

at least three options:

(a) Severe Displeasure (Recordable)  (b) Severe Displeasure (Non­Recordable) and (c) Displeasure                                

It is, therefore, urged that the Tribunal was justified in taking the

view that even if  it  was a case of censure, awarding of Severe

Displeasure (Recordable) was shockingly disproportionate or

excessive.  

20. Furthermore, it is contended that the Tribunal was

competent to  examine  the  validity  of the  order  passed  by the

appropriate or competent authority ­ both on questions of  law

and facts ­ in terms of Section 14 (5) of the Armed Forces

Tribunal Act, 2007. In fact, the Tribunal could have itself

substituted the punishment to a lesser degree, such as

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displeasure, in the peculiar facts of the present case; instead of

remanding the matter to the competent authority for

reconsideration. The Tribunal has thus abdicated its authority by

relegating the respondent before the competent authority.

According to the respondent, any other punishment of censure

than simple displeasure, would be harsh and disproportionate.

The respondent submits that the order passed by the Tribunal is

unexceptional and if this Court intends to interfere therewith, the

respondent  be  granted  liberty to  challenge the  decision of the

Tribunal concerning the grounds on merits of the action taken

against him. The respondent has also placed on record the latest

policy regarding the award of censure to officers dated 11th

August, 2017, which classifies the types of censures that can be

awarded and the validity period thereof.  

21.  We have heard Mr. ANS Nadkarni, learned ASG, counsel

for the appellants and Mr. Rahul Kaushik, counsel for the

respondent.  

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

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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

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the punishment but, at the same time, hedged by an observation

that awarding of  censure  in the  facts of  the present case was

inevitable.  

24. Let  us, therefore, revert to the  reasons weighed with  the

Tribunal, as can be discerned from paragraph No.37 onwards of

the impugned judgment in particular, reproduced hitherto. The

Tribunal first noted that awarding of Severe Displeasure

(Recordable),  may have impacted the  promotional  prospects  of

the respondent. It then proceeded to enquire, as to whether the

punishment is too harsh having regard to the conduct as well as

service profile of the respondent ­ who was considered to be a

very efficient and meritorious officer. The Tribunal was impressed

by the fact that there was no blemish against the respondent,

prior to the issuance of the show cause notice.  

25. 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

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conscious about the said position, as is reflected from paragraph

No.4 of his order dated 10th 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 26th  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 23rd

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,

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be  forwarded to  Integrated HQ of  MoD (Army)  (DV Dte)  at  the

discretion of the GOC­in­C 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

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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 23rd 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 GOC­in­C 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

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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  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.  

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

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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

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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

30

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.  

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.     

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     ……………………………..J       (A.M. Khanwilkar)

     ……………………………..J       (Ajay Rastogi)

New Delhi; September 25, 2019.