# UNION OF INDIA & ORS v. LT. COL. KULDEEP YADAV

- **Citation:** [2019] 15 S.C.R. 662
- **Court:** Supreme Court of India
- **Decided:** 2019-09-25
- **Case number:** Civil Appeal No.7603 of 2019
- **Bench:** A. M. Khanwilkar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-lt-col-kuldeep-yadav-33883
- **Pages:** 23

## Headnote

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
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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 pres

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SUPREME COURT REPORTS
[2019] 15 S.C.R.
UNION OF INDIA & ORS.
v.
LT. COL. KULDEEP YADAV
(Civil Appeal No.7603 of 2019)
SEPTEMBER 25, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
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
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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]
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
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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 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,
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.
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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
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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.
Case Law Reference
[1988] 1 SCR 512
referred to
Para 15
[1995] 4 Suppl. SCR 644
referred to
Para 15
[2011] 11 SCR 326
referred to
Para 15
[1989] 2 SCR 19
referred to
Para 15
[2003] 2 SCR 377
referred to
Para 15
[1997] 6 Suppl. SCR 470
referred to
Para 15
[2006] 7 Suppl. SCR 217
referred to
Para 15
[2013] 8 SCR 988
referred to
Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7603
of 2019.
From the Judgment and Order dated 07.12.2016 of the Armed
Forces Tribunal, Principal Bench at New Delhi in O.A. No. 555 of 2014.
ANS Nadkarni, ASG, V. D. Makhija, Sr. Adv., S. S. Rebello, Rajat
Nair, Praveen, A. K. Sharma, Mukesh Kumar Maroria, Advs. for the
Appellants.
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Rahul Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya
Satyam, Advs. for the Respondent.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. 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 authority to award censure
other than "Severe Displeasure (Recordable)", merely because censure
can also be of Severe Displeasure (Non-Recordable) 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 sub-contractor 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.
4. It is stated that the respondent continued to remain in contact
with Ms. Sueli through e-mails, 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.
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
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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 Commanding-in-Chief, Southern Command (GOCin-C). 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:
"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.
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(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 directorate General of Military
Intelligence, General Staff, Integrated Headquarters of
Min of Defence (Army) vide their letter No. A/38024/
1/MI-11 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.
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M. KHANWILKAR, J.]
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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/DV-2 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
IC-57351N Lieutenant Colonel Kuldeep Yadav blameworthy of
all the lapses attributed to him in Headquarters Southern Comd.
Show Cause Notice bearing No A/2405020/338/DV-2 dated 25
January 2013.
6. In view of the above, I direct that my 'Severe Displeasure
(Recordable)' conveyed to IC-57351N 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 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:-
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(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 e-mail,
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 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
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M. KHANWILKAR, J.]
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Nationals-1987' 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 GOC-in-C 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 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
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2013 submitted by IC-57351N 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 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 "Classified
Documents". Whereas, the allegation was only about the possibility of
access to official documents on the respondent's laptop. The Tribunal,
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M. KHANWILKAR, J.]
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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 non-consideration 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 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. 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
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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 (Non-Recordable)' 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 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
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M. KHANWILKAR, J.]
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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.
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
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as, merely because the authorities chose to proceed against the
respondent 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 one-time 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 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 Court-Martial 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.
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
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M. KHANWILKAR, J.]
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16. The respondent, on the other hand, would adopt the reasons
recorded by the Tribunal, to justify the interference with 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 (Non-Recordable)" 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.
17. According to the respondent, the GOC-in-C, 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 admitted the acts attributed
to him and urged upon the authority, to take a lenient view of the matter
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as a one-time aberration keeping in mind his past impeccable service
records.
19. According to the respondent, the punishment awarded by
GOC-in-C, 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 (Non-Recordable) 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 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 that the
same is excessive or disproportionate to the misconduct proved against
UNION OF INDIA & ORS. v. LT. COL. KULDEEP YADAV
[A. M.