Capt Manoj Rawat Vs Union of India & Ors

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Judgment

110 paragraphs · 11,791 words

Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act 2007, the applicant has called in question tenability of the show cause notice issued to him by the competent authority on 07.10.2013 vide Annexure P7 in accordance with Regulation 216 of the Regulations for the Navy Part II (Statutory) (hereinafter referred to as the Regulations) read with Section 15(2) of the Navy Act, 1957 (the Act, for brevity) and the consequential order passed after receipt of reply to the show cause notice by the Central Government on 20.02.2014 vide Annexure P11, whereby, in exercise of the powers conferred on it vide Section 15(2)(a) of the Act read with Regulation 216(6), the Central Government has discharged the applicant from Naval service and further directed that he would be entitled to only 50% of the pensionary benefits.

The facts, in nutshell, relevant for deciding the issue in question, indicate that the applicant was commissioned into the Indian Navy as a Sub Lieutenant on 01.07.1990 and it is his case that on account of his hard work, dedication to service and based on his unblemished service records, became a Captain, at the relevant time when the cause for initiating the present proceedings occurred. It is said that the applicant, while in school between the period from 1980 to 1985, came in contact with the complainant lady (though detailed particulars of the complainant are indicated everywhere in the record, we would be addressing her in this order only as complainant, keeping in view the mandates of various orders passed by the Hon'ble Supreme Court). It is said that both the complainant and the applicant were from a Naval background and were friends from their school days. The applicant and the complainant are said to have remained in contact with each other up to the year 1991, it is said that the applicant and the complainant, who were classmates till Std X, lost contact after the applicant joined the National Defence Academy and the complainant went to pursue her medical education. However, in May 2011, it is alleged that the complainant (now a divorcee) called up the applicant at his residence in Delhi from Mumbai, by that time, she had completed her studies and was working as a doctor in Mumbai i.e. as a Radiologist, Sonologist and Nutritionist. It is said that during the course of this renewed friendship, their relationship grew. They started meeting each other very often between the period June 2011 to August 2012, there had been several communications between them through social media platforms like Facebook, e-mail, SMS, etc. They had also met on more than seven or eight occasions at various places throughout the country like Mumbai, Lonavala, Cochin, etc. Be it as it may, it is the case on record that the complainant submitted a written complaint on 24.04.2013 to the Deputy Chief of Naval Staff (DCNS), Naval HQs, New Delhi making serious accusations against the applicant, to the effect that he had outraged her modesty and leaked secret Naval information to her, an unauthorized person. She requested the Naval authorities to initiate action against the applicant with regard to the allegations levelled in the complaint. Along with the complaint, copies of documents said to have been leaked by the applicant, copies of the text message, photographs and e-mail conversations were also forwarded. Thereafter, another complaint was sent on 31.05.2013 to the DCNS, Naval HQs, New Delhi reiterating the earlier complaint and seeking disciplinary action against the applicant. Taking note of the aforesaid complaint, the IHQ, Ministry of Defence (Navy) set up a One Man Inquiry (OMI, in short) on 16.05.2013 to examine the complaint against the applicant, with a stipulation to conduct the inquiry guided by the provisions of the Statutory Regulations, particularly Regulations 203, 205 and 208 and to submit a report. One Cmde S. Sen, Additional PDND (SSG) was nominated as President of the OMI and one Lt Cdr Shivani, a lady officer in the ILMS Centre, was co-opted as a Member of the OMI. The OMI conducted its proceedings and submitted its report. Based on the same, a show cause notice dated 07.10.2013 was issued to the applicant by the Chief of Personnel (CoP), IHQ MoD (Navy). The applicant submitted a detailed reply to the show cause notice on 18.11.2013 and as detailed herein above, the impugned order having been passed by the Government of India (MoD) on 20.02.2014, the applicant has invoked the jurisdiction of this Tribunal seeking interference into the matter on various grounds as have been detailed in the application filed.

It is the case of the applicant before us that his service has been terminated administratively by way of discharge under Regulation 216 of the Regulations read with Section 15(2) of the Act. Prior to his discharge, he had put in 23 years of qualifying service, was eligible for pension and the entire action has been taken on the basis of the complaint submitted by the complainant, a civilian divorcee making serious allegations against the applicant pertaining to outraging her modesty, developing physical relationship with her and giving a false promise for marriage. It is said that the complaint was investigated in an illegal manner by the OMI and without any authority, the show cause notice has been issued by the CoP holding the act of the applicant to be an irresponsible social behaviour, unbecoming of an officer in uniform , it is alleged that, in an arbitrary and illegal manner, the impugned action has been taken.

Ms. Ankita Patnaik, learned counsel for the applicant took us through various statutory provisions, the manner in which the proceedings were held against the applicant and made the following submissions:

It was submitted that the OMI was held in violation of the statutory provisions contained in Regulation 205, that the findings of the OMI were the only basis for issuing the show cause notice and taking the impugned action. The proceedings of the OMI are illegal and non est on account of the fact that even though the applicant opted to sit through the proceedings in exercise of the rights available under Regulation 205 and the applicant accompanied the OMI to Mumbai, where the complainant and her father, a retired Naval officer, were examined, but the applicant was not allowed to be present in the OMI. Further, the depositions of two prime witnesses were recorded behind his back. He was not allowed to cross examine the witnesses and, therefore, the entire action taken against the applicant is in breach of Regulation 205. It is also said that the basis of the investigation and the inquiry by the OMI was the complaint, but the applicant was not given a copy of the complaint despite repeated requests. During the OMI, the applicant was only permitted to read and go through the complaint, but copy of the complaint and the two documents submitted by the complainant viz. the complaint dated 14.06.2013 (Exhibit 19 in the records of the OMI) and the written submissions made on 14.06.2016 and 15.06.2016 (Exhibit 26) were never given to the applicant. This, according to the learned counsel for the applicant, is illegal. The norms laid down in Regulation 205 have been violated and, therefore, the entire action taken against the applicant stands vitiated.

The second ground canvassed was that under Regulation 203(5), it is stipulated that no person shall be present at the time when the statement of a person is being recorded, no friend or professional advisor shall assist the person concerned in the inquiry. In breach of this provision, during the deposition of the complainant in the OMI, her father was permitted to sit as an advisor and similarly, when her father was deposing, the complainant was permitted to sit and advise him. It is said that the OMI was held in breach of the aforesaid two statutory provisions and as the entire evidence was collected behind the back of the applicant and he was denied opportunity to cross examine the witnesses, the OMI stands vitiated. It is further alleged that during the course of the OMI, the applicant and the complainant had agreed to resolve their differences, if the applicant submitted an apology, which was duly submitted by the applicant and acknowledged by the complainant vide Exhibit 20 in the OMI proceedings. It is the case of the applicant that once a compromise was arrived at in the inquiry, continuing with the OMI and discharge the applicant from service with forfeiture of 50% pension was totally unwarranted. It is said that the compromise was arrived at with the assistance and insistence of the OMI and once the compromise was arrived at and the applicant had withdrawn all complaints made by him against the complainant and her father, the matter should have been closed at that stage itself. It was further alleged that the administrative action taken and the show cause notice issued is non est in the eye of law because of the fact that no reason, whatsoever, as to why a court martial in the matter is inexpedient was neither recorded nor communicated to the applicant. Referring to sub clause (2) of Regulation 216, it is argued that under this provision, the statute mandates that in case it is not expedient to hold a regular court martial, administrative action can be taken, but reasons for the same are to be recorded. It is alleged that while dispensing with the trial of the offence by a court martial, no reason or justification has been given. On this ground also, it is said that the entire action stands vitiated.

With regard to the show cause notice, it is alleged that under Regulation 216, it is only the Chief of Naval Staff who can issue the show cause notice, however, in the present case, the show cause notice has been issued by the CoP, therefore, on this count, issuance of the show cause notice stands vitiated. Thereafter, with regard to the action taken, it is argued that in an arbitrary, discriminatory and illegal manner and in breach of Article 14 of the Constitution of India, the impugned action is taken. Inasmuch as the allegation of providing official documents to a private person is concerned, it was submitted that the presentation made by the applicant was already available in the public domain and, therefore, breach of security in the matter of sharing such a document does not arise. It is further alleged that the findings of the OMI are based on e-mail records, Facebook messages and SMS. These are digital records and are not admissible in evidence, as the provisions of Section 65-B of the Indian Evidence Act, 1872 have not been complied with. It was also submitted that the extra-marital relationship between the applicant and the complainant was consensual in nature, with the consent of both. As it is a relationship on consent by two consenting adults, it does not constitute misconduct and, therefore, the action taken alleging such relationship is unsustainable. Thereafter, giving examples of lenient action taken in the cases of certain other officers against whom similar allegations were made (Cdr Anoop Sharma, Cdr Kalyan Kumar, Cdr USO Chacko, Flt Lt Ishan Sharan, etc.) and comparing it with the case of the present applicant, it is argued that the applicant has been discriminated in the matter of imposition of punishment and a harsh punishment has been imposed upon the applicant, whereas in the case of other similarly situated officers, responsible for similar acts of commission and omission, lenient view was taken. Finally, in the matter of forfeiture of pension, it has been argued that in the show cause notice issued to the applicant, it was only indicated as to why his service be not terminated and as no show cause notice was issued in the matter of forfeiture of pension, therefore, in violation to the mandate of law and without issuing a show cause notice asking the applicant as to why his pension could not be forfeited, this action, it is argued, is unsustainable in law.

To elaborate and to advance the case of the applicant with reference to the aforesaid grounds, Ms. Ankita, learned counsel for the applicant took us through the entire documents and the material available on record and tried to demonstrate that each submission made by her is substantiated by the material available on record and, therefore, relief may, as prayed for, be granted to the applicant. In support of her contention, learned counsel for the applicant drew our attention to the following decisions:

(i) Maj Gen R.K Loomba v. Union of India (Delhi High Court W.P (C) No. 3831 of 2007 decided on 02.06.2008);

(ii) Maj VikramBirra v. Union of India (AFT Jaipur Bench O.A No. 114 of 2014);

(iii) Lt Gen S.K Sahni v. COAS (Delhi High Court W.P (C) No. 11839 of 2006 decided on 11.01.2007);

(iv) Maj Gen B.P.S Mander v. Union of India (Delhi High Court W.P (C) No. 4393 of 2007 decided on 03.09.2007;

(v) Cdr Kamal Deep Singh v. Union of India (AFT PB O.A No. 93 of 2012 decided on 01.05.2013);

(vi) Brig. L.I Singh v. Union of India (C.A Nos.9223-9224 decided by the Hon'ble Supreme Court on 17.12.2019); and

(vii) Sep P.K. Behuria v. Union of India (C.A No. 1627 of 2019 decided on 06.11.2019).

Learned counsel for the applicant has also stated that the proceedings of the OMI are violative of Regulation 205 thus, it vitiates the entire

proceedings. She also argued that Regulation 205 is para materia to Rule 180 of the Army Rules, 1950 and in most of the decisions referred to herein above, it has been clearly laid down that any action taken in the matter of conducting a Court of Inquiry in breach of Army Rule 180 stands vitiated, so also with regard to her contention that the action taken against the applicant stands vitiated on account of the show cause notice being unsustainable and Regulation 216(2) not complied with. Further reliance is placed on a decision of the Punjab and Haryana High Court in the case of Dr. Sudha Suri v. Union of India and others (Civil W.P No. 11211 of 2001 decided on 22.11.2001) to say that the charges levelled against the applicant cannot be tried by the Naval authorities. The learned counsel also relied on the decision in the case of Ex Commander Lijo Chacko v. Union of India and others (O.A No. 117 of 2014, decided by the AFT Mumbai Bench on 28.04.2017) to buttress her contention that there is no breach of security in the matter of sharing of documents available in the public domain. Further, to contend that the requirement of Section 65-B of the Evidence Act vitiates the proceedings and further to say that the extra-marital relationship being completely consensual, no action could be taken, relied on the decisions of the Hon'ble Supreme Court in the case of Lijo Chacko (supra) and in the case of Joseph Shine v. Union of India (W.P (Cri) No.194 of 2017 decided on 27.09.2018). In the matter of disproportionate punishment and forfeiture of pension, she placed reliance on the following decisions:

(i) N. Kalyan Kumar v. Union of India and others (O.A No. 41 of 2013 decided by AFT, RB, Mumbai on 25.06.2014);

(ii) Ranjit Thakur v. Union of India and others (AIR 1987 SC 2386);

(iii) Bhagat Ram v. State of Himachal Pradesh and others (AIR 1983 SC 454);

(iv) Ex Commodore Sukhjinder Singh v. Union of India and others (O.A No. 302 of 2013 decided by the AFT, PB on 23.01.2014);

(v) Ex Lt Swapan Kumar Mishra v. Union of India and others (OJC No.4318 of 2002 decided by the High Court of Orissa on 29.10.2008); and

(vi) Lt Col (TS) Harbans Singh Sandhu v. Union of India and others (2002) 1 SCC 427.

In the light of the aforesaid decisions, learned counsel for the applicant argues that the action taken against the applicant stands vitiated.

In rebuttal, Mr. K.S. Bhati, learned Sr. CGSC inviting our attention to Section 15 of the Act argued that in the present case, administrative action has been taken against the applicant only after following the procedures mandated in Regulation 216. The requirements of Regulation 216(2), (5) and (6) have been followed. The complaint filed against the applicant has been enquired into in accordance with the requirement of Regulations 203 and 205, proceedings have been held as per the requirement of the Regulations and, therefore, there is no illegality or irregularity in the matter. He further referred to the proceedings of the OMI in extenso, took us through every aspect of the matter, including statement of witnesses, and argued that the action taken in the matter is in accordance with the requirement of law and the applicant's contention that the proceedings stand vitiated is unsustainable. He further submitted that in this case, as only an administrative action is taken, the scope of judicial review into such administrative action is permissible only to the extent of reviewing the decision making process and not the decision itself. As the decision making process in this case has been held strictly in accordance with the requirements of the statute, there is no illegality. With regard to the show cause notice being issued by the CoP, Mr. Bhati, learned Sr. CGSC argued that the show cause notice has been issued after due consideration and sanction by the Chief of Naval Staff and the CoP has only communicated the decision to the applicant. He also referred to the delegation of powers available in the Regulations and the letter dated 28.02.2013, and submitted that the CoP is competent to issue the show cause notice. Final action has been taken by the Chief of Naval Staff, and the CoP has only communicated the decision taken by the Chief of Naval Staff, accordingly there is no illegality in the matter. In the matter of discrimination with regard to imposition of punishment, learned Sr. CGSC invited our attention to the detailed analysis in this regard brought on record vide Annexure R2 and R3 to say that there is no discrimination in the matter and based on the facts and circumstances of each case, administrative action has been taken. Learned Sr. CGSC further argued that the contention of the applicant that he only shared documents available in the public domain with a private individual, cannot be accepted for the simple reason that the documents were official in nature, was used by the applicant for official purpose, therefore, the conduct of an officer in uniform, a responsible member of the Force in acting in such a manner cannot be permitted and the action taken against him cannot be said to be illegal or vitiated. Mr. Bhati, learned Sr. CGSC thereafter referred to the proceedings of the inquiry and argued that the applicant was present throughout the inquiry, he did not raise any complaint to the effect that the proceedings and the statements of the witnesses were recorded behind his back. It was for the first time that such an objection was raised in the reply to the show cause notice. Learned Sr. CGSC argued that all these are afterthoughts and unsustainable in law. He also took us through the evidence that have come on record in detail and argued that the action taken was in accordance with the requirement of law, therefore, no interference is called for. In support of his contention that in administrative matters interference cannot be made and to demonstrate the scope of judicial review into such matters of administration, learned Sr. CGSC relied upon the following decisions:

(i) Union of India and others v. Harjeet Singh Sandhu (2001) 5 SCC 593;

(ii) Tata Cellur v. Union of India(1994) 6 SCC 651;

(iii) Union of India and others v. Lt Col KuldeepYadav (2019) 10 SCC 449;

(iv) Col. Mukul Dev v. Union of India and others (O.A No. 477 of 2018 decided by a Coordinate Bench of this Tribunal on 30.06.2020)

(v) Ex L/NkMohdMerajSiddique v. Union of India and others (O.A No. 1536 of 2019 decided by a Coordinate Bench of this Tribunal on 19.02.2020); and

(vi) Union of India and others v. Shiv(MLJ 1996 SC 3).

Mr. Bhati, learned Sr. CGSC also took pain in taking us through the voluminous proceedings of the CoI to emphasize and vehemently put forth his contention that a fact finding inquiry conducted, based on which the impugned action is taken, does not call for any interference within the ambit of the limited power of judicial review available to this Tribunal. Learned Sr. CGSC also referred to Section 15(6) of the Act and argued that the Central Government is empowered to curtail the pension. It is not a case of forfeiture of pension. Only 50% of the pension has been withheld on account of the misconduct, which is permissible under law.

10.

Ms. Ankita, learned counsel for the applicant refuted each and every contention and submitted that the applicant did raise objections with regard to the proceedings held in an illegal manner against the mandate of the Regulations and, therefore, the contention of Mr. Bhati, learned Sr. CGSC is not correct. She also argued that the so called signature obtained from the applicant with regard to following the procedure under Regulations 205 and 203 has been done arbitrarily and his signature on the certificates was taken under pressure and, therefore, the same cannot be relied upon.

11.

We have heard the learned counsel for the parties at length and also perused the records.

12.

Before considering the rival contentions, we would first take note of the statutory provisions which are relevant. Section 15 of the Act provides for ―tenure of service of officers and sailors‖. It reads as under:

15.

Tenure of service of officers and sailors.- (1) Every officer and sailor shall hold office during the pleasure of the President.

(2) Subject to the provisions of this Act and the regulations made thereunder,-

(a) the Central Government may dismiss or discharge or retire from the naval service any officer or sailor;

(b) the Chief of the Naval Staff or any prescribed officer may dismiss or discharge from the naval service any sailor. (emphasis supplied)

From the aforesaid, it is clear that the Central Government may discharge, dismiss or retire a Naval officer from service and similar powers are also available to the Chief of Navy Staff or the prescribed officer for taking action in case of a sailor. Regulation 202 of the Regulations deals with the "procedures" to be followed by a Court of Inquiry. It reads as under:

202.

Procedures.(1) The Board shall be guided by the provisions of these regulations and also by the Navy orders in force for the time being and the written instructions of the convening authority provided that the Navy Orders and the written instructions are not inconsistent with anything contained in these regulations.

(2) The Board may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth.

Regulation 203 of the Regulations pertaining to ―examination of witness‖ reads as under:

203.

Examination of Witness. (1) Before examination, every witness shall be informed in the following terms which shall be recorded in the minutes:-

―You are privileged to refuse to answer any question, the answer to which may tend to expose you any penalty or forfeiture. It will be for you to raise the objection and for the board to decide whether you must answer the question or not.‖

(2) No one charged with any offence shall be bound to make any statement or answer any questions.

(3) The Board may be re-assembled as often and with such changes in its composition as the convening authority may direct for the purpose of examining additional witness or further examining any witness, or recording further information.

(4) A Board shall unless otherwise ordered, sit with closed doors.

(5) Except where a board is ordered to inquire into the propriety of a punishment of reduction to a lower rank awarded to a Chief Petty Officer or Petty Officer, in a case where such Chief Petty Officer or Petty Officer had elected trial by court-martial and due to the exigencies of the service, the Commanding Officer had exercised his powers under the regulations nevertheless to try the Chief Petty Officer or Petty Officer as the case may be summarily, no person shall be present in the character of a prosecutor nor any friend or professional adviser be allowed to assist any person concerned in the inquiry.

(6) If the inquiry should have reference to the loss or hazarding a ship, the course directed by regulation 183 shall be adopted mutatis mutandis.

Similarly, Regulation 205 of the Regulations deals with "Procedure When Character or Conduct of a Person in Government Service involved" and it reads as under:

205.

Procedure When Character or Conduct of a Person in Government Service involved. (1) Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the character or reputation of a person in Government service or may result in the imputation of liability or responsibility for any loss or damage or is made for the contravention of any regulations or general or local orders, full opportunity shall be afforded to such person of being present throughout the inquiry and of making any statement and of giving any evidence he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects him and producing ay witness in his defence.

Regulation 216 of the Regulations, which deals with the administrative power available for termination of an officer, reads as under:

216.

Misconduct of officers-termination of service by Government on grounds of misconduct. (1) When it is proposed to terminate the service of an officer under Section 15 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in Sub-regulation (2) against that action:

Provided that this sub-regulation shall not apply:-

(a) Where the service is terminated on the ground of misconduct which has led to his conviction by a civil court; or

(b) Where the Government is satisfied that for reasons, to be recorded in writing it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.

(2) When after considering the reports on an officer's misconduct, the Government or the Chief of the Naval Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable, but is of the opinion that the further retention of the said officer in the service is undesirable, the Chief of the Naval Staff, shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence;

Provided that the Chief of the Naval Staff may withhold from disclosure any such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State.

(3) In the event of the explanation of the officer being considered unsatisfactory by the Chief of the Naval Staff, or when so directed by the Government, the case shall be submitted to the government with the officer's defence and the recommendation of the Chief of the Naval Staff as to the termination of the officer's service in the manner specified in sub-regulation (5).

(4) Deleted

(5) When submitting a case to the government under Sub-regulation

(3), the Chief of the Naval Staff shall make his recommendation whether the officer's service should be terminated and if so, whether the officer should be-

(a) dismissed from the naval service; or

(b) discharged from the service; or

(d) called upon toresign.

(6) The Government after considering the reports and the officer's defence, if any as the case may be, and the recommendation of the Chief of the Naval Staff, may dismiss or discharge the officer with or without pension or call upon him to retire or resign and on his refusing to do so, the officer may be compulsorily retired or discharged from the service on pension or gratuity, if any, admissible to him. (emphasis supplied)

13.

The first and foremost argument advanced on behalf of the applicant was with regard to the statutory provisions under Regulations 203 and 205 not being followed. That being one of the most important aspects of the matter, it would be appropriate, at this stage, to take note of the proceedings of the CoI, which has been produced before us, the entire proceedings consist of 474 pages, a close scrutiny of the documents indicates that a one man CoI was convened vide order passed on 13.05.2013 by the CoP and the order indicates that the CoI was to inquire into the complaint submitted by the complainant on 26.04.2013. Thereafter, Cmde S. Sen was nominated as President of the OMI and Lt Cdr. Shivani was co-opted as Member of the OMI. The CoI convened and assembled for the first time on 28.05.2013 to hold its proceedings. Pre-enquiry deliberation, collection of documents, preparation of list of witnesses and questions to be asked by the CoI to the listed witnesses in accordance with the mandate of the convening order dated 16.05.2013 was done during the proceedings held on 28.05.2013 and 29.05.2013 and thereafter, the CoI again convened on 30.05.2013 on which date the applicant Capt Rawat was to be examined. Examination of the applicant Capt Rawat commenced on 30.04.2013 and the President of the CoI had posed various questions to him, which he answered. At 1400 hrs. on 30.05.2013, the proceedings were adjourned to re-assemble at 1400 hrs. on 03.06.2013. On 30.05.2013, after taking note of the details of the applicant, the complainant was informed about the OMI, the complaint submitted by the complainant and the co-option of Lt Cdr. Shivani as co-opted member. Immediately thereafter, the applicant raised two issues, firstly, for handing over a copy of complaint to him and secondly, Lt Cdr. Shivani being his junior should not participate in the proceedings. It was intimated to the applicant that copy of the complaint can be made available, he can go through the same, whenever he wants to and it will be always made available to him.He was also directed to submit a written request with regard to his demands, which he did and was placed on record as Exhibit 2. When the Board re-assembled at 1400 hrs. on 03.06.2013, the OMI, with reference to the request of the applicant, it was explained to him that the complaint filed by the complainant are allegations only at this stage and, therefore, the same is always available for his perusal, the applicant can read them and formulate his answers or questions as required, whenever the officer wanted. With respect to a junior officer being the co-opted as a member, it was explained that she has no role to play and when the applicant's statement is being recorded, she will not be present in the room. The applicant accepted the same and on 03.06.2013, the applicant was asked to give his statement. The applicant gave his statement in detail. He gave his statement on various heads viz. (i) timing of allegations; (ii) option; (iii) threat of FIR emboldened by judicial action; (iv) details about the allegations and continued to give his explanation. He also agreed to depose in the inquiry provided the complaint was made available to him for reading as and when required. After recording his statement in detail, the Board adjourned the proceedings on 03.06.2013 to be held on 04.06.2013 at 1200 hrs. The Board assembled on 04.06.2013 and thereafter elaborate examination of the applicant took place not only on 4th of June, but also on 05.06.2013, continued on 06.06.2013 and 07.06.2013, when the process of recording statement of the applicant was concluded. A perusal of the proceedings indicates that the statement of the applicant runs from page 7 of the CoI proceedings to page 23 and he has in detail explained his position with reference to all the specific facts and documents. After the close of his examination on 07.06.2013, the OMI informed the applicant that now the OMI is required to proceed to Mumbai for three days between 13.06.2013 and 16.06.2013 for recording the statement of two witnesses, the complainant and her father, and the applicant was also asked to make himself available for the same. He was also informed that the travelling duty sanctions and other arrangements will be made. He can book his hotel and flight and everything will be official and reimbursable, the applicant sought for three days' leave with effect from 10.06.2013 with permission to prefix 08th and 09th June being Saturday and Sunday to visit Dehradun for certain personal commitments. All his requests were allowed and the case was adjourned to 13.06.2013. However, while in Dehradun, the applicant sent a fax message with regard to his requirement to be present in Mumbai for examination of the complainant. The applicant was already provided with all the assistances to be present in Mumbai. The Court thereafter assembled at Mumbai on 13.06.2013. The applicant appeared, gave his option, complied with the provisions of Regulation 205, gave his certificate and the proceedings commenced. In the proceedings held on 13.06.2013, it is clearly mentioned that the applicant was offered the option to sit through the proceedings of the OMI and he requested that he be permitted time to accept the option and sit through. OMI commenced with the examination of other witnesses. The applicant submitted his option and was permitted to sit in the proceedings. He exercised his option. Thereafter, the option was taken on record and is available in the record of proceedings. Examination of the complainant then started on the next day i.e. 14.06.2013 and 15.06.2013 at INS Angre Mumbai. Thereafter, examination of her father was undertaken and after that the applicant was subjected to some short cross examination by the Board. The proceedings were then adjourned on 16.06.2013 at Mumbai. The Court then re-assembled at Delhi on 24.06.2013 when the applicant was cross examined by the Court. After his cross examination, the Court gave an opportunity to the applicant to explain the position, thereafter statement of his wife Ms. Chandha Rawat was also recorded and ultimately on 24.06.2013, the OMI was adjourned. The applicant submitted his draft agreement and other details which were taken on record as Exhibits 31 and 32. From a perusal of the aforesaid proceedings held in the CoI, it is clear that the applicant had participated in the CoI without any objection. His presence was marked throughout the inquiry and there is nothing in the proceedings, which were held from 30.04.2013 to 24.06.2013 to show that at any point of time, the applicant raised any objection with regard to the manner in which the proceedings were being conducted or the fact with regard to the provisions of Regulation 205 or 203 not being followed. On the contrary, available on record are the certificates issued

by the applicant under his signature indicating that both the provisions of Regulations 205 and 203 are being complied with. Thereafter, when enquiry was concluded and the recommendation of the Board was submitted to the competent authority after obtaining approval from the Chief of Naval Staff, show cause notice in question was issued to the applicant on 07.10.2013 i.e. after a period of about 3½ months of conclusion of the inquiry. Between 24.06.2013 and till submission of his reply to the show cause notice on 18.11.2013, there was no complaint or whisper by the applicant to the effect that when the statements of witnesses were recorded in the OMI at Mumbai, he was made to sit in the hotel room and the entire inquiry was conducted behind his back. Even though the proceedings of the CoI show that he was throughout present and certificates are also available on record. Series of allegations in this regard were made by the applicant for the first time on 17.11.2012. in the reply to the show cause notice. It is really surprising that the applicant was making such allegations for the first time in reply to his show cause notice. A perusal of various aspects of the matter viz. the applications submitted by the applicant, the submissions made by him in the CoI, his reply to the show cause notice and other representations made available on record clearly demonstrates that the applicant was well conversant with the rules, procedures and his rights and he had exercised his right at all point of times. If such an illegal action was undertaken in the matter of examination of witnesses behind his back, it is surprising that he does not make any complaint. The applicant could have complained to the OMI regarding the illegal proceedings being held. He could have made a complaint to the CoP or any other competent authority or even to the Chief of Naval Staff. Surprisingly, between June 2013 and October 2013, he did not whisper anything about it and all of a sudden when the show cause notice, was issued on 07.10.2013 based on the report of the CoI, the applicant came out with all sorts of allegations in the matter of conduct of inquiry and breach of Regulations 203 and 205 and now argues before us that he was compelled to sign on the certificates and the proceedings were not held in the manner shown in the CoI proceedings and its minutes. We have no hesitation in discarding all these objections of the applicant. We are satisfied from the material on record that the proceedings of the CoI have been held in the presence of the applicant. He was present throughout and when the witnesses were examined, he did not raise any objection, on the contrary, participated in the inquiry without any complaint.

14.

As far as supply of a copy of the complaint to the applicant is concerned, when the applicant was told that the complaint is nothing but an allegation on which the inquiry is being held, he accepted the same. The complaint was available throughout the proceedings of the CoI. The applicant was permitted to read it as and when required and after referring to the complaint, the applicant in detail had given his statement, which runs to more than 26 pages and a perusal of the same indicates that he was well aware of each and every aspect of the complaint and the documents which formed part of the complaint like e-mails, Facebook posts, SMS, etc. As far as the contention in the matter of accepting the documents on record, Section 65-B of the Evidence Act has been violated is concerned, the document was submitted by the complainant. They were taken on record and the applicant accepted the same and also explained the contents of the e-mail communication, SMS, etc. sent by him without making any objection or without alleging that they were forged or fabricated documents. All these aspects make us to hold that the contention of the applicant that proceedings of the CoI stand vitiated being violative of Regulations 203 and 205 or Section 65-B, in our considered view, is nothing but an afterthought and we see no reason to accept the same. Further, so far as the contention of the applicant that once a compromise was arrived at between the parties on 15.06.2013, and thereafter no action should have been taken is concerned, the same cannot be accepted for two reasons viz. (a) in the compromise entered into on 15.03.2013 and in the proceedings of the CoI, which are available on record, it is clearly indicated by the complainant, particularly in the proceedings that were held at Mumbai on 14.06.2013 in answer to Question Nos. 101 and 102 that she accepted the apology and compromise submitted by Mr. Rawat with regard to withdrawing the complaint with the civil authorities. However, she specifically stated that she was receiving the apology letter without prejudice to the Naval investigation and in answer to Question No. 102, she stated that the Navy should inquire into various aspects from the applicant and correlate the dates when he was with the complainant and when she sent marriage proposals and other derogatory comments. We find from the proceedings that the intention of the complainant was only to withdraw the civil complaint and not the investigation by the Navy. That apart, even if for a moment it is accepted that the parties had compromised the issues and inter se between them there was no dispute, but considering the fact that the applicant is an officer in uniform and as his conduct was one which is unbecoming to the character of a Naval officer, the contract of employment and the statutory regulations like Section 54 of the Act, permitted the competent authority to proceed with the inquiry or investigation with regard to the conduct of an officer in uniform irrespective of the compromise between the complainant and the applicant. The compromise between the applicant and the complainant is not binding on the Naval authorities and they can always cause an inquiry into the conduct or reputation of the officer and proceed to take disciplinary action in accordance with the requirement of law. That being so, we see no reason to interfere with the matter on this ground.

15.

As far as the issuance of show cause notice by the CoP is concerned, it is seen that action has been taken after due approval and concurrence of the Chief of Naval Staff and even by a delegation of power the CoP is authorized to take action in the matter. The contention of the applicant that the show cause notice issued and the action taken at the instance of CoP is unsustainable cannot be accepted for the simple reason that the Chief of Naval Staff, by delegation of power dated 28.02.2013, has empowered and authorized the CoP, IHQ of MoD (Navy) being the convening authority to issue show cause notice to the officers in terms of Regulation 216 of the Regulations on behalf of the Chief of Naval Staff. This delegation of power was made on 28.02.2013 and the OMI in this case was ordered by the CoP on 16.05.2013 and the show cause notice was issued on 07.10.2013, much after the delegation of powers and as the CoP has acted in pursuance of the delegation made, therefore, we do not find any illegality in the same. That being so, the competency of the CoP, in issuing the show cause notice, cannot be questioned.

16.

We also find from the records that the Chief of Naval Staff had recorded cogent reasons as to why, in the facts and circumstances of the case, holding of a court martial is inexpedient and why administrative action is being taken in the matter. We have gone through the notings in the file and we see no reason to interfere as law permits taking administrative action in the matter instead of holding a regular courtmartial and there is no illegality in the same. Such an action can always be sustained in view of the law laid down by the Hon'ble Supreme

Court in the case of Harjeet Singh Sandhu (supra). A perusal of the original file indicates that even though the option for conducting a court martial was available, it was considered inexpedient and impracticable for the reason that witnesses to prove the alleged misdemeanor are none other than those involved in the acts in question. It includes civilians as witnesses and as all the witnesses have been examined in the OMI and looking to the nature of allegations made, deposition by these witnesses in the inquiry, it was observed that holding of a Court Martial was not necessary. It was also observed that the court martial may give adverse publicity to the service and the persons involved and keeping in view the administrative power available with the authority invoking the ‗pleasure doctrine' theory and finding that the officer's misdemeanor cannot be ignored or condoned, deterrent action is required to be taken, recourse was taken to initiate action in terms of Regulation 216. That apart, when the matter went to the Central Government, the Government also found on a perusal of the records and the relevant document available that the officer was culpable of misconduct as brought out in the OMI. It was also observed that trial by court martial of the officer is not a viable option and the observation of the competent authority was approved and after taking note of various aspects and the interest of service and all concerned involved in the acts of commission and omission, it was decided to take recourse to the administrative action.

17.

At this stage, it would be appropriate to consider the law laid down by the Hon'ble Supreme Court in the case of Harjeet Singh Sandhu (supra), which, in our considered view, has a lot of bearing to the facts, circumstances and the legal principles involved in the present case, particularly with regard to the principle governing judicial review of administrative action and the issue as to why holding of a court martial is inexpedient. The scope of administrative action taken under Section 19 of the Army Act read with Rule 14 of the Army Rules was the subject matter of consideration before the Hon'ble Supreme Court in the case of Harjeet Singh Sandhu (supra). We may take note of the fact that Section 15 of the Act and Regulation 216 of the Regulations are pari materia with Section 19 of the Army Act and Rule 14 of the Army Rules. The Hon'ble Supreme Court, after taking note of the requirement of Section 19 and Rule 14 as applicable in the Army, found that these provisions empower the Central Government to dismiss or remove from service any person subject to the Act and after considering the requirement of Section 19 of the Act, which contains a similar provision empowering the competent authority to dispense with the regular trial by court martial on account of its inexpediency or impracticability. In Para 17, which is reproduced hereunder, the importance of Military service, standard of behavior expected of an officer in uniform and the maintenance of discipline in the military in comparison with civil service has been taken note of:

17.

Army defends the country and its frontiers. It is entrusted with the task of protecting against foreign invasion and preserving national independence. The arduous nature of duties, the task they have to perform in emergent situations and the unknown lands and unknown situations wherein they have to function demand an exceptionally high standard of behavior and discipline compared to their counterparts in civil services. That is why the military people command the respect of the masses. Such factors taken together demand the military services being treated as a class apart and a different system of justice - military justice - being devised for them. Article 33 empowers Parliament to restrict or abrogate fundamental rights in their application to the members of the armed forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Right to file special leave to appeal before the Supreme Court and power of superintendence vesting in the High Courts do not extend over judgment, determination, sentence or order passed or made by any court or tribunal dealing with the armed forces. Members of the defence services hold office during pleasure of the President under Article 310 but they are not entitled to the protection offered by Article 311. The principles of interpretation of statutes which apply to any other statute also apply to the legislation dealing with defence services; however, the consideration of the security of the State and enforcement of a high degree of discipline additionally intervene and have to be assigned weightage while dealing with any expression needing to be defined or any provision needing to be interpreted.

Thereafter, in extenso, various provisions of the Army Act, particularly Section 19, the provisions of punishment Section 71, requirement of the statutory rules, meaning of the word ―misconduct‖, etc. had been discussed in detail and finally in Para 31, meaning of the term ―impracticable‖ is evaluated in the following manner:

31.

The above passage shows that the learned Judges went by the dictionary meaning of the term ―impracticable‖, placed the term by placing it in juxtaposition with ―impossibility‖ and assigned it a narrow meaning. With respect to the learned Judges deciding Major Radha Krishnan case (1996) 3 SCC 507 we find ourselves not persuaded to assign such a narrow meaning to the term. ―Impracticable‖ is not defined either in the Act or in the Rules. In such a situation, to quote from Principles of Statutory Interpretation (Chief Justice G.P Singh, 7th Edn 1999, pp 258-59):

When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word ....

Thereafter, the Hon'ble Supreme Court referred to the judgment of the Constitution Bench (majority view) in the case of Union of India v. Tulsi Ram Patel (1985) 3 SCC 398 and explained the meaning and import of the word ―impracticable‖ appearing in Rule 14(2) of the Army Rules in Para 35 in the following manner:

35.

As the term used in sub-rule (2) of Rule 14 is "impracticable‖ and not" not reasonably practicable‖, there is more an element of subjectivity sought to be introduced by this provision in the process of arriving at the satisfaction, obviously because the rule is dealing with the satisfaction arrived at by the Central Government or the Chief of the Army Staff, in the matter of disciplinary action on account of misconduct committed by an officer of the Army which decision would have been arrived at by taking into consideration the then prevailing fact situation warranting such decision after considering the reports on the officer's misconduct.

In this case, if we examine the reasons, which weighed with the competent authority for dispensing with the court martial and the reason given to hold that the holding of the court martial is impracticable, we find that this decision has been arrived at after considering various factors and situation, implication to the service and specific reason as to why it is not necessary to hold the regular court martial proceedings is recorded. The question as to whether this decision taken administratively fall within the purview of the limited scope of judicial review available to us is required to be considered and in Para 42 the well settled parameters of administrative law governing judicial review of administrative action has been crystallized by the Hon'ble Supreme Court in the following manner:

42.

Exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by malafides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of colourable exercise of/or abuse of power or what is sometimes called fraud on power, i.e. where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the court while exercising power of judicial review. Even if some of the material, on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material available on which the action can be sustained. The court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power.

Before that, in Para 41, it has been observed as under:

41.

Having thus explained the law and clarified the same by providing resolutions to the several illustrative problems posed by the learned Additional Solicitor-General for the consideration of this court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard and fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term impracticable and therefore on availability or happening of such events as render trial by court-martial impermissible or legally impossible or not practicable, the situation would be covered by the expression - the trial by court-martial having become impracticable.

In view of the settled proposition of law as detailed herein above, we see no illegality in the action of the respondents in dispensing with the Court Martial and proceeding to take administrative action.

18.

As far as arbitrariness in taking action against the applicant and discriminating him in the matter of punishment and proportionality in the quantum of punishment is concerned, we find that the applicant has referred to certain cases of individuals against whom lenient view had been taken and such a statement with regard to discrimination is raised by the applicant in the body of the pleadings. The respondents have elaborately dealt with the matter in their counter affidavit and have brought on record Annexure R2 at page 162 and Annexure R3 at page

163 in a tabulated manner showing the difference in the case of the applicant and have also indicated that in many other similar cases, action has been taken for terminating the services of employees under Regulation 216. Available at Annexure R2 are the names of eight officers who had, on various similar allegations, been discharged from service under Regulation 216. As far as lenient action taken in the matter of

persons highlighted by the applicant is concerned in Annexure R3 from page 163 onwards, reasons have been dealt with in detail.

19.

Apart from the fact that the discrimination or arbitrariness has been explained by the respondents in detail, the disciplinary action against an officer is based on peculiar facts and circumstances of a case, the evidence that have come on record, facts which are relevant for taking action and the subjective satisfaction of the competent authorities in taking a decision. Each case differs from the other on various factual aspects and, therefore, negative equality in such matters cannot be claimed. As far as the proportionality of punishment is concerned, we find that even though learned counsel has relied upon various decisions to contend that the punishment imposed upon the applicant is highly disproportionate, the law with regard to proportionality of punishment stands well settled and it has been clearly laid down even in the decisions relied upon by the learned counsel for the applicant, particularly the case of Ranjit Thakur (supra) and Kalyan Kumar (supra) also that the question of punishment is an administrative decision and the same cannot be interfered with within the scope of judicial reviewuntil and unless the punishment is shown to be highly disproportionate. In this regard, recently in the case of Union of India and others v. Lt Col Kuldeep Yadav (2019) 10 SCC 449, the Hon'ble Supreme Court had occasion to address this situation and after elaborately dealing with the issue of proportionality in the matter of punishment and taking note of the principles laid down in Ranjit Thakur (supra) relied on by the learned counsel for the applicant, has dealt with the issue in the following manner:

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

Once the Hon'ble Supreme Court has clearly held that this Tribunal is not expected to examine the issue of quantum of punishment as if it is exercising jurisdiction of a court of appeal and substitute its own decision to that of the competent authority, the Tribunal cannot replace the subjective satisfaction arrived at by the competent authority. Therefore, we see no reason to interfere into the matter on this ground. In this case, looking to the nature of allegations made against the applicant, the misconduct proved, the acts of commission and omission of the applicant and the considerations that weighed with the respondents in the matter of maintaining discipline in a Force, we see no reason to interfere with the matter.

20.

Analyzing the administrative action taken in the matter, in the backdrop of the aforesaid, we see no reason to interfere with the matter. That apart, in Paragraphs 41, 42 and 43 in the case of Col Mukul Dev (supra), referred to by the learned Sr. CGSC also, a coordinate Bench of this Tribunal has dealt with the issue of judicial review of an administrative action in the following manner, after relying upon the decisions in Tata Cellular and Jasbir Singh Chhabra and others v. State of Punjab and others (2010) 4 SCC 192 which, in our view, squarely apply in this case also:

41.

In Tata Cellular (supra), after discussing number of judgments, Hon'ble Supreme Court culled out the following principles:

(1) The modem trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

42.

Again the following observations were made by the Hon'ble Supreme Court in Jasbir Singh Chhabra and others (supra):

34.

It is trite to say that while exercising power of judicial review, the superior courts should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of mala fides is always on the person who moves the Court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to mala fides and the courts should resist the temptation of drawing dubious inferences of mala fides or bad faith on the basis of vague and bald allegations or inchoate pleadings. In such cases, wisdom would demand that the Court should insist upon furnishing of some tangible evidence by the petitioner in support of his/her allegations.

35.

It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations. The Court is duty bound to carefully take note of the same. In this context, reference can usefully be made to the decision of the Constitution Bench in E.P Royappa v. State of T.N.

43.

Observations made in Para 22 of the judgment in Kuldeep Yadav (supra) are of paramount importance and thus read as under:

22.

21.

Finally, we may now come to the last issue involved in the matter i.e. with regard to withholding of 50% of the pension and the complaint of the applicant that no show cause notice was issued to him before doing so. We find some force in this grievance of the applicant. In the show cause notice issued to the applicant, the applicant was asked to show cause only as to why action should not be taken under Regulation 216 and why his services should not be terminated in terms of Regulation 216. There is no whisper in the show cause notice as to why in accordance with the requirement of Regulation 216(6), his pension should not be curtailed or forfeited. That being so, when the applicant replied to the show cause notice, he only challenged the finding of the OMI as he was not noticed about the question of withholding of pension, rightly so because it did not form part of the show cause notice. This aspect has been considered by a coordinate Bench of this Tribunal in the case of Ex Commodore Sukhjinder Singh v. Union of India (O.A No. 302 of 2013 decided by this Bench of the Tribunal on 23.01.2014) and after taking note of the provisions of Regulation 216(2) of the Act and various other identical issues, it has been clearly held that similar action taken has been interfered with and in Para 15, it has been observed by the Bench as under:

15.

In addition to above we are of considered opinion that in the show cause notice the relevant portion of which we have quoted above itself it is clearly mentioned that the show cause notice has been served upon the petitioner to show cause why his service may not be terminated. A person's service is terminated by way of dismissal in this case and he has denied the future service and that itself is a punishment and none of the law provides that it will necessarily be a dismissal without pension. Therefore, petitioner replied to the show cause notice contesting in this case (or not contesting) the only issue of his ―dismissal from service‖ and petitioner could not have comprehended that he will be deprived from his property i.e. pension at the time of filing reply to the show cause notice and which is a separate punishment. If the petitioner would have been given opportunity, definitely he would have been in a position to place before such competent authority, who can pass appropriate order denying the pension in isolation to the Sec 81 and Sec 82 by invoking only Regulation 216, that he has reasons for not denying the pension on the basis of the reasons which may be available with the petitioner. This view is more applies to the sub clause 6 of Regulation 216 which gives discretion to the Government to dismiss an officer with or without pension. When a discretion is given by a statutory provision to an authority or the government, such discretion is required to be exercised judiciously and when it effects or likely to effect the property of other rights of aggrieved persons, it can be done only by following principles of natural justice. The mere provision of giving a discretion to the Government in the matter of allowing the dismissal with pension or without pension itself contain the observance of principles of natural justice and therefore, we are of considered opinion that the order of denial of pension has been passed by the Government in grave violation of principles of natural justice hence liable to be set aside on this ground also. Our view finds support substantially from the judgments relied upon by the learned counsel for the petitioner. (emphasis supplied)

In view of the above, we have no hesitation in holding that in the matter of forfeiture of pension without show cause notice, the respondents have committed an illegality.Therefore, to that extent, relief is to be granted to the applicant. Accordingly, we hold that the act of withholding 50% pension of the applicant is unsustainable in law as it has been done in violation of the principles of natural justice and without affording an opportunity to show cause. To that extent, the action stands vitiated. However, if so advised, the respondents shall have the liberty to proceed in accordance with law with regard to this aspect of the matter.

22.

As far as the contention of the applicant that the communication made with regard to official matters to the complainant is concerned, we are of the considered view that the contention of the applicant that merely because the presentation made by the applicant was collected from material available in the public domain and, therefore, in parting with them, the applicant has not committed any breach of the service rules and regulations cannot be accepted. The documents were collected by the applicant for the purpose of making an official presentation to be made on the subject ―Pakistan Security Scenario 2020‖ and this presentation prepared by the applicant from the public domain (internet) was for the purpose of an official presentation. Once the documents were collected for preparing an official presentation, parting with such a document and giving it to a private civilian was clearly an act in breach of security and unbecoming of an officer in uniform. Accordingly, we are of the considered view that if the respondents found this act of the applicant to be a breach of security or against the interest of the administration, no interference can be made into the matter.

23.

In this case, the administrative action was taken against the applicant after analyzing his overall moral conduct and attitude in dealing with a civilian. An officer in uniform is expected to maintain certain moral characters, discipline and dignity of his post. Mixing with a civilian in the manner done by the applicant and parting with official communication is a serious matter. The consequence of such an action based on the material parted is not very important. It is the act of commission and omission, the conduct and attitude of the applicant in doing so which has the effect of the employer losing confidence in such an officer. An employee who indulges in such an act loses the confidence of his employer and the employer may not have confidence on such an employee as there may be always a risk of such an officer acting in a manner which may be detrimental to the administrative interest and consequently to national interest also. If, analyzing all these aspects, an administrative decision is taken by the competent authority in exercise of his powers, this Tribunal, in exercise of its limited jurisdiction, cannot interfere with it.

24.

The O.A is partly allowed, to the extent indicated in Para 21 herein above. On all other counts, the O.A stands dismissed. No order as to costs.

Pending miscellaneous applications, if any, stand closed. Pronounced in open Court on this the 24th day of December 2021.

Capt Manoj Rawat vs Union of India & Ors

More clarity. Every judgment.

Judgment