In a significant legal development, the Delhi High Court has delivered a verdict on a promotion dispute resolution case. The judgment addresses key concerns raised by the parties involved and provides clarity on the promotion criteria. Stay tuned to learn more about the details of this case and the implications of the court’s decision.
Facts
- COI was completed on July 26, 2013 September 27, 2013.
- The CoI was placed before the C-in-C Strategic Forces Command, who then cancelled his earlier directions and issued fresh directions and ordered disciplinary action against the applicant.
- The applicant claimed a sum of Rs 18,559/- for temporary duty to Delhi, as per the Headquarters 71 Task Force letter.
- Lt. Col. Sudhish Chander was the Second In Command (2IC) who the applicant had made verbal complaints against to his superiors.
- JC-53411 Colonel Sandeep Sharma was censured with Displeasure.
- The petitioner was not allowed to avail his full rights under Rule 180 of the Rules of 1954.
- The command criteria appointment for the Officer was to be quashed, and the requirement of mandatory ‘criteria reports’ for 180 in respect of witnesses other than Colonel Sandeep Sharma was emphasized.
- No correct records maintained with respect to the issue of Railway Warrants.
- On July 31, 2014, the SFC returned the reassembled COI to HQ, Southern Command with directions for initiating disciplinary proceedings against the petitioner.
- The mess bill and testimony of witness in the Summary of Evidence established that the Officer stayed in Air Force Mess/ Gwalior and a false claim was made.
- The Officer was not allowed to be present throughout the disciplinary proceedings.
- The COI commenced against the petitioner on May 22, 2013, due to a complaint lodged on October 17, 2012 by Lt. Col. Sudhish Chander.
- The Officer stayed in the Guest Room at Air Force Mess as mentioned in the register.
- The COI proceedings were placed before the Commander-in-Chief Strategic Forces Command, who cancelled earlier directions, issued fresh directions on August 31, 2014, and ordered disciplinary action against the Officer.
- The Officer was not allowed to call for any witness in defense of his character and military reputation.
- A Show Cause Notice dated 10 January 2020 was served upon the Officer for initiation of administrative action.
- The Officer has given explanations regarding the claims made for temporary duty to Gwalior and Delhi, highlighting discrepancies in the billing and providing proof of his stays.
- The Officer accepted moral responsibility for not maintaining correct records of Railway Warrants at the unit level.
- The Officer claimed he was being framed by Lieutenant Colonel Sudhish-Chander and requested the competent authority to award the right quantum of punishment for being morally wrong.
- Disciplinary proceedings were initiated against the Officer.
- The Officer was cleared by SRMB held on October 10, 2012.
- It could not be established that railway warrants issued on a fictitious name were at the behest of Colonel Sandeep Sharma or any other person.
- Disciplinary proceedings initiated against Officer for violation of Rule 180
- Summary of Evidence and Additional Summary of Evidence recorded
- Officer tried by General Court Martial
- Exchange of tickets by Sandeep Sharma and the Officer
- Award of ‘Severe Reprimand’ after following relevant procedures
Issue
- The main issue to be determined is whether the respondents were justified in not promoting the petitioner to the post of Brigadier.
- The decision revolves around the reasons provided by the respondents for not promoting the petitioner.
- The petitioner’s qualifications, experience, and performance are likely to be key considerations in this assessment.
- It will be essential to evaluate if the reasons cited by the respondents align with the criteria and regulations for promotion to the post of Brigadier.
- A thorough review of the petitioner’s record and the criteria for promotion will be crucial in reaching a just conclusion regarding this issue.
Arguments
- The petitioner has been denied promotion to the rank of Brigadier despite being eligible and medically fit.
- The petitioner sought waiver of age relaxation and was not granted, even though he was overage for command of a regular infantry battalion.
- The policy in question is the MS Policy dated December 03, 2010.
- The petitioner was awarded a Censure which would deny him any promotion during its duration.
- The AFT failed to adjudicate the legality of the COI, proceeding with the assumption that it was not necessary to do so when the SCN was based on the COI.
- The petitioner was attached to 31, Artillery Brigade until the finalization of disciplinary proceedings, despite a specific statement made before AFT that no disciplinary action was contemplated by the respondents.
- Issues regarding hotel bills and alleged malpractices were raised, with the petitioner claiming innocence and lack of evidence against him.
- The Supreme Court’s stance on judicial review limitations in cases like Indian Oil Corporation & Ors. v Ajit Kumar Singh & Anr. was cited for context.
- Petitioner was declared fit for command criteria on October 12, 2012, but was not posted for criteria command for nearly 07 months without any explanation.
- The petitioner’s promotion to the rank of Brigadier was deferred multiple times due to not meeting the requirements.
- The petitioner was not AE compliant in the Colonel Rank, preventing consideration for SB No.2.
- An officer over 46 years old cannot be placed in command as per policy, and an age waiver was rejected for the petitioner.
- In the last seven years, 195 officers were deferred in SB No.2, showing the incidence of service and potential cadre management issues.
- The respondents acted contrary to rules by not providing an authenticated copy of the COI and imposing an illegal penalty of censure.
- The petitioner suspected foul play and wrote to the convening authority and Presiding Officer regarding blatant violations of Rule 180.
- SCN was issued against the petitioner for various offenses related to railway warrants and false claims.
- The petitioner’s explanation and details regarding the offenses were not considered by the respondents or the AFT.
- The COI proceedings were relied upon by the respondents in violation of Rule 182.
- The petitioner’s rights to a fair defense were potentially compromised as defense witnesses were not allowed during proceedings.
- The AFT failed to consider that the petitioner was unable to participate fully in the COI process due to being on UN deputation in Congo.
Analysis
- The petitioner, an Army officer, was involved in a disciplinary case regarding alleged irregularities.
- The petitioner was considered for promotion to the post of Brigadier, but certain obstacles were faced due to age criteria and lack of mandatory criteria reports.
- There were discrepancies regarding the temporary duty claims made by the petitioner during his stay at Gwalior and Delhi, leading to the issuance of a Show Cause Notice (SCN) in 2020.
- A Court of Inquiry (COI) was conducted which raised concerns about the handling of hotel bills, railway warrants, and evidence presentation without the petitioner’s presence or defense witnesses.
- The petitioner’s defense highlighted issues with the COI proceedings including lack of cross-examination opportunities, violation of Rule 180, and denial of procedural rights.
- The O.A. and the writ petition raised questions on the fairness and compliance with Army rules in the disciplinary process.
- The need for adherence to rules of evidence and fair trial procedures was emphasized in scrutinizing the administrative actions taken against the petitioner.
- Concerns were also raised about delays in concluding the case, violation of AR 180, and discrepancies in the evidence presented during the proceedings.
- The judgment highlighted the importance of ensuring procedural fairness, respect for the rights of the accused, and adherence to legal and military regulations in disciplinary actions.
- Rule 182 states that proceedings of a CoI or any statement given at a CoI shall not be used as evidence against the person subject to the Act.
- The issue of the applicability of Rule 182 was not raised or considered by the High Court or the Tribunal.
- The appeals of the Officer were allowed, and the impugned judgment of the AFT and the punishment of ‘Severe Displeasure (Recordable)’ were set aside.
- The Officer is entitled to promotion to the post of Brigadier as he was found fit for promotion, which was denied due to the pending CoI.
- Once the stigma is removed, the Officer should be promoted to the rank of Brigadier, as he was already empanelled by the authorities.
- Orders should be issued for the Officer’s promotion to the rank of Brigadier from the date he was due for promotion.
- Proceedings of a Court of inquiry or any confession, statement, or answer given at a court of inquiry cannot be used as evidence against a person subject to the Act.
- Evidence regarding the Court’s proceedings can only be used in trial if the person is being tried for willfully providing false evidence before the Court.
- The prosecution or defense can use the proceedings to cross-examine any witness.
- Provision of age waiver available with the COAS as per MS Policy dated December 03, 2010
- COAS directed to consider petitioner for age waiver for promotion to Brigadier
- COAS to grant age waiver based on merits of the case on a case to case basis
- If age waiver granted, petitioner’s case to be considered for promotion from the date declared fit by SRMB
- COAS has power to grant age waiver for consideration for promotion to Brigadier despite being age barred for command criteria
Decision
- Administrative action stands vitiates and CO dated June 1, 2020 is set aside.
- Writ petition is disposed off.
- Pending application is dismissed as infructuous with no costs.
- 2864/2021 is set aside based on the conclusion/findings.
- If age waiver cannot be granted, COAS to consider petitioner’s case for promotion from the date found fit by SRMB, overlooking command criteria based on precedent.
- Exercise to be completed within 12 weeks from today.
Case Title: COL. SANDEEP SHARMA Vs. UNION OF INDIA & ORS. (2024:DHC:4341-DB)
Case Number: W.P.(C)-7541/2023
