{"id":108880,"date":"2011-02-17T00:00:00","date_gmt":"2011-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maj-r-k-sareen-vs-uoi-ors-on-17-february-2011"},"modified":"2018-11-15T23:19:46","modified_gmt":"2018-11-15T17:49:46","slug":"maj-r-k-sareen-vs-uoi-ors-on-17-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maj-r-k-sareen-vs-uoi-ors-on-17-february-2011","title":{"rendered":"Maj.R.K.Sareen vs Uoi & Ors. on 17 February, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Maj.R.K.Sareen vs Uoi & Ors. on 17 February, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                     Judgment Reserved On: 6th January, 2011\n                     Judgment Delivered On: 17th February, 2011\n\n+                         LPA 603\/2002\n\n        MAJ.R.K.SAREEN                          ..... Petitioner\n                  Through:     Ms.Rekha Palli, Advocate\n\n                               versus\n\n        UOI & ORS.                              ..... Respondents\n                  Through:     Ms.Jyoti Singh, Advocate\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SURESH KAIT\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      By May 1992 the appellant had earned promotion as a
\nMajor in the Indian Army and was appointed as Presiding
\nOfficer of a Board of Officers constituted to take over the
\npossession of buildings constructed by contractors for the
\nArmy Aviation Corps at Jhansi.\n<\/p>\n
2.      In June 1992 the Initiating Officer of the appellant
\ninitiated the recording of the Annual Confidential Report
\n(hereinafter referred to as the “ACR”) of the appellant for the
\nyear 1991-1992 and graded the appellant \u201eAbove Average
\nOfficer\u201f.      The   problem   started   for   the   appellant    when<\/p>\n
LPA 603\/2002                                             Page 1 of 23<\/span>
\n Brig.R.Gopal, respondent No.5, the Senior Reviewing Officer of
\nthe appellant, downgraded the appellant to \u201eHigh Average
\nOfficer\u201f and recorded following adverse remarks in the ACR:-\n<\/p>\n
      “Inflated report by the IO and RO. Sareen is an high
\n      average officer. He is excessively obese and must
\n      reduce his over weight.”\n<\/p><\/blockquote>\n
3.    Aggrieved by the downgrading of his ACR grading and
\nrecording of adverse remarks in the ACR, the appellant made a
\nnon-statutory representation before the competent authority,
\nwhich was rejected by the General Officer Commanding-in-
\nChief, Central Command by the order dated 20.03.1993.\n<\/p>\n
4.    In June 1993 Colonel M.Madhubani, respondent No.6, the
\nReviewing Officer of the appellant initiated the recording of the
\nACR of the appellant for the year 1992-1993 and graded the
\nappellant as a \u201eHigh Average Officer\u201f. Aggrieved by the
\ngrading given to him by respondent No.6, the appellant made
\na statutory petition dated 23.09.1993 against the respondent
\nNo.6 before the competent authority inter-alia primarily
\nalleging that the respondent No.6 had taken bribe from the
\ncontractors who had constructed the buildings in question and
\nwanted the appellant not to report the deficiencies in the
\nconstruction of the said buildings and that upon the refusal of
\nthe appellant to do so, out of vengeance the respondent No.6
\ngave low grading to the appellant in the ACR for the year
\n1992-1993 as also influenced respondent No.5 to give low
\ngrading to the appellant in the ACR for the year 1991-1992.
\nFurthermore, the appellant demanded the initiation of an
\ninquiry against respondent No.6.\n<\/p>\n
LPA 603\/2002                                        Page 2 of 23<\/span><\/p>\n
 5.    On 25.05.1994 the appellant wrote a letter to the
\nSecretary, Ministry of Defence, inter-alia, leveling the same
\nallegations against respondent No.6 as contained in the afore-
\nnoted statutory complaint dated 23.09.1993 and demanding
\nthe initiation of an inquiry against respondent No.6.\n<\/p>\n
6.    On       the   basis   of   the   afore-noted   complaint    dated
\n23.09.1993 made by the appellant against respondent No.6
\nand the letter dated 25.05.1994 written by the appellant to the
\nSecretary, Ministry of Defence, the competent authority
\nconvened a Court of Inquiry to investigate into the allegations
\nleveled by the appellant against respondent No.6.\n<\/p>\n
7.    The Court of Inquiry assembled for first time on
\n20.10.1994, on which date the appellant was examined as
\nwitness No.1. Thereafter the witnesses No.2 to 6 were
\nexamined before the Court of Inquiry on various dates.\n<\/p>\n
8.    On 27.10.1994 the appellant wrote a letter to the
\nPresiding Officer of the Court of Inquiry, the relevant portion
\nwhereof reads as under:-\n<\/p>\n
      “With due respect the witness requests to the Court
\n      that his reputation in the Army has been drastically
\n      affected due to the acts of Col M Madhubani and
\n      hence he be allowed to read his statement and then
\n      cross-examine him as per AR 180. Similarly the
\n      same procedure may please by allowed for other
\n      witnesses whose statements might lead to
\n      miscarriage of Justice.\n<\/p><\/blockquote>\n
      …..”\n<\/p><\/blockquote>\n
LPA 603\/2002                                               Page 3 of 23<\/span><\/p>\n
 9.    In response thereto, the Presiding Officer of the Court of
\nInquiry wrote a letter dated 28.10.1994 to the appellant,
\nrelevant portion whereof reads as under:-\n<\/p>\n
      “….You have already been informed that provisions
\n      of AR 180 will be applied whenever applicable.
\n      Same has been done where essential.
\n      ….”\n<\/p><\/blockquote>\n
10.   On 21.01.1995 the Court of Inquiry invoked Rule 180 of
\nthe Army Rules, 1954. On the said date i.e. 21.01.1995, the
\nCourt of Inquiry handed over a copy of the statement of
\nrespondent No.6 who was examined as witness No.3 to the
\nappellant      and   allowed   the   appellant   to   cross-examine
\nrespondent No.6. Thereafter the statements of witnesses
\nNos.7 and 8 were recorded in the presence of the appellant
\nwho was allowed to cross-examine the said witnesses.\n<\/p>\n
11.   After considering the statements of the witnesses as also
\nother facts and circumstances of the case, the Court of Inquiry
\ncame to the conclusion that there is no substance in the
\nallegations leveled by the appellant against respondent No.6.\n<\/p>\n
12.   Vide Office Order No.36501\/510\/Arty\/93\/MS Compl\/42\/D
\n(MS) dated 04.01.1995, Ministry of Defence, Government of
\nIndia rejected the statutory complaint dated 23.03.1993 made
\nby the appellant however it expunged the assessment made
\nby respondent No.6 in the ACR of the appellant for the year
\n1992-1993 on the ground that the same was based on the
\nsubjectivity of respondent No.6.\n<\/p>\n
LPA 603\/2002                                            Page 4 of 23<\/span><\/p>\n
 13.   On 28.04.1995 the GOC, Army Headquarters issued a
\nshow cause notice to the appellant and the same reads as
\nunder:-\n<\/p>\n
                     “SHOW CAUSE NOTICE\n<\/p><\/blockquote>\n
      1. A staff C of I was ordered vide this HQ investigate
\n      into the allegations leveled by you against IC-
\n      19622W Col M Madhubani ex Co of 664 R & O Sqn
\n      in your statutory complaint dated 23 Set. 93 and
\n      complaint to Secy Boot of India (Min. of Def.)
\n      forwarded        vide     4     Fd      Regt     letter
\n                                      th
\n      No.27350\/RKS\/SC\/22 dated 20 May 94.\n<\/p><\/blockquote>\n
      2.    The proceedings of the staff C of I were placed
\n      before GOC 1 Corps, who after having perused the
\n      same and after due consideration found you
\n      blameworthy of having leveled the following false
\n      allegation against your then CO, Col M. Madhubani:-\n<\/p><\/blockquote>\n
      a) Pressurized you, as Presiding Officer of bd of
\n      offrs, to take over buildings of Army Avn Base,
\n      Jhansi with no obsn.\n<\/p><\/blockquote>\n
      b) The CO having taken undue favors from the civ
\n      contractors.\n<\/p><\/blockquote>\n
      c) The CO having denied you annual\/casual\/ lve to
\n      look after your handicapped mother.\n<\/p><\/blockquote>\n
      d) On 29 Oct 92, out of vengeance CO raised an
\n      incident report in violation of paras 19 and 21 of
\n      SAO4\/S\/87.\n<\/p><\/blockquote>\n
      e) CO is anti national, above the law and that he
\n      has falsified documents.\n<\/p><\/blockquote>\n
      3. You have also leveled following unfounded
\n      allegations:-\n<\/p><\/blockquote>\n
      a) letters with your forged signatures have been
\n      sent to various places, to defame you.\n<\/p><\/blockquote>\n
      b) Laid down procedures to process statutory
\n      complaint were flouted.\n<\/p><\/blockquote>\n
LPA 603\/2002                                          Page 5 of 23<\/span><\/p>\n
       c) That you were not ex for comd criterion report.\n<\/p><\/blockquote>\n
      4.   Accordingly, in pursuance with the directions
\n      of GOC 1 Corps, you are asked to show cause as to
\n      why administrative action by way of award of an
\n      appropriate censure by him, should not be taken
\n      against you for the aforesaid lapses, on your part.\n<\/p><\/blockquote>\n
      5.     Your reply, to this show cause notice, should
\n      this HQ within 30 days of receipt of this letter,
\n      failing which it shall be presumed that you have
\n      nothing to urge in your defence against the
\n      proposed actions an ex-parte decision will be taken.\n<\/p><\/blockquote>\n
      6.    A copy of the ibid C of I proceedings less
\n      findings, recommendations and directions is
\n      forwarded herewith for your perusal. The same may
\n      please be returned to this HQ along with your reply.\n<\/p><\/blockquote>\n
      7.   Please        acknowledge       receipt.”      (Emphasis
\n      Supplied)\n<\/p><\/blockquote>\n
14.   In response thereto, the appellant submitted his reply.
\nVide Office Order 22500\/16\/A1 (PC) dated 25.08.1995 the GOC
\nrejected       the   reply   of   the   appellant   and    awarded          the
\npunishment of \u201esevere displeasure (recordable)\u201f upon the
\nappellant. The Office Order dated 25.08.1995 reads as under:-\n<\/p>\n
                                  “CENSURE
\n      I have considered the reply to show cause notice
\n      submitted    by    you    vide  your     letter    NO
\n      37350\/RKS\/SC\/29 dated 11 Jun 95. You have merely
\n      confined your reply to tech aspects of the C of I and
\n      have apparently preferred yourself to the lapses
\n      mentioned in the show cause notice, despite the
\n      opportunity having been provided to you.\n<\/p><\/blockquote>\n
      2.    Being dissatisfied about the substantial
\n      compliance of AR 180 and other technical aspects
\n      of the C of I, I find you blameworthy for the lapses
\n      as mentioned in the show cause notice.\n<\/p><\/blockquote>\n
LPA 603\/2002                                                 Page 6 of 23<\/span><\/p>\n
       3.   I, therefore, hereby convey to you my “Severe
\n      Displeasure (To be recorded”) for the same.”
\n      (Emphasis Supplied)\n<\/p><\/blockquote>\n
15.   After the penalty was levied, at three consecutive
\nselection boards, where the ACRs of the petitioner were
\nconsidered and the penalty inflicted was taken note of,
\nappellant could not earn a promotion to the next higher rank
\nof Lt.Colonel.\n<\/p>\n
16.   Aggrieved by the action of the Selection Board of not
\npromoting him to the rank of Lt. Colonel, the appellant filed a
\nwrit petition which was registered as W.P.(C)No.463\/1998,
\ninter-alia praying that: – (i) the appellant be promoted to the
\nrank of Lt.Colonel from a retrospective date; (ii) the order
\ndated 25.08.1995 awarding punishment of severe displeasure
\nupon the appellant be quashed or not looked into by the
\nSelection Board while considering the appellant for promotion
\nto the rank of Lt.Colonel; and (iii) ACRs of the appellant for the
\nyears 1991-1992 and 1992-1993 be quashed or not looked
\ninto by the Selection Board while considering the appellant for
\npromotion to the rank of Lt.Colonel.\n<\/p>\n
17.    A perusal of the impugned judgment passed by the
\nlearned Single Judge evidences that three grounds were
\nadvanced on behalf of the appellant before the learned Single
\nJudge:- (i) The grading awarded in the ACRs to the appellant
\nbeing below benchmark were required to be communicated to
\nthe appellant and being not communicated could not be
\nconsidered by the Selection Boards; (ii) the findings and
\ndirections of the Court of Inquiry is illegal for the reason the<\/p>\n
LPA 603\/2002                                         Page 7 of 23<\/span>
\n proceedings of the Court of Inquiry were held in violation of
\nRule 180 of Army Rules 1954 which mandatorily requires that
\nwhenever any            inquiry   affects the character or          military
\nreputation of an officer, full opportunity must be given to such
\nofficer of being present throughout the inquiry and of cross-
\nexamining any witness whose evidence affects his character
\nand    military    reputation;     while     in   the   instant   case       the
\nstatements of the witnesses Nos.2 to 6 were recorded by the
\nCourt of Inquiry in the absence of the appellant and that the
\nCourt of Inquiry did not give an opportunity to the appellant to
\ncross-examine witnesses Nos.2,3,4 and 6 and as consequence
\nthereof the show cause notice dated 28.04.1995 issued to the
\nappellant as also the order dated 25.08.1995 awarding the
\npunishment of severe displeasure upon the appellant is also
\nillegal inasmuch as the findings and directions of the Court of
\nInquiry formed the very basis of the said show cause notice
\nand the order; (iii) while issuing the show cause notice dated
\n28.04.1995 it was incumbent upon GOC to have supplied the
\nfindings and directions of the Court of Inquiry to the appellant
\nas the said documents formed the very basis of the case set
\nup    against     the    appellant;   that    the   non-supply     of    said
\ndocuments to the appellant has resulted in violation of rules of
\nnatural justice and thus the order dated 25.08.1995 awarding
\npunishment of severe displeasure by way of censure to the
\nappellant is liable to be quashed.\n<\/p>\n
18.    Vide judgment dated 15.02.2002 the learned Single
\nJudge dismissed the petition filed by the appellant. With
\nrespect to ground (i), it was held by the Single Judge that in<\/p>\n
LPA 603\/2002                                                  Page 8 of 23<\/span>
\n view of the fact that the department allowed the statutory
\ncomplaint dated 23.09.1993 made by the appellant to a
\nlimited extent and expunged the adverse remarks contained in
\nthe ACR of the appellant for the year 1992-1993 the question
\nof communication of adverse remarks contained in the ACR to
\nthe appellant does not arise at all in the present case. With
\nrespect to ground (ii), it was held by the Single Judge that the
\nCourt of Inquiry was held to inquire into the conduct of
\nrespondent No.6 and not the appellant and thus it was not
\nnecessary to give an opportunity to the appellant to remain
\npresent throughout the inquiry or to cross-examine all the
\nwitnesses examined before the Court of Inquiry. However
\nwhen the witnesses made statements which had a tendency to
\naffect the character or military reputation of the appellant it
\nwas obligatory on the part of the Court of Inquiry to give an
\nopportunity to the appellant to cross-examine the said
\nwitnesses, which opportunity was given and availed by the
\nappellant. In such circumstances, it cannot be held that the
\nproceedings of the Court of Inquiry were held in violation of
\nRule 180 of Army Rules 1954. With respect to ground (iii), it
\nwas held by the Single Judge that Rule 184 of Army Rules 1954
\nwhen read in light of dictum of law laid down by Supreme
\nCourt in the decision reported as Major General Inder Jit Kumar
\nv Union of India (1997) 9 SCC 1 shows that the appellant was
\nnot entitled to be supplied with the findings, recommendations
\nand directions of the Court of Inquiry along with the show
\ncause notice dated 28.04.1995 and thus there is no violation of
\nthe rules of natural justice. In any case, the order dated
\n25.08.1995 awarding punishment of severe displeasure upon
\nLPA 603\/2002                                        Page 9 of 23<\/span>
\n the appellant was not “merely” based on the findings of the
\nCourt of Inquiry; the appellant was given a full opportunity to
\ndefend himself and put forward his case before the competent
\nauthority and the order dated 25.08.1995 was passed by the
\ncompetent authority after due consideration of the reply
\nsubmitted by the appellant in response to the show cause
\nnotice dated 28.04.1995.\n<\/p>\n
19.   Aggrieved by the judgment dated 15.02.2002 passed by
\nthe Single Judge the appellant has filed the present appeal.\n<\/p>\n
20.   During the hearing of the appeal, learned counsel
\nappearing for the appellant challenged before us the decision
\nof the Single Judge with respect to grounds nos. (ii) and (iii). As
\nregards ground (i) leaned counsel conceded that as regards
\nmembers of the Armed Forces the law laid down by the
\nSupreme Court is that below benchmark ACR gradings have
\nnot be conveyed to the officer concerned.        With respect to
\nground (ii), it was urged by learned counsel for the appellant
\nthat the Single Judge failed to appreciate that since the Inquiry
\nin question was conducted to investigate into the allegations
\nleveled by the appellant against respondent No.6, in was
\nimplicit that if the allegation was held to be without any basis
\nthe effect thereof would have been affecting the military
\nreputation of the appellant, wherefrom adverse consequences
\ncould flow; and indeed subsequent events have shown that
\nadverse consequences did flow and thus counsel urged that
\nqua the appellant Rule 180 of the Army Rules 1954 was liable
\nto be fully complied with.       In support of the said plea,
\nparticular emphasis was placed by the learned counsel on the
\nLPA 603\/2002                                          Page 10 of 23<\/span>
\n decision dated 3.9.2007 of a Division Bench of this Court in
\nW.P.(C) No.4393\/2007 \u201eMajor General B.P.S. Mander v Union of
\nIndia & Ors\u201f. With respect to ground (iii), learned counsel for
\nthe appellant urged that the learned Single Judge has not
\ncorrectly appreciated the tenor of Rule 184 of Army Rules
\n1954 and the dictum of law laid down by Supreme Court in
\nMajor General Inder Jit Kumar\u201fs case (supra) and has wrongly
\ncome to the conclusion that the petitioner was not entitled to
\nbe supplied with the findings, recommendations and directions
\nof the Court of Inquiry along with the show cause notice dated
\n28.04.1995.\n<\/p>\n
Ground No. (ii)<\/p>\n
21.   As evident from the foregoing paras, the ground (ii)
\nadvanced       by   the learned   counsel for the appellant is
\npredicated upon Rule 180 of the Army Rules, 1954, which
\nreads as under:-\n<\/p>\n
      “180. Procedure when character of a person
\n      subject to the Act is involved – Save in the case
\n      of a prisoner of war who is still absent whenever
\n      any inquiry affects the character or military
\n      reputation of a person subject to the Act, full
\n      opportunity must be afforded to such person of
\n      being present throughout the inquiry and of making
\n      any statement, and of giving any evidence he may
\n      wish to make or give, and of cross-examining any
\n      witness whose evidence in his directions, affects his
\n      character or military reputation and producing any
\n      witnesses in defence of his character or military
\n      reputation.\n<\/p><\/blockquote>\n
      The presiding officer of the court shall take such
\n      steps as may be necessary to ensure that any such
\n      person so affected and not previously notified
\nLPA 603\/2002                                        Page 11 of 23<\/span>
\n       receives notice of and fully understands his rights,
\n      under this rule.”\n<\/p><\/blockquote>\n
22.   A bare reading of Rule 180 shows that the sine qua non
\nfor application of Rule 180 in respect of a person in an inquiry
\nis that the inquiry must affect or likely to affect the character
\nor military reputation of that person. The necessary corollary
\nthereof is that Rule 180 should be applied from the time when
\nthe inquiry affects or is likely to affect the character or military
\nreputation of a person. Where an inquiry is directed against a
\nspecific person Rule 180 should be applied in respect of said
\nperson from the very inception of the inquiry for in such a case
\nthe character or military reputation of the said person would
\nbe affected or likely to be affected from the very inception of
\nthe inception of the inquiry. However where an inquiry is a
\ngeneral inquiry and not directed against any individual but
\naffects or likely to affect character or military reputation of a
\nperson Rule 180 should be applied in respect of such person
\nfrom the time the inquiry affects or is likely to affect his
\ncharacter or military reputation for in such a case the
\ncharacter or military reputation of the said person would be
\naffected or likely to be affected only during the course of the
\ninquiry and not from the very inception of the inquiry. Similarly
\nwhere an inquiry is directed against a person but affects or is
\nlikely to affect the character or military reputation of another
\nperson Rule 180 should be applied in respect of such other
\nperson from the time the inquiry affects or likely to affect his
\ncharacter or military reputation.\n<\/p>\n
LPA 603\/2002                                           Page 12 of 23<\/span><\/p>\n
 23.   In W.P.(C) No.11839\/2006 \u201eLt.Gen.Surender Kumar Sahni
\nv Chief of Army Staff & Ors\u201f decided on 11.01.2007 a general
\nCourt of Inquiry was convened to investigate into the
\nirregularities committed in the procurement of rations for the
\narmy. The petitioner who was working as Director General of
\nSupply and Transport Service of Army Corps was summoned
\nas a witness in the said inquiry. The Court of Inquiry
\nrecommended the initiation of the disciplinary proceedings
\nagainst the petitioner. The petitioner filed a petition under
\nArticles 226 and 227 of Constitution of India before a Division
\nBench of this Court challenging the recommendations of the
\nCourt of Inquiry primarily on the ground that the Court of
\nInquiry did not apply Rule 180 qua the petitioner. It was held
\nby the Division Bench that the Court of Inquiry committed an
\nillegality in not applying Rule 180 in respect of the petitioner
\nduring the inquiry even though the inquiry in question affected
\nthe character and military reputation of the petitioner. While
\ninterpreting Rule 180, the Division Bench observed as under:-\n<\/p>\n
      “26. Holding of a court of enquiry may not be
\n      essential and would be at the discretion of the
\n      competent authority but once the authority
\n      exercises its powers to hold such an enquiry and
\n      where the enquiry affects or is likely to affect the
\n      character or military reputation of a person subject
\n      to the Act, then compliance to the requirements of
\n      Rule 180 would be mandatory. The language of the
\n      Rule is certain and unambiguous, capable of only
\n      one interpretation i.e. that to afford a full
\n      opportunity in terms of this provision is the
\n      responsibility of the competent authority. This
\n      obligation and burden is incapable of being shifted
\n      at the initial stage. Once an opportunity is afforded
\n      at the initial stage then it is for the concerned
\nLPA 603\/2002                                        Page 13 of 23<\/span>
\n       Officer whose character or military reputation is
\n      being affected or is likely to be affected, to exercise
\n      the option in regard to what evidence he wishes to
\n      give, which witnesses he wishes to cross-examine
\n      and what defense, if any, he wishes to lead. These
\n      are the matters which squarely fall for decision
\n      within the domain of the concerned person subject
\n      to the Act. The arguments advanced on behalf of
\n      the respondents that the obligation and onus lies
\n      upon the delinquent to ask for the protection or
\n      opportunity in terms of the provisions is ex facie
\n      contrary to the spirit of the provision. Neither the
\n      Rule does attempt such an interpretation nor does
\n      it suggest such a course of action. Even in normal
\n      course such an approach is incapable of being
\n      implemented in actual practice. Initiation of an
\n      enquiry as contemplated under Rule 180 lies in the
\n      discretion of the competent authority and there
\n      would be no occasion for an Officer to ask for a
\n      protection or rights available to him under this rule,
\n      without notice. Thus, to notify the officer concerned
\n      of initiation of such proceedings or the likelihood of
\n      his reputation or character being affected in the
\n      process of the enquiry would undoubtedly be the
\n      duty of the competent authority.\n<\/p><\/blockquote>\n
      27. The language used by the framers of the Rule in
\n      no way supports the contention raised on behalf of
\n      the respondents that on its correct dissection, the
\n      Rule places a mandatory obligation upon the person
\n      subject to the Army Act to ask for the grant of
\n      protection specified in the Rule. The Rule enjoins
\n      upon the concerned authorities an unequivocal duty
\n      to give notice and provide full opportunity to the
\n      person whose character or military reputation is
\n      likely to be affected by the enquiry in terms of Rule\n<\/p><\/blockquote>\n
      180. Of course, it also places a burden upon such
\n      an officer as to what extent and how he wishes to
\n      exercise the opportunity provided to him. The
\n      option to cross-examine the witnesses produced,
\n      which witnesses he wishes to examine and what
\n      evidence he wishes to lead as defense, are the
\n      basic features in relation to which he has to
\nLPA 603\/2002                                          Page 14 of 23<\/span>
\n       exercise his choice and to that extent the Rule does
\n      place an obligation upon the delinquent person.
\n      This burden no way displaces or reduces the
\n      significance of the duties of the authorities and
\n      protections available to the Officer. The one in no
\n      way destroys or diminishes the obligatory value of
\n      the other. Whatever be the stage of the
\n      proceedings and whenever the enquiry is likely to
\n      affect or affects the character or military reputation
\n      of a person, at that very moment, it is required of
\n      the authority to sincerely and objectively comply
\n      with the requirements of the Rule.” (Emphasis
\n      Supplied)<\/p>\n<\/blockquote>\n
24.   The aforesaid decision, particularly the observations
\nemphasized by us, brings out that Rule 180 is to be applied in
\nrespect of a person in an inquiry only from the time such
\ninquiry affects or is likely to affect the character of military
\nreputation of said person.\n<\/p>\n
25.   In the backdrop of aforesaid anvil of law, we proceed to
\nexamine that whether the Court of Inquiry was required to
\napply Rule 180 qua the appellant throughout the inquiry?\n<\/p>\n
26.   In the instant case, the Court of Inquiry was convened to
\ninvestigate into the allegations leveled by the appellant
\nagainst the respondent No.6. The main allegation leveled by
\nthe appellant against the respondent No.6 was that the
\nrespondent No.6 had taken bribe from the contractors who had
\nconstructed the buildings for the defence personnel and
\nwanted the appellant to not to report the deficiencies in the
\nconstruction of the said buildings and that upon the appellant
\nrefusal to do so out of vengeance the respondent No.6 gave
\nlow grading to the appellant in his ACR for the year 1992-1993<\/p>\n
LPA 603\/2002                                         Page 15 of 23<\/span>
\n as also influenced the respondent No.5 to give low grading to
\nthe appellant in his ACR for the period for the year 1991-1992.
\nThus, the primary task of the Court of Inquiry was to probe
\nwhether the respondent No.6 had indulged in corrupt practices
\nby taking bribe from the contractors. While probing the same,
\nsome material came to the knowledge of the Court of Inquiry
\npointing towards the fact that the appellant had leveled false
\nallegations against the respondent No.6 with an ulterior motive
\nand to harass the respondent No.6. In that view of the matter,
\nthe inquiry conducted by the Court of Inquiry can be divided
\ninto two distinct periods. During the first period, the Court of
\nInquiry was probing into the allegations of acceptance of
\nbribery leveled against the respondent No.6. During that
\nperiod, the inquiry only affected the character and military
\nreputation of the respondent No.6 and in no way whatsoever,
\nwhether directly or indirectly, affected or was likely to affect
\nthe character or military reputation of the appellant and thus
\nthe Court of Inquiry was not required to apply Rule 180 qua
\nthe appellant. During the second period, the inquiry invariably
\nwas likely to affect the character or military reputation of the
\nappellant thus the Court of Inquiry was duty bound to apply
\nRule 180 qua the appellant during that period of the inquiry
\nand the needful was done by the Court of Inquiry.\n<\/p>\n
27.   In view of the above discussion, we find no merit in the
\nground No. (ii) advanced by the learned counsel for the
\nappellant.\n<\/p>\n
Ground No. (iii)<\/p>\n
LPA 603\/2002                                        Page 16 of 23<\/span>\n<\/p>\n
 28.   Whether      the      non-supply      of     the       findings,
\nrecommendations and directions of the Court of Inquiry to the
\npetitioner along with the show cause notice dated 28.04.1995
\nhas resulted in the violation of rules of natural justice and
\nvitiated the said show cause notice?\n<\/p>\n
29.   The punishment of censure by way of severe displeasure
\nhas not been prescribed as a punishment in the Army Act. The
\nsource of punishment of censure by way of severe displeasure
\nis to be found in the instructions contained in the letter
\nNo.32908\/AG\/DV-1 dated 05.01.1989 issued by the Adjunct
\nGeneral, the relevant portion whereof reads as under:-\n<\/p>\n
      “2. The award of censure to an Officer or JCO is an
\n      administrative action, in accordance with the
\n      customs of the service. It takes form of “Severe
\n      Displeasure (either recordable or otherwise) or
\n      “Displeasure” of the officer awarding the censure,
\n      as specified in the succeeding paragraphs.
\n      ….\n<\/p><\/blockquote>\n
      5.    Censure is awardable where the act, conduct
\n      or commission is of minor nature, both in nature
\n      and gravity. An offence of serious nature under the
\n      Army Act will not be disposed of by award of
\n      censure but will be dealt with by initiating a
\n      disciplinary action. Attention, in particular, is invited
\n      to para 432 of the Regulations for the Army, 1962,
\n      which stipulates that persons committing offences
\n      involving moral turpitude, fraud, theft, dishonesty
\n      and culpable negligence involving financial loss to
\n      public or regimental property must be tried by a
\n      court martial or prosecuted in a Civil court. Such
\n      cases will not be disposed summarily or by
\n      administrative action. In view of the foregoing,
\n      there should be no occasion for offences involving
\n      moral turpitude, misappropriation, financial or other<\/p>\n
LPA 603\/2002                                             Page 17 of 23<\/span>
\n       offences of serious nature being dealt with by
\n      award of censure when disciplinary action is
\n      feasible\/possible. If for some reason, a case of this
\n      nature does come across, where trial is inexpedient
\n      or   impracticable,      administrative  action   for
\n      termination of service of the delinquent person
\n      should be initiated.\n<\/p><\/blockquote>\n
      6.    Cases which are not of minor nature and
\n      which do not involve moral turpitude, fraud, theft
\n      and dishonest and where trial by GCM is either not
\n      practicable either being time-barred or is not
\n      expedient due to other reasons may in appropriate
\n      cases at the discretion of the GOC-in-C be
\n      forwarded to Army Headquarters for consideration
\n      to award of censure by the COAS, so as to avoid
\n      resorting to the extreme step of action under the
\n      provisions of Army Act Section 19 read with Army
\n      Rule 14.” (Emphasis Supplied)\n<\/p><\/blockquote>\n
30.     The validity of the afore-noted letter dated 05.01.1989
\ncame up for consideration before a Division Bench of Himachal
\nPradesh High Court in the decision reported as Brigadier J.S.
\nSivia v Union of India & Ors (1994) 1 LLJ 906 HP wherein it was
\nheld that the aforesaid letter has no legal sanction and thus
\nChief of Army Staff or other senior officers has no power to
\naward     punishment of   censure   to any    officer or Junior
\nCommissioned Officer.\n<\/p>\n
31.   The correctness of the afore-noted decision of Himachal
\nPradesh High Court came up for consideration before Supreme
\nCourt in the decision reported as Union of India & Ors v
\nBrigadier J.S. Sivia 1996 MLJ SC 3. After examining various
\nprovisions of Army Act, 1950 and Army Rules, 1954, it was
\nheld by the Court that the view taken by the Himachal Pradash
\nHigh Court that the aforesaid letter dated 05.01.1989 issued<\/p>\n
LPA 603\/2002                                        Page 18 of 23<\/span>
\n by Adjunct General is incorrect. The relevant observations of
\nSupreme Court are being noted herein under for a ready
\nreference:-\n<\/p>\n
      “8. It is obvious from various documents mentioned
\n      above that the award of censure is being regulated
\n      by \u201eCustoms of the service.” The Army Order dated
\n      January 24, 1942 takes us to August 26, 1927 and
\n      as such there is reasonable basis to assume that
\n      the award of censure is being governed by the
\n      “Customs of the service” right from the inception of
\n      the Indian Army. That being the position the award
\n      of censure is the binding rule of the army service.
\n      Section 3(v) of the Act and Regulations 9 of the
\n      Regulations recognize the existence of “customs of
\n      the service”. The definition of “Commanding
\n      Officer” clearly says that in the discharge of his
\n      duties as a Commanding Officer, he has to abide by
\n      the “customs of the service”. Similarly Regulation 9
\n      which lays down the duties of the Commanding
\n      Officer, specifically says that the Commanding
\n      Officer has to discharge his functions keeping in
\n      view the regulations and the \u201ecustoms of the
\n      service\u201f. From the scheme of the Act, Rules,
\n      Regulations and the various Army orders issued
\n      from time to time, it is clearly beyond doubt that
\n      the award of censure is a part of the custom of the
\n      Army and has the binding force.” (Emphasis
\n      Supplied)<\/p>\n<\/blockquote>\n
32.   From the aforesaid, it is clear beyond doubt that the
\naward of punishment of censure by way of severe displeasure
\nto    an   officer   or   Junior   Commissioned   Officer   is       an
\nadministrative action.\n<\/p>\n
33.   Rules of “natural justice” are not embodied rules. The
\nphrase “natural justice” is also not capable of a precise
\ndefinition. The underlying principle of natural justice evolved<\/p>\n
LPA 603\/2002                                         Page 19 of 23<\/span>
\n under the common law, is to check arbitrary exercise of power
\nby the State and its functionaries. Therefore, the rules of
\nnatural justice imply a duty to act fairly i.e. fair play in action.
\nInitially, it was the general view that the rules of natural justice
\nwould apply to judicial or quasi-judicial proceedings and not to
\nan administrative action. However, in the decision reported as
\nState of Orissa v Dr. Binapani Dei AIR 1967 SC 1267 the
\ndistinction between quasi-judicial and administrative decisions
\nwas perceptively mitigated and it was held that even an
\nadministrative order or decision in the matters involving civil
\nconsequences, has to be made consistent with rules of natural
\njustice. Since then the concept of natural justice has made
\ngreat strides and is invariably read into administrative actions,
\ninvolving civil consequences.\n<\/p>\n
34.   Rules    of     natural    justice     require     that          an
\nadjudicating\/administrative     authority     should     afford         a
\nreasonable opportunity of being heard to a party. The
\nexpression “reasonable opportunity of being heard” implies
\nthat the authority should: – (i) give all information as to the
\nnature of the case which the party has to meet; (ii) supply all
\ninformation, evidence or material which the authority wishes
\nto use against the party; (iii) receive all relevant materials
\nwhich the party wishes to produce in support of its case and\n<\/p>\n
(iv) give an opportunity to the party to rebut adverse
\ninformation, evidence or material appearing against such
\nparty.\n<\/p>\n
35.   In the instant case, in view of the fact that the award of
\npunishment is an administrative action it was incumbent upon
\nLPA 603\/2002                                           Page 20 of 23<\/span>
\n the GOC to observe the rules of natural justice while awarding
\nsaid punishment to the appellant. A bare reading of the show
\ncause     notice   dated   28.04.1995    and   the   order    dated
\n25.08.1995, extracted in foregoing paras, shows that the
\nfindings, directions and recommendation of the Court of
\nInquiry weighed heavily with the GOC in awarding punishment
\nof censure to the appellant. In such circumstances, the rules of
\nnatural justice require that the GOC ought to have supplied the
\nfindings, directions and recommendations of the Court of
\nInquiry to the appellant along with the show cause notice
\ndated 28.04.1995. The non-supply of the said documents to
\nthe appellant implies that the appellant has not been granted
\na reasonable opportunity of being heard and has resulted in
\nviolation of rules of natural justice.\n<\/p>\n
36.   Before proceeding further, let us analyze Rule 184 of
\nArmy Rules relied upon by the Single Judge to justify non-
\nsupply of the findings, recommendations and directions of the
\nCourt of Inquiry to the appellant. Rule 184 of the Army Rules
\nreads as under:-\n<\/p>\n
      “184. Right of certain persons to copies of
\n      statements and documents – (1) Any person
\n      subject to the Act who is tried by a court-martial
\n      shall be entitled to copies of such statements and
\n      documents contained in the proceedings of a court
\n      of inquiry, as are relevant to his prosecution or
\n      defence at his trial.\n<\/p><\/blockquote>\n
      (2) Any person subject to the Act whose character or
\n      military reputation is affected by the evidence
\n      before a court of inquiry shall be entitled to copies of
\n      such statements and documents as have a bearing
\n      on his character or military reputation as aforesaid
\nLPA 603\/2002                                          Page 21 of 23<\/span>
\n       unless the Chief of Army Staff for reasons recorded
\n      by him in writing, orders otherwise.” (Emphasis
\n      Supplied)\n<\/p><\/blockquote>\n
37.   As noted in foregoing paras, clause (1) of Rule 184 was
\nread by the Single Judge to mean that a person is not entitled
\nto receive the findings\/recommendations of the Court of
\nInquiry. In this regards, suffice would it be to state that the
\nlearned Single Judge failed to note that Rule 184 is applicable
\nin cases where a person is tried by the Court Martial, which
\nwas not the position in the instant case.\n<\/p>\n
38.   The sum and substance of the above discussion is that
\nthe order dated 25.08.1995 passed by the GOC awarding
\npunishment of censure by way of severe displeasure to the
\nappellant is liable to be quashed as the same is violative of
\nrules of natural justice. Ordered accordingly.\n<\/p>\n
39.   It would be open to the respondents to take corrective
\naction     by   supplying   to   the   appellant   the   findings,
\nrecommendations and directions of the Court of Inquiry
\nincluding the evidence recorded during the Court of Inquiry
\nand thereafter permit the appellant to file a response to the
\nshow cause notice issued to him and in light of the response
\nfiled to pass a fresh order.\n<\/p>\n
40.   Should the respondents choose to proceed ahead as
\naforesaid, depending upon the final order passed further
\naction would be taken.           If the final order inflicts an
\nadministrative punishment upon the appellant, that would be
\nthe end of the matter as regards the respondents. But, should
\nthe respondent choose not to proceed ahead or after
\nLPA 603\/2002                                         Page 22 of 23<\/span>
\n proceeding ahead inflict no administrative punishment upon
\nthe appellant, Review Selection Board be constituted to
\nconsider the candidature of the appellant for promotion to the
\nrank of Lt.Colonel and needless to state the Review Selection
\nBoard would not consider the penalty imposed upon the
\nappellant.\n<\/p>\n
41.   The appeal is allowed in terms of paras 38 to 40 above.\n<\/p>\n
42.   There shall be no order as to costs.\n<\/p>\n
                                      (PRADEEP NANDRAJOG)
\n                                             JUDGE<\/p>\n
                                             (SURESH KAIT)
\n                                                 JUDGE<\/p>\n
FEBRUARY 17, 2011
\nmm<\/p>\n
LPA 603\/2002                                         Page 23 of 23<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Maj.R.K.Sareen vs Uoi & Ors. on 17 February, 2011 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 6th January, 2011 Judgment Delivered On: 17th February, 2011 + LPA 603\/2002 MAJ.R.K.SAREEN ….. Petitioner Through: Ms.Rekha Palli, Advocate versus UOI & ORS. ….. Respondents Through: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-108880","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMaj.R.K.Sareen vs Uoi & Ors. on 17 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maj-r-k-sareen-vs-uoi-ors-on-17-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maj.R.K.Sareen vs Uoi & Ors. on 17 February, 2011 - 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