Supreme Court Upholds “Severe Displeasure” for Officer’s Misconduct: Union of India vs. Lt. Col. Kuldeep Yadav (25 September 2019)

Introduction

Date of the Judgment: 25 September 2019
Citation: Civil Appeal No(s). 7603 of 2019 (Arising out of Civil Appeal Diary No.17096 of 2017)
Judges: A.M. Khanwilkar, J., Ajay Rastogi, J.

Can a disciplinary tribunal substitute its own judgment for that of a competent authority regarding the severity of punishment? The Supreme Court of India recently addressed this question in a case involving a Lieutenant Colonel who was censured for violating rules regarding contact with foreign nationals. The core issue was whether the Armed Forces Tribunal (AFT) was justified in interfering with the Army’s decision to award “Severe Displeasure (Recordable)” to the officer. The Supreme Court bench, comprising Justices A.M. Khanwilkar and Ajay Rastogi, delivered the judgment.

Case Background

Lt. Col. Kuldeep Yadav was commissioned in the Army Corps of Electronics and Mechanical Engineering (EME) on December 6, 1997. He was posted to UNDOF, Golan Heights, from July 5, 2008, to July 4, 2009, where he came into contact with Ms. De Oliviera Sueli Montilha, a Brazilian national working for a UN subcontractor. After his posting at UNDOF, he was posted at Headquarters Counter Insurgency Force (U) (HQ CIF (U)) w.e.f. July 5, 2009, as AQMG. He was later detailed for an Officers Advance Computer Technical (OACT) course at Military College of Electronics and Mechanical Engineering (MCEME), Secunderabad, from June 4, 2011, to March 23, 2012.

The officer maintained contact with Ms. Sueli through emails, calls, and personal meetings from 2009 to 2011 and also stayed with her at the Army premises in Goa from October 12, 2011, to October 15, 2011. This led to a Staff Court of Inquiry, which found him in violation of the “Instructions on Contact with Foreign Nationals, 1987”. A show-cause notice was issued on January 25, 2013, for these violations.

Timeline

Course of Proceedings

A Staff Court of Inquiry was convened to investigate the circumstances of Lt. Col. Yadav’s contact with Ms. Sueli. Following the inquiry, a show-cause notice was issued on January 25, 2013, citing violations of the 1987 Instructions on Contact with Foreign Nationals and instructions on internet use by Army personnel. The competent authority, after considering his response, found him blameworthy and conveyed “Severe Displeasure (Recordable)” on May 10, 2013.

Lt. Col. Yadav filed a statutory complaint, which was rejected on February 26, 2014. He then approached the Armed Forces Tribunal (AFT), which initially upheld the show cause notice and the findings of the inquiry. However, the AFT eventually interfered with the punishment, finding “Severe Displeasure (Recordable)” to be excessive. This decision by the AFT led to the present appeal before the Supreme Court.

Legal Framework

The case primarily revolves around the “Instructions on Contact with Foreign Nationals, 1987,” which regulates interactions between Indian Army personnel and foreign nationals. The show cause notice also cited violations of instructions on internet use by Army personnel issued by the Directorate General of Military Intelligence.

The relevant provisions of the “Instructions on Contact with Foreign Nationals, 1987” that Lt. Col. Yadav was found to have violated are:

• Paragraphs 7, 13, 44, and 45 which deal with unauthorized contact with foreign nationals.

The instructions on internet use by Army personnel, issued by the Directorate General of Military Intelligence, Integrated Headquarters of Ministry of Defence (Army) vide their letter No. A/38024/1/MI-11 dated 03 October 2011, were also cited.

Arguments

Appellant (Union of India):

• Argued that the Armed Forces Tribunal (AFT) should not have interfered with the disciplinary authority’s decision on punishment.
• Stated that the quantum and nature of punishment are the sole prerogative of the disciplinary authority.
• Maintained that the punishment awarded was not shockingly disproportionate and was justified given the officer’s misconduct.
• Emphasized the seriousness of the officer’s actions, which included maintaining contact with a foreign national for two years, facilitating her visit to India, and staying with her in an Army mess by providing false information.
• Cited previous judgments to support the argument that the Tribunal should not substitute its own view for the disciplinary authority’s satisfaction.
• Asserted that the officer’s good service record does not negate the seriousness of his indiscretion, which could have had national security implications.

Respondent (Lt. Col. Kuldeep Yadav):

• Argued that the AFT was correct in interfering with the punishment, as “Severe Displeasure (Recordable)” was too harsh.
• Claimed that the show cause notice was flawed and based on a misapplication of the 1987 and 2011 Instructions.
• Stated that the competent authority had found his lapses to be of a minor nature, not warranting severe punishment.
• Contended that the documents on his laptop were not classified and that the allegation of potential access to classified information by a foreign national was not substantiated.
• Argued that the punishment had a punitive effect on his career progression.
• Maintained that the AFT should have substituted the punishment with a lesser form of censure rather than remanding the matter to the competent authority.
• Submitted that the GOC-in-C, Southern Command, had found the lapses to be of a minor nature.
• Cited that the Tribunal also noted that the documents on the respondent’s laptop were not classified documents.
• Claimed that the punishment was shockingly disproportionate and that the Tribunal was justified in taking the view that even if it was a case of censure, awarding of Severe Displeasure (Recordable) was excessive.

The innovativeness of the argument by the respondent lies in the fact that the respondent argued that the Tribunal should have substituted the punishment with a lesser form of censure rather than remanding the matter to the competent authority.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the Armed Forces Tribunal, despite noting that the punishment of censure awarded by the competent authority cannot be faulted, ought to have interfered on the ground that “Severe Displeasure (Recordable)” was not commensurate and excessive in the facts of the present case.
2. Whether the approach adopted by the Tribunal entails sitting over the subjective satisfaction of the competent authority in the matter of awarding punishment.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court:

• The Supreme Court relied on Ranjit Thakur Vs. Union of India and Others [1987] 4 SCC 611* to emphasize that the Tribunal should not interfere with the disciplinary authority’s decision unless it is shockingly disproportionate.
• The Court used B.C. Chaturvedi Vs. Union of India and Others [1995] 6 SCC 749*, Union of India Vs. Parma Nanda [1989] 2 SCC 177*, and General Court-Martial and Others Vs. Col. Aniltej Singh Dhaliwal [1998] 1 SCC 756*, and S.R. Tewari Vs. Union of India and Another [2013] 6 SCC 602* to support the principle that the Tribunal should not act as a court of appeal and substitute its own view for that of the disciplinary authority.
• The Court cited Union of India and Others Vs. Bodupalli Gopalaswami [2011] 13 SCC 553*, Mithilesh Singh Vs. Union of India and Others [2003] 3 SCC 309*, and Union of India and Others Vs. Dwarka Prasad Tiwari [2006] 10 SCC 388* to reinforce that the Tribunal’s power to interfere is limited to cases where the punishment is shockingly disproportionate.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The seriousness of the officer’s misconduct, which included maintaining contact with a foreign national for two years, facilitating her visit to India, and staying with her in an Army mess by providing false information.
• The principle that the disciplinary authority’s decision should be respected unless it is shockingly disproportionate or perverse.
• The fact that the officer had admitted to the allegations made against him in the show cause notice.
• The fact that the Tribunal had erred in substituting its own view for that of the competent authority.

Fact:Law Ratio:

The Supreme Court’s reasoning involved a step-by-step analysis of the facts and the applicable legal principles. The Court first examined the facts of the case, including the officer’s misconduct and the disciplinary proceedings. It then considered the legal framework, including the relevant policies and precedents. Finally, the Court applied the legal principles to the facts of the case and concluded that the Tribunal had erred in interfering with the disciplinary authority’s decision.

The court considered the argument that the punishment was shockingly disproportionate but rejected it, stating that the punishment was commensurate with the seriousness of the misconduct. The Court also rejected the argument that the Tribunal should have substituted the punishment with a lesser form of censure, stating that the Tribunal should not act as a court of appeal.

The Supreme Court’s final decision was to set aside the Tribunal’s order and restore the decision of the competent authority, including the award of “Severe Displeasure (Recordable)”.

“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.”

“Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal.”

“We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent… the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.”

Key Takeaways

✓ The Armed Forces Tribunal should not interfere with the disciplinary authority’s decision unless the punishment is shockingly disproportionate.

✓ The subjective satisfaction of the disciplinary authority in awarding punishment should be respected.

✓ Army personnel must adhere strictly to the rules regarding contact with foreign nationals and the use of the internet.

✓ Misconduct, even if not involving moral turpitude, can result in serious disciplinary action.

✓ A good service record does not negate the seriousness of misconduct.

This judgment reinforces the importance of respecting the disciplinary authority’s decision and the consequences of misconduct for Army personnel. It also clarifies the limited scope of the Tribunal’s power to interfere with disciplinary actions.

Directions

The Supreme Court quashed and set aside the impugned judgment and order of the Armed Forces Tribunal. The Court restored the decision of the Government of India, which had rejected the statutory complaint of the respondent and upheld the order passed by the GOC-in-C.

Specific Amendments Analysis

There were no specific amendments discussed in the judgment.

Development of Law

The ratio decidendi of this case is that the Armed Forces Tribunal should not interfere with the disciplinary authority’s decision regarding the quantum and nature of punishment unless it is shockingly disproportionate. The judgment reinforces the principle that the Tribunal should not act as a court of appeal and substitute its own view for that of the disciplinary authority. There is no change in the previous positions of law.

Conclusion

In conclusion, the Supreme Court allowed the appeal, setting aside the Armed Forces Tribunal’s decision. The Court upheld the disciplinary authority’s decision to award “Severe Displeasure (Recordable)” to Lt. Col. Kuldeep Yadav, emphasizing that the Tribunal should not interfere with such decisions unless they are shockingly disproportionate. This judgment underscores the importance of maintaining discipline within the armed forces and respecting the decisions of competent authorities.