AI Structured Summary
Not yet generated for this judgment
Judgment
Vide our detailed order of even date, we have dismissed the main OA No.115/2019. Faced with this situation, learned counsel for the applicant
makes an oral prayer for grant of leave for impugning the order of the Tribunal to the Hon'ble Supreme Court in terms of Section 31(1) of the Armed
Forces Tribunal Act, 2007.
After hearing learned counsel for the applicant and going through our order, in our considered view, there appears to be no point of law much less any
point of law of general public importance involved in the order rendered by the Tribunal, therefore prayer for grant of leave to appeal stands
dismisse4.
M.A No. 840 of 2020:
As we are considering the main 0.A on merits, we do not think it necessary to pass any order in this miscellaneous application. The M.A is, therefore,
dismissed.
0.A No. 115 of 2019:
Aggrieved by the order of the third respondent (Military Secretary, IHQ of MoD (Army)) vide signal dated 16.01.2019 keeping in abeyance his
earlier promotion-cum-posting order dated 21.12.2018 as Colonel/CO 39 EME Battalion, the applicant, an officer of Lieutenant Colonel (Lt Col) rank
from the Electrical and Mechanical Engineer (EME) Branch of the Indian Army, has filed this 0.A with the following prayers:
(a) Quash and set aside the orders issued by respondents dated 16.01.2019 and 18.01.2019 restore the promotion order dated 21.12.2018;
(b) Direct the respondents to promote the applicant as per the order dated 21.12.2018 forthwith or to promote the applicant to any other appointment
as per the organisational requirement forthwith; and
(c) Direct the respondents to grant the applicant extended joining time till the promotion of the applicant rather than posting him to the same station in
lower rank.
Brief facts of the case are that the applicant was commissioned in the [ME on 24.06.2000 and was declared fit for promotion from the rank of Lt
Col to the rank of Colonel by the No. 3 Selection Board conducted in October 2017. Subsequently, while the applicant was undergoing the Senior
Officers' EME Course at Military College of Electrical and Mechanical Engineering (MCEME) at Secunderabad, on 07.07.2018, he was arrested in a
raid by the Hyderabad Police and STF in the company of Ms. Deeksha Kushwaha at Radisson Blu Hotel, Secunderabad and FIR No. 628/2018 under
Sections 3, 4 and 5 of the Immoral Trafficking Act, 1956 and Section 370(11) of the Indian Penal Code was filed in Banjara Hills Police Station in
respect of the applicant. The applicant was released on bail and his custody handed over to Army authorities on 08.07.2018 under Section 125 of the
Army Act, 1950. It is averred by the respondents that the Inspector of Police, Banjara Hills, Hyderabad, vide his letter dated 08.07.2018, informed the
Army (MCEME) authorities that the applicant, in his confessional statement to the police during his arrest, had already admitted that he came in
contact with one Shri Janardhan Rao through one Shri Santosh and that he paid a sum of Rs.10,000/- in cash to Shri Janardhan Rao to have sex with
Ms. Deeksha Kushwaha, who was present in Room No. 518 of Radisson Blue Hotel, after which a prima facie case under the relevant sections of
the IPC was registered in respect of the applicant. A Court of Inquiry (Col) was ordered by the Army authorities on 09.07.2018, which was
completed in August 2018 and proceedings forwarded to DV Directorate, IHQ of MoD (Army) in March 2019 but the same was returned in May
2019 with directions to re-assemble the Col. Fresh Col was concluded on 14.08.2019 and Commandant, MCEME directed that any further action in
this case under the provisions of Section 125 of the Army Act be taken on completion of the investigation by the civil police and filing of charge sheet
in the Court of Additional Metropolitan Magistrate NampaIly, Hyderabad. On 14.12.2019, a letter was received from the office of the Inspector of
Police, Banjara Hills Police Station, Hyderabad to the effect that the investigation into the case had not established the involvement of the applicant
and thus, the applicant's name had been deleted from the FIR. However, a charge sheet had been filed against Shri Janardhan Rao and Shri Banothu
Prashanth. On 11.03.2020, DV Directorate intimated that, in accordance with the directions of the Chief of Army Staff, 'administrative action' in the
form of censure at the appropriate level be initiated against the applicant for 'unbecoming conduct'. DV Ban Type A was imposed on the applicant on
01.05.2020 and a show cause notice (SCN) was served on him on 18.06.2020. Hence this O.A.
Shri Rajiv Manglik, learned counsel for the applicant referred to the fact that on 21.12.2018, the respondents had issued the orders for promotion of
the applicant to the rank of Colonel and his posting as CO 39 EME Battalion (Transport), based on his approval by the No. 3 SB held in October 2017.
Further, the civil police at Hyderabad had not established his involvement in the case of immoral trafficking which was filed on 07.07.2018 and deleted
his name from the FIR subsequently, after investigations. Hence the action by the respondents to find guilt in respect of the applicant and accordingly
issue orders on 16.01.2019 to hold up his promotion-cum-posting order as Colonel/CO was unjust, arbitrary and illegal.
Learned counsel for the applicant referred to the order of this Tribunal dated 16.03.2020, whereby the respondents were directed not to undertake
further investigation into the incident of 07.07.2018 without leave of this Tribunal. Despite the same and the fact that Banjara Hills Police Station had
informed the Army authorities (MCEME) on 14.12.2019 that the Hyderabad police had not established the involvement of the applicant in the case
registered on 07.07.2018, the respondents had yet not promoted the applicant and had illegally served SCN to him on 19.06.2020. Further, the applicant
had unfairly been placed on Discipline & Vigilance (DV) ban on 01.05.2020 in contravention to the policy on the subject. Paragraphs 2, 5 and 8(b)(ii)
of the IHQ of MoD (ADG DV) policy letter dated 20.04.2020 were cited, which are reproduced as hereunder:
POLICY ON DV BAN: OFFICERS
Introduction
XX XX XXXX XXXX
 XX XX XXXX XXXX
DV Ban is imposed only when the competent disciplinary authority comes to a conclusion that prima-fade, a case is made out against an
officer. Such a situation arises as soon as the competent disciplinary authority applies its mind to the facts and circumstances of the case
and issues directions for initiation of dilsciplinary or administrative proceedings against the officer on the basis of C of I proceedings.
Imposition of DV Ban therefore has its origin in the decision of the Cdr to initiate disciplinary / administrative action against an officer.
XX XX XXXX XXXX
XX XA' XXXX XXXX
In criminal cases the DV Ban will be imposed when the charge sheet has been filed by the police in a Court after carrying out the
investigations.
xx xx xxxx xxxx
xx xx xxxx xxxx
Types of DV Ban
The undermentioned types of DV Ban will be imposed in cases as specified against each:-
(a) XX XX XXXX XX XX
(b) DV Ban Type 'C-1' and 'C-II'
XX XX XXXX
(ii) DV Ban Type C-II (Prosecution by a Civil/Criminal Court). When cognizance of an offence within the meaning of Sec 2 (1) of CrPC
1973 is taken by a Criminal / evil Court after a Charge Sheet has been filed or the officer's case is delivered to a Criminal/ Civil Court by
the competent authority under the provisions of Army Act Section 125 read with Criminal Courts and Courts Martial (Adjustment of
Jurisdiction) Rules, 1978 prosecution in a Court of Law or decision to accord sanction for criminal prosecution has been taken by the
competent authority, the officer will be put on DV Ban type Ban 'C'. In case of cognisable offences under Sec 2(c) of CrPC of 1973, DV Ban
Type 'C' will be imposed if the officer is arrested by the police.
xxxx xxxx
(emphasis supplied)
Thus, learned counsel contended that the DV Ban imposed on the applicant is in contravention to existing policy, considering that the removal of the
applicant's name from the charge sheet tantamounts to his exoneration by the civil court.
Reliance was placed on the order dated 01.10.2013 of Armed Forces Tribunal, Regional Bench, Lucknow in the matter of Col. M.J. Kumar v.
Union of India and others (0.A No. 44 of 2013). Relevant portions of the said order are reproduced herein for reference:
Ld. Counsel for applicant has further submitted that a fresh complaint on the same ground was lodged by Lt Col Anil Chawla on
29.06.2011 when applicant's result was de-classified on 01.06.2011 and he was approved. It is pertinent to note that forwarding of the
complaints twice, first time when the applicant was nominated for higher command course and second time, just after declaration of the
result of the selection board. The respondents entertained the second complaint containing more or less same or similar allegations as
contained in the complaint made earlier in Jun 2009 available with the Discipline & Vigilance Directorate, did not invite any attention for a
formal investigation but on the same allegations made in 2011, the respondents took a decision to withhold Discipline & Vigilance
clearance of the officer for his promotion to the elevated rank of Brigadier. That the Respondents have not placed any policy on record
which empowers them to withhold Discipline & Vigilance clearance of the applicant for promotion merely because there was a complaint
pending against him which is either yet to be formally investigated or investigation is in progress. Knowing well, that the applicant was
approved for promotion to the rank of Brigadier and there was a vacancy for his promotion during August 2011, complaint made against
the applicant was not investigated expeditiously, rather, it was ordered for investigation during Aug/Sep 2011 by a 'One Man Inquiry'
followed by a Court of Inquiry which was ordered on 19.12.2011. The Court of Inquiry ordered on 19.12.2011 was finalized on
13.02.2013 in which General Officer Commanding-in-Chief, South West Command has directed that administrative action be initiated
against the applicant. He has also placed Discipline & Vigilance Ban (Type A) ""means administrative action of minor nature for awarding
censure"", on the applicant on 13.02.2013. To this effect a show cause notice was served to the applicant on 06.03.2013 which has been
replied and is under consideration since 23.05.2013. He has further submitted that Drop in Performance cannot be established because no
disciplinary/administrative action has yet been taken against the applicant by the respondents. There was no established ground with the
applicant to pursue his case through a Statutory Complaint. However, he had written several letters to the authorities ventilating his
grievance and taken interview of Military Secretary asking for the reasons for his non promotion. It is also submitted that in Para 3 of the
Military Secretary's Branch/MS (X), Integrated HQ of MOD (Army) dated 01 Jun 2011, it has been clearly mentioned that the officers
approved for promotion to the rank of Brigadier will be promoted subject to availability of vacancies, continued satisfactory performance
and medical fitness. Since there was a vacancy, his performance was satisfactory and he was medically fit, then 8 O.A. 44 of 2013 there was
no reason to withhold his promotion to the rank of Brigadier. Para 3 of the ibid letter is quoted below .-
“3 The officers mentioned in Appendix to this letter will be promoted in their turn subject to availability of vacancies, continued
satisfactory performance and medical fitness
Learned counsel for the applicant further submitted that HQ South Western Command had got no statutory sanction as per Army Act
and Rules to order one man inquiry and also there are no formal instructions or written policy which authorized or empowered the Adjutant
General to withhold Discipline & Vigilance clearance of the applicant. It is pertinent to mention here that the Hon'ble Supreme Court in
catena of judgments have clearly laid down that the promotion of an officer when due cannot be denied merely because there was a
complaint or some investigation was pending. It was thus apparent that the Respondents without any justification and contrary to their own
policy instructions as well as the established principles of law had delayed the promotion of the applicant for more than two years. The
Hon'ble Supreme Court in series of judgments have laid down the principles which are law of the land in terms of Article 141 of the
Constitution of India starting from K. V. .7ankiraman's case till the case of Anil Kumar Sarkar. To put forth his contention, learned counsel
for the applicant has relied upon the following judgements :-
(a) Hon'ble the Apex Court Judgement in U01 Vs K.V. Jankiraman reported in AIR 1991 SC 2010.
(b) Hon'ble Apex Court Judgement in U01 Vs Dr. (Smt) SudhaSalhan reported in AIR 1998 SC 1094.
(c) Hon'ble Apex Court Judgement in Bank of India Vs Degala Suryanaryana reported in AIR 1999 SC 2407.
(d) Hon'ble Apex Court Judgement in U01 Vs Anil Kumar Sarkar reported in J.T. 2013 (4) Supreme Court 103. 9 O.A. 44 of 2013.
(e) Hon'ble Apex Court Judgement in Coal India Ltd Vs Saroj Kumar Mishra reported in AIR 2007 SC 1706.
(f) AFT, Principal Bench, New Delhi Judgement in MA No 545 of 2012 in OA No 88 of 2012 (Brig. R.S. Rathore Vs U01 &Ors) decided on
06.11.2012. (g) AFT Chandigarh Regional Bench at Chandimandir Judgement in OA No 1037 of 2012 (Sandeep Kumar Tiwari Vs U01
&Ors) decided on 06.09.2012.
(h) Hon'ble Punjab & Haryana High Court Judgement in G.R Vina yak (Lt Col) Vs U01 reported in 1996 (1) S.C.T. 427.
XX XX XXXX XX XX
Learned Counsel for the respondents has contended that the complaint dated 29.072011 contained serious and verifiable allegations.
The matter was examined and considering all aspects, decision was taken to withhold Discipline and Vigilance clearance for promotion of
the applicant to the rank of Brigadier. The contention of the learned counsel for the applicant that Headquarters South Western Command
and Adjutant General had no power to order for one man inquiry and withholding Discipline & Vigilance clearance is incorrect. The
approval of the Chief of the Army Staff was accorded on 03 Aug 2011 for investigation of the matter by ""One Man Inquiry"" followed by a
Court of Inquiry. Both the inquiries have found sufficient evidence to establish culpability of the applicant. The decision to withhold
Discipline and Vigilance clearance is taken after due deliberation at Army Headquarters. Adjutant General and Army Commanders are the
competent authority to withhold Discipline & Vigilance clearance. Based on Court of Inquiry's findings only General Officer Commanding-
in-Chief, Southern Command had placed the applicant under Discipline and Vigilance Ban Type ""A"" with effect from 13.02.2013. A Show
Cause Notice dated 06.03.2013 was served on the applicant, which has been duly replied and is under consideration. If the applicant is
exonerated, he will be eligible for promotion with the same seniority at that of his batch mates. In case the applicant is found blameworthy
and awarded censure, he will be considered by No 2 Selection Board afresh as Special Review (Drop in Performance) case as per policy
dated 1709.2010 on Selection Boards Special Review. He has further submitted that the judgment of Hon'ble the Supreme Court in the case
of KV. Jankiraman was given in respect of DOPT memorandums, governing civil servants, which are not applicable to Armed
Forces/Defence Services Personnel. The Judgements cannot be applied mechanically; each case has to be seen in its own facts. The
Respondents relied upon the judgments of Hon'ble Supreme Court in the case of Union of India Vs Maj Bahadhur Singh, reported in (2006)
1 SCC 368. Further Hon'ble Supreme Court in the case of Union of India vs K. V. Janakiraman reported in AIR 1991 SC 2010 had
observed that when allegations are serious, authorities are keen in investigating them; they are not without a remedy. Honible Supreme
Court has observed that an employee can be suspended. In Army, provision for suspension of an officer is rarely resorted to. The fact that
the applicant was not suspended, does not take away the seriousness of the issue, which was the basic reason for withholding Discipline &
Vigilance clearance and based on which suspension also could have been ordered. Honible Supreme Court in the case of Lt Col K 0 Gupta
Vs 1101, 1989 Supp (1) SCC 416 has held in para 8 of the judgement that :-
the Defence Services have their own peculiarities and special requirements. The considerations which apply to others government servants
in the matter of promotion cannot as a matter of course be applied to Defence Personnel of the petitioner's category and rank':
XX XX XXXX XX XX
In the present case, General Officer Commanding-in-Chief after perusal of Court of Inquiry did not proceed with further course of
action and opined in his wisdom that ""Censure"" is an appropriate form to be awarded for the said conduct to the applicant and given
opportunity to the applicant to show cause and reply. Accordingly, a Show Cause notice dated 06.03.2013 was served on 18.03.2013 to the
applicant and he replied to show cause notice on 23.05.2003. Outcome of reply from respondents is still awaited? This delay of
approximately 4 months gave us a feeling that concerned authorities perhaps are in a dilemma, what to do? It is also pertinent to note that
admittedly, since August 2011, the matter regarding promotion of the applicant is pending with the Respondents. In view of the above, we
are of the considered view that the delay in the process of taking decision on applicant's promotion is not only unjust, illegal but also not in
conformity to law as laid down by the Honble Supreme Court in the case of KV. 2ankiraman (Supra). We are of the considered opinion that
after approval for promotion, if Discipline & Vigilance Ban, Type 'A"" is imposed due to pendency of the Court of Inquiry and the Officer is
not promoted, in view of the settled law, as discussed above, the officer ought to have been considered for promotion on his turn. As
regards applicant's prayer for consideration of General Cadre selection, it may be considered by the respondents after consideration of
prayer for promotion in accordance with rules/regulations and law.
Thus in the result, Original Application is partly allowed. The respondents"" action of imposing Discipline & Vigilance Ban Type ""A
with effect from 13.02.2013 is hereby set aside and the respondents are directed to pass orders regarding promotion of the applicant to the
rank of Brigadier in conformity to law as laid down by the Hon'ble the Apex Court in the case of KV. Jankiraman and others (Supra) within
six weeks from the date a certified copy of this order is served.
Learned counsel contends that the applicant in this case is similarly placed as the petitioner in the above case, in whose case the DV Ban Type A was
set aside and his order for promotion was restored on the basis of settled law as the DV Ban was imposed, after approval for promotion, citing
pendency of CoI.
Furthermore, learned counsel for the applicant referred to the additional affidavit filed by the respondents on 16.07.2020 and contended that certain
contents of the same were contrary to facts, defamatory in nature and thus needed to be expunged from the record viz. Para 5(vii)(e), wherein it is
stated ""the same is unreasonable as co-accused in the case have been found to be involved in a prostitution racket, however, the person who was
arrested with the sex worker and have undeniably insisted their service as he was caught red handed has been left as innocent"". Similar is the case
with Para 6, wherein it is stated, ""the applicant himself has clearly admitted in CoI that he has visited the hotel for having sex which was arranged for
him by a tout"". Learned counsel vehemently contended that neither was the applicant 'caught red handed' nor has he admitted in the CoI that 'he had
visited the hotel for having sex'. Further, learned counsel contended that the cancellation of orders for promotion and his appointment as CO were
contrary to policy as the applicant had not been placed on DV Ban and he had been exonerated by the civil court.
Shri K.S. Bhati, Sr. CGSC appearing on behalf of the respondents, on the other hand, controverted the arguments made on behalf of the applicant.
Learned Sr. CGSC submitted details of the sequence of events whereby the applicant was arrested from Radisson Blu, Secunderabad by the
Hyderabad police on the night of 07.07.2018, along with an alleged sex worker and two suspected touts, at a time when he was attending the Senior
EME Officers' Course at MCEME, Secunderabad, consequent to his approval for promotion by No. 3 SB held in October 2017. The applicant was
released on bail the following day and his case was handed over by the civil police to the Army (MCEME) authorities. Two Courts of Inquiry were
convened to investigate and assess the applicant's culpability, but they got delayed as the outcome of the civil case in the Magistrate's Court in
Secunderabad was awaited. As per policy, the third respondent issued an order on 21.12.2018 for the promotion as Colonel cum-posting as CO 39
EME Battalion (see Annexure A4) in respect of the applicant but it was clearly stated in the said order, as hereunder:
On reporting to new unit, the officer has been granted local rank of Colonel under RA Para 88 without effect on pay and pension,
subject to the following.
(a) In acceptable medical category vide MS Branch poky letter No. 04548/MS Policy dated 14.12.2012.
(b) No drop in performance
(c) Clear from DV angle.
Learned Sr. CGSC contended that the stipulation at Para(c) above did not specifically require that the applicant should have been placed on DV
Ban in case the promotion-cum-posting order had to be cancelled or held in abeyance, as was done subsequently vide MS Branch Signals dated
16.01.2019 and 18.01.2019. The order of 21.12.2018 (Annexure A4) was a general stipulation that the applicant would be granted his rank of Colonel
only if he was 'clear from the DV angle', meaning thereby that he should not be involved in any discipline and/or vigilance case.
The learned Sr. CGSC recounted in detail the sequence of events to explain the delay in finalisation of the case. According to him, a CoI was
ordered by MCEME to investigate the circumstances under which the applicant was apprehended on 07.17.2018 by the Hyderabad Police. Essential
civil witnesses did not depose before the Col despite repeated summons sent and hence Col was finalised without their statements. The Court opined
that statements given by the applicant are contradictory and the same could not be corroborated due to absence of witnesses. The Commandant
MCEME accordingly, vide his directions dated 02.09.2019, directed that further action in the case under the provisions of Section 125 of the Army
Act be taken on completion of investigation by the civil police and filing charge sheet in the Court of Additional Chief Metropolitan Magistrate. The
applicant was subsequently de-attached from MCEME. Promotion-cum-posting order of the applicant was issued on 21.12.2018, as Colonel/CO 39
EME Bn subject inter alia that the applicant should be clear from DV angle. He also stated that on the directions of the Directorate of D&V, Col was
re-assembled from 31.07.2019 onwards at MCEME and the applicant was attached for investigation. However, the Col could not bring on record vital
evidences relating to the case nor could it bring on record statements of essential witnesses. Incomplete Col submitted was again returned back to the
MCEME, Secunderabad for completion. However, it is pertinent to mention that subsequent to the registration of FIR No. 628/2018, Police authorities
have filed charge sheet in respect of Mr. Janardhan Rao and Mr. B. Prasanth in the case, but have excluded the name of the applicant and Ms.
Deeksha Kushwaha. Police authorities have not disclosed reasons for removal of the name of the applicant (arrested from the scene and the co-
accused in the case) from the charge sheet and have not shared copy of police investigation report and closure report in respect of the applicant
(under Section 169 CrPC) and also copy of charge sheet filed in Court, despite repeated written and verbal correspondence with office of the
Commissioner of Police, Hyderabad, Additional Commissioner (Law & Order), DCP West Zone, Hyderabad, ACP, etc.
Learned Sr. CGSC also submitted that the case was accordingly processed on file to the COAS highlighting prima facie case in respect of the
applicant, inability of the Col to obtain essential evidence and statements of key witnesses in the case, details of contradictory answers by the applicant
during Col and police closure report in respect of the applicant. The COAS, vide his directions dated 06.03.2020, directed that administrative action be
initiated in respect of the applicant. Directions of the COAS were accordingly communicated to HQ Southern Command vide DV Dte letter
B/29185/III/1958/AG/DV-4A dated 11.03.2020, after which the applicant was placed under provisional DV Ban Type 'A' vide HQ Southern
Command letter No. A/2405020/393/DV-2 dated 20.03.2020. Administrative action in respect of the applicant was under progress at MCEME,
Secunderabad wherein SCN had been served to the applicant on 19.06.2020.
Further, learned Sr. CGSC contended that despite the civil police having removed the applicant's name from the charge sheet, the following facts
directly point towards the involvement of the applicant in the case:
(i) As per the statement of the applicant, the officer went to Room No. 518 of Hotel Radisson Blu for social meet with Mr. Janardhan Rao. However,
he has not been able to explain intent/reasons for his meet with Mr. Janardhan Rao, a person well known for running a prostitution racket, who was
also arrested by police later that day. This aspect was not adequately brought out during CoI.
(ii) The applicant has not been able to explain beyond doubt as to why he was in a locked hotel room with an alleged sex worker.
(iii) As per the statement of DCP, West Zone, Hyderabad the applicant had accepted, during police questioning, that he came to the hotel to have sex
with Ms. Deeksha Kushwaha and paid Rs.10,000/- cash to Mr. Janardhan Rao for this purpose.
(iv) The Col, despite re-assembling twice, could not obtain statements of key witnesses in the case i.e. Ms. Deeksha Kushwaha, Mr. Prasanth, Mr.
Janardhan Rao and Mr. Santosh nor could it obtain essential evidences such as hotel booking records, CCTV footage of the hotel lobby, CDR of the
accused and the co-accused.
(v) Police authorities have filed charge sheet in the same FIR against Mr. Janardhan Rao and Mr. Prashanth, but have excluded the applicant and Ms.
Deeksha Kushwaha without giving any explanation/reason thereof. The same is unreasonable as the co-accused in the case have been found to be
involved in a prostitution racket, however, the person who was arrested with the sex worker and had been caught red handed has been left as
innocent.
13 Furthermore, learned Sr. CGSC contended that it is settled law that both the Civil (Criminal) case and the departmental inquiry/action may proceed
separately and that, even though a final report was filed by the police removing the applicant's name from the FIR, the Army authorities were correct
in proceeding to do a thorough departmental inquiry (Col) into the incident to determine the applicant's role in the incident at Hotel Radisson Blu,
Secunderabad on 07.07.2017. It was contended that the standard of proof required for establishing a criminal charge in a civil case is different from
the standard of proof required in the Army's departmental inquiry, which also goes into the issue of violation of standards of personal conduct,
especially where it has implications on moral authority of an officer for command over troops. Learned Sr. CGSC asserted that the conduct of the
applicant, an officer of the rank of Lt Col, who admitted in the Col that he had visited a private hotel on 07.07.2017 for having sex with a sex worker,
which was arranged for him by a tout, was unbecoming of his position and has serious consequences on the command and control of the troops
working under him, apart from the fact that the incident has caused disrepute to the image of the Army in general. Learned Sr. CGSC asserted that
promotion to the rank of Colonel and consequent appointment/duties as a Commanding Officer thereto entailed serious leadership, administrative and
legal functions, for which impeccable moral standards were also a mandatory pre-requisite. This issue was thus given due consideration by the CoI
and higher authorities while investigating the issue of 'unbecoming conduct' in respect of the applicant.
Reliance was placed on the order dated 24.01.2020 of this Tribunal (Principal Bench) in the matter of Lt Col Ajay Dogra v. Union of India and
others (0.A No. 1038 of 2019) to justify the respondents' action of cancelling the promotion of the petitioner in that case, who had been approved for
promotion by the Army's No. 3 Selection Board, but found to have been involved in a discipline and vigilance case thereafter, prior to his promotion
having been given effect.
Consideration:
Having given careful consideration to the arguments from both sides, we find that the primary issue before us is, whether the order of the
respondents (IHQ of MoD (Army)/MS Branch) dated
16.01.2019 cancelling the applicant's earlier promotion-cum-posting order as Colonel/CO dated 21.12.2018, on the ground of Discipline & Vigilance
(DV) angle on account of his name having figured initially in a FIR dated 07.07.2018 of the Hyderabad police related to Immoral Trafficking Act, as
subsequently inquired into departmentally by Col, is legal and just.
Learned counsel for the applicant has argued that the applicant was approved for promotion to the rank of Colonel in October 2017 by a legally
constituted Selection (Promotion) Board. Further, even though the applicant's name figured in a FIR of the Hyderabad police dated 07.07.2018 due to
his presence in Hotel Radisson Blu, Secunderabad on that date, his name was removed subsequently from the FIR as there was no evidence
supporting his involvement, as informed in writing by the Hyderabad Police on 14.12.2019. This, the learned counsel contends, tantamounts to
complete exoneration of the applicant in the criminal case and thus the findings of wrong doing by the two Courts of Inquiry convened by the Army
authorities, which led to issue of SCN to the applicant, are illegal and arbitrary. The learned counsel has referred to the relevant policy, which makes a
DV Ban a mandatory pre-requisite for cancellation of a promotion order and thus, the issue of such an order on 18.01.2019, when no DV Ban was in
force, is illegal and contrary to the policy and the rules. Reliance has been placed on an order of the Lucknow Bench of this Tribunal in the matter of
Col. M.1. Kumar (supra), which had upheld the right of promotion of the petitioner in that case.
On the other hand, learned Sr. CGSC has argued that even if the applicant was approved for promotion to the rank of Colonel by the Promotion
Board, the actual promotion can be interfered with as per the policy which mandates certain criteria for such promotion viz, acceptable medical
category, no drop in performance and clearance from DV angle. Thus, as the applicant had, in the interim, got involved in a civil case due to his arrest
by the Hyderabad police under the provisions of Immoral Trafficking Act on 07.07.2018 along with an alleged sex worker and two alleged touts from
a five-star hotel in Secunderabad, the Army authorities very fairly and correctly instituted departmental Col to investigate the applicant's role in the
case. Hence, despite removal of the applicant's name from the charge sheet filed by the Hyderabad police in the case, the relevant Col found the
applicant guilty of 'unbecoming conduct' as an officer and hence a SCN has been issued to the applicant on 01.05.2020. Learned Sr. CGSC has
argued that the applicant, due to not being cleared from the D&V angle, cannot be promoted and thus the posting-cum-promotion order issued on
24.12.2018 has been cancelled vide orders dated 16.01.2019 and 18.01.2019. It has been asserted on behalf of the respondents that involvement of the
officer in this case under the Immoral Trafficking Act has undermined his moral authority to be appointed to a senior rank, where his duties involve
command and control of subordinate officers and troops. Reliance has been placed on the order of this Tribunal in Lt Col. Ajay Dogra v. Union of
India and others (0.A No. 1038 of 2019 decided on 24.01.2020), where the cancellation of approval for promotion of the applicant in a case involving
moral turpitude was upheld by this Tribunal. Learned Sr. CGSC has also argued that in Col. Mi. Kumar (supra), the applicant therein was not similarly
placed as the applicant in this case as a complaint by a colleague had come in the way of the applicant's promotion in that case, whereas, in this case,
a FIR was filed by the civil police after arrest of the applicant from a five-star hotel in a case under the Immoral Trafficking Act.
We have given careful consideration to the facts of the case, in the light of the policy with regard to promotion of officers, once they stand
approved by the Selection Board. It is an admitted fact that the applicant was approved by the Selection Board, which was held in October 2017 for
considering officers of his batch of Lt Cols of the [ME for promotion to the rank of Colonel. Thereafter, his promotion was required to take effect, in
his turn, subject to meeting certain stipulations viz, acceptable medical category, no drop in performance and clearance from DV angle, and his
promotion-cum-posting was ordered accordingly. We have also been made aware that, in the rank of Colonel, the applicant is required to be appointed
as Commanding Officer of an [ME Battalion, entailing leadership, administrative and legal functions, which require the incumbent to possess high
moral standards. In the interim, on 07.07.2018, while undergoing the Senior Officers EME Course in MCEME Secunderabad, he was arrested from a
hotel room by the Hyderabad Police, under the provisions of the Immoral Trafficking Act, along with an alleged sex worker and two touts. Thereafter,
whereas the Hyderabad police, after investigations, removed his name from the FIR on 14.12.2019, the departmental enquiry (Col) by the Army
authorities found him guilty of conduct unbecoming of an officer and have cancelled his promotion order as well as have issued a SCN recently for
administrative action against the applicant.
We are of the opinion that the respondents cannot be faulted for having held a departmental enquiry (Col) to investigate the personal conduct of
the applicant's case related to his involvement in the immoral trafficking case in a hotel at Secunderabad on 07.07.2018, which, based on the
assessment of the facts of the case, found the applicant guilty of conduct unbecoming of an officer, more so as his actions undermined his moral
authority for undertaking duties involving command of troops. Whereas the civil police and civil court may have exonerated the applicant of criminal
misconduct based on the legal merits related to the case, the respondents were well within their rights to establish, through departmental enquiry,
whether the applicant's actions, in any way
Pronounced in open Court on this the 5th day of August, 2020.