-Report by Riddhi Ray
The Supreme Court upheld the decision of the Armed Forces Tribunal in the case of K. S. SAHU vs. UNION OF INDIA & ORS., wherein an order of withdrawal of navy officer was delivered, as he was in possession of objectionable material.
The Appellant joined the Navy as a sailor on 31st July 2002. His Initial training started on 7th July 2002 for 2 years at INS Mandovi, Goa. On 21st June 2009, he was sent to INA EZHIMALA for the completion of the 5th and 6th terms of training. On 1st December 2010 integrated headquarters of the ministry of defense notified that the competent authority approved his withdrawal from INA and reverted him back to the sailor position.
Learned counsel raised three questions in front of the court:
a. Whether the appellant who was a service cadet could be withdrawn from the course in INA without following the principles of natural justice
b. Whether Regulation 216 of the Navy and Miscellaneous Provisions Regulations, 1965 (for short ‘the said Regulations’) could be invoked against a service cadet.
c. After completion of the course and receipt of the certificates, the applicant could be withdrawn.
He contended that this withdrawal was contrary to the rules in Enclosure–1 of Naval Headquarters’ letter dated 11th November 1988 as it has been fixed by a subordinate authority instead of the government. And even after the withdrawal he was not sent back home and allowed to continue the course. The naval authority pointed out that the withdrawal was done on disciplinary grounds, later it was stated that the withdrawal was for lacking basic character and officer-like qualities in reality. It was contended that the officers victimized the appellant just because he was from a poor family. The appellant was influenced to sign the documents accepting his mistake under the threat of disciplinary action. Further, his parents were invited to the valedictory ceremony but they were unaware of such withdrawal of their son.
Ms. Aishwarya Bhati, the learned Additional Solicitor General of India stated that Regulation 216 has not been invoked upon the appellant so the question of following principles of natural justice does not arise. The withdrawal has been made as per ground ‘c’ mentioned in the rules issued by the Integrated Headquarters of Ministry of Defence (Navy), New Delhi vide letter dated 11th November 1988. The ground is of basic character deficit and lacks officer-like qualities.
She further contended that written warnings on 16th July 2009 and 11th May 2010 and a chance was given to the appellant for giving an explanation. Although a proposal for withdrawal was submitted on 24th August 2009, he was appellant was relegated on 6th November 2009. It was only after 26th June 2010 that the action of withdrawal was taken.
Consideration of submission:
As per regulation 216, two things must be done for the withdrawal of an officer from a post. As per clause a., a show cause notice must be given to the appellant and as per clause b., the appellant must have given some time to file his defence against the allegations and to improve his conduct. In this case, he has been withdrawn only after two subsequent notices from authority and after a reasonable time has also been given to improve his conduct.
After an investigation, a report had been filed against the appellant on 19th April 2010 by Lt. Praveen Kumar. On 9th July 2009, a notice has been issued against him on the basis of the investigation of 5th July. During the investigation, he was found in the possession of pornographic magazines, cigarettes, a lighter and a mobile phone, a Garuda Pay office stamp and a large number of seamens’ knives, a stabilizer, a multimeter as well as a BSNL phone. In response to the question, the appellant stated that he has committed a wrong for the first time and was ready to take any punishment.
Another show cause notice was issued to the appellant on 11th May 2010, which is based on the investigation carried out by Lt.Commodore Ashutosh Bobade for tampering with official documents.
On 14th January 2011 appellant’s father requested the authority to reconsider the decision of withdrawal. But the authority denied such a request and stated he has been awarded a B.sc degree from the University of Goa as he was fit for that.
And as the inquiry report against him clearly states his misconduct and his audacity not to change himself even after notice. And as far as the notion that the government is only able to relegate any cadet from INA, then the government has conferred power in the hand of the Chief of Personnel to do the same. So, the withdrawal was completely in
accordance with the law. And the decision was made by the tribunal consisting of experts like a lieutenant general. It was observed:
“While taking action of withdrawal of the appellant from training, the competent authority made the assessment of the performance and conduct of the cadet in INA during his training. There was material on record to come to a subjective satisfaction that the appellant was deficient in basic character and officer like qualities. Two show cause notices were served upon the appellant before taking the action of withdrawal. There was an opportunity given on two occasions to the appellant to explain his conduct and improve his conduct. His conduct as reflected from record certainly supports the conclusion that he lacked the qualities which an officer of Navy must possess.”
In light of the above, the court dismissed the appeal for being void of purpose.