HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WP.No.8864 of 2021
O R D E R:
This writ petition is filed for the following relief:
"to issue a Writ or order or direction more fully in the nature of writ of Mandamus declaring the proceedings of the respondents in 2999/DV, dt.22.03.2021 including proceeding of respondents in CF/1C-61729M/03/A, dt.23.03.2021 (Suspension Order) and consequential proceedings dt.31.03.2021 in CF/1C- 61729M/06/A (Termination of Study Leave) proceedings dt.24.03.2021 in A/2405020/408/DV-2 (Movement Orders) and proceedings dt. 26.03.2021 in 398354/MS- 17 (Movement Orders) by declaring the action of the respondents in suspending the petitioner, premature termination of the leave and giving inconsistent movement orders is illegal, improper, arbitrary, without jurisdiction besides being opposed to the principles of natural justice and established principles of law and consequently direct the respondent to reinstate the petitioner, continue the leave at Visakhapatnam only and pass such other orders...."
This Court has heard Sri C.Srinivasa Baba, learned counsel for the petitioner and the Assistant Solicitor General Sri M.Harinath.
Sri C.Srnivasa Baba, learned counsel for the petitioner points out that the petitioner, who is serving as Lieutenant Colonel in the Indian Army, has been suspended contrary to the rules. Learned counsel for the petitioner argues that the petitioner was granted study leave to complete a course at Visakhapatnam and was also posted at Visakhapatnam to do 2 MBA. Thereafter, on the ground that an FIR was registered against him, for some alleged crime, two Officers raided the petitioner‟s residence and highhandedly secured some material from his house. It is also submitted that the suspension of the petitioner is contrary to the Army Regulation and that the suspension order does not speak whether it is suspension "pending enquiry or punishment without enquiry". It is also urged that as per the extant rules as the matter is referred to the CBI, no action can be taken against the petitioner. The cancellation of the study leave, according to the learned counsel, is also totally contrary to the leave regulations that have been filed along with the rejoinder. It is also urged that the leave can only be cancelled under certain circumstances which are not present at all in the present case. Learned counsel also argues that as far as the FIR is concerned, there are no specific allegations against him and that without any evidence, the FIR is registered and suspension is ordered. It is also pointed out that in quick succession orders are granted moving him from Visakhapatnam to Madras and thereafter to AAD Centre at Gopalpur (Odisha). Therefore, learned counsel for the petitioner states that as the entire action is mala fide and issued for extraneous reasons and contrary to the rules, this Court should interfere.
In reply to this, learned Assistant Solicitor General raises a preliminary objection and states that any dispute of 3 this nature should first be filed before the Armed Forces Tribunal only and that unless the statutory remedy is exhausted, the petitioner cannot approach this Court since this is purely a service matter. Apart from that, it is also submitted that the petitioner has already addressed letters, representations to Chief of Army staff seeking revocation of the suspension. It is argued that as the petitioner has already approached to the highest hierarchy of the Officers in the Army, the writ petition is not maintainable. Without prejudice to these contentions it is also submitted that the suspension is perfectly valid and called for in the facts and circumstances; since the case is under investigation by the CBI. It is pointed out that the Court has very limited grounds to interfere in cases of suspension which are not made out/proved at all. Assistant Solicitor General also argues that even in cases pertaining to "civilian" transfers, this Court has limited jurisdiction. In cases of serving Armed Forces Officers, he argues that the scope is even more limited in view of the decision in the case of Major General J.K.Bansal v. Union of India1, by the Hon‟ble Supreme Court. A copy of this order is filed as material paper with the counter affidavit. Relying upon the other judgments, learned Assistant Solicitor General argues that this Court should lightly interfere and that no order can be passed in favour of the petitioner. 1 2005 (7) SCC 227 4 Learned Assistant Solicitor General finally concludes by saying that as very serious allegations are made against the petitioner, this Court should not interfere in the order of suspension. It is submitted that the petitioner is a highly trained Officer and that if he is not placed under suspension; the smooth progress of the investigation will be impaired.
In rejoinder, Sri Srinivas Baba submits that as the action is mala fide and as the character and conduct of the Officer is not in dispute, the suspension is not called for. As far as the study leave is concerned, learned counsel argues that the recall from study leave is only permissible in limited cases and that too with the approval of Deputy Chief of Army Staff. Therefore, it is argued that the cancellation of the study leave is absolutely uncalled for and contrary to the rules. As far as the objection of the learned Assistant Solicitor General with regard to the Armed Forces Tribunal is concerned, Sri Srinivas Baba submits that service matters which are under the exclusive jurisdiction of the Disciplinary Armed Forces (DAF) do not include matters relating to "leave" of any kind. He relies upon the definition of section 3(o)(iv) of the Armed Forces Tribunal Act. Therefore, he submits that since the issue also relates to the cancellation of the study leave, the Armed Forces Tribunal does not have the jurisdiction and the High Court has the necessary jurisdiction.
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COURT: This Court after considering the submissions notices that law on the subject is clear. In Major General J.K.Bansal's case (1 supra), the Hon‟ble Supreme Court has held that the Court should be very slow in interfering in matters of transfers etc., of Armed Forces Officers. Similarly, in Major Amod Kumar v. Union of India2, the Hon‟ble Supreme Court of India noticed the following oath which has administered by Officers and Sepoys at the time of commission. In para 8.6, the oath is reproduced which is as follows:
"I (Name) hereby solemnly swear that I will bear true faith and allegiance to the Constitution of India, as by law established and that I will, as in duty bound honestly and faithfully, serve in the regular Army of the Union of India and go wherever ordered, by land, sea or air, and that I will observe and obey all the commands of the President of the Union of India and the commands of any officer set above me, even to the peril of my life."
As per the said oath, the persons are bound to serve wherever they ordered to go. They are also bound to obey all the commands of any Officer above him even to the peril of his life.
Lastly, the law on the question of Courts interfering in suspensions is also clear. Except in limited cases like demonstrable mala fide action, action not being as per the rules etc., the Court cannot interfere.
2 (2018) 18 SCC 478 6 When this case is examined against this legal backdrop, it is clear that the question of mala fide action is not seriously raised or urged in the writ petition. Mala fides are matters of pleading of proof. A very high degree of proof is necessary to prove a case of mala fides. E.P.Royappa v State of Tamilnadu and another3 is still a leading case on this issue and aspect.
Apart from that the copy of the report given to the CBI by the respondents (Brigadier (Vigilance)) dated 13.03.2021 clearly shows that the petitioner is mentioned as the "Mastermind" of this entire scam. The report dealing with the irregularities in recruitments points out at more than one place that the petitioner is mentioned as the "Mastermind". Serving Officers/personnel are said to have bribed the petitioner at Sl.Nos.5 and 6. Petitioner is also said to have received financial gratification for selection of another Officer. The complaint is given on 13.03.2021. Thereafter, the FIR has been registered and the complaint is referred to in the FIR itself and is enclosed to it. It is also mentioned that the petitioner has taken undisclosed amount of cash for selecting an Officer. He is also said to have received the bribe through a Naib Subedar and a lady. One serving Officer is said to have bribed the present petitioner for facilitating his selection. Therefore, the statement that there is no material for suspending the petitioner does not appear to be very correct. 3 (1974) 4 SCC 3 7 The petitioner‟s character and conduct are also in issue due to the registration of the FIR. Hence, Rule 349 of the Army Regulation is also applicable. This Rule itself clearly states that an Officer „may‟ be suspended from duty (independent of arrest). The purpose of any suspension is to ensure that the investigation goes on smoothly and to prevent any interference in the said investigation. In the case on hand, the allegations made are very serious. Public interest also has to be noticed. Any scam (if true) in the recruitment/selection for the Armed Forces will have serious repercussions for the defence of the country. Hence the "gravity" of the allegations are considered for the purpose of this order only.
The rules and the suspension policy which are filed along with the counter affidavit show that an Officer will not "normally" be placed under suspension where investigation against him are in progress clearly signifying that certain cases may be there warranting suspension. In the policy (Rule 9(b)) an exception is also carved out and it is mentioned, where it is necessary to place an Officer under suspension, every effort will be made to ensure that the investigation completed within a period of six months. If the investigation is likely to go longer, the authority placing the Officer under suspension should consider whether the suspension can be revoked or not. Even after the case is filed in a Court, the suspension can be reviewed every six months 8 according to Policy Rule 9(d). Similarly, Rule/Guideline 7 also speaks of suspension. It also says suspension as the preferred option in comparison to arrest. Therefore, the allegation of the petitioner that the suspension is mala fide or is contrary to the rules is not correct in the opinion of this Court. Like in any other case, suspension to facilitate the smooth conduct of the enquiry or the investigation should be lightly interfered with by the Court. In the absence of any materials to show that the suspension in this case was for extraneous reasons or is not based upon the rules, this court cannot interfere at this stage.
The other issue that is raised is that the petitioner was "transferred" in quick succession from Visakhapatnam to Madras and then to Gopalpur in Odisha. In the case on hand, it is clear that the petitioner is on study leave till May, 2022. The petitioner is granted study leave and he needs to be attached to the nearest available unit. In the case on hand, he was attached to the NCC unit of Visakhapatnam. He is not "posted" at Visakhapatnam as understood in the normal parlance. Attachment to a unit is for the purpose of administration/discipline etc., and it is not a "posting" in the strict sense of the word. After the FIR is registered, temporary movement order was given directing him to be present at Madras. Once the study leave was terminated, he was directed to be posted at Gopalpur (Odisha). Since the study leave was terminated, the petitioner had to be attached 9 to some unit and in this case he was directed to report to Gopalpur unit. In the opinion of this Court, this is a movement order that had to be given in order to ensure that the petitioner was attached to a particular unit and is available for the investigation.
The case law cited by the petitioner himself Chief of Army Staff and others v. Majhor S.P.Chadha4, itself shows that it is permissible for attachment of an Officer in a different unit so that the proceedings against him should be speedily and satisfactorily completed without interference by him. In the case before the Hon‟ble Supreme Court, the case was entrusted to a regular criminal Court. Therefore, the Court held that there was no need to attach him to another unit. But in the present case, it is clear that the investigation is still in progress. Once the investigation is in progress, in the opinion of this Court, it is within the power and jurisdiction of the respondent authorities to post him at a suitable unit. The discipline policy dated 28.11.2006 also empowers‟ the respondents to post an Officer away from his unit, if he is likely to impede the investigation or if he is likely to tamper with the evidence or if his presence is considered detrimental to the collection of evidence.
In the case on hand, as mentioned earlier, very serious allegations are made as far as the petitioner is concerned. 4 (1991) 2 SCC 288 10 After his posting at Kapurthala, the petitioner came to Visakhapatnam on study leave and was attached to the unit at Visakhapatnam. The input was received on 27.02.2021 leading to a complaint dated 13.03.2021 and the registration of a crime. Thereafter, in March, 2021, the petitioner was placed under suspension and movement orders were also given to him soon thereafter. As the investigation is not completed, this Court is of the opinion that there is a necessity to transfer and post him at a different unit. This Court therefore does not find anything wrong with the movement orders that were issued to the petitioner.
With regard to study leave, this Court opines that the petitioner is on a better wicket and that „recall‟ of study leave is permissible under certain circumstances only. A reading of the rules visualises cancellation in certain circumstances. The present fact situation is not one of them. The earlier discussion on the „gravity‟ of the offence and the need to keep the petitioner under suspension however applies here also. Holding that the cancellation of study leave is contrary to the rules cited will go against the need for suspension; need for the smooth investigation etc. In case of conflict between the individual good and the public good; it is clear that public good will have to prevail. The investigation should progress smoothly and go to its logical conclusion. Therefore, this Court does not wish to interfere with the cancellation of „study leave‟.
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Lastly, coming to the issue of the high Court and the Armed Forces Tribunal, it is true that "suspension" is a service matter which would fall within the jurisdiction of the Armed forces Tribunal. However, the leave cancellation issue that is raised does not fall within the jurisdiction of the Armed Forces Tribunal. Therefore, since both have been inter-linked, this Court holds that it has the jurisdiction in the present case to deal with this matter.
Considering the entire submissions, the gravity of the allegation; the documents filed by both the parties and the fact that the investigation is still in progress, this Court is of the opinion that the suspension is not per se wrong. As mentioned earlier, the discipline policy dated 22.11.2016 also permits the suspension of an Officer while investigation is in progress. Guideline/Clause 9(a) states that an Officer will not „normally" be placed under suspension, which leads to a conclusion that there can be exceptional cases. Apart from this, adequate safeguards are also provided in the policy to review the case every six months. Suspension is an interim measure to facilitate smooth investigation etc. It is a step in aid of the enquiry. Hence interference at the very outset particularly for the reasons stated in the present writ affidavit is not called for.
Therefore, for all the reasons mentioned above, this Court is of the opinion that the petitioner is not entitled to any relief as prayed for. It is made clear that while discussing 12 the case, no comment is made on the truth of the allegations made against the petitioner. Opinions expressed are for this writ only and are not on the intrinsic „merits‟ of the allegations.
The writ petition is therefore dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 01.09.2021 KLP