Allahabad High Court

Rajat Aren vs Union Of India And 8 Others on 26 March, 2019

Bench: Yashwant Varma




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on : 13 March 2019
 
Delivered on : 26 March 2019
 
Court No. - 6
 

 
Case :- WRIT - A No. - 42949 of 2017
 

 
Petitioner :- Rajat Aren
 
Respondent :- Union Of India And 8 Others
 
Counsel for Petitioner :- Prabhakar Awasthi,Rajat Aren (In Person)
 
Counsel for Respondent :- A.S.G.I.,Satish Kumar Rai
 

 
Hon'ble Yashwant Varma,J.

A. A BRIEF OUTLINE

Heard the petitioner who has appeared in person and Sri S.K. Rai, learned counsel who has appeared for the respondents 1 to 7.

Initially when the writ petition was instituted the petitioner had chosen to implead two Platoon Commanders of the Officers Training Academy, Chennai [hereinafter referred to as the "Academy"] as party respondents by name. However, pursuant to permission sought by the learned counsel for the petitioner appearing then, these two respondents were deleted from the array of parties as recorded in the order dated 14 September 2017. The instant writ petition had been preferred originally seeking the following reliefs:

"iii."Issue a writ, order or directions in the nature of Certiorari calling for the records of the case and to quash the relegation dated 07.08.2017 (not communicated to the petitioner), show cause notice dated 08.08.2017, 27.07.2017 and the order dated 11.08.2017 whereby the petitioner has been sent on leave as also the order dated 31.08.2017 whereby the request of the petitioner for reconsideration of relegation has been rejected.

iv. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to commission the petitioner w.e.f. 09.09.2017 which is the date for passing out parade."

By an amendment which was allowed by the Court on 12 October 2018, the following two additional reliefs were incorporated:

"iv-A. Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the order dated 21.07.2017 passed by respondent no.4( Annexure No.14 to the Writ Petition) as also the sending of petitioner on leave through leave certificates w.e.f. 11.08.2017 also issued by respondent no.4( Annexure No.19 to the writ petition), withdrawal order from commissioning training at O.T.A. Chennai dated 20.12.2017 passed by respondent no.2 (Annexure No.RA-1) and the order dated 21.12.2017 whereby the respondent no.4 after approval of withdrawal has recalled the petitioner for necessary clearance accordingly (Annexure No.RA.-1).

iv-b. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay full salary in accordance with law from 09.09.2017 which is the date of commissioning of the petitioner as an Officer of the Indian Army."

The challenge essentially is to an order of relegation and a consequential order of withdrawal passed by the respondents. On 27 July 2017 a show cause notice was issued to the petitioner calling upon him to explain why he be not relegated consequent to accumulation of more than 42 restrictions. The notice further put the petitioner to caution by recording that since the proposed relegation would result in a second relegation in the same training term and the third during the petitioner's complete stay at the Academy it would in turn result in his withdrawal. The petitioner submitted a reply of the same date whereafter the Commandant of the Academy drew up a comprehensive report with respect to the stay of the petitioner at the Academy and also encapsulating the various disciplinary measures which had been taken against him during his training term. This report and recommendation drawn on 28 July 2017 recommended the relegation of the petitioner and was forwarded to the competent authority. The recommendation so framed was accepted and the competent authority approved the proposed relegation on 31 July 2017.

Consequent to the aforesaid, a second show cause notice dated 8 August 2017 came to be issued calling upon the petitioner to show cause why he be not withdrawn from the Academy on account of a second relegation in the same training term excluding an earlier relegation on medical grounds and thus in effect being his third relegation during his complete stay at the Academy. The petitioner submitted a reply to this notice on 8 August 2017 whereafter the Commandant of the Academy framed a proposal for the withdrawal of the petitioner on 23 August 2017 and forwarded the same for the consideration of the competent authority. The competent authority communicated his approval to the order of withdrawal in terms of a communication dated 4 December 2017.

It is relevant to point out here that the reliefs as framed and extracted above do not assail the formal orders dated 31 July 2017 and 4 December 2017 passed by the competent authority approving the relegation and withdrawal respectively. Only the show cause notices were essentially challenged. This, the Court is constrained to note although the above mentioned orders were brought on the record by way of the Counter Affidavit filed by the respondents and copies of the aforesaid two orders were otherwise also provided to the petitioner much before the petition was placed for final hearing. However, the Court does not propose to non-suit the petitioner on this technical ground, firstly since he has argued the petition and has appeared in person and secondly because parties were heard at length on the merits of the two orders aforementioned.

B. THE PAST LITIGATION

The litigation itself has a background and it would therefore be relevant to notice the following essential facts. The petitioner joined the Academy on 4 October 2014. The first relegation came to be imposed upon him on 5 February 2015 for missing more than 42 days of training on medical grounds. He was thereafter again relegated on 28 December 2015 for failing to achieve the basic minimum standards in physical training (the 5 Meter Jump in this case). He passed his junior term ultimately in March 2016 and while pursuing his senior term was withdrawn from the Academy on disciplinary grounds in terms of an order dated 27 September 2016. The aforesaid order of withdrawal was assailed by the petitioner by way of a writ petition which was dismissed by a learned Judge on 14 September 2016. The aforesaid decision was challenged by the petitioner by way of Special Appeal No. 684 of 20161.

By judgment and order dated 15 December 2016, the aforesaid appeal was allowed and the penalty of withdrawal from the Academy was substituted with the penalty of relegation. The disciplinary action itself had come to be taken against the petitioner upon it being found that he was in possession of a "smart phone" despite an unambiguous prohibition imposed by the Academy in that respect. During the course of examination of the phone of the petitioner the authorities found that it contained sexually explicit and pornographic material. A disciplinary enquiry was consequently instituted and it was ultimately found that the petitioner had involved himself actively in pornographic activity in his personal capacity by receiving and forwarding intimate photographs and clips of himself and his female friends while undergoing training. The Administrative Instructions [hereinafter referred to as "the AI"] provided that indulgence in any sexual act or pornographic activity within the Academy premises would result in the imposition of the punishment of relegation or withdrawal based on the circumstances of the case and at the discretion of the Commandant. In this case the Commandant had imposed the punishment of withdrawal.

The Division Bench while considering the challenge to the order of punishment observed insofar as the merits of the charge was concerned as follows:

"In our considered view, the exchange of private messages between consenting parties cannot be said to fall within the ambit of the phrase "pornographic activities". The phrase as employed in the Administrative Instructions suggests that it is aimed at stemming, regulating and prohibiting the dissemination and distribution of such material. The distribution of images and movies which may be termed as pornographic may perhaps have either a deleterious or unhealthy impact on the discipline in the Academy. However, in the absence of such an allegation, it cannot be said that a cadet has either indulged in sexually explicit or pornographic activities. This further appeals to reason inasmuch as in the absence of circulation of such material, it cannot possibly be said that the general discipline in the Academy has been effected nor can it be possibly said that the cadet in question has indulged in behaviour unbecoming of an officer. The facts as noticed by the Court of Inquiry appear to suggest that the mobile phones upon being confiscated were duly examined by the respondents. It is in the above light that the offending materials came to the fore. But for the examination of the smart phone, the material which was exchanged between the appellant and his girlfriend and other female friends would have never come to light. This also lends support to the conclusion arrived at by us namely, that the appellant had not engaged in the circulation or distribution of such material.

As noted above, it is not the case of the respondents that the appellant was engaged in the dissemination or distribution of the material in question. The exchange of the material took place within the precincts, if one were to describe it as such, of a private exchange between the appellant, his girlfriend and his other female friends. The exchange appears to have been mutual. At least no material exists on the record which may suggest that this was objected to by the recipients. But for the seizure and consequential examination of his smart phone, perhaps the offending substance would have lain dormant. The impugned action in fact rests solely on the material discovered as a consequence of the intrusive examination of the smart phone. This action in itself would raise certain fundamental issues of concern. It is well settled that issues and questions of privacy stand overridden only when superior countervailing interests intervene or where compelling state interests are shown. The actions of the appellant being restricted to a private domain also did not raise questions of public decency or morality which in turn rest upon the "harm principle" as propounded by John Stuart Mill. It would in this connection be worthwhile to remember what the learned philosopher said "On Liberty" (1975):-

"The only principle for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others..... The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute."

Appendix 'F' to the Instructions while prescribing the scales of punishment and insofar as pornographic activities are concerned confer a discretion upon the concerned authority to impose the punishment of either "Relegation" or "Withdrawal". This is evident from the unambiguous usage of the phrase "at the discretion of the Commandant". In the facts of the present case, however we are constrained to note that the respondents had clearly prejudged the entire issue insofar as the imposition of punishment was concerned. As would be evident from a reading of the show cause notice, the respondents noted that the offences committed by the appellant were in gross violation of the Standing Orders and merited "severe disciplinary action". The language and tenor of the show cause notice suggests that the respondents had prejudged the entire issue and consequently the discretion envisaged in the matter of imposition of punishment came to be clearly fettered........."

Dealing with the quantum of punishment, the Division Bench observed:

"....... A gentleman cadet who hopes and aspires to be an officer of the armed forces must be held strictly to the norms of discipline prescribed. In fact the effectiveness of the armed forces itself depends upon a strict adherence to the norms laid down. We further note that this is also not the first occasion that disciplinary action has been taken against the appellant. On an overall conspectus of the facts, we find that the punishment of withdrawal was unfair and unjustified and that the grave and severest punishment of withdrawal was not liable to be imposed upon the appellant. At least the charges which stood proved against him did not warrant the imposition of the harshest penalty. The penalty inflicted is, in our considered view, shockingly disproportionate. The appellant, a young cadet while guilty of a misdemeanor, should not have been placed in a position where his future career in the armed forces came to be completely obliterated. A mistake committed by him should have been viewed by his superiors and mentors with a view to correct and reform his behaviour in the future. The circumstances would merit this Court exercising its powers of judicial review and substituting the penalty inflicted upon the appellant in order to enable him to reform and rededicate himself to his chosen profession. In our considered view, balancing the future of a young man's professional career and the disciplinary requirements of the Academy would merit the substitution of the punishment imposed to that of Relegation. Although the appellant has lost more than six months the substituted punishment would enable him to rejoin the course when it commences in 2017."

The appeal itself was ultimately disposed of with the following operative directions:

"Accordingly and for the reasons afore noted, we allow the present Special Appeal and set aside the judgment of the learned Single Judge dated 14 September 2016. Writ A No.43700 of 2016 shall consequently stand allowed. The orders dated 21 June 2016 and 23 July 2016 shall stand set aside to the extent of imposition of the penalty of "withdrawal". We substitute the said penalty with "relegation". All consequential actions shall follow the substitution of the above punishment. We may also note that before us the appellant has undertaken and stated unequivocally that he shall adhere to the norms and standards of the Academy and that he shall not give any cause for the respondents to be constrained to take disciplinary action against him in the future. This undertaking of the appellant is duly recorded and accepted. We are further of the considered view that the appellant must be put to terms and be commanded to furnish an undertaking on similar terms to his Commanding Officer which we hereby do and direct."

The respondents accepted the decision of the Court rendered on the Special Appeal and the petitioner was reinstated in the Academy which he joined on 1 April 2017 in the senior term course. During the Senior Term commencing from 1 April 2017 and between the period 11 April 2017 to 28 July 2017, the petitioner was inflicted as many as 50 restrictions. Since he had consequently accumulated more than 42 restrictions in one single term it came to constitute a ground for relegation in terms of Para 60 (d) of the AI. It was in that backdrop that the respondents noted that this would result in a second relegation in the same training term and an overall third relegation of the petitioner during his complete stay at the Academy. It was in view of the above that a show cause notice came to be issued against the petitioner in respect of the proposed relegation and consequent second withdrawal. Undisputedly, a third relegation during the complete stay of a Gentleman Cadet at the Academy constitutes a ground for withdrawal in terms of Para 70 (a) (ii) of the AI.

In order to complete the narration of facts the Court deems it apposite to extract the following observations as appearing in the recommendation of the Commandant and forwarded to the competent authority as part of his report recommending the relegation of the petitioner:

"Brief of the Case

1. No 27195 GC Rajat Aren joined the Officers Training Academy, Chennai as part of SSC (NT) -100 Course on 04 Oct 2014. His relegation/withdrawal record is as under:-

(a) First Relegation. He was relegated from SSC (NT) -100 to SSC (NT) -101 (Junior Term) for missing more than 42 days of trg on medical grnds vide DGMT/MT -6 Letter No A/37061/GS/MT -6 dt 05 Feb 2015, in accordance to Para 60 (b) of HQ ARTRAC Adm Instructions for PCTA.

(b) Second Relegation. The GC was again relegated from SSC (NT) -101 to SSC (NT) -102 (Junior Term) for failing to achive basic minimum std in PT (5M Jump) vide HQ ARTRAC Signal No 940039/REL/PCT dt 28 Dec 2015, in accordance to Para 60(e) of HQ ARTRAC Adm Instructions for PCTA.

(c) He subsequently passed his Junior Term in Mar 2016 and was attending training in Senior Term, when he was Withdrawn from the Academy on disciplinary grnds vide DGMT/MT -6 Letter No A/37071/Withdrawl/GS/ MT-6 dt 27 Sep 16.

(d) Third Relegation. GC Rajat Aren was reinstated in the Academy vide Allhabad High Court order in Special Appeal No 684 of 2016 order dt 15 Dec 2016 received vide HQ Purva UP and MP Sub Area (Legal Cell) Sig No 12013/4211/ALD dt 06 Mar 2017. The court in its order moderated the punishment awarded to the GC from "Withdrawal" to "Relegation", which accounts for his third relegation. Accordingly, he joined OTA Chennai on 01 Apr 2017 as part of SSC (NT) -104 (Senior Term) course and is presently undergoing trg in the Academy.

Present Term

2. Relegation. The GC has accumulated a total of 50 restrictions due to various offences, and as per Para 60(d) of HQ ARTRAC Adm Instructions for PCTA the GC is liable to be relegated for being awarded more than 42 restrictions in a term.

3. Relegation Leading to Withdrawal. The present relegation of GC Rajat Aren for being awarded more than 42 restrictions in a term would result in second relegation in the same training term and overall third relegation during the complete stay at the Academy (less relegations on medical ground), thus making him liable for Withdrawal from the Academy as per Para 70(a)(i) and 70(a)(ii) of HQ ARTRAC Adm Instructions for PCTA.

4. Misc details of GC Rajat Aren are as under:-

(a) Status of GC as on Dt. GC Rajat Aren is undergoing training in the Academy. He is failing in BPET (FAT -2) and 30 Km Run. He has also not cleared the 10 mtr jump in the swimming pool indicating low confidence. His med cat is SHAPE-1.

(b) Maj Events/Trg/Acad/Tests being Missed/Failed by GC. The GC has missed March & Shoot Competition due to med cat (Ex-PPG) and has failed to jump from 10M (FAT-2) exhibiting Low OQ (Physical Courage).

(d) Acad Counsellor. The GC has been counseled by the Academic Counsellor and has been graded AVERAGE.

Recommendation

5. In view of the above, it is recommended that the GC be relegated to SSC (NT) -105 course for accumulating more than 42 Restrictions in a single term, in accordance with Paras 60(d) and 62(c) of HQ ARTRAC Adm Instructions for PCTA."

During the course of hearing of this writ petition the petitioner moved an application for being provided a copy of the AI based upon which the impugned orders had come to be passed. On 9 January 2019 the Court granted time to the respondents to respond to that application. On 24 January 2019, Sri Rai, learned counsel appearing for the Union-respondents, on instructions, stated that since the AI was a restricted document it could not be handed over to the petitioner. The Court consequently granted time to the respondents to file an Affidavit in justification of the position so taken. On 13 February 2019 when the writ petition was again taken up for consideration, Sri Rai apprised the Court that the position as taken by the respondent and reflected in the earlier order of the Court referred to above had been revisited and a copy of the AI decided to be handed over to the petitioner. The AI was ultimately handed over to the petitioner in the presence of the Court on that date. On 27 February 2019 and 1 March 2019 detailed orders were passed by the Court granting time to the respondents to respond to a fundamental objection which was raised by the petitioner in his challenge to the impugned action. The objection principally taken was that the punishment of restrictions as imposed by the respondents was beyond the Scales of Punishments as embodied in the AI and that consequently it could not be said that the petitioner could have been validly inflicted more than 42 restrictions. Since the contention as raised struck at the very foundation of the impugned action, the Union respondents were accommodated to address further submissions. The petition was then finally heard on 13 March 2019 where after it was closed for judgment.

C. SUBMISSIONS OF THE PETITIONER

The petitioner has contended that the respondents have imposed as many as fifty restrictions upon the petitioner incensed by their loss of face before the Division Bench which had allowed the Special Appeal. It was submitted that two officers who were part of the Court of Enquiry which had ultimately imposed the punishment of withdrawal upon the petitioner and which was impugned in the earlier round of litigation were Commanding Officers of the Company in which the petitioner was ultimately placed upon reinstatement. The petitioner alleged that these two officers held animus against him and together convinced other officers at the Academy to impose punishments upon the petitioner. It was also contended that the punishments imposed upon the petitioner for various infractions were also discriminatory since for similar misdemeanors lesser punishment had been imposed upon other Cadets of the Academy. According to the petitioner the motive of the respondents was to somehow ensure that the petitioner does not continue in the Academy and his program is terminated. The petitioner relying upon the principles governing the imposition of punishments as embodied in paragraphs 29, 31 and 34 of the AI urged that the respondents were obliged to ensure that the punishments and penalties imposed were uniform, commensurate with the gravity of the offence and misconduct. Emphasis was laid on the note of caution as embodied in the AI which obliged the respondents, according to the petitioner, to exercise restraint and to recommend the cadet for counseling for minor offences and misconduct. He also laid stress on the provision of Para-31 (x) of the AI to contend that all previous misdemeanors and punishments imposed prior to his reinstatement pursuant to the judgment of this Court were liable to be condoned and an opportunity granted to a cadet to start afresh. Drawing the attention of the Court specifically to paragraph-34 of the AI the petitioner further submitted that the respondents were bound to take the steps of mentoring and counseling of cadets before taking the extreme step of awarding punishments and penalties. It was further urged that although the respondents alleged that as many as fifty restrictions had come to be imposed upon the petitioner, he was neither informed nor apprised of these punishments at the relevant time nor was he granted any opportunity to either explain or show cause against the same.

The fundamental legal challenge which was addressed rested upon the "Scales of Punishment"as set forth in Appendix-F of the AI and on the basis of which it was contended that the petitioner had been imposed punishments far in excess of the maximum stipulated thereunder and in many cases punishments which were not even authorised. It was submitted that both Clauses (e) and (k) of Para 31 of the AI cautioned the authorities of the Academy to invoke the maximum power of punishment sparingly and to ensure that restrictions are awarded only as a last resort. Referring to Para-34 of the AI it was contended that it clearly prescribed that the scales of punishment and penalties as set forth in Appendix-F were the maximum which could be awarded and that the penalty necessarily had to be within the scales as laid down in that Appendix.

This submission itself was addressed in the following factual backdrop. For instance dealing with the infraction of improper turn out it was pointed out that the petitioner was awarded 3 restrictions on 01 May 2017 contrary to Clauses 46-50 of Appendix-F which provided for the imposition of a punishment of 3, 5 and 7 Extra Drills [ED] for the first, second and third infraction respectively. Similarly it was pointed out that again on 29 May 2017 and 10 July 2017 the petitioner was imposed three restrictions contrary to the Scales of Punishment as provided in Appendix-F. Turning then to the incident which is stated to have occurred on 17 June 2017 when the petitioner is stated to have left his weapon unguarded, it was pointed out that the petitioner was inflicted the punishment of 7 restrictions whereas clause-26 of Appendix-F contemplated the imposition of 3, 5 and 7 restrictions for the first, second and third offence respectively. It was contended that undisputedly this was the first time that the petitioner had left his weapon unguarded and therefore, the imposition of 7 restrictions which is a punishment contemplated as liable to be imposed only for a third repeated misdemeanor was clearly unjustified and in any view of the matter beyond the Scales of Punishment as set forth in Appendix-F.

The petitioner further on the basis of the Note appended at the foot of Appendix-F contended that deletions or alterations in the Scales of Punishment were clearly prohibited and in any case could not be modified without the approval of the Head Quarters. On the strength of this Note it was urged that since no approval, specific or general, had been obtained from the Head Quarters by the respondents, the punishments could not have travelled beyond those prescribed in Appendix-F.

D. SUBMISSIONS OF THE RESPONDENTS

Countering these submissions, Sri Rai appearing for the Union-respondents has submitted that the allegation made against the officers of the Company in which the petitioner was reinstated were clearly unfounded and had been made irresponsibly. It was submitted that one of the officers against whom allegations had been levelled by the petitioner was not directly involved in his training during the senior term while the other officer was involved in the training of cadets. Sri Rai also pointed out from the averments made in the counter affidavit that out of the fifty restrictions which came to be inflicted upon the petitioner, only six had been awarded by the Platoon Commander and none had been awarded by the other officer against whom serious personal allegations had been levelled. The respondents have disclosed that the various punishments were awarded to the petitioner during his senior term by different officers and members of the training faculty.

The various misdemeanors of which the petitioner was accused and which resulted in the imposition of punishments have been set out in great detail in paragraph-33 of the counter affidavit. It was pointed out that the petitioner failed to observe the study period on 08 April 2017 which resulted in the infliction of 3 restrictions. It is then asserted that he was found on many occasions to be improperly turned out and without the requisite pocket contents resulting in the imposition of further restrictions. Details of the incident which occurred when the petitioner left his weapon unattended to have also been set forth. It is further disclosed that the petitioner also deviated from the designated route for the march which was prescribed and for which also he was punished. Sri Rai has then referred to the fact that the petitioner was once again found to be in possession of two unauthorised mobile phones which is viewed by the Army authorities as a serious infraction.

Dealing with the contention that the petitioner was unaware of the various restrictions inflicted upon him, it was pointed out that all restrictions are announced and intimated to the cadets in the Ante Room in accordance with the "Ante Room Procedure"prescribed. Additionally it was pointed out that the restrictions imposed against each and every Cadet is also displayed on the notice board and duly recorded in the Punishment Register and the personal Dossier of the cadet. Sri Rai in view of the above contends that the allegation that the petitioner was unaware of the restrictions imposed upon him is patently incorrect and devoid of substance.

Reverting to the disclosures made in the counter affidavit Sri Rai has also drawn the attention of the Court to paragraph-39 of that affidavit in which it is disclosed that the petitioner did not clear certain mandatory physical tests and also avoided undertaking the 10 meter jump. The respondents allege that the petitioner deliberately and without justifiable cause avoided completing this physical task. The 10 meter jump, the respondents explain, is a confidence measure designed to inculcate physical courage in a cadet and is an inalienable part of the life of an Army Officer. These qualities, according to the respondents, are core values and if absent in an officer is likely to jeopardise not only missions but also put the lives of men under his/her command at risk. The attention of the Court was also drawn to page-295 of the counter affidavit which sets forth the performance of the petitioner in the completion of the physical tasks assigned. Since this would have some bearing on the merits of the challenge raised in this petition, it is reproduced hereunder :-

PPT

GC NO.

NAME

COY

2.4 Km.

Run

5 Mtr Shuttle

100 Mtr

Sprint

Sit up

Chin

Toe

Touch

GRADING

REMARKS

27195

RAJAT AREN

FAIL

SAT

GOOD

FAIL

15 to 20 May 2017

I ATTEMPT

27195

RAJAT AREN

FAIL

19 to 20 Jun 17

II ATTEMPT

27195

RAJAT AREN

SAT

GOOD

PASS

18 TO 19 Jul 17

III ATTEMPT

BPET

GC NO.

NAME

COY

5 KM

RUN

60 MTR.

SPRINT

H/ROPE

V/ROPE

DITCH

GRADING

REMARKS

27195

RAJAT AREN

FAIL

05 to 09 Jun 2017

I ATTEMPT

27195

RAJAT AREN

FAIL

PASS

FAIL

05 to 07 Jul 17

II ATTEMPT

27195

RAJAT AREN

GOOD

PASS

28 to 29 Jul

III ATTEMPT

SWM

GC NO.

NAME

COY

50 Mtr

10 Mtr Jump

Overall

Result

Remarks

27195

RAJAT AREN

PASS

NA(ATT C)

15 to 20 May 17

I ATTEMPT

27195

RAJAT AREN

NA(ATT C)

20 Jul 17

II ATTEMPT

27195

RAJAT AREN

NA(ATT C)

19 Jul 17

III ATTEMPT

In order to appreciate the nature of the misdemeanors which are alleged to have been committed the Court also deems it apposite to extract the chart which appears at page 270 of the counter affidavit:

RECORD OF DISCIPLINE

S. No.

Dt. of Offence

Nature of Offence

Type of punishment

No. Awarded

Running Total

Awarded by

ARO No & Dr

11-Apr-17

NON OBSERVANCE OF STUDY PD.

FAILED TO OBSERVE STUDY PD ON 11 APR 2017.

RESTNS

PL CDR

253(p),

15 Apr 17

04/25/17

IMPROPER SQUAD DISCIPLILNE

WERE FOUND MOVING SINGLE MOUNT ON 25 APR 2017

RESTNS

ASST ADJUT

281(I),

28 Apr 17

1-May-17

IMPROPER TURNOUT WAS FOUND WITH A TORN SHIRT

RESTNS

BN AQ

318(aj)

12 May 17

5-May-17

IMPROPER TURNOUT WAS FOUND IMPROPERLY TURNED OUT DURING EX PRAHAR

RESTNS

COY CDR

5-May-17

UNBECOMING CONDUCT OF AN CADET. DURING EX PRAHAR WHEN ORDERED TO CARRY OUT RECEE ON FOOT IN X-COUNTRY ROUTE, HE MOV ON ROAD FOR RECEE

RESTNS

COY CDR

360(I),

26 May 17

12-May-17

THE GC HAS BEEN WARNED FOR ACCUMULATING MORE THAN 10 RESTNS IN ONE TERM

PL CDR

19-May-17

IMPROPER MAINT OF ROOM. CADET ROOM WAS FOUND IN A DIRTY STATE

RESTNS

PL CDR

360(r),

26 May 17

23-May-17

IMPROPER SHAVE. WERE FOUND IMPROPER SHAVE DURING EX PARVAT VIJAY ON 23 MAY 2017

RESTNS

PL CDR

398(f),

09 Jun 17

26-May-17

THE GC HAS BEEN WARNED BY THE COY CDR FOR ACCUMULATING MORE THAN 20 RESTRICTIONS IN ONE TERM.

COY CDR

29-May-17

IMPROPER TURNOUT. WERE FOUND IMPROPERLY TURNED OUT AND WERE CHECKED BY BGS DURING 84MM. RL SQD POST CLASS ON 29 MAY 17.

RESTNS

AA & WTO

398(s),

09 Jun 17

9-Jun-17

THE GC HAS BEEN WARNED BY THE BN CDR FOR ACCUMULATING MORE THAN 25 RESTRICTIONS IN ONE TERM.

BN CDR

17-Jun-17

IMPROPER HANDLING OF WEAPON. LEFT THE WPN UNGUARDED AND UNATTENDED ON 17 JUN 2017, AFTER THE COMPLETION OF 30 KMs. RUN AT FINISH POINT

RESTNS

COY CDR

452(cp),

30 Jun 17

10-Jul-17

IMPROPER TURNOUT. WHERE FOUND IN IMPROPER TURNOUT DURING FAT-3 DRILL

RESTNS

ASST ADJUT

488(aa),

14 Jul 17

15-Jul-17

THE GC HAS BEEN WARNED BY THE DCCI FOR ACCUMULATING MORE THAN 30 RESTRICTIONS IN ONE TERM

DCCI

17-Jul-17

UNAUTH POSSESSION OF MOB PHONE. ON 17 JUL 2017 AT 1600H HE WES FOUND IN POSSESSION OF UNAUTH MOBILE PHONE AT COY ANTE ROOM

RESTNS

BN CDR

521(a),

28 Jul 17

28-Jul-17

THE GC HAS BEEN MARCHUP TO JR COURSE BY THE COMDT FOR ACCUMULATING MORE THAN 42 RESTRICTIONS IN ONE TERM

COMDT

Addressing the legal challenge which is raised with respect to the scales of punishment Sri Rai has rested his case on the provisions of Para 31 (k) of the AI which provides that the scale and type of punishment/penalty can be increased with subsequent similar offences. According to Sri Rai although the petitioner was re-inducted in the Academy consequent to the decision of this Court rendered on 15 December 2016, he had failed to show any improvement and continued to commit serious acts of indiscipline. According to Sri Rai it was on a consideration of the overall conduct of the petitioner coupled with the fact that he continued to commit serious misdemeanors and indulged in repeated acts of indiscipline that the members of the Faculty imposed restrictions thus travelling beyond the Scales of Punishment as provided in Appendix-F.

E. THE IMPOSITION OF RESTRICTIONS

Dealing with the submission of the petitioner that the restrictions imposed from time to time were never communicated or made known to the petitioner, suffice it to note that in the rejoinder affidavit and more particularly in paragraphs 48, 51 and 56 thereof the petitioner has sought to contend that the Ante Room Procedure [ARO] is rarely followed, the notice board is not updated and that the officers do not make the punishments known to the individual cadets. This has been so stated in response to the assertions made by the respondents in paragraph 50 (V) of the counter affidavit in which it was disclosed that all restrictions imposed upon a cadet are duly published as per the ARO, announced in the Ante Room and also displayed on the Notice Board. It was further averred that as per the AI, as the number of restrictions accumulated by the petitioner were steadily increasing he was also counseled at different stages by the Platoon Commander, Company Commander, Battalion Commander and Deputy Commandant. All these factual assertions have been disputed by the petitioner who has gone on to allege that "fictitious interviews and counseling details" were recorded in his dossier.

However replying to paragraph 50 (V) of the counter affidavit specifically it is asserted that the procedure as prescribed by Paragraph 75 (a) and (b) of the AI was not followed. Paragraph 75 of the AI, it becomes relevant to note, has no application to the award of restrictions since it stands attracted only to cases where withdrawal is being ordered on disciplinary grounds. The imposition of restrictions is not envisaged to follow the procedure set forth in Paragraph 70 of the AI.

Significantly in his reply to the impugned show cause notices, the petitioner neither alleged nor asserted that he was unaware of the restrictions imposed upon him from time to time. The Court also notes that even the parents of the petitioner were informed and apprised from time to time of the number of restrictions which he had accumulated and that he was on the verge of being relegated yet again. The restrictions as per the respondents were made known to the petitioner from time to time in accordance with the ARO and also entered in his Dossier. It is further submitted by the respondents that the petitioner was also counseled by different staff members at the Academy from time to time. All these disclosures of fact are merely denied by the petitioner who seeks to portray a position as if he were totally oblivious of the infractions for which he was cautioned and punished by the respondents from time to time.

The plea of denial is, in the firm view of the Court, a dishonest defense and an abject objection conjured up for the purposes of this petition alone. The Court is constrained to enter this observation in light of the following. Firstly, no such plea was taken by the petitioner in reply to the show cause notices which were issued. Secondly the petitioner does not dispute the fact that even his parents were made aware by separate notices that he had accumulated these restrictions and faced the specter of relegation. Thirdly, it is pertinent to note that although Para 46 of the AI makes provision for an appeal being preferred by a candidate who considers himself/herself wronged, no such appeal was ever preferred by the petitioner during his entire senior term. It was always open to him to prefer an appeal alleging that he was unaware of the misdemeanors for which restrictions had been awarded. Fourthly, all punishments imposed are mandatorily entered in the Punishment Register and the Dossier of the cadet. It is therefore evident that every disciplinary measure is duly chronicled and recorded. It would therefore be preposterous to assume or believe that the petitioner was wholly oblivious of the infractions on account of which the restrictions came to be imposed.

Of utmost importance is the response of the petitioner himself to a pointed query of the Court addressed during the course of oral arguments. On being asked whether the infractions/incidents chronicled at page 270 of the counter affidavit did in fact occur, he did not deny the same. The Court further finds that the petitioner this time again was found in unauthorized possession of a mobile phone. Although this was sought to be explained by him that the phone in question was not a "smart phone" in his reply dated 27 July 2017 he admits being in possession of the phone and states "... I realise was my mistake."

In view of the above, it is evident that the assertion that the petitioner was unaware of the restrictions is incorrect and not liable to be accepted. Despite having been apprised of the punishments imposed he failed to prefer any appeal against the same as was provided under the AI. The petitioner also never raised this objection at any time before the respondents. He also did not assert this in his reply to the show cause notices issued. The conduct of the petitioner thus clearly establishes the incorrectness of the plea as taken.

F. THE ASPECT OF MALA FIDES

The allegations of mala fides are then taken up for consideration. As was noted hereinabove, while reproducing the contentions urged by the petitioner, it was asserted that the two officers attached to his Company bore animus against him and influenced all other members of the Faculty to impose punishments upon him. This basic allegation was repeatedly employed in order to buttress his contention that the entire action of the respondents reeked of mala fides and was designed to ensure that the petitioner is withdrawn from the Academy itself. The allegation of mala fides was also addressed in the backdrop of the assertion of the petitioner that even in the matter of imposition of punishments, the respondents adopted a discriminatory attitude towards him and imposed penalties and punishments far greater than those meted out to other cadets for similar infractions. The Court however, finds itself unable to countenance these allegations for the following reasons.

On a fundamental plane, the Court notes that none of the officers against whom the allegations of mala fides were alleged are arrayed as party respondents herein. If the petitioner sought to assail the impugned action on the ground of mala fides, it was imperative that he ensure that those officers were duly impleaded and consequently afforded an opportunity to rebut the allegations levelled. It is also relevant to note that although two Platoon Commanders were initially impleaded as respondent Nos. 8 and 9 in these proceedings, they were deleted from the array of parties pursuant to the liberty sought by the counsel appearing for the petitioner and granted by the Court on 14 September 2017. Regard must also be had to the fact that the two officers were deleted from the array of parties at a time when the petitioner was duly represented by a counsel of this Court. Secondly the Court notes the undisputed assertion of the respondents that out of the 50 restrictions inflicted upon the petitioner in his entire Senior Term, only six had been awarded by the original respondent No. 9. It is therefore manifest that all the other restrictions apart from the six imposed by the original respondent No. 9, were awarded to the petitioner by other members of the Faculty. The allegation that the two Platoon Commanders were instrumental and able to influence all other members of the Faculty is noticed only to be rejected since not only is that allegation devoid of material particulars, it is clearly made irresponsibly and is also scurrilous in character. Bearing in mind the fact that the punishments were imposed by more than one member of the Faculty of the Academy, the Court finds itself unable to hold that the entire action of the respondents was motivated to penalize the petitioner particularly. There is no material on the record which may constrain the Court to conclude that all and sundry in the Academy bore ill will against the petitioner.

The Court further takes note of the averments made in paragraph 42 of the counter affidavit in which the following significant details are set forth. According to the respondents, right from 6 October 2014 when the petitioner joined the Academy up to 9 September 2017 when the petitioner was relegated for the second time in his senior term, as many as 1290 Gentlemen Cadets and LCs graduated and only 3 cadets were withdrawn on disciplinary grounds. The number of candidates withdrawn on disciplinary grounds constitutes a mere 0.002% of the total strength of the Academy. The Court consequently finds itself unable to either countenance or accept the allegations levelled against the members of the Faculty or to hold that the affairs of the Academy were being conducted otherwise than fairly and equitably.

G. APPENDIX F AND THE SCALES OF PUNISHMENT

That then takes the Court to deal with the principal legal submission as addressed by the petitioner and turning upon Appendix 'F' of the AI relating to the Scale of Punishments.

From a perusal of the various infractions committed by the petitioner during the course of his Senior Term and extracted hereinbefore, it is evident that the punishments imposed travel beyond the scales as set forth in the Appendix 'F'. For instance while Appendix 'F' prescribes the punishment of 3, 5 and 7 Extra Drills for repeated instances of improper turn out, on 1 May 2017 when the petitioner was first punished for improper turnout, the penalty which is imposed is of 3 restrictions. Similarly while the Appendix contemplates a similar and identical scale of punishment for improper shave, the petitioner on 23 May 2017 was inflicted 3 restrictions. Even for improper handling of a weapon, the Court notes that the Appendix prescribes a punishment of 3 restrictions for the first such misdemeanor. However, in the case of the petitioner on 17 June 2017, the punishment inflicted was of 7 restrictions. It becomes pertinent to note here that the punishment of 7 restrictions is liable to be inflicted only in a situation where the aforesaid misdemeanor is committed for a third time. In the case of the petitioner, the respondents have failed to establish that this was in fact the third occasion when the petitioner left a rifle or weapon unguarded. It must also be noted that the only instance where the punishment appears to be in accord with the scales as provided in the Appendix is with respect to the unauthorised possession of a mobile phone. The punishment imposed upon the petitioner in this respect was of 14 restrictions which is in accordance with clause 21 of Appendix 'F'.

Clause 34 of the AI in unambiguous terms provides that the Scales of Punishments as set forth in the Appendix are the maximum punishment/penalty to be awarded. It then provides that discretion and judgment to be used in awarding punishment must be exercised within the laid down scales. Clause 34 reads thus: -

"34. The Scale of Punishment/Penalties and Conduct of Punishment/Penalty are given in Appendices 'F' and 'G' respectively. These scales are maximum punishment/punishments/penalties within the laid down scales. Mentoring and counseling of errant Gcs/LCs/Service Cadets is imperative before taking the extreme step of awarding punishments/penalties."

Of equal significance are clauses (d), (e), (k) and (x) of Paragraph 31 which read thus: -

"31. The following guiding principles will be followed: -

(d) Punishment/penalty awarded must be commensurate with the gravity of the offence/misconduct based on omission of commission, before giving the award.

(e) The maximum power of punishment/ penalty vested in each authority should be used sparingly. The next superior authority must be informed when a punishment/penalty has been awarded to a GC/LC/Service Cadet.

(k) Restraint will be exercised while awarding punishments/penalties. In case a GC/LC/Service Cadet commits a minor offence/misconduct for the first time, it is 'recommended' that counselling be resorted to or Extra Drill (ED) be awarded rather than Restrictions. The scale/type of punishment/penalty can be increased with subsequent similar offences. Restrictions are serious award and must be awarded as a last resort. However, no leniency will be observed in grave/serious offences/misconducts.

(x) When a GC/LC/Service Cadet is relegated on disciplinary grounds and has some punishments/penalties still to his/her credit, these will be condoned and he/she will be given an opportunity to start afresh"

From a plain reading of the provisions made in Para 31, it is evident that the punishment which is imposed upon a Cadet must be commensurate with the gravity of the misconduct and that restrictions are viewed as an extreme and major punishment to be awarded only as a measure of last resort. The aforesaid provisions further mandate and oblige the authorities to bear in mind that the maximum power of punishment/penalty is used sparingly. The award of punishments therefore would have to necessarily be in conformity with the principles enshrined in Paras 31 and 34 of the AI.

The pivotal provision which governs the imposition of punishment clearly appears to be Para 34. This is manifest from the language in which it is couched and the unambiguous prescription made therein which provides that the scales set forth in Appendix 'F' are the maximum penalties that can possibly be awarded. The discretion vested and conferred on the authorities of the Academy to be used while awarding punishment is also not left unfettered. This is evident and manifest when Para 31 provides that the same would have to be necessarily exercised "within the laid down scales".

The submission of the petitioner made with respect to the Note appended at the end of appendix 'F' however, is misconceived. The Note, when it provides that no deletions or alterations in the Scale of Punishments are permitted without the approval of the Headquarters, is clearly one of caution put in place and confined to the power to amend the Scales of Punishments alone. The AI admittedly applies to all the Training Academies established by the Army Training Command. The Note placed at the end of the Appendix therefore makes a provision to ensure that individual Academies do not either amend the Scales of Punishments or follow separate and distinct scales of punishment. The Note in this sense has no bearing to the principal issue which is canvassed.

The Court also finds itself unable to accept the contention raised by the respondents for justification of punishments having been imposed beyond the scales prescribed on the basis of Para 31(k). While it is true that Para 31 (k) does empower the authorities to increase the scale or type of punishment for subsequent and similar offences, this provision must be read harmoniously and along with the provisions made in Para 34. The power to increase the type of punishment stands firstly restricted to situations where a Cadet commits subsequent similar offences. As is evident from the punishments imposed upon the petitioner alongside the infractions committed, the same was not imposed for repeat offenses. Even in the case of improper turn out, although the petitioner was penalized more than once, the punishments imposed travel beyond those prescribed in Appendix F. Secondly Para 31(k) has not been conferred any overriding effect over Para 34. When harmoniously construed, it is evident that the power conferred by Para 31(k) must necessarily be read as being subject to the rigours imposed by Para 34. On an overall consideration of the aforesaid, it is therefore evident that the punishments imposed upon the petitioner travel beyond the contours prescribed in Appendix 'F' and therefore cannot be sustained.

H. WHETHER WITHDRAWL IS OTHERWISE JUSTIFIED

The Court then arrives at the crucial crossroad of assessing whether the findings recorded hereinabove with respect to the ambit of Appendix 'F' are sufficient to close this chapter and to conclusively hold against the respondents. The matter, in the considered view of the Court, cannot possibly end here. While the respondents may have failed to justify the departure from the scales of punishment prescribed with the aid of any provision made in the AI, it is still incumbent to consider whether the conduct of the petitioner otherwise warranted the imposition of the punishment of relegation and consequent withdrawal. This aspect must be necessarily evaluated on the basis of the material on record and which was taken into consideration by the respondents while framing the proposals of relegation and withdrawal. Of equal significance and import would be the aspect of the undertaking furnished by the petitioner before the Division Bench in Appeal and which clearly formed a basis for the Court ultimately modifying the punishment imposed by the respondents.

As is evident from the proposal framed by the Academy for recommending relegation, the Commandant took into consideration not just the aspect of the petitioner having accumulated more than 42 restrictions in a term, he had also taken note of the fact that the petitioner had failed to meet and clear mandatory physical tests. From the disclosures made in the counter affidavit and the report placed at page 295 of the Counter Affidavit extracted herein before, it is evident that the petitioner failed to clear various physical goals set by the Academy. Of significance is the recital in the report drawn by the Commandant of the petitioner failing to achieve the basic minimum standard in the 5 meter jump and his failure to undertake the 10 meter jump. The Commandant was consequently constrained to observe that his performance indicated low confidence and that he had exhibited low physical courage. It was consequently noted that the petitioner had a below average OLQ grading.

Of equal importance is the allegation of the petitioner not only repeatedly failing to perform the physical tasks but his deliberate avoidance to execute these mandatory exercises. This aspect cannot be lightly overlooked or brushed aside especially when the Court bears in mind that the petitioner aspires to be an officer in the armed forces. Physical tests mandated in the training course are not just meant to test the physical strength of a cadet but also to evaluate his endurance levels, his mental capacity, his ability to overcome fear and cross psychological boundaries and the limitations of the mind. It enables the Academy to test the ability of a cadet to break and overcome the barriers of the psyche. After all, a cadet is to be prepared to lead men into battle in the future. The physical test, thus, is an important and inalienable facet of training as a whole.

Paragraph 60 of the AI sets out the grounds for relegation. While in terms of clause (d) thereof a Gentlemen Cadet is liable to be relegated in case he is awarded more than 42 Restrictions in a term, of equal significance is clause (e). Paragraph 60 (e) reads thus:

60. A GC/LC/Service Cadet may be relegated to the junior term for the following reasons:-

(e) If he/she fails to achieve the required pass marks in academics and service subjects, fails to achieve minimum standards in outdoor training including physical training and any other aspect/sphere of training, including Officer Quotient and the required standard in overall performance."

It is evident from Para 60 (e) that even where a cadet fails to achieve the minimum standards for physical training or any other aspect or sphere thereof including of Officer Quotient and the required standard in overall performance, that too constitutes a ground warranting the relegation of a cadet. From the facts noted above, undisputedly the petitioner not only failed to clear various mandatory physical tests, he was also rated as below average insofar as his OLQ grading was concerned. The respondents have further found that he exhibited a low Officer Quotient.

Consequently even if the Court was to hold in favour of the petitioner that he could not be said to have accumulated more than 42 Restrictions in a term, it is manifest that he would clearly fall foul of the provisions made in paragraph 60 (e). This would, in the considered view of the Court, constitute a sufficient ground to sustain the decision of relegation as ultimately taken by the respondents.

I. PARTIAL ILLEGALITY AND SEVERABILITY

As per the conclusions recorded above, the Court has been unable to sustain the impugned action on the basis of more than 42 restrictions having been imposed upon the petitioner. The action of relegation insofar as it rests on the provisions of Para 60 (d) of the AI cannot be sustained. However as explained above, the petitioner was liable to be relegated even otherwise and in light Para 60 (e) of the AI since he failed to meet some of the essential physical goals as set in the training course. The question which therefore arises is whether the action of the respondents is liable to be sustained in this light. To put it in other words, the core issue which arises would be whether the Court should refrain from interfering with the impugned action in this light.

Before proceeding to consider the question as framed it would be appropriate to briefly notice the contours of the powers conferred upon a Court while issuing a writ of certiorari. This particular writ is issued to strike down decisions of a judicial or quasi-judicial authority firstly where it is established that the decision suffers from a manifest error apparent on the face of the record. Secondly, it is not every error of fact or law which is liable to be corrected with the issuance of the writ. It must also be established that grave injustice or a gross failure of justice has been occasioned thereby.

In B.K. Muniraju Vs. State of Karnataka2 the Supreme Court observed:-

"24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."

Again in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd.3, the Supreme Court held:-

28. The High Court ought to have considered that it was a writ of certiorari and it was not dealing with an appeal. The writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. Such errors may include the giving of reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Such a writ can be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to act. While issuing the writ of certiorari, the order under challenge should not undergo scrutiny of an appellate court. It is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the statutory authorities. There must be a breach of the principles of natural justice for resorting to such a course. (Vide Harbans Lal v. Jagmohan Saran[(1985) 4 SCC 333 : AIR 1986 SC 302], Municipal Council, Sujanpur v. Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] , Sarabjit Rick Singh v. Union of India [(2008) 2 SCC 417 : (2008) 1 SCC (L&S) 449] and CIT v. Saurashtra Kutch Stock Exchange Ltd. [(2008) 14 SCC 171])"

From the principles enunciated in the two decisions noticed above, it is manifest that for a writ of certiorari to issue, the twin tests of manifest error on the face of the record and grave injustice must be satisfied. It is here that the doctrine of "partial illegality" and "severability" also assumes significance.

What the doctrine of partial illegality or severability bids the Courts to consider is whether a decision should be interfered with even though it is found to be sustainable on some of the grounds which formed its basis. The doctrine is invoked principally in situations where the Court finds that although some of the grounds or reasons underlying that decision may be unsustainable, however, if on an overall conspectus it finds that the order can be sustained on some or even one of the reasons which weighed upon the authority concerned, it would desist from interfering with the order. The only other caveat which applies to the invocation of this doctrine is that it must be established that the reasons or conclusions which cannot be countenanced are separable and severable from the others which were taken into consideration by the administrative authority. In order to satisfy this caveat it must be established that the impugned action can be sustained even if the unsustainable part of the order were removed or quashed.

The principle was applied by a Constitution Bench of the Supreme Court in Sewpujanrai Indrasanrai Ltd vs The Collector Of Customs4 in the following terms:-

19. We are, therefore, of the view that the Collector of Customs had no jurisdiction to impose any of the two conditions mentioned above-. What then is the result? On behalf of the appellant it has been argued that the order being a composite and integrated order, it is not severable; and secondly, it is contended that on an application for a writ of certiorari, the superior Court must quash the whole order when it is found to be bad and in excess of jurisdiction even as to a part thereof. The question of severability does not present any great difficulty. It has been the subject of consideration in more than one decision of this Court, and in the recent decision in R. M. D. Chamarbaugwalla v. Union of India [(1957) S.C.R. 930] the principles governing it have been summarised. Applying those principles we find no difficulty in holding that the invalid conditions imposed by the Collector are not so inextricably mixed up that they cannot be separated from the valid order of confiscation and fine in lieu thereof; there is also no doubt that the Collector would have passed the order of confiscation and fine in lieu thereof on his finding that the gold was smuggled gold, even if he realised that the conditions he was imposing were invalid; it is also clear that the conditions do not form part of a single scheme which can be operative only as a whole. ..........

There is no legal difficulty in enforcing the rest of the impugned order after separating the invalid conditions therefrom; on the passing of the order of confiscation, the gold vests in Government and s. 183 does not make it obligatory on the Collector to fix a time limit for payment of the fine in lieu of confiscation. It is really for the benefit of the owner that a time is fixed for payment of the fine. Even if the time limit is altered, by no stretch of imagination can it be said that such alteration amounts to judicial legislation. For these reasons we agree with the Division Bench of the High Court that the invalid conditions imposed by the Collector in this case are severable from the rest of the impugned order."

Again in Nirmala J. Jhala V. State of Gujrat5, the Supreme Court observed: -

"23. In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537, this Court while dealing with the issue of scope of judicial review, held as under:

"10.......The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."

24. The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision- making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."

In Gajendra Prasad Saxena Vs. State of U.P.6 this Court had the occasion to notice the body of precedent on the subject of partial quashing and explained the legal position in the following words:-

17. The principle of an unconstitutional provision of a statute being severed and struck down leaving other parts untouched is well known. The said principle of severability has been extended to orders also. This is how the above position was explained by the Constitution Bench of the Apex Court in Y. Mahboob Sheriff and Sons Vs. Mysore State Transport Authority AIR 1960 SC 321.

"(10a) This brings us to the question of relief to be granted to the petitioners. It is contended on behalf of the Department that all that this Court can do is to quash the order of December 15, 1958, and send the case back to the Authority for consideration of the question of renewal afresh. On the other hand, the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with Section 58(1)(a) in the order of renewal. This raises the question of severability of a part of the order passed by the Authority. The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R.M.D.. Chamarbaugwalla v. The Union of India, 1957, S.C.R. 930:((S) AIR 1957 SC 628) and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. This principle relating to statutes was extended by this Court to orders in Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs, 1959 SCR 821; (AIR 1958 SC 845), where a part of the order of the Collector of Customs was quashed. The question therefore resolves into this: would the Authority have ordered renewal if it knew that it could not reduce the period of a permit to below three years ? Looking at the facts of these cases which we have set out earlier, it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December 1958. The previous permits in these cases had expired on March 31, 1958, and the petitioners had been plying their stage carriages right up to the time when the order was passed on December 15, 1958; they could not do so without a permit in view of S. 42 of the Act. Therefore, renewal in these cases was certain when the order was passed on December 15, 1958. In the circumstances it is open to us to sever the illegal part of the order from the part which is legal, namely, the grant of the renewal."

18. Following the principle laid down above, the doctrine of severability was applied to an order of dismissal with retrospective effect by the Apex Court in R. Jeevaratnam Vs. State of Madras AIR 1966 SC 951 in the following manner:-

"4. The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two parts of this composite order are separable. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service".

19. The above position in law as struck by the Hon'ble Supreme Court was reiterated again in State Bank of Patiala Vs. Ram Niwas Bansal (2014) 12 SCC 106 in the following words:-

"15. Regard being had to the nature of controversy, we shall proceed to deal with the first point first, that is, whether the order of removal could have been made with retrospective effect. Mr Patwalia, learned Senior Counsel appearing for the employee, has submitted that the disciplinary authority could not have passed an order of removal by making it operational from a retrospective date. He has commended us to a three-Judge Bench decision in R. Jeevaratnam v. State of Madras [R. Jeevaratnam v. State of Madras, AIR 1966 SC 951] . In the said case, the appellant therein instituted a suit for a declaration that the order of dismissal from service was illegal and void. The trial court dismissed the suit and the said decree was affirmed in appeal by the High Court. One of the contentions raised before this Court was that the order of dismissal dated 17-10-1950 having been passed with retrospective effect i.e. 29-5-1949, was illegal and inoperative. This Court opined that an order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The said principle has been followed in Gujarat Mineral Development Corpn. v. P.H. Brahmbhatt [(1974) 3 SCC 601 : 1974 SCC (L&S) 102]."

20 One may in this connection also usefully refer to the enunciation of the principle of severability as laid down by the Apex Court in State of Mysore Vs. K. Chandrasekhara Adiga (1976) 2 SCC 495.

"27. The only question that remains to be considered is, whether the High Court should have quashed the order of assignment in toto or only the illegal part of it. This question depends on the exigencies of each case because this Court is not fettered in the exercise of its discretion by the technical rules relating to the issue of writs by the English courts. The first point to be considered in the context of making an appropriate order or direction in such cases is whether the valid and the invalid portions of the order are severable, and if so, whether after excision of the invalid part, the rest remains viable and self-contained. In the instant case the illegal condition in the order of assignment is not an integral part of the assignment, in the sense, that its deletion cannot render the rest which has been found to be valid, truncated and ineffective."

21. This Court is of the opinion that in light of what was found by the Enquiry Officer on the evidence and material before it, the Disciplinary Authority would have been fully justified in imposing the minor penalties finding mention in the impugned order. In situations like these the Court is also mindfull of what the Apex Court held in State of Orissa Vs. Bidyabhushan Mohapatra AIR 1963 SC 779-

"9. ........The recommendation of the Tribunal was undoubtedly founded on its findings on Charges 1(a), 1(c ), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained because in arriving at the findings the Tribunal had violated rules of natural justice.............Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant........."

23. In a position of this nature, this Court exercising powers under Article 226 of the Constitution of India can very well proceed to partially quash an order if it finds that the invalidity can be earmarked and separated/excised from the otherwise valid part of the order assailed before it. In the facts of the present case, this Court finds that the invalidity by which the impugned order suffers pertains only to the imposition of major penalties. The said part of the order is severable and it is to that extent alone that this Court feels compelled to interfere. It is the undisputed position that under the Rules, 1999 insofar as the power of imposition of minor penalties is concerned, the same was not liable to be preceded by an oral enquiry. The Rules, 1999 only mandated that the authority would elicit an explanation from the concerned employee and proceed to pass orders after taking the same into consideration. The authority, therefore, would have been fully justified in making the order impugned on the basis of the response submitted by the Petitioner and the material before him."

Applying the principles noted above, the Court finds that while it is true that one of the cornerstones on which the impugned action of relegation rests is Para 60 (d), the Court has additionally found that the respondents have in their recommendation also found that the petitioner had failed to qualify and complete certain mandatory physical tests and was consequently rated as below average under the head of Officer Quotient. While Para 60 (e) may not have been specifically alluded to or mentioned, it is evident from a plain reading of that provision that a failure to achieve minimum standards in outdoor training including physical training in any other sphere of training does constitute a ground on which a cadet may be relegated. It is therefore manifest that the petitioner was liable to be relegated in accordance with the provisions of Para 60 (e) of the AI. The relegation on this score is separate and clearly distinct from the ground of accumulation of more than 42 restrictions. It rests on independent and separate circumstances. It is clearly severable from that part of the order which proceeds on the premise of accumulation of restrictions and has independently been found by the Court to be sufficient to sustain the ultimate punishment of relegation. The ultimate decision of the respondents is therefore entitled to be sustained on this score.

J. THE PETITIONER'S UNDERTAKING BEFORE COURT

As noted above, the Division Bench while disposing of the Special Appeal preferred by the petitioner had taken on board his undertaking of future good conduct and noted the same in the following words:-

"We may also note that before us the appellant has undertaken and stated unequivocally that he shall adhere to the norms and standards of the Academy and that he shall not give any cause for the respondents to be constrained to take disciplinary action against him in the future. This undertaking of the appellant is duly recorded and accepted. We are further of the considered view that the appellant must be put to terms and be commanded to furnish an undertaking on similar terms to his Commanding Officer which we hereby do and direct"

Despite the solemn undertaking furnished in the above terms before this Court, the petitioner has failed to abide by the same. He has willfully acted in breach thereof. The respondents were constrained to take disciplinary measures against him on 16 different occasions. All these incidents occurred after the petitioner was reinstated in the Academy pursuant to the judgment rendered by this Court. The infractions and misdemeanors committed by the petitioner relate to improper turn out, conduct unbecoming of a cadet, improper handling of a weapon and unauthorised possession of a mobile phone. As also noted above, the petitioner did not deny the occurrence of these incidents before this Court. The Court is further constrained to note that the admitted illegal possession of a mobile phone is a manifest violation which was repeated by the petitioner. In fact it formed the very basis of the action which was taken by the respondents on the last occasion which led to litigation ensuing before this Court. There has thus been an evident violation of the undertaking given to this Court. The hope expressed by the Division Bench that the petitioner would reform and rededicate himself has been clearly belied.

The Army is essentially a way of life. Discipline and strict adherence to set principles of conduct form not just its core but are an indelible and inseparable part of a life in the armed forces. These twin elements cannot be compromised at any time. A future officer must not only inculcate these values but also adopt these principles and transpose them into a way of life itself. An officer is expected to breathe and live by these values at all times. After all, an officer in the armed forces is envisaged to be a leader of men. Transgressions of these values do not deserve to be overlooked or brushed aside. They play a pivotal role in enabling the Academy to assess whether a cadet possesses the qualities of a future Officer. The requirement of adherence to these standards of conduct can neither be interfered with nor condoned on sympathy. Sympathy in any case in the facts of this case would be clearly misplaced and even unjustified.

K. CONCLUSIONS

On an ultimate analysis the Court finds that the allegations of mala fides were levelled irresponsibly and are even otherwise not established. The contention that the petitioner was unaware of the imposition of relegations and the violations for which they were meted out is incorrect. The violations were clearly made known to the petitioner and were duly chronicled. The petitioner raised this issue for the first time in these proceedings and took no such objection in his reply to the show cause notices. He also did not choose to prefer any appeal against the imposition of these disciplinary measures at any point of time prior to the institution of the instant writ petition. Last but not the least, the petitioner did not deny the occurrence of the violations of the code of conduct before this Court.

The respondents have failed to justify the imposition of relegations in violation of the Scales of Punishment as set forth in Appendix F. The AI mandates the imposition of punishments in accordance with the provisions made in Para 34. They were consequently and legally bound to impose punishments "within the laid down scales". While the impugned action may not be sustainable on this score, undisputedly the order of relegation rested on the twin pillars of accumulation of relegations and the admitted failure of the petitioner to successfully complete mandatory physical tasks. It was in this sense referable to both clauses (d) and (e) of Para 60 of the AI. Consequently and despite the Court having found itself unable to uphold the order of relegation on the strength of Para 60 (d), the impugned action is liable to be upheld in light of Para 60 (e). The two parts are separate and distinct and in light of the doctrine of "partial illegality" and "severability" which has been found to be applicable to administrative actions also, the order ultimately does not merit interference.

The Court has also found that the petitioner despite the assurance and undertaking given to this Court as recorded by the Division Bench, indulged in acts which were unbecoming of a gentleman cadet. He has willfully breached the undertaking as furnished and has also belied the hope and belief that he would reform and improve. Adherence to discipline and a mandated code of conduct are essential and inviolable elements of a life in the armed forces. These can neither be lightly interfered with, diluted nor condoned on sympathetic considerations. The Court must necessarily balance the interests of the cadet and the Academy and invoke its jurisdiction and powers only in cases where it finds the action to be wholly unjustified or perverse. In the facts of the present case and in light of the conclusions arrived at above, it finds no justification to either interfere with the action of the respondents or grant relief to the petitioner.

The writ petition consequently fails and is dismissed.

Order Date :- 26.3.2019

Arun K. Singh

(Yashwant Varma, J.)