M V S N A Bhagawan vs Union Of India
2021 Latest Caselaw 3287 AP

      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

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

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.

2005 (7) SCC 227

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.

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.

(2018) 18 SCC 478

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.

(1974) 4 SCC 3

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

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

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.

(1991) 2 SCC 288

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‟.

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

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