K.S. Chauhan (Col.) vs Union Of India
1999 Latest Caselaw 547 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has challenged the order dated 26.12.1995 passed by the fourth respondent imposing severe displeasure and the order passed by the Government of India dated 20.6.96 confirming the same. The petitioner was working as Colonel in the Indian Army. The petitioner was also selected for promotion to the acting rank of Brigadier. But by his acting of indiscretion in violating the terms of the Army Officers Housing Organisation, he had deprived himself of his promotion.

2. The short facts culminating in the filing of the writ petition could be stated in the following terms: The petitioner was allotted a flat on the 2nd of March, 1989 in NOIDA by the Army Welfare Housing Organisation. On the 6th of June, 1989, the petitioner entered into an agreement to sell with power of attorney and a 'Will' with ex-Wing Commander K.P. Dwivedi.

This was in violation of the terms and conditions of the Rules and Regulations of the Army Welfare Housing Organisation.

3. In the year 1992, a Court of Inquiry was ordered. In June, 1992, the Court of Inquiry gave the following opinion:-

"On through examination and in depth study of the proceedings, the Court is of the opinion:-

(a) that there has been no "sale" of the flat allotted to IC-23096A Lt. Col. K.S. Chauhan to Wing Cdr. K.P. Dwivedi as alleged, as no sale deed, or transfer deed for the same has been executed over.

(b) that no Rule/Bye law of AWHO has been flouted by payments by Wg. Cdr. K.P. Dwivedi on behalf of Lt. Col. K.S. Chauhan who was acting on the authority of Lt. Col. K.S. Chauhan.

(c) that IC-23096A Lt. Col. K.S. Chauhan got into an "agreement to sell" on 06 Jun 89 with Wg. Cdr. K.P. Dwivedi as a part of an overall financial arrangements, to tide over his financial commitments to AWHO. The flat was never sold on Power of attorney to Wg. Cdr. K.P. Dwivedi as reported by AAWHO to Adjutant General's Branch and others. In fact neither Lt. Col. K.S. Chauhan nor Wg. Cdr. K.P. Dwivedi were given possession of the said flat by AWHO, although they got into an "agreement to sell" wherein a clause for obtaining permission to sell from AWHO, by Lt. Col. K.S. Chauhan, the allottee was to be obtained.

(d) that the General power of Attorney, the only power of attorney signed by the officer Lt. Col. K.S. Chauhan, is for a specific purpose for taking over the dwelling unit allotted to him by AWHO, authorising Wg. Cdr. K.P. Dwivedi to take over the same on his behalf. There has been no mention of any sale in the power of attorney which is as per the requirement of AWHO.

(e) that no serious offence has been committed by the officer Lt. Col. K.S. Chauhan, as no laid down Rules/Bye laws of July 87 brochure of AWHO, the operative brochure, have been isolated. On the contrary AWHO has been taking all actions unilaterally, without referring the matter to the allottee Lt. Col. K.S. Chauhan or his authorised representative Wg. Cdr. K.P. Dwivedi, thereby leaving no room for corrective measures or guidance to the officer from time to time.

(f) that a suitable house/flat be earmarked for Lt. Col. K.S. Chauhan by AWHO in NOIDA scheme and administrative action be taken to steam line the procedure at AWHO.

(g) that a suitable administrative action be also taken against IC-23096A Lt. Col. K.S. Chauhan for getting into and "agreement to sell" and executing loan agreement without reference to AWHO."

4. On the 24th of June, 1992, Major-General, S.C. Kashyap, GOC, recommended in the following terms:-

1. I partially agree with the : opinion of the Court.

2. I recommend the following:-

(a) Lt. Col. K.S. Chauhan be suitable cautioned for improperly entering into and executing a loan agreement with Wg. Cdr. K.P. Dwivedi (Retd.).

(b) Suitable alternative house/flat be earmarked for Lt. Col. K.S. Chouhan by the AWHO at NOIDA on priority.

(c) It is evident that AWHO has also not been entirely blameless in certain facets of it's functioning. Therefore, AWHO be advised by the appropriate auth to streamline their procedures in regard to allotment/cancellation of dwellings to the allottees and make comprehensive byelaws. This will instill confidence among the allottees.

(d) AWHO is a registered society like any other housing society and only functions under the aegis of the Army for welfare purposes. Therefore, any dispute between allottees and be AWHO and vice versa be settled as laid down in Chapter IX of the Rules of the AWHO, rather then ref. the matter to Army HQ, DV Dte as in the instant case. Appropriate auth may issue suitable guide lines/instars on the subject."

5. On the 26th of February, 1992, the Agreement vendee of the petitioner, Wg. Cdr. K.P. Dwivedi, sent his complaint to the Army Headquarters. On the 31st of August, 1993, Brig. J.R. Mukherjee, DDG D&V(A), for Adjutant General, wrote to the HQ Western Command, Chandimandir in the following terms:-

"1. Reference is made to your letter No. 0337/GEN/DV-2 dated 26 Oct., 92 and signal A-1670 dated 08 Apr, 93.

2. In this connection, a copy of the complaint dated 26 Feb. 93 received from ex-WG Cdr. K.P. Dwivedi is enclosed herewith.

3. Whilst your recommendations on the functioning of the AWHO are being dealt with by the appropriate authorities, subsequent facts emerging from the complaint of Wg. Cdr. Dwivedi (Retd.) clearly establish a prima facie case of fraud and mis-appropriation against Lt. Col. Chauhan, as follows:

(a) Lt. Col. Chauhan assured Wg. Cdr. Dwivedi (Retd.) that he was competent to sell and transfer the flat and accordingly executed various legal documents like Agreement of Sale, Power of Attorney etc. He acted dishonestly by suppressing the fact that the flat could not be sold.

(b) The officer entered into an agreement to dispose off the flat on a premium of Rs. One lakh against the rules of the AWHO which is considered to be an unbecoming conduct.

(c) The flat had cost Wg. Cdr. Dwivedi Rs. 5,97,248/- including a sum of Rs. 1,31,337/- paid by him to Lt. Col. Chauhan. On cancellation of the allotment by AWHO, the officer paid back Rs. 4,92,700/-. However, he has still not paid back the premium of Rs. 1,00,000/- and Rs. 4,548/- which was deducted as a penalty. This behavior of the officer amounts to moral turpitude.

4. You are, therefore, requested to take a view after investigating the aspects brought out in para 3 above and initiate appropriate action."

6. On the 16th of January, 1995, a notice was issued by Wg. Cdr. K.P. Dwivedi, through his counsel, to the Chief of the Army Staff. On the 6th of March, 1995, Headquarters Eastern Command wrote to Adjutant General's Branch(DV-2), Army HQ, New Delhi in the following terms:-

"1. The case has been examined de-novo in consultation with Army HQ and JAG Branch this HQ. A review of the action/conduct of illegal sale of AWHO flat by the offer has led to the following conclusions:-

(a) That Wg. Cdr. K.P. Dwivedi and Col. K.S. Chauhan entered in the deal knowing fully well that it was irregular.

(b) That indulgence on the part of Col. Chauhan in the deal which was illegal, at the outset, is a conduct unbecoming of an officer and against the military ethos and discipline.

(c) That Col. K.S. Chauhan has accepted Rs. 1,94,548/- as premium which he owes to Wg. Cdr. Dwivedi.

(d) The plea of your HQ that Wg. Cdr. Dwivedi is responsible for the deal falling through is no reason for Col. Chauhan not to return the premium that he had taken.

2. Your HQ will appreciate that Col. Chauhan's culpability in the entire episode cannot the overlooked especially the motive for irregular sale of his flat for personal gain and thereafter his deliberate and wilful reluctance to return the money due to Wg. Cdr. Dwivedi (Retd.). Such misconduct needs to be dealt with appropriately in the interest of discipline and propriety.

3. In view of the foregoing it has been now decided that a court of Inquiry be ordered by your HQ to go into all aspect of the case and further action on this case will be taken on the basis of this C of I. While ordering the C of I, strict compliance of proven of Army Rule 177, Army Rule 180 and 181 and para 518 of the Regs for the Army 1987(PSR), must be ensured. No deviation will be accepted. For calling civil/retired defense pers, your attn. is invited to the proves of Army Act See 135.

4. Completed C of I proceedings along with recommendation of GOC 101 Area be sent to this HQ by 20 Apr, 95."

7. Second Court of Inquiry was convened. The Court of Inquiry was commenced on the 31st of May, 1995. On the 2nd of July, 1995, the Court of Inquiry gave its opinion. The same reads as under :-

1. Based on the evidence on record, the Court is of the opinion that:-

(a) Allegations made by Wg. Cdr. K.P. Dwivedi (Retd.) vide his complaint dated 21 August, 94 addressed to HQ Easter Command, calcutta against IC-23096A Lt. Col. (Now Col.) K.S. Chauhan are justified. Col. K.S. Chauhan owes a sum of Rs. 1,00,943.00 (Rupees one lakh nine hundred forty three only) to Wg. Cdr. K.P. Dwivedi (Retd.). This is the balance amount yet to be refunded out of the initial payment received by him towards Sale of the AWHO flat allotted to him, which was later canceled by AWHO in Dec. 91.

(b) Col. K.S. Chauhan's refusal to pay the above amount on grounds that Wg. Cdr. K.P. Dwivedi (Retd.) had made some direct correspondence with AWHO by forging his signatures resulting in cancellation of the flat is unjustified because the flat was cancelled for different reasons as given by AWHO in their 'show cause' issued to the officer vide letter No. o/c-7/21267/NOIDA/84/XVII dated 17th September, 1991. Even on the presumption that his apprehensions regarding reasons for cancellation of the officer is morally and ethically honour bound to refund this balance amount.

2. The court is therefore of the opinion that Col. K.S. Chauhan be directed to refund the balance amount of Rs. 1,00,943.00 (Rupees one lakh nine hundred forty three only) to Wg. Cdr. K.P. Dwivedi (Retd.) along with interest at the prevailing bank rates.

3. The Court is also of the opinion that suitable action be taken against Col. K.S. Chauhan for making false representations to AWHO vide his letter No. 23096/A/pers dated 09 October, 1991 in reply to their 'show cause' issued to him vide letter No. O/c-7/2167/NOIDA/84/XVII dated 17th September, 1991 regarding unauthorised sale of flat."

 Presiding Officer   :      Sd/- x x x x
                           IC- 16351Y
                           Brig.
                           A.K. Soni 
                           02 Jul., 95
Members    1.       :      Sd/- x x x x
                           IC-16988H
                           Col.
                           H.S. Dhillon
                           02. Jul., 95
           2.       :      Sd/- x x x x
                           IC-29823H
                           Col.
                           R.S. Lamba
                           02 Jul., 95"

 

7A.  On  the 17th of August, 1995, Maj.-Gent. Mehta Yuvraj  Kumar,  General Officer Commanding made the following remarks:- 
  

     1. I partially agree with the remarks of Cdr. 41 Sub Area. 
 

2. A perusal of the C of I reveals that Col. K.S. Chauhan owes a sum of Rs. 1,00,943.00 (Rupees one lakh nine hundred forty three only) to Wg. Cdr. K.P. Dwivedi (Retd.) as the allotment of AWHO flat in his name was cancelled. Notwithstanding the reasons, due to which this allotment was cancelled, Wg. Cdr. K.P. Dwivedi; being a Retd Officer, was also involved in the unauth purchase of AWHO flat and must be well aware of the nature of the transaction. He has already filed a civil suit for re-allotment of flat or any flat in lieu thereof and if the same gets frustrated, he has prayed for refund of sum of Rs. 1,00,943.00. Further Col. K.S. Chauhan has also filed a writ petition against AWHO in Delhi High Court for allotment of the said flat to him.

3. Since the case between the parties is subjudice, I recommend he payment aspect between parties be left to the civil court. More so, it is not covered under any provision of Military Law.

4. Col. K.S. Chauhan is to be blamed for making false representations to AWHO, vide his letter dt. 19th Oct. (Exhibit-QW), regarding certain facts, which have been accepted by him at the C of I given as under:-

(a) Col. K.S. Chauhan had entered into an agreement to sell his AWHO flat with Wg. Cdr. K.P. Dwivedi (Retd.) in Jun., 1989, but in his letter (Exhibit-QW) he denied the same.

(b) Col. K.S. Chauhan though did not take any loan, but in his letter (Exhibit-QW) he mentioned that, to pay installments of AWHO flat, he had taken loans from the following persons:-

(i) Wg. Cdr. B. Mitra

(ii) Wg. Cdr. K.P. Dwivedi (Retd.).

(iii) Shri Harish Shankar

5. I, therefore, recommend discp action be taken against Col. K.S. Chauhan for the above.

8. On the 15th of September, 1995 officiating General Officer Commanding-in-Chief (Eastern Command) issued the following directions:-

1. I have perused the proceedings of the Court of Inquiry and reviewed the same in the light of the facts and circumstances of the case.

2. While I agree with the finding of Court of Inquiry I do not agree with the recommendation of GOC 101 Area.

3. I direct that suitable administrative action be taken against Col. K.S. Chauhan for the following lapses:-

(a) Improperly failing to return Rs. 1,00,943.00 (Rupees one lakh nine hundred and forty three only) an amount of money which is due to be paid to Wg. Cdr. (Retd.) K.P. Dwivedi by him.

(b) He had entered into an agreement to sell his AWHO flat with Wg. Cdr. (Retd.) K.P. Dwivedi in Jun, 89, but in his letter dated 09 Oct., 91 (Exhibit-QW) to the AWHO he denied the same.

(c) Making a false statement in his letter dated 09th Oct., 91 (Exhibit-QW) addressed to AWHO he mentioned that, to pay installments of AWHO flat, he had taken loans from the following persons, well knowing that he did not take any such loan:-

(i) Wg. Cdr. B. Mitra

(ii) Wg. Cdr. (Retd.) K.P. Dwivedi (III) Shri Harish Shankar."

9. On the 10th of October, 1995, a show-cause notice was issued to the petitioner. The same is as under:-

"A Court of Inquiry was ordered by HQ 41 Sub Area vide convening order No. 0181/1/KSC/A3 dt. 31 Mar., 95 to collect evidence with regard to veracity of allegations levelled by Wg. Cdr. K.P. Dwivedi (Retd.) against you vide his complaint dated 21 Aug, 94.

2. The Court of Inquiry proceedings reveals the following lapses on your part:-

(a) For not refunding balance amount of Rs.1,00,943/- to Wg. Cdr. (Retd.) K.P. Dwivedi, received by you towards the sale of AWHO Flat No. 1399, Sector 29, Noida allotted in your name, which was later cancelled by the AWHO authorities.

(b) For making false representation to AWHO Vide your letter dated 09th Oct., 91 (Exhibit QW to the C of I) regarding following facts:-

(i) You had entered into an agreement to sell your AWHO Flat with Wg. Cdr. (Retd.) K.P. Dwivedi in Jun., 1989, but in your aforementioned letter, that to pay installments of AWHO Flat, you had taken loan from the following persons:

(aa) Wg. Cdr. B. Mitra (ab) Wg. Cdr. (Retd.) K.P. Dwivedi (ac) Sh. Harish Shankar.

3. The proceedings of the aforesaid Court of Inquiry were placed before the General Officer Commanding-in-Chief, who after due consideration, has directed adm action against you for the said lapses. You are, therefore, called upon to show cause as to why administrative action in the form of appropriate censure of the General Officer Commanding-in-Chief should not be taken against you for the above lapses. Your reply, if any, should reach this HW within 30 days of receipt of the show cause notice, failing which it would be presumed that you have nothing to urge in your defense and an ex-parte action as proposed above would be proceeded with.

4. A copy of the above Court of Inquiry proceedings (less findings, opinion and recommendations/directions of Commanders in chain) is enclosed for your perusal which may please be returned to this Headquarters along with your reply if any."

10. The petitioner sent his reply on the 17th of November, 1995. The same reads as under :-

"1. Please refer to your HQ letter No. 201735/C/101A/A1 dated 10 Oct., 95.

2. On the basis of the Court of Inquiry when the General Officer Commanding-in-Chief has taken a certain decision, as a soldier normally I would have had nothing to say but since I have been given show cause, I would like to bring out for your sympathetic consideration that any action against me at this stage would be violative of double jeopardy, the fundamental right as enshrined in Article 20(3) of the Constitution of India."

11. On the 26th of December, 1995, the fourth respondent passed the order of termination, which is as under :-

1. I have perused the reply to the show cause notice submitted by IC-23096A Col. K.S. Chauhan, ex Group Commander, NCC Group Headquarters Dibrugarh in the light of the facts and circumstances of the case.

2. The officer has not been able to rebut the blames apportioned to him by the court of Inquiry held in this case.

3. I, therefore, direct that my 'Severe Displeasure' (to be recorded) be conveyed to IC-23096A Col. K.S. Chauhan."

12. On the 23rd of January, 1996, the petitioner filed his statutory complaint. On the 20th of June, 1996, the statutory complaint was rejected. The petitioner filed the writ petition on the 11th of September, 1996.

13. It is stated in the writ petition that the petitioner had been having a very good record of service. The petitioner was exonerated by the Court of Inquiry held in May, 1992 and the same record cannot be reopened. According to the petitioner, the Wg. Cdr. K.P. Dwivedi, had contacts in the Army and he had used his power to harass to the petitioner. The petitioner, entering into an agreement to sell had not prescribed the terms and conditions of allotment. The petitioner had undertaken to Wg. Cdr. K.P. Dwivedi to get the permission of AWHO for sale of the flat. However, the allotment made to the petitioner was cancelled and that is subject matter of CWP. 4628/94.

14. The petitioner has stated that the said Wg. Cdr. has filed a civil suit and it is for him to work out his remedies before the Civil Court. The fourth respondent has not given any reasons in his order. Assuming the imposition of the punishment is valid, that cannot stand in the way of the petitioner being promoted to the acting rank of Brigadier. According to the petition, the dispute between the petitioner and the AWHO was a private dispute and that cannot be dealt with in the manner in which it had been done by the respondents. It is stated by the petitioner that he has not committed any wrong deed within the meaning of 'administrative action' under the procedure for censure.

15. In the counter-affidavit, the respondents have given the facts. The respondents have also referred to the policy dated 27.7.1995 for considering such a case. It is not disputed that the petitioner was considered for promotion to the acting rank of Brigadier and the Government had duly approved the name of the petitioner for promotion. Before physical promotion to the acting rank of Brigadier could be done, the petitioner became the subject of a disciplinary case and was awarded 'severe displeasure' and as per policy dated 27.7.95 he could not be posted to the acting rank of Brigadier. It is stated that in the Court of Inquiry the petitioner was found guilty, and the petitioner had not posed himself as an officer in the Indian Army. The petitioner had made incorrect representations to the AWHO. The punishment imposed on the petitioner was as per the findings rendered in the Court of Inquiry and the petitioner is not entitled to challenge the same.

16. The learned counsel for the petitioner Mr. D.N. Goburdhan, submitted that the petitioner has not committed any infraction of law and the allotment of flat by the AWHO is purely a matter between the petitioner and that organisation, and the respondent cannot take any action against the petitioner. The petitioner was found fit for promotion to the acting rank of Brigadier, and on the basis of 'severe displeasure', the petitioner cannot be deprived of his promotion. The learned counsel for the petitioner, Mr. D.N. Goburdhan, submitted that on the facts, as could be seen from the material placed on record, the petitioner cannot said to have committed any offence. The agreement vendee, ex-Wg. Cdr. K.P. Dwivedi, had instituted a suit and when the dispute between ex-Wg. Cdr. K.P. Dwivedi and the petitioner is pending adjudication before Civil Court, the respondents cannot take any action, either disciplinary or administrative, against the petitioner. The order dated 26.12.1995 is illegal and it is liable to be set aside. The learned counsel for the petitioner, Mr. D.N. Goburdhan, submitted that the order dated 20.6.1996 rejecting the statutory complaint of the petitioner also cannot sustained.

17. The learned counsel for the respondents, Mr. U. Hazarika, submitted that the petitioner was a member of AWHO as an Army personnel and as a privilege, he was allotted a flat on terms and conditions mentioned in the allotment letter, and the petitioner had acted contrary to the terms and condition, and the findings of the second Court of Inquiry are based on materials available on record and the petitioner has not produced any material to show that the finding of the Court of Inquiry could be said to be not in accordance with law. The learned counsel for the respondents. Mr. U. Hazarika, submitted that the order dated 20.6.1995 cannot at all be challenged by the petitioner and the petitioner has not made out any case for interference by this court under Article 226 of the constitution of India.

18. On facts, the petitioner cannot dispute that he was bound by the terms and conditions for allotment made to him. He also cannot dispute that without prior permission of the AWHO, he cannot effect any sale. As a responsible Army Officer, he cannot act in flagrant violation of the terms and conditions of the allotment. It is not open to the petitioner to say that it is a matter between him and the Army Welfare Housing Organisation and the respondents cannot have any jurisdiction, such a stand is wholly unsustainable in law. The order passed by the fourth respondent on the 26th of December, 1995 is absolutely correct. I do not find any error apparent on the face of the record and the order dated 26.12.1995 cannot be said to be irrational or unreasonable. Accordingly, the writ petition is dismissed.

19. There shall be no order as to costs.