Major Prithviraj Patnaik vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 60 Del

JUDGMENT

Swatanter Kumar, J.

Page 0446

1. The then Major P. Patnaik submitted a Statutory Complaint on 10th January, 2001 to the Central Government against the Confidential Reports recorded for the period 01st June, 1998 to 31st May, 1999, 01st June 1999 to 19th September, 1999 and BPR (Battle Performance Report) from 24th May, 1999 to 13th July, 1999 which was rejected by the competent authority vide its Order dated 30th April, 2002 stating that no element of bias/subjectivity or vindictiveness is discernible in these reports and hence none of these reports merit any interference. The correctness of this Order is questioned by the petitioner on the ground that the case of the petitioner was not considered in a just and a fair way. The remarks were motivated as a result of a personal bias of one Col S.K. Chakravorty, respondent No. 4 and are also in complete variance to regular reports recorded by the competent authority. In order to substantiate his arguments, the petitioner has relied upon the judgments in the cases of Gurdial Singh Fijji v. State of Punjab and Ors. , Page 0447 Amar Kant Choudhary v. State of Bihar and Ors. , Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. , U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. , Bishwanath Prasad Singh etc. v. State of Bihar and Ors. .

2. The necessary facts are that the petitioner was commissioned as a Permanent Regular Commissioned Officer from the Indian Military Academy, Dehradun on 14th June, 1986. According to the petitioner, he served to the satisfaction of all concerned and in due course was promoted to the rank of Major. The petitioner further claims that he took part in military operation brasstacks - war situation with Pakistan, Operation Pawan in Jaffna, actual war with LTTE in Sri Lanka during the period October, 1986 to December, 1989. On 15th December, 1990, the petitioner sustained multiple injuries - Blunt injury in the abdomen and fracture Patella. A Court of Inquiry was conducted which declared that the injuries sustained by the petitioner were not due to the negligence on his part. According to the findings recorded by the Commanding Officer, Lt Col S.K. Bali, injury sustained by the petitioner was stated to be attributable to military service in peace area and the petitioner was admitted to the Military Hospital at Gwalior where he was operated upon and sent on sick leave after he was medically downgraded from A-1 to A-3. The petitioner was upgraded back to A-1 after improvement of his medical condition as examined in the Command Hospital, Chandimandir. Despite injuries, the petitioner took part in Operation RAKSHAK in Punjab in April, 1992 and received a letter of appreciation from the Commanding Officer, Col S.K. Bali on 29th June, 1992. Thereafter, the petitioner moved to J & K and was posted in high altitude area Karu, a field area in Indo-Pak border. There also the petitioner took part in Operation MEGHDOOT in Siachen Glacier during December 1992 to October, 1993. In recognition of his exemplary military service, the petitioner was transferred to the prestigious National defense Academy, Khadakvasla, Pune, as an Instructor Class 'C' to impart Specialized Training to the cadets-would be officers in the Army, Navy and Air Force. The petitioner was then selected in a competitive vacancy for defense Services Staff College, Wellington, Ooty in June, 1997 where after the petitioner was likely to be posted to his parent unit and he got a letter from Col S.K. Chakravorty on 7th December, 1997 stating that the petitioner should come to the unit only if he was willing to play the game as per his rules. Copy of this letter has been placed by the petitioner on the record of this case as Annexure 'E' to the Writ Petition. The petitioner claims to have received a letter dated 15th March, 1998 from one Major Raju Baijal that it may not be in his interest to go to the unit in view of the public criticism given by Col S.K. Chakravorty.

Page 0448

The petitioner received an appreciation letter from Col D.S. Jolly dated 27th April, 1999 for his role as Officer Commanding Advance party and then he took part in the Military Operation RAKSHAK in Kupwara in counter-insurgency operations with terrorists in J & K with an intention and zeal to serve the country. In spite of adverse report, the petitioner chose to take part in Operation VIJAY - war with Pakistan in Close Combat Range on or about 24th May, 1999. According to him, when the petitioner was returning from his post at about 17,000 ft. height, the petitioner struck at a boulder and fell down 300-350 ft and injured his left knee severely which had been operated upon and Patella removed. The petitioner was examined by a team of doctors and recommended to be referred by Captain K.S. Judge, Medical Officer, to Advance Dressing Station for opinion. Even another doctor Captain Akhilesh Rao had initially examined the petitioner and recommended that the petitioner be referred to Orthopedic Surgeon 92 Base Hospital for expert opinion. The petitioner has specifically averred in the Writ Petition that this medical document was tampered by cancelling/cutting the medical opinion of the Medical Officer, Captain Akhilesh Rao, at the behest of respondent No. 4. The petitioner received a shocking letter of revelation from doctor Captain K.S. Judge dated 2nd August 1999 indicating foul play and mal-intention of respondent No. 4 requiring the said Medical Officer to act contrary to the medical ethics and change the medical report given by him to the petitioner.

3. Despite such distinguished service career, the petitioner was faced with adverse remarks which were recorded by Col S.K. Chakravorty in regard to his war performance and the periods afore-indicated. These remarks were communicated to the petitioner somewhere in January, 2001. Aggrieved there from, the petitioner filed a Statutory Complaint to the Central Government. In the Complaint, the petitioner had raised various issues, and particularly in relation to his performance during the war periods, that his Commanding Officer had directed him not to lead the company but to look after other duties and also that the said Commanding Officer was annoyed and/or had a bias against the petitioner for the reason that he had raised specific objection with regard to deposit and utilization of the money to the extent of Rs. 1,13,000/- which was recovered from the militant hide-out during the search operation VARNOU in October, 1998. According to him, the said money was neither declared nor shown in any Situation Report and as a result of this, Inquiry Commanding Officer had threatened him of dire consequences. This Complaint was rejected by the Government by the afore-said Orders.

4. Separate counter-affidavits have been filed on behalf of respondent No. 1-3 and 4 respectively. The stand of the respondent is that Army is a paramedical organization and therefore super session is a common incident of service. Promotion in Army up to the rank of Major is of a time-scale where after they are through Selection Boards. Depending on the inputs of ACR, individual profile of the officer and its evaluation by the Selection Board, they are approved or found unfit for promotion by the Selection Boards. It is stated that ACR was regulated by SAO-3/S/89 which was later replaced by AO-45/2001. The entire assessment of an Officer in any ACR consists of assessments of various Reporting Officers whose assessments are Page 0449 independent of each other. The petitioner was considered as a fresh case of 1986 batch for promotion to the rank of Lt. Colonel in February 2002 but was not empanelled based on his overall profile and comparative merit as evaluated by the Selection Board. While relying upon the judgments of the Supreme Court in the cases of Union of India v. Lt. Gen RS Kadyan 2000 AIR SCW 2692, Maj Gen IPS Dewan v. UOI and Ors. Civil Appeal No. 3273/95 in SLP (C) 18444/94 JT 1995 (II) Part 15, SC 654, AVM Chabbra, VSM v. UOI , the respondents contend that the selection being on merit and the petitioner having been found unfit for empanelment, the action of the respondents cannot be faulted with. With regard to challenge to the Confidential Report and Battle Performance Report, the claims of the petitioner is again disputed on the fact that the reports were initiated in accordance with rules and referring to his actual performance, the remarks were recorded by the concerned authorities. The performance of the petitioner during Operation VIJAY was unsatisfactory and thus the remarks recorded by the concerned authorities are proper and the Statutory Complaint of the petitioner was rightly rejected by the Government vide its Order dated 30th April, 2002. In regard to recovery of money, it is stated that an amount of Rs. 1,13,000/- was recovered from the militant hide-out on 21st September, 1998 and was deposited with the Headquarters 11 Sector, i.e., the next higher Headquarters, based on specific directions given by the General-Officer-Commanding 8 Mountain Division. No policy or guidelines in regard to initiation and completion of the Confidential Report was violated.

In the counter-affidavit filed by the respondent No. 4, somewhat similar stand was taken. He has stated that the petitioner sustained the injury on 15th January, 1990 and was upgraded to Medical Category Shape 'I', i.e., fit for all medical duties on 3rd April, 1992 and his performance in the years 1998 and 1999 is in no way connected with war or exigencies of service. According to this respondent, the petitioner was unable to withstand the stress and strain of war and abandoned his Company when his Company needed him the most. It is stated that Captain Akhilesh Rao was an officer of the Advance Dressing Station located at Drass and the petitioner neither knew him nor had even met him. He was wrongly stated to be under the command of respondent No. 4 and the allegation of influence is stated to be baseless. Annexure 'K', the letter written by Captain K.S. Judge to the petitioner is stated to be an after-thought as it does not find any mention in the non-Statutory Complaint dated 10th February, 2000 and Statutory Complaint dated 10th January, 2001. Denying the allegation of bias and arbitrariness, the said respondent prays for dismissal of the Writ Petition. The Order dated 30th April, 2002, which has been impugned in the present Writ Petition, reads as under:

ORDER

1. Major P Patnaik (IC-43708 N), Inf has submitted a Statutory Complaint, dated 10th January 2001, to the Central Government against CRs 6/98-Page 0450 5/99, 6/99-9/99 and BPR 5/99-7/99. The officer has alleged that his CO, Lt Col S.K. Chakrovorty developed disliking for him and started harassing him. He did not give any reasons for the disliking allegedly developed by his IO (CO), but has claimed that the latter had threatened to ruin his career. He gave details of the military campaigns undertook by him thus far and said that in view of an injury sustained in the course of one such campaigns his left knee got weakened, which further aggravated in cold climates during 'Op Vijay'. He has also nursed a grouse against his CO for what he called "deliberately keeping him out of battle despite volunteering to lead the attack". The complainant has also doubted the motive behind initiation of the BPR on 30th October, 1999. He believed that it should have been initiated after 13th July and saw "malafide intention" on the part of the IO behind the delay. The officer also felt that, he was poorly graded by the IO in CR 6/98-5/99, 6/99-9/99 and BPR 5/99-7/99 due to bias, subjectivity and vindictiveness. He has also leveled allegations against the IO, for not accounting the money discovered from a militant hideout. Finally, he has requested for the following relief:

(i) Complete assessment of IO and RO in CR 6/98-5/99 and BPR 5/99-7/99 may be set aside on grounds of bias, vindictiveness and subjectivity.

(ii) Complete assessment of the IO in CR 6/99-9/99 may be set aside on grounds of bias, vindictiveness and subjectivity.

2. The Statutory Complaint of the officer has been examined in the light of his career profile, relevant records, and analysis/recommendations of AHQ. It is seen that the impugned CRs 6/98-5/99, 6/99-9/99 and BPR 5/99-7/99 are objective, well corroborated and performance-based. No element of bias/subjectivity or vindictiveness is discernible in these reports and hence, none of these reports merit any interference.

3. Therefore, the Central Government rejects the Statutory Complaint, dated 10th January, 2001, submitted by Major P. Patnaik (IC-43708), Inf, against CRs 6/98-5/99, 6/99-9/99 and BPR 5/99-7/99.

By order and in the name of the President

Sd/-

(GURDIAL SINGH) Deputy Secretary to the Government of India

To

The Chief of the Army Staff. (in quadruplicate):- For communication to the officer through the staff channels with the necessary administrative instructions and for further action in accordance with the existing procedure.

5. As already noticed, the petitioner had made a Statutory Complaint to the appropriate Government which runs into 17 pages. This was a very detailed Complaint referring to specific instances and pleas. The petitioner had specifically raised, inter alia, the following issues:

11. On 13 Jun 1999 once the attack was over during which my company was throughout in reserve, I came down to the ADS at Dras. The Officer Commanding, ADS Captain A Rao was shocked to see my knee in such Page 0451 a bad condition and ruled me out of getting inducted again and my further participation in the Operation. In the meanwhile Colonel S.K. Chakravorty rang up the Deputy Brigade Commander 56 Infantry Brigade, Colonel David and told him that self, Lt Colonel DS Jolly and Captain KS Judge had de-inducted without his permission. Had this really been the case, I should have been arrested for treason tried by the Summary General Court Martial (SGCM). Be that as it may, on receiving call from the Commanding Officer, the Deputy Brigade Commander ordered the OC ADS Captain A Rao to change his opinion. Since my injury was grave, despite directions of Deputy Brigade Commander, the OC ADS in his fresh opinion still advised me 14 days complete rest in Rear, Review in ADS after 14 days. OC ADS had only cancelled his reference of my case to 92 Base Hospital, Srinagar (copy of the fresh medical reference along-with the cancelled prescription and advice is attached for perusal as Annexures 7 and 8). Though the injury was grave, my conscious was not permitting me to take rest as units go to War rarely and I wanted to be a part of what would become the history of unit in times to come. I therefore decided to bear the pain and agony of injury and within 3 days disregarding the medical advice of rest in rear for two weeks at my own volition, joined my unit at base of Point 5140 on 18 Jun 1999.

12. XXX XXX XXX

Just prior to the attack, I was told by Colonel SK Chakrovorty to once again give a pep talk to my company. Under intense enemy fire I rushed on foot from the Administrative Base to the firm base covering a distance of 2 to 3 kilometres in the treacherous mountainous area in about one hour. I under took this move with sheer grit and determination as my knee injury was indeed bad. I spoke to all my company personnel. They were charged up after my pep talk. I once again traveled the same distance back under enemy fire and reached the Mortar Position.

(c) I started reapplying myself with dedication to the task at hand.

I controlled the Mortar Fire and also ensured timely evacuation of casualities, sending up of maintenance columns, dumping of ammunition and so on. This effective Mortor Fire and sound administrative backup contributed effectively to the success of the attack. The objective was captured by my company (C Company) along with D Company with 11 fatal casualities and 10 non fatal casualities. This attack brought glory to the nation.

(d) To be doubly sure of constant supply to the companies, I went to the objective area to see the effectiveness of the maintenance by traversing a distance of five kilometers on foot, though limping throughout. Every one in the unit had all the praise. However, the CO never had even a word of praise. The task assigned by the CO had been completed by me successfully.

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(f) On de-induction from Op Vijay, Colonel SK Chakravorty wrote the After Action Report and fully ensured that nowhere any reference was Page 0452 made to my contribution. Such violent was he in his bias that he willfully deleted my name from Paragraph 6 of After Action Report (16 Jun to 21 Jun 1999) so that later on there won't by any documentary evidence of my participation. Perhaps he forgot about the War Diary.
 (g) XXX             XXX             XXX
 

13. Having explained my contribution in War, it is but obvious that the BPR has been written with premeditated previous bias, and is subjective and retributory. It does not take into consideration my performance on ground. The RO and the SRO had no interaction with me and they may have endorsed what was told to them by Colonel SK Chakravorty.
 18.   XXX             XXX             XXX
 

(d)In one of the cordon and search operation (Operation Varnou) in Oct 1998 in Lolab, the battalion recovered 1.13 lack of Rupees from the militants hideout. The recovery of money was neither declared nor shown in any situation report. Prior to the unit's de-induction from Lolab to Mazbook in May 1999, I casually inquired about the disposal of the money since to me foul play seemed to be involved. He got angry and told me "Patnaik I thought you had mended your ways. But I will now fix you nice and proper". The disposal of the money is yet to be known. The written evidence of the recovery is manifested in Para 8 of Special Battalion Order No 08/S/98 dated 06 Oct 1998 (refer Annexure 5) XXX XXX XXX

25. Colonel SK Chakrovorty initiated the BPR (24 May 99 to 13 Jul 1999) and the ICR (01 Jun to 19 Sep 1999) on the same day after having proceeded out of the battalion on posting. In the ICR he has been totally subjective and gone for a total soft kill by giving me a box grading of 7. I am sure that the RO and the SRO would definitely have been at variance with the IO. My feeling has been proved right by the disposal given by Lt General HM Khanna, the GOC-in-C Northern Command.

6. The impugned Order clearly demonstrates that various procedural and factual contentions raised by the petitioner were not specifically dealt with by the respondents. The Order at the face of it has been passed in a most casual manner. Administrative Orders, particularly when they are likely to have an adverse impact upon the entire service profile of the petitioner, ought to be somewhat reasoned and plausible. We are not indicating that the Order ought to be a detailed Order dealing with various facets of the matter but certainly it must show that the authorities have applied their mind to the various contentions raised by a party and which are substantially dealt with by the concerned authority. Proper reasoning is the soul of Administrative Order, as then alone it provides opportunity to the affected party to question the correctness of the said Order in accordance with law. Para 2 of the impugned Order, which runs into 5 lines, is only discussion on the merits of the contentions raised which obviously is inadequate and unsatisfactory. The allegations in regard to prejudice by the Commanding Officer, the duties which according to the petitioner he was performing during the relevant period and the allegation in regard to recovery of money and its non-deposit, ought Page 0453 to have been examined by the authorities concerned. The petitioner has the right to know that his contentions, and particularly, material contentions have been examined by the authorities.

The petitioner has made specific allegations of bias and malafides on the part of Col. Chakravorty, respondent No. 4. Of course, these allegations have been denied vaguely by the said respondent but in his counter-affidavit, he has not dealt with the reasons stated by the petitioner in Annexure 'M' (Statutory Complaint) annexed to the Writ Petition. The petitioner in the Writ Petition has also stated that respondent No. 4 had got annoyed with him for questioning the non-deposit of the sum of Rs. 1,13,000/- admittedly recovered from the terrorist hide-out, which, of course, as disclosed by the respondents was deposited subsequent thereto under the orders of the higher authorities to Headquarters 11 Sector RR. In the records produced before the Court in a sealed cover, the letter dated 1st September, 2000 reflects that the sum of Rs. 1,13,000/- was received from terrorist hide-out on 21st September, 1998, which was reflected in the Unit SITREP dated 21st September, 1998 on explicit direction received from GOC Military Division. The same was handed over to Headquarters 11 Sector RR. No comments were made keeping in view para 118 of SAO-3/S/1989 stating that the complaints against CRs must pertain to MS matters only. No document was submitted before the Court to show that the money was deposited with the Headquarters on the same day or immediately thereafter. It was stated before the Court that money was actually deposited somewhere on 6th October, 1998 or thereafter and that too under the specific orders of higher authorities. The other allegation of malafide and bias that was stated against respondent No. 4 was that he had directed the manipulation of the medical records and in support of which even the doctor Captain K.S. Judge had written his letter dated 2nd August, 1999 to the petitioner. The element of bias is also founded on the allegation that even before the petitioner had joined the Unit, the petitioner had received a letter dated 7th December, 1997 from Col S.K. Chakravorty, copy of which is annexed as Annexure 'E'. The relevant part thereof reads as under:

That is fine and I welcome you but you will play the game as per my rules and you know them fully well. If otherwise, you have lots of contact you can go to the place of your choosing. Take it as a friendly advice and not in negative manner.

7. In addition to the above specific averments, the service profile of the petitioner shows that he had a good service profile and had actively participated in various Operations and insurgency conditions. He received appreciation from different quarters. The petitioner was posted as an Instructor in the National defense Academy, Khadakvasla which itself shows that he was always treated as a good officer by all concerned quarters and his performance was subject-matter of significance. The element of bias or malafides is to be construed by Court from the facts and circumstances of a given case. The Court cannot read the mind of a person to adjudicate upon the averments of bias or malafides. In the case of A.K. Kraipak and Ors. v. Union of India and Ors. , the Supreme Court held as under:

Page 0454 Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into considerations human probabilities and ordinary course of human conduct.

In a case titled as Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. 2000 AIR SCW 3826, where Managing Director had passed an order withdrawing the duties of the General Manager, there were violations of principles of natural justice and adequate opportunity was not granted to the said officer to defend himself and permission to engage a Presenting Officer was not granted and there were allegations of personal bias, the Supreme Court held as under:

10. The word 'Bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation mean and imply 'spite' or 'ill-will' (Stroud's Judicial Dictionary (5th Ed.) Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice.

11. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal enquiries, intention, as distinguished from motive is the all-important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse see in this context Jones Bros. Hunstanton v. Steven (1955) (1) QB 275.

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31. The Court of Appeal judgment in Locabail (2000 QB 451) (Supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.

32. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from. In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias the administrative action cannot be sustained. If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. Page 0455 The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case (Supra).

The principles enunciated by the Supreme Court in the above case were further elaborated and the fine distinction between real likelihood and reasonable suspicion in relation to bias and malice were discussed in great detail by the Supreme Court in the case of State of Punjab etc. v. V.K. Khanna and Ors. 2000 (5) SLR 734 and the Apex Court held as under:

5. "Whereas fairness is synonymous with reasonableness - bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice see in this context Kumaon Mandal Vikas Nigam v. Girija Shankar Pant and Ors. JT 2000 Suppl. II 206. In almost all legal enquiries, 'intention as distinguished from motive is the all important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Brothers Hunstanton Ltd. v. Stevens 1955 1 Q.B. 275, the Court of Appeal has stated upon reliance on the decision of Lumlev v. Gve 2 E and B. 216 as below:

For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumlev v. Gve. where Crompton, J. said that it was clear that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service commits a wrongful act for which is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse : Bromage v. Prosser 1825 1 C. and P. 673 "Intentionally" refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.

6. In Girija Shankar Pant's case (supra) this Court having regard to the changing structure of the society stated that the modernization of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarthy S. Parthasarthy v. State of Andhra Pradesh Page 0456 wherein Mathew, J. observed:

16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, H.R. in Metropolitan Properties Co. F.G.C. Ltd. v. Lannon and Ors. etc. (1968) 3 WLR 694 at 707. We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings.

XXX XXX XXX

8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained; If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore would not arise.

8. The bias of respondent No. 4 was highlighted by the petitioner in his various representations but the same was not discussed or dealt with by the concerned authorities appropriately. In fact, as already noticed, there is hardly any discussion on various facets making the foundation for bias or malice. Factual or legal malafide is not synonymous or equitable to a bias as bias is more likely to be inferred from the facts and circumstances of the case supported by appropriate averments or records while the allegations of malafides need to be specifically supported by appropriate evidence. Not only the 'real likelihood' but even 'reasonable suspicion' of bias cannot be ruled out in the present case. The existence of element of bias is to be inferred as per standard and comprehension of a reasonable man. In other words, whether a reasonable person would infer real likelihood of bias from the surrounding facts and circumstances of a given case. It could even demonstrate that there was every likelihood of real danger of bias as bias is Page 0457 incapable of being proved as a matter of fact. An administrative action suffering from this vice cannot be sustained.

9. Another very pertinent aspect of the present case is the contradictory reports initiated by Col S.K. Chakravorty without any reasonable basis. It is difficult for the Court to believe that a Reporting Officer could compliment and record severe adverse comments for the same period of service in relation to similar events. It was vehemently argued before us on behalf of the respondents that a Battle Performance Report (BPR) is entirely distinct and different from the Annual Confidential Report/Interim Confidential Report and they could be at variance. There can hardly be any doubt that Battle Performance Report (BPR) would relate to performance during war operations while Annual Confidential Report or Interim Confidential Report would deal with the entire service profile of the officer including such activity. Various characteristics are marked by the authorities and the ratee is granted numerical as well as Pen Picture comments in his Confidential Report. The basic characteristics or qualities of an officer would normally remain the same. There could be an element of variance but certainly a discern direction in turn is hardly possible. In the various Confidential Reports of the petitioner recorded by different officers at different times he was found to be an officer with impressive military bearing with unflinching loyalty to the organization who had performed his duties during exigencies and Operations to the satisfaction of all concerned despite injuries. The Battle Performance Report (BPR) for the period 24th May, 1999 to 13th July, 1999 was initiated by Lt Col S.K. Chakravorty CO 18, Garh RIF on 30th October, 1999 and the same reads as under:

Major P. Patnaik, Company Commander Charlie Company has little or no contribution during war. His Company went into attack thrice and on all the occasions he decided not to go with the company into attack presumably due to a knee problem. His physical performance has been poor and has let down the battalion at a critical time. His performance in the entire battle has been below average.

The Interim Confidential Report (ICR) for the period 1st June, 1999 to 19th September, 1999 was also initiated by the same officer and the Pen Picture as recorded in the ACR reads as under:

Major P. Patnaik is a medium built officer with a cheerful disposition. He is intelligent and motivated.

He was employed as rifle company commander in counter insurgency operations and has performed adequately. He has carried out operations and administration of his company in a competent manner.

Major P. Patnaik is a sincere and mature officer with a positive outlook. He has been a useful member of the team and can be relied upon.

10. The Battle Performance Report (BPR) was seen and agreed to by the Reviewing Officer, Brigadier A.N. Aul on 12th November, 1999, who was not petitioner's Brigade Commander while the Confidential Report of the petitioner which was endorsed by the Reviewing Officer of the rank of a Brigadier, had to offer favorable comments to the officer in his Confidential Report by recording the following remarks:

Page 0458

Patnaik is a sincere hard working and a motivated officer. He has tremendous regimental spirit and is willing to face the odds in the name of the unit.

As a Company Commander in an intense CI Ops area he has performed to our entire satisfaction. He is a willing and a cheerful worker. Despite his handicap of a badly injured knee he has carried out all the tasks assigned to him and his Company with dedication. An Officer with tremendous Spirit De Corps.

Gradings at Para 11 (c), (d), (g), (h) & (j) by the IO be expunged as an element of subjectivity has been reflected presumably due to a clash of personality.

The above remarks of the Brigadier were further approved by the officer of the rank of a Lt. General, whose comments read as under:

An above average officer whose performance in "OP Rakshak" has been commendable. IO has been unduly hard in assessing the officer. I agree with the assessment of the RO.

11. It is clear from the remarks of the RO and SRO on the Confidential Report of the officer that they were impressed with the working and performance of the petitioner. The period, inter alia, covered not only the battle period but also the performance of the officer otherwise. These are the officers who had the occasion to oversee the performance of the petitioner throughout the period and, in fact, prior and after the said period as well. It is strange that Col S.K. Chakravorty while recording the above comments in the CR of the petitioner chooses to observe that the petitioner had performed adequately in the counter-insurgency operations and that he has been a useful member of the team and can be relied upon. These comments are at variance to the comments made in the Battle Performance Report where it was said that he had let down the Battalion at a critical time and had made no contribution during war. The period of war was not for a day or two but was nearly for 2 months. There is an apparent and serious contradiction of diverse consequences in regard to the entire service career of the petitioner. Ex-facie the Battle Performance Report (BPR) would have the impact of wiping out the ACR/ICR of the officer which has been written by the same person and endorsed by two senior officers of the rank of Brigadier and Lt. General. Such devastating differentiation between the two reports is difficult to be reconciled by application of any known canone of reasonable administrative functioning. Such contradiction seen in light of a consistently high service profile in all facets including war/operation performances would give indication of arbitrary or colourable exercise of power. In other words, such irreconcilable contradiction would suffer from the vice of arbitrariness and would render administrative action open to judicial chastism.

12. An ancillary issue to the above discussion needs further elaboration as the petitioner had raised a specific issue that Col S.K. Chakravorty himself had directed that the petitioner should not lead his Company and he should control the mortar fire, ensure timely evacuation of casualties, ensure sound administrative back-up and take distribution of stocks from the Base. According to the petitioner, he had performed this function successfully and Page 0459 had contributed effectively to the success of the attack. Particularly in relation to Point No. 4700, it was the case of the petitioner before the authorities and before the Court that he had volunteered to lead the attack which was not permitted by the CO and despite his injury, he had opted to go to the high altitude and had admittedly conducted reiki on the previous day at the height of 17,000 ft. According to him, Col Chakravorty had intentionally not mentioned any of his roles in the proceedings which were entirely in his command and were endorsed by the authorities without any physical verification. Except vague denial, no records have been produced before us which would show what the petitioner was doing during the war, for example, (i) Was he admitted to a Hospital? (ii) Was he resting in his barracks or was he actively participating as per the role assigned to him by his Commanding Officer?

13. Another question which would arise is that if the remarks recorded in the Battle Performance Report are factually true, why Commanding Officer did not initiate any action against the said officer? On the contrary, he opted to give him reasonably good report for the same period which he knew, was to be perused by the senior officers of the normal channel of reporting, i.e., Reviewing Officer (RO) and Superior Reviewing Officer (SRO) of the rank of Brigadier and Lt. General respectively. Can the Indian Army afford to have officers who do not lead their Company during attack, who make no contribution to war, who let down their Battalions at a critical time and whose performance in the entire battle is below average? It is in explainable and, in fact, inexcusable that the authorities concerned should have ignored such a report if it was factually correct and even otherwise believable in face of the consistent good service record of the petitioner. The same officer, despite Battle Performance Report, categorized him as a dependable and good member of the team and describes his qualities and abilities. We may also notice that the knee injury of the petitioner was noticed by his Brigade Commander who paid him a compliment of good performance despite injuries. The officer who is found to be good, alone would presumably be posted as an Instructor to the National defense Academy and not a person who lets down his Battalion in war. Col S.K. Chakravorty himself gave an outstanding report to this officer declaring him to be an officer with impressive military bearing with unflinching loyalty to the organization, an officer who stands by his moral upright, principles and convictions and who discharges his duties in a most competitive manner and is a very useful member of the team (ACR for the period 16th June, 1996 to 31st May, 1997). The Initiating Officer who wrote the Confidential Report of the petitioner for the year 1999-2000 gives again a mentionable report to the petitioner and records:

...a dependable and a trustworthy officer who can handle difficult assessments independently.

As Company Commander in OP RAKSHAK he has displayed insurmountable grit and valour. He always set personal examples and lead from the front....

14. Unreasonableness or arbitrariness of an administrative action would be subject to judicial review. Of course, the respondents are not to provide detailed reasons for their actions but they must satisfy the adherence to Page 0460 basic rule of law. In order to attach credence to the process of exercise of administrative power, fairness in the decision-making process would be sine qua non. It may be proper and even somewhat obligatory upon the authorities concerned to spell out or give some kind of expression to the processing of thought, which ultimately culminates into final decision. When Statutory or non-Statutory petitions are preferred by the officers of such ranks and, in fact, by any member of the Force, it is obligatory upon the authorities to give it due consideration and not dispose them of in a mechanical manner or by passing cryptic orders that prima facie shows non-application of mind. It will be in the administrative interest and would help in spreading confidence in the process of fairness in the action of the respondents that record indicates proper application of mind in relation to the various contentious issues raised by the delinquent.

15. In our considered view, the impugned order does not exhibit proper application of mind by the authorities. In fact, the records clearly show a contradiction in the Battle Performance Report and Interim Confidential Report covering the same period and also show contradictory expression beyond the scope of variation and suffer from the vice of bias and arbitrariness. Both reports were recorded by the Commanding Officer on the same date.

16. Consequently, we would set aside the Battle Performance Report dated 30th October, 1999 and would further direct the respondents to consider the case of the petitioner for promotion to the rank of Lt Colonel/Colonel afresh in accordance with law. However, in the peculiar facts and circumstances of the case, we will leave the parties to bear their own costs.