Khem Singh vs Uoi And Ors.
2013 Latest Caselaw 1632 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Decided on : 10th April, 2013

+                          W.P.(C) 4775/2012

       KHEM SINGH                                          ..... Petitioner
                           Through:     Col. (Retd.) S.R. Kalkal, Advocate

                           versus
       UOI AND ORS                                       ..... Respondent

Through: Mr. Amit Yadav, Advocate for Mr.Ravinder Agarwal, CGSC

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner seeks a direction for quashing an order dated 1.8.2008 and a further order dated 13.09.2011 complaining that both of them are arbitrary and were made without application of mind.

2. The petitioner joined the Army on 28.12.1987. He was posted with the 6th Battalion Kumaon Regiment on completion of his basic military training. He was apparently promoted to the rank of Hawaldar on 14.02.2004. The petitioner was alleged to have committed an act of misconduct inasmuch as on 24.06.2008, he had an altercation with another Army personnel, who was in-charge of the Mechanical Transport Platoon of the incoming unit, on transfer, and with a view to settling scores was implicated for shortage of 70 Litres of Petrol and 90 Litres of Kerosene Oil. The matter was reported to the unit superiors and

on 31.07.2008, the petitioner made a confessional statement. He submits today that the confessional statement was made under pressure. On the next date, i.e. 1.8.2008, the Commanding Officer of the petitioner's unit conducted a hearing and, on the basis of the confessional statement, proceeded to issue severe reprimand. This resulted in a red ink entry in the petitioner's service records which ultimately affected his further chances of promotion. Consequently, he submitted a non-statutory complaint to the respondents' higher authorities on 29.07.2011, i.e. more than 3 years after the incident. It is alleged that the petitioner sought certain documents and material details under the Right to Information Act the following year, i.e. in 2012.

3. Mr. Kalkal, learned counsel for the petitioner, argues that the petitioner has been virtually a victim of double jeopardy inasmuch as first he was inflicted with a red ink entry without an enquiry; and then to compound that his ACR too was adverse for the relevant year and that it has seriously prejudiced and affected his chances of promotion. Counsel sought to highlight that the Army did not follow the mandatory provisions of Rule 22 of the Army Rules, 1954, which mandates the manner in which charges levelled against a person subject to the Army Act are to be heard. It was urged that the prosecution witness who was produced at that time was not stationed in Delhi and could not, therefore, have been privy to what was alleged to have transpired. Learned counsel submitted that having regard to these facts, the infliction of a severe reprimand which resulted in a red ink entry was utterly unwarranted. Counsel submitted that the confessional statement made by the petitioner was not voluntary and was taken under duress and that in these circumstances the Army authorities should have followed the proper

procedure of holding a court of enquiry and later conducted a full fledged disciplinary proceeding.

4. This Court notices at the very outset that the confessional statement made on 31.07.2008 concededly contained the signatures of the petitioner. Concededly, again the petitioner did not protest that the confession was not voluntary and was procured under duress or coercion at any contemporaneous time or within reasonable time after having made it. He woke up to the possibility of its adverse impact only in July 2011 when he addressed a non-statutory complaint, and has now approached the Court in 2012. Having regard to the unexplained delay in approaching the court or even making a representation within reasonable time with regard to the allegations of coercion, this Court is of the opinion that the petitioner, in fact, acquiesced to the procedure adopted on account of the fact that he made a confessional statement which was duly recorded on 31.07.2008. If the petitioner is right in submitting that the confession was not voluntary, he would not have waited for such a long period to approach the Court. At least he should have registered his protest within reasonable time. Not only did he not do so, but he even accepted the red ink entry and the adverse implications which arose from it. On this ground, the Court is of the opinion that the petitioner's submission that the confessional statement made by him was not voluntary, is unsubstantial and cannot be accepted.

5. So far as the allegation that the order of severe reprimand was not preceded by a regular enquiry goes, this Court is again of the opinion that once the confessional statement is treated as voluntary - there being no reason for this court not to do so - the question of holding

a regular enquiry did not arise. The fact situation in this case is that the petitioner had an altercation at the time of handing over the articles to the personnel of the new unit when a shortage in the quantity of petrol and kerosene oil was noticed. Being anxious to avoid an adverse outcome, the petitioner appears to have readily made the confessional statement. The respondents naturally did not take up the matter further and imposed a severe reprimand which was reflected in the petitioner's service record as a red ink entry. There is no dispute that the confessional statement was duly signed by the petitioner. Having regard to these circumstances, the Court is unpersuaded by the petitioner's argument that the imposition of penalty was illegal inasmuch as no regular enquiry preceded it.

6. Learned counsel had sought to raise before this court what seems a very startling submission that the adverse ACR entry, made at the relevant time as a result of the penalty of severe reprimand, amounts to a case of double jeopardy. Such an argument, apart from being too startling to be countenanced, is bereft of any merit because a penalty order, based on the existence of certain facts relating to the misconduct of a personnel, has to be reflected in his service record, which is maintained by the organisation concerned in order to ascertain and evaluate the individual's suitability for promotion or other service benefits such as increment etc. Even otherwise, the objective of recording Annual Confidential Reports is to evaluate and place on record the performance of the concerned individual for the relevant period. That the petitioner was visited with a penalty would naturally be reflected in the assessment of his performance for that period; and obviously, an adverse entry was recorded. Such an entry cannot be termed as another penalty or punishment so as to attract the principle of double jeopardy.

7. In view of the above discussion, the Court is satisfied that there is no merit in the appeal and is accordingly dismissed without any order as to costs.

S. RAVINDRA BHAT, J

SUDERSHAN KUMAR MISRA, J APRIL 10, 2013 rd