Lt.Col.V.K.Pandey Vs. Union of India & Ors [2007] Insc 100 (6 February 2007)
G.P. Mathur & A.K. Mathur
A.K. MATHUR, J.
This appeal is directed against the order passed by the Division Bench of Allahabad
High Court whereby the Division Bench of Allahabad by its order dated 22.9.2003
has dismissed the writ petition filed by the appellant.
The appellant was an Officer of the Indian Army.
He challenged his order of punishment of reprimand passed on 17.3.1992 by
the GOC UP Area " An Omission Prejudicial to Good Order and Military
Discipline" allegedly committed by the appellant when he was Garrison
Engineer at Air Force Station, Agra between November, 1986 and October, 1989.
He also prayed that the order dated 16.11.1993, Annexure-4 to the writ petition,
rejecting his statutory complaint against the reprimand should also be quashed.
He also prayed for quashing of the order passed on his statutory complaint
against his non-promotion dated 1.6.1994, Annexure 6 to the writ petition. He
further sought for a writ of mandamus directing the respondents to promote him
to the post of Lt.
Col. (Selection Grade), Colonel and Brigadier with retrospective effect from
the date from which his juniors were promoted. The appellant was 1973 batch
Corps of Engineers Officer commissioned on the Indian Army on 17.6.1973. At the
time of filing of the writ petition before the High Court he was a Time Scale
Lt. Colonel with effect from 1994, which is considered as Major for all
purposes. A selection Board for 1973 batch officers of the Corps of Engineers
was held in May, 1992 for promotion to the post of Lt.Colonel (Selection Grade)
and the result was declared on 4.6.1992. The appellant was found suitable for
promotion by order dated 20.7.1992. The appellant was not promoted to the rank
of Lt.Col.(Selection Grade) when his turn came for promotion whereas persons
junior to him were promoted. The appellant was put through a Special Review
Board in February, 1993 on account of the alleged punishment of reprimand
awarded in March, 1992 by the GOC, UP Area. The appellant filed a
representation against the order of reprimand by way of statutory complaint
under Section 27 of the Army Act to the Government of India and the same was
rejected on 16.11.1993. He also made a statutory complaint on 23.12.1993
against his non-promotion to the post of Lt.Col. (Selection Grade) and that was
also rejected. The appellant filed two writ petitions before the Punjab &
Hryana High Court but they were kept pending for 8 years and ultimately on
28.4.2003 those writ petitions were rejected by the Punjab & Haryana High
Court on the ground that Punjab & Haryana High Court has no jurisdiction to
entertain the writ petitions as the cause of action has arisen to the appellant
within the jurisdiction of Allahabad High Court when he was posted at Agra in
the State of U.P. Therefore, the appellant filed the present writ petition
before the Allahabad High Court. The charge against the appellant was that he
while posted at Kheria, during April/May, 1989, as the Garrison Engineer and
responsible for efficient execution of work relating to contract CA
No.GE/CHR/02 of 88-89 for provision of hardstanding at Kheria, improperly
omitted to ensure that the said work had been efficiently executed before it
was taken over by the MES on or about 5.5.1989, resulting in subsequent
surfacing of defects in the hardstanding.
Prior to that a Defect Board constituted by the Chief Engineer, Bareilly
Zone examined the defect and found that 40 to 50 per cent of the seal coat had
come out and the pavement had undulation. It showed sign of unevenness and
level differences. The job was delegated for planning and execution to Garrison
Engineer, Kheria and the Board opined that poor workmanship was due to improper
supervision by various executives. On the basis of the above finding, an
enquiry was conducted, the appellant was given opportunity in the enquiry and
ultimately the appellant was found guilty in the enquiry and awarded punishment
of reprimand. The said order of reprimand was communicated to the appellant
against which he filed objection before the higher authorities but the same was
rejected. Meanwhile, the case of the appellant was also considered for
promotion to the post of Lt. Colonel also but on account of this order of
reprimand passed against him, his case was again reviewed and in the review he
was found not suitable for appointment and accordingly he was not promoted. On
the basis of these grievances, the present writ petition was filed by the
appellant. The Division Bench of the Allahabad High Court after considering the
matter dismissed the writ petition and held that the Court cannot sit as a
court of appeal to reassess the evidence and the findings of fact recorded by
the Army authorities. Hence the present appeal.
Learned counsel for the appellant submitted that the punishment of reprimand
is based on no evidence and perverse. He also submitted that the enquiry was
conducted in an unfair manner and in breach of principles of natural justice.
Secondly, he submitted that even if the order of reprimand is valid, the
reasoning given by the Selection Board on the performance of the appellant is
also not correct and constitution of Review Board was unjustified. Learned
counsel for the appellant lastly submitted that the punishment of reprimand
cannot be permanent so as to debar the appellant for promotion for all time to
come.
So far as first argument of learned counsel for the appellant that the order
of reprimand passed against the appellant is in breach of principles of natural
justice is concerned, we have gone through the proceedings filed on record. We
find that the appellant was permitted to inspect the documents placed before
the Technical Board Officers on which the appellant was served with the
charge-sheet. He appeared himself and made his own statement. He also submitted
that on the particular year there was heavy downpour and he also submitted that
all the higher authorities from time to time examined the workmanship and no
objection was raised. All these aspects were taken into consideration by the
authorities and after considering all these facts the technical board
authorities came to the conclusion that there was poor workmanship and the
appellant was found lacking in supervision. It is wrong to state that the
appellant was not given hearing. The appellant had sufficient opportunity and
after considering all the materials placed by the appellant before the
authorities, the authorities found that there was poor supervision on the part
of the appellant and it was also found that the appellant has changed the
specification given by the Superintending Engineer. Therefore, we do not find
any perversity in appreciation of evidence by the authorities, the finding of
fact arrived at by the authorities cannot be faulted.
So far as the non-selection of the appellant for the post of Lt. Colonel (
Selection Grade) is concerned, the Selection Board which met for considering
the case of the appellant, were not having the order of reprimand passed by the
disciplinary authorities. Therefore, the selection board found the appellant
suitable and accordingly the appellant was informed that he was found suitable
and he would get his promotion in due time. But it was clearly mentioned in the
communication dated 20.7.1992 that promotion shall be subject to continuing
satisfactory performance. The order reads as follows:
" I am directed to inform you that your name had been considered by the
appropriate Selection Board for promotion to the rank of acting Lt.Col as a
Fresh 1973 batch. The Board has found you to be in an acceptable grade for such
promotion by selection.
You will be promoted as per approved sequence. Promotion will be subject to
continued satisfactory performance &
remaining in acceptable medical classification."
This order was passed in total ignorance of the order of reprimand which was
issued against the appellant on 17.3.1992. The Selection Committee considered
the candidature of the appellant along with others in May 1992. At that time
the punishment order was not before the Selection Committee.. However, the
result was withheld due to disciplinary ban that had been imposed on him
because of pendency of the disciplinary enquiry. The Selection Committee was
communicated on 5.6.1992 with intimation that the appellant had been awarded reprimand
on 17.3.1992 by the GOC, UP Area. On lifting of the ban the appellant was
intimated about the result of the Selection Board on 20.7.1992. In fact this
punishment of reprimand awarded to the appellant was not available to the
Selection Board.
Therefore, a Special Review Board was called and that fresh input placed
before the Board, as a result of appraisal of performance, he was not found
suitable for appointment to the post of Lt. Colonel. Therefore, he could not be
promoted. In view of the sequence of these events, it is more than clear that
the Selection Committee was not apprised of this punishment of reprimand. His
case was submitted before the Review Committee on receipt of this finding and
the Review Committee was of the opinion that he could not be promoted and
accordingly he was not promoted. This action of the respondents cannot be said
to be unjustified. In fact, the Selection Board which met in May, 1992, was not
aware of the punishment which was awarded to the appellant on 17.3.1992 by the
GOC but the same was communicated later on 20.7.1992. But before that the
appellant was cleared for promotion. When this fact came to light, his case was
reviewed and on the basis of the drop of performance, he was not recommended
for promotion. The action of the respondents, in our opinion, cannot be said to
be bad though the punishment of reprimand which has been recorded in the
service record of the appellant will continue to be part of the same but in
future if there is improvement in his performance that can always be reviewed
by the authorities. But so far as the present case is concerned, we are of
opinion that the view taken by the Division Bench of the High Court of
Allahabad cannot be said to be perverse so as to warrant interference by this Court
and accordingly we do not find any merit in this appeal which is dismissed. No
order as to costs.
Back
Pages: 1 2
