K.S. Sahu vs Uoi .

K. S. SAHU …APPELLANT

v.

UNION OF INDIA & ORS. ...RESPONDENT(S)

JUDGMENT

ABHAY S. OKA, J.

1. This is an appeal under Section 31 of the Armed Forces

Tribunal Act, 2007 by which, an exception has been taken to

the judgment and order dated 27th August 2013 passed by the

Armed Forces Tribunal (for short, ‘the said Tribunal’), Regional

Bench, Kochi.

2. On 31st July 2002, the appellant joined Indian Navy as a

sailor. The appellant was selected by the Service Selection

Board to undergo training for being commissioned as an

officer. He underwent initial training at INS Mandovi at Goa for Signature Not Verified

a period of two years from 7th July 2002. On 21st June 2009, Digitally signed by SNEHA DAS Date: 2022.08.06 10:02:49 IST Reason:

he was sent for training at Indian Naval Academy, Ezhimala

1 (for short, ‘INA’). He was required to complete 5th and 6th terms

of training at INA. On 1st December 2010, a communication

was issued by the Integrated Headquarters of the Ministry of

Defence (Navy), Government of India informing that the

competent authority has accorded approval to the withdrawal

of the appellant from INA and revert him to his original rank

and branch as a sailor without loss of seniority. Being

aggrieved by the said decision, the appellant filed Original

Application under Section 14 of the Armed Forces Tribunal

Act, 2007 before the said Tribunal. By the impugned judgment,

the Original Application has been dismissed.

SUBMISSIONS OF THE APPELLANT

3. The learned senior counsel appearing for the appellant

pointed out the order dated 27th August 2013, passed by the

said Tribunal by which leave has been granted under sub-

Section (1) of Section 31 of the Armed Forces Tribunal Act,

2007 as three questions of general public importance were

involved. The first question was whether the appellant who was

a service cadet could be withdrawn from the course in INA

without following the principles of natural justice. The second

question was whether Regulation 216 of the Navy (Discipline

2 and Miscellaneous Provisions) Regulations, 1965 (for short ‘the

said Regulations’) could be invoked against a service cadet. The

third question was whether, after completion of the course and

receipt of the certificates, the applicant could be withdrawn.

4. The learned senior counsel submitted that the

withdrawal of the appellant from the course is contrary to the

Rules in the Enclosure–1 of Naval Headquarters’ letter dated

11th November 1988, which provide that the final authority for

withdrawal of a cadet from the course vests in the Government.

He pointed out that in this case, the decision is made not by

the Government, but by a subordinate authority. He also

pointed out that the same enclosure provides that a cadet is to

be dispatched home on leave, pending the acceptance of the

proposal for his withdrawal if it is made on the eve of

summer/winter break. He submitted that even after the

recommendation was made for the withdrawal of the appellant

from the course, he was not sent home but was permitted to

pursue the course. He also pointed out that the Naval

authorities have contended on one hand that the withdrawal

is on the disciplinary grounds and on the other hand, the

withdrawal is on the ground that the appellant was found

deficient in basic character and other officer like qualities and 3 graded as ‘unacceptable’ in spite of written warnings. He

submitted that both the grounds are distinct grounds. The

learned senior counsel further submitted that the officers of

the Navy have victimised the appellant due to the fact that he

comes from a very poor family and his father is working as a

carpenter in a Naval establishment. The learned senior counsel

further submitted that the appellant was influenced to sign the

documents accepting his mistake under a threat of disciplinary

action. He submitted that the entire theory of recovery of

articles from the appellant’s room is very doubtful. He

submitted that the Navy forwarded an invitation to the

appellant’s parents for attending the valedictory ceremony on

6th December 2010 and they were never informed about the

withdrawal of the appellant. The learned senior counsel

submitted that the said Tribunal has completely ignored

important questions of public importance involved in the

application preferred by the appellant.

SUBMISSIONS OF THE RESPONDENT

5. Ms. Aishwarya Bhati, the learned Additional Solicitor

General of India firstly submitted that Regulation 216 of the

said Regulations has not been invoked in the case of the

4 appellant and therefore, there is no question of following the

principles of natural justice. She pointed out that the Rules

governing resignation, withdrawal, relegation and re-

examination of (10+2) Executive Cadets undergoing training at

Naval Academy, were issued by the Integrated Headquarters of

Ministry of Defence (Navy), New Delhi vide letter dated 11th

November 1988. She pointed out that grounds for withdrawal

have been set out in the said Rules. In this case, Ground ‘c’

was invoked as the appellant was found deficient in basic

character and other officer like qualities. She pointed out that

the written warnings were issued to the appellant on 16th July

2009 and 11th May 2010. The appellant was called upon to

submit his explanation while issuing the warnings. She

pointed out that though the proposal for withdrawal was

submitted on 24th August 2009, on 6th November 2009, the

appellant was only relegated. She pointed out that on the basis

of the proposal dated 26th June 2010, ultimately the action of

withdrawal was taken. She pointed out that all these aspects

and the conduct of the appellant have been taken into

consideration by the said Tribunal. She urged that the

impugned judgment of the Tribunal does not call for any

interference.

5 CONSIDERATION OF SUBMISSIONS

6. In the present case, impugned action which was the

subject matter of challenge before the said Tribunal, was of the

withdrawal of the appellant from the course which he was

undergoing in INA. Regulation 216 of the said Regulations

deals with the termination of service of an officer by the

Government on the ground of misconduct. Clause (1) of

Regulation 216 contemplates the issuance of show cause

notice to the officer. Clause (2) of the Regulation 216 requires

information to be given to the officer about all reports adverse

to him and to give an opportunity to him to submit his

explanation and defence in writing. However, the action of

withdrawal of the appellant from the course was not taken in

terms of Regulation 216. The said Regulation is applicable to

termination of service. In this case, the service of the appellant

has not been terminated.

7. The Integrated Headquarters of Ministry of Defence (Navy)

vide letter dated 11th November 1988 forwarded to the Chiefs

of the Western as well as Eastern Naval Commands, the Rules

governing resignation, withdrawal, relegation and re-

examination of (10+2) Executive Cadets undergoing training in

INA. Rule 4 provides for the relegation of a cadet on the

6 grounds specified therein, subject to approval by the Naval

Headquarters. Rule 4 reads thus.:

“4. Subject to approval by naval Headquarters (DNT) a cadet may be relegated on any of the following grounds:-

(a).Fails to achieve the minimum standards in academic and service subjects in spite of a written warning and re-examination. (Re-

examination is permitted only upto 3 subjects).

(b).Possesses the basic qualities required of an Officer but requires more time to develop them (requisite Officer Like Qualities).

(c).Misses more than 10 weeks continuous training owing to illness or other medical grounds.

(d).On disciplinary grounds.

(e).Fails to achieve minimum standards in outdoor training in spite of written warning.

(f)(i) Mines more than 40% of course duration due to hospitalization/sick leave/any medical grounds.

(ii) mines more than 40% of ODT (games/PT and various PT tests) due to hospitalization/sick leave/medical grounds.

(Corrected vide: HQ&NC letter TR/8238/ Policy dated 13 September 04).”

8. There is a specific provision in Rules dealing with the

withdrawal of a cadet from the course in INA. It reads thus.:

“Final authority for the withdrawal of a cadet read the Government. Withdrawal on

7 medical grounds will be regulated in accordance with regulation 218, Regulation for the Navy Part II (Statutory). A cadet may be recommended for withdrawal on any of the following grounds:-

a.Fails to make the grade in academic subjects inspite of relegations and written warning for withdrawal.

b.Fails to achieve the minimum standards in services, subjects, inspite of relegation(s) and written warning for withdrawal.

c.Found deficient in basic character and other Officer Like Qualities and graded unacceptable in spite of written warnings.

e.Disciplinary grounds

f.Medical grounds.

10.Except for disciplinary or medical grounds, a cadet will normally be recommended for withdrawal at the end of a term. Recommendations for withdrawal on disciplinary grounds will be made after the cadet has been given adequate written warnings and opportunity to explain his conduct in terms of regulations 216, Regulation for the Navy Part II, Statutory.”

(emphasis added)

9. It is in the light of the aforesaid provision of the Rules that

the controversy will have to be examined. It appears that on

the basis of irregularities in the conduct of the appellant

reported on 19th April 2010 by Lt. Praveen Kumar, an

investigation was made. After carrying out the investigation

8 and questioning the appellant, his cabin was checked. In his

cabin, various objectionable articles were found that were

taken into the custody of Squadron’s office. On 9th July 2009,

the appellant was questioned on the charge that on 5th July

2009, he was found in possession of a large number of items

which were government property and some were belongings of

other cadets. While answering the questions, the appellant

accepted that his cabin was checked on 5th July 2009. The

appellant accepted that he was found in possession of

pornographic magazines, cigarettes, a lighter and a mobile

phone. He was also found in possession of Garuda Pay office

stamp and a large number of seamens’ knives. He was in

possession of a stabilizer, a multimeter as well as a BSNL

phone. He accepted that a bedsheet of another cadet was found

in his possession. In response to question no.24, the appellant

stated that he has committed a wrong for the first time and

was ready to take any punishment.

10. Based on the investigation carried out, a notice dated 16th

July 2009 was issued to the appellant. In the notice, it was

stated that the appellant was found in the custody of

government property, such as a stabilizer, a multimeter, BSNL

landline phone, INS Garuda Pay office stamp, etc. He was

9 found in possession of pornographic material apart from the

possession of prohibited items like cigarettes, a lighter and

mobile phone, etc. Moreover, he was found in possession of a

large number of items belonging to other cadets. By the said

notice, a warning was issued to the appellant and he was called

upon to explain why action should not be taken against him.

The appellant replied in writing on 16th July 2009, in which he

claimed that the stabilizer, multimeter and cables were already

in his room when he occupied it. He claimed that the INS

Garuda Pay office stamp does not belong to him and he does

not know how it was found in his cabin. He accepted that he

was in possession of 5 Seamens’ knives, 16 bedsheets, 9

buckles of a drill, and a bedsheet of cadet Mr. Kunal Saini. He

claimed that the mobile phone, MP3 player, etc. were his

personal belongings. He accepted that he was in possession of

cigarettes. He accepted that he was in possession of

pornographic magazines. But shockingly, he claimed that the

magazines were used for making greetings.

11. INA submitted a proposal on 24th August 2009 to the

Headquarters recommending withdrawal of the appellant. The

proposal contains all details of what was found during the

investigation. The proposal refers to the fact that the appellant

10 was found in the custody of prohibited items, such as a mobile

phone, cigarettes, lighter, etc. as well as pornographic

material. It refers to the warning issued to the appellant.

Though the proposal lastly refers to Regulation 216, it also

mentions that the record shows that the appellant lacks basic

character and officer like qualities. Instead of withdrawal from

the course on 6th November 2009, the appellant was only

relegated.

12. Another show cause notice was issued to the appellant

on 11th May 2010, which is based on the investigation carried

out by Lt.Commodore Ashutosh Bobade. In the Notice, it was

stated that the appellant was found guilty of tampering with

an official document (Squadron Sick Report Book). Apart from

articles of the other cadets, he was found in possession of

hammers, pliers and ante-room magazines.

13. INA submitted another proposal dated 26th June 2010 to

the Naval Headquarters, which records that after the appellant

was relegated on 6th November 2009, he indulged in tampering

with the said official document. Moreover, he remained absent

from the classes. It is also mentioned that the appellant has

been so far subjected to 52 restrictions and he has

accumulated 260 negative points. INA recommended action of

11 withdrawal against the appellant on the ground of lack of basic

character and officer like qualities. It is on the basis of this

proposal that a decision was taken by the Naval Headquarters

to grant approval to the proposal for withdrawal of the

appellant from INA. The Headquarters communicated the

same to the Flag Officer Commanding-in-Chief, Headquarters

Southern Naval Command, Kochi on 1st December 2010. We

may note here that in response to the show cause notice issued

on 16th July 2009, the appellant had accepted that he was

found in possession of objectionable articles and requested the

authorities to forgive him by stating that it was his first ever

offence.

14. Before we deal with the legal submissions, we may note

here that on 14th January 2011, the appellant’s father made a

representation to the Chief of the Naval Staff for

reconsideration of the action of withdrawal. He requested on

behalf of the family that one more opportunity may be granted

to the appellant. He assured that if the appellant was given one

more chance, there won’t be any complaint against him. By the

letter dated 8th March 2011, the Commodore of Integrated

Headquarters of the Ministry of Defence (Navy) informed the

appellant’s father that the case of the appellant was

12 reconsidered and after reconsideration of the entire case, the

request made by the appellant’s father could not be accepted

on the grounds mentioned therein. It was mentioned therein

that the appellant was offered every opportunity to improve. In

fact, feedback on his progress at INA was communicated to the

appellant’s father and he was requested to guide the appellant

and encourage him to show progress. The said communication

recorded that as the appellant met the mandatory educational

requirement of the University of Goa, in the Graduation

ceremony conducted on 27th November 2010, a B.Sc Degree of

Goa University was granted to the appellant. By another letter

dated 18th February 2011, the Commander and Training

Captain clarified that the invitation for the passing out parade

to be held on 5th December 2010 was dispatched to the

appellant’s father on 22nd October 2010 as a procedural norm.

The appellant’s father was informed on 2nd December 2010

about the decision of the Headquarters of approving the

proposal for withdrawal of the appellant. He specifically stated

that on 2nd December 2010, Lt. Commodore Ashutosh Bobade

informed the appellant’s father over telephone about the said

decision and requested him to avoid attending passing out

parade. It is stated in the said letter that the appellant never

13 participated in the passing out parade. We may also note here

that an appeal was thereafter preferred by the appellant to the

Central Government on 7th July 2011.

15. Regulation 216 deals with the dismissal of an officer from

service on disciplinary grounds. The appellant has not been

dismissed from service. On the contrary, his service as a sailor

was protected and even his seniority was protected. The

withdrawal did not affect his service in any manner. In this

case, we are not dealing with disciplinary action, but the action

of withdrawal of the appellant from the course on the ground

that the appellant was found deficient in basic character and

other officer like qualities. As narrated above, based on the

search of his cabin, a show cause notice was issued way back

on 16th July 2009 to the appellant calling for his explanation.

The appellant accepted that he was in possession of

objectionable articles including pornographic magazines.

Though a recommendation was made for withdrawal on 6th

November 2009, the appellant was only relegated and was

given one more opportunity to improve. Even thereafter, the

appellant indulged in tampering with the record which led to

the issuance of a fresh show cause notice and warning to the

appellant on 11th May 2010. Only thereafter, on 26th June

14 2010 that a proposal was submitted to the Naval Headquarters

for grant of approval to the proposed action of withdrawal.

16. We are dealing with a very disciplined force like the Navy.

The appellant who was already in Naval service as a sailor was

given an opportunity to undergo training. While assessing

whether the appellant was found deficient in basic character

and other officer like qualities, the conduct of the appellant,

which is reflected from the Inquiry Report, two show cause

notices and his own statement, has been taken into

consideration. We have already quoted relevant Rules which

provide that only the withdrawal on medical grounds will be

governed by Regulation 216 of the said Regulations. There are

four other grounds mentioned therein, on the basis of which,

withdrawal can be made. As can be seen from the said Rules

and considering the fact that the question was of continuing

training of the appellant, the competent authority could have

always taken the decision of withdrawal on the basis of its

subjective satisfaction of the existence of one of the grounds

for withdrawal provided in the Rules. In this case, the

subjective satisfaction of the competent authority is on the

basis of material on record. At least on two occasions, the

appellant was put to notice and warning and was given an

15 opportunity to explain his conduct. While taking action of

withdrawal of the appellant from training, the competent

authority made the assessment of the performance and

conduct of the cadet in INA during his training. There was

material on record to come to a subjective satisfaction that the

appellant was deficient in basic character and officer like

qualities. Two show cause notices were served upon the

appellant before taking the action of withdrawal. There was an

opportunity given on two occasions to the appellant to explain

his conduct and improve his conduct. His conduct as reflected

from record, certainly supports the conclusion that he lacked

the qualities which an officer of Navy must possess.

17. As regards the argument that the power of withdrawal

could have been exercised only by the Government, in the

counter affidavit, reliance has been placed on the letter dated

17th August 2001 of the Ministry of Defence of the Government

of India. The Chief of Personnel (COP) has been delegated the

powers of withdrawal of officers and cadets under training.

Hence, no fault can be found with the action of withdrawal on

the ground that the approval of the Government was not taken.

18. A perusal of the impugned judgment of the Tribunal

shows that the entire material has been carefully examined by

16 the Tribunal. The Tribunal consisted of an administrative

member who is an expert in the field as he was a Lieutenant

General. The entire conduct of the appellant during training at

INA has been considered in the context of the qualities which

an officer of the Navy must possess and the discipline required

to be maintained in the Navy. While taking action of

withdrawal, the competent authority has ensured that the

service of the appellant with Navy is not affected in any manner

and even the Degree of University of Goa has been conferred

on the appellant.

19. We find that the appeal is devoid of merit and therefore,

it must fail. Accordingly, appeal is dismissed with no order as

to costs.

20. Pending IAs, if any, shall stand disposed of.

……..…………………J. (ABHAY S. OKA)

……..…………………J. (M. M. SUNDRESH)

New Delhi;

August 5th, 2022.

17