Union Of India vs Brig. Devinder Singh

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

VERSUS

BRIG. DEVINDER SINGH .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1) The challenge in the present appeals is to an order passed by the

Armed Forces Tribunal1 on May 17, 2010 directing the appellants

that the facts should be correctly entered in the reports at the

relevant places and that the Annual Confidential Report 2 written by

Lt. Gen. Kishan Pal as Adjudicating Authority for the period

November, 1998 to June, 1999 be expunged as a whole.

2) It is categorical stand of the appellants that the order of the

Tribunal so as to expunge the ACR written by Lt. Gen. Kishan Pal is

not being challenged by the appellants in the present appeals as

said part of the order of the Tribunal has been given effect to. The

1 Tribunal 2 ACR

1 only direction under challenge is that the facts should be correctly

entered in the reports at the relevant place.

3) The respondent herein was promoted to the post of Brigadier in

May, 1998 and assumed the Command of 70 Infantry Brigade then

deployed in Kashmir Valley in counter insurgency duties in

operation Rakshak in the year 1999. His Brigade Headquarter was

associated to Ladakh Sector subsequently. As per the respondent,

he forecasted the pattern of Kargil intrusion but the same was

summarily dismissed by his senior officers.

4) The grievance of the respondent is that Battle Performance Report,

After-Action Report, Report of Army Headquarters Military

Operations Directorate and Reports submitted by the High-Power

Committee of the Government of India regarding Kargil War 3 should

be correctly recorded recognising his performance in Operation

Vijay.

5) It may be stated that the above said Reports are prepared during

the action and after the War is completed for review and for further

studies at subsequent stages for strategic purposes. Such

documents are confidential and are not in public domain.

6) The learned Tribunal issued directions for correction in Para 192 in

the After-Action Report wherein, the impression sought to be given

is that Eastern Flank was headed by Brig. Ashok Dugal but as per

3 Operation Vijay

2 Maj. Gen. Budhwar, GOC of 3 Infantry Division, Brig. Ashok Dugal

was called to coordinate and assist the Eastern Flank and not

superimposed upon the respondent. The direction of the Tribunal

was to correct the After-Action Report accordingly.

7) The only question is whether the respondent can seek recording of

After-Action Report in the manner sought by him. The After-Action

Report is a compilation of the reports submitted by the Officers at

the time of engagement. Such reports are collected and

maintained for the purposes of future strategic studies and have

no adverse consequences in respect of any Officer as no adverse

action is taken on the basis of such reports. In fact, the respondent

has been conferred Vishisht Seva Medal as the Commander of an

Infantry Brigade in the Northern Command who was given the

responsibility for the conduct of all operations in Batalik-Yaldor

Sector during Operation Vijay.

8) We find the issue raised is more to take credit by the Officers

engaged in Operation Vijay. The reports do not have any civil

consequences, therefore, is not subject to judicial review by the

Tribunal or the Courts. The order having civil consequences has

already been set aside and not appealed by the appellants.

Therefore, maintenance of records for future strategic studies is

not open to challenge in exercise of power of judicial review.

9) In fact, in the synopsis furnished by the learned counsel for the

respondent, it is mentioned that the respondent does not want any

3 personal relief from the Court but only wants correct historical facts

to be drawn and declared by this Court.

10) The Tribunal or the Court is not the Authority to appreciate the

historical facts as it is for the experts and Officers in the Armed

Forces to record such facts in terms of the procedure established

by them. This Court neither has the expertise nor has the

jurisdiction to sit over the reports furnished by the Officers in

respect of credit to the Officers involved in the Operation Vijay.

11) Consequently, the direction of the Tribunal to correct the After-

Action Report or other such reports cannot be sustained and is,

therefore, set aside. The appeals are accordingly allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

AUGUST 23, 2019.

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