WHEN MILITARY JUSTICE IS MISUSED TO SETTLE SCORES

I am quite convinced, that on the face of it, if all parameters are followed to the T, the military system of justice in our country can be the most fair. I know of countless instances where the system has delivered justice despite command pressures and has not succumbed to them. Yet, there are also numerous and, maybe more, examples which I can re-collect where the military justice has failed miserably in delivering justice and where personnel have been vilified and crucified for no fault of theirs.

This present example is also one of failure of military justice and one where the person persecuted was from that branch which is meant to help the Commanders mete out justice. The Judge Advocate Generals Branch is unfortunately rotting to the core today, because of which unscrupulous elements are having a field day being at the helm of affairs and running down honest and dedicated officers to settle personal scores.

In this instance, an officer has been hounded just because his immediate superior did not like him and was unhappy to have him serve under him. He not only managed to get him side-lined, at the cost of his career, but also got him punished when he resisted the attempts to fix his career.

And to utter disgrace to the uniform they wore, Commanders at various levels played an active part in allowing this travesty of justice to take place. The officer, Lt Col Mukul Dev, was punished while his superior, Brig PS Rathore, now the Judge Advocate General of the Army in the rank of Maj Gen, was allowed to go scot free despite being similarly indicted by the CoI.

I am reproducing below, the excerpts from the judgement passed today by the Kolkata bench of the Armed Forces Tribunal, after Lt Col Dev approached it for justice. It is an eye opener on how justice fails to deliver and how senior officers look the other way while careers of junior officers are destroyed.

Lt Col Dev and the acumen and perseverance to fight the injustice, but consider how many officers, JCOs and Jawans may be suffering for the same reasons and not having the wherewithal to fight the system.
Let's hope the present Chief of Army Staff, General Bikram Singh, is alive to the problems that plague the JAG Dept and takes steps to clean the mess.

EXCERPTS FROM JUDGEMENT OF KOLKATA AFT BENCH

25.       We have the following observations with regard to the manner in which this COI was convened, conducted, analysed and directions from the Army Commander was obtained which resulted in  different degree of administrative actions against some out of those who were held responsible in the said COI.

(a)   The matter was not at all that severe or grave administrative breach to initiate a COI. After all it was publication of Part II Order which is nothing but a statement of “Occurrence” that was done on 04.04.2009 and later cancelled after  it was found out by the  higher officials that a transfer of an officer could not have been done without the approval of the MS Branch at Army HQ.  The entire episode did not cause any loss of property, fund or moral fibre. It was, if at all, an incidence which could have been tackled within the space of routine administration. It definitely did not warrant a senior officer of the rank of  GOC-in-C to order a COI for such a mundane and routine administrative affair.

(b)   That apart by issuing clarificatory order dt. 2.4.09, the posting of the applicant in the Q (Land-2) Branch has not been cancelled or kept in abeyance. There has been remarkable departure from the sanction of the Army commander-in-Chief on the material points on which the COI was directed to be held and the convening order which only confined to “pint point the responsibility for the above publication” and not enquiring into the side stepping of the applicant. Therefore, the very convening of this COI could have been avoided unless there were different motives to be attributed by obtaining strength from findings of such a COI.

(c)   Coming to the COI itself, we find that convening order clearly spells out that the COI would also “pin point responsibility for above publication” of wrong Part II Orders. Our attention was drawn to Para 584 (c) of Regulations of Army 1986 which clearly gives out situations where Part II Orders are published.  Despite such directions of the convening authority in the said convening order, HQ Central Command, while replying to a query raised by MOD (AG) (their Note No. 48545/Stat/CC/1163/AG/DV 4(b) dated 25.08.2010 in Para 2 (ii) there of),  has stated that the subject COI pertains to only investigation of illegal publication of Part II Order and the terms of reference was to “Investigate the circumstances under which such Part II Orders were published”. This aspect of “ pin pointing responsibility …” has been omitted in their reply to MOD

(d)   It is evident from Para 3 (b) and (c) of HQ Central Command Note of even No. dated 02.11.2010 addressed to MOD (AG) that in the aforesaid reply HQ Central Command (DV) had not furnished full and complete facts to the MOD by not revealing one part of the convening order which was to “Pin point the responsibility for above publication”. Since the ibid query was required to be answered accurately; half truth answer in this manner would have given a different twist while MOD was adjudicating on the Statutory Complaint submitted by the applicant, who was aggrieved with administrative action taken against him.

(e)   We also noticed that the COI, in its opinion, has clearly given following facts based on its findings :-

(i)                 The Court felt that entire episode of wrong Part II Order was published due to ambiguous written instructions that were interpreted without efforts resulting in wrong Part II Orders.

(ii)               The COI held following officers responsible for this lapse. 

(aa)     Brig U.K. Chopra.

(ab)     Brig P.S. Rathore

(ac)     Lt Col Mukul Deb

(iii)             In addition, the Court held following officers responsible for  aggravation for the above lapse

(aa)     Col S.K. Malhotra

(ab)     Lt Col V.M. Singh

(ac)     Lt Col A. Bahukhandi

(f)     It is interesting to note that the opinion of the Court with regard to Lt Col Mukul Deb, who was punished for maximum severity, was responsible for a lapse of “not exercising caution” while initiating a noting. So were the other officers, who were blamed for “not exercising due caution”.  Brig U.K. Chopra and Brig P.S. Rathore were held responsible for the lapse for issuing vague instructions in transfer of Lt Col Mukul Deb and relieving him from the post of AJAG respectively.  Very strangely, these aspects were not indicated to the MOD by HQ Central Command in response to their query, which was raised while MOD was examining Lt. Col. Mukul Deb’s statutory complaint. 

(g)   The Notings on the file (19015/COI/MD/C/AG/DV merely relate to views of various Staff officers and their opinion and we shall not comment on them. We would however, like to point out our observations that the GOC-in-C in his direction on the COI has conveniently omitted the names of the two Brigadiers (Brig Chopra and Brig Rathore)  thereby keeping his administrative process incomplete. Ideally he, having found them being blamed for omissions/commisions  of lapses, the said COI, should have either dealt with them administratively  or exonerated them completely or partially by disagreeing on the findings of the COI with adequate reasons endorsed in his directions. Such incomplete administrative actions at the level of Command HQ by Army Commander is often not seen and indicative of lack of transparency and non-application of mind which create a ground for hostile discrimination on the part of the aggrieved officer.

(h)   The lapses pointed out in processing the file vide note dt. 24.8.10 & 18.2.11 (vide annexure-A24) have not been reconciled by the superior authorities.    

26.       In view of our ibid discussions and observations especially with regard to incomplete directions by the GOC-in-C, we feel that the matter must be brought up to the notice of COAS (Respondent No  2) as it is for him to direct completion of action as appropriate.  The COAS may also note that Senior Officers at that level must endorse their views on such enquiry reports in a transparent manner indicating their agreement or disagreement or partial agreement with adequate reasons.

27.       Brigadiers, who head branches in Command HQ do have important supervisory role in this case, but their failure, though pointed out by the C of I, has gone un-noticed by the GOC-in-C while giving his direction. The COAS must issue directions to rectify such lapses in HQ Central Command.

28.       We also find that that the GOC-in-C has partially agreed that the findings of the Court but has not mentioned his views with reasons for said partial agreement. Such actions create  doubts in our mind since they can never be termed  “transparent”. The COAS may also consider this aspect.  

29.       Considering the matter from all its angles, we are of the opinion that the  recordable censure of “severe displeasure” issued against the applicant is not only too harsh but totally uncalled for. As admittedly, the respondents have accepted that in the order dt. 20.3.09 the word “transferred” should not have been used and that it was used inadvertently. It is clear from the above discussion that by use of such word i.e. “transferred”, the entire misconception and misunderstanding started although the respondent authorities tried to rectify their alleged fault or mistake by issuing subsequent clarificatory order but without cancelling the same. Therefore, in our considered view, the alleged lapse of the applicant lies unsubstantiated. The respondents cannot also escape the liability of publishing an order which was couched in a confusing language.  It is also to be noted that apart from this incident, no other misconduct was alleged against him though the ld. adv. for the respondents has submitted that in another occasion the applicant was issued with a non-recordable warning for using foul and intemperate language against higher officers, which, however, is not under challenge in this case.

30.       We have gone through the show cause notice and the detailed reply  given thereto by the applicant. But in the impugned order dt. 29.9.09, there was no discussion of the points raised by the applicant in his reply to the show cause. It simply states in para 3 as follows :-

“3.        Apropos, I direct that my “severe displeasure (recordable)” be conveyed to IC 46298N Lieutenant colonel Mukul Dev, Assistant Judge Advocate General of Headquarters, Central command for the above mentioned lapse on his part.”

31.       In our considered opinion when by such recordable censure, the entire service career of an young army officer is going to be ruined, it should not be taken lightly and at least reasons for non-acceptance of the reply given by the delinquent officer should have been recorded, which is the basic principle of natural justice. The order is not at all a speaking order.  We, therefore, cannot sustain this impugned order and it is liable to be set aside and quashed. Consequently, the order dt. 21.2.12 rejecting the statutory complaint filed by the applicant against the impugned punishment order is set aside and quashed. The applicant on this issue stands exonerated.

32.       In this context, we also direct the COAS (respondent No. 2) to re-examine as to why the administrative action on the subject C of I has remained incomplete for nearly three years, in which two other Brigadiers, including respondent No. 5, were also investigated upon, apportioned some degree of supervisory lapse, but their names have been conveniently omitted from the directions by the GOC in C, who has not recorded any reasons for such omission, neither in his order nor in response to the MOD, when queried for by them, while they were processing the statutory complaint of the applicant. Actions like withholding information or not assigning adequate reasons while dealing with such cases especially, by senior officers compounds lack of transparency leading to denial of natural justice apart from the vices of not rendering public service in a holistic way.  The COAS shall look into this aspect objectively.

33.       In the result, the original application is allowed on contest but without cost. The impugned orders dt. 29.9.09 and 21.2.12 are hereby quashed. The applicant be exonerated of the charge levelled against him in the show cause notice dt. 21.8.09.

34.       Let the original records be returned to the respondents on proper receipt,.

 35.      Let plain copy of the order be handed over to the parties.

(LT. GEN K.P.D.SAMANTA)                                   (JUSTICE H.N.SARMA)

        MEMBER(ADMINISTRATIVE)                                    MEMBER(JUDICIAL)