AFT ORDERS MS TO APOLOGISE TO WAR VETERAN

Delivering a sharp rap on the knuckles for not adhering to a judgement given by it and causing undue harassment to a petitioner, the Kolkata bench of the Armed Forces Tribunal has directed the Military Secretary, Lt Gen Syed Ata Hasnain to express regret to the petitioner.

Giving its directions in a contempt application field by Col Arun Dattaji Patole (retd), naming the Military Secretary, Lt Gen Syed Ata Hasnain and the Chief of Army Staff, General Bikram Singh as respondents, the AFT bench has also come down very hard on the Col MS (Legal) for not taking the matter seriously. The bench has found his attitude to be "callous" and recommended action against him by higher authorities, if they so desire.

The genesis of the order lies in an order given by the bench earlier directing the MS to hold a special promotion board of the officer to the rank of Brigadier and intimate the result to him with complete reasoning. He was also directed to provide a personal hearing to the Colonel if he was not satisfied with the reply.

The Army did hold a special promotion board but communicated its result in a perfunctory manner without giving any detailed reasoning:

"I.  Ref WP 15548(W)|2OO3  filed by you in the High Court at Kolkata.
2 . Consequent  to  the relief granted by Kolkata High Court in WP 1,5548-w/2003  vide order dated 2 Feb 2, you were considered  as Special  Revielw  (Fresh) case of the 1971 batch of AOC by the No. 2 SB held from 06 to 0B Apr 2011,  under the previous system of selection  (value judgement) and not approved  for promotion  to the acting rank of Brig."

When the officer reminded the MS of the directions of the AFT bench and that he wanted an interview with him he received an arrogant reply which bordered on dismissive attitude:

"  In case you want to  have personal hearing you must intimate  the date so that date is fixed and case be
explained about non  empanelment along with  the reasons as directed by  the  Hon'ble Armed Forces
Tribunal.  lt is clarified  that you have to come on at your own expenses  for the said interview,  as no funds are allocated for  calling retired  officers for  personal hearing."

Clearly, not pleased with the action taken by the MS Branch in pursuance of the orders given by it, the Bench passed the following hard-hitting order.

 "We direct that MS, during his visits to various Command HQs. including Pune and Kolkata (where


the appricant  usualy resides)  must intimate the applicant  and grant all possible facilities  to give him a personal hearing in which all aspects must be explained  to  him in detail within the limits of security.  The applicant  should be apprised  as to why he was low on merit and whether ail points that were to be covered
have indeed been covered  while considering  his case in the special  board. subsequent  to such a personal  hearing,  it will only be appropriate  for the MS on behalf of the respondents to express  regret to the war veteran for the delay and agony thus caused.  Thereafter,  the MS shall pass a speaking  order in writing explaining  the detairs of the interview and the reasons  for non-empanelment  of the applicant  in the special
board that was conducted  on the order of this Tribunal".

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)

YET ANOTHER ARMY COMMANDER

Lt General SR Ghosh was in a unusually friendly mood while interacting with the media today, the day he hung his uniform in exchange for civvies. Nothing strange in that. There are many like him in the Army. Wary of media during their service, unlike many others who are not afraid to speak to media whenever required. However, Lt Gen Ghosh's tenure must rank among the tenures where the Army Commander kept away from the media like the plague. He must be having good reasons for it, I'm sure.

So when the opportunity came to visit Chandimandir and the Command House for the farewell of Lt Gen Ghosh, I decided to grab it with both hands. Much to the discomfort of several busybodies in Command HQs, as I was to learn later. But one could not care less for such bumblebees. So it was after nearly seven or eight years that I set foot in Command House. Last time it had been for the farewell of Lt Gen S Pattabhiraman, one of the most media friendly Army Commanders who came to Chandimandir and never got a single bad word written or said about him. Forthright and truthful, he need not have feared media.

The familiar spectacle unfolded with the same military precision as has been done on countless earlier occasions. The wreath laying ceremony at War Memorial, the inspection of Guard of Honour, the Buggy Ride, the high tea at Command House. Nothing changes.

Every occupant of the Command House wants to leave his or her mark and so did Mrs Bulbul Ghosh. She has her name imprinted on the glass wall of an air conditioned gazebo behind the house overlooking the lush green lawn. This time I did not get a chance to enter the house so I cannot comment on the improvements made therein.

But the most interesting aspect of the entire affair was the media interaction with the retiring GOC-in-C, Western Command. Somewhat reluctant to give a soundbite, yet the General did make his way where we requested him to come. It was there that the latent, pent-up fear of the media in some pompous souls finally arose from the dark depths it was nestling in.

A two star General, whose name I forget now, tried to interject and give his unsought advice on what kind questions may be asked of the outgoing Army Commander or rather what sort of questions may not be asked. He was visibly unhappy when informed that the media personnel present there were professionals who need not be told how to go about their task. This again was not quite to his liking and this was reflected on the contours of his face. He again said something about doing his job ( which I am sure should not entail speaking for his Army Commander) and this time he was firmly told to mind his own business. At this stage The Army Commander also restrained him else things would have turned decidedly ugly. The Army Commander then went on to answer the questions in good humour and with confidence.

Anyway, it was an interesting interlude to an otherwise dull engagement. 'More loyal to the King than the King himself', is a syndrome which afflicts almost every profession and the Army is not the only one.

Perhaps the most telling comment of the day was made by Lt Gen SR Ghosh. Army Commanders come and go, but you from the media stay, he said. That is right General. We have seen many come and go. Some with grace and humility, some with pompousness and hauteur. Change is the only constant. And I am already looking forward to the tenure of the new Army Commander, Lt Gen Sanjeev Chhachra, from Rajput Regiment. It will be an interesting next two years or so, I am sure. And maybe we get another chance to be at the Command House when he retires !  

SHOW CAUSE NOTICE TO COL G SRIKUMAR OF MILITARY INTELLIGENCE

Here is the Show Cause notice given to Col G Srikumar, former Commanding Officer of 3 Corps Intelligence and Surveillance Unit and now posted in a Infantry Division, which lead to the eventual award of 'Severe Displeasure' to him by the Chief of Army Staff, General VK Singh.

The officer has approached the Armed Forces Tribunal bring these documents, thus, to the public arena. It is important to note that Para 3 of the Show Cause notice is missing which is a legal infirmity. Also, the mandatory 30 days reply period, which can be cut down to 15 days in exceptional cases, has been deliberately truncated to 10 days so that Gen VK Singh could award the censure before retirement.

Interestingly, the officer was on leave and has still been held responsible for an incident which took place in his absence! Should not the officiating CO be responsible for this? How have the BGS (Ops) and the Corps Cdr been held responsible for the lapse of a Havildar or at the most, the OiC of the raid? Is it a clear case of vindictiveness or that of instant justice? You decide.

THE SILENCE OF THE GENERALS

One is a little perturbed by the relative lack of comment by retired senior Army officers in the various publications on the Nyoma incident and the implications/fall-out it has had on the service in particular and the image of the officer cadre in particular.

Ordinarily, the Generals-turned-columnists are rapid to address any issue in the public domain which pertains to the defence forces/Army, but this time around, their silence is deafening. Is it a studied silence or is it a case of closing the ranks in view of incident which they find is too shameful to refer to? In any case, many would take refuge in the plea that "it was too early to comment", or the more common "let the inquiry finish, let the facts come out". In many other instances where they are quick to write a 2000 word article, such pleas are curiously missing, even when circumstances say they could have been circumspect.

This post on the blog is not about the incident. The details have been in the public domain for a long time now and the bare facts of the case are known to all. How it happened, why it happened and how a cover-up was launched to pass it off as as a"scuffle". Motives are being ascribed to anybody who questions the official line, but then many of us are quite used to it and it now is a great source of mirth to us.

But the silence of the intelligentsia is indeed perplexing. It goes on to show, and, to me at least, prove that the retired officers think-tank pick and choose which issue they want to raise and which they want to conveniently ignore. Issues or incidents where there is very less scope for a damage control exercise, they just side-step with an ease which would put a Gentleman cadet on drill square to shame.

It was left to just two retired officers, Lt Gen Raj Kadyan and Lt Gen RK Sawhney to take up the barrage of questions on television while the regular faces on TV remained a safe distance away. Both officers did a commendable job, needless to say, in putting forth the facts as per their perspective.

But for an average person, a layman, so to speak, the view of the 'other side of the hill' is missing in this incident which took place at Nyoma. It should be interesting to note how the military intelligentsia reacts to this and what faults it finds or what recommendations it has to make. But sadly, we are bereft of their take on the issue at hand.

Reams can be written about the age controversy of the outgoing COAS, words in their thousands can be typed out in belittlement of the media when it takes on the wrongs that afflict the military today, scorn can be heaped page after page on the politico-bureaucrat nexus which is damaging the military, but stone deaf silence prevails when it is time to do some introspection on how a section of our officer cadre in the Army is treating our jawans.

Silence is the only recourse when the situation demands that some urgent analysis and introspection be done on the shortcomings of the training system and mentoring of our officers which allow aberrations to take place in individuals who mistreat their subordinates and assault their own CO.

Make no doubt about it, this silences impinges upon the credibility of the military intelligentsia who address the issues pertaining to the military in print and electronic media. Keeping mum will not help, hunkering down will not make the problem go away. And as Vinod Mehta says in his autobiography, "Credibility is like virginity, it can only be lost once".   

AN ARMY OFFICERS VIEW OF NYOMA INCIDENT

I received the following letter on e-mail from Col SK Aggarwal, a former JAG officer and a friend since many years. I am re-producing it verbatim so that readers of this blog get an idea as to how service officers feel about this incident. (Pic courtesy Sulekha.com)

 "The clash which took place in 226 Field Regiment in Laddakh is a very serious matter which is being downplayed by Army as usual. Senior Army Officers in command will never learn a lesson from history. Thank GOD it was not an Infantry Battlion equipped with arms and ammunition. Otherwise many dead bodies would have been lying in the field to be air lifted.

The Commanding Officer Col Prasad Kadam and the Bty Cdr behaved immaturely considering themselves to be above law. If Sahayak had misbehaved with his wife, he should have placed the soldier under arrest, reported to CO and subjected to trial. He had no right to collectively beat him. It is nothing but collective insubordination and the unit should be disbanded .

All those involved in the offences should be attached to other units out of 3 Inf Div and subjected to trial by Court Martial. It is a classic case of command failure up the channel. Court of Inquiry is an eye wash and will suppress the truth and only some soldiers will be tried and awarded punishment and case closed. Thereafter Army Chief and Commanders will forget the case. They have forgotten how four officers including CO Col Sahota were killed in 8 JAT in 1986 and the case of Mutiny in GR Bn involving Maj Kukrety. 45 Armoured Regt clashes case involving a number of officers and others has still not been taken to logical conclusion even after more than one year. It still at the stage of recording of Summary of Evidence.

Such incidents are taking place because Officers are arrogant and COs are behaving like dictators. When matter is brought to the notice of Senior Commanders, they take no action. With rise in education standard of soldiers and changing socio-economic conditions. officers training system needs to be modified.

Colonial thinking has no place in today's Army. Unless the Army Officers change their mind set and misuse of manpower is stopped at all levels, such incidents will continue to happen. The morale of soldiers is lowest today and discontentment level is very high. The incident of 226 Field Regiment should be taken seriously and the unit should be disbanded without any exception. It is a wake call to Chief of the Army Staff and Ministry of Defence. Case should be thoroughly investigated and all guilty be accounted for. Those found guilty after trial should be subjected to exemplary punishment. Discipline cannot be compromised. With this incident image of Army has nose dived for which GOC 3 INF DIV onwards are collectively responsible and accountable."
 COL SK AGGARWAL, RETD
 E-9/504/GH 79
 SECTOR-20
 PANCHKULA
 HARYANA
MOB. 09815558983

DISBAND THE DIRECTORATE OF PUBLIC INFORMATION

The events of recent days have led me to the conclusion stated by the title of this post. The Directorate of Public Information, set up under the aegis of Army HQs in the days following the Kargil conflict, and a successor to the mysteriously named Army Liaison Cell or ALC, has shot itself in the foot...... and with a deftness that defies logic.

The Additional Director General of Public Information (ADGPI), an officer of the rank of Major General, Major General SL Narsimhan and an officer on his staff, Col Hitten Sawhney, Director Media, both, find themselves at the short end of a defamation case because of a ill-advised press release given out by the directorate blaming a retired Lt Gen of several things.

It may indeed be a case of poetic justice, this defamation case, as the directorate had just gotten into a groove of shooting out legal notices to all and sundry at the drop of a hat or writing to or meeting editors of publications/channels after certain news reports appeared not to their liking. It is another matter that seasoned defence journalists were not intimidated by such ham handed actions.

The aim of the directorate, when it was established, if I am correct, was to ensure that the Army got it's point of view across to the media and acted as single window access for all the needs of the media when it came to doing stories on the Army. It did that job admirably well till about recently when it became a handmaiden for the office of the Chief of Army Staff. The failure of this directorate lies in not realising that it represents the Army and not just the Chief of Army Staff.

As the defamation case mentioned above goes to show, the directorate over-stepped its limits. There are ways and means to achieving an end but that does not include giving out direct, unsubstantiated allegations in press releases. That is not only shocking but unprofessional.

The directorate has always been at loggerheads with the official PR set-up of the Ministry of Defence, and it may indeed be a source of amusement to them to see the ADGPI and the Director media facing a defamation suit.

The Army would be well advised to do away with this set-up, which falls under the purview of the Director General Military Intelligence, and devise another outfit which comprises of professionals who know how to deal with the media. It is high time that the Army realises that dealing with the media and media requirements of the Army is a specialised job and it is not necessary that the Military Intelligence is best suited for it. And whoever gets this task in future needs to remember that individuals are not important, the service is.