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)

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.

HOW MS BRANCH PLAYS WITH CAREERS OF OFFICERS

It has been known for a while now that all is not well in the Military Secretary's (MS) branch. It has been suspected for some time now that wrapped in secrecy, despite tall claims of transparency, the MS branch utilises the opaqueness to play with careers of officers. Why and at whose bidding, it is not known. But it may vary from case to case. And now it stands utterly and totally exposed. By none other than the Principal Bench of the Armed Forces Tribunal.

The bench of Justice AK Mathur, Chairperson of the Tribunal and the administrative member, Lt Gen SS Dhillon, have blown the lid off one of the worst kept secrets in the Indian Army. That all is not well in the MS Branch and a comprehensive review of how it functions is the need of the hour.

The scathing indictment of the most important branch of the Indian Army, as far as the officer cadre's career is concerned, came as a result of a petition filed by a Brigadier of the Corps of Engineers. Brig VG Gole, of June 1979 seniority, was shocked when he found out that he had not been empanelled for promotion in the selection board held for the rank of Major General in late 2010. As an officer who had been getting consistently good ACRs, he could not fathom why he was not selected.
And then he found out the reason. To his shock he came to know that the IO portion of his most recent ACR has been effaced, or removed from records in the selection process, as a result of which he fell back in the comparative merit. Why? Because of the following explanation given by the respondents when he filed a case in the AFT:

"A reply has been filed by the respondents contesting the position and took resort to a policy decision at Para 137 of Army Order 45/2001/MS which gives them power to efface the assessment if it is found that the ACR of the incumbent is grossly inconsistent or with inflationary/deflationary/ subjective reporting. This effacing could be done after due approval of the Chief of Army Staff. In this case, the ACR was found grossly inconsistent, therefore, IO’s
assessment was expunged after approval of the Chief of Army Staff".


When the bench called for the records to see if this was true, they found out that this was not so. The decision to efface had been made arbitrarily. The bench found out that:


"We called upon the respondents to produce the original record before us and after perusing the record, we are constrained to observe that the powers exercised by the respondents is arbitrary. We have seen the ACR record of the petitioner from 2006 to 2010 and we find that during this period
he has earned seven ACRs and has not secured less than 8 marks in any of the qualities mentioned in the ACR. We also found that the IO’s assessment in the ACR from January, 2009 to June, 2009 has been totally effaced. We do not know how much marks were given by the IO but at least we have seen the RO’s assessment in which petitioner was given 8 marks in 5 qualities while in the remaining 12 qualities he has obtained 9 marks. Subsequently, even in the ACR from July, 2009 to November, 2009 he has received almost 8 or 9 marks. From February, 2010 to June, 2010, we find that petitioner has again secured 8 & 9 marks in all the qualities. The explanation given by the respondents is hardly satisfactory. Learned counsel for the respondents has produced before us a minute sheet to justify their stand, but we regret to say that it is a totally arbitrary and if we may say malafide in law also".


The bench found that there was room for investigating into how and why the officer's career had been adversely affected. They asked for the officer responsible to be pinpointed and ordered that the Brigadier be considered afresh for promotion notwithstanding his impending retirement and also imposed a cost of Rs 10,000 on the respondents.

"It speaks volumes that such kind of illegality can be committed against an officer. This is a serious matter and we are constrained to observe that it requires deeper consideration by the higher authority and they should pinpoint the officer responsible who has played foul thereby affecting the career of the officer. We allow this petition and expunge the effacing of the ACR of the petitioner for the period from January, 2009 to June, 2009 given by the IO. The marks should be restored back and petitioner should be reconsidered for promotion to the post of Maj Gen in accordance with rules. The impending retirement will not come in the way of consideration of the petitioner for promotion to the post of Maj Gen. The petition is allowed with cost of Rs 10,000".

If this is how the MS branch functions and if this is how the Chief of Army Staff goes about rubber stamping the illogical and illegal decisions of MS branch put up to him, then it paints a sad picture indeed of the Army hierarchy. How many such cases may have gone unnoticed in the past? What about the time when the AFT was not there? Such cases would drag on and on and the officer's career be marred for ever by the time he got relief, if any. Criminal, to say the least.

The officer holding the Military secretary's appointment at the time when this particular case took place is answerable to the entire officer cadre of the Army. He should be held responsible and action taken against him for such illegal action. And Chiefs of Army Staff must sign on the dotted line with their eyes open. Regimental loyalties must not come in the way of being fair to those who serve under the COAS. To say the last.