BRIJ K N MISRA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS case presents a unique and peculiar problem, rare of its kind, seldom to be noticed in the annals of service jurisprudence. The issue involved in the case borders on the twin facets of constitutional law and morality, even though in the guise of hyper -technicalities of abstract administrative law, a view point has been presented by one party, to counter the allegations of the other. This case also appears to be a signal example of the working of a system where denial of the very basic principles of natural justice seems to have been taken so much for granted that, the party denying this natural right to the other, the one aggrieved qualum, even though the party denying the basic right happens to be the fatherly sovereign, and the party denied the right is one of millions of its employees, dependant upon its mercy, its benevolence. The stark realities of the case sharply awaken the analytical faculties, more actually, when one finds that the person denied the right was none other than a Brigadier in the Indian Army, admittedly senior serving solider. The gravity of the dealing and its sinful consequences become still more unpalatable when the Brigadier of the Army who has been denied the right is none other than a part, and an integral part for that, of the Armys legal and judicial system. This officer, the Brigadier himself is the senior most officer in the Indian Army dealing with its judicial system, incharge of its Judicially Redressal Grievances Mechanism appartus. He is an Advisor on law to the highest Commander of the force on the judicial and disciplinary matters. Indeed a paradox, an enigma. But the facts first, which themselves are no less interesting.

(2.) THE petitioner, a serving Brigadier in the Judge Advocate Generals Department (JAGS) Department for short) was commissioned in the Indian Army in the corps of Infantry in 1963. Because the petitioner was a practising Advocate in Allahabad High Court, before he joined the Army as an Infantry Officer, in 1975 he applied for transfer In the JAGS Department and on his absorption was transferred in the JAGS Department in the year 1978. The petitioner has been serving there ever since and by obtaining promotions in normal course rose to the rank of Brigadier and is presently holding the appointment of Deputy Judge Advocate General, headquarters Northern Command of the Army. The petitioner is the senior most serving officer in the JAGs Department at present. The JAGs Department at the National Level Is headed by the Judge Advocate General, an officer in the rank of Maj. General, a post which at present is lying unfilled, a place for which the petitioner undoubtedly is a strong and serious contender. During the time petitioner was posted as Joint Judge Advocate General, a rank equal to Deputy Judge Advocate General in the Army Headquarters in 1987 -89, he earned two Annual Confidential Reports ACRs for short) for two spells of periods, first Sept. 1987 to 31st Aug. 1988 (hereinafter to be referred as first ACR) and 1st Sept. 1988 to 31st Aug. 1989 (hereinafter to be referred as 2nd ACR). Whereas Maj Gen AB Gorthi was the Judge Advocate General at the Army HQ at the relevant time, he was the Initiating Officer in respect of the petitioners ACR. Lt, Gen. Y. S, Tomar was the Reviewing Officer for the period of 1st ACR and Senior Reviewing Officer for the period of 2nd ACR, Another officer Lt. Gen, C, A, Barrato was the Reviewing Officer in respect of the petitioners 2nd ACR and this officer was directly serving at the relevant time under Lt. Gen Y. S. Tomar. The petitioners grievance was that in respect of both the ACRs, the Reviewing Officer and the Senior Reviewing Officer, i. e. Lt, Gen. Y. S. Tomar and Lt, Gen, C, A, Barrato had given him below average lukewarm and unchairtable assessment and reports, which the petitioner thought were detrimental to his service interests and which the petitioner wanted to be expunged. Section 27 of the Army Act prescribed remedy to an aggrieved officer who considers himself wronged by superiors for complaining to the Central Government for redressal of grievances. Section 27 may be reproduced as under: -

(3.) SINCE the officer has been given a right to lodge a complaint against a wrong done to him by his superior officer and since the right to lodge this complaint finds its source in a statute, i.e. section 27 of the Army Act in common Military parlance. Such a complaint is called as "statutory complaint". The petitioner, therefore, preferred his statutory complaint on 26 -11 -1991 for expunction of the adverse entries (or if you may call below average or uncharitable) in his both the ACRs. Vide an order passed on 29 -6 -93 by the Central Govt., the petitioners complaint in so far as the first ACR was concerned was accepted and the Reviewing Officers complete assessment in this ACR was expunged on the ground of subjectivity. However, with respect to his 2nd ACR. The composite order dated 29th June 1993 is reproduced as under: -