O.A. 681/2014. Case: A.K. Shukla Vs Union of India and Ors.. Armed Forces Tribunal
| Case Number | O.A. 681/2014 |
| Counsel | For Appellant: S.S. Pandey, Advocate and For Respondents: K.S. Bhati, Sr. CGSC and D.K. Bhati, Advocate |
| Judges | B.P. Katakey, J. (Officiating Chairperson) and Lt. Gen. S.K. Singh, Member |
| Issue | Armed Forces Tribunal Act 2007 - Section 14 |
| Judgement Date | December 23, 2016 |
| Court | Armed Forces Tribunal |
Order:
(Principal Bench, New Delhi)
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The applicant has filed this OA, under Section 14 of the Armed Forces Tribunal Act 2007, challenging his non empanelment to the rank of Major General (for short Maj Gen) in Command and Staff Stream in his first consideration by No. 1 Selection Board (for Short SB) held on 03-04.09.2012 and his subsequent empanelment in 'Staff Stream' only in SB No. 1 held on 13-14.04.2013, based on the impugned order of Severe Displeasure (Recordable) awarded to him on 08.10.2011. The applicant has prayed for following reliefs:-
(a) Call for the entire record pertaining to the consideration of the applicant for promotion to the rank of Maj Gen in Command and Staff Steam and quash such non empanelment of the applicant, if it is found that the denial of promotion to the applicant in his fresh consideration or subsequent considerations is due to lowering his merit as a consequence of less value judgment marks as a result of impugned Censure and thereafter quash all such orders of non empanelment including order dated 24.09.2014 as well as other order including quashing and set aside the Censure Order dated 08.10.2011 as well as impugned order dated 29.05.2013 passed by the respondent No. 1 in the statutory complaint.
(b) Direct the respondents to empanel the applicant to the rank of Maj Gen (C & S), as a fresh case of 1980 batch w.e.f. No. 1 SB dated 03-04.09.2012, and restore seniority along with his batch mates, after removing the Censure from the records and notwithstanding all earlier orders passed to the contrary.
(c) Pass other or further order(s) which this Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case in favour of the applicant and in the interest of justice.
(d) Considering the facts and circumstances of the case, the respondents be directed to keep one vacancy of Maj Gen (Command and Staff) reserved till final disposal of the present OA.
Brief facts of the Case
As brought out by the respondents, the applicant was commissioned in Infantry (Rajputana Rifles) on 13.12.1980. The applicant was promoted to the rank of Brigadier on 01.10.2008 and was posted as Commander, 30 Infantry Brigade at Udaipur from 01.10.2008 to 05.02.2010. In the location of 30 Infantry Brigade, 24 shops in Bajaria Shopping Complex are located within the Military Station. The applicant has been charged that on assuming the Command of 30 Infantry Brigade, in capacity of Station Commander, he cancelled the contract of all 24 independent shopkeepers which were granted and executed through Station Headquarters, Udaipur. Thereafter, the applicant allegedly entered into contract agreement in July 2009 with Shri Udai Chand Aggarwal, son of Shri Kalu Ram Agarwal, a Unit Canteen contractor of 15 RAJ RIF, a Unit earlier commanded by the applicant, whereby all the 24 shops in Bajaria Shopping Complex were allotted to the above named single vendor without following due procedure and by convening Board of Officers. The above issue was investigated by Staff Court of Inquiry, convened by GOC, 12 Corps vide order dated 26.11.2010. On the findings of the Court of Inquiry, the GOC, 12 Corps, directed initiation of suitable administrative action for lapses on part of the applicant. Accordingly a Show Cause Notice was issued to the applicant on 27.09.2011 to reply to the following lapses on his part:-
(a) Awarding the contract arbitrarily to a known person, Shri Udai Chand Aggarwal, the son of 15 RAJ RIF Unit Canteen contractor, the Unit the applicant had earlier commanded.
(b) Awarding the contract to Shri Udai Chand Aggarwal, without following due procedures or convening a Board of Officers (BOO) for the purpose.
(c) Awarding a contract for all 24 shops to a single contractor named above, a person known to him and allowing him to collect rent from the occupants of the said shops.
(d) Keeping the contract agreement silent on the rebate to be collected by Shri Udai Chand Aggarwal from each shopkeeper.
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Based on his reply to the Show Cause Notice dated 02.10.2011, the GOC 12 Corps awarded him Severe Displeasure (Recordable) vide order dated 08.10.2011 for the above lapses. The Severe Displeasure (Recordable) was operable for a period of three years i.e. Until 07.10.2014.
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Against the award of punishment of Severe Displeasure (Recordable), the applicant submitted Statutory Complaint dated 10.12.2011, and the same was rejected vide order dated 29.05.2013.
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No. 1 SB, for promotion to rank of Maj Gen in the General Cadre was conducted for the applicant as follows:
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Aggrieved by his non empanelment by No. 1 SB, the applicant submitted a Non Statutory Complaint dated 16.08.2013 which was rejected vide order dated 28.04.2014. The applicant filed a Statutory Complaint dated 10.06.2014 against award of Severe Displeasure (Recordable) which was rejected vide order dated 14.10.2015. Hence this OA.
Pleadings by the Applicant
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Learned counsel for the applicant contends that at the time of taking over of the command by the applicant, the responsibility to collect the rebate from the shopkeepers of Bajaria Shopping Complex was entrusted by the way of an oral agreement, appointing one Kanhaiya Lal Verma, one of the shopkeeper of the Bajaria Shopping Complex, as collection agent. At the time of taking over of the Command by the applicant, the said Station Maintenance Fund Account was operated by Col AS Rathore, who briefed the applicant that Kanhaiya Lal Verma was not regular in depositing the rebate in the Station Maintenance Fund Account.
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In order to institutionalize the system and the process of collection of rebate from the shopkeepers of Bajaria Shopping Complex, Col AS Rathore recommended Shri Uday Chand Aggarwal, who runs shop No. 1 & 2 by independent agreement dated...
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