Telangana HC Sets Aside 'Severe Reprimand' Punishment Imposed On Army Officer Who Used Prohibited Social Media Apps
The Telangana High Court set aside a punishment of 'severe reprimand' imposed on an Army Officer who used 'prohibited' social media applications on his mobile phone.
The court observed that an Army Employee charged with disciplinary misconduct must be informed of the punishment and consequential orders so that they can pursue their legal remedies.
The Petitioner was lined up for promotion when a complaint was filed in his name against his Commanding Officer. The Commanding officer after the interview seized his phone and discovered some social media apps which were unauthorised for use. The Court emphasized that the Petitioner was entitled to a fair and just hearing, which was not afforded to him.
The Bench of Justice P. Madhavi Devi observed, “Therefore, though it appears that the petitioner was aware of the proceedings against him and also that the procedure prescribed under the Summary proceedings has been followed by the respondents till 25.05.2023, the final order of punishment does not seem to have been passed in his presence nor was it communicated to the petitioner”.
Advocate Ch. Mallikarjuna Rao appeared for the Petitioner and Deputy Solicitor General Gadi Praveen Kumar appeared for the Union.
The Petitioner, a Junior Commissioner Officer (JCO) in the Indian Army, was cleared for promotion to Subedar Major. However, a complaint was registered from an anonymous source against the commanding officer in the name of the Petitioner. The Petitioner denied filing the complaint. However, after his interview, he was stopped and his phone was seized. A Court of Inquiry found that he had Zoom and ShareChat apps on his phone, which are not authorized by the Army. The Commanding Officer asked him to resign to avoid court-martial, but he refused. Aggrieved, the Petitioner approached the High Court seeking to set aside the summary disposal proceedings and the punishment of severe reprimand. Additionally, the Petitioner sought to quash the order canceling his promotion.
The Court considered the issue of maintainability of the writ petition. The Court observed that the JCO had an alternative remedy available in the form of the Armed Forces Tribunal. However, the JCO had approached the Court because he believed that the Summary Proceedings were not conducted properly. The Court noted that the JCO has a prima facie case, therefore, the writ petition is maintainable.
“As regards the alternative remedy being available to the petitioner, this Court finds that the petitioner has approached this Court because according to him, the Summary proceedings have not been conducted properly or as per the provisions of the Army Rules and therefore, there is a violation of the statutory provisions and also the principles of natural justice and therefore, this Court is satisfied that in spite of there being an alternative remedy under Rule 26, this Court can entertain the writ petition at this stage”, the Bench noted.
The Court observed that the Petitioner was charged with disciplinary misconduct, but was not given a fair trial. The punishment order was not communicated to him, and his promotion was canceled without notice. The Court observed that this was a clear violation of the Petitioner's rights. The Petitioner ought to have been given a fair hearing, and his promotion should be reinstated. The Court noted that if the higher authorities found the Petitioner guilty then they should have at least given him a fair chance to defend himself. The Petitioner should not be punished without due process of law.
“An order would be deemed to have been passed not only on the Commanding Officer putting his signature to the same, but also only when it is communicated to the concerned employee to enable him to pursue his legal remedies. There is no evidence, what-so-ever produced before this Court to demonstrate that the punishment order has been communicated to the petitioner. In view of the same, this Court is of the opinion that the petitioner's contention that he has not received the punishment order has to be accepted. The cancellation of the promotion order consequent to the punishment order is also not in accordance with law. Before cancellation of an order of promotion, a notice ought to have been given to the petitioner”, the Bench noted.
Accordingly, the Court allowed the Petition and set aside the punishment awarded along with the order canceling his promotion.
Cause Title: Subedar Radha Krishna Tiwary v Union Of India
