Col NS Grewal had been posted as the Commanding Officer of an infantry battalion in October 2008 and in November 2017 his services were terminated

Terming the disciplinary proceedings as “colourable” and “malafide”, the Armed Forces Tribunal (AFT) has set aside the dismissal of a Colonel who had faced 18 charges of inappropriate behaviour and professional misconduct while he was commanding an infantry battalion about 15 years ago.

Observing that by now he would have crossed the age of superannuation in the rank of Colonel and therefore cannot be reinstated, the Tribunal’s Bench comprising Justice Sudhir Mittal and Lt Gen Ranbir Singh, in their order of July 8, directed that the officer would be deemed to have been removed from service by the Chief of the Army Staff and he would be entitled to grant of pension and other pensionary benefits for the period of service rendered by him.

Col NS Grewal had been posted as the Commanding Officer of an Infantry battalion in October 2008 and in November 2017 his services were terminated by way of dismissal without pension and gratuity under provisions of Section 19 of the Army Act read with Rule 14 of the Army Rules.

In September 2010, based on complaints, including alleged misbehaviour with ladies, a court of inquiry (COI) was ordered, which was completed in March 2011. Based on its findings, recording of Summary of Evidence (SOE), a prelude to a possible trial by general court martial (GCM) was ordered which concluded in October 2011.

The battalion was selected for deployment in a UN peacekeeping mission and the officer submitted that witnesses who had deposed against him in the SOE not be sent abroad as it would delay the disciplinary proceedings. He also requested for early finalisation of the case. Thereafter, in December 2011, the Western Command intimated that the GCM was likely to commence in January 2012.

Finally, the GCM assembled in January 2014 and the officer raised a plea in bar, claiming that the GCM was barred by limitation. The plea was accepted and was confirmed in July 2014. A year and two months later a notice was issued to the officer to show cause why his services not be administratively terminated.

Senior Advocate Rajeev Anand contended on behalf of the petitioner that that administrative action can be taken if a GCM becomes time barred, but if the delay is found to be attributable to the authorities, the exercise of administrative power to punish an individual may be declared to be without jurisdiction being colorable exercise of power.

The Bench observed that recording of SOE was concluded on 18.05.2011. On 28.07.2011, a representation was made for early conclusion of proceedings or to at least not to send the essential witnesses abroad. In fact, all essential witnesses were in India and the move of the unit to Congo need not have resulted in delay in convening the GCM. Even then the GCM was not convened. The unit returned from Congo in October 2012. Yet, convening of the GCM was delayed till 18.01.2014.

“It is thus evident that there is no material available on record to justify the delay. Inference of malafide intentions can thus be safely drawn. Clearly, the SOE revealed that the court martial proceedings would not have resulted in an adverse action against the appellant. We are thus, left with no option but to conclude that the delay was malafide and colorable exercise of administrative power. In view of above, order of dismissal dated 27.11.2017 is not sustainable. It is accordingly quashed,” the Bench ruled.