Nb. Sub. M.C. Uttam v. Union Of India & Ors.

1. Arguments heard.

2. Petitioner was enrolled in the regular Army on 24.09.1980 and thereafter, he was promoted upto the rank of Havildar on his own turn. Petitioner had health problem for which he was treated but could not be cured, he was placed in a Low Medical Category. Petitioner on account his health condition did not accept extension of service, therefore, directed to proceed on retirement w.e.f. 30.04.1999 and a release order from Record Office Air Defence Artillery was issued on 16.11.1998. The petitioner reported to Depot Battalian of his training centre as per the direction of record office. The petitioner was to proceed on retirement w.e.f. 30.04.1999 and his discharge drill was complete and was issued with a discharge certificate. It is alleged that a case for embezzlement of funds pertaining to pay and allowances of the JCO's and other ranks was reported in the last unit of the petitioner therefore, the respondent authorities cancelled the discharge certificate of the petitioner and directed him to rejoin his unit. At the time of investigation by the Court of Inquiry, the petitioner was not permitted to visit main office and was purposely detailed on some or the other temporary duty w.e.f. 01.05.1999 to 06.08.2002. The Court of Inquiry found no evidence of involvement of petitioner. The Commanding Officer was found blameworthy. Col. C.M. Unnithan, the Commanding Officer was indicted by the Court of Inquiry. The General Officer Commanding 11 Corps directed that administrative action to be taken against Col. C.M. Unnithan, the Commanding Officer of 131 A.D. Regiment. The CR of petitioner for the year 1998-1999 was initiated by Maj. Anil Thakur and reviewed by Col. C.M. Unnithan. It is alleged that petitioner was never given any warning with respect to poor performance. The CR for the year 1999-2000 was initiated by Maj. P Sarad and reviewed by Col. C.M. Unnithan. It is alleged that during course of investigation of Court of Inquiry, where Col. C.M. Unnithan was found involved in disciplinary action. The ACR for in the year 1998-1999 and 1999-2000 of the petitioner was reviewed by Col. C.M. Unnithan and he endorsed adverse mark in the ACR of the petitioner. It is alleged that since Col. C.M. Unnithan, the Reviewing Officer himself was involved in a disciplinary case, he should not review his ACR and if he has reviewed his ACR, he should have been given opportunity to improve. Therefore, it is prayed that both ACRs. of petitioner for in the year 1998-1999 and 1999-2000 may be expunged and he may be reconsidered for promotion and other service benefits.

3. Reply has been filed by the respondent. Respondent has pointed out in para 5 that Staff Court of Inquiry was ordered to investigate the circumstances under which the fraud was committed in the Imprest Account of Air Defence Regiment and recommended directions to Commander of 715 (Independent) Air Defence Brigade on staff court of inquiry. In that it recommended disciplinary action should also be taken against certain Junior Commissioned Officer/Other Rank for not performing their duties effectively and the name of petitioner found at item no. 8 Hav (Clk) MC Uttam. Col. C.M. Unnithan being commanding officer of that unit at the time of occurrence of the fraudulent payment was also blamed by the General Officer in Chief of 11 Corps that administrative action be initiated against him but it was found that Col. C.M. Unnithan was never involved in any disciplinary case nor action was taken against him. It is pointed that one of the ACR of the petitioner had been initiated by Maj. Anil Thakur and another by Maj. P. Sarda.

4. Having seen the record, it appears that infact Col. C.M. Unnithan was not reporting officer of the petitioner. Petitioner's reporting officers were Maj. Anil Thakur and Maj. P. Sarda and Col. C.M. Unnithan was a person who as reviewing officer only endorsed the remark. Construction of whole petition is misconceived and misdirected. Petitioner has made out a case that since some embezzlement with regard to imprest money was involved and Col. C.M. Unnithan being officer is also facing the charge therefore, he might have given both these ACRs. But it is factually incorrect. Both these adverse remarks were not initiated by Col. C.M. Unnithan. He was only an officer who has reviewed the ACR. The ACRs. were initiated by Maj. Anil Thakur and by Maj. P Sarda. In our opinion, the petitioner is making allegations against Col. C.M. Unnithan are baseless and both ACR's do not deserve to be expunged. Ld. Counsel for petitioner submits that no action had been initiated against petitioner. Nothing turns on this point. Hence, we don't find any merit in this petitioner and same is dismissed. No order as to costs.