AFT decision overturned by Supreme Court of India

The Supreme Court of India on Wednesday overturned a decision of the Armed Forces Tribunal. At issue in Union of India v. Yadav, Civ. App. No. 7603 of 2019 (India Sept. 25, 2019), was whether the AFT erred in reducing the gravity of a censure issued to an Army lieutenant colonel as a result of contact with a foreign national. The officer had been punished by proceedings before a Staff Court of Inquiry, rather than a court-martial, and awarded a "Severe Displeasure (Recordable)." He contended, among other things, that the punishment was excessive and not commensurate with the facts. The AFT set aside the action and remanded for reconsideration of the sanction -- provided that "Severe Displeasure (Recordable)" was off the table. That would have permitted two sanctions: Severe Displeasure (Non-Recordable) or simple Displeasure. The government appealed.

From the Supreme Court's judgment:

22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.

23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.

The court examined and rejected the reasons the AFT gave for overturning the disciplinary authority's action. "[J]ust because the competent authority chose to dispense with the disciplinary action of [a] Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal." ¶ 26, at p. 25.`

The case took a long time:

Misconduct, 2009-11
Staff Court of Inquiry, 2013
Competent Authority decision on Staff Court of Inquiry, May 10, 2013
Reprimand, Oct. 5, 2013
Competent Authority decision on officer's statutory complaint, Feb. 26, 2014
Application to AFT, 2014
AFT decsion, July 12, 2016
Civil Appeal filed, 2017
Supreme Court decision, Sept. 25, 2019