How can an incident be attributed to Army officer on leave? Punjab and Haryana High Court sets aside adverse remarks

Remarks based on two incidents

• It is a conceded fact between the parties that in the court of enquiry initiated against the petitioner where, certain civilians death had been attributed to the petitioner, he has already been exonerated qua the said allegation but still the said allegation has been recorded in the ACR.
• The reasons for recording the adverse remarks is the allegation alleged against petitioner qua six innocent civilians’ death on two different occasions.
• It may be noticed that with regard to the incident which happened on February 22, 2006 wherein, death of four civilians occurred, in the court of enquiry, the said civilians’ death attributed to the petitioner have only been found to be incorrect.
• Once, the court of enquiry has exonerated the petitioner qua a particular allegation, the same cannot be allowed to be recorded in the ACR of the petitioner so as to cause him prejudice for grant of further promotion.
• With regard to the death of two civilians which occurred on August 12, 2006 which have also been attributed to the petitioner, it is a conceded fact that on the said date, the petitioner was not on duty being on leave and as such was not commanding the unit physically.
• It is a conceded fact that from July 17, 2006 till August 18, 2006, the petitioner was availing annual leave.
• The counsel for the respondents has not been able to show how the death of civilians which occurred on August 12, 2006 can be attributed to the petitioner so as to record adverse remarks against him especially when he was on leave.

Unsustainable

• The observation made by the reviewing officer regarding conduct of the petitioner in his ACR, which are based upon an incident/allegations which no longer exists or relate with the petitioner, can also not be allowed to record the adverse remarks given.
• Once the allegations go, any observation based upon such allegations cannot be allowed to be sustained so as to cause prejudice to the officer.
• The counsel for the respondents was asked to submit any action/conduct of the petitioner which may justify the adverse remarks recorded in his ACR having been brought on record before the Tribunal or before this Court.
• He has not been able to point out any such single relevant document which justifies such adverse remarks recorded against the petitioner during the period in question in his ACR.
• In the absence of any such documentary evidence brought on record, coupled with the fact that the ACR was recorded keeping in mind particular allegation, which has lost its significance due to the subsequent enquiry where the petitioner was exonerated of such allegations, it cannot be said that there was anything against the petitioner during the period in question so as to invite such remarks.
• Keeping in view the totality of the circumstances, the adverse remarks recorded in are accordingly set aside.
• As the petitioner has already retired but due to such adverse report, he was not considered for further promotion hence, keeping in view the fact that the adverse remarks have been set aside, direction is given to the respondents to consider the claim of the petitioner for further promotion in accordance with law.