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IN THE ARMED FORCES TRIBUNAL REGIONAL BENCH, GUWAHATI.
T.A. 14 OF 2011 (Arising out of WP(C) No.4561/2009)
P R E S E N T
HON’BLE MR. JUSTICE H.N.SARMA, Member (J) HON’BLE CMDE MOHAN PHADKE (Retd), Member (A)
Ex IC 25419 W Lt Col Vikas Vinayak Chandorkar Aged about 52 years, resident of 242/21 Yamuna Nagar, Negdi,Pune-411 044, Maharashtra.
….. Petitioner.
Legal practitioner for appellant/ Petitioner
Dr.G.Lal
- Versus -
1.Union of India, through the Secretary Govt. of India, Ministry of Defence, New Delhi-110 011.
2.The General Officer Commanding-in- Chief, Eastern Command, Fort Williams Calcutta, West Bengal.
3. Major General Uniyal Hari, the Then General Officer Commanding 101 Area Shillong, Meghalaya.
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4. Brigadier AK Vasudev, the then Commander Headquarters 51 Sub Area “A” C/O. 99 APO.
5. Brigadier SK Choudhury, the then Commandant, I Advance Base Workshop EME C/O. 99 APO.
6. Colonel DK Kapoor, the then Commandant 313 Coy ASC(Supply) Type “F” C/O.99 APO.
7. Colonel Ashwini Kumar, the then Commandant 222 Advance Base Ordnance Depot (ABOD) C/O. 99 APO and
8. General Deepak Kapoor, the Chief of the Army Staff.
….. Respondents.
Legal practitioner for Respondents. Mr.S.BhattacharjeeCGSC
Date of Hearing : 07.03.2012
Date of Judgment : 03.04.2012 & Order:
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JUDGMENT & ORDER
(Cmde Mohan Phadke (Retd.)
This case (registered as TA 14 of 2011) has come before us by way of transfer under section 34 of the Armed
Forces Tribunal Act, 2007 from the Principal seat of
Gauhati High Court, wherein it was registered as WP(C)
No.4561/2009.
2. The petitioner, Ex IC 25419 W Lt Col Vikas
Vinayak Chandorkar was tried by General Court Martial on three charges as mentioned in the Charge Sheet dated
09.01.1992 ( Annexue-28 of the petition). The charges were framed under section 52(a) of the Army Act, 1950 for committing theft of property belonging to the Govt. viz. 44
Aero Engines valued at Rs.2,75,000.00; under section
57(a) of the Army Act for having signed false statement stating that the allegations made in the complaint No.F/Int-
93/432 dated 03.06.1993 of Shri Purna Narayan Singh,
Ex. Member of Parliament were unfounded and baseless and under section 63 of the Army Act, an Act prejudicial to good order and military discipline inasmuch as he was unable to ensure proper accounting of the Aero Engines received at 2 Salvage Sub Depot in accordance with DGDS
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Technical Instruction No. 010, Revised 1980 Issue 2 Para
144 read with Appendix ‘B’, Part.
3. The Court had initially found the accused not
“guilty” of fourth charge but “guilty” of first and second charges” and sentenced as follows- to forfeit nine years post service for the purpose of pension,
(a) to be severely reprimanded , and
(b) to be put under stoppage of pay and
allowances until he has made good the sum of
Rs.1.75 lakhs ( Rupees one lakh and seventy
five thousand only) in respect of value of 11
aero engines. (Annexure-30).
The Court was, however, reassembled vide
Revision Order dated 14.07.1997. The relevant portions of
the Revision Order (Annexure-32) are extracted below:
“REVISION ORDER
ORDERS BY IC139711 MAJOR GENERAL UNIYAL HARI,GENERAL OFFICER COMMANDING 101 AREA.
1. The General Court Martial which assembled at field on
Twenty Seventh Day of January 1997 and subsequent
days for the trial of accused No. 1 IC25419W Lieutenant
Colonel Chandorkar Vikas Vinayak and accused No. 2 JC-
213238H Naib Subedar (SKT) Hira Lal Jat, both of 222
Advance Base Ordnance Depot, attached to 1 Advance
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Base Workshop EME on the eleventh day of August
1997 at 1000 hrs, for the purpose of reconsideration of
their findings on first, fourth and fifth charges and
reconsideration of the sentence awarded to accused No.
1.
2. In thus ordering the court to reassemble for the
purpose of reconsidering their findings of first, fourth
and fifth charges and the sentence awarded to accused
No. 1, I make it absolutely clear that I do not, in any way,
intend to interfere with the judicial discretion vested in
the court and its powers to accept or reject any part of
the evidence in arriving at just and reasonable findings
on the charges and to make a fair and just award.
However, I, as confirming authority, feel that while
appreciating available evidence on record, the court
may not have accorded due weightage and
consideration to certain important aspects thereof and
may have been unduly swayed by legally untenable
pleadings of the defence. I am of the view that the
finding of guilty on the first charge against both accused
persons implies that the value of 11 aero engines has
also been duly proved, which is not properly supported
by the evidence on record. Moreover, the findings of
‘Not Guilty’ on fourth and fifth charges, against accused
No. 1 and accused No. 2, respectively, are against the
weight of overwhelming evidence on record and as
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such, I am of the opinion that the sentences awarded by
the court in respect of accused No. 1 appears to be
inadequate and disproportionate, for the reasons
summarized in the succeeding paragraphs.
3. First charge: The particulars of the first charge include
the value of 11 aero engines amounting to Rs.
2,75,000/- (Rupees two lakhs and seventy five
thousands only). The court found both the accused
persons guilty of the charge without any exception or
variation, which means that the value of aero engines
averred in the particulars of the charge has been duly
proved. However, I find no witness has been examined
at the trial to authentically prove the value of the aero
engines in question. The witnesses who deposed about
the cost of aero engines have only brought out their
view on approximate cost, which greatly varies from
witness to witness. Colonel Aswini Kumar (PW-11) has
brought out that even if salvaged value of aluminum
alloy, copper, tungsten and magnesium (metals which
mainly from the aero engines) is taken as Rs. 100/- per
kg, the value of 11 aero engines should work out to Rs.
8,80,000/- (Rupees eight lakhs eighty thousand only).
However, as per Colonel VA Sastry (PW 12) the value of
mixed metal scrap during auction comes to Rs. 5/- per
kg and therefore, the value of said aero engines would
work out to be Rs. 44,000/- (Rupees forty four thousand
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only). Taking the value of aero engines auctioned earlier
as guide, PW 12 has further brought out that cost of
each aero engine would be Rs. 10,000/-(Rupees ten
thousand only). On the other hand, the accused No. 1
has contended that the value of each aero engine was
not more that Rs. 5,000/- (Rupees five thousand only) to
Rs. 6,000/- (Rupees six thousand only). He also brought
out that the local (not legible) Ordnance Depot has
assessed the value of each aero engine as Rs. 20,000/-
(Rupees twenty thousand only). Even the aforesaid
assessment by the LAO was claimed by accused No. 1 to
be inflated. The evidence on record as above shows that
value of aero engines as averred in particulars of the
first charge has not been proved and therefore, the
finding of guilty thereon is invalid.
4. In view of the foregoing, the court should examine the
concerned Local Audit Officer or any other competent
witness (es) to establish the exact value of 11 aero
engines.
9. After the revision order is read in the open Court, the
Court should proceed to record Additional evidence as
advised in paragraph 4 above. After additional evidence
is taken, the accused person should be given an
opportunity to make additional statement and to put
forward evidence in their defence, if they so desire. The
prosecutor/prosecution counsel and the defending
Page 8 of 38 officers/defence counsels for both the accused persons may be given further opportunity to address the Court, if they so desire. The Judge Advocate at the trial should then given his further summing up on the additional evidence. The Court should then reconsider its findings and sentence on the first, fourth and fifth charges in closed court, in the light of the additional evidence and the aforesaid observations as also the entire evidence on record.
10. If the Court find the value of 11 aero engines as mentioned in the particulars of the first charge to be proved, the Court may record the fresh findings accordingly on the first charge or if the court finds that the value of 11 aero engines proved in evidence differs from the value averred in the particulars of first charge, it may record the finding with statement of exceptions or variations.
11. The Court should then record revised findings and in case the revised findings entail revision of sentence, the
Court should do so and pass sentence commensurate with nature and gravity of offences. The Court should also reconsider the sentence awarded to accused No.1 in the light of my observations given at Para B above. The
Court must ensure that the sentence commensurate with nature and gravity of offences.
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12. The findings on revision on first and fourth charges
and any consequential or otherwise revision of sentence
in respect of accused No.1 and in the case of accused
No.2, the findings on the first and fifth charges on
revision and any consequential revision of sentence
based thereon shall be announced in the open court as
being subject to confirmation.
13. The attention of the Court is drawn to section 160
of the Army Act, Army Rule 60 and the form of
proceedings as given on Page 421-422 of MML 1983,
which should be suitably amended to confirm to the
provisions of Army Rule 62,64 and 67.
14. After revision, the proceedings of which four copies
are required should be forwarded to HQ 101 Area
through Deputy Judge Advocate General, HQ Eastern
Command.
Signed at Shillong this fourteenth day of July, 1997.”
4. On reassembly, the Court found as follows:-
“The Court having attentively considered the
observations of the confirming authority and the whole
of the proceedings do now respectfully adhere to their
finding with respect to the first charge and revoke their
finding w.r.t.fourth charge, in respect of accused No.1 IC -
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25419W Lt Col VV Chandorkar of 222 ABOD att to 1 Adv
Base wksp EME and find accused No.1 guilty of the fourth charge.
Brief Reasons in support of Findings w.r.t. first and fourth charges in respect of accused No.1 First Charge
(Additional reasons)
The Court did not find the accused No.1 Guilty of the first charge with statement of exception and variations as regards value of 11 aero engines, and adhered to their earlier finding, because, apart from the brief reasons of the Court mentioned at pages 327 and 328 of GCM proceedings, the Court is now convinced from the additional evidence of Shri SB Ghosh (CW-2), Asstt.
Accounts Officer that value of 11 aero engines was correctly authenticated by LAO, 222 ABOD, Mr. BU
Maheshwara Rao, before authenticating the value had visited 2 salvage sub Depot Missamari and seen aero engines of similar description lying on ground.
The Court is not convinced of the contention that LAO had inflated the value of 11 aero engines due to some vested interests.
Fourth charge
The Court found accused No.1 ‘Guilty’ of the fourth charge because of the following reasons :-
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(a) Between 01 May 93 and 23 Sep 93, accused
No.1 was in the ‘knowledge’ of the receipt of aero
engines at 2 Salvage Sub Depot Missamari.
(b) As per DGOS tech instr 010, Para 144, read with
Appx ‘B’ Part I thereof, Aero engines were required to be
accounted for, on separate account cards, both in
numbers and weight whereas these were taken on
charge as mixed metal scrap in violation of the said DGOS
tech instr O10.
(c) The accused being Dy.Comdt. was responsible for
proper accounting of stores. He had, however, failed in
his duty to ensure correct accounting of stores.
ACCOUNCEMNT OF FINDIGNS
Court re-opened
The Court being re-opened, the accused is again
brought before it. The findings and reasons thereof are
read in the open Court. The findings are announced as
being subject to confirmation.
Signed at Narangi on this 14th day of Aug 1977.”
5. The Court then revoked its earlier sentence dated
18.03.1997 (Annexure-31) whereby the accused was sentenced as follows:
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(c) to forfeit nine years post service for the
purpose of pension,
(d) to be severely reprimanded , and
(e) to be put under stoppage of pay and
allowances until he has made good the sum of
Rs.1.75 lakhs ( Rupees one lakh and seventy
five thousand only) in respect of value of 11
aero engines.
6. And the Court on reconsideration sentenced the accused No.1,IC-25419W Lieutenant Colonel
Chandorkar Vikas Vinayak of 222 Advance Base Ordnance
Depot attached to 1 Advance Base Workshop EME, to be dismissed from the service.
7. Aggrieved by the charge sheet dated
07.11.1994(Annexure-23), the petitioner had filed Civil Rule
No.3895/1995 in the Gauhati High Court with a prayer that an opportunity may be provided to the writ petitioner to prefer an appeal before the authority as per provisions of
Section 164 of the Army Act,1950. This petition was dismissed on withdrawal by the Hon’ble High Court on
15.6.2007 with liberty to the petitioner to prefer an appeal before the appropriate authority within a period of one month from today and as and when such appeal is filed, the appropriate authority shall consider the prayer for condonation of delay by taking into consideration the period
Page 13 of 38 spent before this Court inadvertently and also the claim of the petitioner that he was suffering from nervous disorder.
8. Earlier, the petitioner had filed WP(C) No.3895/1995 before the Gauhati High Court challenging the Charge Sheet dated 07.11.94 (Annexure-23) and instructions given by the
Respondents Nos. 3 and 4 ‘of getting the summary of evidence recorded and getting the same recorded by cancelling the earlier summary of evidence recorded on
4.7.1995 and 13.8.1995 and also prayed for issuance of appropriate or direction’. This petition was dismissed by the
Hon’ble High Court with the remark ‘….. In that view of the matter I find no merit in the petition. Accordingly, the petition is dismissed…..’.
9. Whilst dismissing the petition the Hon’ble High Court had observed in Para 8 of the Judgment and order :
“8. In the present case, one Commanding Officer after
recording the evidence found that there was no material for
sending the case for trial. But that does not mean that the next
officer will have no power to take up evidence afresh and
consider the same. Besides, in the present case the earlier
Commanding officer was junior to the petitioner and therefore,
it was not proper on his part to initiate a proceeding or drop it.
Considering all this if the next Commanding Officer decides to
record evidence afresh, I find that no illegality had been
committed. Under the Rules, in my opinion, recording of
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evidence afresh will not amount to double jeopardy. In the
present case, the trial has not yet commenced. In view of the
above, I find no merit in the petition. Accordingly, the petition
is dismissed. However, recording of evidence and initiation of
proceeding thereafter are to be done within a time bound
period as per Rules. Because of the stay order granted by this
Court the authorities could not take up the matter. Therefore,
the authorities are directed to take up the matter and complete
the same within a period of two months from the date of
receipt of this judgment.”
It is seen from the above that the Hon’ble High
Court has already decided the plea of ‘double jeopardy’ as raised in the petitioner’s representation as well as in the present writ petition being WP(C) No.4561/2009.
10. It is relevant to note at this juncture that the petitioner had filed a petition dated 04.07.2007 against the findings and sentence of the General Court Martial before the Chief of the Army Staff. This petition was examined and disposed of vide a detailed order (Annexure-40) which runs into four pages. By this order, the Chief of the Army Staff rejected the petition with the observations, “ 6. The contentions of the petitioner are bereft of any merit. The findings of the Court are based on cogent and reliable evidence. The sentence awarded is just and commensurate with the gravity of the offence committed by the petitioner. 7. I, therefore, reject the petition dated
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04 July 2007 submitted by ex IC 25419W Lt Col Vikas Vinayak
Chandorkar being devoid of merit and substance.”
11. Earlier, consequent upon his dismissal on the basis of the findings and sentence of the General Court
Martial, the Govt. of India (Ministry of Defence) had issued the petitioner a show cause notice (Annexure-36) in terms of Regulation 16(a) of Pension Regulations for the Army
(Part-1), 1961. By this notice, the petitioner was intimated as follows, “ to urge reasons, if any, against the proposed forfeiture of your pensionary benefits. If no reply is received from you within 30 days from the date of receipt of this Show Cause
Notice, it would be assumed that you have no cause to show and action as deemed fit shall be taken in your case without affording any further opportunity to you in this regard.” The petitioner submitted his explanation dated 26.05.1999 (Annexure-37) to the Government stating, inter alia, the following:
“Humanitarian Grounds”
12. Sir, besides my innocence and clean record of
service, my present plight also calls for your sympathy
and mercy. I have a 20 year old unmarried daughter and
a 17 year old son who are yet to complete their
education. Me and my wife and children are living in
abject poverty due to my dismissal from service. Since
Nov 1997 I have been running from pillar to post in
search of a job. But due to the stigma of dismissal from
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service I have remained jobless till today. Since 1979 I
have been suffering from hypertension and ischemic
heart disease due to which I was placed in an additional
low medical category in 1981. As it is I was permanently
disabled in 1971 war as stated earlier. My heart disease
and joblessness due to which I am unable to feed and
support my wife and children. Not only the pension and
gratuity even my leave encashment amount to Rs.1.25
Lakhs has been denied to me. Had this unfortunate
episode not taken place, I would have received the
pension of a full Colonel with war injury benefits. In
spite of all the trauma and agony I still have faith in your
sense of justice. Grant of pensionary benefits would go a
long way in ameliorating the miseries of my family, for
which we shall forever remain grateful to you. “
12. This petition was disposed of vide Govt. of India
(Ministry of Defence) letter No. B 19020/393/AG/PS-
4(c)/675/A/D/Pen/Sers) dated 13.09.1999 (Annexure-38) which is extracted below:
“To The Chief of the Army Staff. Subject : Grant/Forfeiture of Pensionary benefits- IC- 25419 W Ex.Lt Lt Col VV Chandorkar. Sir,
I am directed to refer to letter No.GI/M/59019 dated 9th
February, 1999 from the Office of the CCDA(P),Allahabad
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addressed to Army Hqrs,AG’s Branch and to state that
after considering the explanation dated 26th May, 1999 in
response to this Ministry’s Memorandum
No.B/39020/393/ AG/PS-4(c))272/A/D(Pen/Sers) dated
22nd April,1999 and having regard to the circumstances of
the case leading to the dismissal of the officer from
service, the President is pleased to decide to forfeit entire
pensioinary benefits to ex-Lt Col V V Chandorkar to which
he would have been entitled to had he retired in the
normal manner on date of dismissal from service.
2. This issues with the concurrence of Finance Division of
this Ministry vide their UO No.5211/Pen/99 dated
24.8.1999.
Yours faithfully,
Sd/ Amrit Lal Deputy Secretary to the Govt. of India.”
13. Coming now to the present petition, it is seen that the petitioner whilst in military service participated in 1971
War which resulted in his prolonged hospitalization and down grading of medical category. The petitioner has raised various contentions, some of which may be summarized as below :
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13.1. The petitioner was appointed as Deputy
Commandant,222 ABOD ( Advance Base Ordinance Depot) located at Narangi Cantt ( Guwahati) on 24.6.1992 when
Col VA Sastry was the then Commanding Officer. The petitioner was based at Narangi. The Depot is a huge organization holding an inventory of approximately 27,000 items with a total value of approximately Rs.350 Crores and that No.2 Salvage Sub Depot ( 2 SSD) being located about
250 kms away at Missamari, near Tezpur. Naib Subedar
HL Jat was the then the Commandant of 2 SSD between
05.12.1992 to 16.06.1993. He received vouchers with 8800 kgs of materials of scarp of ferrous metal of 11 Aero Engines from No.11 Wing Air Force but took the same on charge as
‘Mixed Metal Scrap’ and Havaldar K.G.Krishnaiah, the then responsible Store Keeper (Technical) of Mechanical
Transport Stores/SKT (MT) recorded the same accordingly.
On 10.5.1993, Shri J.B.Poddar, a scrap dealer came to 2
SSD to lift the lots purchased by him in auction. In addition to his lots, Nb. Sub HL Jat allowed him to take away the scrap of unserviceable 11 Aero Engines without any authority and proper Gate Pass. Subsequently, Nb Subedar
HL Jat deposed before the Court of Inquiry on 9.12.1993 that this was done as per the instructions of the petitioner.
He further stated that, “ He allowed Shri Poddar to take the scrap of 11 Aero engines because of a telephone call purportedly made by the petitioner to him on 09.05.1993
Page 19 of 38 ordering him to handover the said engines to Shr Poddar to cover up certain deficiencies which had occurred in the past.”
13.2 On 14.05.1993, a complaint dated 03.06.1993 written in Hindi by a businessman residing in Assam was received by MG AOC Eastern Command, Fort William,
Calcutta ( Respondent No.2) about certain malpractices allegedly going on in No.1 and No.2 SSDs for last four years.
This complaint styled as Public Interest Petition was forwarded to the Commander IV Corps C/o.99 APO by Dr.
P.N.Sinha, Ex Member of Parliament. The complaint dated
14.05.1993 (Annexure-2) was investigated by Lt.Col
S.M.Kareir of 5 Mountain Division Ord. Unit who visited 2
SSD on 7.6.1993. The report is at Annexure-4. The Officer had concluded that the complaint was baseless, which was by some local bidders who had differences in their business dealings with bidders from Guwahati, Calcutta and Delhi. A complaint dated 03.06.1993 (Public Interest Petition) was directed by the Commanding Officer, Col. VA Sastry to be investigated by the petitioner. His report it at Annexure-5.
The petitioner claims that after satisfying himself that the allegations in the complaint were baseless, he submitted the report dated 10 Jul 93 which is at Anexure-6. In the report he had mentioned that he had checked certain lots and found the quantity of stores in numbers as well as in weight to be correct. It is the Commanding Officer who had
Page 20 of 38 forwarded his comment to Respondent No.4 with the observation, “…….. as alleged if stores are illegally dumped in the lots already sold, a huge deficiency in stocks would arise which is not so as there are no deficiency in the stocks of the Salvage Sub Depot found during the investigation.”. He, therefore, recommended,
“In view of the above, I recommend that the complaint lacks substance and needs no further follow up action.”(Annexure-7).
13.3. In the above backdrop, the petitioner has claimed that Col Ashwini Kumar (Respondent No.7) who was to be the new Commanding Officer had arrived at the station one month in advance and had started interfering in various matters pertaining to the Unit. Respondent No.4 had, in fact, managed to post him to the Unit replacing Col
V.A.Sastry. Respondent No.7 had a personal grudge against the petitioner on account of certain differences that had arisen when the petitioner was serving with him in
COD Dehu Road, Pune. During the process of handing over/taking over between Col V.A.Sastry and Col Ashwini
Kumar, the new incumbent, the latter visited 2 SSD and created some false evidence of deficiency of stores against the petitioner and Col. V.A.Sastry. In this regard, the deposition of PW - Subedar R.D.Ram refers.
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14. We have heard the rival contentions advanced by the learned counsel for the parties and examined the pleadings and records produced before us. The petitioner has in this case assailed the Court Martial proceeding on the ground that there is no case made out against him. He was implicated by Col Ashwini Kumar on account of personal grudge that he had against him since the time they had served together at Dehu Road, Pune. During that appointment there was a Court of Inquiry against Col
Ashwini Kumar in which the petitioner was a member. As a result thereof Col Ashwini Kumar had a feeling of animosity towards him and had thus framed him by illegally obtaining deficiency report from the SKTs during his visit at the time of handing/taking over of charge. He further invited/ projected false story and induced the respondents No. 2, 3 and 4 to take action against the petitioner. In doing so he threatened his subordinates and compelled them to make false statements before respondents No. 4 as well as during the Court of Inquiry. This is evident from the deposition of
Subedar (SKT) RD Ram. As against this the respondents have submitted in their affidavit-in-opposition dtd.
12.9.2011 that the petitioner was informed by Commander of No. 2 Salvage Sub Depot of the illegal transaction of 11 aero engines, but the petitioner did not bring the matter to the knowledge of his superior officer/Commandant 222
ABOD, Col V.A. Sastry. He did not do so as he could have
Page 22 of 38 ended up incriminating himself. It is submitted that the appointment of respondent No. 7(Col Ashwini Kumar) was made by Military Secretary Branch at Army Headquarter and not by respondent No. 4 as alleged. The respondents have contended that Col Ashwini Kumar had no personal grudge against the petitioner. Whilst denying the statements made in Para 64 of the TA, the respondents have submitted that it is not correct to state that the findings of GCM were not based on evidence and it was perverse. The respondents have contended that the GCM proceeded with legally qualified officer of Judge-Advocate
General Branch. Further the GCM took into account the circumstantial evidence and demeanor of witnesses. It is also not correct on the part of the petitioner to state that the GCM did not appreciate the entire evidence on record with reference of Para 66 of the Writ petition wherein the reference was made to Subedar (SKT) RD Ram. The respondents have submitted that he (Subedar (SKT) RD
Ram) gave statement against Col Ashwini Kumar as he had been earlier punished by Col Ashwini Kumar and also as
Ashwini Kumar no longer exercised any control over him.
The GCM considered his statement along with testimony of other witnesses so denying the statements made in para 69 and 70 of the Writ petition that the convening authority did not apply his mind to the fact of the case as was evident from the fact that the charge-sheet is dated 9th Jan, 1997
Page 23 of 38 and the convening authority ordered trial on 10th Jan, 1997.
The respondents have submitted that the case against the petitioner was registered on 4th Nov, 1994 and the convening authority was aware of the fact of the case before formal charge-sheet was put up to him. Besides, ordering the GCM was on the basis that there was prima-facie case against him. It was finally for the GCM to determine the accused guilty or otherwise. The contentions of the accused would have been valid if the GCM has only lasted one day which is not in the case. In controverting the statement made in Para 73 of the Writ petition, the respondents have submitted that forfeiture of pensionary benefits was within the jurisdiction of the President and justified in view of theft of 11 aero engines which were high-value items. Further the punishment awarded was also just and in accordance with the gravity of the offence.
15. It is thus seen that the challenge to the Court
Martial proceeding is basically on facts. In the present case, the petitioner was charged on 3 (three) counts which are as follows:-
(a) Under Section 52(a) of the Army Act, 1950 for
committing theft of property belonging to the Government viz 44
Aero Engines valued at Rs. 2,75,000.00.
(b) Under Section 57(a) of the Army Act for having signed
false statement stating that the allegations made in the complaint
Page 24 of 38
No. F/Int-93/432 dated 03.06.1993 of Shri Purna Narayan Singh,
Ex. Member of Parliament were unfounded and baseless.
(c) Under Section 63 of the Army Act, an Act prejudicial to good order and military discipline inasmuch as he was unable to ensure proper accounting of the Aero Engines received at 2
Salvage Sub Depot in accordance with DGDS Technical
Instruction No. 010, Revised 1980 Issue 2 Para 144 read with
Appendix ‘B’, Part.
16. The Court Martial with reference to the first charge has relied on the statement of the PW No. 2 No.
6915230M Hav SKT (MT) KG Krishnaiah, PW No. 3 No.
6281634H Hav (DSC) S Roy (Retd), PW 10 JC-187090p
Sub (SKT) RD Ram (Retd) and PW 11 IC-32167K Col
Ashwini Kumar. It would be necessary to extract the entire findings of the GCM with reference to charge (a) in respect of accused No. 1.
“Brief reasons of the Court in support of their findings in respect of accused No. 1.
First charge:
The Court found accused No. 1 guilty of the first charge
because of the following reasons:-
(a) On 07 May, 93, 11 aero engines were received at 2
Salvage Sub Depot from 11 Wing Air Force and were
taken on charge as mixed metal scrap (Exhibit ‘Z’) PWs
2 and 3 had deposed that 11 aero engines were given
Page 25 of 38
to Mr JB Poddar on 10 May 93 without proper voucher
and gate pass and on being asked accused No. 2 told
them that these were given to Mr Poddar on the
telephonic instructions of accused No. 1.
(b) Accused No. 1 was informed of the transaction of 11
aero engines on 08 Jul 93 by PW 2 and 10 and he had
asked PW 10 to make up the deficiency.
(c) Col Ashwini Kumar (PW-11) informed accused No. 1
on 18 Oct 93 that accused No. 2 had given away 11
aero engines to Mr. Poddar. Accused No. 1 called
accused No. 2 to his house and when accused No. 2
informed him he had given aero engines to Mr Poddar,
he did not take his statement in writing.
(d) The Court has reasons to believe in view of the
aforesaid facts and circumstances on record that
accused No. 1 had prior knowledge of receipt of 11
aero engines and he did instruct accused No. 2 to hand
over the same to Mr Poddar and thus they had prior
meeting of minds in this regard.
(e) Aero engines, the property belonging to the Govt were
given to Mr JB Poddar without these being auctioned
and sold, contrary to all the rules and regulations on
the subject.”
17. Examination of the reasons given by the
GCM in support of their findings on first charge
shows that the finding/conviction is based on fact
Page 26 of 38 that the Court had “reasons to believe in view of the aforesaid facts and circumstances on record that accused
No. 1 had prior knowledge of receipt of 11 aero engines and he did instruct accused No. 2 to hand over the same to Mr
Poddar and thus they had prior meeting of minds in this regard.” The basis for recording this finding is against the very basic principle of criminal jurisprudence which warrants that a person should be convicted only when the charge against him is proved beyond reasonable doubt. When the facts and circumstances of the present case are examined in the light of the above discussion we find that the
Govt property viz.11 aero engines which were reported stolen were infact given away by accused
No. 2 Nb Sub HL Jat who was the Commander of 2
Salvage Sub Depot to Mr Poddar, civil contractor who had come to collect his lots of ‘mixed metal scrap’ that he had purchased in auction. The evidence of Sri Poddar reveals that when he came to the Depot and examined his lots he found that the lot was deficient. When he brought this to the notice of accused No. 2 Nb Sub HL Jat, he offered him
‘mixed metal scrap’ in the form of 11 aero engines to make up the deficiency. There is no mention in
Poddar’s statement about accused No. 2 having given them at the behest of accused No. 1 or of Sri
Page 27 of 38
Poddar having taking them directly at the behest of accused No. 1.
The giving of the items was objected to by
PW 2, 6915230M Hav SKT (MT) KG Krishnaiah. He
(Krishnaiah) states that accused No. 2 told him that he was doing so on the telephonic instruction of accused No. 1. His statement that accused No. 2 told him so is hearsay with reference to the alleged transaction between accused No. 1 and accused No.
2 viz telephonic conversation. There is no record of telephonic conversation. It is also important to note that during his cross-examination by learned defence counsel No. 1 he stated, “It is correct to suggest that, I have falsely stated before the court that, accused No. 2 had told me that, he got telephonic instructions from accused No. 1 about disposal of 11 aero engines and floating of vouchers to main, whereas, no such instructions were passed and that I am falsely implicating accused No. 1 in connivance with accused No. 2. I did not ask accused No. 2 as to what type of balance Mr Poddar had against which 11 aero engines were being given to him”
(Para 84 of GCM). This statement of his has clearly discredited the witness.
Moving on to PW 3, No 6281634H Hav
(DSC) S Roy (Retd) it is seen that this witness
Page 28 of 38 accepted before the Court that he had signed on each page of statement in the summary of evidence when it was read over to him. He also accepted that he had understood and accepted it as correct. He was then contradicted on the basis of the following question- “At about 1300 hrs Mr Poddar with stores loaded in the truck along with Nb Sub HL Jat and Nk BL
Barman came to the depot gate. On checking the document found that 11 aero engines were being taken without gate pass or voucher and I questioned Nb Sub HL Jat about it. Nb
Sub HL Jat informed me that Mr Poddar had some previous balance of stores to be lifted and aero engines be allowed to pass. I was not satisfied as the stores were being taken without authority and did not permit the vehicles from going out. Thereafter, Nb Sub HL Jat insisted on letting the vehicles go out and told that he was the Cdr No. 2 Salvage
Sub Depot and that it was his responsibility to give the stores. He also showed me some documents and papers which I could not follow being in English to show that Mr
Poddar had previous balance and ordered me to let the vehicle pass out. Under pressure I had no alternative and permitted the vehicle to go out.”(Page 97 of GCM)
Although this witness stated that he had not stated so at the summary of evidence and he did not understand English and he had signed as correct whatever was told to him in Hindi by the Officers
Page 29 of 38 recording summary of evidence, it is relevant to note that his statement stands directly in contradiction to the statement that he made before the Court.
This witness was further confronted with the statement made before the Court of inquiry which reads “In Dec 93 before I gave my statement Nb Sub HL Jat coaxed me that I should tell the court that orders to give 11 aero engines had been received telephonically for Dy Comdt
Lt Col VV Chandorkar. If I did not make such statement then
I would along with him will be blamed for irregular transaction and will result into discp action.
“Unquote”.(Page 98 of GCM). The witness of course denied the statement. He was again confronted on the basis of another statement, “After giving wrong statement earlier before you my conscience did not allow me and even after false answer I am facing discp action for no fault of mine. I have now realized that Nb Sub HL Jat actually had trapped me to save himself.” (Page 99 of GCM). The witness expectedly denied this statement also. He was then confronted with his statement in response to question No. 9 during the Summary of Evidence which reads-
“Q:9-Was it not your duty to do so? Then what stopped you from reporting to me in spite of the fact that I took ‘darbar’ in the and specially made a mention of reporting any security lapses/irregular transaction which come to notice?
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Ans No. 9:- When 11 aero engines were being taken out Nb Sub
HL Jat showed me No of documents written in English. I did not understand any one of them as I am only a sixth standard educated. I was a DR in Signal Regiment prior to joining DSC. I can only understand simple words like Tyre, tubes etc which I used to check by numbers. However, nomenclature like ferrous metal scrap, mixed metal alloys are beyond my understanding. I did not realise that there was illegal transaction of 11 aero engines. Later on I came to know that I was being tricked by Nb Sub HL Jat. As a result I am facing disciplinary action. Similarly, Sub RD Ram had also made me give false statement in recording of his own S of E on 27 and 28
Jan 95 which is as under:-
“To the questions put by him whether I reported to Dy
Comdt about passing out of 11 aero engines on 08 Jul 93 when
Dy Comdt visited 2 SSD.” In the answer I have stated “that I went to report to Dy Comdt in the office of Cdr 2 SSD, at that time Dy Comdt himself told me that he had ordered Nb Sub HL
Jat to give away 11 aero engines to Mr Poddar due to some previous balance and I should not bother about it. “This answer of mine is totally false and no such things had happened, to the question as to who were present in the office when the above incident took place. I have stated “that Sub RD
Ram, Hav Krishnaiah and Hav Yadav were present,” which is totally incorrect. Similarly, Sub RD Ram also made me
Page 31 of 38 statement “that he showed Dy Comdt the three aero engines alongwith Hav Krishnaiah and Hav Yadav which I could see from the main gate”. This statement is also false. ( Unquote.)
(Page 100 & 101 of GCM)
Most significantly when re-examined by learned Prosecutor he stated that “Nobody tortured me before I gave my statement at the C of I, Ss of E and before the court, I made my statement as per my memory.”
The material contradictions as mentioned in the statement of this witness render him unreliable. The statement of PW 1 Col Ashwini Kumar stands thoroughly discredited by the statement of PW 10
Sub RD Ram which reads, “ On 21 Sep 93 out-going
Comdt, 222 ABOD, Col VA Sastry and incoming Comdt Col
Ashwini Kumar, visited 2 Salvage Sub Depot. Col Ashwini
Kumar took me to one side and asked me to give a list of deficient items and also told me to include clothing items which had gone wet and aero tyres which appeared to him, to be less in weight in the said deficiency list. I told Col
Ashwini Kumar that clothing items which had gone wet could be dried and aero tyres were correct in number hence there was no deficiency. Col Ashwini Kumar asked me as to how many aero engines were on ground. I told him that 11 aero engines were given to Mr JB Poddar by accused No. 2 on the orders of accused No. 1. Thereafter, Hav Narayanan had shown to him (Col Ashwini Kumar) account card of
Page 32 of 38 mixed metal scrap and Rv of 11 aero engines. The above transaction took place in the presence of Col VA Sastry in my office before physical inspection of stores by them. Col
Ashwini Kumar insisted that I should give him the list of deficient items. I went to the SKTs Hav Narayanan and Hav
HCS Yadav. Hav Narayanan made the list but refused to sign that list. I then told Col Ashwini Kumar that SKTs had refused to sign the list. Col Ashwini Kumar told me that list was only for his personal knowledge. I went to the SKTs and told them what Col Ashwini Kumar had told me. They then signed the list. I countersigned the list and handed it over to
Col Ashwini Kumar. In the list of deficiency items given by me to Col Ashwini Kumar on 21 Sep 93, I had not mentioned deficiency of mixed metal scrap or 11 aero engines.
Before I made my statement at the C of I,Col Ashwini
Kumar called me to his office, threatened me and tortured me to give my statement at the C of I.
It is incorrect to suggest that there was no talk of 11 aero engines on 21 Sep 93 and that I told Col Ashwini
Kumar about 11 aero engines only of 18 Oct 93 when he visited 2 Salvage Sub Depot and that I did not know anything about the transaction of 11 aero engines until Col
Ashwini Kumar told me on 18 Oct 93.
The witness volunteers to add, transaction of 11 aero engines was discussed by me with Col Ashwini Kumar on 21
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Sep 93. Since there was nothing in writing, Col Ashwini
Kumar in his statement at the C of I had stated that I told him about the transaction of 11 aero engines on 18 Oct 93.
He also confirmed the statement of accused
No. 1 “During his visit on 08 Jul 93 accused No. 1 mentioned to me about the complaint of an MP and told me that he had come on the orders of Comdt to investigate that complaint. Accused No. 1 had also told me that he had come to make a brief about the court case regarding lot No.
41/91. I had shown him the said lot and also the file pertaining to the case.
It is correct to suggest that in the durbar on 8 Jul 93 accused No. 1 had mentioned about Ex. MP’s complaint and stated that such complaints normally arise due to business rivalries amongst the scrap dealers and instructed all ranks to work efficiently and honestly.
The witness volunteers to add, “I had made a wrong statement at the C of I because I was under considerable mental pressure as I was rebuked and pressurised and threatened by various people. Moreover, I used to come daily from Missamari to 222 ABOD for C of I.
I had wrongly stated at the C of I that I had taken one generator set received from 11 Wing Air Force in the mild steel account card.
Page 34 of 38
Mr Poddar never told me to give him attractive items
or that Comdt or Dy Comdt had given him permission to
take attractive items.
It is correct to suggest that when I was sitting in the
waiting room before I gave my statement at the C of I, Maj
KS Deb came to me and told me that in my own interest I
should make statement as was instructed by Col Ashwini
Kumar. He further threatened me that if I did not do so, Col
Ashwini Kumar would sort me out.
I was charged on three counts. Firstly for not reporting
the deficiency of 11 aero engines in writing, secondly for
wrongly taking on charge generator and Air Craft cockpit
and thirdly for making surplus of aero tyres by cutting the
entry in the voucher.
I did not state at the C of I that accused No. 1 told me on
telephone on or about 20 Jun 93 that he already had the
knowledge of transaction of 11 aero engines.
I was threatened and pressurised to state at the C of I
by Col Ashwini Kumar that Dy Comdt and other officers
used to take percentage from dealers, however, it was not
true.”(Page 178 to 187 of GCM).
18. In the above context, it is also relevant to
note the evidence of PW 8 No. 6920510K Hav SKT
SN Yadav. Perusal of page 144 of GCM proceeding
Page 35 of 38 shows that he stated that, “On 21 Sep 93, both incoming and outgoing Commandant of 222 ABOD visited 2 Salvage
Sub Depot for the purpose of handing/taking over.
It is correct to suggest that, incoming Comdt Col
Ashiwini Kumar had tricked the then Cdr 2 Salvage Sub
Depot Sub RD Ram and the SKTs into giving him list of items
showing them as deficient without their actually being
deficient by saying that such lists were only for his
information and not for any further action.” His further
evidence as on page 145 of the GCM proceeding
reads, “List of deficiencies in stores were made hurriedly
by the SKTs of the items which were rotting in the depot,
whereas, there was no actual deficiency. I do not know as to
why Hav HCS Yadav did not give deficiency of 11 aero
engines in writing. I was told by Sub RD Ram that, he was
pressurized by Col Ashwini Kumar to tell him the
deficiencies and that he had told him about the deficiency of
11 aero engines.”
19. It is seen from the charge-sheet that the
present case does not involve any allegation of
direct theft against accused No.1. In fact, he was
located about 225 kms away from the scene at the
time of the alleged theft. The Depot (2SSD) was
under the direct charge of accused No.2, Nb Sub HL
Jat who, in fact, admittedly gave away the Govt
Page 36 of 38 property, in question, to PW 9 Sri Poddar. As per Sri
Poddar, these items were given to him by accused
No 2 to make up the deficiency in his lot. He does not take the name of accused No.1 at all. It is accused No.2, who says that he gave away the items, in question, on the telephonic instructions as received from accused No.1 on 09 May, 2010. There is, however, no evidence to substantiate the telephone call. Moreover, the evidence of PW 2 and
3 whom he has supposed to have stated that he gave away the property in question on the telephonic instruction of accused No. 1, is clearly unreliable on account of material contradictions.
20. In the light of the above discussion and upon proper appreciation of evidence and materials on record, the charge No. 1 must be held as not proved. The finding of the Court Martial is considered untenable in law and on facts of this case and is accordingly set aside. With the setting aside of this finding, the sentence imposed upon the appellant/petitioner would also need to be correspondingly reduced. In the facts and circumstances of this case and noticing the gravity of the charge proved, the award of punishment of forfeiture of seniority in rank for a period of 2 years
Page 37 of 38
would be commensurate with the gravity of the
offences and would meet the ends of justice.
21. In the light of above discussion, the petition
is partially allowed inasmuch as charge (1) is set
aside and sentence is reduced as mentioned in the
preceding Paragraph. The respondents are
accordingly directed to grant consequential benefits
as would accrue on the basis of the above finding to
the petitioner within 3(three) months of the receipt
of this judgment and order.
22. With the above observations and directions,
the petition stands allowed to the extent indicated
above. There will, however, be no order as to costs.
MEMBER(A) MEMBER(J)
Chakravarti/Kalita
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