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In the Armed Forces Tribunal Regional Bench, Guwahati

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In the Armed Forces Tribunal Regional Bench, Guwahati Page 1 of 38 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. Page 2 of 38 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: Page 3 of 38 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 Page 4 of 38 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 Page 5 of 38 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 Page 6 of 38 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 Page 7 of 38 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. Page 9 of 38 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.
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