ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- TA 821 of 2010 (arising out of CWP 946 of 2009) Col (Retd) Jaswant Singh …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Brig (Retd) Rajinder Kumar, Advocate For the Respondent(s) : Mr. Sandeep Bansal, CGC. Coram: Justice Prakash Krishna, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- ORDER 31.03.2014 -.- The petitioner being aggrieved by the order dated 17.2.2004 passed by General Court Martial awarding sentence of cashiering to the petitioner and holding that the charge levelled against the petitioner is proved, filed writ petition No. 946 of 2009 before the Himachal Pradesh High Court at Shimla seeking the relief to issue a writ of certiorari for quashing Annexures P-20, P-21 and P-29 to the writ petition and a writ of mandamus for issuance of directions to the respondents to reinstate the petitioner in service and be given all the incidental benefits. The writ petition remained pending before the High Court and has been transferred, on commencement of Armed Forces Tribunal Act, 2007 to this Tribunal vide order dated 18.12.2009. The background facts may be noticed in brief. The petitioner claims that in the year 1976, he was commissioned as Second Leiutenant in the Indian Army and became full Colonel in the year 1996. He was part of elite Special Forces (Parachute Commando) and took active part in various wars and other Army operations such as Blue Star, IPKF (Indian Peace Keeping Force) in Sri Lanka and also tackled insurgency in -2- the North-East and Jammu & Kashmir and participated in the Kargil War for which he was awarded various Honours like Sena Medal etc. There is one landed property along with its superstructure known as Rose Villa at Nahan in the State of Himachal Pradesh. The said property belongs to one Sh. N.M. Bam. The said property is in the Cantonment area and was in the tenancy of the Army authorities (MES) since July, 1955. In pursuance of court‟s order, the Army authorities were compelled to vacate it in the month of September, 1979. The then Station Commander, Station Headquarters, Nahan wrote a letter dated 10.9.1980 to the owner namely Sh. N.M. Bam that due to reasons of security, the Army authorities are taking steps for acquisition of the said property which consists of plot and house known as Rose Villa in Nahan Cantt.; the case is with the Army Headquarter and will be finalised shortly. The owner was informed that Army Headquarter has asked the Station Headquarter, Nahan to request the landlord/owner not to sell any portion of the land until the case is finalised. It appears that the steps were taken by the Army authorities to acquire the aforesaid property in dispute. In that connection, measurements of the land (Rose Villa) involved for acquisition and determining its market value, were done. A long correspondence was entered into by the Army authorities at different levels including with civil authorities to acquire the land in question. The No Objection Certificate was granted by the Civil Authorities with regard to the said acquisition. The matter was being processed. It appears that while the matter was being processed with the Ministry of Defence through DGDE, the DGDE asked for:- -3- “To reconcile the variation in the area proposed for acquisition preferably by convening a proper Board of Officers to bring out the upto date market value along with other ground facts and latest NOC from the Collector. The existing NOC of the D.C. Sirmour dated 24.10.1966 is more than 30 years old.” Vide letter dated 28.10.1997 of the then Station Commander, it was informed that the Board of Officers was convened by this Headquarter to ascertain details/information as was asked for. The Board of Officers has been completed and the details as required are as under:- “(a) The exact area of the Rose Villa is 0-90-97 Hectors as per DRO. (b) The current value of Rose Villa area is Rs.5,67,784.14 as per DRO. (c) No Objection Certificate (NOC) from the DC Nahan(H.P) is attached.” It was requested that the case be taken up with the Army HQ for early finalisation of the case. Thereafter, the petitioner herein came to be posted at Nahan and being the senior most Army official at Nahan was Station Commander of Adhoc Station Headquarters Nahan (H.P). By means of letter dated 27.10.2000 addressed to DEO Ambala Cantt. for the first time, he recommended that Khasra Nos. 1073 to 1078 alongwith two other plots, parts of Rose Villa property, now has been excluded from the acquisition proposal on its being unsuitable for Army from the administrative point of view as well as from the buildability factors. The said letter is signed -4- by the petitioner as Station Commander. Along with the letter, the petitioner enclosed a sketch of Rose Villa showing the proposed acquired area and left out area. The recommendations of the petitioner were acted upon. However, in the month of March, 2002, Lt Colonel S.K. Saharawat visited Nahan and found that the recommendations given by the petitioner were wrong. The non-acquisition of portion of land will leave civil pocket in the defence land which will create security problem. It also transpired that Mrs. Anjana Thakur wife of the petitioner had already purchased the plots No. 1073 to 1078 earlier in the year 1999, a fact which was concealed by the petitioner. He re-recommended the acquisition of non-recommended area also be undertaken and case be processed. In this fact situation, in September, 2002, a Court of Inquiry was ordered in the matter. The petitioner participated in the Court of Inquiry. The evidence and material was collected and witnesses were examined. The witnesses were cross-examined by the petitioner. Based on the material collected in the Court of Inquiry, it was decided by the competent authority to initiate General Court Martial proceedings against the petitioner. The GCM was ordered and its convening order dated 16.9.2003 came to be passed. The following charge-sheet dated 28.6.2003 was served on the petitioner :- “QRM of order for the Assembly of a General Court Martial under the Army Act. Charge Sheet The accused IL-31665X Colonel Jaswant Singh SM, Branch, Recruting Office, Truchirapalli, attached to headquarters 474 Engineer Brigade, an officer holding a permanent commission in the regular Army, is charged with. -5- Army Act, Sec 52(f): Such an offence as is mentioned in Clause(f) of Sec. 52 of the Act, with intent to defraud. At Nahan on 27 Oct. 2000, while Station Commander, Nahan, when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur. The said officer to Sit. Sd/-(Salil Prabhakar) Brigadier Commander 474 Engineer Brigade Place: Zirakpur Date: 18 Jun, 2003 To be tried by General Court Martial Sd/-(B.S.Thakur) Lt Gen General Officer Commanding 2 Corps Place: Ambala Date: 28 Jun, 2003.” The G.C.M. was assembled on 25.9.2003, the petitioner filed objections to the charge and time upto 13.10.2003 was allowed to the prosecution to file the reply to the objections. On 13.10.2003, the G.C.M. was reduced to below the minimum number of members and was adjourned sine die. The matter was not proceeded further. Thereafter a fresh GCM was constituted. The convening order is dated 11.11.2003. Lt Colonel Rajiv Mehrotra, Additional Officer Headquarter 10 Corps was appointed as Judge Advocate. The GCM thus convened proceeded to try the petitioner on a fresh charge-sheet dated 11.11.2003 which is reproduced below:- -6- “Charge Sheet The accused IC-31665X Colonel Jaswant Singh SM, Branch Recruiting Office, Truchirapalli, attached to Headquarters 474 Engineer Brigade, an officer holding a permanent commission in the regular Army, is charged with:- Army Act, Sec 52(f): Such an offence as is mentioned in Clause(f) of Sec. 52 of the Army Act, with intent to defraud. In that he At Nahan on 27 Oct. 2000, which came to the knowledge of the authority competent to initiate action on 07 Dec 2002, while Station Commander, Nahan, when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur. Place: Zirakpur Sd/-(YC Chhibber) Colonel Date: 11 Nov 2003 Officiating Commander 474 Engineer Brigade “To be tried by General Court Martial” Place: Ambala Sd/-(G.D.Singh) Lt Gen Date: 11 Nov 2003 General Officer Commanding 2 Corps” The General Court Martial held that the above charge stands proved and passed the impugned order. -7- Before proceeding further, it may be noted that there is no variation in respect of accusation in the two charge-sheets. In the second charge-sheet on which the petitioner has been tried and convicted, the following bracketed words find mentioned additionally:- “At Nahan, on 27.10.2000, (which came to the knowledge of the authority competent to initiate action on 07th Dec 2002) while Station Commander, Nahan when entrusted with progressing the case for acquisition of Rose Villa land by the Govt.