Army Rules, 1954 – rr.180, 22 and 40(2) – Army Act, 1950 – s.123 –Respondent, commissioned in the Indian Army in 1967, was thereafter appointed as Director General, Supplies and Transport (DGST) in 2005 – A Court of Inquiry (CoI) was ordered to investigate into several allegations against him – CoI only recommended for award of recordable censure against the respondent, but the Army Commander and GOC-in-C directed disciplinary action under the Army Act, 1950 and Army Rules, 1954 – After his retirement in 2006, respondent filed a writ petition before High Court for quashing proceedings against him – High Court held that appellants cannot take any action against the respondent on basis of CoI recommendation, but granted liberty to them to give notice to the respondent and continue with the proceedings under r.180 of the Army Rules, or “exercise any other power available to them under the Act, insofar as they do not rely upon the proceedings on the aforesaid Court of Inquiry” – Appellants, instead of invoking r.180 of the Army Rules, wherein opportunity was to be provided to the respondent, resorted to r.22 of the Army Rules and ordered attachment of the respondent under s.123 of the Army Act – This order was set aside by Armed Forces Tribunal (AFT), which declared the said action as totally unwarranted and illegal – Appellants were however directed to resort to COI after giving an opportunity to the respondent and to comply with the requirement u/r.180 of the Army Rules – In July 2011, General Court Martial (GCM) proceedings, comprising of junior officers than respondent, found respondent guilty of few charges, and sentenced him (i) To be cashiered; and (ii) Rigorous imprisonment for three years subject to confirmation – Chief of Army Staff confirmed the same in January 2012 – Respondent filed appeal before the AFT, which modified the sentence to dismissal from service – Respondent filed writ petition before High Court challenging the decision of AFT – High Court issued notice – Meanwhile, Appellants filed appeal against AFT decision before the Supreme Court – Respondent filed application for transfer of his writ petition from High Court to Supreme Court, which was allowed – Held: There are inherent limitations on the jurisdiction of Supreme Court and it will not be permissible to reappreciate the evidence as recorded by the GCM unless the Supreme Court finds that the material factors have been either ignored or the evidence that has come on record, has been appreciated in a totally erroneous manner – Materials placed on record to be considered with these limitations in mind – On facts, on consideration of material on record, findings and orders passed by the AFT as well as the GCM not found to be sustainable in law – Appeal of appellant dismissed – Transferred criminal case of respondent allowed – Respondent acquitted of all the charges levelled against him – He would be entitled to all pensionary and consequential benefits in accordance with law – The arrears of such benefits shall be computed and paid to the petitioner within a period of three months from the date of the judgment – Armed Forces Tribunal Act, 2007.
Dismissing the appeal and allowing the connected Transfer Case, the Court
HELD:1.1. Though nine charges were framed against the respondent, they are inter-connected and are related to three transactions. The first charge was that the respondent had agreed to the proposal of M/s Gujarat Co-operative Grain Growers Federation Limited (hereinafter referred to as “M/s GRAINFED”) for addition of two more tendering stations at Gadarwara, District Narsingpur, Madhya Pradesh and Narsingpur in Madhya Pradesh in addition to 14 tendering stations already mentioned in the contract. The charge was that this was done with an intent to defraud the State. It is not even the case of the appellants herein that any loss was caused to the Army on account of such decision or any additional benefit was accrued to M/s GRAINFED by such deviation. This is apart from the fact that the Consolidated Order No. 3 of 1987 itself required any additional expenditure incurred by the purchaser/savings made by the supplier to be reimbursed by the Supplier to the Government. As such, the findings of the AFT that there was an intention on the part of the respondent to defraud would not be sustainable. [Paras 31, 35][957-F-H; 958-A; 961-C-E]
1.2 Insofar as the second charge is concerned, it is with regard to the respondent not taking action on the basis of the anonymous complaint dated 4th April 2005. It could thus be seen that the Court of Inquiry was directed to examine all associated issues and pin point responsibility for lapses, if any. It is thus clear that the finding that the respondent had failed to take cognizance of the complaint and direct an inquiry with that regard, is contrary to the material placed on record. [Paras 36 & 37] [961-E; 963-A-B]
1.3 The third charge is with regard to the relaxation being granted to M/s PUNSUP Limited and M/s MMTC Limited in acceptance of tender dated 26th June 2005, vide which 350-400 grains per 100 grams of Kabli Chana was permitted on price reduction of 0.5% instead of 300-350 grains per 100 grams. The only allegation is that the relaxation which was granted was with regard to the number of grains that every 100 grams should contain. As a matter of fact, even the GCM held that the respondent was entitled to benefit of doubt with regard to his intent but has found that the said act was prejudicial to good order and military discipline. [Paras 39 & 41][963-C-D; 964-B-C]
1.4 The AFT specifically came to a finding that the respondent has not committed any fraud or did not commit any act which resulted in actual loss or wrongful gain to any person. One is unable to appreciate as to on what basis the AFT came to a conclusion that the acts lead to an inference that the attempts were made to cause a wrongful gain. The finding as recorded by the AFT is totally contrary to the material placed on record. [Para 45][965-F-G]
1.5 The orders passed by the AFT as well as the GCM are not sustainable in law. Transferred Case filed by the petitioner is allowed; (ii) The order dated 18th February 2011 passed by the GCM holding the petitioner guilty and imposing penalty on him and the impugned order dated 10th October 2013, passed by the AFT are quashed and set aside; (iii) The petitioner is acquitted of all the charges levelled against him; and (iv) The petitioner would be entitled to all pensionary and consequential benefits in accordance with law. The arrears of such benefits shall be computed and paid to the petitioner within a period of three months from the date of this judgment. [Para 47][966-B-E]
Ex. Lt. Gen. Avadhesh Prakash v. Union of India and Another [Decision dated 24-01-2019 of Supreme
Court in Criminal Appeal No. 140 of 2019]; Union of India and Another v. Charanjit S. Gill and Others (2000)
5 SCC 742 : [2000] 3 SCR 245 and Brig P.S.Gill v. Union of India and Others [Orders dated 24 th May, 2011 of AFT in OA No. 147 of 2010] – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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