Ravendra Kumar v. UOI & Ors

ORDER: DISBANDMENT OF EME CELL, BELGAUM

¶1Kindly refer to Maj AK singh (Presiding Officer of the board) letter No PRI/4842/Gen Dated 31 Mar 99, addressed to EME Cell Belgaum and copy to your HQ.

¶2Parawise comment on the letter under ref is submitted as follows for your info and necessary action please:-

a) Para2: the Presiding Officer of the board sent of his JCO Clk to EME Cell, Belgaum on 30 Mar 99 at about 1030h for checking of the accounts for final audit. In the evening at about 1630h, Presiding Officer alongwith the said JCo came to the unit and audited the Regimental and Public Fund accounts. He dd not give any draft observation but directed to put up the board proceedings which was complied with. The Presiding Officer signed the proceedings and the ledgers. He also confirmed to the undersigned that there was no obsn what so ever and everything was in order and then he left at about 1800 h.

(b) Para 3: This cell can not make any one to sign the board proceedings against their wishes. The Presiding Officer and the members of the board had signed it as nil as there was no obsn given by them. Proceedings were submitted to stn HQ with a copy to the Presiding Officer as per the procedure.

(c) Para 4:

(a): Under the orders on the subject, the property of the disbanding unit was sold by constituting a board of offr and the sale proceed was credited to the regimental fund account.

(d) Para 4 (b) All the documents demanded were produced to the board. There is no question of not showing any receipt. Notwithstanding, all the donations were made through cheques/Demand Draft and everything is in black and white.

Sd/- (Ravendra Kumar) Major Commanding Officer

¶21The orders passed by the Appellate Authority shows that all points raised by the petitioner about his attachment, holding of court of enquiry, recording of summary of evidence and constitution of General Court Martial including appointment of a Judge Advocate have been dealt with but they have not found any merit in his contentions. From the order of attachment it is apparent that the attachment of the petitioner had taken place only after court of inquiry was recorded and a preliminary finding about the role of the petitioner was available and it is thereafter the petitioner was given an opportunity to cross-examine the witnesses who deposed against him in compliance with Rule 180 of the Rules. Explanation has also been furnished as to why a junior person was appointed as a Judge Advocate in the case of the petitioner because it has been specified that a person either of the equivalent rank or his senior was not available. An explanation is available in the order

convening the General Court Martial. Moreover any irregularity in appointment of a Judge Advocate does not vitiate the trial as provided under Rule 103 of the Rules, which is reproduced hereunder: ―103 Invalidity in the appointment of judge-advocate.— A court-martial shall not be invalid merely by reason of any invalidity in the appointment of the judge-advocate officiating thereat, in whatever manner appointed, if a fit person has been appointed and the subsequent approval of the Judge-Advocate General or Deputy Judge-Advocate General obtained, but this rule shall not relieve from responsibility the person who made the invalid appointment.‖

¶22All the documents which were necessary for the petitioner to prepare his defences were admittedly supplied. Even though Col. A.K.Malhotra withdrew from the trial, the petitioner who is an officer was allowed to be defended by a civil counsel and therefore, it does not lie in the mouth of the petitioner to say that he was undefended during the holding of the general court martial. The charges against the petitioner have been proved by the witnesses who appeared before the General Court Martial and deposed about the manner and method in which the auction of the regiment was conducted by the petitioner. His plea, that the auction was conducted by a three member board is of no consequence because admittedly, the two members of the Board were from his own unit and third one has taken

objection in writing. More over, they all were very junior officer and could not have taken a different stand contrary to the instructions of the petitioner about the manner of holding auction. Their testimony is against the petitioner. Even otherwise, it is not for us to re-appreciate the evidence since we do not find any abrasion of the provisions of the Act or the rules framed there under while holding the trial. The post confirmation petition has been dismissed by the Central Government by a detailed order which has dealt with each and every point raised by the petitioner in his appeal.

¶23It may also be appropriate to take note of the reasons given by the Central Government while rejecting the post confirmation petition filed by the petitioner which reads as under: ―6. AND WHEREAS, the Central Government after carefully considering the circumstances of the case and the evidence available on the record is of the view that the allegation of vindictiveness leveled by the petitioner are unfounded all the witnesses were from his unit and there is sufficient and reliable evidence on record in support of the charges. The point regarding invoking the provisions of Army Rule 180 improperly in respect of certain witnesses at the behest of Stn. HQ. Belgaum it is mentioned that the records of the case reveal that after completion of the Court of Inquiry (C of I) proceedings, it was observed that provisions of Army Rule 180 were not compelled with in respect of the petitioner vis-à-vis three witnesses.

The proceedings of the C of I were thereafter referred back for doing the needful. Therefore, there was irregularity in invoking the provisions of Army Rule 180 Moreover, by invoking the provisions of Army

Rule 180 the petitioner got an opportunity to vindicate himself. Therefore, the point raised by the petitioner has no force. As regards the point that the hearing of charge was not conducted in accordance with the law and instruction on the subject and neither any witness was examined nor any opportunity was given to the petitioner to submit his defence, it is observed that as per the records that the hearing of charge was conducted strictly as per rules. The petitioner declined to produce any witness in his defence. Therefore, the point raised by him does not hold any water. As regards the point regarding issue hearing of charge and directions for recording of the Summary of Evidence by the OC Troops and not by the Commanding Officer of the petitioner it is pointed out that Col. C.D. Sawant, SM Deputy Commandant/OC Troops, Maratha LIRC, who conducted hearing of the charge, at the relevant time was officiating Commandant, Maratha LIRC. The powers of the Commanding Officer were vested in him and thus he was the competent authority to conduct hearing of the charge. As regards the point that the Summary of Evidence was not recorded in a fair and impartial manner it has been observed from the records that this allegation is unfounded. The Summary of Evidence was recorded in accordance with the rules. As regards the point that no hearing of charge for two charges under Army Act See 52(b) was conducted it has been revealed from the records that the tentative charge was framed under Army Act See 63 and after recording of evidence the charges were framed under Army Act See 52(b), which is permitted by the Army Rule 22(4). Contention of the petitioner is not legally tenable. As regards the point regarding the petitioner not having been released from custody during adjournment of the GCM it has been noticed that the petitioner remained in custody in accordance with the instructions on the subject and representations of the petitioner for release were duly considered by the competent authority. The defence counsel and the defending officer were given full access to the petitioner. Therefore, the point is devoid of any merit. As regards the point that the Judge Advocate and Presiding Officer were biased it is mentioned that the GCM Proceedings were conducted in accordance with the procedure laid down by law. The Court duly addressed to the issues raised by the petitioner. Advice given by the Judge Advocate were in conformity with the legal provisions. The findings

of the GCM are based solely on the evidence on record. The petitioner has not given any evidence in support of his allegations therefore, it appears to be figment of his imagination. As regards the point that the petitioner was not provided with defending officer of his choice perusal of the GCM proceedings reveal that the petitioner was duly defended by his defence counsel and a suitable defending officer. The issue, therefore, lacks merits and substance. As regards, the point that Photostat copies of the documents were admitted in evidence without production of the originals it has been noticed that original copies of the auction board proceedings were also produced before GCM. Contention of the petitioner is, therefore, contrary to the records of the case. As regards the point that incorrect and wrong procedure was followed for assessment of the block value/price of the articles it has been observed that the value of the articles was assessed after applying maximum permissible depreciation rates. Contention of the petitioner is not tenable. As regards the point that the GCM considered and relied upon evidence of the witnesses who were also convicted in the same case it may be stated that even a co-accused or accomplice is also not barred to depose the facts and conviction is not illegal if based upon the testimony of such a witness. In this case, other independent oral and documentary evidence duly corroborates evidence of the witnesses referred to by the petitioner. Therefore, the point is devoid of any merit.‖

¶24A person like the petitioner who was officer commanding is not expected to have indulged in activities just to get petty benefits to his credit. However, when it is so done, it becomes all the more necessary to award maximum punishment as is available so as to set standards in a disciplined force like the Army and no leniency can be shown. We, therefore, do not consider that the punishment imposed upon the petitioner as shockingly disproportionate which may call for interference by us while exercising writ

jurisdiction more so when the punishment imposed is within the parameters of Section 71 read with Section 73 of the Act.

¶25We are however conscious of the fact that the petitioner who served in the Indian Army for a period of 22 years would be deprived of the pension also because of the punishment imposed upon him and in fact only the family members and dependents would be sufferers. We, therefore feel it proper to observe that if any petition is filed by the petitioner under Regulation 16(a) of the Pension Regulations for showing mercy and to consider grant of pensionary benefits to the petitioner by the competent authority, the representation may be considered by the competent authority within a period of three months from the date of his representation taking into consideration the length of his service and his past record.

¶26With these observations the writ petition is dismissed with no orders as to cost.

MOOL CHAND GARG, J.

September 22, 2008

SANJAY KISHAN KAUL, J. mv/dc/anb

W.P.(C)5644/2002 * IN THE HIGH COURT OF DELHI AT New Delhi + WP (C) No. 5644/2002 Reserved on : 05th September, 2008 % Date of decision: 22nd September, 2008 Lt. Col. RAVENDRA KUMAR …Petitioner Through: Mr. C.M. Khan, Advocate. Versus UNION OF INDIA & ORS. ...Respondents Through: Ms. Anjana Gosain, Adv. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG, J. 1. The petitioner joined Indian Army in the year 1979 as an Engineering Graduate. In 1996 he was posted as Officer Commanding of Station Workshop EME at Belgaum, North Karnataka as Lt. Col. At that station, other units including Maratha LIRC commanded by Brigadier S. P. Sharma, (SM) was also stationed. One Col. C. D. Sawant was the Dy. Commandant of the Maratha LIRC. In July 1997 Government of India decided to disband the Station Workshop EME Belgaum and the responsibility to sell off the W.P.(C)5644/2002 regimental properties was placed upon the petitioner. Auction of the Regimental Property took place on 16.3.98. A unit namely EME Cell Belgaum was raised in place of the workshop which was also placed under the command of the petitioner. The property of the EME Cell was also disposed of by an auction held on 24.3.1999 in terms of the decision taken on 19.3.99. A final audit of the regimental fund account was submitted on 30.3.1999 signed by all the board members and countersigned by the petitioner. However Major A.K. Singh who also happened to be the chairman of auction board on the very next day i.e. on 31.3.1999 raised certain objections to the audit report. A response was called from the petitioner which was submitted on 5.4.1999. The allegations leveled against the petitioner are about misappropriation of certain properties of the unit not put up for auction, and kept by the petitioner himself by manipulating the auction. 2. It is the case of the petitioner that Col. C. D. Sawant (SM) was inimical to the petitioner and has falsely implicated him in this case. Soon after Major A.K.Singh raised objections, Col. Sawant ordered a Court of Inquiry by appointing his battalion officer Lt. Col. G. C Chohan OF 8 Maratha LI as its Presiding Officer. During the Court of Inquiry the petitioner was attached to Station Head Quarter, W.P.(C)5644/2002 Belgaum even though his unit the EME Cell stood disbanded on 31.3.1999 and ceased to exist. It is stated that his movement for next posting to Nagaland was delayed even though he was not connected with the Court of Inquiry. He was allowed to join to his next posting after the conclusion of the Court of Inquiry on 10.8.1999 to 310 Field Station Workshop EME (Nagaland). 3. It is also his case that no one deposed against him during the aforesaid C O I. However, vide letter dated 2.2.2000 signed by Brig. S. P. Sharma, the Station Commander, the petitioner was asked to make good a loss of Rs.63924/- of the Regiment fund of the Ex-EME Cell Belgaum by alleging that the said amount had been misappropriated while disposing off the properties of the Regiment. The petitioner was also attached to Maratha LIRC for finalization of disciplinary case against him, on 30.01.2000 and on the same day he was also informed that Lt. Col. Satbir will record the summary of evidence who also happened to be from Maratha LIRC. It is stated that hearing of charge was done by Col. C. D. Sawant even though he was not his Commanding Officer without any prior verbal or written notice contrary to the provisions of Army Rule 22 in a very intransparent and surreptitious manner. It is alleged that the provisions of Army Rule 180 were also not W.P.(C)5644/2002 complied with. Petitioner further alleged that during recording of summary of evidence he was harassed and made to wait and sit in isolation. The petitioner claims to have objected to the