Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2169 OF 2014
UNION OF INDIA AND OTHERS ...APPELLANT(S)
VERSUS
LT. GEN. (RETD.) S.K. SAHNI ...RESPONDENT(S)
WITH
TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2017
J U D G M E N T
B.R. GAVAI, J.
1. Criminal Appeal No.2169 of 2014 is filed by Union of India
and others challenging the orders passed by Armed Forces
Tribunal, Chandigarh Regional Bench at Chandimandir
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(hereinafter referred to as the “AFT”) dated 10 October 2013 in
MA No. 1871 of 2012 and OA No. 262 of 2011 to the effect that
it reduces the sentence of three years rigorous imprisonment
and cashiering imposed on the respondent hereinLt. Gen.
(Retd.) S.K. Sahni to dismissal from the service as provided in
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Section 71(e) of the Armed Forces Tribunal Act, 2007
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(hereinafter referred to as the “AFT Act”), and 21 March 2014
in MA Nos. 3201 and 3202 of 2014 in OA No. 262 of 2011,
whereby the learned AFT refused to grant leave to appeal.
Transferred Case (Criminal) No. 1 of 2017 is filed by the
2.
petitioner therein (respondent herein), originally before the High
Court of Punjab and Haryana being Criminal Writ Petition No.
1895 of 2013, challenging the dismissal of MA No. 1871 of 2012
and OA No. 262 of 2011, which was filed challenging the order
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dated 18 February 2011, passed by the General Court Martial
(hereinafter referred to as the “GCM”), vide which the
respondent herein was held guilty of first, third, fourth, fifth,
seventh and ninth charges and was sentenced as under:
(i) To be cashiered; and
(ii) Rigorous imprisonment for three years subject to
confirmation.
As such, both, the appeal filed by the Union of India and
3.
others, and the transferred case, filed by the respondent herein
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have been heard together. For the sake of convenience, the
facts are taken from Criminal Appeal No. 2169 of 2014.
4. The respondent was commissioned in the Indian Army on
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16 December 1967 and earned promotions and was promoted
to the rank of Lieutenant General in May 2003. The respondent
was thereafter appointed as Director General, Supplies and
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Transport (hereinafter referred to as “DGST”) with effect from 1
February 2005. He was also awarded the “Ati Vishisht Seva
Medal” in January 2005.
An anonymous complaint was received in the Directorate
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of Supplies and Transport (hereinafter referred to as the
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“Directorate”) on 4 April 2005. On 8 April 2005, the
complaint was forwarded and a request was made to the
respondent to examine the complaint and forward his
comments on the file on priority for perusal of the Directorate.
It is contended by the respondent that he replied to the same
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on 12 September 2005.
6. A Court of Inquiry was ordered against the respondent
under the directions of General Officer CommandinginChief,
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Western Command (hereinafter referred to as “GOCinC”), to
investigate into the following seven allegations:
“i. Procurement of Kabuli Chana through contract
finalized during April 05 by Army Purchase
Organization;
ii. Tendering and procurement of Barley crushed
and Gram kibbled during financial year 20052006
by Army Purchase Organization;
iii. Testing and sampling of items of ration by CFL
Delhi as per laid down specification arid its
subsequent purchase/procurement from various
firms/dealers as per approved sample and ASC
specifications;
iv. Tendering and procurement of 979 Metric
Tonnes of Masoor Whole which was supplied by
GRAINFED;
v. Violation, if any, of the laid down quality norms,
ASC specifications and other desired parameters
with regard to moisture content, number counts per
100 gm weight, system of imposing price reduction
of commodities contracted.
vi. Any undue favour granted to any contractor for
procurement of meat by HQ Central Command
during financial years 20032004 and 20042005
vii. Any irregularity with regard to permitting a civil
contractor to dump excavated soil within the
compound of ASC Centre and College of any undue
favour taken from any contractor by and Army pers
at ASC Centre and College.”
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7. The Court of Inquiry only recommended for award of
recordable censure against the respondent while recommending
disciplinary action qua other officials under the Army Act, 1950
(hereinafter referred to as the “Army Act”) and Army Rules,
1954 (hereinafter referred to as the “Army Rules”). However, as
per the direction of Army Commander, the respondent’s name
was included in the list for disciplinary action. The Court of
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Inquiry was finalized on 24 June 2006, and thereafter, the
GOCinC directed a disciplinary action against the respondent.
As contended by the respondent, the GOCinC, despite
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recommendation mentioned in the Inquiry Report for an
administrative action, directed disciplinary action while
admitting that there was no evidence of the acts of financial
consideration qua the respondent. The respondent, on attaining
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the compulsory retirement age of 60 years, retired on 30
September 2006.
9. The respondent filed a writ petition before the High Court
of Delhi being WP (C) No. 11839/2006 seeking for quashing
and setting aside of the proceedings and recommendations of
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the Court of Inquiry in terms of order dated 26 May 2005 and
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order dated 18 July 2006 directing attachment of the
respondent. The High Court of Delhi allowed the said writ
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petition, vide order dated 11 January 2007, in the following
terms:
“For the reasons aforerecorded, we are of the
considered view that the respondents have not
complied with the provisions of Rule 180 of the
Rules, as such, they cannot take any further
proceedings against the respondents on the basis of
the Court of Inquiry held in furtherance to the order
of the competent authority dated 26.9.2005.
However, the respondents are at liberty to give
notice to the respondent and continue with the
proceedings under Rule 180, and in the alternative,
even to take recourse to the provisions of Rule 22,
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.”
10. The appellants, instead of invoking Rule 180 of the Army
Rules, wherein opportunity was to be provided to the
respondent, resorted to Rule 22 of the Army Rules and issued a
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fresh notice and passed an order dated 31 August 2007 and
ordered attachment under Section 123 of the Army Act.
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11. The respondent challenged the above by filing a writ
petition in the High Court of Delhi being WP(C) No. 6632/2007,
which was then transferred to the learned AFT, Principal Bench
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at New Delhi. The said learned AFT, vide its order dated 3
September 2009, set aside the subsequent act of the Army
Authorities and held that resorting to Rule 22 of the Army
Rules was totally unwarranted and illegal. The appellants were
however directed to resort to Court of Inquiry after giving an
opportunity to the respondent and to comply with the
requirement under Rule 180 of the Army Rules.
nd
12. The GOCinC, vide its order dated 22 September 2009,
directed reconvening/reassembling of the Court of Inquiry on
the basis of the liberty granted by the learned AFT, New Delhi
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vide its order dated 3 September 2009. The GOCinC vide its
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order dated 12 April 2010, on the basis of the Court of
Inquiry, directed disciplinary action against the respondent.
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13. On 30 July 2010, a convening order, directing assembly
of the GCM under the Army Act, was issued. The GCM
consisted of 7 Members, out of which, 6 Members were holding
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ranks of Major General which was lower than the respondent’s
rank. The Presiding Officer, however, was of the rank of
Lieutenant General, but was allegedly junior to the respondent.
Even the JudgeAdvocate General (hereinafter referred to as
“JAG”) was allegedly junior to the respondent and was only
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holding the rank of Colonel. On the same day, i.e., 30 July
2010, a chargesheet comprising of nine charges was served
upon the respondent.
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14. The GCM, vide order dated 18 February 2011, found the
respondent not guilty of the charges No. 2, 6 and 8 whereas
found the respondent guilty of charges No. 1, 3, 4, 5, 7 and 9
and was sentenced as under:
(i) To be cashiered; and
(ii) Rigorous imprisonment for three years subject to
confirmation.
The findings and sentence of the GCM were confirmed by the
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Chief of Army Staff vide its order dated 13 January 2012.
15. The respondent filed an appeal before the learned AFT
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against the order of the GCM dated 18 February 2011, which
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was further confirmed by the order dated 13 January 2012
passed by the Chief of Army Staff. The learned AFT, vide the
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impugned order dated 10 October 2013, partly allowed the
petition. The learned AFT held that the findings of the GCM as
against the respondent were liable to be affirmed. However, the
learned AFT held that the sentence of cashiering and
substantive imprisonment of 3 years’ rigorous imprisonment
was harsh and thus, modified the sentence to dismissal from
service.
The respondent filed a writ petition being Criminal Writ
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Petition No. 1895 of 2013 before the High Court of Punjab and
Haryana at Chandigarh, challenging the aforesaid impugned
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order dated 10 October 2013 passed by the learned AFT. The
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High Court issued notice vide order dated 28 October 2013.
In the meanwhile, the appellants also filed an appeal being
Criminal Appeal No.2169 of 2014 before this Court, challenging
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the order passed by the learned AFT dated 10 October 2013.
Thereafter, the respondent filed an application being CRL.M.P.
No.24464 of 2014 in Criminal Appeal No.2169 of 2014 seeking
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transfer of Criminal Writ Petition No. 1895 of 2013, pending
before the High Court of Punjab and Haryana at Chandigarh to
this Court.
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This Court, vide its order dated 22 August 2016, allowed
17.
the said application and directed transfer of the said petition to
this Court, to be listed along with Criminal Appeal No.2169 of
2014.
18. We have heard Shri R. Balasubramanian, learned Senior
Counsel appearing on behalf of the Union of India and Shri K.K.
Tyagi, learned counsel appearing on behalf of the respondent.
19. Shri Tyagi, learned counsel appearing on behalf of the
respondent, raised a preliminary point that since the Members
of the GCM were below the rank of the respondent, the GCM
was not properly constituted, and as such, violative of subrule
(2) of Rule 40 of the Army Rules. He relies on the order of this
Court in the case of Ex. Lt. Gen. Avadhesh Prakash v. Union
1
. He submitted that from perusal of the
of India and Another
said order, it will be clear that about 80 Lieutenant Generals
1 Criminal Appeal No. 140 of 2019 dated 24.01.2019
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were available in the Indian Army at the relevant time, and as
such, the CourtMartial which had Members below the rank of
Lieutenant General, could not have tried the respondent. He
therefore submitted that the GCM, which is constituted in
contravention of subrule (2) of Rule 40 of the Army Rules,
could not have tried the respondent. He further submitted that
on the same ground, in view of Rule 102 of the Army Rules,
since the JAG, who was of the rank of Colonel, which is below
the rank of Lieutenant General, stood disqualified while acting
as a JAG. He relies on the judgment of this Court in the case of
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Union of India and Another v. Charanjit S. Gill and Others
in this regard.
20. Shri Balasubramanian, learned Senior Counsel appearing
on behalf of the appellants, on the contrary, submitted that
though subrule (2) of Rule 40 of the Army Rules requires that
the Members of a CourtMartial for the trial of an officer shall
not be of a rank below than that of the officer, it also provides
that a departure from the said rule is permissible, when in the
2 (2000) 5 SCC 742
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opinion of the convening officer, having regard to the exigencies
of the public service, the officers of such rank are not available.
He therefore submits that merely because the GCM consisted of
the officers below the rank of Lieutenant General itself, would
not ipso facto vitiate the proceedings. He submitted that the
only requirement is that such an opinion is required to be
recorded in the convening order. He submitted that insofar as
the order of this Court in the case of
Ex. Lt. Gen. Avadhesh
Prakash (supra) is concerned, in the said case, the order was
passed by this Court on the concession that such officers were
available. He further submitted that in the said case, no such
opinion as required under subrule (2) of Rule 40 of the Army
Rules was recorded.
21. For appreciating the rival submissions with regard to the
preliminary objections, it will be relevant to refer to subrule (2)
of Rule 40 of the Army Rules:
“ 40. Composition of General Courtmartial.
(1). …..
(2). The members of a courtmartial for the trial of
an officer shall be of a rank not lower than that of
the officer unless, in the opinion of the convening
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officer, officers of such rank are not (having due
regard to the exigencies of the public service)
available. Such opinion shall be recorded in the
convening order.”
22. In view of the specific contention with regard to the
violation of subrule (2) of Rule 40 read with Rule 102 of the
Army Rules, we have summoned the original file. On perusal of
the original file, we find that the convening officer has recorded
reasons as to why the officers of the rank of respondent were
not available. We find that the reasons given, for doing the
same, would fall within the exigencies of the public service.
The scope of judicial review of such a decision is very limited.
Unless it is found that the decision taken by the authority
suffers from arbitrariness, irrationality or unreasonableness, it
would not be permissible for us to sit in an appeal over the
decision of the convening officer. The limited inquiry that would
be permissible is, as to whether the reasons recorded are
having regard to the exigencies of the public service or not. On
perusal of the original file, we find that the reasons given are
directly concerned with the exigencies of the public service. We
therefore do not find any merit in the said submission.
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23. Insofar as the order of this Court in the case of Ex. Lt.
(supra) is concerned, in the said
Gen. Avadhesh Prakash
case, the contention made on behalf of the petitioner therein
was that the respondents therein could have tried to make
Lieutenant General available. In any case, from the said order,
it is not clear as to whether the subjective satisfaction as
required under subrule (2) of Rule 40 of the Army Rules was,
in fact, recorded or not. Another reason that weighed with this
Court for interfering with the order of the learned AFT was that
the learned AFT had recorded that since the appellant therein
had already retired from the service, there was no illegality in
constitution of GCM. This Court found that such a finding was
not permissible on the bare reading of Rule 40 of the Army
Rules.
Insofar as the merits of the present matter are concerned,
24.
Shri Balasubramanian submits that after the learned AFT had
concurred with the findings of the GCM that the charges
against the respondent stood proved, there was no occasion for
the learned AFT to have interfered with the penalty imposed on
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the respondent. Insofar as the appeal of the appellants herein
is concerned, the learned Senior Counsel for the appellants
submitted that since there are concurrent findings of fact with
regard to the charges being proved, no interference would be
warranted in the appeal of the appellants. He therefore
submitted that the appeal of the appellants deserves to be
allowed and the Transferred Case (Criminal) No. 1 of 2017 filed
by the petitioner (respondent in Criminal Appeal No. 2169 of
2014) be dismissed.
25. Shri Tyagi, learned counsel appearing for the respondent,
on the contrary, would submit that the findings as recorded by
the GCM as well as the learned AFT are recorded on the basis
of conjectures and surmises. He submitted that in the GCM,
the standard that is required to be followed is of a criminal
trial. It is therefore submitted that unless the charges against
an officer are proved beyond reasonable doubt, he cannot be
held guilty in GCM. It is submitted that like a criminal trial,
the benefit of doubt must go to the officer and not to the
prosecution. He, however, submitted that in the present case,
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the GCM as well as the learned AFT have given the benefit of
doubt to the prosecution.
26. He submits that as a matter of fact, not a single charge
stands proved beyond reasonable doubt against the
respondent. However, the respondent has been convicted by
the GCM without any evidence. He therefore submitted that
the Transferred Case (Criminal) No. 1 of 2017 filed by the
petitioner (respondent in Criminal Appeal No. 2169 of 2014)
deserves to be allowed and the appeal filed by the appellants be
dismissed.
27. With the assistance of the learned counsel for the
appellants and the respondent, we have perused the order
passed by the GCM as well as the learned AFT and the
materials placed on record.
28. At the outset, we may state that there are inherent
limitations on the jurisdiction of this Court and it will not be
permissible to reappreciate the evidence as recorded by the
GCM unless this Court finds that the material factors have
been either ignored or the evidence that has come on record,
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has been appreciated in a totally erroneous manner. With
these limitations in mind, we will consider the materials placed
on record.
Though nine charges have been framed against the
29.
respondent, he has been found guilty insofar as charges No. 1,
3, 4, 5, 7 and 9 are concerned. He has been found not guilty
insofar as charges No. 2, 6 and 8 are concerned. The learned
AFT has also concurred with the finding of fact holding the
respondent guilty of the aforesaid charges. The learned AFT
has observed that the evidence led with regard to all these
charges is mostly common and as such, has decided all the
said points together.
30. The learned AFT has come to a finding of fact that though
the contracts were finalized by the Army Purchase Organization
(hereinafter referred to as the “APO”), insofar as the
provisioning of dry supplies for the troops is concerned, it
found that both the APO as well as the Directorate, are
concurrently and cojointly responsible for the monitoring,
examination and the progress of the contracts.
17
31. The respondent, at the relevant time, was holding the post
of DGST. Though nine charges have been framed against the
respondent, they are interconnected and are related to three
transactions as under:
(i) That the respondent had agreed to the proposal of M/s
Gujarat Cooperative 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;
(ii) That though the respondent had enquired in the
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complaint dated 4 April 2005 alleging fake tendering
and presence of Kesari Peas and Akra, which were unfit
for human consumption, he had omitted to ensure
investigation of the alleged presence of Kesari Peas and
Akra in Dal Masur Whole. Therefore, the respondent
was instrumental in feeding the food to the Army
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Personnel, which was not as per the standards. As a
continuation of the same transaction, with an intent to
defraud, he had agreed to the proposal of M/s
GRAINFED for upgradation of Dal Masur Whole
supplied by the firm knowing that the said item had
been found and declared unfit for human consumption;
and
(iii) That the respondent had approved deviation with
relaxation to M/s PUNSUP Limited and M/s MMTC
Limited of permitting 350400 grains per 100 grams of
Kabli Chana as against 300350 grains per 100 grams,
and that this was done with an intent to defraud.
32. Insofar as the first charge is concerned, the findings of the
learned AFT would reveal that the request of M/s GRAINFED
for two additional tendering stations at Gadarwara and
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Narsingpur was made on 3 March 2005 to the Chief Director
of Purchase (hereinafter referred to as the “CDP”), APO. The
APO forwarded the said request for comments/views of the
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Directorate vide communication dated 9 March 2005. The
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perusal of the orders of the learned AFT as well as the GCM
would reveal that, after accepting the recommendation of PW6
Major General (Retd.) S.C. Mohan, the respondent did not agree
to the request of M/s GRAINFED. However, the proposal was
put up before him for reconsideration pursuant to the note
prepared by PW13Col. (Retd.) N.K. Yadav, Director
Provisioning, stating that the entire quantity against the
acceptance of tender has already been tendered at Gadarwara
within the delivery period. The respondent therefore agreed to
the request of M/s GRAINFED for two additional tendering
stations and the decision of the respondent was intimated to
the APO.
33. With regard to the aforesaid charge, it will also be relevant
to refer to the order passed by the learned AFT, in the case of
3
. In the said
Brig P.S. Gill v. Union of India and Others
case, the petitioner therein (Brig. P.S. Gill), at the relevant time,
was working as CDP, APO. The relevant portion of the said
findings are as under:
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3 OA No. 147 of 2010 dated 24 May 2011
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“2. From a bare reading of the aforesaid charges it
appears that the petitioner in the capacity of his
being Chief Director of Purchase, Army Purchase
Organisation, Ministry of Defence contrary to
APO/MOD Consolidated Order No.3 of 1987, with
intent to defraud/improperly approved addition
of two more tendering stations namely
.
Gadarwara and Narsingpur in Madhya Pradesh
For the purpose of drawing the charges, reliance
appears to have been placed by the respondents on
the exhibits, the details of which may be charted
out as under:
| Exhibit | Page | Para |
|---|---|---|
| L | 239 | |
| LXIX | 294 | |
| XXVII | 193 | 2 |
| VI | 141143 | 1 and 2 |
| II | 8385 | |
| V | 139140 | |
| LXXV | 303305 | |
| XXVIII to XXXIII/I | 194204/80 | |
From the perusal of the exhibits noted above, there
is nothing to show that the addition of two
tendering stations was not within the powers of the
petitioner. Nothing could be pointed out to show the
relevancy of these documents for making out prima
facie case against the petitioner. Further the
statement of the witness namely, PW1 Brig PPS Bal
of CDP Army Purchase Organisation, AHQ New
Delhi was scrutinised. He was categorical in his
statement that he was aware of the Consolidated
Order No.3 of 1987 (Ext.2) permits the inclusion of
additional tendering station. Ext.1 is related to the
letter dated 06.10.2008 written to M/s M.P. Trade &
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Investment Facilitation Corporation Ltd. for
"procurement of 1000 MT Gram Crushed (Kibbled)
against A/T even no. dated 05.12.2007 from M/s.
MPTRIFACAddition of Tendering StationDelhi.
This one example was quoted by the witness. This
itself indicates that the addition of tendering
stations is within the discretion of the competent
authority to the effect that "stores can be tendered
at Delhi as a special case in the subject A/T,
subject to the condition that any additional
expenditure incurred by the purchaser/savings
accruing to the supplier, on account of this addition
of tendering Station, shall be reimbursed by the
Supplier to the Government" which is also exactly
the requirement mandated in defence Consolidated
Order No.3 of 1987. Further with regard to the
making of the additional tendering stations by the
accusedpetitioner as per the reply of PW1, the
contract was amended as required by Government
of India orders and the amended contract was also
communicated by Exh. VI. There was no objection
to such acceptance of tendering stations from Audit
authorities or by PCDA. Apart from it, witness also
makes it clear in his answer to Question No.4 that
the tenderer has option to select stations where he
can tender stores as per the contract. The APO does
not dictate the tendering stations. However, they
must lend themselves to ease of inspection and
movement of stores to consignee depots. Lastly this
witness also clarified that by making the addition of
two tendering stations no monetary benefits could
be acquired by petitioner nor there was any extra
expenditure borne out by the respondents owning to
acceptance of two new stations by the accused
petitioner. Further by adding these two new
stations, no violation of any rule or order was made
by the accused petitioner."
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34. It could thus be seen that the very same AFT has come to
a finding that the CDP, APO was within the powers to include
additional tendering stations. It has further been found that
there was no objection to acceptance of such tendering stations
from Audit Authorities or by CDP, APO. It is further to be
observed that the learned AFT has clearly noted that the
Consolidated Order No. 3 of 1987 permitted inclusion of
additional tendering station subject to the condition that the
additional expenditure incurred by the purchaser/savings
accrued to the supplier, on account of this addition of tendering
station, shall be reimbursed by the Supplier to the Government.
There was a specific finding that on account of addition of two
tendering stations, neither any monetary benefits could be
accrued to the petitioner therein (Brig P.S. Gill), nor there was
any extra expenditure borne out by the Army owing to
acceptance of two new stations by the petitioner therein (Brig
P.S. Gill). In any case, it is clear from the said order that the
authority to accept such additional tendering stations was with
the CDP, APO. In view of this specific finding of the learned
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AFT recorded in the order dated 24 May 2011, we find that the
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finding, to the contrary, recorded by another Bench of the
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learned AFT vide the impugned order dated 10 October 2013
in the case of the present respondent, would not be
sustainable.
In any case, it is not even the case of the appellants herein
35.
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 learned AFT that
there was an intention on the part of the respondent to defraud,
in our view, would not be sustainable.
36. Insofar as the second charge is concerned, it is with
regard to the respondent not taking action on the basis of the
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anonymous complaint dated 4 April 2005. The related charge
is that though the Dal Masur Whole was found to also contain
24
Kesari Peas and Akra, the respondent cleared the samples and
the supply of said Dal Masur Whole was cleared. It is the case
of the appellants that on account of this, the Dal Masur Whole,
which was not as per the standards, was fed to the Army
Personnel. It is their further case that the respondent also did
not take immediate steps for preventing the consumption of the
same. It is to be noted that after the receipt of the said
anonymous complaint, the samples were sent for analysis and
the presence of traces of Kesari Peas was revealed during
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analysis of samples on 13 May 2005. The respondent
thereafter issued instructions to freeze the stocks. It is further
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to be noted that the DGST, vide order dated 12 April 2005,
had directed a Departmental Court of Inquiry to inquire into
whether there were any irregularities in tendering/inspection
procedure of Dal Masur Whole offered by M/s GAINFED. It will
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be apposite to refer to the said order dated 12 April 2005:
“1. A departmental Court of Inquiry composed as
under will assemble at the place, date and time to
be fixed by the Presiding Officer to investigate
whether there were any irregularities in
tendering/inspection procedure of Masur Whole
offered by M/S Gujarat Coop Grain Growers’
Federation Ltd. for inspection by CFL ASC, Delhi
25
against AT No.J13028/1/403/45RP/2005PUR
III dated 28 Feb 2005:
Presiding Officer – Brig V Marwaha
DDST, HQ Delhi Area
Technical Members – Col SC Chakravarty
Dir ST (FI)
2. The court will specifically examine the following
issues:
(a) Whether the complete qty of 979.600 MT was
tendered by 15 Mar 2005. If so why was the BIO
instructed to inspect only 440.800 MT.
(b) Was it ascertained by the BIO that the complete
qty i.e. 979.600 MT has been tendered and a
report made to that effect.
(c) Why did the BIO not carry out sampling of the
consignment, and why were the samples of bags
rejected, not brought for the perusal of CO/Lab
analysis.
(d) The decision of CO, CFL ASC Delhi to repack and
retender the stocks as and when ready when the
AT Note is against Risk Purchase; resulting in
automatic extn of DP.
(e) The acceptance of a cert from the contractor that
the balance of the consignment ie, 538.400 MT is
packed in the same quality bags as the 440.800
MT; and thereby ordering its rebagging.
CONFIDENTIAL
3. The Court will examine all associated issues, and
pin point responsibility for lapses if any.
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4. The proceedings duly completed will be submitted
personally to ADGST (SM) by 19 Apr 2005.”
37. 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.
38. It is further to be noted that the GCM has itself, in its
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order dated 18 February 2011, come to a conclusion that
560.727.380 Metric Tons of Dal Masur Whole was declared
gone bad within warranty period for which recoveries were
made from M/s GRAINFED.
39. That leaves us with the third charge with regard to the
relaxation being granted to M/s PUNSUP Limited and M/s
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MMTC Limited in acceptance of tender dated 26 June 2005,
vide which 350400 grains per 100 grams of Kabli Chana was
permitted on price reduction of 0.5% instead of 300350 grains
per 100 grams. It is to be noted that, leave apart the
27
respondent or anyone else gaining from the said relaxation,
there is a specific finding that on account of the decision of
reducing 0.5% contract amount for such a relaxation, there has
been a benefit to the public exchequer. It will be relevant to
refer to the finding of the learned AFT in the case of
Brig P.S.
Gill (supra):
“There is no dispute on the point that DGST was the
competent authority for making relaxation in the
specification. There is also ample evidence that the
DGST being competent authority permitted to
despatch 400 grains per 100 gms. in the place of
300350 grains per 100 gms. DGST also appears to
have made reduction of 0.5% from the contract
amount, in that the Government money to the tune
of Rs.7,57,480.16 was saved in the matter of
supplier M/s. Punjab State Civil Supplies
Corporation Ltd pertaining to Charge Nos. 3 and 4.
Similarly, within his powers, he granted relaxation
to M/s. MMTC to the tune of Rs.4,48,050.00.”
40. It could thus be seen that the learned AFT has specifically
come to a finding that on account of such decision, public
money to the tune of Rs.7,57,480.16 was saved in the case of
supplier M/s Punjab State Civil Supplies Corporation Ltd.
Similarly, an amount of Rs.4,48,050/ was saved in the case of
relaxation granted to M/s MMTC Limited.
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41. It is not the case of the appellants that the Kabli Chana so
supplied was of inferior quality or not as per the standards.
The only allegation is that the relaxation which was granted
was with regard to number of grains that every 100 grams
should contain. On the contrary, on account of reduction in
price, there has been a substantial saving to the public
exchequer, leave aside any pecuniary gain to the supplier. As a
matter of fact, even the GCM in paragraph (26) 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.
42. In any case, it is to be noted that clause 6 (a)(iv) in the
tender inquiry of the APO, which has been in vogue for decades,
permitted the same to be done. It will be relevant to refer the
same, which reads thus:
“6 (a)(iv). When an appeal is preferred by the
supplier against the decision of the inspecting
officer the final finding of the appellate authority viz.
QMG's Branch, ST7/8 will automatically supersede
the original report of the Inspecting Officer
irrespective of the fact whether the said inspecting
officer recommended the consignment to be
accepted subject to quality allowance price
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reduction etc. In the event of any supplies being
found not conforming to the prescribed specification
but being considered of acceptable quality the Chief
Director of Purchase may, at his sole discretion,
accept the supplies subject to such reduction in
price as he considers reasonable, in the light of the
defects found in the supplies or the quality of the
supplies accepted. In case, the reduction in price is
up to 5%, the consignment will be accepted without
any reference to the contractor for acceptance of the
price reduction and the contractor will not raise any
objection thereto. However, if any consignment is
acceptable on price reduction over 5% the consent
of the contractor will be obtained before acceptance
of supplies."
It could thus be seen that the finding in that regard, in
43.
our view, is also not sustainable. It will also be apposite to refer
to the following observations of the learned AFT in the
impugned order:
“38. However, we are of the opinion that though
these charges stand proved which show that he had
failed to perform the duties of the post of which he
was assigned the duties and had done such acts
prejudicial to good order and military discipline and
he cannot escape the responsibilities in this regard.
It is true that his acts were prejudicial to army
discipline and he had committed such acts with
intent to defraud but it cannot be said that he
actually committed fraud or did any such act which
resulted in actual loss or wrongful gain to any
person though his acts lead to an inference that
attempts were made to cause a wrongful gain and,
therefore, he cannot escape his liabilities.”
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44. It could thus clearly be seen that the learned AFT has
come to a conclusion that it cannot be said that the respondent
has actually committed fraud or did any such act, which
resulted in actual loss or wrongful gain to any person. However,
in the same breath, the learned AFT observes that the acts lead
to an inference that attempts were made to cause a wrongful
gain, and therefore, the respondent cannot escape his
liabilities. Observing this, the learned AFT comes to a finding
that the offence under Section 52(f) of the Army Act, 1950,
which reads thus, was made out against the respondent:
“ 52. Offences in respect of property.
…..
(f). does any other thing with intent to defraud, or
to cause wrongful gain to one person or wrongful
loss to another person.”
45. We are afraid as to whether such a finding would be
sustainable in law. The learned AFT has specifically come 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. We are unable to appreciate as to on what
basis the learned AFT comes to a conclusion that the acts lead
31
to an inference that the attempts were made to cause a
wrongful gain. The finding as recorded by the learned AFT is
totally contrary to the material placed on record.
We, therefore, find that the orders passed by the learned
46.
AFT as well as the GCM are not sustainable in law. The appeal
of the appellants deserves to be dismissed and the Transferred
Case (Criminal) No. 1 of 2017 filed by the petitioner (respondent
in Criminal Appeal No. 2169 of 2014) be allowed.
In the result, we pass the following order:
47.
A. Criminal Appeal No. 2169 of 2014:
(i) Criminal Appeal No. 2169 of 2014 filed by the
appellants is dismissed.
B. Transferred Case (Criminal) No. 1 of 2017:
(i) Transferred Case (Criminal) No. 1 of 2017 filed by the
petitioner (respondent in Criminal Appeal No. 2169 of
2014) is allowed;
th
(ii) The order dated 18 February 2011 passed by the GCM
holding the petitioner guilty and imposing penalty on
32
th
him and the impugned order dated 10 October 2013,
passed by the learned 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.
…..…..….......................J.
[L. NAGESWARA RAO]
…….….........................J.
[B.R. GAVAI]
NEW DELHI;
MARCH 23, 2022.
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