Rajvir Singh vs Secretary Min.Of Defence & Ors

Rajvir Singh ... Appellant

Versus

Secretary, Ministry of Defence & Others ... Respondents

J U D G M E N T

Aftab Alam, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated August

19, 2011 passed by the Armed Forces Tribunal, Regional Bench, Lucknow,

by which it dismissed Original Application No.116 of 2011 filed by the

2

appellant and rejected his challenge to the direction for the General Court

Martial to re-assemble for his trial contending that his trial was barred by

time as provided under section 122 of the Army Act, 1950 (for the sake of

brevity "the Act").

3. A General Court Martial was directed to be convened by order dated

August 23/26, 2010 passed by the General Officer Commanding, Madhya

Bharat Area, ("GOC, MB Area" for short) to try the appellant on different

charges relating to gross financial irregularities punishable under Section

52(f) of the Act. The appellant challenged the order before the Armed Forces

Tribunal (in Original Application No. 216 of 2010) on the plea that his trial

by the General Court Martial was barred by limitation under section 122 of

the Act. At that stage, the Tribunal did not go into the merits of the

appellant's challenge and dismissed the Original Application leaving it open

for the appellant to raise his objections before the Court Martial. In

pursuance of the liberty given by the Tribunal, the appellant raised the

objection before the Court Martial that his trial before it was barred by

limitation. The Court Martial upheld the appellant's objection and by order

dated February 17, 2011, allowed the "plea in bar" raised by the defence.

However, the Confirming Authority, i.e., the (Officiating) GOC, MB Area,

refused to confirm the order of the General Court Martial and by order dated

3

March 29, 2011, which is in some detail, found and held that reckoning from

the date on which the commission of the offence and the identity of the

appellant as one of the offenders came within the knowledge of the

competent authority, the order giving direction for convening the General

Court Martial was passed within a period of three years and, therefore, the

bar of limitation did not come in the way of the trial of the appellant before

the General Court Martial. Having, thus, arrived at the finding, he directed

the GCM to proceed with the trial of the appellant as if the "plea in bar" was

found not proved. The appellant challenged the order of the Confirming

Authority once again before the Tribunal in Original Application no. 116 of

2011. But the Tribunal, mainly relying upon the decisions of this Court in

Union of India and others v. V.N. Singh (2010) 5 SCC 579 and J.S. Sekhon

v. Union of India and another (2010) 11 SCC 586, held that the General

Court Martial was convened within the period of limitation. It, accordingly,

rejected the application and upheld the order passed by the Confirming

Authority.

4. The charges against the appellant pertain to the periods 2005-2006

and 2006-2007 when he was posted as officiating Commandant, Central

Ordnance Depot, Chheoki. According to the charges, in procurement of

stores he violated and flouted the relevant rules and in making purchases

4

worth about Rs.2.2 crores he caused wrongful loss of Rs.60.18 lakhs to the

Government.

5. In this regard, first a pseudonymous complaint dated October 27, 2006

came making allegations of gross irregularities committed by the appellant

in purchase of stores for the Central Ordnance Depot. The complaint was

seen by the General Officer Commanding-in-Chief, Central Command

("GOC-in-C, CC" in short) on November 15, 2006. The complaint was

followed by a report by the Central Command Liaison Unit which also

highlighted the irregularities committed in procurement of stores at the

Central Ordnance Depot, Chheoki. This report was seen by the GOC-in-C on

December 6, 2006. On December 9, 2006, an order was issued on behalf of

the GOC-in-C, for convening a Court of Inquiry to investigate the alleged

irregularities/misdemeanors in the Central Ordnance Depot during the

financial years 2005-2006 and 2006-2007. The irregularities/misdemeanors

that were required to be inquired into were listed under the headings (a)

upgradations of demand and (b) local purchase. The Court of Inquiry

submitted its report on January 24, 2007 in which, apart from some other

officers, the appellant was clearly indicted. It appears that the report of the

Inquiry Committee was first placed before the GOC, MB Area, who on

February 20, 2007 made a recommendation in light of the report. In his

5

recommendations the GOC, MB Area, observed that the Court of Inquiry

had examined only a small fraction of the local purchase and had the Court

gone into greater details more irregularities would have come to light.

However, on the basis of the materials coming before the Court of Inquiry,

the GOC, MB Area, found that there was adequate evidence regarding

cognizable acts of omission/commission committed by several officers,

including the present appellant in regard to whom he observed that he was to

be blamed for causing wrongful loss to the government to the tune of

Rs.60.18 lakhs in the process of procurements of stores worth Rs.2.2 crores

by committing a number of procedural irregularities/illegalities.

6. The report of the Court of Inquiry along with the recommendations of

the GOC, MB Area was forwarded to the GOC-in-C, CC on April 26, 2007.

On May 7, 2007, the GOC-in-C, CC wrote a note in the form of

recommendations on the report of the Court of Inquiry convened on his

direction. He started by saying that he had perused the proceedings of the

Court of Inquiry and he partially agreed with the findings and opinion of the

Court. He observed that there was cogent and adequate material evidence

regarding the cognizable acts of omission/commission committed by various

officers of the Central Ordnance Depot, Chheoki. In regard to the appellant

6

the GOC-in-C made the following observations in paragraph 6 of his

recommendation:

"6. The culpability of IC-42501F Col Rajvir Singh, Offg

Commandant, COD Chheoki, is established for causing

wrongful loss to the Govt to the tune of Rs.60.18 lakhs in the

process of procurement of stores through local purchase in the

years 2005-2006 and 2006-2007 by committing the following

procedural irregularities/illegalities:-"

(The above quoted passage was followed by a list of different

irregularities/illegalities allegedly committed by the appellant).

7. It, however, appears that on the basis of the materials before him the

GOC-in-C, CC was also unhappy and dissatisfied with the role of one Major

General S.P. Sinha, who, at the material time, was the ADGOS (CN & A) in

the Central Command and who at the time the GOC-in-C was making his

recommendation was posted as MGAOC, HQ-Western Command. Hence, in

paragraph 7 of his recommendations he stated as follows:-

"7. I recommend that a (sic.) appropriate (sic.) constituted C of

I be ordered by integrated HQ of MoD (Army), MGO's Branch

for investigation into the acts of omission/commission in

respect of Maj. Gen. SP Sinha, ADGOS (CN & A) and any

other higher auth, Col Rajvir Singh, Offg Commandant and

offrs of the COD Chheoki as opined by the Court in the process

of procurement of stores by the COD, Chheoki during the pd

2005-06 and 2006-07."

7

8. It is significant to note that insofar as the appellant is concerned, the

GOC-in-C, CC, was undeniably the competent authority to initiate

proceeding against him and to convene a General Court Martial to try him.

Further, on the basis of the Court of Inquiry report and the recommendation

of the GOC, MB Area, the GOC-in-C, CC, had clearly formed the opinion

that the culpability of the appellant was established and there was cogent and

adequate material evidence regarding the cognizable acts of

omission/commission committed by him. Nonetheless, on May 7, 2007, the

GOC-in-C, CC did not direct for initiating proceeding against the appellant

and to convene the General Court Martial for his trial but clubbed his case

with Major General S.P. Sinha in whose case the integrated headquarter of

MoD Army was the competent authority and sent his recommendation to the

integrated HQ to hold a Court of Inquiry to examine the role of the Major

General in the irregularities committed at the Central Ordnance Depot,

Chheoki, during his tenure there.

9. On the basis of the recommendation made by the GOC-in-C, CC, by

his letter dated February 19, 2008, the integrated headquarters of MoD

directed the HQ, Western Command (where Major General S.P. Sinha was

at that time posted) to convene a Court of Inquiry to investigate the acts of

omission/commission on the part of the Major General the then ADGOS

8

(CN & A), detailing the issues into which the investigation was required to

be made. A copy of the letter was sent to the GOC-in-C, CC for information

and further advising him to issue appropriate directions in respect of the

appellant who was indicted by the Court of Inquiry that was held on his

direction.

10. It was only then that the GOC-in-C, CC gave direction for initiation of

disciplinary action against the appellant (and some other officers) vide order

dated May 12, 2008, for the misdemeanors as stated in paragraphs 4 to 12 of

the order insofar as the appellant is concerned (and in paragraphs 13 to 16 in

regard to some other officers).

11. Following the order of the GOC-in-C, CC, a tentative charge-sheet

containing 18 charges was given to the appellant on August 20, 2008. The

hearing of charges was then held as required under rule 22 of the Army

Rules, 1954 and at the end of the hearing, the Commanding Officer found

that none of the charges were proved and there was no sufficient evidence to

proceed further with the charges. The Confirming Authority, however, did

not accept the view taken by the Commanding Officer and by order dated

September 7, 2009, directed for taking additional summary of evidence. As

directed by the Confirming Authority, additional summary was taken but

9

once again the Commanding Officer by his order dated March 9, 2010,

found that none of the charges were proved. The Confirming Authority i.e.

the GOC, MB Area, once again did not accept the order of the Commanding

Officer. He framed four charges under section 52(f) of the Act relating to

financial irregularities in procurement of store for the Central Ordnance

Depot and directed the appellant to be tried by Court Martial. It was

pursuant to this order that the General Court Martial came to be constituted

which was challenged by the appellant as barred by limitation, as noted

above.

12. Having narrated the relevant facts we may now take a look at the

provision relating to limitation. Section 122 of the Act provides as follows:-

"122. Period of limitation for trial. - (1) Except as provided

by sub-section (2), no trial by court-martial of any person

subject to this Act for any offence shall be commenced after the

expiration of a period of three years [and such period shall

commence. -

(a) on the date of the offence; or

(b) where the commission of the offence was not

known to the person aggrieved by the offence or to

the authority competent to initiate action, the first

day on which such offence comes to the

knowledge of such person or authority, whichever

is earlier; or

10

(c) where it is not known by whom the offence was

committed, the first day on which the identity of

the offender is known to the person aggrieved by

the offence or to the authority competent to initiate

action, whichever is earlier.]

(2) The provisions of sub-section (1) shall not apply to

a trial for an offence of desertion or fraudulent enrolment or for

any of the offences mentioned in section 37.

(3) In the computation of the period of time mentioned

in sub-section (1), any time spent by such person as a prisoner

of war, or in enemy territory, or in evading arrest after the

commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than

desertion on active service or of fraudulent enrolment shall be

commenced if the person in question, not being an officer, has

subsequently to the commission of the offence, served

continuously in an exemplary manner for not less than three

years with any portion of the regular Army."

13. On behalf of the appellant it is contended that the period of limitation

for his trial before the Court Martial would commence from February 20,

2007, when on the basis of the report of the Court of Inquiry, the GOC, MB

Area, sent his recommendation to the GOC-in-C, CC indicting the appellant.

It is pointed out that it was the GOC, MB Area, who passed the order dated

August 23/26, 2010 convening the General Court Martial, directed the

Commanding Officer to take further summary of evidence in the hearing of

the charges under rule 22 and finally passed the order directing the Court

11

Martial to reassemble for the appellant's trial. It is, thus, the GOC, MB Area

who is the competent authority to take action against the appellant and it is

the date of his knowledge of the commission of the alleged offence and the

identity of the appellant as the alleged offender that is relevant under section

122.

14. It is further submitted that in any event the GOC-in-C, CC was

undeniably the competent authority to initiate action against the appellant.

On May 7, 2007, the alleged offence and the identity of the appellant as the

alleged offender was fully within his knowledge on the basis of the

recommendation of GOC, MB Area and the report of the Court of Inquiry

ordered by him. His knowledge is evident from his recommendation to

Integrated HQ, wherein, he stated that the culpability of the appellant was

established. The period of limitation must, therefore, commence from a date

not later than May 7, 2007 and reckoning from that date, the period of three

years came to end on May 6, 2010. But the order for convening the General

Court Martial was finally passed by the GOC, MB Area on August 23/26,

2010, that is, clearly beyond the period of limitation. Hence, the appellant's

trial before the General Court Martial was clearly hit by section 122 and was

barred by limitation.

12

15. On behalf of the respondents, on the other hand, it is argued that the

period of limitation in this case can only commence from May 12, 2008

when the GOC-in-C, CC directed that disciplinary action be initiated against

the appellant and that later date must be deemed to be the date when the

competent authority had the knowledge within the meaning of section 122 of

the Act.

16. This is the argument adopted both in the order passed by the GOC,

MB Area and the decision of the Tribunal upholding that order.

17. In the order, dated March 29, 2011 passed by the GOC, MB Area, in

paragraph 34, it is observed as under: -

"If the law laid down by the Hon'ble Supreme Court had been

followed, the only question which the Court was to decide was,

(sic.) which was the date on which the authority competent to

initiate action issued its direction to initiate disciplinary action.

However, the reasons given by the Court show that the Court

was squarely guided by the issues framed by the learned Judge

Advocate, which ran absolutely contrary to the law laid down

by the Hon'ble Supreme Court (as also the policy in vogue

referred to by the learned Advocate Judge)".

(emphasis added)

18. Affirming the view taken by the GOC, MB Area, the Tribunal in

paragraph 12 of its judgment held and observed as follows -

"In the case at hand on 7/5/2007, the date on which the applicant

alleges the competent authority to have acquired knowledge,

perusal of the said document which is Annexure No. A-6 to the

13

Original Application reveals that the respondent No. 3 is not

able to form an opinion as to whether or not any offence has

been established and furthermore he is not able to form a

definite opinion regarding culpability of the applicant therefore

he recommends for constitution of an appropriately constituted

Court of Inquiry by Integrated HQ of the Mod (Army), MGO's

Branch for investigation into the acts of omission/commission in

respect of ADGOS (CN & A), the applicant and the officers of the

Central Ordnance Depot, Chheoki. Thus it cannot be

conclusively established regarding knowledge of the offence by

respondent No. 3 at this stage. However, pursuant to

recommendations of 7/5/2007 HQ Central Command

approached Integrated HQ of the Mod (Army) for further

inquiry in respect of officers for their involvement in the

allegations. On 12/5/2008 the respondent No. 3 perused the

proceedings of the Court of Inquiry held to investigate the

allegations of various irregularities in Central Ordnance

Depot, Chheoki and agreed with the recommendations of

General Officer Commanding Madhya Bharat Area. The

culpability of applicant, according to respondent No. 3 was

established for causing wrongful loss to the Government.

Upon being so satisfied regarding establishment of culpability

the respondent No. 3 on 12/5/2008 he directed disciplinary

action against the applicant. It is that date which would be

counted as starting point towards computation of limitation for the

purposes of Section 122(l) (b) of the Act."

(emphasis

added)

19. As noted above, both the GOC, MB Area and the Tribunal, base their

orders on the decisions of this Court in. V.N. Singh (supra) and J.S. Sekhon

(supra). The decisions of the GOC, MB Area and the Tribunal appear to be

based on a complete misinterpretation of the two decisions of the Court. In

both, V.N. Singh and J.S. Sekhon, the real issue before the Court was who

14

was the competent authority to initiate action against the delinquent officer

and whose knowledge would be relevant for the purpose of section 122 of

the Act. In both cases, it was contended, on behalf of the delinquent officers,

that the knowledge of "the person aggrieved" long preceded the knowledge

of the competent authority and reckoning from the date of knowledge of "the

aggrieved person", the order convening the General Court Martial was

barred by limitation. In V.N. Singh, it was submitted on behalf of the officer

that one Brigadier K.S. Bharucha was the aggrieved person and in J.S.

Sekhon, it was submitted that the Commander Works Engineer was the

person aggrieved and if the period of limitation was computed from the date

of their knowledge then the order convening the General Court Martial was

barred by limitation. In both cases, the Court held that that part of section

122 that referred to the knowledge of the person aggrieved had no

application to the facts of the case and the relevant date for computing the

period of limitation was the date of knowledge of the competent authority to

initiate action against the delinquent officer. In paragraphs 32 and 34 of the

decision in V.N. Singh, the Court observed as follows: -

"32. The term "the person aggrieved by the offence" would be

attracted to natural persons i.e. human beings who are victims of

an offence complained of, such as offences relating to a person or

property and not to juristic persons like an organisation as in the

present case. The plain and dictionary meaning of the term

"aggrieved" means hurt, angry, upset, wronged, maltreated,

15

persecuted, victimised etc. It is only the natural persons who can

be hurt, angry, upset or wronged or maltreated etc. If a

Government organisation is treated to be an aggrieved person then

the second part of Section 122(1) (b) i.e. "when it comes to the

knowledge of the competent authority to initiate action" will never

come into play as the commission of offence will always be in the

knowledge of the authority who is a part of the organisation and

who may not be the authority competent to initiate the action. A

meaningful reading of the provisions of Section 122(1)(b) makes

it absolutely clear that in the case of government organisation, it

will be the date of knowledge of the authority competent to initiate

the action, which will determine the question of limitation.

Therefore, the finding of the High Court that Brigadier K.S.

Bharucha was an aggrieved person is legally and factually

incorrect and unsustainable.

34. The facts of the present case establish that the Technical Court

of Inquiry was convened by DDST, Headquarter Delhi Area on 8-

1-1994 which recommended examination of certain essential

witnesses for bringing into light the correct details and the persons

responsible for the irregularities by a Staff Court of Inquiry and

accordingly the Staff Court of Inquiry was ordered on 7-5-1994 by

GOC-in-C Western Command which concluded in its report dated

31-8-1994, mentioning for the first time the involvement of the

respondent in the offence. The GOC, Delhi Area i.e. the next

Authority in chain of command to the respondent recommended

on 19-10-1994 initiation of disciplinary action against the

respondent whereas the GOC-in-C, Western Command gave

directions on 3-12-1994, to initiate disciplinary action against the

respondent. Therefore, the date of commencement of the period of

limitation for the purpose of GCM of the respondent, commenced

on 3-12-1994 when direction was given by GOC-in-C, Western

Command to initiate disciplinary action against the respondent.

The plea that the date of submission of the report by Technical

Court of Inquiry should be treated as the date from which period

of limitation shall commence has no substance. It is relevant to

notice that no definite conclusion about the correct details and the

persons responsible for the irregularities was mentioned in the

report of Technical Court of Inquiry. On the facts and in the

circumstances of the case, this Court is of the view that the High

16

Court wrongly concluded that the period of limitation expired on

4-3-1996."

20. Similarly, in paragraphs 16 and 19 of the decision in J.S. Sekhon, it

was held as follows -

"16. According to the counsel appearing for the appellant, when

the vigilance check report was submitted, Commander Works

Engineer who is the person aggrieved came to know that there was

a commission of an offence and therefore period of limitation as

envisaged under Section 122 of the Act would commence from

that date and when limitation is computed from the said date,

convening of the General Court Martial on 9-3-1998 was barred

by time, as it was beyond the period of three years as

contemplated under Section 122 of the Army Act.

19. In our considered opinion, the expression "person aggrieved

by the offence" is irrelevant in the facts and circumstances of the

present case and what is relevant is the "knowledge of the

authority competent to initiate action". The aforesaid acts were

committed against the Government and not a natural person. In the

facts of the present case no single person can be said to be

aggrieved person individually due to the act of defrauding the

Army. What is applicable to the facts of the case is the expression

when it comes to the knowledge of the competent authority to

initiate action."

21. In both the cases, the authority competent to initiate action against the

delinquent officer had passed the direction for taking action against the

delinquent officer on the same day it came to know about the commission of

the offence and the identity of the offender. Hence, in both cases, at some

places, the date of knowledge and date of the direction to initiate action

against the delinquent officer are used interchangeably and that is the reason

17

for the Tribunal to misinterpret the decision to mean that the period of

limitation would commence from the date of direction to initiate action

against the delinquent officer.

22. The Tribunal is also incorrect in observing that on May 7, 2007,

GOC-in-C, CC had formed only a tentative opinion about the appellant

because on that date he made the recommendation to the Integrated HQ for

investigation into the act of omission/commission in respect of Major

General S.P. Sinha and any other higher authority, including the appellant. It

is noted above that the recommendation of the GOC-in-C, CC to the

Integrated HQ was only in regard to Major General S.P. Sinha. So far as the

culpability of the appellant is concerned, he had already formed the opinion

on the basis of the report of the Court of Inquiry and the recommendation of

the GOC, MB Area. Moreover, when the Integrated HQ vide its letter of

February 19, 2008 pointed out that the appellant was indicted by the Court

of Inquiry ordered by him and in his case it was for him to "append

directions", there was no further material before the GOC-in-C, CC in

connection with the appellant. The order that the GOC-in-C, CC passed on

May 12, 2008 for taking disciplinary action against the appellant reads as

follows: -

"1. I have perused the proceedings of the Court of Inquiry held to

investigate the allegations of various irregularities in Central

18

Ordnance Depot, Chheoki vide Headquarters Central Command,

convening order Number 174091/57/C/A(PC), dated 09

December 06 and generally agree with the recommendations of

the General Officer Commanding, Madhya Bharat Area.

2. The Court of Inquiry proceedings reveal that there is cogent

and adequate evidence on record to establish various acts of

omission/commissions on part of certain officers of Central

Ordnance Depot, Chheoki as mentioned in the succeeding

paragraphs.

IC-42501F Colonel Rajvir Singh

4. The culpability of IC-42501F Colonel Rajvir Singh,

Officiating Commandant, Central Ordnance Depot Chheoki, is

established for causing wrongful loss to the Government to the

tune of Rs. 60.18 Lakhs (Rupees Sixty Lakh eighteen thousand

only) in the process of procurement of stores through local

purchase in the year 2005-06 and 2006-07, by committing the

following illegalities:-

(a) xxx

(b) xxx

(c) xxx

5. xxx

6. xxx

7. xxx

8. xxx

9. xxx

10. xxx

11. xxx

12. xxx

13. to 16. xxxxxxx

17. Apropos above, I direct that disciplinary action against the

above mentioned officers be initiated for the misdemeanors as

mentioned against each of them in Para 4 to 16 above."

23. It is, thus, to be seen that the order dated May 12, 2008 is almost in

identical words as the one passed on May 7, 2007. There is, therefore, no

19

escape from the fact that the GOC-in-C, CC was in knowledge of the

offence and the identity of the appellant as one of the alleged offenders on

May 7, 2007. Reckoning from that date, the order passed by the GOC, MB

Area, to convene the General Court Martial on August 23/26, 2010 is clearly

beyond the period of three years and hence, barred in terms of section 122.

24. One feels sorry to see a trial on such serious charges being aborted on

grounds of limitation but that is the mandate of the law. It is seen above that

GOC-in-C, CC had come to know about the offence and the offender being

the appellant on May 7, 2007. It took one year from that date for him to pass

the order for initiating disciplinary action against him on May 12, 2008.

There were still two years in hand, which is no little time but that too was

spent in having more than one rounds of hearing of the charges in terms of

rule 22 with the result that by the time the order came to be passed to

convene General Court Martial, more than three years had lapsed from the

date of the knowledge of the competent authority.

25. Before concluding, we may also note that other officers who were

allegedly involved in irregular purchases for the Central Ordnance Depot,

Chheoki, also seem to have got away with very light, if at all, any

punishment. Major General S.P. Sinha was subjected to an administrative

action in which an order was passed on August 6, 2010 expressing severe

20

displeasure (non-recordable) against him. Lt. Col. Neeraj Gaur was finally

acquitted by the General Court Martial. Lt. Col. Aloke Ghose was given

severe displeasure (non-recordable) after the Commanding Officer found

charges against him not proved. Major (now Lt. Col.) M.K. Bawa was

similarly given severe displeasure (non-recordable) after the Commanding

Officer found charges against him not proved. Against Lt. Col. Uma

Shankar no further action was taken after charges against him were not

proved in SoE.

26. In light of the discussions made above, the appeal must succeed. The

judgment and order passed by the Tribunal is set aside and the direction by

the GOC, MB Area, for reassembly of the General Court Martial is quashed.

27. The appeal is allowed. There will be no order as to costs.

.............................................J

(AFTAB ALAM)

..............................

...............J

(CHANDRAMAULI KR. PRASAD)

New Delhi,

February 15, 2012