U.O.I. and Others vs Major P.B. Pandurangi <BR> Major P.B. Pandurangi Vs U.O.I. and Others

Dipak Misra, J.

In these two appeals preferred under Clause 10 of the Letters Patent the subject-matter of assail is the order passed by the learned Single Judge in W.P. No.4997/98. L.P.A. No.331/99 has been filed by the employer, namely, the Union of India, Chief of the Army Staff and the General Officer (Commanding) being dissatisfied with the order as far as it relates to quashment of trial in respect of charges No. l to 5 contained in Annexure-P/ 5 and non-affirmation of the finding of the General Court Martial on the ground of limitation and L.P.A. No. 416/99 has been preferred by the employee questioning the non-interference by the learned Single Judge in respect of the trial as regards charge No. 6 framed against him. Keeping in view the aforesaid, both the appeals were heard analogously and are disposed of by this common order. As the factual matrix is common in both the cases there shall be adumbration in that regard in a singular spectrum.

The facts as are discernible are that respondent who was the writ petitioner was commissioned in the Army in the Corps of Engineers as a regular Commissioned Officer on 13.12.1980 and was posted as Garrison Engineer (East) Jabalpur in February, 1992. After taking over charge of the aforesaid post he was handed over many ongoing works which included work of replacement of old copper conductor (wire) by aluminium conductor in the area of Central Ordnance Depot, Jabalpur. The dismantled copper was to become the property of the contractor on payment of cost indicated in the works contract. After the work was completed a complaint was made by one R.M. Sharma, and on the basis of the said complaint a staff court of enquiry was ordered by the General Officer Commanding on 02.11.1994. It was putforth in the petition that a unit run canteen Stores Department was under the direct supervision of Assistant Garrison Engineer (Electrical/Mechanical) as canteen officer. One Sepoy, Suresh Kumar was incharge with respect to stores and documents. There was no complaint from any quarter when the canteen was run under the supervision of the petitioner but after he left the place of posting certain irregularities were pointed out as a consequence of which a court of enquiry was ordered by the Station Headquarters Jabalpur without scrutinising the veracity and acceptability of the allegations.

It was contended in the writ petition that although there was no material on record against the petitioner as dismantled copper was issued correctly to the contractor, ignoring the said spectrum the respondent No.3 issued instructions for assembly of the general Court Martial fixing the date to 22.10.1997. It was urged that the holding of General Court Martial was barred by time as the authorities had obtained knowledge about the allegations during May to October, 1994. Being aggrieved by and dissatisfied with the aforesaid action of the authorities the petitioner preferred W.P. No.4243/97 in which a preliminary objection was raised by the authorities that the petition was a premature one and on the basis of the said objection the writ petition was dismissed on 01.07.1998 with the liberty that the petitioner could raise the issue of limitation before the Court Martial. After dismissal of the petition G.O.C., Jabalpur issued an order on 30.07.1998 for assembly of G.C.M. on 12.08.1998 for the trial of the petitioner on six charges. The learned Single judge has reproduced the charges in para five of his order. It is perceivable that before the G.O.C. the petitioner raised the plea of limitation to be taken up and decided as a preliminary issue and the said prayer was acceded to and accordingly the petitioner, in support of his plea, referred to Army Rule 53 and was able to convince the Court Martial. The Court Martial allowed the plea of limitation and decided to adjourn the proceeding till further orders. As set forth, the proceeding was forwarded to the General Officer Commanding for confirmation under Army Rule 53(3) who did not confirm the said finding and passed an order for re-assembly of the Court Martial on 22.10.1998. The said non-confirmation and consequential direction for reassembly of the Court martial were the subject-matter of assail in the writ petition.

The present appellants who were respondents before the learned Single Judge filed a return contending, inter alia, that Section 122 of the Army Act bars trial by Court Martial of any person subject to the provisions of the said Act for any offence after expiry of three years which is to be counted from the date not only when the offence was committed but also from the date the identity of offender had become known to the person aggrieved by the offence or to the authority who was competent to initiate action. It was highlighted by the respondents that in respect of the first five charges, the period during which the offences were committed was February, 1992 to July, 1994 and the Court of Enquiry was convened by order dated 30.01.1995 and when the finding of the Court of Enquiry was received then only direction was issued on 24.10.1995 and hence, the authorities had acquired the knowledge with regard to identity of the offender from the said date and, therefore, the concept of limitation is not attracted. With regard to sixth charge it was put forth in the return that the period of commission of offence relating to the charge was February, 1992 to July, 1994 and the Court of Enquiry was convened by order dated 29.09.1994. On receipt of the finding direction was issued on 23.05.1995 and, therefore, it was within the period of three years from the date of knowledge.

Before the learned Single Judge it was urged by the petitioner that the commission of offence as well as the identity of the offender was known to the competent authority to initiate action on 07.09.1994 and 14.09.1994 and, therefore, the limitation was to commence from those dates and if the said dates are reckoned the proceeding was barred by limitation.

It is relevant to state that regard to the Charges No. l to 5. emphasis was laid before the learned Single Judge on Annexures-P/11 and P/12 annexed to the writ petition to highlight that the identity of the petitioner was well known as there was allegation that he had allowed excess quantity and caused loss of Rs. 9.68 lacs, as is perceivable from the document brought on record, and, therefore, the contention that the enquiry stood established only after receipt of the report of the Court of Enquiry was unacceptable. The said submission was further incremented before the learned Single Judge putting forth the stance that the Court of inquiry was not ordered to identify the offender and, therefore, the plea of limitation was to be accepted and the trial should be treated to be barred by time. The learned counsel for the respondents, per contra, proponed before the learned Single Judge that the investigation report was informal in nature as it was carried out through a departmental channel to assess the veracity of the complaint to find out if there was any prima facie ground to refer the matter for formal investigation to the competent authority and that having been done the relevant date has to be treated to be 24-10-1995. The learned Single Judge referred to Section 122 of the Army Act and Rule 53 and expressed the view that where it is satisfactorily demonstrated that the trial has commenced after a period of three years from the commission of the offence the burden would be on the Prosecutor to show that the time for trial could be extended taking note of the fact relating to knowledge about the commission of offence and the identity of the offender. Thereafter the learned Single Judge addressed himself with regard to the knowledge as well as to the identity of the offender and held that where allegations constituting offence prima facie make out the identity of the individual offender clear any further exercise undertaken in the nature of Court of Enquiry would not postpone the date of the commencement of the period of limitation, as in such a situation, offence and offender become known to the competent authority to initiate appropriate action. Being of this view the learned Single Judge expressed the opinion that as far as Charge Nos. 1 to 5 are concerned, it was barred by time and as far as Charge No. 6 was concerned, keeping in view the nature of allegations and the requirement of ascertaining and pin-pointing the responsibility knowledge was acquired by the competent authority only upon receipt of the report of the Court of Enquiry.

Assailing the aforesaid order it is submitted by Mrs. Indira Nair, learned Senior Counsel for the appellants in the appeal preferred by the employer that the finding recorded by the learned Single Judge to the effect that the trial in respect of Charges No. 1 to 5 was barred by limitation, is illegal, unsound and unjustified, as the competent authority after receipt of the report on 24.10.1995 got the G.C.M. assembled on 12.08.1998 and, therefore, it was within the period of limitation. It is further urged by her that the learned Single Judge did not appreciate the submission that the Court of Enquiry assembled as a fact finding body and the opinion was given on 18.10.1995 on the basis of preliminary technical scrutiny, as both the facets, namely, identity of the offender and the specific offence lodged against him were to be brought within the knowledge of the competent authority, namely, the General Officer Commanding. The learned Senior Counsel has referred to Army Rules to pyramid the submission that once main scrutiny was technical in nature emphasis on the same would have no consequence or impact for taking disciplinary action under the Army Act, 1950 as it cannot be given the status of investigation by the General Officer Commanding. It is submitted by Mrs. Nair that there was no material which clearly showed financial irregularity committed by the respondent-writ petitioner and his involvement, as the report shows, was vague and hence, an enquiry was requisite which was done and the date of submission of report became the starting point of limitation.

Mr. K.C. Ghildiyal, learned counsel for the respondent, per contra, submitted that the learned Single Judge has appreciated the facts in proper perspective and has correctly arrived at the conclusion that the trial in respect of charge Nos. 1 to 5 were barred by limitation and holding of Court Enquiry could not save the same and the spacious plea taken by the appellants that it is technical in nature and to some extent vague does not deserve acceptance. It is canvassed by him that the concept of limitation has to be construed strictly in a matter of this nature and when the learned Single Judge has scrutinised the documents in proper perspective and recorded a categorical finding which is supportable from the material brought on record there is no reason to interfere with the same in the intra court appeal preferred by the employer.

In support of the appeal preferred by the employee Mr. Ghildiyal has submitted that the learned single Judge has erroneously applied the law of limitation to the trial relating to sixth charge and, therefore, the same deserves to be rectified and corrected in exercise of jurisdiction of letters patent.

To appreciate the realised submissions at the Bar it is condign to reproduce Section 122 of the Army Act, 1950 (for brevity ''the Act''). It reads as under:

Period of limitation for trial. - (1) Except as provided by sub-section (2), no trial by court-material 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

(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 offence 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.

On a scanning of the aforesaid provision it is clear as day that no army personnel shall be tried after expiry of three years and the period of commencement as engrafted in the provision has to be given due weightage. The date of knowledge with regard to commission and identity of the offender have been given immense significance not to allow an army personnel who is required to face court martial gets scot free because of expiration of the period. The said provision has also a definite purpose. It has been said time and again that no one should be allowed to remain under a sword of Democles. In this context we may refer with profit to Army Rule 22. The said Rule eads as under:

Hearing of charges - (1) Every charge against a person subject to the Act other than an officer shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion, he is satisfied that the charge ought not to be proceeded with.

(3) At the conclusion of hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall without unnecessary delay -

(a) dispose of the case summarily under Sec.80 in accordance with the manner and form in Appendix III; or

(b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purposes of having the evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial:

Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless either-

(a) the offence is one which he can try by a summary court-martial without any reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without deteriment to discipline.

In this regard we may also profitably refer to Army Rule 53 which is relevant for our purpose:

Plea in bar:- (1) The accused, at the time of his general plea of "Guilty" nor "Not Guilty" to a charge for an offence, may offer a plea in bar of trial on the ground that-

(a) he has been previously convicted or acquitted of the offence by a competent criminal court or by a court-martial, or has been dealt with summarily under Sees. 80, 83, 84 and 85 as the case may be, for the offence, or that a charge in respect of the offence has been dismissed as provided in sub-rule (2) of rule 22; or

(b) the offence has been pardoned or condoned by competent military authority; or

(c) the time which has elapsed between the commission of the offence and the commencement of the trial is more than three years, and the limit of time for trial is not extended u/s 122.

(2) If he offers such plea in bar, the Court shall record it as well as his general plea, and if it considers that any fact or facts stated by him are sufficient to support the plea in bar, it shall receive any evidence offered, and hear any address made by or on behalf of the accused and the prosecutor in reference to the plea.

(3) If the Court finds that the plea in bar is proved it shall record its finding, and notify it to the confirming authority, and shall either adjourn, or if there is any other charge against the accused, whether in the same or in a different charge-sheet, which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.

(4) If the finding that the plea in bar is proved is not confirmed, the Court may be reassembled by the confirming authority, and proceed as if the plea had been found not proved.

(5) If the Court finds that the plea in bar is not proved, it shall proceed with the trial, and the said finding shall be subject to confirmation like any other finding of the Court.

The aforesaid Rules are to be read conjointly with Section 122. Between the commencement of offence and commencement of trial there cannot be a gap of more than three years but the same is subject to Section 122 of the Act. As has been indicated earlier Section 122 lays emphasis on date of knowledge with regard to offence and identity of offender. Submission of Mrs. Indira Nair, learned senior counsel for the appellant in LPA filed by the Union of India and others is that when there is a doubt with regard to the identity of the offender an inquiry is necessitous to proceed further to make up mind with regard to the prima facie case against the offender. The thrust of the matter is whether there are material with the authority to identify the offender and there was prima facie material to proceed against him. The learned single Judge has placed reliance on Annexure P-11. We have carefully perused the said document. The relevant part of the same reads as under:

On 14 Jul 92 Maj PB Pandurangi, GE (East) Jabalpur has asked COD Jabalpur to allow contractor to take away copper conductor. GE (East) Jabalpur has asked contractor vide his No. 8556/437/E8 dt. 27 Sep. 93 that you have taken away copper conductor more than deviation limit of contract and recovery is proposed at market rate. Till date no action has been taken by anybody to recover the huge amount in many lakhs already over paid as intended benefit. GE has intimated vide his no.8556/452/E8 dt. 02 Jul 94 to CWE that complete change in Qty were being discussed with CWE during visits to site & also during the meetings (Two such original letters are available in CWE Jabalpur file). Work has already been completed. For changed Qty, GE has forwarded complete details to CWE vide his No.8556/450/Es dt. 07 Jun 94. No specific/detailed instructions has been issued to GE. Atleast CWE/ASW on date would have asked GE to take care of Govt, interest.

The aforesaid portion is quoted from the column which relates to investigation report. The opinion of the investigator in this regard reads as under:

(1) Acceptance of contract is faulty as more than 30% above Admn. approval amount.

(2) There is no amendment duly signed by contractor for uniform 21% reduction in contract Qty.

(3) For 21% reduced Qty of contract, there should be 21% reduction in Admn. approval amount. No revised admn approval have been obtained.

(4) GE (East) Jabalpur has allowed excess Qty

= 117.10 (30+30x5%-31.5 x 21%)

= 117.10-24.88

= 92.22 Qtls @ Rs.25.00/Qtls

Market value of excess material

= 92.22 x stated market rate

= 92.22 x 13000 + Rs. 11.98 lakhs

Loss to state

= Rs.11.98 lakhs - 92.22 x 2500

= Rs.9.68 lakhs.

Mad CWE Jabalpur took time action and ASW controlled alongwith visit to GE, this could have been avoid.

Intended/unintended benefit for changed Qty not yet technically checked and cleared by ASW to GE.

Due to extra loss of Rs.9.68 lakhs and other changes under scrutiny with ASW, all other tenderers will be lowest and be confirmed by CWE Jabalpur,

On a perusal of the same there can be no scintilla of doubt that identity was clear. We have said so as there is reference by the investigator to the Garison Engineer (East) and it did not require any further investigation to find out who is the Garison Engineer (East) at the relevant time. In fact, his name finds mention. Thus the date of knowledge and date of identification are absolutely patent. Submission of Mrs. Indira Nair is that there was necessity to pin point the identity and to find out a prima facie case to take disciplinary action against the officer in question. The aforesaid submission does not commend acceptance inasmuch as the designation of the officer does find mention in the investigation report and the investigator''s opinion is also quite clear. He had already arrived at the prima facie conclusion. Mrs. Nair has commended us to the order passed by the Patna High Court in Criminal Writ Jurisdiction Case No. 510/98. In the aforesaid case the Court after referring to Section 122 of the Act has held as under:

In cases, however, where there may be doubt as to the identity of the offender, it is but appropriate that unless prima facie case is found against the person concerned, the decision to take disciplinary action against him cannot be taken. As noted above, Rule 37 of the Army Rules casts a duty upon the competent authority to satisfy himself that a proper case is made out for trial by the court martial. It would be tautology to say that there cannot be a trial without the offender in the dock. Thus unless identity of the offender is established, prima facie, he cannot be subjected to court-martial....

We have reproduced the same only to appreciate that there has to be a delinquent or offender to be tried. In addition, there must be prima facie satisfaction. In view of the aforesaid enunciation of law, it is submitted by Mrs. Nair, learned senior Counsel for the appellant in LPA No. 331/99 that there had to be a further inquiry by the Court of inquiry to collect further material. Though the said submission looks at a glance quite attractive but on a deeper probe does not sound to be correct as we are inclined to think such an inquiry was not imperative and necessitous in the present case to get the benefit of extension of the period as provided u/s 122 of the Act since both the offender and offence are in existence in the document by which opinion has been framed. Hence we are disposed to concur with the view taken by the learned single Judge and accordingly we do not find any merit in the LPA preferred by the employer.

Presently we shall deal with the appeal preferred by the employee. The learned single Judge has referred to Annexure P-7, a letter dated 07.09.1994 written by Maj. Jagbir Singh. In paragraphs 2 and 3 of the said letter it has been stated as under:

In view of the remarks second board was ordered to ascertain the irregularities in cash book and stock register and other documents. The Board submitted proceedings showing the descripency of Rs. 1.00,757.99/ (Rs. One lakh seven hundred fifty seven and paiss ninety nine only) approximately. The details of the case are attached as Appendix ''A''.

It is submitted that in order to ascertain the irregularities and to pin point the responsibility court of inquiry may please be ordered.

On a perusal of the aforesaid letter it is clear as noon day that there is suggestion to ascertain the irregularity and to pin point the responsibility. Mr. Ghildiyal, learned counsel for the appellant employee has submitted that the same was not necessary. He has laboured hard to impress upon us that the sixth charge is similar to charges one to five and, therefore, holding the court of inquiry to get the benefit of Section 122 was unwarranted. We are afraid, we cannot accede to the aforesaid submission of the learned counsel for the appellant inasmuch as there is substantial distinction between Annx.P-11 and Annex.P-7. Annexure P-11 makes it luminescent about the knowledge and identification but whereas Annexure P-7 clearly suggests about making of an inquiry for identification and pin pointing of the responsibility Hence, we come to the conclusion that the trial qua charge No. 6 is not barred by limitation as the same has commenced within three years from the date of acquisition of receipt of the report.

Ex consequential, both the appeals being devoid of merit stand dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.