Shrikant Tripathi, Member (J):
1. Heard Mr.V.K.Sathyanathan for the applicant and Mr.K.M.Jamaludheen for the respondents and perused the record.
2. The applicant Lt.Col.G.S.Pillai (retired) No.16538 L filed the instant Original Application (Appeal) under Section 15 of the Armed Forces Tribunal Act for quashing the entire GCM proceedings held against him and also for setting aside the findings and sentence finally recorded by the Chief of the Army Staff vide his order dated 21st September 2011 (Annexure A10).
3. The applicant was tried by the General Court Martial (hereinafter referred to as the GCM) in respect of the following five charges; namely:-
(1) Under Section 69 of the Army Act, for committing a civil offence, that is to say, being a public servant, obtaining for himself a gratification other than legal remuneration as a reward for doing an official act, contrary to Section 7 of the Prevention of Corruption Act, 1988, in that he, at Suratgarh, during Mar 2007, while performing the duties of Administrative officer/Officer in charge Medical Store, 184, Military Hospital, obtained for himself Rs.7,000/- (Rupees seven thousand only) from Shri RR Dang, proprietor of M/s Vachan Medical Hall,, Suratgarh, a gratification as a reward for preparation of supply orders for supply of DGLP medicines by M/s Vachan Medical Hall, Suratgarh.
(2) Under Section 63 of the Army Act (Alternative to first charge), an act prejudicial to good order and military discipline, in that he, at Suratgarh, during Mar 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, 184 Military Hospital, improperly obtained a sum of Rs.7,000/- (Rupees seven thousand only) from Shri RR Dang, Proprietor of M/s.Vachan Medical Hall, Suratgarh, in contravention of para 346 of Regulations for the Army, Revised Edition, 1987.
(3) Under Section 69 of the Army Act for committing a civil offence, that is to say, being a public servant, obtaining for himself a gratification other than legal remuneration as a reward for doing an official act, contrary to Sec 7 of the Prevention of Corruption Act, 1988, in that he, at suratgarh, during Mar 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, 184 Military Hospital, attempted to obtain for himself a sum of Rs.23,000/- (Rs. Twenty three thousand)) from Shri Varun Dang, S/o. RR Dang, a gratification as a reward for preparation of supply orders for supply of DGLP medicines by M/s.Vachan Medical Hall, Suratgarh,.
(4) Under Section 63 of the Army Act (Alternative to third charge), an act prejudicial to good order and military discipline, in that he, at Suratgarh, during Mar 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, 184 Military Hospital, improperly attempted to obtain a sum of Rs.23,000/- (Rs. Twenty three thousand only) from Shri Varun Dang, S/o. RR Dang, in contravention of para 346 of Regulations for the Army, Revised Edition, 1987.
(5) Under Section 64(e) of the Army Act for attempting to obtain for himself a gratification as a motive for procuring an advantage for a person in the service, in that he, at Suratgarh, between Feb 2007 and Jul 2007, while performing the duties of Administrative Officer 184 Military Hospital, attempted to obtain for himself Rs.50,000/- (Rs.Fifty thousand only) from No.482951 Civ Barber Shankar Lal of 184 Military Hospital, a gratification as a motive for allowing him to continue in service.?
4. The applicant denied the aforesaid charges and pleaded not guilty.
5. During the GCM, as many as 13 Prosecution Witnesses, 12 Defence Witnesses and one Court Witness were examined. Apart from the oral statement of the aforesaid witnesses, 74 exhibits (Exts.1 to 74) and 02 Material Exhibits (Exts.ME1 and ME2) were also produced. The applicant had requested for providing him a Legally Qualified Defending Officer, but was not provided.
6. The GCM, after considering the entire materials on record found that the charge Nos.1, 4 and 5 were not proved beyond all reasonable doubts against the applicant, so, he was acquitted of all the said three charges by the GCM. The applicant was, however, found guilty of the charges Nos.2 and 3. The GCM sentenced the applicant to be cashiered and also sentenced him to suffer Rigorous Imprisonment for six months.
7. The applicant submitted the Pre Confirmation Petition dated 18th April, 2009 and supplementary Pre Confirmation Petitions dated 16th May 2009 and 5th November 2009 against the finding of the GCM which were rejected after due consideration and accordingly the finding and sentence recorded by the GCM were confirmed by the General Officer Commanding-in-Chief, South Western Command on 10th January 2010. The applicant thereafter moved Post Confirmation Petition dated 8th February 2010 to the Chief of the Army Staff under Section 164 (2) of the Army Act. The Chief of the Army Staff elaborately considered the entire materials on record chargewise and passed a well reasoned order dated 21st September 2001, a copy whereof is on record as Annexure A10. The applicant had not questioned the finding of the GCM on the charges Nos.1, 4 and 5 because the GCM had not found him guilty of these three charges. The applicant had virtually moved the petition under Section 164(2) of the Army Act against the finding of the GCM on the charges Nos.2 and 3. The Chief of the Army Staff did not agree with the finding of the GCM on the charges Nos.2 and 3 and accordingly held the applicant not guilty of these two charges. He, however, agreed with the finding of the GCM on charges Nos.1 and 5. But he disagreed with the finding on charge No.4 and found the applicant guilty of the said charge. The Chief of the Army Staff, taking into account the fact that the applicant had already undergone the sentence of imprisonment, quashed the sentence of dismissal and imposed the punishment of compulsory retirement against him.
8. Therefore, effect of the order of the Chief of Army Staff was that the applicant stood exonerated of the charges 1, 2 , 3 and 5. He was found guilty of the charge No.4 only.
9. The relevant finding of the Chief of the Army Staff on charge No.4 has been incorporated in para 9 and 10 of the order Annexure A10, which may be reproduced as follows:
œ9. Notwithstanding the above, it is relevant to note that para 346 of the Regulation for Army clearly mandates the officers to exercise utmost caution in dealing with contractors to ensure that they do not find themselves placed in such a position as may lay them open to the suspicion of being influenced, in the discharge of their duty by other than purely public considerations. The conduct of the petitioner in inviting PW 12 to meet him at the Officers' Mess much against the advice of his offg CO certainly goes against the spirit of RA Para 346. It is noted that Col C Bhattacharjee (DW 4) in his testimony has brought out that when the petitioner (then accused) informed him about the offer of bribe made by PW 12, he (DW 4) advised the petitioner to be careful and not to interact with the contractor so that there was no occasion for any suspicion. Despite such advice, may be due to exuberance, the petitioner (then accused) admittedly remained in touch with PW 12 and planned a trap on his own. The impropriety in transgressions of RA Para 346 being apparent, the defence advanced by the petitioner becomes insignificant. The conduct of the petitioner proved the fourth charge under AA Sec 63 laid in the alternative to the third charge. Accordingly the existing admissible evidence proves the fourth charge beyond reasonable doubt and he deserves to be found guilty of the same. Therefore, the finding of œNot Guilty?, by the GCM in respect of the fourth charge is substituted by that of 'Guilty'.
10. After having been convicted by the GCM on second and third charges, the third charge being under Army Act Section 69 contrary to Section 7 of the Prevention of Corruption Act, 1988, the petitioner was sentenced to cashiering and six months RI. In view of he substitution of the finding of 'Guilty' returned by the GCM in respect of the second and third charges with œNot Guilty? for lack of evidence, and the substitution of the finding of œNot Guilty? with regard to the fourth charge with œGuilty?, the petitioner now stands 'Guilty? of only the fourth charge under Army Act Section 63 which is for an act prejudicial to good order and military discipline. The sentence as it now stands after the substitutions of the findings of the second and third charge clearly turns out to be harsh and disproportionate since the culpability of the petitioner in respect of the act or indiscretion alleged in the fourth charge does not justify the punishment of cashiering. In view of the above and also having regard to the fact that the accused has already served the sentence of imprisonment and also the fact that GOC-in-C SWC has recommended commuting of the punishment of Cashiering to Dismissal and further having taken into consideration the nature and gravity of the proven offence and the interest of military discipline, I hereby order that the sentence awarded by the court be converted to that of compulsory retirement with effect from the date of original sentence. The request of the petitioner for quashing the GCM proceedings and for his reinstatement in service is rejected being devoid of merit.?
10. But the facts which were taken into account for framing charge No.4 were altogether different from the facts taken into account by the Chief of the Army Staff in recording the finding of guilt on charge No.4. In fact charge No.4 was an alternative charge of the charge No.3. The charge Nos.3 and 4 framed by the GCM are reproduced as follows:
(3) Under Section 69 of the Army Act for committing a civil offence, that is to say, being a public servant, obtaining for himself a gratification other than legal remuneration as a reward for doing an official act, contrary to Sec 7 of the Prevention of Corruption Act, 1988, in that he, at suratgarh, during Mar 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, 184 Military Hospital, attempted to obtain for himself a sum of Rs.23,000/- (Rs. Twenty three thousand)) from Shri Varun Dang, S/o. RR Dang, a gratification as a reward for preparation of supply orders for supply of DGLP medicines by M/s.Vachan Medical Hall, Suratgarh,.
(4) Under Section 63 of the Army Act (Alternative to third charge), an act prejudicial to good order and military discipline, in that he, at Suratgarh, during Mar 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, 184 Military Hospital, improperly attempted to obtain a sum of Rs.23,000/- (Rs. Twenty three thousand only) from Shri Varun Dang, S/o. RR Dang, in contravention of para 346 of Regulations for the Army, Revised Edition, 1987.
11. According to the aforesaid charge No.4 framed by the GCM, the applicant was alleged to have acted prejudicial to good order and military discipline because he had, during March 2007, while performing the duties of Administrative Officer/Officer in charge Medical Store, improperly attempted to obtain a sum of Rs.23000/- from Shri Varun Dang S/o.Shri R.R.Dang, in contravention of para 346 of the Regulations for the Army, Revised Edition, 1987. So, the finding on charge No.4 was dependant on the finding with regard to charge No.3. When the Chief of the Army Staff himself found that the charge No.3 was not proved beyond all reasonable doubts against the applicant, we fail to understand as to how the applicant could be held guilty of the Charge No.4. But it appears that the Chief of the Army Staff travelled beyond the scope of Charge No.4 as framed by the GCM and took into account different facts and events not disclosed in charge No.4, as the basis for holding the applicant guilty of charge No.4. According to the Chief of the Army Staff, the conduct of the petitioner inviting PW 12 to meet him at the Officers' Mess much against the advice of his Officiating Commanding Officer was certainly against the spirit of Regulation 346 of the Regulations for the Army. The Chief of the Army Staff further found that Col.C.Bhattacharjee (DW 4) in his testimony had brought out that when the petitioner (the accused) informed him about the offer of bribe made by PW 12, he (DW 4) advised the petitioner to be careful and not to interact with the Contractor so that there was no occasion for any suspicion. He next concluded that despite such advice, may be due to exuberance, the petitioner (accused) admittedly remained in touch with PW 12 and planned a trap on his own. He further observed that the impropriety in transgression of Regulation 346 of the Army Regulations being apparent, the defence advanced by the petitioner (accused) becomes insignificant. Accordingly, the Chief of the Army found the 4th charge proved.
12. In our view, whatever facts had been taken into consideration by the Chief of the Army Staff for holding that the charge No.4 was proved beyond all reasonable doubts against the applicant, were altogether different from the facts, which had been made as the basis by the GCM to frame the charge No.4. It was alleged by the charge No.4 that the applicant had violated Regulation 346 of the Regulations for the Army, Revised Edition, 1987 by improperly attempting to obtain a sum of Rs.23000/- from Mr.Varun Dang. The Chief of the Army Staff nowhere found the applicant guilty of such allegations, so, holding the applicant guilty of violating the aforesaid Regulation 346 of the Regulations for the Army on altogether different facts was beyond the jurisdiction of the Chief of the Army Staff, because for those allegations the applicant was neither charged and tried nor was provided any opportunity to defend himself including the opportunity to adduce evidence in defence. In this view of the matter, the finding of the Chief of the Army Staff with regard to the charge No.4 cannot be upheld and is liable to be quashed.
13. In our view, according to the facts and circumstances of the case including the entire materials collected during the GCM, the charge No.4 as framed by the GCM was not proved in any way against the applicant.
14. We, therefore, hold that none of the charges leveled against the applicant was proved beyond all reasonable doubts against him, so he is held 'not guilty' of such charges and is entitled to be acquitted, and in consequence thereof, he is entitled to be reinstated in service with full pay, allowances and other benefits including promotion etc. In case he has already retired, only notional benefit in the form of arrears of full pay, allowances and other benefits including retiral benefits and promotional benefits should be extended to him.
15. The Original Application (Appeal) is allowed. The order dated 21st September 2011 (Annexure A10) passed by the Chief of the Army Staff with regard to charge No.4 is quashed. His finding with regard to other charges stands confirmed. Consequently, the applicant Lt.Col G.S.Pillai (Retd), No. NTR 16538 L is acquitted of all the charges being not guilty. All the sentences passed against him including the sentence of compulsory retirement are also quashed. The respondents are directed to reinstate the applicant in service in the rank of Lt.Col with effect from the date he ceased to hold the office due to implementation of the order of the compulsory retirement and allow him to serve till the date of his superannuation in normal course with the full pay, allowances and other service benefits including the benefit of promotion, if any, as per the rules, as if he had been in service continuously without the compulsory retirement. If the applicant has already retired on superannuation, he will be extended all the aforesaid benefits notionally. The respondents are further directed to pay the entire arrears to the applicant within 04 months failing which the unpaid amount will carry a simple interest at the rate of 8 % per annum.
16. There will be no order as to costs.
17. Inform to the parties.
sd/-
VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A)
sd/-
JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
18. The counsel for the respondents submitted that the respondents may be granted leave to appeal to the Supreme Court. In our view, no substantial question of law of general public importance is involved in the decision, therefore, the leave prayed for is refused.