J.S.
Sekhon Vs. Union Of India & Ors. [2010] Insc 591 (10 August 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 6274 OF 2003 J.S. SEKHON ...Appellant
Versus UNION OF INDIA ...Respondent
Dr.
Mukundakam Sharma, J.
1.
This Civil Appeal is directed against the judgment of the High
Court of Jammu & Kashmir dated 2.4.2002. By the aforesaid order, the
Division Bench of the High Court upheld the order of the learned Single Judge
of the High Court of Jammu & Kashmir, dismissing the Writ Petition and
upholding the order of conviction of the appellant by the General Court Martial
(GCM) for defrauding the Army and sentence of one year of rigorous imprisonment
and also of cashiering him from service.
2.
The appellant was a Commissioned Officer in the Indian Army
working at the relevant time at Leh. He was working as a Garrison Engineer, 865
EWS, where he invited offers from private parties to supply the garrison with
Diesel Generator (DG) sets and to make other repairs and replacement.
3.
On 29.11.1994 he entered into an agreement with M/s Surjit Singh
Sokhi to repair two DG Sets at FRL Powerhouse at Leh for Rs. 2.29 lakh and to
repair LT cables at Nimmuy area Leh for Rs. 2.49 lakhs. On 30.11.1994 he
entered into an agreement with M/s Mohd Sultan and Bros. to replace LT cables
and providing an ACR conductor and to replace parts of two DG Sets for Rs. 2.48
lakhs. Authorities noticed irregularities in these purchases and on 6.12.1994
investigated the contract agreements. A vigilance check was performed by the
Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the appellant for
his comments on the report which were submitted on 6.2.1995. Discrepancies
detected in comparing the report and the comments of the appellant prompted the
Technical Board of Officers to issue a report on 9.4.1995, which led a court of
enquiry being convened on 20.9.1995 and then to a GCM being convened on
9.3.1998. The appellant was then served a charge sheet on 9.3.1998 that was
then 2 withdrawn due to errors and thereafter he was re-served with a fresh
charge sheet on 11.3.1998.
4.
Seven charges were framed against the appellant two of which could
not be proved. All the charges revolved around the allegation of his defrauding
the Army for purchasing services to replace and repair items at exorbitant
rates which are much higher than what is permissible under the standard
scheduled rates.
5.
On 14.3.1998 the GCM commenced its proceedings and provided the
appellant the right to raise objections of being tried by any officer sitting
on the court in accordance with Section 130 of the Army Act, 1950 read with
Rule-44 of the Army Rules, 1954. He raised no objection at the time. However,
at a subsequent stage of the trial he objected to being tried by the Presiding
Officer of the Court. The objection was then considered and rejected. The court
convicted the appellant and sentenced him to one year rigorous imprisonment
besides cashiering.
6.
The appellant then challenged this conviction and sentence based
on several issues. The Single Judge of the High Court of Jammu & Kashmir at
Srinagar dismissed the Writ Petition holding the same to be without merit. The
Division Bench of the High Court in the writ appeal 3 filed before it similarly
held that there was no "procedural irregularity or illegality in the GCM
proceedings." That appeal was also dismissed.
7.
Being aggrieved by both the orders passed by the learned Single
Judge and the Division Bench of the High Court, a Special Leave Petition was
filed by the appellant. After leave was granted, the appeal was placed for
final hearing in which we heard the learned counsel appearing for the parties.
8.
The learned counsel appearing for the appellant mainly raised two
issues before us during the course of hearing. The first submission of the
learned counsel appearing for the appellant was that the convening of the
General Court Martial on 14.3.1998 was barred under the provisions of Section
122 of the Army Act. The second submission of the learned counsel for the appellant
was that the convening Officer of the General Court Martial in the case of the
appellant being the Commanding Officer of the appellant, there is violation of
the provision of paragraph 449(b) of the Army Regulation.
9.
The learned counsel appearing for the respondent, however, refuted
the aforesaid submissions while contending inter alia that neither the
convening of the General Court Martial was barred by time nor that the
convening officer of the Court Martial was the commanding officer of the 4
appellant. According to him therefore not only there was no violation of
Section 122 of the Army Act, but there was also no contravention of paragraph
449(b) of the Army Regulation.
10.
In the light of the aforesaid submissions of the counsel appearing
for the parties, we have perused the relevant provisions of the Army Act, 1950
(for short "the Act") and the Army Regulations as also various
documents and the decisions relied upon and on being fully acquainted thereof,
we propose to dispose of the present appeal by giving our reasons thereof. But
before doing that it would be appropriate to extract the relevant provisions of
Section 122 of the Army Act, and Paragraph 449(b) of the Army Regulations.
"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
(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.]"
449.
Action by Superior Officer **** **** **** **** 5 **** **** **** **** (b) When
the superior office has been the CO of the accused at any time between the date
on which cognizance of offence was taken against the accused and the date on
which the case is taken up for disposal, or an officer who has investigated the
case, he cannot exercise the powers detailed in sub-para (a) (ii) to (v)
inclusive"
11.
Section 122 of the Army Act provides the period of limitation for
trial. In the said section, it is provided that no trial by court martial of any
person shall be commenced after the expiration of a period of three years (a)
from 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 by the authority
competent to initiate action, whichever is earlier.
12.
On going through the records, we find that it is an admitted
position between the parties, that what is attracted in the present case is
clause (b) of sub-Section (1) of Section 122. The date of limitation for 6
holding a trial by court martial is a period of three years from any of the
three dates as stated above.
13.
Clause (b) is attracted and in that case the limitation of three
years period would commence from the date of the knowledge of the commission of
such offence by the person aggrieved by the offence or by the authority
competent to initiate action.
14.
Learned Counsel appearing for the appellant submitted before us
that of the two expressions i.e. "person aggrieved by the offence" or
"the authority competent to initiate action", what is attracted in
the present case is not the knowledge of the authority competent to initiate
action but the other expression appearing in the section namely the date of knowledge
of the person aggrieved of the commission of the offence.
15.
The facts disclosed before us reveal that on 6.12.1994, the higher
authority noticed some irregularity committed by the appellant and accordingly
made some observations on the contract agreement whereupon on 9.12.1994,
Commander Works Engineer directed a Vigilance Check in terms of which a
Vigilance Check was conducted and a report to that effect was submitted on
19.12.1994.
16.
It appears that on receipt of the aforesaid Vigilance Check
Report, Commanding Works Engineer forwarded the report to the appellant and
asked for his comments which were submitted by the appellant on 6.2.1995. As
there were some variations in the vigilance report and the comments furnished
by the appellant, a Technical Board of Officers was constituted on 29.3.1995
and the said technical board of officers submitted its report on 9.4.1995.
Thereafter on 20.4.1995, on examination of the report, a letter was written by
the Commanding Works Engineer to HQ 3 Infantry Division for constituting a
court of enquiry.
On
24.4.1995, a court of enquiry was convened and thereafter the court of enquiry
submitted its report on 11.10.1996.
17.
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.
18.
The aforesaid factual position as stated above would indicate that
although a vigilance check report was submitted on 19.12.1994, the Commanding
Works Engineer sought for comments from the appellant and on receipt of the
comments of the appellant some variations were found while comparing the
vigilance report and the comments of the appellant and therefore, a Technical
Board of Officers was required to be constituted which was accordingly
constituted on 29.3.1995. When the technical board of officers so constituted
submitted its report on 9.4.1995, it could be said that the fact of commission
of offence by the appellant came to be finally recorded, but even thereafter a
Court of Enquiry was convened so as to make an enquiry with regard to the
allegation against the appellant. The Report of the court of enquiry finally
proved and established that the appellant has committed an offence alleged
against him and therefore the knowledge, if any, regarding the commission of
the offence by the authority competent to convene the general court martial
could be said to be on 11.10.1996, when the aforesaid Court of Enquiry Report
was submitted or at the most it could be said that such knowledge was derived
by the authority competent to initiate action of convening the general court
martial on submission of the report by the technical board of officers which
was dated 9.4.1995. If the period of limitation is computed either from
9.4.1995 or 11.10.1996, the convening of the trial 9 by general court martial
on 9.3.1998 must be held to be within the period of limitation as prescribed
under Section 122 of the 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. In coming to the
aforesaid conclusion, we are fortified by a recent decision of this Court in
Union of India and Others 32....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 a
government organisation, it will be the date of knowledge of the authority
competent to initiate the action, which will determine the question of
limitation....
20.
The action contemplated by Section 122 must be the action it seeks
to limit - namely a trial. The power of investigation and trial or the power to
convene a court of inquiry is vested in officers in the chain of command and
not with staff officers. It is therefore clear from Section 122(1)(b) that the
expression "person aggrieved" necessarily means a natural person and
what would be relevant is the knowledge of the competent authority to convene a
general court martial against the appellant who in the present case is the
general officer commanding. His date of knowledge of the commission of offence
becomes material as he is the competent authority to convene a general court
martial against the appellant.
21.
Since, the authority competent to initiate action has derived his
knowledge about the commission of the offence on submission of the report of
the Court of Enquiry 11.10.1996 or at the most on submission of the report by
the technical board of officers on 9.4.1995 and the date of the convening of
the trial by general court martial is 9.3.1998, the trial is not barred by
limitation as sought to be submitted by the counsel appearing for the
appellant, and therefore, the submission of the counsel appearing for the appellant
fails and is rejected.
22.
Having held thus so far as the first issue is concerned, let us
now turn to the second issue, which was urged before us. We have very carefully
analysed the scope and applicability of paragraph 449(b) of the Army Regulation.
23.
On consideration of the records placed before us, we find that in
the present case, the General Court Martial, which was held against the
appellant was convened by the general officer commanding who was of the rank of
a Major General. The appellant was a lieutenant Col., whereas the commanding
officer was Col. R.K. Rana. The General officer commanding in the case of the
appellant was a Major General who is much higher in rank than the commanding
officer and therefore, there is no violation of paragraph 449(b) of the Army
Regulation.
24.
Learned counsel appearing for the appellant submitted before us
that here the convening officer of the General Court Martial was his commanding
officer and therefore there was violation of regulation 449(b). The said
allegation is found to be factually incorrect. Even otherwise, the appellant
was attached to 603 ASC Battalion, for the purpose of investigation and
progress of the disciplinary case, and therefore, commanding officer on 603 ASC
Battalion became his commanding officer. It could not be disputed by the
counsel appearing 12 for the appellant that the said commanding officer is the
one who has filed the charge sheet against the appellant and the appellant has
not objected that the commanding officer 603 ASC Battalion was the commanding
officer. That being the position, there is no violation at all of Paragraph
449(b) of the Army Regulation.
25.
Therefore, all the issues urged by the appellant are found to be
without any merit. Consequently, the appeal has no merit, and is dismissed, but
we leave the parties to bear their own costs.
......................................J. [Dr. Mukundakam Sharma]
.......................................J.
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