Rajvir Singh vs Secretary Min.Of Defence & Ors

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.

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:-

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.

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.

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