Brig L. I. Singh Ysm vs Union Of India on 17 December, 2019


Supreme Court of India

Brig L. I. Singh Ysm vs Union Of India on 17 December, 2019

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

                                                  Non-Reportable


           IN THE SUPREME COURT OF INDIA
            CIVIL APPELLATE JURISDICTION

        Civil Appeal Nos. 9223- 9224 of 2019


Brigadier L.I. Singh YSM                   .... Appellant(s)

                             Versus

Union of India & Ors.                   …. Respondent(s)


                      JUDGMENT

L. NAGESWARA RAO, J.

1. The refusal of the Armed Forces Tribunal, Principal

Bench, New Delhi (for short “the Tribunal”) to interfere

with the disciplinary action initiated against the

Appellant is the subject matter of these Appeals.

2. The Appellant was commissioned in the Jammu &

Kashmir Light Infantry, Indian Army on 17.12.1983. He

was the Commander of 164 Mountain Brigade from

01.12.2012 to 29.03.2012. Brigadier R.K. Jha took over

[1]
as the Commander of 164 Mountain Brigade on

30.03.2012. After taking over, Brigadier R.K. Jha was

informed that the property of the Flag Staff House was

not properly accounted for and certain items were

missing as they were taken away by the Appellant.

Brigadier R.K. Jha made inquiries with Major Amit Slathia

and Havildar Yongendra Bahadur Gurung. On being

satisfied that certain items were missing, Brigadier R.K.

Jha directed Colonel S.S. Sidhu, the then Deputy

Commander to undertake a physical check of the Flag

Staff House property. According to the inquiry

conducted by Major Siddharth Virmani and Havildar

Yogendra Bahadur Gurung. Two Heat Pillars, three

carpets and two flower pots were taken away by the

Appellant along with his luggage by being treated as

unserviceable.

3. When Brigadier R.K. Jha visited unit 4/1 GR along

with Major Ishani Maitra, Education Officer of 164

Mountain Brigade, he was informed by her that Mrs.

[2]
Nirmala Singh, wife of the Appellant had borrowed

money which was subsequently not returned. Having

learnt about the excess commission and omission by

the Appellant, the General Officer Commanding 17

Mountain Division directed a discrete investigation

against the Appellant. After an investigation, Brigadier

R.K. Jha found the following acts and omissions on the

part of the Appellant :

“(i) It was reported by the then Deputy

Commander, Colonel (Now Brigadier) S.S.

Sidhu that Mrs. Sidhu had got a call from Mrs.

L.I. Singh requesting for some money which as

per the Officer, was politely declined.

(ii) It was reported by Major Amit Slathia,

SC that he was under severe duress to obtain

money for the Appellant from Civil Hired

Transport contractors. As reported by the

Officer, since he could not withstand the

pressure and humiliation, he gave Rs.20,000/-

[3]
(Rupees twenty thousand only) out of his own

pocket to the Appellant, by withdrawing money

from an ATM at Pedong.

(iii) Major Akhil Mendhe, Second-in-

Command of 6 RAJ RIF who happened to be in

the Brigade Headquarters on a particular day

when Brigadier R.K. Jha was interacting with

the officers, informed Brigadier R.K. Jha that a

loan of Rs.1.00.000/- (Rupees one lakh only)

was arranged for Brigadier L.I. Singh, YSM from

his Unit Wet Canteen Contractor.

(iv) Colonel M. Ravi Shanker,

Commanding Officer 4/1 GR informed Brigadier

R.K. Jha that when the Appellant was the

Commander, a loan of Rs.2,00,000/- (Rupees

two lakhs only) was arranged from his Unit Wet

Canteen Contractor for the Appellant, which

was subsequently returned.

[4]

(v) Lieutenant Colonel V.S. Parmar, Admn

Comdt of Station Headquarters, Pedong

reported that the Appellant had taken some

favours from the vendors dealing with the

Station Headquarters, Pedong.”

4. Brigadier R.K. Jha reported accordingly to the

General Officer Commanding 17 Mountain Division who

in return reported to the GOC 33 Corps. Before ordering

an investigation, it was decided that a preliminary

investigation/ one man inquiry should be held. With a

view to find out the correctness of the allegations

against the Appellant, the General Officer Commanding

27 Mountain Division was asked to carry out the

preliminary investigation.

5. On the basis of the report submitted in the

preliminary investigation (One Man Inquiry) and the

verbal complaints made by officers and non-

commissioned officers to Brigadier R.K. Jha, a Court of

Inquiry was convened on 09.06.2012. The

[5]
terms of reference given to the Court of Inquiry are as

follows:

“(i) Borrowing of money from the wet

canteen contractors of units under his

command.

(ii) Pressurizing IC-59235K Maj. Amit

Slathia, SC, AA&QMG, Headquarters 164

Mountain Brigade to obtain Rs.45,000/- from

the Civil Hired Transport contractor for him

(Brigadier L.I. Singh, YSM).

(iii) Illegally taking away official property

of the Flag Staff House prior to relinquishing

his appointment.

(iv) Accepting items viz., Laptop worth

Rs.62,000/- and Cannon Camera worth

Rs.56,000/- from M/s. United Enterprises and

M/s. Narbada Enterprises respectively.

[6]

(v) Any other misdemeanour or financial

impropriety which may have been committed.”

6. The General Inquiry Commander 33 Corps recorded

a finding against the Appellant for the following acts and

omissions:

“(i) Borrowing Rs.2,00,000/- from the Unit

Canteen Contractor of 4/1 GR Sri Paramanand

Agarwal and his manager Sri Om Prakash

Agarwal through Col. Kapil Sood then CO 4/1

GR in Jan. 2011.

(ii) Borrowing Rs.1,00,000/- from the Unit

Canteen Contractor of 6 RAJ RIF Sri Shiv

Prakash Agarwal through Col. H.S. Baidwan,

SC, Commanding Officer 6 RAJ RIF in Dec.2011.

(iii) Borrowing Rs.35,000/- from Hav.

Rajendra Singh of 6 RAJPUT through his wife

Mrs. Nirmala Singh in Aug.2011.

[7]

(iv) Directing IC-59235K Maj. Amit

Slathia, SC, AA&QMG of Headquarters 164,

Mountain Brigade to obtain a gratification of

Rs.45,000/- from the Civil Hired Transport

Contractor for himself and thereafter accepting

Rs.20,000/- from Maj. Amit Slalthia, SC who

paid the same from his own pocket so as to

avoid his repeated demands.

(v) Misappropriating the following

property of the Government given him for his

own use at his Flag Staff House:-

    (aa) Heat Pillar                   -    02
    (ab) Carpet 6” x 4”                     -
    01
    (ac) Carpet 3” x 2”                     -
    02
    (ad) Crystal Flower Pot (Medium) -      01
    (ae) Crystal Flower Pot (Big)      -    01


(vi) Accepting illegal gratification in the

form of a Laptop (Dell Model No.552 (XPX 15 R)

[8]
worth Rs.62,000/- from M/s. United Station

Headquarters, Pedong and Headquarters 164

Mountain Brigade.

(vii) Accepting illegal gratification in the

form of Canon Digital Camera (SLR EoS 60 D)

and 4 GB card worth Rs.56,000/- from M/s.

Narbada Enterprises, a firm carrying out

business of supplying stores with Headquarters

164 Mountain Brigade.

(viii) Transferring Rs.97,211/- in three

transactions to his daughter then studying in

New Zealand through Mr. Ramesh Gurung

brother of No.5349475F Nk Dinesh Gurung of

3/ 4 GR so as to avoid any detection of transfer

of money from his account.

(ix) Issuing directions to IC-47865X

Lieutenant Colonel T.S. Kadian, SM to procure

items for Pedong Sainik Institute through M/s.

Narbada Enterprises only, thereby influencing
[9]
the entire tendering process and in turn

obtaining items at a high rate such as Sharp

Video Projection System at Rs.95,000/- though

the prevailing market rate and DGS&D rate are

Rs.40,000/- and Rs.26,500/- respectively, thus

causing wrongful loss to the State.

(x) Committing financial impropriety

leading to misappropriation of Regimental Fund

of Headquarters 164 Mountain Brigade by way

of directing IC-47865X Lieutenant Colonel T.S.

Kadian, SM to clear his personal expenditure

incurred in the Flag Staff House and during his

visit by making false handmade bills. Such a

practice was also in contravention to rules/

regulations on proper utilization of Regimental

Funds.”

7. A prima facie case was made against the Appellant

and he was attached to the Headquarters, 20 Mountain

Division in accordance with the provisions of Army

[10]
Instructions 30 of 1986. The Appellant filed O.A. No.85

of 2013 in the Armed Forces Tribunal, Principal Bench,

New Delhi challenging the order of attachment, which

was dismissed by the Tribunal at the admission stage.

Aggrieved by the said order of the Tribunal, the

Appellant filed a Writ Petition in the High Court of Delhi.

In the meanwhile, the disciplinary proceedings were

initiated against the Appellant by commencing hearing

of charge in terms of Rule 22 of the Army Rules, 1954

(for short “the Army Rules”) on the basis of the

tentative charge sheet. During the hearing of charge,

17 witnesses were examined and the Appellant cross-

examined two witnesses.

8. By an order dated 29.04.2013, the High Court

stayed further proceedings against the Appellant. The

Writ Petition was dismissed by an order dated

20.03.2015, giving liberty to the Appellant to pursue his

remedies under Section 30 and 31 of the Armed Forces

Tribunal Act, 2008. A Review Application filed by the

[11]
Appellant was allowed by the Tribunal on 27.01.2016

and the Original Application was admitted. The order by

which the Review Application was admitted by the

Tribunal was challenged by the Respondent- Union of

India in this Court, unsuccessfully. By an order dated

06.02.2019, O.A. No.85 of 2013 was finally disposed of

by directing the Respondent- Union of India to supply a

copy of the one man inquiry report to the Appellant and

to commence the disciplinary proceedings against the

Appellant. Applications filed by the Appellant for Review

and Leave to Appeal to this Court were dismissed by the

Tribunal. The judgment and the order by which

application for review was dismissed are assailed by the

Appellant in these Appeals.

9. Consequent upon the dismissal of O.A. No.85 of

2013 by the Tribunal, the Appellant reported to the

Headquarters, 21 Mountain Division on 17.01.2019. A

copy of the one man inquiry was handed over to the

Appellant and recording of summary evidence which

[12]
commenced on 26.03.2016 was in progress. In the

meanwhile, the Appellant retired from service on

30.04.2019. Thereafter, Section 123 of the Army Act

was invoked to continue the disciplinary proceedings

against the Appellant. As the interim order passed by

this Court on 06.02.2019 was operative, the disciplinary

proceedings could not proceed.

10. Before the Tribunal, the Appellant contended that

initiation of disciplinary proceedings against him was

vitiated by mala fide. He further contended that there

was infraction of Rule 180 of the Army Rules. The main

submission of the Appellant before the Tribunal was that

a copy of the one man inquiry report was not furnished.

As the one man inquiry report was the basis for

initiation of the Court of Inquiry proceedings, it was

contended that the Appellant was deprived of an

opportunity to defend himself effectively before the

Court of Inquiry. The Appellant further complained that

an opportunity as provided by Rule 180 of the Army

[13]
Rules was not extended to him during the course of the

inquiry proceedings. The Tribunal rejected his

submission of any mala fide made against the

Appellant. However, the Tribunal held that the

Appellant was wrongfully denied a copy of the one man

inquiry report during the inquiry proceedings. Insofar as

the complaint of an opportunity not being given to the

Appellant as per Rule 180 of the Army Rules, the

Tribunal observed that the Appellant was present

throughout the proceedings of the Court of Inquiry and

that he avoided the opportunity of cross-examining the

witnesses as well. The allegation of violation of Rule

180 made by the Appellant was not accepted by the

Tribunal. The Tribunal took note of the fact that the

disciplinary proceedings were stalled due to cases

pending in courts. While directing that the one man

inquiry report shall be handed over to the Appellant, the

Tribunal directed the Respondents to complete the

process of disciplinary proceedings.

[14]

11. Mr. Sudhanshu S. Pandey, learned counsel

appearing for the Appellant made a valiant effort to

convince us that the initiation of disciplinary

proceedings against the Appellant was due to

extraneous considerations. He submitted that the

records have been concocted to show compliance of the

procedure provided in Rule 180 during the Court of

Inquiry. According to him, there is a clear violation of

Rule 180 of the Army Rules as the Appellant was not

given sufficient opportunity to defend himself. He

submitted that the Appellant is being tormented with an

ulterior motive in spite of his retirement after a

meritorious record of service. He urged that the

entire disciplinary proceedings should be quashed as

the Appellant has been victimized on the basis of

certain frivolous complaints even after his retirement.

12. Mr. R. Balasubramanian, learned Senior Counsel

appearing for the Respondents produced the original

record of the Court of Inquiry. Mr. Balasubramanian

[15]
submitted that there is no truth in the allegation that

the records have been manipulated by the Respondents.

He submitted that the one man inquiry was only in the

nature of a preliminary investigation to verify the facts

before the Court of Inquiry was ordered against the

Appellant. He argued that there was no violation of the

Rule 180 of the Army Rules as held by the Tribunal. He

submitted that full opportunity was given to the

Appellant during the course of the proceedings before

the Court of Inquiry. He stoutly defended the judgment

of the Tribunal by commending for our consideration

non- interference with the judgment of the Tribunal.

13. In view of the order we propose to pass, it is not

required to take into consideration the submissions

made on behalf of the Appellant regarding the

allegation of mala fides. Admittedly, the one man

inquiry report was not furnished to the Appellant. There

is no dispute that the basis for the convening of the

Court of Inquiry is the one man inquiry report. The

[16]
Tribunal directed the Respondents to provide a copy of

the one man inquiry report to the Appellant before

continuing with the disciplinary proceedings against the

Appellant. Though, we are not disturbing the findings of

the Tribunal regarding the compliance of Rule 180 of the

Army Rules, we are of the considered opinion that

the direction given by the Tribunal requires modification.

Without the report of the one man inquiry, the Appellant

was certainly disabled from effectively defending

himself in the Court of Inquiry. The Appellant is entitled

to an opportunity to cross examine the witnesses

against him after examining the one man inquiry report.

Further, the Appellant raised the issue of the one man

inquiry report not being provided to him at the earliest

possible time. Therefore, the directions issued by the

Tribunal that disciplinary proceedings be conducted

afresh requires to be modified. The Court of Inquiry has

to be conducted afresh. The Appellant is entitled to

cross-examine witnesses and produce witnesses in his

favour.

[17]

14. For the aforementioned reasons, we affirm the

judgment of the Tribunal with the modification

mentioned above. The Court of Inquiry shall be held

against the Appellant afresh. As the Appellant has

retired from service, the Court of Inquiry may be

initiated and completed expeditiously. Further

proceedings, if any, may be conducted without any

delay.

15. The Appeals are disposed of accordingly.

..

………………………………….J.

[ L.

NAGESWARA RAO]

..…………..

…………………….J.

[ AJAY
RASTOGI ]

New Delhi,
December 17, 2019.

[18]



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