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Supreme Court of India
Union Of India vs Chandra Bhushan Yadav on 17 January, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Hemant Gupta
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.18830 of 2017
Union of India & Ors. …. Appellant(s)
Versus
Chandra Bhushan Yadav …. Respondent(s)
WITH
Civil Appeal No.7440 of 2018
JUDGMENT
L. NAGESWARA RAO, J.
1. The District Court Martial imposed a punishment of
dismissal of the Respondent from service and reduction
of the ranks apart from sentencing him to rigorous
imprisonment for three months. The Armed Forces
Tribunal, Regional Bench, Lucknow (for short “the
Tribunal”) set aside the order of the District Court
Martial aggrieved by which the Union of India has filed
this Appeal. The Respondent was enrolled in the Indian
Air Force in the trade of Equipment Assistant on
[1]
18.01.1988. He was posted to 402 Air Force Station,
Kanpur in August, 1997. The Respondent was assigned
duty in Diesel and Petrol Store on 02.02.2000.
Information was received from a civilian on 03.05.2000
that 7 barrels of diesel were unloaded in civil area at
Pappu Ka Plot at about 1400 hrs. on 02.05.2000. The
informant informed 4 Provost & Security (Unit), Air
Force, Kanpur, that he saw two airmen in uniform, out of
which one was of dark complexion. The informant
further stated that a similar incident of unloading of
barrels was observed by him on 20.04.2000 also as well.
2. A detailed report was sent by 4 Provost & Security
(Unit), Air Force, Kanpur by a letter dated 10.05.2000 in
which it was indicated that the Respondent-herein and
Corporal G.S. Mani, Equipment Assistant were involved
in taking out POL (Petrol, Oil & Lubricants) belonging to
Air Force Station, Kanpur. Air-Officer-Commanding, 402
Air Force Station, Kanpur directed a Court of Inquiry to
be convened. By its report dated 31.05.2000, the Court
of Inquiry found that DHPP quantity of 5800 Ltrs. and
[2]
petrol of 5000 Ltrs. was misappropriated by the
Respondent and the then Corporal G.S. Mani, Equipment
Assistant. According to the report, manipulation was
done by raising gate passes for a quantity more than
which was authorised by issuance of vouchers and
obtaining the signature of Senior Logistic Officer on such
gate passes. The said gate passes were used to take
out kerosene, diesel and petrol. A second set of
vouchers were prepared for the purpose of issuing gate
passes when items were taken out of guard room, which
were later destroyed after safe passage from the guard
room. The misappropriated items were disposed in the
civil area. On the basis of the said finding, the Court of
Inquiry recommended following actions :
(a) Initiate strict disciplinary action against Corporal
C.B. Yadav (Respondent) and others involved in the said
action;
(b) To make good the loss incurred due to such action
and to recover the cost of quantity DHPP 400 Ltrs. and
quantity 200 Ltrs. of petrol (Rs.68,520/-).
[3]
3. An Additional Court of Inquiry was ordered to
further investigate into certain other aspects not
covered by the Court of Inquiry. By the Report dated
12.07.2007, the Additional Court of Inquiry found that
the Respondent had prepared the gate passes in
advance on some occasions. The record of the Court of
Inquiry and Additional Court of Inquiry proceedings were
forwarded to the Head Quarters, Maintenance
Command on 26.07.2000. The Court of Inquiry
proceedings were approved by the AOC-in-C,
Maintenance Command, pursuant to which disciplinary
action was initiated against the Respondent and others.
A charge sheet was framed containing 14 charges and a
hearing of charge under Rule 24 of the Air Force Rules,
1969 (for short “the Rules”) was conducted before the
Air Officer Commanding-in-Chief. The AOC-in-C ordered
evidence to be recorded in writing. After considering
the summary of evidence, the AOC-in-C found that there
was insufficient evidence to sustain Charges 1 to 5 and
[4]
therefore, those charges were dropped. A charge sheet
containing fresh charges was issued.
4. On 27.08.2001, AOC-in-C Head Quarters,
Maintenance Command convened a District Court
Martial for trial of the Respondent. The District Court
Martial found the Respondent guilty and imposed a
punishment of dismissal from service and reduction of
the rank apart from sentencing the Respondent to
rigorous imprisonment for three months. The order
dated 25.10.2001 was set aside by the Tribunal. The
Respondent was directed to have been in continuous
service for the purpose of pension and other service
benefits. However, arrears of salary was confined to 50
per cent.
5. The Tribunal held that the allegation against the
Respondent being theft and misappropriation of
kerosene and diesel, the loss caused due to theft
required to be reported to the civil police as per Para
804(b) of the Regulations. By referring to Section 154 of
[5]
the Code of Criminal Procedure, 1973 (for short “the Cr.
PC), the Tribunal held that it is mandatory that a First
Information Report (FIR) had to be registered in a
cognizable case. The Tribunal observed that the
Respondent was not given an opportunity in terms of
Rule 156 of the Rules during the Court of Inquiry
proceedings. In view of the violation of sub-rule (2), (6)
and (7) of Rule 156 of the Air Force Rules, the Tribunal
was of the view that the proceedings of the Court of
Inquiry were vitiated. The contention on behalf of the
Respondent that there was violation of Rule 24 of the
Rules and that the summary of evidence was also not
recorded in accordance with the prescribed procedure,
was not accepted by the Tribunal. Group Captain A.K.
Gurtu, Senior Personnel Staff Officer (SPSO), Head
Quarters for Air Officer, Commanding-in-Chief signed
the order by which the District Court Martial was
convened which, according to the Tribunal was in
violation of Section 111 of the Act and Rule 43(4) of the
Rules. The Tribunal observed that only the AOC-in-C is
[6]
competent to convene the District Court Martial. The
Tribunal re-appreciated the evidence and came to the
conclusion that the charges against the Respondent
were not proved beyond reasonable doubt.
First Information Report (FIR)
6. Mr. Vinay Kumar Garg, learned Senior Counsel
appearing on behalf of the Respondent submitted that
Para 804 (b) of the Regulations imposes an obligation
that a loss caused due to theft should be reported to the
civil police. He supported the finding of the Tribunal
that there is requirement of compulsory registration of
FIR in view of the provisions of Section 154 Cr. PC. Mr.
R. Balasubramanian, learned Senior Counsel appearing
for the Union of India submitted that Para 804(b) of the
Regulations is not mandatory. It is open to the
authorities to report a theft to the civil police if the
situation warrants. He submitted that the Air Force Act,
1950 and Air Force Regulations, 1964 govern the
conduct and discipline of the Air Force. The Air Force
Act, 1950 is a special law in which detailed procedure
[7]
for conducting of trial by a Court Martial has been
prescribed and no requirement for registration of an FIR
is mandatory under the Rules therein. The conduct of
trial including investigation is covered under Air Force
Act and the Rules. He referred to Section 5 of the Cr. PC
to submit that the Cr. PC is not applicable to the
personnel governed under the Air Force Act. He relied
upon the judgment of this Court in Ajmer Singh & Ors.
v. Union of India & Ors.1 in support of his argument.
7. In Ajmer Singh (supra), it was held as follows :
“7. Section 5 of the Code of Criminal
Procedure lays down that nothing contained in
the said Code shall, in the absence of a specific
provision to the contrary, affect any special or
local law for the time being in force, or any
special jurisdiction or power conferred, or any
special form of procedure prescribed, by any
other law for the time being in force. The
relevant Chapters of the Army Act, the Navy
Act and the Air Force Act embody a completely
self-contained comprehensive Code specifying
the various offences under those Acts and
1 (1987) 3 SCC 340
[8]
prescribing the procedure for detention and
custody of offenders, investigation and trial of
the offenders by court martial, the
punishments to be awarded for the various
offences, confirmation and revision of the
sentences imposed by court martial, the
execution of such sentences and the grant of
pardons, remissions and suspensions in
respect of such sentences. These enactments,
therefore, constitute a special law in force
conferring special jurisdiction and powers on
court martial and prescribing a special form of
procedure for the trial of the offences under
those Acts. The effect of Section 5 of the Code
of Criminal Procedure is to render the
provisions of the Code of Criminal Procedure
inapplicable in respect of all matters covered
by such special law. ”
8. It is clear from the above that the Air Force Act is a
special law conferring jurisdiction and powers on the
Court Martial and prescribing the procedure for trial of
offences. It is also clear that the Code of Criminal
Procedure is not applicable in respect of matters
covered by the Air Force Act. Hence, the finding
[9]
recorded by the Tribunal that it is mandatory for the
authorities to report the offences to civil police for
registration of an FIR is unsustainable. The Tribunal
further relied upon Para 804(b) of the Regulations to
hold that it is incumbent on the part of the authorities to
report an offence to the civil police for registration of an
FIR. Para 804(b) is as follows:
“804. Loss of Air Force Equipment and
Foodstuffs.
(a) .. ..
(b) A loss which is supposed to be due to theft
will be reported at once to the civil police,
when the circumstances warrant the course of
action. In any court of inquiry which may
subsequently be held, evidence will be taken to
show the date on which the loss was so
reported.”
9. There can be no doubt from a plain reading of the
Regulations that the reporting of an offence of theft to
the civil police is optional. Only when the circumstances
warrant such reporting to the civil police, the competent
officer can do so. For the aforementioned reasons, para
[10]
804 (b) of the Regulations of the Air Force Act cannot be
said to be mandatory.
Court of Inquiry:
10. The contention of the Respondent which was
accepted by the Tribunal relates to the violation of sub-
Rule (2), (6) and (7) of Rule 156. It is necessary to
reproduce sub-Rule (2), (6) and (7) of Rule 156 which
are as under :
“156. Courts of inquiry other than those
held under section 107.—
(1) .. ..
(2) Save in the case of a prisoner of war who is
still absent, whenever any inquiry affects the
character or service reputation of a person
subject to the Act, full opportunity must be
afforded to such person of being present
throughout the inquiry and of making any
statements and of giving any evidence he may
wish to make or give, and of cross-examining
and witness whose evidence, in his opinion,
affects his character or service reputation, and
producing any witnesses in defence of his
character or service reputation.
(3) .. ..
[11]
(4) .. ..
(5) .. ..
(6) The proceedings of a court of inquiry, or
any confession or statement or answer to a
question made or given at a court of inquiry,
shall not be admissible in evidence against a
person subject to Air Force Law, nor shall any
evidence respecting the proceedings of the
court be given against any such person except
upon the trial of such person for wilfully giving
false evidence before that court.
(7) Any person subject to the Act whose
character or service reputation is in the opinion
of the Chief of the Air Staff, affected by
anything in the evidence before or in the report
of a court of inquiry shall be entitled to a copy
of the proceedings of such court unless the
Chief of the Air Staff sees reason to order
otherwise.”
11. The Tribunal was of the view that the Respondent
was not given sufficient opportunity to defend himself
during the course of the proceedings before the Court of
Inquiry.
[12]
12. According to the Respondent, he was not permitted
to be present during the recording of statement of
witnesses. He was also deprived of an opportunity to
cross-examine the witnesses. The contention on behalf
of the Union of India is that the Respondent was given
an opportunity to make a statement and to cross-
examine witnesses. He was also given a chance to
produce documentary evidence. The Respondent made
a statement on 19.07.2000 to the effect that he did not
wish to cross-examine witnesses and to produce any
documentary evidence in his defence.
13. The statement made by the Respondent was
produced before us which indicates that he did not
utilize the opportunity given to him. Therefore, it
cannot be held that there is violation of Rule 156 of the
Rules and the Tribunal committed an error in holding
that the proceedings of Court of Inquiry are vitiated.
Convening Order:
14. The contention of the Respondent is that Group
Captain A.K. Gurtu, Senior Personnel Staff Officer
[13]
(SPSO), Head Quarters MC IAF signed the order by which
the District Court Martial was convened. It is urged that
AOC-in-C is the competent authority to convene the
Court Martial. The Union of India justified the order by
which the District Court Martial was convened in
accordance with the Air Force Rules.
15. Section 111 of the Air Force Act provides that
District Court Martial may be convened by an officer
having power to convene a General Court Martial, or by
an officer empowered by warrant of any such officer.
Rule 43 deals with convening of General and District
Court Martials. Rule 43(4) which is relevant for our
purpose reads as under :
“43. Convening of general and district court-
martial. —
(4) After the convening officer has appointed or
detailed the officer to form a Court-Martial
under sub-rule (3), convening order of the
Court-Martial and endorsement on the charge-
sheet for trial of the accused by court-martial
may either be signed by convening officer or
[14]
by a staff officer on his behalf. The charge
sheet on which the accused to be tried, the
summary of evidence and the convening order
for assembly of Court-Martial shall then be sent
to the senior officer of Court-Martial and the
Judge Advocate, if appointed.”
16. In Union of India & Ors. v. Ex. Flt. Lt. G.S.
Bajwa2, this Court examined the issue pertaining to the
authority competent to convene the Court Martial and
held as follows:
“44. A ground was taken before the High
Court (Ground f) that the convening of the
General Court Martial was signed by an officer,
in whose name no delegation or such authority
had ever been made. In reply thereto the
appellant had submitted that the convening
order was signed by the said officer on behalf
of the Air Officer In-charge Personnel, who had
after due application of mind, issued the order
for convening the above Court Martial. It was
not disputed before us that the Air Officer In-
charge Personnel (AOP) was empowered to
convene a Court Martial. The only question
which, therefore, requires consideration is
2 (2003) 9 SCC 630
[15]
whether the order convening the General Court
Martial was passed by the AOP and it was only
formally communicated under signatures of
the Air Commodore concerned or whether the
Air Commodore named therein, who was not
empowered, himself passed the convening
order. With a view to avoid any controversy on
this factual position, we directed the appellant
to produce before us the original file. We have
perused the file and we find that the order for
convening the General Court Martial was
approved by Air Marshal D.A. LaFontaine, AOP.
There is, therefore, no force in the submission
that the convening order was unauthorized
and, therefore, illegal.”
17. The order dated 18.08.2001 by which the District
Court Martial was convened is issued in the name of Air
Marshall S.S. Gupta, PVSM, AVSM, VSM, ADC, Air Officer
Commanding-in-Chief, Maintenance Command. There is
no doubt that the order was signed by Group Captain
A.K. Gurtu, SPSO, Head Quarters MC IAF who is the
Personnel Staff Officer for Air Officer Commanding-in-
Chief, Maintenance Command, IAF. Rule 43(4) provides
that a convening order may be signed by the
[16]
Commanding Officer or by the Senior Staff Officer on his
behalf. The fact that Group Captain A.K. Gurtu was the
Senior Personnel Staff officer for the AOC-in-C
Maintenance Command, IAF is not in dispute. A perusal
of the Record reveals that the convening order had the
approval of the competent authority and as such, it
cannot be termed as unauthorized. Another submission
that was made by the learned Senior Counsel for the
Respondent is that according to the Organizational
Chart of Head Quarters MC IAF it is only Senior Air &
Administrative Staff Officer (SAASO) who can be the
Staff Officer of the AOC-in-C. The said submission was
countered by the learned Senior Counsel for the Union
of India. It was contended that that Group Captain A.K.
Gurtu was Senior Personnel Staff Officer (SPSO) and
lesser than that of Senior Air & Administrative Staff
Officer (SAASO) in the hierarchy. There is no
requirement that only SAASO can be the Staff Officer to
AoC-in-C. Even Officers lower than SAASO can be
appointed as Staff Officers. According to Mr. R.
[17]
Balasubramanian, learned Senior Counsel, it is evident
from the order itself that Group Captain A.K. Gurtu who
is Senior Personnel Staff Officer (SPSO) was the Staff
Officer and competent to sign the convening order.
18. The convening order which was signed by the Staff
Officer of the AOC-in-C is in accord with Rule 43(4) of
the Rule and no fault can be found with the order. The
Tribunal committed an error in holding that the
convening order was by an officer who was not
competent.
Charges 5 & 6
19. The District Court Martial found the Respondent
guilty of Charges 1, 2, 5 and 6. He was exonerated of
Charges 3 and 4. The confirmation authority held
that there was no sufficient evidence in relation to
Charges 1 and 2 and they were dropped. What remains
to be seen is whether Charges 5 & 6 are established.
Charges 5 & 6 are as follows:
“
Fifth Charge Committing Criminal Breach of Trust
[18]
in Respect of property belonging to
the Govt.
In that he,
At 402 AF Station, on 20 April 2000,
being the NCO i/c POL, Stores of 402
AF Station and in that capacity
entrusted with POL Stores of the unit,
dishonestly misappropriated 1400
Ltrs of DHPP(N), by raising IAFF(Q)
Section 52(c)
429 No.EX/IV/P/10 (2000-2001) for
Air Force Act,
200 ltrs of Petrol 87 MT 800 ltrs of
1950
DHPP(N), but physically issuing
702670-K Cpl Mani GS Eqpt Asst of 7
AF Hospital 200 ltrs of Petrol 87 MT,
2200 ltrs DHPP(N) and nil Kerosene
oil quantity, by writing quantity 200
ltrs of Petrol 87 MT, 800 Ltrs of
DHPP(N) and 1400 ltrs of kerosene Oil
on gate pass No.3129 dated 29 April
2000.
Sixth charge Committing criminal breach of trust in
Section 52(c) respect of property belonging to the
Air Force Act, Govt.
1950 In that he,
At 402 AF Station, on 02 May 2000
being the NCO i/c POL, stores of 402
AF Station and in that capacity
[19]
entrusted with POL stores of the unit,
dishonestly misappropriated 1400 lrts
of DHPP(N), by making use of two
sets of IAFF(Q) 429 bearing same
serial No.EX/IV/P/16 (2000-20010 for
a single transaction of issue of POL to
7 AF Hospital first set (receipted blue)
showing issue of 2400 ltrs of
Kerosene oil only and second set
(original black) showing issue of 2400
ltrs of kerosene oil and 1400 ltrs of
DHPP(N), and physically issuing to
702670-K Cpl Mani GS Eqpt Asst of 7
AF Hospital as per second set and
gate pass No.3131 dated 02 May
2000.
”
20. The Tribunal on a reconsideration of the evidence
on record concluded that Charges 5 and 6 were not
established beyond reasonable doubt. PW1 Corporal
M.K. Sharma failed to identify the signatures appended
on the vouchers. PW2 Sergeant L. Singh who was the
Record Keeper in Security Section deposed that he was
not aware as to who was responsible for the issuance of
[20]
kerosene oil. W.O. S.K. Singh who was examined as
PW3, does not remember the dates and data with
regard to deficiencies of POL. He stated that no
deficiency was found in POL during the weekly snap
checks from February-May, 2000. He further stated that
the Respondent was not related to issuance of kerosene
oil during the months of February-May, 2000. Wing
Commander J.K. Chakraborty who appeared as PW4
admitted that there was no deficiency of diesel at the
time of handing and taking over of duty by the
Respondent. PW5 Flight Lieutenant Arvind Kumar had
no personal knowledge of the evidence as he was on
leave. However, he stated that there was no surplus or
deficiency of POL. PW6 Corporal G.S. Mani admitted to
unloading seven empty barrels at Pardevanpurwa on
20.04.2000 at the request of the Respondent. He
further stated that an amount of Rs.1,500/- was forcibly
given by the Respondent. He also stated that he carried
20 barrels for collecting 2400 liters of kerosene oil and
again collected seven barrels on 02.05.2000. During
[21]
cross-examination, he was confronted with his previous
statement wherein he stated that he was coerced to
make a statement against the Respondent. In view of
the contradictions made by PW6 who is the co-accused,
the Tribunal held that he is not a reliable witness. PW7
Corporal S. Singh categorically stated that the loading of
barrels containing POL was at the behest of Corporal
G.S. Mani. PW8 Hasan R. Lascar who was working in the
Medical Ward stated that he loaded empty barrels on
the instructions of Corporal G.S. Mani. PW9 Rajendra
Prasad Lascar also stated that loading and off loading of
diesel at Pardevanpurwa was in the presence of
Corporal G.S. Mani.
21. We have examined the evidence to satisfy
ourselves as to whether there is any iota of evidence
against the Respondent. It appears from the evidence
that Corporal G.S. Mani was actively involved in the
transportation of diesel barrels and loading and off
loading in the civil area. Curiously no action was taken
against Corporal G.S. Mani. There is no evidence on
[22]
record to connect the Respondent to the offence of
illegal transportation of POL. Though we are not in
agreement with the Tribunal on the other issues, in view
of lack of any evidence against the Respondent, we are
inclined to uphold the judgment of the Tribunal. The
Appeal is dismissed.
Civil Appeal No.7440 of 2018
22. This appeal has been filed by the Respondent
aggrieved by the directions of the Tribunal that the
Appellant shall pay only 50 per cent of the arrears of salary.
After considering the submissions of the learned Senior
Counsel, we are not inclined to interfere with the order of
the Tribunal. The appeal is accordingly dismissed.
..…………………………..J.
[L. NAGESWARA RAO]
…….………………………J.
[DEEPAK GUPTA]
New Delhi,
January 17, 2020.
[23]
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