SC quashes AFT order, acquits retired Lieutenant General of all charges levelled against him

PTI

New Delhi, March 23

The Supreme Court on Wednesday set aside the Armed Forces Tribunal (AFT) order of dismissal from service against a former Lieutenant General, who was held guilty by the General Court Martial (GCM) on the allegations relating to procurement of ration by Army purchase organisation, and acquitted him of all charges.

The apex court also quashed the February 2011 order passed by the GCM which had held him guilty of some charges and imposed penalty on him.

A bench of Justices L N Rao and B R Gavai said that findings recorded by the AFT are “totally contrary” to the material placed on record.

“The order dated February 18, 2011 passed by the GCM holding the petitioner guilty and imposing penalty on him and the impugned order dated October 10, 2013, passed by the AFT are quashed and set aside,” the bench said, adding, “The petitioner is acquitted of all the charges levelled against him.”

The bench directed that the retired Lieutenant General would be entitled to all pensionary and consequential benefits in accordance with law and the arrears of such benefits shall be computed and paid to him within three months.

The top court delivered its verdict on an appeal filed by the Centre and others challenging the orders passed by the AFT, Chandigarh regional bench, including the October 10, 2013 order which had reduced the sentence of three years rigorous imprisonment and cashiering imposed on Lt Gen S K Sahni (retd) to dismissal from the service as provided in section 71(e) of the Armed Forces Tribunal Act, 2007.

The bench also delivered the judgement on a plea filed by the retired officer, originally before the Punjab and Haryana High Court, which was transferred to the apex court.

It noted that Sahni was commissioned in the Indian Army in December 1967 and was promoted to the rank of Lieutenant General in May 2003.

He was thereafter appointed as the Director General, Supplies and Transport with effect from February 1, 2005.

The bench noted that an anonymous complaint was received in the Directorate of Supplies and Transport on April 4, 2005.

Later, a Court of Inquiry (CoI) was ordered against the officer under the directions of the General Officer Commanding­in-Chief, Western Command, to investigate into seven allegations, including on procurement of ‘kabuli chana’ through contract finalised during the relevant period by the Army Purchase Organisation.

The CoI only recommended for award of recordable censure against the officer while recommending disciplinary action qua other officials under the Army Act, 1950 and Army Rules, 1954.

However, as per the direction of the Army commander, his name was included in the list for disciplinary action.

The bench noted that on attaining the compulsory retirement age of 60 years, he retired on September 30, 2006.

Sahni moved the Delhi High Court seeking quashing and setting aside of the proceedings and recommendations of the CoI in terms of order dated May 26, 2005 and also the order of July 18, 2006 directing his attachment.

The high court allowed the petition and later, the authority resorted to Rule 22 of the Army Rules and issued a fresh notice and ordered attachment under section 123 of the Army Act, the apex court noted.

The matter reached the AFT which held that resorting to Rule 22 of the Army Rules was totally unwarranted and illegal and the authority was directed to resort to CoI after giving an opportunity to the officer.

Later, the GCM in its February 18, 2011 order, found him guilty of certain charges and he was sentenced—to be cashiered and rigorous imprisonment for three years subject to confirmation.

The findings and sentence of the GCM were confirmed by the Chief of Army Staff in January 2012.

He then filed an appeal before the AFT against the GCM order.

The AFT held that the findings of the GCM against him were liable to be affirmed.

It, however, held that the sentence of cashiering and substantive imprisonment of three years’ rigorous imprisonment was harsh and thus, modified it to dismissal from service.

Sahni then filed a petition before the Punjab and Haryana High Court challenging the AFT order, while the Centre and others also filed an appeal in the apex court against the AFT order.

The top court had in August 2016 directed transfer of the petition pending before the high court to itself and both the matters were heard together.

In its verdict, the apex court noted that findings of the AFT that there was an intention on the part of the officer to defraud “would not be sustainable”.

“It could thus clearly be seen that the AFT has come to a conclusion that it cannot be said that the respondent has actually committed fraud or did any such act, which resulted in actual loss or wrongful gain to any person,” it said.

“However, in the same breath, the AFT observes that the acts lead to an inference that attempts were made to cause a wrongful gain, and therefore, the respondent cannot escape his liabilities,” it said.

The bench said it is unable to appreciate as to on what basis the AFT came to a conclusion that the acts lead to an inference that the attempts were made to cause a wrongful gain.

“The finding as recorded by the AFT is totally contrary to the material placed on record,” it said, adding that orders passed by the AFT as well as the GCM are not sustainable in law.

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