Major Man Mohan Singh Battu vs Union Of India & Ors.
2011 Latest Caselaw 186 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved On: 6th January, 2011
                  Judgment Delivered On: 13th January, 2011

+                      W.P.(C) 621/1990

        MAJOR MAN MOHAN SINGH BATTU       ..... Petitioner
                Through: Major K.Ramesh, Advocate

                             versus

        UNION OF INDIA & ORS.               ..... Respondents
                  Through: Ms.Jyoti Singh, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.

1. On receipt of complaint that at the Unit canteen of the Regiment 2 Mahar to which the petitioner was attached as Second-in-Command, irregularities were being committed a Court of Inquiry was held which reported the correctness of the complaints received and the irregularities committed at the Unit canteen. Needless to state, as the Second-in-Command of the Unit, conduct of the petitioner was suspect and thus a decision was taken to initiate disciplinary action and Summary of Evidence was ordered to be recorded which resulted in the petitioner being finally tried summarily under Section 84 of the Army Act.

2. The charge sheet framed against the petitioner listed 4 articles of charge as under:-

First AN ACT PREJUDICIAL TO GOOD ORDER Charge AND MILITARY DISCIPLINE, Army Act Section 63 In that he, at-field, between 09 May and 30 Aug 83, when second-in-Command 2 MAHAR Regiment, improperly aided IC-167 43M Lt Col Daljit Singh Kohli (now Maj) the then Commanding Officer 2 MAHAR Regiment in the operation of unauthorized Non CSD private account by signing daily sale summaries of Non CSD items during the said period.

      Second        AN ACT PREJUDICIAL TO GOOD ORDER
      Charge        AND MILITARY DISCIPLINE
      Army Act
      Section 63                  In that he,
                    at-field, between 19 Feb and 04 Sep
                    83, when Second-in-Command 2
                    MAHAR Regiment, improperly aided

IC- 167 43M Lt Col Daljit Singh Kohli (now Maj) the then Commanding Officer 2 MAHAR Regiment in stocking of unauthorized goods for sale in unit canteen contrary to Army Order 355/71 which forbade stocking of Non CSD stores in Canteens.

      Third         AN ACT PREJUDICIAL TO GOOD ORDER
      Charge        AND MILITARY DISCIPLINE,
      Army Act
      Section 63                   In that he,

at field, on 20 Jul 83, when Second-in-

Command 2 MAHAR Regiment, improperly aided IC-167 43M Lt Col Daljit Singh Kohli (now Maj) the then Commanding Officer 2 MAHAR Regiment in the sale of regiment accessories namely Kamarbunds, spads and belts purchased out of money, pooled from personnel of the unit, at prices higher than their cost price.

      Fourth        AN ACT PREJUDICIAL TO GOOD ORDER
      Charge        AND MILITARY DISCIPLINE


       Army Act
      Section 63                         In that he,

at-field, on 26 May 83 when in Second- in-Command of 2 MAHAR Regiment, improperly caused an entry in unit columnar cash account book of `9000/- (Rupees nine thousand only) showing as advance from him to unit canteen fund account for purchase of carpets well knowing that the said amount had not been advanced by him.

3. As pleaded by the petitioner, after the Summary of Evidence was recorded he pleaded not guilty and stated that he wanted to furnish a written explanation to the charges framed against him and thus he furnished his explanation in writing. Considering the same, the General Officer Commanding announced the punishment of „Severe Reprimand‟ against which statutory complaint was filed but rejected by a non-speaking order.

4. Before dealing with the contentions urged during arguments advanced at the hearing of the writ petition, it would be useful to note the relevant extracts of the written response furnished by the petitioner to the 4 articles of charge framed against him. The same read as under:-

(i) "Pertaining to First Charge: ....I respectfully submit your honour that so called unauthorized non CSD was started in the Unit somewhere in Feb 83. I was not at all involved in running/handling this account. I had categorically refused to associate myself with any private accounts started in the Unit. Along with Sub Major of the Unit I advised the Commanding Officer to desist from such ventures. (Refer paras 2 and 3 of Page 4 on S of E). Lt Col DS Kohli is junior to me in service. I always wanted not to become a hindrance in his functioning. I also wanted not to associate myself with his unauthorized ventures. My association with the Unit of about 2 decades

was working behind my mind to ensure the honour and respect of the Unit and welfare of the Jawans of the Unit. An officer detailed by Lt Col DS Kohli was looking after demands, procuring, stocking and accounting of the non CSD Canteen. No CSD or any other official accounts were involved or associated or financed for this. Sub Major Gobind Nagtilak was maintaining the so called unauthorized Non CSD account book. The register in question is neither an account book nor a ledger of non CSD accounts....... The Officer looking after non CSD had to go somewhere from Bn. HQ. I do not recollect if he had gone on some Temporary duty or on some coy picquet in the Unit itself. I was called by the CO in his office and asked to look after non CSD. I refused to do so. On my refusing to associate with unauthorized funds, he explained to me that he will not insist me for procurement, financing, stocking and accounting of non CS accounts. He also expressed me that he does not fully trust Sub Major Gobind Nagtilak. He told me that merely he was asking me to vouch my own JCO‟s integrity and honesty with whom I had long association. He further explained that he was merely aksing me to sign in the register where the non CSD Canteen JCO hands over the daily proceeds to Sub Major. I agreed to do the needful because of the following reasons:-

(i) CO was merely asking me to vouch the honest of my JCOs.

(ii) I was still no associating myself with unauthorized non CSD in demanding, procuring, stocking and accounting.

(iii) I never wanted to create any unpleasantness at the time when handing taking over of Bn. was going on.

It is also brought to your kind notice that I did not sign the daily sale summaries from 09 May 83 to 30 Aug 83. I signed it as under:-

(i) 9.5.83 to 29.5.83

(ii) 16.6.83 to 30.8.83

(ii) Pertaining to Second Charge: ..... I have following to submit for your logical mind and analysis:-

(i) No financing of Non CSD was done from Unit CSD funds.

(ii) Army Order 355/71 applies only to official CSD Canteen of Units and not private canteen.

(iii) As financing of non CSD was not done from CSD funds it does not come under the preview of CSD AO 355/71 and PRI Office.

(iv) It was merely two canteens under one roof separately marked and stocked.

(v) Financing of CSD was from CSD funds and I do not know the exact financing of non CSD as I was not dealing with it.

(vi) Accounting of CSD was separate from non CSD. (page 80).

(vii) Cash memos used were separate of both the Canteens. So the sale was separate.

(viii) Display and stocking was separate of both the Canteens (Para 5 Page 80).

(ix) Both the CSD and non CSD Canteen had no connection with each other.

(x) Allotment of space for CSD and Non CSD is done by CO in consultation with OM.

(xi) In Sikkim due to the paucity of space both Canteens were kept under one roof by CO but separately marked and stocked.

(xii) In present location also the counters of both the Canteens were separate from each other.

(xiii) I never accounted or aided in accounting, procuring or stocking of non CSD in 2 MAHAR.

Neither there is any evidence in the complete S of E or Addl S of E.

(xiv) In this connection I would like to bring to your kind honour‟s perusal the AO 355/71 and statement of JC -13706N Sub Madhukar Jadhav CSD Canteen JCO. (P-33 S of E)

(iii) Pertaining to Third Charge: Regarding the alleged aid to Lt Col DS Kohli in the sale of regimental accessories namely Kamarbandhs, spads and belts purchased out of money, pooled from personal of the Unit, at prices higher than their cost price. I have the following for your honour‟s perusal, information, logic and applying the analytical mind:-

(i) Non CSD was not under the purview of PRI Office or me in person.

(ii) Money was pooled on the specific orders passed centrally by CO and not by me or PRI Office.

(iii) Coys collected the money and deposited the same with SM alongwith their lists. The money was never deposited with PRI by the Coys.

(iv) Individual was sent to collect the items by the Adjt. Office.

(v) The rates for the items were not fixed by me.

(vi) The stores brought were not handed over to CSD which was under my purview.

(vii) In the month of July I was ordered by the Commanding Officer to ensure the distribution of items to the individuals who needed them. On specific order of the Commanding Officers I helped SM and the individual who brought the stores in distributing the stores to the personal of the Bn. in their interest. I know that the personal of the Bn. on central orders had pooled the money. My sincere conscious compelled me to obey this order of CO because I wanted to see the men getting their money back or the stores in lieu of the money

had contributed. It may please be taken into consideration that at no stage I was instrumental in pooling the money, collecting or accounting the stores because Non CSD was out of my jurisdiction. My interest was the interest of the personal of the Bn. I only ensured that the personal either should get money back if they do not need the stores or they get the stores.

(iv) Pertaining to Fourth Charge: ...... It is simply clear from the statement of Hav Clk FC Rout that the fund situation in the CSD Canteen was not good enough to cover the released stores of CSD. The CSD was still falling short of funds to the tune of `25,000/-. Myself and Hav. Clk FC Rout advised CO that temporary transfer of approx `17,000/- (Rupees seventeen thousand only) from Officer‟s Mess Fund was possible which was later on done. (See para 2 on page 22). After sending Hav Clk FC Rout out, the Commanding Officer discussed with me the possibilities or arrangements of balance of amount required. The Commanding Officer discussed with me the possibilities or arrangements of balance of amount required. The Commanding Officer proposed that to meet the temporary requirement I should take `9,000/- as loan from Sub Major in CSD. I explained to the CO that for taking the loan from one official fund to another official fund I can use yellow cheque and can make the correct entry in the documents, whereas officially I cannot make any other entry in my official book. At this Commanding Officer to handle the monetary situation, suggested me that I take loan from SM and give the loan to CSD Canteen. As per advise given by CO I agreed to take loan for me on one side from SM and on the other side give loan to CSD from my side. Commanding Officer passed this orders to officiating Sub Major to give me loan of `9,000/- (Rupees nine thousand only) (Refer last para on page 57 of Addl S of E in the statement of Sub Gorakh Kamble). I explained the same to my PRI Clerk so that ht return of this loan will be kept in mind. It was reflected on the handing taking over notes of Hav Clk FC Rout and Hav Clk KL Verma on 13 Aug 83. It was also reflected on the notes left by

me while proceeding on leave on 02 Sep 83 (Refer Appx Page 32 of Addl S of E). The complete transfer looked me logical as suggested by CO and I implemented it to overcome a particular economical situation in CSD funds."

5. First contention urged was that a perusal of the four charges would reveal that the first three charges were of aiding the main accused Lt.Col.Daljit Singh Kohli and thus without the main offender being tried it was strange that the abettor was being charged.

6. The contention has no legs to stand on for the reason Lt.Col.Daljit Singh Kohli was separately charged.

7. It is not a case of the main accused being let off and the abettor being punished.

8. Second contention urged was that after the Summary of Evidence was read out and the petitioner was granted time to file the written response and when he did so, he was asked to go out of the room and re-summoned after 5 minutes and verdict pronounced. It was urged that 5 minutes was too less to even read the written response and apply one‟s mind to the charges, evidence and the written response.

9. Needless to state the factual basis of the plea has been denied by the respondents and we have no proof that facts transpired as alleged by the petitioner. Thus the plea is rejected.

10. Third submission urged requires us to look into the evidence led when Summary of Evidence was recorded, but we do not do so for the simple reason, as noted hereinabove, while responding to all the charges the petitioner admitted knowledge of everything what was going on in the Unit canteen; he admitted his role in the wrong doings, which role

we note is not of a high degree of culpability; but we would be failing not to note that the penalty imposed is of severe displeasure. Suffice would it be to record that the admissions made by the petitioner in his written statement of defence, for all the four charges are proof enough to justify penalty of displeasure being inflicted upon the petitioner. Suffice would it be to state that pertaining to the first charge, petitioner stated that after initial hesitation he agreed to what was required to be done by him by Lt.Col.Daljit Singh Kohli for the four reasons stated by him in the written response. It is apparent that qua Charge 1 the petitioner admitted his role, but gave a justification and which we find is of a kind which every wrong doer does. Qua the 2nd charge also, we find petitioner admitting, if not more, his knowledge of the wrong doings and as the Second-in-Command it was his duty to report to the superior officers and for not so doing the penalty of severe displeasure cannot be faulted. Similarly, evidenced by explanation VII to the 3rd charge, we find the petitioner admitting the factual content pertaining to his role qua the 3rd charge. The justification to the fourth charge is after admitting the factual content thereof.

11. The submission that the statutory representation has been disposed of by a non-speaking order is neither here nor there for the reason when an authority concurs with the findings of the lower authority no reasons have to be given and as long as there is material to show application of mind, it would be sufficient compliance with not only the letter but even the spirit of the law. In this connection, what more proof of application of mind can be found other than the very meek penalty of severe displeasure being imposed for the wrong

doings in which the petitioner admitted playing a role and having knowledge thereof. It is apparent that the authorities took cognizance of the limited role played by the petitioner as also that he was the Second-in-Command and that the main perpetrator was the Commandant of the Unit and hence the penalty being not only minor but the least of the minor.

12. We find no merit in the writ petition which is dismissed but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

JANUARY 13, 2011 mm