Suresh Kumar K vs Union Of India And Others

As common questions of law and facts are involved in these applications, the same are being disposed of by this common order.

For the sake of convenience, the pleadings and documents available in the records of OA (Appeal) No. 1006 of 2020 [Hay Suresh Kumar K Vs.

Union of India & Ors.] are referred to in the order.

In both the cases, the applicants have invoked the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 and the

prayer made in the applications is to quash the charge-sheet issued to the applicants vide Annexure-A1, primarily on the ground that the initiation of

the proceedings is barred by the statutory period of limitation prescribed under Section 122 of the Army Act, 1950. Based on the aforesaid statutory

provision, it is the case of the applicant that once the cause of action for initiating the proceedings took place beyond the period contemplated under

Section 122, no action can be initiated. It is the case of the applicant that the incidence in question, for which action has been initiated now by the

Competent Authority, took place between December, 2014 and May, 2015 and sometime in 2016, and the convening order passed and the charge-

sheet issued now on 14.07.2020 vide Annexure-A 1 is unsustainable. It is stated that as the convening of General Court Martial (GCM) was ordered

by the impugned orders after a period of three years, the same are liable to be quashed and no useful purpose will be served if the proceedings are

permitted to continue. It is the case of the applicant, Hay Suresh Kumar, in OA (Appeal) 1006 of 2020, that in his case, the proceedings have been

initiated after his retirement on 29.02.2020 by invoking Section 122 of Army Act, 1950, whereas in the case of Hay KR Ajit Kumar, applicant in OA

(Appeal) 1007 of 2020, the charge-sheet has been issued while he is still in service.

Shri Ajit Kakkar, learned counsel for the applicants took us through various facts, referred to dates and the proceedings that were held and argued

that the incidence took place as detailed in the application sometime in the year 2016 and thereafter in February, 2017. The Court of Inquiry was

ordered by the respondents for the purpose of ascertaining the misappropriation in the Signal Officers' Mess and the chargesheets have been issued

only on 10.07.2020 and the GCM is now being convened.

It is argued that in both the cases, the respondents had the knowledge about the misappropriation being conducted much before the period of three

years was over and now only on the basis of a date on which, the Auditor's Report is said to be submitted, their contention that the provisions of

Section 122 of the Army Act are not attracted, is not proper. Shri Kakkar tried to indicate to us, by referring to various processes held, that the

provisions of Section 122 are attracted.

Shri Anil Gautam, learned counsel representing the respondents, vehemently opposed the contentions of the counsel for the applicants and argued

that even though the so-called misappropriation took place on various periods from 2014 till August, 2016, the misappropriation was looked into by

ordering a Court of Inquiry in February, 2017. Thereafter, the proceedings of the Court of Inquiry was scrutinized and after it was subjected to

auditing by the Auditors, it was only when the final report was submitted by the Auditors sometimes in July, 2017, the facts about the misappropriation

came to the notice of the Competent Authority. Accordingly, it is stated by the counsel for the respondents that if the date of acquiring knowledge

about the misappropriation is 27.07.2017, provisions of Section 122 of the Army Act are not attracted and in this case, as misappropriation took place

in various stages, it was necessary to first have the Court of Inquiry conducted, scrutinize the report of the Court of Inquiry, get it audited and then a

decision taken. Accordingly, it is argued that the objection taken is unsustainable.

That apart, learned counsel for the respondents submits that, at this stage, only a charge-sheet has been issued and the GCM is being convened, and

as the question of initiating the proceedings after the period of three years is a mixed question of law and fact, the applicant can always raise these

objections before the GCM, which can examine this question and if the objection of the applicants under Section 122 of the Army Act are sustainable,

the GCM can grant relief to the applicant. That being so, it is argued that the applications, at this stage, are not maintainable.

We have heard learned counsel for the parties at length and on perusal of the records and the various factual issues involved in the matter, which

are relevant for deciding the question of initiating the proceedings within the statutory period as contemplated under Section 122, we are of the

considered view that serious disputes on facts exist between the parties. Even though, the Court of Inquiry was conducted in February, 2017, but as

per the respondents, it was only after the receipt of the Auditor's Report that the fact about commission of offence came into knowledge of the

concerned authority on or around 27.07.2017. That being so, the question as to whether the proceedings are barred by Section 122 of the Army Act is

a mixed question of law and disputed facts, for which various factual inquiries are also required to be undertaken and as the applicants have right to

raise all these objections before the GCM and as the GCM would be in a more better position to cause a factual inquiry into the matter, it would not be

proper for this Tribunal to interfere in the matter.

Accordingly, granting liberty to the applicants to raise the objections as are canvassed in the instant applications with regard to the proceedings

initiated being time -barred under Section 122 of the Army Act, before the GCM, we dispose of both these applications. The GCM shall address the

issue(s) as and when raised in accordance with law.

No order as to costs.