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TMI Blog2020 (1) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Sharma, Mukesh Kumar Maroria, Yadav Narender Singh, Deepak Kumar and Prerit Shukla, Advs. For the Respondent : Vinay Kumar Garg, Sr. Adv., Yadav Narender Singh, Abhishek Singh, Ashutosh Yadav, Jagdish Parshad, Prerit Shukla, Deepak Kumar, Kunal Vajani, Lalit Kumar, Kunal Mimani and Arvind Kumar Sharma, Advs. 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 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Force Act and the Rules. He referred to Section 5 of the Code of Criminal Procedure to submit that the Code of Criminal Procedure is not applicable to the personnel governed under the Air Force Act. He relied upon the judgment of this Court in Ajmer Singh and Ors. v. Union of India and Ors. (1987) 3 SCC 340 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 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 executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)... (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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Ors. v. Ex. Flt. Lt. G.S. Bajwa (2003) 9 SCC 630, 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 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 Section 52(c) Air Force Act, 1950 Committing Criminal Breach of Trust 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) 429 No. EX/IV/P/10 (2000-2001) for 200 ltrs of Petrol 87 MT 800 ltrs of 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 Section 52(c) Air Force Act, 1950 Committing criminal breach of trust in respect of property belonging to the Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 of 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 of loading in the civil area. Curiously no action was taken against Corporal G.S. Mani. There is no evidence on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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