IMPORTANT POINT
Section 52(f) of the Army Act is in two disjunctive parts.

JUDGMENT

H.L. Gokhale J.-This appeal by Union of India through the Secretary to Government, Ministry of Defence seeks to challenge the judgment and order passed by a Division Bench of the Punjab and Haryana High Court in L.P.A. No.996 of 1991 dated 2.7.2001 whereby the Division Bench has allowed the appeal filed by the first respondent from the judgment and order rendered by a Single Judge of that Court dated 31.5.1991 in C.W.P. No.995-A of 1989 which had dismissed the said Writ Petition filed by the first respondent.

2. The Division Bench has allowed the said petition by its impugned order and set aside the proceedings, findings and sentence of the General Court Martial held during 24.6.1987 to 1.10.1987 against the first respondent by which he was awarded the punishment of Rigorous Imprisonment (R.I.) for one year and cashiering. The facts leading to this appeal are as follows:-

3. The first respondent was deployed between 1.2.1984 and 3.10.1986 as the Commanding Officer of the 6 Armoured Regiment which was a new raising at the relevant time in the Indian Army. The unit was authorized for one signal special vehicle. In case such a vehicle was not held by the unit it was authorized to modify one vehicle with ad-hoc special finances for which it was authorized to claim 75% of Rs.950/-initially and claim the balance amount on completion of modification work.

4. It is the case of the appellant that the unit had sent a claim for 75% of the amount (i.e. Rs.450/-as per the old rates) for modification of one vehicle, but the same was returned for want of justifying documents by the audit authorities. Yet the respondent proceeded to order modification of some 65 vehicles in two lots, first 43 and thereafter 22. There is no dispute that he countersigned those bills, and claimed and received an amount of Rs.77,692/-by preferring four different claims. The case of the appellant is that not a single vehicle came to be modified, the money was kept separately and the expenditure was personally controlled by the respondent. No such items necessary for modification were purchased, but fictitious documents and pre-receipted bills were procured. Though, the counter-foils of the cheques showed the names of some vendors, the amount was withdrawn by the respondent himself. When the annual stock-taking was done, the non-receipt of stores and false documentation having taken place was found entered in the records.

5. (i) This led to the conducting of the Court of Inquiry on 13.10.1986 to collect evidence and to make a report under Rule 177 of the Army Rules, 1954 framed under Section 191 of the Army Act, 1950. On conclusion of the inquiry a disciplinary action was directed against the respondent.

(ii) Thereafter, the summary of evidence was recorded under Rule 23 of the Army Rules, wherein the respondent duly participated. Some 15 witnesses were examined in support of the prosecution, and the respondent cross-examined them. He was given the opportunity to make a statement in defence, but he declined to make it.

6. Thereafter, the case against the respondent was remanded for trial by a General Court Martial which was convened in accordance with the provisions under Chapter X of the Army Act. The respondent was tried for four charges. They were as follows:-

"The accused, IC16714K Major Deol Rabinder Singh, SM, 6 Armoured Regiment, attached Headquarters 6(1) Armoured Brigade, an officer holding a permanent commission in the Regular Army is charged with:-

(1) such an offence as is mentioned in Clause (f) of Section 52 of the Army Act

(2) with intent to defraud, in that he, at field on 25 June 84, while commanding 6 Armoured Regiment, when authorized to claim modification grant in respect of only one truck one tonne 4 x 4 GS FFR, for Rs. 950/-, with intent to defraud, countersigned a contingent bill No.1096/LP/6/TS dated 25 June 84 for Rs.31692/-for claiming an advance of 75% entitlement of cost of modification of 43 vehicles, which was passed for Rs.31650