COLONEL B S RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner Col. B.S. Rai was charged of having committed the following offence under Section 57(c) of the Army Act, 1950 on 14.1.2004:- "CHARGE SHEET The accused, IC-34740F Colonel Brijendra Singh Rai of Army Headquarters (Directorate General of Signal Intelligence) attached to Headquarters 11 Corps Artillery Brigade, an officer holding a permanent commission in the Regular Army, is charged with:- Army Act Sec 57(c) KNOWINGLY AND WITH INTENT TO INJURE ANY PERSON ALTERING A DOCUMENT WHICH IT WAS HIS DUTY TO PRODUCE In that he, at Jalandhar Cantt, on or about 26 Sept 2000, which came to the knowledge of the authority competent to initiate action on 20 Feb 2003, while Commanding 571 Sub Group and having awarded figurative assessment of nine points in paragraphs 9(a), 9(b), 9(d), 9(g), 9(h), 9(j), 9(k), 10(a) to 10(g) and 12 of the Annual Confidential Report of IC-47755H Major Ajay Shreedhar of his unit, which it was his duty to submit, knowingly altered the assessment to eight points without the knowledge of the said officer. Place: Jalandhar Cantt Sd/- Dated : 14 January 2004 (Rajan Anand) Brigadier Commander 11 Corps Artillery Brigade To be tried by a General Court Martial SD/- Station : Jalandhar Cantt (Srinivasa Pattabhiraman) Date: January 2004 Lieutenant General General Officer Commanding 11 Corps

(2.) Whereafter the petitioner was tried by a General Court Martial which found the petitioner guilty of the charge and sentenced him to take rank and precedence as if his appointment as substantive Colonel bore date the ninth day of March 2004 and to be severely reprimanded. Against the order of sentence, the petitioner submitted a post confirmation petition under Section 164(2) of the Act to the Secretary, Ministry of Defence raising various issues of law upon merits of the case. This post confirmation petition was rejected vide order dated 28th April, 2005 passed by the Under Secretary to the Government of India, Ministry of Defence being devoid of merit and substance. Being aggrieved from the said order, the petitioner has filed the present petition under Article 226 of the Constitution of India. The counsel for the petitioner has primarily argued on the merits, reliability and worthiness of the evidence recorded before the GCM while contending that there is hardly any evidence to support the charge and even the handwriting expert and other witnesses have stated in their evidence, factors which tilt the entire equities in favour of the petitioner. He vehemently contended that the charge itself is unfounded inasmuch as it is impossible in Indian Army, by all standards, that an officer would get 9/9 in all 23 columns of his ACR particularly when the pen picture of the Officer was not admittedly tampered and the pen picture did not reflect any such distinguishing features of Major Ajay Shreedhar that would justify grant of so many nines in his CR. This is also argued that keeping in view the service profile of the said Officer, 23 nines in the CR would patently be a mis-match not only to the pen picture stated in the records but would also be inconsistent with the previous and even records subsequent to the alleged date of occurrence. The proceedings, findings and sentence imposed upon the petitioner are liable to be set aside. In order to examine the merit of these contentions, it may be necessary for us to refer to certain basic facts giving rise to the present petition.

(3.) The petitioner was commissioned in the Indian Army in the Corps of Signals on 11th June, 1977 being a high profile officer with an adequate technical expertise and was granted all the promotions including selection grade of Lt. Col. and promotion to the post of Colonel. He was posted to sensitive areas including 571 Sub Group as a Commanding Officer. On 7th September, 2000, father of the petitioner died in a village at Khiragarh in District Rajnandgaon in Madhya Pradesh and while lifting the dead body and the hot urns, the right fingers of the petitioner got burnt thereby, it became difficult for the petitioner to write. An ACR of a junior officer Major Ajay Shreedhar was initiated by the petitioner on 26th September, 2000. The handwriting of the petitioner in relation to writing of figures was awkward and he has his own style of writing the figures particularly the figure 8. On 14th September, 2001, MS Branch, Army Headquarter observed that the ACR of the said officer showed tampering of figure 9 converted to 8 and to look into the matter, they wrote a letter to the Unit. On 29.11.2001, Major Ajay Sreedhar wrote after a period of two months that there was a discrepancy in his subject ACR indicating that the figure 9 was converted to 8. In turn on 7th February, 2002, the Army Headquarter wrote to the petitioner and invited his comments in this respect. This was replied to by the petitioner on 15.2.2002 wherein he denied that he had at all tampered with the ACR but it was by his hand writing and having considered that the said Officer only deserved 8 in certain qualities and not nine, converted the same to 8 and there was no tampering or conversion of the figures. He also stated that the petitioner had written 8 in such similar manner without intending to injure anybody"s interest.