M.A. No. 19/2011 in T.A. No. 60 of 2009 and W.P. (C) No. 116 of 1994. Case: Brig (Retd) P.K. Dutta Vs Chief of the Army Staff & Ors.. Armed Forces Tribunal
| Case Number | M.A. No. 19/2011 in T.A. No. 60 of 2009 and W.P. (C) No. 116 of 1994 |
| Judges | Mr Justice Manak Mohta, Judicial Member and Lt Gen. M.L. Naidu, Administrative Member |
| Issue | Army Act, 1950 - Sections 52(f), 62 |
| Judgement Date | May 30, 2012 |
| Court | Armed Forces Tribunal |
Order:
(Principal Bench At New Delhi)
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Vide this M.A. applicant sought implementation of the judgment and order dated 05.08.2010 passed by Hon'ble Armed Forces Tribunal(PB). However, respondents decided to go in for SLP which came up for hearing on 19.03.2012 vide Criminal Appeal No. 558/12. The Hon'ble Apex Court dismissed the appeal on grounds of limitation on the same date i.e. 19.03.2012. Meanwhile, the applicant had also filed Review Application No. 55/2011 on 20.06.2011 alongwith M.A. No. 373/2011 for condonation of delay in which he sought review of the last operative paragraph of the order. However, since the SLP was decided by the Hon'ble Apex Court, he did not press for R.A. Thus, the R.A. No. 55/2011 alongwith M.A. No. 373/2011 were dismissed as withdrawn. The issue is with regard to implementation of the order of Hon'ble Armed Forces Tribunal dated 05.08.2010 in T.A. No. 60/2009. The operative portion of the order at para 27 is as under:
In view of the aforesaid discussion, the accused/appellant is found not guilty of the offences under Army Act Section 52(f) pertaining to Charge Nos. 1, 5 and 7. However, he is found guilty of the offence under Army Act Section 62 pertaining to Charge No. 4 i.e. improperly allowing Col Tandon, CO, 27 Mtn DOU to incur expenditure (including liabilities) on local purchase of stores in excess of the allotted funds for the year 1991-92. Accordingly, the sentence is modified to the period of imprisonment already served and to forfeit three years' service for the purpose of computation of pensionary benefits. The appeal is decided accordingly.
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Learned ASG for the respondents stated that the order pertains to modification of the sentence from that of "cashiering" to imprisonment for the period already served and forfeit of three years service for the purpose of computation of pensionary benefits. He argued that in case the imprisonment is maintained even though it was for the period already served which implies that applicant was in military custody during this period already served that will be counted towards his punishment. Any period of imprisonment awarded or maintained as punishment automatically implies that an officer is "cashiered". Since the officer is cashiered in the aforesaid manner, he is not entitled to any pensionary benefit.
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Learned ASG for the respondents conceded that Hon'ble Tribunal has awarded forfeiture of 3 years of service for the period of computation of pensionary...
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