OA 302/2014. Case: Kamla Kanta Das Vs The Union of India and Ors. Armed Forces Tribunal

Case Number:OA 302/2014
Party Name:Kamla Kanta Das Vs The Union of India and Ors
Counsel:For Appellant:Aslok Kishore, Advocate and For Respondents: V.S. Tomar, Advocate
Judges:V.K. Shali, J. (Member (J)) and Air Marshal J.N. Burma, Member (A)
Issue:Army Act, 1950 - Sections 1, 113, 120, 122, 129, 52, 52(f), 63, 80; Constitution Of India - Articles 14, 21
Judgement Date:February 13, 2017
Court:Armed Forces Tribunal
 
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Order:

Air Marshal J.N. Burma, Member (A), (Principal Bench, New Delhi)

  1. The applicant aggrieved by the order of a GCM sentencing him to forfeit three years past service for the purpose of pension and of Severe Reprimand, prays for the following:

    (a) Setting aside/quashing the convening order of the GCM dated 05th November, 2009;

    (b) Quashing the findings and sentence of GCM passed on 25th February 2010 and the confirmation order dated 05 June 2010.

    (c) Grant of consequential benefits with interest.

    (d) To direct disciplinary action against Col. Vishu Sikka and the members of the C OI in accordance with para 4 of Army HQ letter No. 32908/AG/DV-1(P) dated 16 October, 2000 for having connived with Gen Cruz.

    (e) To direct disciplinary action against Maj Gen SA Cruz, VSM for having misused his position, having forged documents, having tutored witnesses, having wrongfully possessed transactions of the COI and for having conspired against the applicant.

    (f) To strike down para 392 (j) and (k) of the Regulations for the Army being violative of Article 14 and 21 of the Constitution.

    (g) To direct the respondents to issue necessary orders for disclosure of the DV Ban to the respective member of the Armed Forces on its' imposition so that nothing was done behind his back.

  2. The facts which are not disputed are as follows:

    "(a) The applicant was commissioned in the Army Medical Corps on 15.02.1985. In due course he was promoted to the rank of Lt. Col on 08.12.1999.

    (b) The applicant was tried by a GCM from 10 March 2009 to 25 Feb 2010 for the following charges:

    First Charge Army Act Section 52(f) -- SUCH AN OFFENCE, AS IS MENTIONED IN CLAUSE(f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD.

    In that he

    At Panagarh, between 17 Feb 2003 to 28 Feb 2003, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while performing the duties of Officer-in-Charge, Operation Theatre at Military Hospital, Panagarh, with intent to defraud caused to be recorded in the Operation Theatre Register, particulars of non-entitled patient Smt. Vidya Pati. 50 years operated for cholecystectomy as Smt. Vidya Bharti, 35 years, operated under PPH programme for Abdominal Tubectomy so as to cover her as an entitled case in terms of DGAFMS Memorandum No. 129/91

    Second Charge Alternative to First charge -- AN OMISSION PREJUDICIAL TO ORDER AND MILITARY DISCIPLINE

    In that he

    At Panagarh, between 17 Feb 2003 to 28 Feb 2003, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while performing the duties of Officer-in-Charge, Operation Theatre at Military Hospital, Panagarh, failed to ensure recording of correct entries in the Operation Theatre Register in respect of non-entitled patient Smt. Vidya Pati, 50 years operated for cholecystectomy, whose particulars as entered in the Operation Theatre Register showed her as Smt. Vidya Bharti, 35 years, operated under PPH programme for Abdominal Tubectomy so as to cover her as an entitled case in terms of DGAFMS Memorandum No. 129/91.

    Third Charge Army Act Section 52(f) -- SUCH AN OFFENCE, AS IS MENTIONED IN CLAUSE(f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD.

    In that he

    At Panagarh, between 05 July2004 to 16 August 2004, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while posted as anesthetist at Military Hospital, Panagarh, with intent to defraud did not inform the Commanding Officer of the said hospital, about his behaving administered anesthesia to the wife of No. 13975029A Nk (Dvr) MD Chakraborty of Military Hospital, Panagarh, in the intervening night of 05/06 July 2004 at 'Panagarh Nursing Home', a private nursing home at Panagarh, thereby entailing in non-crediting of Rs. 800/- (Rupees Eight Hundred only) to the State.

    Forth Charge Army Act Section 63 (Alternative to Third Charge) -- AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

    In that he

    At Panagarh, between 05 July2004 to 16 August 2004, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while posted as Anesthetist at Military Hospital, Panagarh, omitted to inform the Commanding Officer of the said hospital, about his having administered anesthesia to the wife of No. 13975029A Nk (Dvr) MD Chakraborty of Military Hospital, Panagarh, in the intervening night of 05/06 July 2004 at 'Panagarh Nursing Home', a private nursing home at Panagarh.

    Fifth Charge Army Act 63 --AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

    In that he

    At Panagarh, between 05 July 2004 to 16 August 2004, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while performing the duties of Officer-in-Charge, Operation Theatre at Military Hospital, Panagarh, improperly omitted to ensure entries in the operation theatre register in respect of following non entitled patients:

    Sixth Charge Army Act 63 -- AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

    In that he

    At Panagarh, between 05 July 2004 to 16 August 2004, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while performing the duties of Officer-in-Charge, Operation Theatre at Military Hospital, Panagarh, improperly omitted to bring to the notice of authority superior to the Commanding Officer, in contravention of para 317 of the Regulation for the Army, Revised Edition 1987, the unauthorized operations performed by MR-04873H Lt. Col. SN Bhattacharya, mentioned at Annexure-I.

    Seventh Charge Army Act Section 63 -- AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

    In that he

    At Panagarh, between 05 July 2004 to 16 August 2004, which came to the knowledge of the authority competent to initiate action on 07 Dec 2005, but could not be proceeded with due to the stay granted by the Hon'ble Calcutta High Court, which remained operative from 12 Sept 2006 to 30 Jan 2009, while performing the duties of Officer-in-Charge, Operation Theatre at Military Hospital, Panagarh, improperly allowed MR-04873H Lt. Col SN Bhattacharya to perform operation on the following non entitled patients who were otherwise not even admitted in Military Hospital, Panagarh:

  3. The applicant pleaded not guilty to all charges. A stay on the trial by Hon'ble High Court of Kolkata remained operative from 12th September 2006 to 30th January, 2009. The GCM found him "not Guilty" of first, third and six charges but "Guilty " of second, fifth (with exceptions) and seventh charges and sentenced him to forfeit three years of past service for purposes of pension and to be severely reprimanded.

  4. Case of the applicant is as follows:

    "(a) CO MH, Lt. SK Cruz entertained a grudge against the applicant harboring a misconception that he had originated some anonymous letters against him. Therefore, he engineered false accusations of private practice and managed to get a COI convened by respondent No. 4. Civilian Union leader Mr...

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