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25448L Lt Gen PK Rath

Attached to HQ Eastern Command Fort William Kolkata - 21 Feb 2011

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25448/PKR/Pers The Chief of Army Staff Integrated HQ of MoD (Army) DHQ PO, New Delhi-110 011

PRE-CONFIRMATION PETITION UNDER SECTION 164 (1) OF THE ARMY ACT, 1950 AGAINST THE FINDINGS AND THE CONSEQUENT SENTENCE OF THE GENERAL COURT MARTIAL HELD IN SHILLONG IN RESPECT OF IC-25448L LT GEN PRASANT KUMAR RATH OF INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (ARMY) ATTACHED TO HEADQUARTERS EASTERN COMMAND

1.

I, IC- 25448L Lt Gen Prasant Kumar Rath of Integrated Headquarters of

Ministry of Defence (Army) attached to Headquarters Eastern Command wish to submit the following :(a) That I was tried by a General Court Martial between 14 Sep 2010 and

22 Jan 2011 for certain acts/omissions alleged against me while I was performing the duties of General Officer Commanding HQ 33 Corps. I was tried on seven charges out of which First, Third and Sixth charges were laid under Section 52 (f) and Second, Fourth and Seventh , which were alternative to the First, Third and Sixth charges respectively, were framed under section 63 of the Army Act. The fifth charge was laid independently under Section 63 of the Army Act. (b) That after the conclusion of trial, the General Court Martial found me

not guilty of First, Third, Sixth and Seventh Charges but I was found guilty of Second, Fourth and Fifth Charges preferred against me under Section 63 of the Army Act 1950. The findings of the Court Martial were announced in the open Court on 21 Jan 2011 as subject to confirmation.

(c)

That consequent to such findings, I was sentenced by the General Court

Martial which is as under:(i) To take rank and precedence as if his appointment as

substantive Lieutenant General bore date 24th day of May 2010. (ii) (iii) To forfeit fifteen years past service for the purpose of pension. To be severely reprimanded.

The above sentence was announced in the open court subject to confirmation on 22 Jan 2011. (d) That in terms of Rules 69 and 70 of the Army Rules 1954, the

Proceedings of the General Court Martial would be placed before appropriate confirming authority and before such confirmation the statutory review of the GCM proceedings including the evidence, procedure, findings and consequent sentence passed by the Court Martial will also be reviewed by the appropriate authorities. Notwithstanding the same, by way of present petition, I wish to place certain factual and legal issues with an earnest request that the same may be considered dispassionately and objectively to give me due justice in the matter. (e) By way of the present Petition without going into the specific details of

the evidence and procedure, I wish to place certain salient aspects involved in the matter which somehow escaped the attention of all authorities right from the stage when the Court of Inquiry was convened till the culmination of the GCM which found me guilty on account of certain procedural lapses though the GCM was gracious enough to clear me from all charges preferred against me under Sec 52 (f) for intending to defraud and one charge under Sec 63 of allegedly passing directions for changing the noting sheet of a subordinate staff officer. However, a dispassionate and objective analysis of the evidence brought forth before the GCM, would result in an inevitable and irresistible conclusion that I should not have been in any manner found responsible for even such charges for which I stand convicted today. It is not only because of lack of evidence to fasten any criminal liability on me, but also because such acts/omissions alleged against me, even assumed to have happened without

admitting the same as suggested in the charges, same by no stretch of imagination could have been categorised as acts of impropriety on my part let alone such much less the acts actswhich could to be viewed as acts/omissions prejudicial to good order and military discipline. (f) It is a fact that at the fag end of my tenure as Corps Commander HQ 33

Corps while the present Chief of Army Staff was the GOC-in-C, HQ Eastern Command, the matter related to the processing of New Chumta Tea Estate by HQ 33 Corps and certain steps taken in respect of the same assumed such seriousness resulting in convening of a Court of Inquiry by the then GOC-in-C HQ Eastern Command which ultimately formed the basis of initiation of disciplinary action against me. However, it will be a matter of great surprise not only for those who did not have any personal knowledge about the matter who chose to go by the hype created by the media but also for those who had the occasion to deal with the matter albeit in a most vitiated atmosphere wherein the doubts, suspicions, surmises and conjectures had played a big role. It had not allowed let any scope for emergence of truth to such an extent that a simple matter was allowed to assume asuch monstrous dimension which it did not merit at all. Had the truth of the matter was known to all concerned I am very sure not only such unfortunate events would have been avoided. whichIt has very effectively not only destroyed my personal reputation which I have very painstakingly built up throughwas earned by me with my sustained perseverance, sincerity, integrity and honesty over the exhibited by me for last forty years of service. but also caused irreparable damage to the image of Army as a whole when this was not warranted in any manner. (g) Notwithstanding the cloud of suspicion surrounding the entire

spectrum of processing the case of New Chumta Tea Estate , a barren piece of land situated in the middle of a Tea Estate adjoining HQ 33 Corps when I happened to be the Corps Commander, I wish to the submit the following salient aspects of the matter as evidence as emerged in the evidence before the GCM :-unmistakably brings to light the following facts :(i) As per the evidence available on record there exists a Tea Estate namely New Chumta Tea Estate spread over the area of 2711 Acres near

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Sukhna Military Station which is was under the ownership of M/S Roopacherra Tea Co Ltd. on the basis of long term lease deed between Govt of West Bengal and the said Tea Company for Tea plantation (Reference is made to the statement of Mr. Sharad Bajoria, PW-8 as well as lease agreement of private parties as available on record as exhibit 46 and exhibit 57). Such lease was given under WBEA Act 1953 and the West Bengal Govt. had no authority to resume or take over such land as long as the lessee was using the lease hold land for the purpose of Tea cultivation for which such land was given on lease which is very specifically provided under Section 6 (3) of the WBEA Act, 1953. (ii) It is pertinent to mention that such Tea Estate is coexisting near Sukhna Military Station since time immemorial and the ownership of such land was vested in the said Company on the basis of the lease which continued till 2006. Based on the request of the Tea Planters and their associations for consideration of grant of permission to use those portion of the lease hold Tea Garden lands which are not used or usable for the purpose of Tea Plantation and other Tea related activities, on 24 Aug 2005, a policy decision was taken by the Govt. of West Bengal to allow expansion of tourism industry in the vacant / barren piece of land. However, such tourism development project on such piece of land was required to be presented to the tourism department and after due vetting by the tourism department such project along with recommendation of tourism department about the exact quantum of land required for vetted project, was required to be submitted to the Collector along with the No Objection Certificate from the Tea Board as well as C & I Department of the Govt. of West Bengal. The said policy specifically prohibited real estate business including development of housing estate, permanent shops and other establishments and other commercial activities under the pretext of development of tourism complex. The most pertinent aspect of such policy decision was the requirement of relinquishment of the ownership by the existing lessee of the said barren portion of land for such tourism project with stipulation that for any reason if such tourism project is not ultimately sanctioned or allowed, the relinquishment proposal shall lose its effect and the original lessee of the Tea Garden Land shall remain automatically the lease holder of the land relinquished in anticipation in

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favour of any proposed tourism project (reference is made to the relevant paras of exhibit 57 as well as deposition of PW-8). (iii) It is a matter of record that out of the total area of New Chumta

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Tea Estate under the ownership of M/s Roopacherra Tea Co Ltd., 71.55 acres was barren land and therefore the said piece of land was relinquished by the Company in favour of the four companies namely M/S Sheetala Vyapaar Pvt. Ltd, M/S Akshara Vanijya Pvt. Ltd, M/S Mata Vaishnodevi Mercantile Pvt. Ltd and M/S J.F. Low & Co. It is also interesting to note that out of 71.55 acres of barren land which is divided in two pieces, about 30 acres of barren land had become the river bed (Reference is made to deposition of Mr. Sharad Bajoria, the owner of M/s Roopacherra Tea Co Ltd.). Accordingly, in 2006, the Govt. of West Bengal entered into a lease agreement separately with the four companies for grant of lease for 99 years for the purpose of Tea Tourism project which was a long term lease subject to renewal time to time (reference is made to such lease agreements as available on record as Exhibit 46). It is pertinent to mention that the Govt. of West Bengal has never approached Army authorities before entering into such lease. The prosecution has not brought any evidence whatsoever to show that HQ 33 Corps was even aware about such lease agreement between the Govt. of West Bengal and private parties entered in 2006 or any intelligence report or analysis in which security concern of Army about the said project was carried out prior to taking up case for cancellation of lease for tea tourism project. (iv) On the contrary it has come in the prosecution evidence that

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based on the News pPaper Reports, the Army authorities sometime in Feb 2008 came to know about the said Tea Tourism project which was planned on the barren piece of land. Though, an attempt has been made by the prosecution to infuse seriousness in the matter on the basis of the depositions by Col N K Dabas (PW-1), Lt Col Jiji Vergese (PW-3) and Lt Gen R Halgali (PW-7) to the effect that some construction activity was noticed which does not appear to be correct because the prosecution has not brought any material to show that any construction activity had begun on the said land. As a matter of fact, Mr. Sharad Bajoria (PW-8) who was the most appropriate witness to clarify the issue has very categorically brought out the fact that no construction activity was initiated on such

land and he has not been able to manage any company or firm which was ready to undertake any Tea Tourism project on such land at any stage. (v) Therefore, it may be appreciated that the very perception of the

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Tea Tourism Project consisting of Shopping Malls, Villas and other commercial project was based on erroneous assumptions and for this reason the security implications of it was the mental appreciation of officers of HQ 33 Corps based on News Paper reports, contrary to the actual factual position on ground. However, Tea Tourism project due to its very nature of allowing unhindered access in the area by the foreigners etc. near Corps HQ had its own security implications which formed the base forjustified the actions taken by HQ 33 Corps of taking up the matter with the Govt. of West Bengal for stopping of such construction activity. Hence, the firm stand of HQ 33 Corps of not allowing any such Tea Tourism project in the said barren piece of land was justifiable. As a matter of fact I Aat no point of time have I diluted or allowed any deviation on such stance in relation to stopping of the Tea Tourism Project. As a matter of fact as per the inputs received by me from my staff, I followed up the matter with the Govt. of West Bengal after taking over as Corps Commander regarding stopping of the Tea Tourism project as pursued by my predecessor. (vi) The most crucial aspect of the matter, disregard of which at

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every level, has brought the situation to this stage, is related to the subsequent steps envisaged by my predecessor after cancellation of the lease for Tea Tourism Project. It is an admitted fact as evident from the records that the undertaking given by my predecessor to the Govt. of West Bengal for handing over the said barren piece of land and his undertaking to pay the cost of acquisition of the said land was given by him at his own level with the sole aim of preventingavoiding or pre-empting recurrencerecurrence of any such situation or the possibility of any other project coming up on the said land having same or similar security implications. I, as a Corps Commander, was apprised by my staff that there were serious legal infirmities in the subsequent course of action chosen by my predecessor after cancellation of lease for Tea Tourism Project. Hence, the point which is required to be considered is the availability of options suggested by my staff in relation to such land and considering the inherent

benefit and the merit in a particular option out of various available options explored at that point of time. The option needed to appear to be which was legally more appropriate, pragmatic and practically achievable while offering greater as well as had some tangible benefits to the military establishment., Under the circumstances, the any direction given by me to explore any one of such options and steps taken to explore the same at the level of staff officers could in no way could be construed as acts of impropriety. (vii) It has come in evidence that my predecessor had chosen one of

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the option to stop the possibility of any such project coming up in future with similar security implications by deciding at his own level that Govt. of West Bengal should be approached for acquiring the said piece of land. It will not be out of place to mention that Maj Gen (Now Lt Gen) R Halgali (PW-7) being the Chief of Staff at that point of time when the case was taken up with the Govt. of West Bengal for stopping of Tea Tourism Project has admitted the fact that request for handing over of the land was made by Army to the Govt. of West Bengal to avoid possibility of any other project having similar security implications coming up on the said land (reference is made to his deposition at Page 509 of the GCM proceedings). (viii) As per evidence available on record, the fact has emerged that

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the acquisition of land in the facts and circumstances of the case was really not possible and the same was not a viable solution to the problem of avoidance of any such proposal like Tea Tourism Project having similar security implications. It has come in evidence that the following preconditions have to should be met before any undertaking can be given for acquisition of a piece of land:(aa) Requirement of land for the project for Op Logistics purposes

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and for accretional forces assessed by a board of officers. (ab) The non- availability or deficiency of land in the station where such acquisition is proposed assessed by a board of officers.

(ac)

Obtaining a No Objection Certificate from the State Govt. in the

form of an undertaking that the State Govt. would have no problems in handing over of the land. (ad) The project for which land is required should have been

approved and sanctioned by competent authority, i.e., vizthe Army Headquarters. (ae) Preparation of statement of case for obtaining in principle

approval of the Honble Raksha Mantri for acquiring such piece of land as acquisition of land has financial implications and as per the existing financial arrangement such power to accord in principle approval for acquisition of land does not even rest with the Service Chiefs. (af) Once the in principle approval of Honble Raksha Mantri is

obtained the preliminary stage of the process of acquisition of land is said to have been completed. (ag) Only at this point, one can technically speak about the

willingness of the Army s position being to acquire that piece of land. Otherwise, it is merely a desire of an official.

(ix)

It is a matter of record that till April 2009, not a single step was

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taken by HQ 33 Corps towards the first and most preliminary step for acquisition of land. A decision of acquisition of land needing approval of Honble Raksha Mantri for agreeing in principle to acquire such land was taken in the matter at the level of the then Corps Commander who while making correspondence with Govt. of West Bengal had already communicated the decision to acquire such land and an undertaking binding the whole Army of paying the cost of such land. The matter is left for the consideration of the authorities whether giving such undertaking without authority and without considering or analyzing the ground realities had created any legal obligation for all concerned including me as the subsequent Corps Commander to pursue the same against the advice of my Staff officers including my Chief of Staff who gave an entirely different picture to me in the matter. The fundamental question affecting

the basic principlesfundamentals of the philosophy of Command function is whether the successor should feel himself bound by a decision however inappropriate taken by his predecessor it or based on practical considerations and better judgment there was as a matter of fact any possibility existed in which the successor of the previous Corps Commander hasd the authority to explore any other option(s) available. This is more solatter position becomes even more acceptable when it is based on legally sound and practically correct considerations and is further embellished with unprecedented which would have benefitsed for the officers and the troops at HQ 33 Corps by creation of facilities for them in the long run. (x) It will not be out of place to mention that as per KLP Matrix of 2006 as against the requirement of 3989.17 Acres of Land of Sukhna Military Station the total land under possession was 4430.49 Acres (Reference is made to exhibit 76). It is also pertinent to mention that as late as in Aug 2009, in the meeting between the then MGOL, HQ Eastern Command and Additional Chief Secretary on 28 Aug 2009 as noted in Exhibit 71 alongwith the report forwarded by the District Magistrate enclosed with such Exhibit, which was the only document indicating the approach of Govt. of West Bengal towards the request of Army for acquisition of such land, in the absence of any document produced by the prosecution indicating any contrary approach, the Govt. of West Bengal was of the view that approximately 259 Acres of land belonging to Army in the Sukhna Military Station is lying vacant and that should be used instead of acquiring land as being requested. The prosecution has failed in producing any document to prove anything to the contrary rather they have admitted that acquisition of the said land was not possible but they delink this with the processing of the case with obvious reasons when the subsequent steps taken in the matter was so intractably connected with the possibility or difficulty in acquiring the said piece of land. . It will not be out of place to mention that apart from the above land lying unutilized at Sukhna Military Station approximately 145 Acres of Defence land is under encroachment since 1960s and HQ 33 Corps has not been able to retrieve the said land (Exhibit 25). It is also pertinent to mention that as per the report of Defence Estate Officer, the Army has not been able to acquire a single acre of private land for last 30 years. and Tthe land in question

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being private land acquisition of which was a distant possibility if not a distant dream fraught with near certainty of litigation based on past experience. (xi) An attempt was made to suggest that acquisition of the land by

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invoking urgency angle in terms of Section 17 of the Land Acquisition Act, 1894 though no categorical stand was taken by any of the Prosecution Witness in this regard. This was so because in terms of the MOD letter No. 11011/1/92/D(Lands) dated 04 Feb 1992 (Exhibit 75) the urgency angle was not applicable in the present case because of availability of surplus defence land. Moreover, before invoking this section and case can be processed for such acquisition on this ground, existing available land including the land in custody of the sister services/departments has to be explored before taking up the case. The other option to legally restrict or deny enjoyment of land to the owner of such land by invoking the provisions of Works of Defence Act was also not possible in terms of the guidelines provided under Para 1160 of the Regulations for the Army read with Army HQ letter No. 35273/85/Q/3/L(Policy) dated 27 Jun 2000 and even No. dated 01 Aug 2000 read with Army HQ letter No. 54556/GS/MO2 dated 06 April 1973. The Works of Defence Act has no application in the present case and more so when there was no ammunition dump in and around the said barren piece of land within the stipulated distance, apart from the fact that the Sukhna Military Station was not a Cantonment but merely a military station where the power of the local military authority on the private lands situated adjoining the military station is far more restricted than in the case of a cantonment. As a matter of fact I was advised by my staff including the then Brig Admn or the then COS on the similar lines to which I had no reason to express my dissent as the same appeared to me very logical at that point of time especially no contrary view was ever brought to my notice making me rethink that such approach has any flaw in it. As a matter of fact there could not have been any such flaw which is very clear from the evidence available on record if the prejudicial and motivated oral deposition of accomplice witnesses totally contrary to the documentary evidence is ignored as the same had no evidentiary value.

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(xii)

I, after having taken over as Corps Commander, was hardly given

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any detailed briefing or handing taking over points bringing all correspondences before me as claimed by Lt Gen R Halgali (PW-7) and supported by Col N K Dabas (PW-1) and Lt Col Jiji Vergese (PW-3) for obvious reasons. The Prosecution has not produced any such handing taking over points or the briefings as claimed by the witnesses as documentary evidence to establish the said assertion. On the other hand, Maj Gen (then Brig) PC Sen has deposed that when he took over as Brig Adm he was given a cursory briefing about the case with only one slide. If that was the type of briefing given to the PSO who was directly dealing with the case and was responsible for the same , it can be well appreciated about the details with which the corps commander would have been briefed. (xiii) I was in the process of settling down when certain

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correspondences within a month of my taking over as Corps Commander were made and to which I had concurred as per the recommendations of my staff. However, after sometime till Dec 20089 based on various inputs including the minutes of the meeting between the then Col Q and DM Darjeeling on 01 Oct 200810 (Exhibit 31) which gave an impression to me that even the lease for the entire barren land might not be cancelled by the Govt. of West Bengal making the efforts made by HQ 33 Corps till then absolutely useless. Though, I concurred with the recommendations of the Staff to again approach the Chief Secretary for expediting the process of cancellation of lease for Tea Tourism Project, however, the sustained briefings by the staff including my Chief of Staff projecting a good quality school near the HQ 33 Corps as a possible solution to encourage the officers and the PBOR to bring their family, which was, though possible being a modified field area, but somehow found to be not happening. That resulteding in ain non occupation of large number of Govt. Married accommodations remaining unoccupied which in turn led to audit objections. Such establishment of school as proposed was recommended to be a potent solution for not only reducing the stress level of the troops but also improving the quality of their life as well as to be a solution for filling the Govt. married accommodations. Apart from above, I was given to understand by my Chief of Staff who on various occasions brought out the various flaws in the subsequent steps planned by my predecessor for

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acquisition of such land after cancellation of lease for Tea Tourism Project of such land, including the fact that the same was practically not achievable. These aspects have been admitted by the Prosecution witnesses themselves. (xiv) That the various inputs mentioned above and the my own value

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system which always gave greater emphasis to the education as one of the most important tools for improvement of quality of life and, the priority accorded by me to the reduction of stress level of the troops which was a serious problem, having dealt with such issues in my previous appointment as the Additional Dir Gen (D&V) at IHQ of MoD (Army) still which was fresh in my mind, were guidingdefinitely factors. Those led to the which occasioned of the passing of direction by me to my staff to examine the proposal of establishment of a School especially for girls when such proposal was brought to my notice like any other matter requiring its processing at various levels. It is clarified that at no point of time I had attached any special importance to such proposal as being made out now. After having given the directions on the letter put up to me by my Secretariat as a matter of routine, I endorsed my remarks Please examine, new angle project, we may consider which by no stretch of imagination could be construed to be the final decision in the matter or even to be any definitive view expressed by me at that stage. (xv) The most pertinent point requires consideration at the time of

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confirmation is the apparent conflict between the factual aspects forming part of oral depositions of accomplished witnesses and the various documents executed at that point of time in relation to the different stages of processing of the Chumta Tea Estate case. It has come out very categorically in the evidence of the then Brig Adm (PW-6) and also in the minute of meeting between him and Mr. Dilip Agarwal (CW-2) held on 01 Jan 2009 that CW-2 was categorically apprised by PW-6 that no No Objection Certificate could be issued for establishment of educational institute at New Chumta Tea Estate as per the existing lease agreement. He had also asked certain clarifications from Mr. Dilip Agrawal and his minute sheet gave a clear impression that further action will depend upon the receipt of inputs from Mr. Dilip Agarwal.

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(xvi)

Hence, it is apparent that the matter remained in the exploratory

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stage all through the proceedings because the various steps which were taken was to explore the possibility of obtaining the tangible benefits for the troops of 33 Corps stationed at Sukhna without compromising with the security concerns of Army in any manner. The attempt was made by the prosecution to prejudice the Honble Jury Members of the GCM by projecting that I had a meeting with Mr. Sharad Bajoria (PW-8) and Mr. Dilip Agarwal (CW-2) which was a serious matter. The attempt was made to infuse motive in otherwise an innocent act. witnesses including Lt Gen R Halgali (PW-7) connivance with each other. A picture has been attempted to be presented before the GCM by some of the prosecution who had bought their immunity by implicating me including Lt Gen R Halgali (PW-7) in Fortunately, the deposition of Mr. Sharad Bajoria (PW-8) had cleared the cloud of suspicion created by some of the Prosecution witnesses. It is a matter of record that such meeting, which was a very short one, in which a mention was made regarding a proposal for establishment of one School and which met with a response from me that the same would be considered if our security concerns are met. This brief meeting held in the broad day light in my office which was within the knowledge of one and all unfortunately was being projected as a serious impropriety on my part when there was no element of truth in it as found by the General Court Martial. (xvii) Thereafter, I received a letter from Govt. of West Bengal which was put up to me in the Dak in which the private parties were given an opportunity of hearing before cancellation of such lease for Tea Tourism Project which was mandatory in terms of the lease agreement between the West Bengal Govt and these private parties. Since a request was made to HQ 33 Corps for sending a representative for such meeting scheduled to be held on 06 Feb 2009, Brig Adm was called along with the Chief of Staff. It was recommended to me that we must send our representative to show our seriousness on the reservations on establishment of such Tea Tourism Project as it was expected that in the absence of any representative from Army the private parties would have tried to put across the distorted facts to the West Bengal Govt officials downplaying the security concerns of Army in relation to the establishment of Tea Tourism Project to avoid cancellation of their lease for the purpose of such Tea Tourism Project. It

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was also felt that in the absence of the representative from Army they might try to include the use of land for education purposes in the existing lease apart from the use for which the lease was already given to them which would not have been conducive to the interest of HQ 33 Corps as the same would have left the possibility open of any other project with similar security concern as Tea Tourism Project. Based on such inputs one aspect was decided that HQ 33 Corps would send a representative for such meeting scheduled to be held on 06 Feb 2009. (xviii) As regards the expression of the view in the said meeting, the

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then Brig Adm (PW-6) undertook the responsibility to carry out the detailed analysis of all aspects involving other staff officers because at that point of time it was not clear whether Govt of West Bengal would ask any view of Army about any other proposal or whether they will accept the use of such land for the purpose of education. It is pertinent to mention that as per histhe own admission of the then Brig Adm (PW-6) that such letter of Govt. of West Bengal and subsequent actions on the said letter were not connected with the earlier proposal received from Geetanjali Education Trust which was kept pending awaiting response from Mr. Dilip Agarwal. Hence, an independent analysis was necessary and in fact the same was carried out by the staff subsequently in the minute sheet. The obvious motive on the part of the then Brig Adm to assert that I had issued instructions to him to convey the No Objection of Army for such establishment of educational institute at New Chumta Tea Estate on 03 Feb 2009 itself is to save himself from the blame of not rendering the proper advice to me in the matter, and more importantly to supply a justification for his unethical act of using my name for requesting the then Station Commander (PW-4) to change his view as expressed in the minute sheet prepared by him earlier. It has been established by the GCM that I had not passed any such direction for changing of such noting sheet which is evident from the fact that I have been found not guilty on all such charges preferred against me. In any case the documents produced by the Prosecution witnesses and their own admission clearly established that such expression of view was a willingness to consider grant of No Objection Certificate in the event of the security concerns of the Army being met.

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(xix)

I was also given to understand by my staff that the MOU was also

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an exploratory step before issuance of formal No Objection Certificate for establishment of the educational institute to secure the interest of Army by obtaining firm commitments from the private party not only for the security concerns of the Army but also for securing various concessions from them including reservation of seats for the wards of Army personnel, reservation of seats for the job of various kinds, fee concessions, etc. It was learnt by me from the feedback received by me of the meeting held on 06 Feb 2009 in the office of the Additional Chief Secretary that first step in the entire matter would be cancellation of the lease for Tea Tourism Project, which as per the Prosecution witnesses would have met the requirement of the security. Thereafter, a new lease agreement would have been entered between the Govt. of West Bengal and the private parties which would have in no uncertain term provided that such land shall be used only for the purpose of education and the security concerns and other concessions of Army would have been reflected as the terms and conditions of the new lease proposed to be executed between the private parties and the Govt of West Bengal for the purpose of education. I was also given to understand by my staff that after the cancellation of lease for Tea Tourism and entering of new lease agreement for the education the stage would come in which the Army will be required to issue a No Objection Certificate for such establishment of educational institute. Hence, after having been given such an impression by the staff that till issuance of No Objection Certificate all steps being preparatory and exploratory in nature, neither created any necessity on my part to examine such steps with microscopic detail finding fault or trying to teach the staff officers their basic duties which is being advocated by the Prosecution witnesses who were primarily responsible for such functions. (xx) It is a matter of record that my direction in relation to MOU was

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confined to preparation of the draft MOU. It is also pertinent to mention that at no point of time I had passed any directions to the then Chief of Staff (PW-7) to enter into the MOU on 20 Mar 2009 or to hand over the copy of such MOU to the private parties which was done by him as per his own initiative. Of course, he did try to give the and justification forof the same by stating that it was was supplied as per my direction on the basis of imaginary phone calls with the obvious collusion with PW-6. The

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mischief played by the then Chief of Staff (PW-7) is very apparent from the fact that while putting up the minute sheet to me for my perusal and approval he purposefully did not seek any approval for entering into MOU nor did henot reflect it in the minute sheet itself that such MOU was entered on the telephonic directions of the GOC. The latter which would have been the proper process very natural if any such directions had really would have been received by him from me on telephone as alleged by him. I had returned after more than two weeks of temporary duty and had many pending files requiring disposal at my end. T, therefore, I could did not crosscheck as it was expected from the staff that my directions on the amendments of MOU would have been correctly carried out. Further, it is a coupled with the fact that such MOU was only construed to be a first step still in the exploratory or preparatory stage and therefore did did not give me any reason to check or scrutinize the action executed at the staff level at that point of time for its correctness. (xxi) So far as the most crucial issue for which I was blamed forof not

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informing HQ Eastern Command about such processing of the case of impugned land under the New Chumta Tea Estate is concerned, in the absence of any advice whatsoever from the staff projecting a requirement of my personally speaking to Army Commander or seeking his concurrence, even for initiation of certain steps which were projected to me as exploratory in nature, and also in view of my pressing commitments, I had no occasion to discuss the matter with the then Army Commander on such specific minor issues which assumed much larger dimension and importance only at the stage of C of I. There was absolutely no suggestion whatsoever from the staff projecting a requirement of my personally speaking to Army Commander or seeking his concurrence, even for initiation of certain steps which were projected to me as exploratory in nature. Further, I had, as the Corps Commander, other pressing commitments, I had no reason to believe suspect that staff might had had not have kept HQ Eastern Command informed about the progress related to Chumta Tea Estate case for last three months. This was the reason that when the Chief of Staff told me to speak to Army Commander just two days before his proceeding on posting informing me that the staff had not given the progress to HQ Eastern Command evoking the element of surprise and anger for such lapses even when I had issued general

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directions for intimating progress on land cases and when never anyo such direction was issued by me not to inform HQ Eastern Command which has been admitted by all the witnesses. Even otherwise the Prosecution has not produced any material before the GCM to establish that there was any personal obligation on my part to inform HQ Eastern Command as a Corps Commander for such matter which undoubtedly was within the domain of staff function. The passage of information and submission of reports and returns is squarely the responsibility of the staff. (xxii) In view of the above, based on the inputs received by me, I had

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only considered the options available to me and based on sound reasons and practical considerations involving the benefits available to the troops whose welfare is one of the prime duty of the Corps Commander, I passed necessary directions to examine the proposal for establishment of educational institute. Beyond this direction there is nothing else which could be construed as my directions though there were certain steps undertaken at that point of time which were brought to my notice for information without even seeking any specific concurrence of mine in relation to such steps. (xxiii) The Staff officers who were very intimately connected with the

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process of decision making were given a long rope to implicate me during the investigation and their deposition as accepted by the GCM required a closer scrutiny than what was done to fix my criminal liability. The statement of these accomplice witnesses requiring independent corroboration was totally lacking in the present case. Y yet, their statement formed basis for my conviction on three counts which according to me was not in accordance with the provisions of the law. 2. (h) Based on the above facts, at this stage without prejudice to my right and
contention to raise various issues in relation to the matter of procedure and evidence

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subsequently, I wish to submit certain very important legal and factual issues which according to me haves not been dealt with in accordance to the provisions of the with law causing grave prejudice to me. These issues are as under:-

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(i) The GCM had no jurisdiction to try me because the statutory functions which the Commanding Officer only can perform in the scheme of Army Act & Rules were performed by the officer who was not and who could not have been my Commanding Officer. Since I was attached with HQ Eastern Command, it was only the GOC-in-C Eastern Command who could have performed the statutory duties in relation to compliance of Army Rule 22, 23 & 24 which were the personal prerogative of the Commanding Officer. These statutory duties could not have been delegated by the Commanding Officer. However, it is a matter of record that such function was performed by the Chief of Staff which was legally not impermissible. Further, the duties of the Commanding Officer has to be performed by an officer senior in rank or at least senior in service in terms of the Regulation for the Army as well as custom of service. In the present case even such function of Commanding Officer for compliance of Army Rule 24 was performed by the officer who was junior in service to me and he performed such function without any such delegation of power to him by the GOC-in-C Eastern Command who was the Commanding Officer in terms of Para 9 of the Regulations for the Army even assuming, though not admitting, that such power could have been legally delegated as held by the GCM. (ii) It is pertinent to mention that as learnt by me, such issues were already raised by Brigadier T Prashad who was earlier detailed as Judge Advocate in his capacity as Judge Advocate after his appointment as such in terms of Rule 105 (3) which has also been admitted by the authorities in their reply to my queries sent to them under the Right of Information Act, 2005. However, for the reasons best known to the authorities, instead of rectifying as per his observations, he was substituted by another Judge Advocate. Even his advice given to the convening authority in his capacity as Judge Advocate was not produced and made part of the proceedings which was a normal legal procedure even when specific request was made for the same. This is definitely not a normal legal procedure. It is my sincere request that the plea to jurisdiction being the most important aspect of a trial has not been adjudicated by the GCM in accordance with law. Hence, on this ground alone the subsequent proceedings are liable to be quashed.

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3.

(iii)

Even otherwise, the factual aspects as mentioned above haves not been

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taken into account by the GCM while arriving at the findings which resulted in my conviction for Second, Fourth and Fifth charges as contained in the Charge Sheet. Had the GCM considered the salient factual aspects, there was no occasion for my conviction even on these counts.

4. (iv) The GCM somehow could not failed to appreciate the documentary evidences available on record most of which were produced by the Prosecution witnesses. It may be appreciated that these documents were executed during the normal course of performance of duties by the various functionaries who had no occasion to think at that point of time that the matter will have such serious repercussion which will lead to ordering of C of I in the matter. Hence, the contents of the documents reflects the true state of mind and the prevailing position at that time when certain steps were initiated in relation to New Chumta Tea Estate. It is a matter of record that witnesses after witnesses, most of whom were the staff officers intimately connected with such steps, have deposed before the GCM contrary to the contents of the documents executed by them or dealt by them in various capacity. However, their oral deposition has been given prominence which was against the most basic principle of Evidence Act that the contents of documents cannot be excluded or disputed on the basis of oral evidence which was even admitted by the Prosecution in their closing address. 5. (v) Even otherwise, the findings of the GCM were based on the deposition of the accomplice witnesses who had every reason to depose falsely and implicate me which was obvious defence for them. Their deposition which formed basis of the findings of the GCM was totally uncorroborated in the material aspect through independent evidence which was a legal necessity before placing any reliance on such deposition. However, no attempt was made to seek such independent corroboration by the GCM which resulted in grave injustice to me which is evident from the fact that I was convicted solely on the basis of such uncorroborated evidence of accomplice witnesses. It is submitted that as per the legal position, one accomplice cannot corroborate the evidence of the other accomplice. 6. (vi) The GCM has also did not taken into account the apparent contradictions on the material aspects as well as the improvements made by the witnesses for self serving reasons which made their credibility completely questionable. Hence, any

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such finding based on the deposition on such untrustworthy witnesses cannot be termed as just and legal. 7. (vii) The most crucial aspect is the common ground of my conviction on all

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three charges based on a single aspect given the position of prominence by the GCM about non intimation to HQ Eastern Command about conveying of the alleged No Objection and entering of MOU by HQ 33 Corps with the private parties. The GCM held the view in respect of Fifth charge that I, as a Corps Commander, was personally responsible forto informing HQ Eastern Command about these steps as mentioned above. But, no documentary evidence was produced without any evidence to establish the necessity or authenticity of show ssuch personal obligation of mine forof informing HQ Eastern Command. The GCM did not consider the most crucial aspect brought out by me that once it has been established that I had neverot passed any directions to my staff for not informing such developments to HQ Eastern Command. to my staff and Ssuch intimation to HQ Eastern Command was essentially a staff function, the question of such personal responsibility on my part as Corps Commander did not arise at all. However, these aspects were not taken into account by the GCM before finding me guilty for this charge. 8. (viii) The most important aspect which would show that my conviction for

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other two charges amount to multiplicity of charge and a live example of double jeopardy is the fact that the GCM termed conveying of so called No Objection and entering ofinto MOU as improper which was essential ingredient of the charges only on the same one ground that HQ Eastern Command was not informed about such steps for which I was already found guilty for the Fifth charge. Hence, such findings on Second and Fourth charge become legally unsustainable on this ground alone. 9. (ix) Even otherwise, the evidence available on record as documentary

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evidence and independent evidence clearly established my innocence on all counts but same has not been taken into account while the deposition of some motivated and partisan accomplice witnesses were given more weightage to fixasten the criminal liability on me. 10.. (x) There are various other procedural, legal and factual issues available

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on record which indicate the gross injustice which has been done happened to me. and Wwhile deliberating on the findings, the GCM ought to have taken into account my position as a Corps Commander and the norms of service and traditions which

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are followed in the higher formations for execution of various duties and responsibilities. 11. (xi) The relevant factors which ultimately resulted in my conviction has not

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only diminished the authority of a Corps Commander but had also opened a possibility of victimisation of superior commanders by making them very vulnerable and leaving them at the mercy of staff officers. 12. (xii) As regards the punishment awarded to me by the GCM, it is my sincere

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request that the lapses for which I was found blameworthy were even otherwise minor hiccups in the administrative procedure which should not have been categorised as offences which is evident from the fact that all the staff officers who were blamed on identical issues did not face any disciplinary action. It was known to the authorities that such actions were not offences which was the reason that all staff officers were awarded Censure by way of administrative action which was not possible if their action would have been viewed as offences because the policy on administrative action makes it explicitly clear that for offences administrative action cannot be taken against acts which are construed as offences. 13. (xiii) Once the GCM came to the conclusion that the acts attributed against

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me were not the defrauding acts nor these acts were the result of any ulterior motive on my part as per their own findings, my position had become absolutely similar to the position of the staff officers because while a personal motive was alleged against me, they were given benefit of doubt for lack of it, though it is a different matter that the personal motive of Lt Gen R Halgali (PW-7) had come to the notice during the course of the proceedings and there was no plausible explanation as to why such aspects were conveniently ignored and his role was downplayed at all levels. 14. (xiv) The most crucial aspect is the fact that while I was charged for

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allegedly directing the then Brig Adm (PW-6) to ask the then Stn Cdr (PW-4) to change his notings for which I was ultimately found not guilty under Sec 52 (f), PW6 was only awarded Severe Displeasure (Recordable) as deposed by him during his cross-examination for such act which he had admitted. It is beyond any logic as to why I must have to face such serious consequences of the punishment when the facts and circumstances as emerged after the trial in my case warranted much less seriousness as compared to the seriousness and gravity of the acts/omissions on the

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part of Lt Gen R Halgali (PW-7) and Maj Gen (Retd) P Sen (PW-6). Hence, such punishment when there was no malice in the acts for which I was blamed is not only highly discriminatory but also defies all parameters of fairness and reasonableness apart from the fact that the same is highly disproportionate to the acts of administrative lapses which ought not to have been categorised as offences by adopting same yardstick which was followed in respect of other officers found blameworthy on identical charges or even graver charges. 15. 2. It may be appreciated that for last more than one and half years, I have been facing immense harassment and humiliation for such acts when the truth is now known to all. My almost forty years of unblemished and exemplary service of almost forty years fell a victim of sustained media hype created in the matter completely destroying my reputation apart from causing immense agony, humiliation and harassment to me and my family including the extended family. 16. 3. Even aAt this stage, when I am still awaiting justice and do not actually know as to what I should do to obtain a single moment of solace and peace which has disappeared from my lifee for last one and half years. I do not know why I had to pay the price of this magnitude for certain acts which had no ulterior motive whatsoever and I do not know at this stage what I should do to see that I am relieved from the trauma, pain and sufferings of last two years approximately bringing my life to a grinding halt. Any reconsideration on the legal aspects of the trial including the quantum of punishment which is highly excessive as well as its early confirmation will definitely help me to overcome my pain, suffocation and sufferings undergone for all this period . 17. 4. Lastly, I wish to make an earnest request that a direction may be issued to all concerned that the matter should be finalised at the earliest so that I am in a position to take a realistic decision for an honourable exit keeping in view that I have approximately one year to go before retirement.as to what I should do to relieve myself from sustained pain and agony which I had to undergo for last two years which I definitely did not deserve. 18. 5. In view of the above, it is my sincere request that all aspects be examined as brought out by me in the above paragraphs and an expeditious decision may be taken to relieve me from all consequences of such findings and consequent sentence awarded by the GCM.

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Thanking you in anticipation.

Yours sincerely,

(P K Rath) Lt Gen Copy to :GOC-in-C HQ Eastern Command Fort William Kolkata- 21 for info and necessary action as deemed appropriate please.