I was analysing the sentence pronounced by the General Court Martial in the case of Lt Gen Rath. Lt Gen Rath has been found 'Guilty' on three counts and has been sentenced to:
If one analyses the first punishment, it means nothing, as loss of two years seniority at the fag end of his career really means nothing. The second punishment too is an eye wash. Considering that those retiring after 1.9.2008 are entitled to full pension after rendering 20 years of qualifying service, Rath would have still more than 20 years even after loss of 15 years service for the purpose of pension and thus eligible for full pension in the rank of Lt Gen.
Even in terms of the earlier Rules he would have been eligible to full or almost full pension. Considering Rath renders 40-41 years service by the time he retires, with such punishment his service for pension would be reduced to 25-26 years. With seven years of weightage that all officers get he would have got 32-33 years of service for pension, thus making him eligible for full pension in the rank of Lt Gen.
The third punishment at this stage of his career means nothing as 'Reprimand' does not come in any manner in one's promotion. Only 'Severe Reprimand' dis entitles one for consideration for next promotion for two years and I don't think Rath was in reckoning for promotion to COAS post. Yes, he would not be eligible to be considered for Army Cmdr's post. But then the present Chief in any case, GCM or no GCM, would not have taken him to be one of his Army Cmdr's. It is purely COAS prerogative as to who all he elects to be his Army Cmdr's. (Apex Court in Sham Kumar's case has ruled so. Col Sham Kumar was selected by the Selection Board for Brig rank. But the COAS then did not approve him for Brig rank. Apex Court held that it is COAS prerogative to select his team as he is answerable for Country's defence). Another case in sight is of Lt Gen Kadyan. Lt Gen Kadyan though senior to Kalkat, yet was denied Army Cdr's post and Kalkat being junior was selected as GOC-in-C Eastern Command.
Armed Forces want to set example of sorts to enforce discipline. A sepoy is court martialled and dismissed from service on overstaying leave, even if he has reasons top explain. I fought for one such Jawan who was dismissed from service for overstaying leave although the overstayal was due to his having fallen into a ditch and fracturing his leg. He was admitted in a nearby Civil Hospital. He had duly kept his Unit informed and had produced medical certificates from the Civil Surgeon of the Hospital. Even then he was dismissed. I had to file three petitions to have his punishment set aside and to get him his pensionary benefits.
The question I put to myself is "Is setting example only applicable at the lower levels or lower ranks?" Or is it the camaraderie that helped him as the members of the Court martial were all Lt Gens, perhaps comrade-in-arms to Rath.
I am reminded of the case way back in 1985 of Major General DSC Rai whom I defended and when he could not be court-martialled he was dismissed from service under Army Act Section 18. The charge 'His wife exhibited her paintings in a five star hotel which the Unit commanders under General Rai purchased from Unit funds' and Unit Commanders giving gifts to General Rai on his being posted out, in the form of souvenirs of Rs. 250/- that was in excess of RS.25/- prescribed in the Defence Services Regulations - both acts considered 'prejudicial to good order and military discipline'!
I ask myself "Hasn't Rath been dealt with leniently". Or was it only for the General Public consumption who are not aware that such punishments to Lt General Rath mean nothing and have no repercussions? In my view 'Setting Example' must come from the top.
With best regards,
MG (Lt Col MG Kapoor, Practising Law in Delhi High Court)
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