CHANDRA KUMAR CHOPRA Vs UNION OF INDIA .
Bench: P. SATHASIVAM,DIPAK MISRA
Case number: Crl.A. No.-000665-000665 / 2002
Diary number: 19169 / 2001
Advocates: MADHU MOOLCHANDANI Vs
B. V. BALARAM DAS
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 665 OF 2002
Chandra Kumar Chopra .....……..Appellant
Versus
Union of India and others ………Respondents
J U D G M E N T
DIPAK MISRA, J.
The present appeal by special leave is directed against
the order dated July 23, 1991 passed by the High Court of
Judicature of Delhi in Writ Petition (Criminal) No. 590 of
1991 wherein the learned Single Judge has declined to
interfere with the order dated July 20, 1990 whereby the
confirming authority under Section 164 of the Army Act, 1950
(for short ‘the Act’) had passed an order of confirmation as
regards the sentence of cashiering but reduced the rigorous
imprisonment from five years to six months as imposed by the
Competent Authority of General Court Martial vide order dated
June 4, 1990.
2. The appellant after joining the Army was confirmed in the
rank of Second Lieutenant and eventually became a Major in due
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course of time. In the month of August, 1988 while serving at
Bangalore he was transferred to Udhampur at Jammu. While he
was functioning at Udhampur in the rank of Major a General
Court Martial proceeding was convened against him on the
following charges: -
“First Charge SUCH AN OFFENCE AS IS MENTIONED Army Act IN CLAUSE (f) OF SECTION 52 OF THE Section 52(f) ARMY ACT WITH INTENT TO DEFRAUD,
In that he,
at field, on 30th Jan. 89, with intent to defraud submitted a claim of Rs.35,270/- in respect of transportation of his household luggage and car in civil truck No. JKQ 3285 and JKR 0587 respectively on permanent posting from Bangalore to Udhampur well knowing that his such luggage and car had not been so transported.
Second Charge SUCH AN OFFENCE AS IS MENTIONED Army Act IN CLAUSE (D) OF SECTION 52 OF THE Section 52(D) ARMY ACT WITH INTENT TO DEFRAUD,
In that he,
at field, on 18th Jan. 89, with intent to defraud submitted Leave Travel Concession (LTC) claim for year 1988 to CDA (O) Pune, well knowing that he had already availed the LTC for the year 1988.
Third Charge “ AN ACT PREJUDICIAL TO GOOD Army Act ORDER AND MILITARY DISCIPLINE. Section 63
In that he,
at field, on 17th Nov. 1988, improperly utilised for himself IAFT- 1752-PA/53-869651 dated 15th Nov. 1988, single/ return journey railway warrant from Jammu to New Delhi and back.”
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3. In pursuance of the charge-sheet, General Court Martial
commenced on March 12, 1990 which consisted of five Members,
namely, Co. Choudhary Sohan Lal, Lt. Col. Harpal Singh, Lt.
Col. Shiv Kumar Singh, Maj. Saigal Rajinder Nath and Maj.
Manhas Rajender Singh.
4. At the commencement of trial in Court Martial, the
appellant objected to some of the officers being members of
the composition of Court Martial on the foundation that he had
lodged a statutory complaint under Section 27 of the Act
before the Central Government regarding certain irregularities
against the Commander of the Sub Area and as all the presiding
officers had worked under the Convening Officer, namely, Brig.
Phoolka, the composition of Court Martial was vitiated. The
Presiding Officer and other Members of Court Martial adverted
to Section 130 of the Act and Rule 44 of the Army Rules, 1954
(for short ‘the Rules’) and eventually repelled the objections
and proceeded with the trial.
5. After a full length trial, Court Martial found that all
the charges levelled against the appellant had been proved and
accordingly sentenced him as has been indicated hereinbefore.
6. After recording of guilt and imposition of sentence, the
appellant submitted an application under Section 164(1) of the
Act stating, inter alia, that the Members of Court Martial
were disqualified as there was a statutory complaint against
the Convening Officer under whom the Members of Court Martial
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were functioning; that he was not afforded adequate
opportunity to prepare his defence inasmuch as the officer
whose name had been given by him to defend his case was not
provided; and that the principles of natural justice had been
flagrantly violated. As far as the first charge was
concerned, it was stated that the household luggage and car
were transported from Bangalore to Udhampur in the hired
vehicle of Karnataka Transport Corporation (for short ‘the
Corporation’) and documents were produced to that effect but
the same were not taken into consideration; that no officer
from the Corporation was examined to find out the veracity of
the said receipts; that the bill alleged to have been
submitted by the appellant had been interpolated; that the
evidence brought on record was inadmissible as evidence being
hearsay; that he had handed over his personal luggage and car
to the Corporation for transportation and, therefore, the
reliance on the evidence of DW-6 was totally misconceived; and
that there was no material on record to disprove the factum
that the Corporation had transported the luggage from
Bangalore to Udhampur as claimed by the appellant. In this
backdrop, it was contended that the first charge was not
proved against the appellant.
7. As far as the second charge was concerned, it was put
forth that the appellant had not obtained Leave Travel
Concession twice as he had availed LTC once while he was
posted at Bangalore and again at Udhampur; that as per
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Regulation 177(A) and other provisions relating to availing of
LTC while serving in field area as defined in Travel
Regulation 177(C), he had availed two LTCs one while being
posted at Bangalore and the other at Udhampur and, therefore,
his claim for the LTC twice in a year was reasonable and
acceptable though it may suggest an erroneous interpretation
of Travel Regulations 177(A) and 177(C) but there was no
intention to defraud. That apart, after the said mistake was
detected, the appellant on 18.2.1989 had explained his
perception in his reply and at the instance of the Commanding
Officer of the Unit, recovery for the excess amount was
effectuated in the month of February, 1989 itself; and that
once the matter was closed by taking recourse to recovery, it
is to be presumed that the charge levelled against the
appellant stood closed and condoned by the competent authority
and hence, there was no justification or warrant to proceed
again in that regard in Court Martial.
8. As regards the third charge, it was urged that the
appellant had neither collected the alleged railway warrant
nor did he exchange it for the ticket. As a matter of fact,
he had purchased the ticket for AC-2 Tier on cash payment for
the journey from Jammu to Delhi and back. It was also
propounded that there was no evidence on record to prove that
the relevant railway warrant was utilized as no witness from
the railways was examined during the course of Court Martial.
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9. The confirming authority, as stated earlier, only reduced
the rigorous imprisonment from five years to six months.
10. Being dissatisfied with the aforesaid orders, the
appellant assailed the same before the High Court. Before the
High Court, it was contended that when the appellant had
expressed lack of confidence in the composition of Court
Martial, it was incumbent upon the convening officer to have
attached him to another unit; that there was inherent bias in
the functioning of Court Martial and the same got manifested
by denial of any engagement of proper officer; that the
finding recorded as regards the claim of transportation
charges without transporting the goods was contrary to the
material on record and, in fact, perverse since no officer
from the Corporation was examined; and that when the amount of
LTC was recovered, a charge of similar nature could not have
been framed as the same did amount to double jeopardy. The
learned single Judge negatived all the contentions and
dismissed the writ petition.
11. Ms. Indu Malhotra, learned senior counsel appearing on
behalf of the appellant, questioning the pregnability of the
order passed by the authorities under the Act and the writ
court, has raised the following contentions: -
(i) When lack of faith and confidence was expressed in the
competent authority who had convened the proceeding and
the composition of Court Martial in view of the statutory
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complaint filed by the appellant, the whole proceeding is
vitiated as the ultimate conclusion is the result of a
biased forum. The fundamental principle that ‘justice
should not be done but should appear to have been done’
has been guillotined by rejecting the objection raised by
the appellant in Court Martial and the concurrence
thereof by the confirming authority and the eventual
affirmance of the same by the High Court.
(ii) There has been violation of the principles of natural
justice as the appellant was not provided with a proper
defending officer and an officer was imposed on him who
was reluctant to canvass his case.
(iii) The first charge levelled against the appellant
cannot be said to have been proven inasmuch as no officer
from the Corporation was examined to deny the receipts
given by it to the appellant pertaining to transportation
of goods from Bangalore to Udhampur. That apart, the
stand and stance put forth by the appellant is that the
bill that has been submitted for transportation was
interpolated to show that goods had been transported in
truck Nos. JKQ 3285 and JKR 9587 by a different
transporter. Undue emphasis has been placed on the
evidence of DW-6 who had stated that goods were, in fact,
not transported. As far as the second charge is
concerned, it was imperative on the part of Court Martial
to examine an official from the railways to prove that he
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had availed the warrant and exchanged the same for a
ticket. As regards the third charge, the same is
absolutely unsustainable inasmuch as after the
misconception was cleared, the amount was recovered which
amounts to condonation of the act.
(iv) The appellant had served with dedication and devotion in
the war field and at difficult stations for a period of
21 years and had an unblemished career and hence, the
punishment imposed is totally disproportionate and it is
a fit case which undoubtedly invites the invocation of
the doctrine of proportionality.
12. Mr. R. Balasubramanian, learned counsel appearing on
behalf of the respondents, per contra, has submitted as
follows: -
(i) The statutory complaint alleged to have been made by the
appellant was against Commander 71, Sub Area and at the
time of lodging of the complaint, the concerned authority
was one Brig. I.S. Sahni whereas the convening officer of
Court Martial was Brig. J.S. Phoolka and, therefore, the
convening of the proceeding cannot be flawed. The
objections raised with regard to certain officers who had
formed Court Martial were absolutely vague and, in fact,
the plea of bias was a figment of imagination of the
appellant and the authorities as well as the High Court
have appositely repelled the said stand.
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(ii) The appellant was duly defended by the officer concerned
who was engaged to defend him and, therefore, there had
been no violation of the doctrine of audi alteram partem
and, in any case, no prejudice was caused to him.
(iii) The allegation of interpolation of the bill is
farthest from the truth inasmuch as the document to the
naked eye would clearly reveal the signature of the
appellant and he was holding the post of Major in the
Army and the person in his position very well knew what
was written over there and there is no interpolation.
The plea of interpolation is an afterthought and the same
does not merit any consideration. The charges have been
duly proven and the findings are based on evidence, both
oral and documentary, brought on record.
(iv) Keeping in view the post that was held by the appellant,
the submission that the principle of proportionality
should be invoked and a lesser punishment be imposed,
does not stand to reason since the charges are grave in
the backdrop of a disciplined force like Army.
13. First, we shall deal with the issue of bias. On a
perusal of the record, it is graphically clear that it was
Brig. J.S. Phoolka who had convened Court Martial under
Section 109 of the Act. The statutory complaint submitted by
the appellant pertained to certain irregularities committed by
Commander 71, Sub Area. Be it noted, in Court Martial, as
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soon as the court assembled, it read over the names of the
presiding officer and other members to the accused and
enquired if he had any objection to any of the members being
party to the tribunal. The appellant objected to the
composition of the tribunal basically on the ground of lodging
of the statutory complaint. The question that arises for
consideration is whether a complaint made pertaining to
irregularities by the commanding officer of the relevant Sub
Area would tantamount to composition of the tribunal as a
biased forum solely on the foundation that all members worked
in the said Sub Area.
14. In this regard, we may profitably refer to the decision
in Manak Lal v. Dr. Prem Chand1 where it has been opined that
every member of a tribunal who proceeds to try issues in
judicial or quasi-judicial proceeding must be able to act
judicially. It is the essence of judicial administration that
judges should be able to act impartially, objectively and
without any bias. In such cases, the test is not whether, in
fact, a bias has affected the judgment, the test always is and
must be whether a litigant could reasonably apprehend that a
bias attributable to a member of the tribunal might have
operated against him in the final decision of the tribunal.
15. In Gullapalli Nageswara Rao and others v. Andhra
Pradesh State Road Transport Corporation and Another2, it has
1 AIR 1957 SC 425 2 (1959) Supp.1 SCR.319
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been held that the principles governing the “doctrine of bias”
vis-à-vis judicial tribunals are well-settled and they are:
(i) no man shall be a judge in his own cause; (ii) justice
should not only be done but manifestly and undoubtedly seem to
be done. The two maxims yield the result that if a member of
a judicial body is subject to a bias (whether financial or
other) in favour of, or against, any party to a dispute, or is
in such a position that a bias must be assumed to exist, he
ought not take part in the decision or sit on the tribunal.
16. In A.K. Kraipak and others v. Union of India and others3,
this Court was dealing with the constitution of a Selection
Board. One of the members was to be considered for selection.
In that context, it was observed that it was against all
canons of justice to make a man judge in his own cause. It
was further observed that the real question is not whether he
was biased, for it is difficult to prove the state of mind of
a person. What is required to be seen is whether there is
reasonable ground for believing that a person is likely to
have been biased. A mere suspicion of bias is not sufficient.
There has to be reasonable likelihood of bias. It was
emphasised that while deciding the question of bias, the Court
is required to take into consideration human probabilities and
ordinary course of human conduct.
3 AIR 1970 SC 150
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17. In Dr. S.P. Kapoor v. State of Himachal Pradesh and
others4, a two-Judge Bench did not appreciate the Annual
Confidential Reports which were initiated by an officer junior
to the appellant and also an aspirant for promotion to the
higher post along with other candidates, should have been
taken into consideration. It was observed therein that it was
not fair on the part of the Departmental Promotion Committee
to take into consideration the Annual Confidential Reports
made by junior officer though they might have been revised by
the higher authorities. Emphasis was laid on the fairness of
action.
18. In Ranjit Thakur v. Union of India and others5, this Court
was dealing with Court Martial proceeding. Venkatachaliah, J.
(as his Lordship then was) emphasised on the procedural
safeguards contemplated in the Act regard being had to the
plenitude of summary jurisdiction of Court Martial and the
severity of the consequences that visit the person subject to
that jurisdiction. It was observed that the procedural
safeguards should be commensurate with the sweep of the power.
A contention was canvassed in the said case that the
proceedings of Court Martial were vitiated as the fourth
respondent who was biased against the appellant was member of
the tribunal. In that regard, it was held that the test of
real likelihood of bias is whether a reasonable man, in
possession of relevant information, would have thought that
4 (1981) 4 SCC 716 5 (1987) 4 SCC 611
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bias was likely and whether the concerned respondent was
likely to be disposed to decide the matter only in a
particular way. The appellant in that case had sent a written
complaint complaining of ill-treatment at the hands of
respondent No. 4 directly to the higher officers as a result
of which he was punished with 28 days’ rigorous imprisonment
by the said respondent. Keeping the said fact in view, the
Bench held that the participation of the respondent No. 4 in
Court Martial rendered the proceeding coram non-judice.
19. In M/s. Crawford Bayley & Co. & Ors. v. Union of India &
Ors.6, this Court referred to the circumstances under which the
doctrine of bias, i.e., no man can be judge in his own cause,
can be applied. It has been held therein that for the said
doctrine to come into play, it must be shown that the officer
concerned has a personal bias or connection or a personal
interest or was personally connected in the matter concerned
or has already taken a decision one way or the other which he
may be interested in supporting.
20. In S. Parthasarathi v. State of Andhra Pradesh7, while
dealing with the test of likelihood of bias, it has been
opined that if right minded persons would think there is a
real likelihood of bias on the part of an officer, he must not
conduct the inquiry. It has been observed that surmises or
conjectures would not be enough, there must exist
6 AIR 2006 SC 2544 7 (1974) 3 SCC 459
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circumstances from which reasonable man would think that it is
probable or likely that the inquiring officer will be
prejudiced against the delinquent officer. Be it noted, the
issue before the Court was enquiry by an inquiry officer
against whom bias was pleaded and established.
21. At this juncture, we may usefully reproduce a passage
from Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon8
wherein Lord Denning M.R. observed thus: -
“……in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right- minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”
22. From the aforesaid pronouncement of law, it is
discernible that mere suspicion or apprehension is not good
enough to entertain a plea of bias. It cannot be a facet of
one’s imagination. It must be in accord with the prudence of
a reasonable man. The circumstances brought on record would
show that it can create an impression in the mind of a
reasonable man that there is real likelihood of bias. It is
not to be forgotten that in a democratic polity, justice in
8 (1969) 1 QB 577, 599
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its conceptual eventuality and inherent quintessentiality
forms the bedrock of good governance. In a democratic system
that is governed by Rule of Law, fairness of action,
propriety, reasonability, institutional impeccability and non-
biased justice delivery system constitute the pillars on which
its survival remains in continuum.
23. It is worth noting that despite the sanctity attached to
non-biased attitude of a member of a tribunal or a court and
in spite of the principle that justice must not only be done
but must seen to have been done, it is to be scrutinized on
the basis of material brought on record whether someone makes
wild, irrelevant and imaginary allegations to frustrate a
trial or it is in consonance with the thinking of a reasonable
man which can meet the test of real likelihood of bias. The
principle cannot be attracted in vacuum. In the case at hand,
the convening officer had ceased to be the Commander. There
was a general complaint against the irregularities about the
Commander, the convening officer. The objection that was put
forth by the appellant in Court Martial was that his complaint
was pending with the Central Government. Nothing was brought
on record that there was anything personal against any of the
members who constituted Court Martial. Thus, in the obtaining
factual matrix, it is extremely difficult to hold that there
was real likelihood of bias because the prudence of a
reasonable man cannot so conceive and a right minded man would
discard it without any hesitation. Hence, we repel the said
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submission raised by the learned senior counsel for the
appellant.
24. The next contention pertains to compliance of the
principles of natural justice. The only ground raised is that
the appellant was not provided a defending officer of his
choice. It is not a case where he was not provided with the
assistance of a defending officer. On a close scrutiny of
Court Martial proceeding, we find that the defending officer
had acted with due sincerity and put forth the case of the
appellant in proper perspective. There can be no shadow of
doubt that there has been compliance of the principle of
natural justice and no prejudice has been caused to the
appellant because of any kind of non assistance. That apart,
there is nothing in the Act or the Rules which lay down that
an accused shall be given a defending officer of his own
choice. Thus, there is no violation of any mandatory
provision and, therefore, it cannot be said that the
proceeding is vitiated because of violation of the principle
of natural justice.
25. The third plank of submission of both the learned counsel
for the parties relates to the issue whether the charges
levelled against the appellant have been really proven or not.
We have enumerated the submissions relating to charges and it
is apposite to deal with them together. Ms. Indu Malhotra,
learned senior counsel, would submit that the first charge has
not been proven at all as the appellant had given the
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responsibility to the Corporation to transport the goods from
Bangalore to Udhampur. There is no dispute over the factum
that the appellant had produced the receipts from the
Corporation. To satisfy ourselves, we have carefully perused
the original file which was produced before us. The bill
submitted by the appellant clearly reflects that the truck
Nos. JKQ 3285 and JKR 9587 are alleged to have carried the
goods of the appellant. Nothing has been mentioned therein
that the transportation was made by the Corporation. To
substantiate the claim in respect of the said bill, the
receipts of the Corporation were filed. On a perusal of the
receipts, it is perceptible that they neither reflect the name
of the truck owner nor do they mention the truck numbers.
What is ultimately argued is that there had been interpolation
in the bill. On a bare look at the bill, it is luculent that
there is no interpolation. That apart, DW-6 Satinder Pal
Singh s/o Janak Singh, who has been cited as defence witness
to substantiate that he had transported the goods, has
specifically stated that only a receipt for transporting the
goods was given but no goods were, in fact, transported.
Apart from that, PW-13, the toll incharge, has categorically
asserted that the trucks namely, JKQ 3285 and JKR 9587,
alleged to have carried the goods of the appellant did not
cross the check-post barrier. The cumulative effect of all
this clearly establishes the first charge beyond any trace of
doubt. Thus, the first charge is proved.
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26. As far as the second charge is concerned, it relates to
availing of LTC. There is no doubt that the LTC was availed
of twice to which the appellant was not entitled to. What is
contended is that once the recovery was done, it could not
have been the subject matter of Court Martial. Needless to
say, recovery of excess amount stands in a different
compartment altogether and Court Martial pertains to good
order and military discipline. That apart, recovery ipso
facto does not create a bar for the matter to be tried in
Court Martial. In this context, we may refer with profit to
Rule 53 of the Rules that deals with plea in bar. The said
Rule is reproduced hereinbelow: -
“53. Plea in bar. – (1) The accused, at the time of his general plea of “Guilty” or “Not Guilty” to a charge for an offence, may offer a plea in bar of trial on the ground that –
(a) he has been previously convicted or acquitted of the offence by a competent criminal court or by a court-martial, or has been dealt with summarily under sections 80, 83, 84 and 85, as the case may be, for the offence, or that a charge in respect of the offence has been dismissed as provided in sub-rule (2) of rule 22; or
(b) the offence has been pardoned or condoned by competent military authority;
(c) the period of limitation for trial as laid down in section 122 has expired.
(2) If he offers such plea in bar, the court shall record it as well as his general plea, and if it considers that any fact or facts stated by him are sufficient to support the plea in bar, it shall receive any evidence offered, and hear any address made by or on
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behalf of the accused and the prosecutor in reference to the plea.
(3) If the court finds that the plea in bar is proved, it shall record its finding and notify it to the confirming authority, and shall either adjourn, or if there is any other charge against the accused, whether in the same or in a different charge-sheet, which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.
(4) If the finding that the plea in bar is proved is not confirmed, the court may be re- assembled by the confirming authority, and proceed as if the plea has been found not proved.
(5) If the court finds that the plea in bar is not proved, it shall proceed with the trial, and the said findings shall be subject to confirmation like any other finding or the court.”
On a bare reading of the aforesaid Rule, it is vivid that
recovery of the amount does not come under any of the clauses
mentioned in the Rule because there has neither been any
previous conviction or acquittal nor has there been any kind of
pardon or condonation by any competent military authority.
Thus, the submission leaves us unimpressed and we
unhesitatingly decline to accept the same.
27. As far as the third charge is concerned, it relates to
improper utilisation of the railway warrant from Jammu to New
Delhi. The only point urged is that an officer from the
railway should have been examined. On perusal of the record,
it is perceivable that the appellant put up a requisition for
obtaining the railway warrant and the same was collected by
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the representative on his instructions. He forwarded a letter
for reservation and thereafter necessary reservation was made.
Exchange of warrant for tickets has been duly proven. Under
these circumstances, the plea that he had not collected the
railway warrant and there should have been an examination of a
competent witness from railway administration is bound to
collapse and, accordingly, we reject the said submission.
28. The last submission of Ms. Indu Malhotra, learned senior
counsel, pertains to the proportionality of punishment. It is
submitted by her that the appellant has rendered dedicated and
disciplined service for a span of 21 years and fought in the
front and regard being had to the nature of charges, the
punishment defies logic and totally buries the concept of
proportionality.
29. To appreciate the submission, we may advert to certain
authorities in the field. In the case of Ranjit Thakur
(supra), it has been held thus:-
“The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount if itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
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Irrationality and perversity are recognised grounds of judicial review.”
30. In Ex-Naik Sardar Singh v. Union of India and others9, a
two-Judge Bench of this Court adverted to Sections 71, 72 and
73 which deal with punishment awardable by Court Martial,
alternative punishment awardable by court-martial and
combination of punishments respectively. The Bench also
referred to Section 63 which deals with violation of good
order and discipline. In the said case, the appellant had
purchased 11 bottles of sealed rum and one bottle of brandy
from his Unit Canteen as he required the same to celebrate the
marriage of one of his close relations at his home town. He
was entitled to carry four bottles of rum and one bottle of
brandy as per the Unit Regulations/leave certificate while he
was proceeding on leave. There was confiscation of bottles of
liquor by the police while he was proceeding to his home town.
He was handed over to the Unit authorities and eventually, in
a summary court martial, he was sentenced to three months
rigorous imprisonment and dismissed from service. The plea of
the appellant before the court martial was that he had
purchased the liquor for the marriage of his brother-in-law on
the basis of permit that was issued to him. The said plea was
not accepted. This Court, after referring to the language
used in Section 72, which states that any punishment lower in
the scale set out in Section 71 can be imposed regard being
9 (1991) 3 SCC 213
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had to the nature and degree of the offence, and the decision
in Council of Civil Service Unions v. Minister for the Civil
Service10 and other authorities in the field, expressed the
view that there was an element of arbitrariness in awarding
the severe punishment to the appellant. The Bench opined that
the punishment was excessively severe and violative of the
language employed in Section 72 of the Act.
31. In Bhagat Ram v. State of H.P.11, it has been held that
penalty imposed must be commensurate with the gravity of the
misconduct and any penalty disproportionate to the gravity of
the misconduct would be violative of Article 14 of the
Constitution.
32. In Chairman-cum-Managing Director, Coal India Ltd. & Anr.
v. Mukul Kumar Choudhury & Ors.12, this Court adverted to the
concept of doctrine of proportionality and eventually opined
that the imposition of punishment is subject to judicial
intervention if the same is exercised in a manner which is out
of proportion to the fault. If the award of punishment is
grossly in excess of the allegations made, it cannot claim
immunity and makes itself amenable for interference under the
limited scope of judicial review. The test to be applied
while dealing with the question is whether a reasonable
employer would have imposed such punishment in like
circumstances. The question that has to be studiedly
10 (1984) 3 ALL ER 935 11 (1983) 2 SCC 442 12 AIR 2010 SC 75
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addressed is whether the punishment imposed is really
arbitrary or an outrageous defiance of logic so as to be
called irrational and perverse warranting interference in
exercise of the power of judicial review. The appellant was
initially cashiered from the Army and was sentenced to undergo
rigorous imprisonment for five years. The period of
sentence was reduced by the confirming authority. The
appellant was a Major in the Army and all the charges levelled
against him fundamentally pertain to commission of illegal
acts in fiscal sphere. The acts done by him were intended to
gain pecuniary advantage. The primary obligation of a member
of Armed Forces is to maintain discipline in all aspects.
Discipline in fiscal matters has to be given top priority as
that mirrors the image of any institution. That apart, the
appellant was a Major in the Army. Irreproachable conduct,
restrained attitude, understanding of responsibility and
adherence to discipline in an apple pie order were expected of
him. The proven charges luminously project that the said
aspects have been given a total go by. In this backdrop, it
is well nigh impossible to hold that the punishment was harsh
or arbitrary. Regard being had to the nature of rank held by
the appellant and the disciplined conduct expected of him, we
find that the doctrine of proportionality is uninvocable and,
accordingly, we are compelled to repel the said preponement
advanced by the learned senior counsel without any hesitation
and we do so.
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33. Consequently, the appeal, being devoid of merit, stands
dismissed.
...........................J. [P. Sathasivam]
..........................J. [Dipak Misra]
New Delhi; May 11, 2012