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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