IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  876 of  2003

Union of India & Ors. … Appellants

Vs.

Bodupalli Gopalaswami … Respondent

With

CRIMINAL APPEAL NO.  877 of  2003

Bodupalli Gopalaswami … Appellant

Vs.

Union of India & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN,J.

As  the  ranks  of  parties  in  the  two  appeals  are  different,  for  

convenience, we will refer to the parties by their ranks in Criminal Appeal  

No.876/2003.

2. The first  respondent  was the officiating Commandant  and later  the  

Commandant  of  227  Company  ASC  (Supply)  Type  ‘G’,  Ambala  

Cantonment (hereinafter referred to as the ‘Supply Depot’) from 19.10.1988  

to  26.6.1990.  The  supply  depot  had  three  sections  –  Dry  Rations,  Fresh  

Rations  and Butchery.  The  appellant  as  the  Commandant  was  in  overall  

charge of the supply depot. As per the standard operative procedure for the  

Butchery, the following staff were detailed for operation:

(i) Supervisory Officer - Cap. P. S. Malhotra

(ii) Veterinary Officer - Lt. Col. G. S. Srivastava

(iii) J.C.O. in-charge - Sub. G. L. Kalra

(iv) NCO in-charge - Havaldar Clerk D. L. Prasad

3. On receiving complaints about irregularities in the butchery, a team of  

three  officers  from  the  Central  Bureau  of  Investigation  and  two  Army  

Officers carried out a raid/surprise inspection of the butchery on 14.2.1990,  

with the prior permission of the second respondent. They intercepted eleven  

vehicles belonging to different units returning from butchery after collecting  

meat and checked the meat for quality and quantity. They also inspected the  

butchery. The Report of the Inspection Team disclosed certain irregularities  

in the quality of the dressed meat supplied by the contractor, (which were  

being  issued  to  the  indenting  units),  maintenance  of  live  stock  and  

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supervision.  As  a  consequence,  the  officials  of  the  Butchery  were  all  

separately charge-sheeted.  

4. The first respondent, who was the Commandant of the Supply Depot  

was also issued a charge-sheet dated 30.12.1992 containing the following  

charges :  

First charge Army Act Section 52(f)

SUCH AN OFFENCE AS IS MENTIOEND IN CLAUSE (f) OF SECTION 52  OF THE ARMY ACT WITH INTENT TO DEFRAUD,

                 In that he,

at  Ambala  Cantonment,  on  14  Feb.1990,  while  Commanding  27  Company Supply (ASC), being contract operating officer for meat  dressed, with intent to defraud caused the acceptance of meat from  the contractor with heart as part of meat, well knowing that the same  was  not  acceptable  part  of  carcasses  as  per  para  86  of  Special  Condition of the Contract deed for the period from  1st May 1989 to  31st March, 1990, concerning meat supply at Ambala.  

Second charge Army Act Section 63

AN  OMISSION  PREJUDICIAL  TO  GOOD  ORDER  AND  MILITARY  DISCIPLINE,

                 In that he,

at Ambala Cantonment, on 14 February 1990, while Commanding  27  Company  Supply  (ASC),  having  visited  butchery  of  the  said  company at the time of inspection of carcasses by the Veterinary  Officer and having found the carcasses dribbling with water, failed  to ensure that  wet meat  dribbling with water  is  not  issued to the  Units, contrary to para 14(j) of Headquarters PH and HP area Shimla  (ST Branch) Technical Instruction dated 30th November, 1989.  

Third charge Army Act Section 63

AN  OMISSION  PREJUDICIAL  TO  GOOD  ORDER  AND  MILITARY  DISCIPLINE,

                 In that he,

at Ambala Cantonment, during the period from 26th February 1990  to 8th March 1990 while Commanding 27 Company Supply (ASC)  failed to ensure that stock of reserve animals was maintained in the  

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butchery of the said company as per para 51(a) of Special Condition  of the Contract deed for the period from 1st  May 1989 to 31st March  1990,  consequently  no  animals  were  held  in  reserve  in  the  said  butchery during that period.   

Fourth charge Army Act Section 63

AN  OMISSION  PREJUDICIAL  TO  GOOD  ORDER  AND  MILITARY  DISCIPLINE,

                 In that he,

at Ambala Cantonment, during the period from 11th March 1990 to  22nd March 1990, while Commanding 27 Company supply (ASC),  failed to ensure that stock of reserve animals was maintained in the  butchery  of  the  said  company  as  per  para  51(a)  of  Special  Conditions of the Contract deed for the period from 1st May, 1989 to  31st March, 1990, consequently no animals were held in reserve in  the said butchery during that period.

Fifth charge Army Act Section 63

AN  OMISSION  PREJUDICIAL  TO  GOOD  ORDER  AND  MILITARY  DISCIPLINE,

                 In that he,

at Ambala Cantonment, between 15th January 1990 and March 1990,  while  Officer  Commanding  27  Company  Supply  (ASC)  and  responsible  for  overall  control  of  the  operation  of  unit  butchery,  improperly failed to implement  the Standard Operating Procedure  for  Butchery  Group  Supply  Depot  Ambala  Cantt  dated  9th May,  1988, as amended, resulting in the following malpractices:  

(a) Duplicate  Brands  and  Veterinary  Officer’s  stamp  were  found in possession of contractor’s butcher.

(b) All rejected meat and other offals were not being destroyed  as per laid down instructions.

(c) Passed animals were not segregated but were allowed to mix  with the other animals of contractor.

(d) Hanging room was not sealed by the JCO Incharge butchery  after taking the green weight of the carcasses.

(e) Animals  passed  and  branded  were  not  segregated  for  a  minimum mandatory period of 12 hours before slaughtering.  

(f) Over  issue/under  issue  of  meat  was  made to  the  units  in  connivance with the representatives of the units.   

Charges  1  and  2  related  to  what  was  found  during  the  inspection  on  

14.2.1990. Charges 3 and 4 related to failure to maintain adequate animals in  

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reserve  subsequent  to  14.2.1990.  Charge  5  related  to  miscellaneous  

omissions and commissions generally based upon what was observed during  

the inspection on 14.2.1990.

5. On 14.1.1993, a direction for trial of the first respondent by General  

Court Martial (‘GCM’ or ‘Court Martial’ for short) was issued. On the same  

day, an order convening the GCM was issued by the third appellant. The  

trial commenced on 22.1.1993 and concluded on 30.7.1993. At the end of  

the trial, the GCM found the first respondent not guilty of the second and  

third charges, but guilty of the first charge, fourth charge and item (c) of the  

fifth charge. On that basis, the GCM imposed the sentence of dismissal from  

service on first respondent on 30.7.1993.

6. In pursuance of it, a show cause notice dated 30.6.1995 was issued to  

the  first  respondent  calling upon him to  show cause  why his  pensionary  

benefits should not be forfeited under Rule 16(a) of the Pension Regulations  

for  the  Army (Part  I),  1961 (for  short  ‘the  Pension  Regulations’).  After  

considering  the  first  respondent’s  representation,  the  President  of  India  

ordered  the  forfeiture  of  the  entire  pensionary  benefits  of  the  first  

respondent,  communicated  by  letter  dated  22.12.1995  from  the  Defence  

Ministry to the Chief of Army Staff.  

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7. Feeling aggrieved, the first respondent filed writ petition in the Punjab  

& Haryana High Court  (registered as  Crl.WP No.1797/1997) challenging  

General Court Martial proceedings, findings of the General Court Martial  

holding him guilty of the charges, sentence of dismissal from service and the  

decision of the appellants to forfeit his pensionary benefits. The High Court  

by judgment dated 25.8.2000 allowed the writ  petition in part.  The High  

Court held that the GCM proceedings were in order, there was no violation  

of any rules or procedure. It also found no ground to interfere with findings  

of guilt or the sentence. Consequently, the punishment imposed by the GCM  

was upheld. But the High Court held that the order forfeiting the pension and  

pensionary benefits of the first respondent was invalid as no reasons were  

assigned  in  the  order  dated  22.12.1995,  for  forfeiture  thereof.  The  High  

Court therefore quashed the order dated 22.12.1995 forfeiting the pension  

and  directed  the  appellants  to  reconsider  the  matter  with  reference  to  

Regulation 16(a) of the Pension Regulations  and the principles laid down by  

the Full Bench of the Delhi High Court in Brig.A.K. Malhotra v. Union of   

India –  (1997) (4) SLR 51. In short, the writ petition was allowed to the  

extent of quashing forfeiture of the pension but dismissed in regard to the  

challenge to the proceedings of GCM and the order of dismissal.  

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8. Aggrieved  by  the  quashing  of  the  pension  forfeiture  order  dated  

22.12.1995, the appellants (Union of India and the Army Authorities) have  

filed  Criminal  Appeal  No.876/2003.  Aggrieved  by  the  rejection  of  the  

challenge to the GCM findings and the imposition of the punishment, the  

first respondent has filed Criminal Appeal No.877/2003. On the contentions  

urged, the following questions arise for our consideration:  

In Crl.Appeal No.876/2003

(i) Whether  the  High  Court  having  upheld  the  order  imposing  the  

punishment of dismissal,  is justified in quashing the order dated  

22.12.1995 made under  Pension Regulation 16(a),  forfeiting the  

pension and directing reconsideration?

In Crl.Appeal No.877/2003   

(ii) Whether  the  finding  of  the  High  Court  that  conduct  of  the  

proceedings  of  the  GCM did  not  violate  any  rules,  calls  for  

interference?

(iii) Whether the findings of guilt in regard to charges 1, 4 and 5(c)  

require interference?

(iv) Whether  the  punishment  of  dismissal  is  excessively  

disproportionate to the gravity of the charges proved?

Re : Question (i)  

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9. The High Court having held that there was no irregularity in the court  

martial proceedings or infirmity in the findings of guilt and the punishment  

imposed, held that there was no justification for forfeiting the pension on the  

following reasoning :  

“…. the general court martial did not think it appropriate to order for the  forfeiture of the pension and pensionary benefits under section 71(h) and  (k) of the Army Act and the obvious inference seems to be that the court  martial did not think it appropriate that despite the dismissal of the service  of  the  petitioner,  he  should  be  awarded  the  forfeiture  of  pension  and  pensionary benefits as a punishment. As held by the Full  Bench of the  Delhi High Court in the case of Brig. A. K. Malhotra (supra), the pension  and pensionary benefits are to eb granted in the normal course unless there  are  such  circumstances  existing  under  which  the  offence  against  the  concerned officer is found to be extra-ordinarily grave and in that case  sufficient reasons must be recorded for the forfeiture of the pension by the  competent authority taking action on the administrative side. In the instant  case the impugned order, Annexure P-12, shows that the forfeiture of the  pension  and  pensionary  benefits  was  ordered  by  having  regard  to  circumstances  of  the  case  leading  to  the  dismissal  of  the  officer  from  service.  In  other  words,  the  President  considered  the  forfeiture  of  the  pension and pensionary benefits only on the circumstances which led to  the  trial,  conviction  and  sentence  of  dismissal  from  service  of  the  petitioner by the General Court Martial. The impugned order, annexure P- 12, does not show that it was considered to be a case of extra-ordinarily  grave charge where the pension and pensionary benefits should have been  forfeited or there were other valid and good reasons for the forfeiture of  the pension and pensionary benefits.  

10. For this purpose, the High Court relied upon the decision of the Delhi  

High Court in  Brig. A. K. Malhotra.  In the said decision, the Delhi High  

Court held that under section 71 of the Army Act, 1950 (‘Act’ for short),  

forfeiture of pension was provided as a measure of punishment for offences  

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tried by the court martial  and if the court martial did not, in a given case,  

think it fit to forfeit the pension while awarding the punishment, then the  

only inference that could be drawn is that the Court Martial was of the view  

that the punishment of dismissal alone was sufficient for the offences and  

there  was  no  need  to  inflict  the  additional  punishment  of  forfeiture  of  

pension.  The  Delhi  High  Court  further  held  that  the  normal  rule  is  that  

pensionary  and  other  benefits  are  to  be  granted  unless  the  competent  

authority comes to the conclusion that the service of the officer taken as a  

whole was not satisfactory from the beginning or unless the offences which  

are  proved  and  for  which  he  had been  sentenced  are  so  extra-ordinarily  

grave that the entire previous satisfactory service has to be excluded from  

consideration.  The High Court  reasoned that if  the offence was so extra-

ordinarily grave, the court martial itself would have forfeited the pensionary  

benefits,  and  where  the  court  martial  did  not  deem  it  necessary,  if  the  

competent authority wanted to deny pension, he must record good and valid  

reasons as to why normal rule of granting pensionary benefits is not to be  

followed.  

11.  The direction of the High Court to reconsider the matter in the light  

of the legal principles laid down by the Full Bench of the Delhi High Court  

in   Brig.  A.K.  Malhotra is  no  longer  valid  in  view of  the  fact  that  the  

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decision in  Brig.  A.K.  Malhotra was reversed by this  Court  in  Union of   

India v. P.D. Yadav  - 2002 (1) SCC 405. This Court held that even if the  

GCM while imposing punishment, does not direct forfeiture of service or  

forfeiture of pension under section 71 of the Act having regard to Regulation  

16(a) of the Pension Regulations, it is permissible for the President of India  

to direct forfeiture of pension  in regard to a person dismissed or cashiered  

consequent to a trial by the GCM. This Court also held that for passing an  

order for forfeiture of pension under Regulation 16(a), all that was necessary  

was that cashiering or dismissal of the officer from service and there was no  

further need, either to assign reasons for forfeiture or to consider whether the  

merit  of  his  prior  service  warranted  any  relaxation  or  relief  against  

forfeiture.  

12. As clarified by this Court in P.D.Yadav, the power to deny pension as  

a consequence of an officer being cashiered or dismissed or removed from  

service,  vests  only  with  the  President  of  India  under  Pension Regulation  

16(a).  The  President  of  India  may  direct  either  forfeiture  of  the  entire  

pension or only a percentage of the pension. Further section 71 of the Act  

does  not  provide  for  forfeiture  of  pension  as  one  of  the  punishments  

awardable by Court Martial.  Imposition of punishments of cashiering and  

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dismissal  from service are  provided in clauses (d)  and (e)  of section 71.  

Clauses (h) and (k) of section 71 relied upon to hold that the Court Martial  

could also impose the punishment of forfeiture of pensionary benefits, are  

extracted below :  

“(h):  The forfeiture of service for the purpose of increased pay, pension or  any other prescribed purpose.  

(k):  The  forfeiture in  the case of a person’s sentence to cashiering or  dismissal  from service  of  all  arrears  of  pay  and allowances  and  other  public money due to him at the time of such cashiering or dismissal.”

Neither clause (h) nor clause (k) nor any of the other clauses in section 71  

refers to and provides for forfeiture of pension as a penalty.  This Court held:  

“Under  Section  71(h),  a  punishment  of  forfeiture  of  service  for  the  purpose of increased pay, pension or any other prescribed purpose, can be  imposed. If forfeiture of service has the effect of reducing total qualifying  service  required  to  earn  pension,  a  person  concerned  is  disentitled  for  pension itself. In other cases, it may have bearing in regard to claim for  increased pay or any other purpose. If by virtue of such punishment itself,  a person is not entitled for any pension, the question of passing an order  forfeiting pension under Regulation 16(a) may not arise. As per Section  71(k), in case of a person sentenced to cashiering or dismissal from the  service,  a  further  punishment  of  forfeiture  of  all  arrears  of  pay  and  allowances  and  other  public  money  due  to  him  at  the  time  of  such  cashiering or dismissal may be imposed. Clause (k) of Section 71 does not  speak of pension unlike clause (h) of the same Section. x x x x x

Merely  because  punishment  is  not  imposed  under  clause  (h)  or  (k)  of  Section 71 and other punishments are imposed, it does not mean that the  President is  deprived of his power and jurisdiction to pass order under  Regulation 16(a);…”

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Therefore,  the  question  of  court  martial  imposing  the  punishment  of  

forfeiture of pension does not arise at all. The court martial can impose any  

of the penalties enumerated in section 71 of the Act. Dismissal or cashiering  

of an officer does not lead to automatic forfeiture of pension. The power and  

discretion vested in the President of India by virtue of Pension Regulation  

16(a), to forfeit and deny the pension in full or in part to an officer, who is  

dismissed  or  cashiered,  is  independent  of  the  punishment  imposed under  

section 71 of the Act by the court martial.  

13. Having held that the proceedings of the GCM was proper and findings  

of guilt did not suffer from any infirmity and the punishment of dismissal  

did not call for any interference, the High Court could not have interfered  

with the power and discretion exercised under Pension Regulation 16(a). If  

there  is  no violation  of  rules  in  conducting  the  GCM and if  there  is  no  

infirmity in the award of punishment, having regard to the decision of this  

Court  in  P.D.  Yadav,  the  forfeiture  of  pension  was  not  required  to  be  

supported by any other independent reasons nor was it necessary to consider  

the previous service or gravity of the offence or other circumstances. The  

High  Court  therefore  committed  an  error  in  quashing  the  order  dated  

22.12.1995 passed by the President of India, forfeiting the pension of the  

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appellant. The appeal by the appellants (Criminal Appeal No.876 of 2003) is  

bound to succeed. But this is, however, subject to the decision in the appeal,  

preferred  by  the  first  respondent.  If  the  first  respondent  is  able  to  

demonstrate in his appeal that either the proceedings of the GCM violated  

the provisions of the Act/Rules/the procedure prescribed, or that the findings  

of  guilt  were  perverse  and  unsustainable,  or  that  the  punishment  was  

shockingly  disproportionate  to  the  gravity  of  the  proved  offences  and  

warranted interference, and if this Court accepting his contentions allows his  

appeal, and sets aside the order of dismissal or reduces the punishment, then  

the very basis for issue of the order of forfeiture of pension under Pension  

Regulation 16(a) will disappear and consequently, that order of forfeiture  

also will not survive. Therefore, we may now examine the contentions of the  

first respondent challenging the validity of the proceedings of the GCM and  

imposition of punishment.  

Re : Question (ii)

14. The first respondent has contended that there is a serious procedural  

irregularity in the constitution and conduct of the court martial, that in spite  

of his challenge, it was not set right and therefore, the entire Court Martial  

proceedings and consequently, the punishment, were vitiated. According to  

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first  respondent,  the  Presiding  Officer  of  the  Court  Martial  -  Brig.  S.K.  

Kaushal  had  earlier  summarily  tried  two  prosecution  witnesses  –  Sub.  

Baryam Singh and Sub. Harjinder Singh (who had drawn meat for their units  

on 14.2.1990) for drawing less quantity of meat and awarded the reprimand  

for negligent performance of duties. As the summary trials were in regard to  

the same incident when the prosecutor disclosed the said fact on 15.4.1990,  

the first respondent raised a challenge objecting to Brig. S.K.Kaushal being  

the Presiding Officer, as he was disqualified from serving on a GCM having  

regard to  clause (c)  of  sub-rule (2)  of  Rule  39 of  the Army Rules  1954  

(‘Rules’ for short). He further alleged that the Presiding Officer would have  

formulated an opinion in regard to the incident and consequently, be biased.  

In  spite  of  it,  the  Convening  Authority  wrongly  directed  the  GCM  to  

proceed, overruling his objection under section 130 of the Act read with rule  

44  of  the  Rules.  He  submits  that  participation  by  the  Presiding  Officer  

vitiated the entire proceedings, rendering the same invalid and void.  

15. Rule 39 of the Army Rules 1954 reads thus :  

“39.  Ineligibility and disqualification  of  officers  for  court-martial.—(1)  An  officer is not eligible for serving on a court-martial if he is not subject to the Act.

(2) An officer is disqualified for serving on a general or district court-martial if he —

(a) Is an officer who convened the court; or  

(b) Is the prosecutor or a witness for the prosecution; or

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(c) Investigated the charges before trial, or took down the summary of evidence,  or  was  a  member  of  a  court  of  inquiry  respecting  the  matters  on  which  the  charges  against  the  accused  are  founded,  or  was  the  squadron,  battery,  company, or other commander, who made preliminary inquiry into the case, or  was a member of a previous court-martial which tried the accused in respect of  the same offence; or

(d)  Is  the  commanding  officer  of  the  accused,  or  of  the  corps  to  which  the  accused belongs; or  

(e) Has a personal interest in the case.

(3) The provost-marshal or assistant provost-marshal is disqualified from serving  on a general court-martial or district court-martial.”

It is clear from Rule 39 that an officer is disqualified for serving on a GCM  

if (i) he had investigated the charges before trial, or (ii) he took down the  

summary  of  evidence,  or  (iii)  he  was  a  member  of  a  court  of  inquiry  

respecting  the  matters  on  which  the  charges  against  the  accused  were  

founded, or (iv)  he was a Squadron, Battery, Company or other Commander  

who made preliminary inquiry into the case, or (v) he was a member of a  

previous  Court  Martial  which  tried  the  accused  in  respect  of  the  same  

offence.  A careful  reading of  the  said  Rule  demonstrates  that  the  act  of  

summarily trying others for other offences relating to the same incident is  

not  a ground of  disqualification.  The charges against  the first  respondent  

were completely different from the charges against the persons who were  

summarily tried by Brig. Kaushal. The Presiding Officer did not suffer from  

any  of  the  disqualifications  enumerated  in  Rule  39.  The  Convening  

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Authority was therefore justified in directing the GCM to proceed with the  

trial.  Therefore,  the challenge to  the  constitution of  the  GCM with Brig.  

Kaushal as the Presiding Officer is liable to be rejected.  

16. The High Court did not find any merit in the contention that after the  

Court Martial was constituted on 3.2.1993, the first respondent ought to have  

given 96 hours after giving the names of the members constituting the Court  

Martial.  The first  respondent  has also not  established his  allegations  that  

Judge  Advocate  was  biased  and  Dy.  JAG  who  ultimately  reviewed  the  

findings, was also biased as he was actively guiding the prosecution. The  

first respondent has not been able to demonstrate any error in the finding of  

the High Court that there was no infirmity in the constitution of the Court  

Martial and the procedure followed by it.  

Re : Question (iii)

17. The principles relating to judicial  review in regard to court  martial  

proceedings  are  well  settled.  Unless  the  court  martial  has  acted  without  

jurisdiction,  or  exceeded  its  jurisdiction  or  had  acted  perversely  or  

arbitrarily,  the  proceedings  and decision  of  the  court  martial  will  not  be  

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interfered in exercise  of  power  of  judicial  review.  In  Union of  India vs.   

Major A. Hussain  – 1998 (1) SCC 537, this Court held :  

“Though court-martial  proceedings are subject to judicial review by the  High Court under Article 226 of the Constitution, the court-martial is not  subject to the superintendence of the High Court under Article 227 of the  Constitution. If a court-martial has been properly convened and there is no  challenge to its composition and the proceedings are in accordance with  the procedure prescribed, the High Court or for that matter any court must  stay its hands. Proceedings of a court-martial are not to be compared with  the proceedings in a criminal court under the CrPC where adjournments  have become a matter of routine though that is also against the provisions  of law. It has been rightly said that court-martial remains to a significant  degree, a specialised part of overall mechanism by which the military dis- cipline is preserved. It is for the special need for the armed forces that a  person subject to Army Act is tried by court-martial for an act which is an  offence under the Act. Court-martial discharges judicial function and to a  great extent is a court where provisions of Evidence Act are applicable. A  court-martial has also the same responsibility as any court to protect the  rights of the accused charged before it and to follow the procedural safe- guards. If one looks at the provisions of law relating to court-martial in the  Army Act, the Army Rules, Defence Service Regulations and other Ad- ministrative Instructions of the Army, it is manifestly clear that the proce- dure prescribed is perhaps equally fair if not more than a criminal trial  provides to the accused. When there is sufficient evidence to sustain con- viction, it is unnecessary to examine if pre-trial investigation was adequate  or not. Requirement of proper and adequate investigation is not jurisdic- tional and any violation thereof does not invalidate the court-martial un- less it is shown that the accused has been prejudiced or a mandatory provi- sion has been violated. One may usefully refer to Rule 149 quoted above.  The High Court should not allow the challenge to the validity of convic- tion and sentence of the accused when evidence is sufficient, court-martial  has jurisdiction over the subject-matter and has followed the prescribed  procedure and is within its powers to award punishment.”

18. The High Court after exhaustive consideration found that the trial was  

conducted in accordance with the rules and there was no violation of the  

procedure or principles of natural justice. On behalf of the prosecution, as  

17

many  as  13  witnesses  were  examined.  A  large  number  of  documents  

(marked A to Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart  

from  three  material  objects  (ME1  to  ME  3)  were  exhibited.  The  first  

respondent  was  supplied  with  complete  set  of  proceedings  including  all  

exhibits. He was permitted to have the assistance of a legal practitioner. He  

was given due opportunity to cross examine the witnesses and lead his own  

evidence.  After  completion  of  evidence,  the  General  Court  Martial  put  

questions to the accused with reference to the evidence and gave him an  

opportunity to explain his position. Detailed submissions on behalf of the  

prosecution  and the defence  were  heard.  It  was  thereafter  that  the  Court  

Martial gave its findings and imposed the punishment.  This is not a case of  

no-evidence. Inadequacy and unreliability of evidence are not grounds for  

interference.  The  Court  Martial  had  jurisdiction.  Violation  of  prescribed  

procedure has not been made out. In exercise of power of judicial review, it  

is not possible to re-assess the evidence or sit in judgment over the finding  

of guilt recorded by the Military Tribunal. The scope of interference with the  

findings of the GCM is very narrow and should be exercised in rare cases.  

This  is  not  one of  them.  We,  therefore,  find no  reason to  interfere  with  

findings of guilt regarding changes 1, 4 and 5(c).  

18

Re : Question (iii)

19. This takes us to the last  question as  to whether  the punishment  of  

dismissal is shockingly disproportionate to the gravity of the charges. The  

principles relating to judicial review of punishment imposed, as a part of the  

decision making process by Court Martial, have been explained, in  Ranjit   

Thakur vs. Union of India – 1987 (4) SCC 611, where this Court interfered  

with the punishment imposed by a court martial on the ground that it was  

strikingly  disproportionate  to  the  gravity  of  offence  on  the  following  

reasoning :  

“Judicial review generally speaking, is not directed against a decision, but  is  directed  against  the  "decision  making  process".  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 in  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.  Irrationality and perversity are recognised grounds of judicial review.”

In Union of India vs. R.K. Sharma – 2001 (9) SCC 492, this Court explained  

the  observations  in  Ranjit  Thakur.  It  clarified  that  in  Ranjit  Thakur,  the  

charge was ridiculous, the punishment was harsh and disproportionate and it  

was on such gross facts that this Court had held that the punishment was so  

19

strikingly  disproportionate  that  it  called  for  interference;  and  the  said  

observations in Ranjit Thakur are not to be taken to mean that a court can,  

while exercising the power of judicial review, interfere with the punishment  

merely because it  considers the punishment to be disproportionate.  It was  

held that  only in extreme cases,  which on their  face,  show perversity  or  

irrationality,  there could be judicial  review and merely on compassionate  

grounds, courts should not interfere. In this background, we may examine  

the third question.   

20. The charges that are held to be proved against the first respondent,  

are:   (i)  Being the Contract  Operating Officer  for dressed meat,  the first  

respondent with intent to defraud, caused the acceptance of meat from the  

contractor with ‘heart’ as part of the meat knowing that the same was not  

acceptable  part  of  carcasses  as  per  para  86  of  special  conditions  of  the  

contract  (vide first charge);  (ii)  The first respondent,  as the Commandant  

incharge  of  the  Supply  Depot  failed  to  ensure  that  required  stocks  were  

maintained  as  reserve,  in  the  Butchery  as  required  by  para  51(a)  of  the  

special conditions of contract  (vide fourth charge); (iii) The first respondent  

as the Commandant responsible for the overall control of the operation of  

the  Butchery  improperly  failed  to  implement  the  standard  operating  

20

procedure for Butchery resulting in ‘passed’ animals not being segregated  

and being allowed to mix with the other animals of the contractor.  

21. According to the charge-sheet, the first charge was an offence falling  

under section 52(f) of the Act which provides that subject to the provisions  

of the Act, any person who does anything with intent to defraud, or to cause  

wrongful gain to one person or wrongful loss to another person, shall, on  

conviction  by  court  martial,  be  liable  to  suffer  imprisonment  for  a  term  

which may extend to ten years or such less punishment as is mentioned in  

the Act. The other two charges which are held to be proved relate to acts or  

omissions  which  are  said  to  be  “prejudicial  to  good  order  and  military  

discipline” punishable under section 63 of the Act on conviction by Court  

Martial, with imprisonment for a term which may extend to seven years or  

such less punishment as is mentioned in the Act. We may now consider the  

nature and content of the charges proved. Section 52(f) and section 63 are  

very broadly and generally worded and deal with residuary offences, (one  

dealing with property and another dealing with discipline) to provide for and  

cover offences which are not specifically provided in sections 34 to 64 of the  

Act. The offences under these residuary provisions may fall under a wide  

spectrum,  ranging  from  the  mildest  technical  violations  to  the  severest  

21

offences relating to fraud or gross indiscipline. It is therefore necessary to  

find the degree of gravity of the offence when a person is found guilty of  

offences under section 52(f) or section 63. Only then, the court can consider  

whether the punishment is so disproportionate to the gravity of the proved  

offences  that  it  shocks  the  conscience  of  the  court  or  is  so  perverse  or  

irrational  that  it  cannot  be  allowed  to  stand.  As  held  by  this  Court  

repeatedly, there could be no judicial review merely because the court feels  

that the punishment should have been lesser or on the ground of sympathy or  

compassion.  

22. It is necessary to know who was responsible for what in the butchery.  

As per the standard operating procedure of Butchery, the responsibility has  

been divided among the Supervisory Officer, JCOs and NCOs. The duties of  

the supervisory officer included the following :  

“Duties of Supervisory Officer

The Supervising Officer, Butchery will be responsible for the proper and  efficient functioning of the butchery. He will :  

(a) Be responsible for passing goat and sheep and maintaining the  reserve stock of animals at all times.  

(b) Ensure that proper branding of animals is carried out without any  cruelty to the animals and the branding so done lasts till the carcass  is passed fit by the veterinary officer.  

22

(c) Be  personally  responsible  for  the  books  and  records  showing  reserve stock and animals passed. The records must be complete  and up to date at all times and signed by him duly completed in all  respects.  

(d) Visit butchery during slaughter  hours at least once a week.  

(e) Ensure that the butchery surroundings are kept scrupulously clean.  

(f) Ensure that branding irons are kept in sealed box in quarter guard  and take the same whenever required for branding the animals.  

(g) Ensure that branding irons are not left over with any body in the  butchery.  He  will  also  ensure  that  weights  and  measures  are  calibrated periodically by the workshop.  

(h) He will ensure that the quality of meat always conforms to ASC  specifications and no deviation from these specifications will  be  allowed. In doing so he will ensure that the contractor does not use  unfair means such as use of water except for cleaning of carcasses.  

(i) He will be present in the butchery throughout the issue time and  will ensure that units get their entitlements. He will also ensure that  every unit rep signs for the quantity and quality of the items being  collected. He will be responsible to check the following documents  maint in the butchery for its correctness and will be responsible to  put up the same to Commandant once a month :  

xxxxxx The duties of JCOs:  

(a) “He  is  responsible  for  the  smooth  functioning  of  the  butchery  under the order of Supervising Officer.

(b) He will ensure that highest standard of cleanliness is maintained in  the butchery.

(c) He will ensure that reserve stock of animals is maintained by the  contractor at all times.  

(d) He  will  ensure  that  strict  security  is  observed  as  regards  to  segregation pen, hanging room, disposal of rejected meat by the  VO and disposal of dead and rejected animals.

(e) He will supervise the slaughter of all animals as per procedure laid  down in order from time to time. He will be personally responsible  

23

to ensure that only jhatka meat is being issued unless otherwise  demanded by a unit.  

(f) He will be responsible to observe the slaughtering animals. He will  ensure that only branded and segregated animals are slaughtered  and  will  be  present  throughout  the  slaughtering  times.  He  will  ensure that no water is injected in the carcasses by contractor. He  will  ensure  that  the  grown weight  is  taken and minimum 5 hrs  setting time is allowed.  

(g) He will ensure that books and records maintained in the butchery  are kept up to date at all times.  

(h) He will be responsible to supervise the issue of meat to troops and  ensure  that  correct  quantity  as  per  their  demand  is  issued  and  receipt of the same is obtained.  

(i) He will ensure that proper duties are allotted to other NCO’s and  Sepoy detailed to assist him.  

(j) He will ensure that from the time of slaughtering to the time of  issue, the butchery will be open and NCO/Sepoy will sleep at night  properly guarded in the butchery.  

(k) He will be responsible for proper setting of meat in that he will see  that the butchers do not use water for any other purpose except for  the cleaning of carcasses.  

(l) He will ensure that the meat is properly set before the postmortem  is  carried out  by Veterinary Officer  and will  be responsible  for  retail issue to units.  

The duties of the Veterinary Officer :  

“He will be responsible for ante-mortem and post mortem inspection. His  advice as a rule will be accepted unless there are other reasons. He will  ensure that only good and hygienic meat is issued to troops. In doing so he  will ensure :  

a. That offals which are not edible are removed.  b. That  the  meat  or  the  carcasses  which  is  unfit  for  human  

consumption is removed.  c. He  will  ensure  that  the  rejected  meat  potion/carcasses  are  

destroyed either by burning or by deep burying in his presence.  d. He will ensure that meat inspected by him is properly set and  

no water is dripping from the carcasses. He will bring to the  

24

notice of SO butchery and Commandant if any water is found  in the carcasses so that remedial measures can be taken.  

e. He will ensure that veterinary officer stamp has been put on  each  and every  carcasses  including  the  portion  of  carcasses  after he had carried out the post mortem examination.  

The Commandant was to be in overall charge of the supply depot and his  

duties were as under :  

“(a) A CO will  supervise  and control  all  duties  performed by those  under his command, and will be held accountable for, and be responsible  for  the  security  and  condition  of,  all  public  buildings,  armaments,  equipment  and  stores,  of  whatever  description,  appertaining  to  or  on  charge of his unit, corps or establishment.  

(b) A CO is responsible for the correct receipt, issue, accounting and  stock taking of all supplies, stores and equipment received or issued by the  unit.  He will  ensure that daily issues are inspected and weighed in the  presence of an officer or a Junior Commissioner Officer.  

(c) A CO is responsible for the maintenance of discipline, efficiency  and  proper  administration  in  the  unit  under  his  command.  He  is  also  responsible for its training and readiness for war.”  

23. We may now consider the first charge. The charge that has been held  

to have been proved is an offence under section 52(f) of the Act that is while  

commanding  the  supply  depot,  the  first  respondent  being  the  Contract  

Operating  Officer  for  dressed  meat,  with  intent  to  defraud,  caused  the  

acceptance of meat from the contractor with heart as part of meat between  

1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of  

the carcass as per para 86 of the Special Conditions of Contract. What was  

25

established was that when the butchery was raided and the meat issued to  

units were inspected on 14.2.1990, it was found that out of the dressed meat  

weighing 1411.2 kgs. that was issued to various units, the weight of hearts  

found  as  part  of  the  meat  was  14.5  kgs.  The  Supervisory  Officer  and  

Veterinary Officer have been charged and punished in this behalf. The case  

against  the  first  respondent  was  not  that  he  had  instructed  heart  to  be  

accepted  as  part  of  dressed meat  nor  is  it  the  case  that  heart  was  being  

regularly  accepted as  part  of dressed meat  from the contractor.  The case  

against first respondent was that when the butchery was being  inspected on  

14.2.1990, the first  respondent  as Commandant  visited the butchery and  

during discussions with the inspecting officers made an observation that to  

the best of his knowledge, heart was an edible offal and could be issued on  

demand of units and also reiterated the said observation in his confidential  

report dated 15.2.1990. Making of the said remark has been interpreted as  

the first respondent accepting meat from the contractor with heart as part of  

the dressed meat, knowing well that heart was not acceptable part of carcass;  

to defraud the government. This charge depends upon the interpretation of  

para 86 of the special conditions of the contract and an inference that his  

understanding of para 86 amounted to causing acceptance of heart as part of  

the dressed meat.  

26

24. Para 86 of the ‘special conditions – meat dressed/meat on hoof’ reads  

as under :  

“86. I/We agree that I/We will supply meat dressed (Jhatka/Halal) as per  ASC Specification No.115, including liver, kidney and testicles passed fit  by the Veterinary Officer/Contract Operating Officer of the total arising of  carcasses  and  as  a  part  of  meat  dressed  at  the  rate  of  meat  dressed  (Jhatka/Halal)  by  weight  as  given  in  the  schedule.  Any  other  offals,   cuttings  and  arising  of  meat  carcasses  will  not  be  taken  over  by  the   Contract Operating Officer. The same will be removed by me/us and will  be disposed off by me/us in any manner I/We like at my/our cost.”  

(emphasis supplied)

The word ‘offal’ has two meanings. Firstly, it refers to the edible internal  

parts  of  an  animal  such  as  heart,  livers,  kidneys,  testicles  and  tongue.  

Secondly the term ‘offal’ refers to the refuse or waste that is cuttings and  

other non-edible parts of the animal which are either fallen or cut-off. One  

way of interpreting clause 86 of the special conditions of contract is that the  

dressed  meat  supplied  may  include  liver,  kidney,  testicles  (which  are  

specifically  mentioned)  but  not  other  edible  internal  parts  like  heart  and  

tongue. The other interpretation in view of the use of the words “including  

liver, kidney, testicles” would be that the dressed meat can include all edible  

internal parts which include liver,  kidney, and testicles as also heart,  and  

what should be excluded from the supply are other waste like cuttings, fallen  

portions and inedible portions. Be that as it may. Even if we proceed on the  

27

basis that clause 86 should be interpreted as specifying that the dressed meat  

to be supplied could include only liver, kidney and testicles, but not heart,  

that by itself does not mean that the appellant committed any offence. On the  

day of raid and inspection, it was found that the supplies included heart (out  

of a take quantity of 1411.2 kg. of meat supplied to various indenting units,  

14.5 kgs. were heart). The first respondent who visited the Butchery at the  

time of the inspection observed that the heart  is  also an edible offal  and  

could be issued on demand by the units. He did not say that heart was a part  

of dressed meat under clause 86 or that heart was required to be regularly  

supplied  as  part  of  dressed  meat.  No  evidence  was  given  that  he  had  

instructed the butchery staff to accept ‘heart’ as part of dressed meat and  

issue it to the units. It is of some interest to note that the first respondent had  

stated  that  the  earlier  supply  contract  was  in  the  monopoly  of  one  Om  

Prakash and when that was broken and the contract was given to M/s Rajan  

Malik & Co., Om Prakash became inimical to M/s Rajan Malik & Co., that  

some of the persons employed by M/s Rajan Malik & Co. in the Butchery  

where ex-employees of Om Prakash owing allegiance to Om Prakash, that  

some mischief  had  been done at  the  instance  of  Om Prakash  to  prevent  

Rajan Malik & Co. from continuing as contractor, that the raid was at the  

instance  of  Om Prakash  and that  he  and his  henchmen were  present  all  

28

through the inspection. The first respondent submitted that he was a victim  

in a fight between the contractors. Be that as it may. Therefore, all that is  

established  is  at  best  a  wrong  interpretation  of  clause  86  of  the  Special  

Conditions of Contract.  

25. The  charge  4  is  that  between  11.3.1990  and  22.3.1990,  the  first  

respondent failed to ensure that the reserve stock of animals were maintained  

in the butchery as per para 51(a) of the Special Conditions of Contract. Here  

again the charge should be properly understood. The first respondent was  

not the supplier of the animals. The government had entered into a contract  

with that supplier and clause 51(a) of Special Conditions is an undertaking  

by the Contractor which reads thus : “I/We shall maintain complete at all  

time from/upto ………. as reserve of not less than three days supply animals  

(sheep/goat) based on the average number of animals to be slaughtered as  

meat  on hoof  daily”.  Contract  also  provided  (vide  clause  52)  that  if  the  

contractor failed to do so, the supply officer shall be at liberty to effect risk  

purchase be effected at the cost of the contractor and also take other steps.  

Therefore, failure to maintain reserve stocks of animals was not an omission  

on the part of any person in charge or overall charge of the butchery, but a  

breach by the contractor. The omission that could be attributed to the officer  

29

in-charge of the butchery or the first respondent is that when the contractor  

failed to maintain reserves failure to bring it to the contractor’s notice or  

failure to take action to make risk purchase and other steps in terms of the  

contract. But the charge is not that risk purchase was not effected or that the  

first  respondent  failed  to  take  necessary  remedial  steps.  The  evidence  

showed that arrangements were made to procure the animals required for  

slaughter on day to day basis to ensure no breaks in supply of meat. It has  

also come in evidence that ever since 1989, the first respondent had been  

informing and complaining to his higher ups that the Ambala area where the  

supply  depot  was  situated,  had  a  shortage  of  stock  of  animals,  that  the  

contractor  was  not  in  a  position  to  maintain  the  required  reserves  and  

therefore, suggesting that tenders should be invited from contractors in Delhi  

where  there  was  an  abundance  of  stocks.  Therefore,  an  omission  of  the  

contractor cannot be considered to be an omission on part of the Contract  

Operating Officer,  particularly when he had pointed out deficiencies,  and  

taken remedial steps. Therefore, the effect of the finding in regard to charge  

(4)  is  that  the  contractor  did  not  keep  any  animals  as  reserve  between  

11.3.1990  and  22.3.1990  as  undertaken  by  it  under  clause  51(a)  of  the  

Special Conditions. The failure attributed to the supervisory staff of butchery  

and the first respondent who was in overall charge was that they failed to  

30

ensure  that  the  contractor  performed his  obligations.  What  is  established  

against first respondent under charge (4) is therefore, only a technical lapse.  

26. Charge  5(c)  is  that  the  appellant  failed  to  implement  the  standard  

operating  procedure  for  butchery  which  required  passed  animals  to  be  

segregated and not allowed to mix with the other animals of the contractor.  

Animals  that  were  branded  and  accepted  for  supply  were  the  ‘passed  

animals’. The evidence was not that passed animals and other animals were  

being kept together.  The evidence was that on a particular day when the  

surprise inspection took place, the passed animals had not been segregated  

from the other animals of the contractor which were yet to be branded and  

passed. It was also not disputed that there was no specific directive relating  

to segregation. Even if there was any lapse, it was a lapse of the JCO as per  

the  standard  procedure  for  the  butchery and not  the  Commandant  of  the  

supply depot. The omission that could be attributed is at best would be a  

technical lapse as far as the first respondent is concerned.  

27. The omissions  attributed to first  respondent  in  regard to charges 4  

and  5(c)  were  actually  omissions  by  his  sub-ordinates  and  those  sub-

ordinates were charge-sheeted. In regard to the subject of charges (1) and  

31

(4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered  

and  sentenced  to  undergo  rigorous  imprisonment  for  30  months  and the  

Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of  

eight  years  past  service  for  the  purpose  of  pension  and  severely  

reprimanded.  In  regard  to  the  subject  of  charges  (4)  and  5(c),  the  

Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role  

of the appellant being that of an overall  controlling officer of the supply  

depot was limited and the charges in so far as  the first  respondent  were  

technical  in  nature.  But  for  the  limitation  of  interference  with  regard  to  

findings of fact in judicial review, this might even be a case for interference  

with the findings of guilt recorded. Be that as it may.  

28. In  the  circumstances,  the  punishment  of  dismissal  from service  is  

shockingly disproportionate to the gravity of the offences held to be proved.  

While  we may not  interfere  with  the  findings  of  guilt,  in  a  case  of  this  

nature,  having  regard  to  the  nature  of  offences,  we  may  consider  the  

proportionality  of  punishment  to  find  out  whether  it  is  perverse  and  

irrational. Even accepting the said findings of guilt regarding charges (1), (4)  

and 5(c), it is clearly a case of shockingly disproportionate punishment being  

meted out to the Commandant for offering an alternative interpretation to  

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clause  (86),  for  the  lapses  of  his  supervisory  officer  and  for  the  breach  

committed by the contractor. In the normal course, we would have set aside  

the  punishment  and  referred  the  matter  back  for  consideration  and  

imposition of a lesser punishment.  But having regard to the fact  that  the  

matter is more than 20 years old and the first respondent reached the age of  

superannuation long ago, no purpose would be served, by referring it back to  

the appellants. We are of the view on the facts and circumstances, interests  

of justice would be served if the punishment of dismissal is substituted by  

the following punishment : (a) forfeiture of eight years of service for the  

purpose of pension; and (b) Severe reprimand. As a consequence, the order  

forfeiting pension requires to be set aside as pension can be denied under  

Pension Regulation 16(a) only to the officers who are cashiered, dismissed  

or removed from service.  

29. We accordingly dispose of the appeals as under :  

(i) We allow Criminal Appeal No.876 of 2003 and set aside the order of  

the High Court quashing the order dated 22.12.1995.

(ii) We  allow  Criminal  Appeal  No.877  of  2003  filed  by  the  first  

respondent and set aside the order of punishment dated 30.7.1993 imposing  

the punishment of dismissal from service and substitute the same with the  

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punishment of  forfeiture of eight years of service for purposes of pension  

and severe reprimand.  

(iii) As a consequence of the punishment of dismissal being set aside and  

substituted by a lesser punishment necessarily, the order dated 22.12.1995  

forfeiting the pension, passed under Pension Regulation 16(a), is set aside.  

The respondents are directed to process and settle his pension claim within  

six months.

(iv) The first respondent will not be entitled to any back-wages from the  

date of his dismissal to the date of his superannuation, as a consequence of  

his dismissal being set aside.   

………………………..J [R. V. Raveendran]

………………………..J [P. Sathasivam]

New Delhi;  September 12, 2011.  

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