Charanjit
Lamba Vs. Commndng. Officer, Southern Command & Ors. [2010] INSC 443 (6
July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICITION CRIMINAL APPEAL NO.1027
OF 2002 Charanjit Lamba ...Appellant Versus Commanding Officer, Southern
...Respondents Command & Ors.
T.S.
THAKUR, J.
1.
This appeal by special leave arises out of an order dated 15th
September, 1998 passed by the High Court of judicature at Bombay whereby
Criminal Writ Petition No.489 of 1997 filed by the appellant has been dismissed
and the 2 order of dismissal from service on proved misconduct affirmed. The
factual matrix giving rise to the disciplinary proceedings against the
appellant and his eventual dismissal from service has been set out by the High
Court in the order under appeal. We need not, therefore, re-count the same over
again. Suffice it to say that the appellant who at the relevant time was
serving as a Major in the Indian Army was consequent upon a finding recorded
against him in a Court of Inquiry brought up for trial before a General Court
Martial (GCM for short) on the following two distinct charges:
FIRST
CHARGE ARMY ACT SECTION 52(f).
SUCH AN
OFFENCE AS IS MENTIONED IN CLAUSE (f) OF SECTION 52 OF THE ARMY
ACT, WITH
INTENT TO CAUSE WRONGFUL
LOSS TO A
PERSON In that he, at field on 30th Jul 92, with intent to cause wrongful gain
to himself, improperly claimed Rs.16,589.30 (Rs. Sixteen thousand five hundred
eighty nine and paise thirty only) from CDA (Q) Pune on account of moving his
household luggage and car to Chandigarh, well knowing that he was legally not
entitled to the same.
SECOND
CHARGE, ARMY ACT SECTION 45
3 BEING
AN OFFICER BEHAVING IN A MANNER UNBECOMING HIS POSITION AND THE
CHARACTER
EXPECTED OF HIM
In that
he, at Pune, between 03 Sep 92 and Jun 93, improperly failed to pay the final
electricity bill dated 03 Sep 92 amounting to Rs.8132.35 (Rs. eight thousand
one hundred thirty two and paise thirty five only) to Maharashtra State
Electricity Board (MSEB) in respect of H No.12-B Kohun Road, Pune-1 which was
allotted to him."
2.
Evidence adduced before the GCM eventually led to the appellant
being held guilty for improperly claiming Rs.16,589.30 on account of transfer
of his household luggage and car to Chandigarh. The GCM found that the family
of the appellant had continued to occupy government accommodation at Pune even
after his posting to the field area and that the agency who is alleged to have
transported the luggage and the car of the appellant did not exist at the given
address. The evidence given by the appellant in his defence was also found by
the GCM to be unreliable on account of material contradictions in the
deposition of the defence witnesses. The GCM on proof of the said charge 4
sentenced him to forfeiture of ten years past service for purposes of pension.
In so far as the second charge, viz.
non-payment
of electricity bill was concerned, the GCM declared the appellant not guilty.
In its opinion the appellant had never refused to pay the electricity bill
which was at any rate a matter between him and the Maharashtra State
Electricity Board. The GCM took the view that the default of the petitioner
could not be termed as conduct unbecoming of an official subject to the Army
Act to call for any penal action.
3.
Aggrieved by the findings and the sentence awarded to him by the
GCM the petitioner filed an appeal before the General Officer Commanding,
Maharashtra and Gujarat Area (hereinafter referred to as the `GOC M & G
Area') who happened to be the confirming authority also. The GOC M & G
Area, however, took the view that the sentence awarded to the appellant on the
first charge was lenient inasmuch as the offence committed by the appellant was
serious and involved moral turpitude. It also noted that the appellant 5 had
past convictions to his credit which ought to be kept in view. The finding
recorded by the GCM in regard to the second charge framed against the appellant
was also found to be untenable by GOC M & G Area as according to him the
conduct of the appellant fell within the ambit of Section 4E of the Army Act
which made his behaviour unbecoming of an officer. The GOC M & G Area
accordingly remanded the matter back to the GCM for re-consideration on the
question of sentence to be awarded to the appellant on the first charge and
whether the appellant could be held guilty on the second charge. The order made
it clear that the GOC M & G Area did not intend to interfere with the
discretion vested in the GCM which was free to decide the matter in the manner
it liked.
4.
The GCM accordingly assembled again to consider the matter and
while sticking to the reasons given by it in regard to the first charge found
the second charge also to have been proved. The GCM on that basis revoked the
earlier sentence and sentenced the appellant to dismissal 6 from service which
order was after confirmation by the competent authority assailed by the
appellant before the High Court at Bombay in Criminal Writ Petition No.489 of
1997 as already noticed earlier.
5.
Before the High Court several contentions appear to have been
urged on behalf of the appellant which were examined and repelled by the High
Court while dismissing the writ petition in terms of the order impugned in this
appeal. The correctness of the view taken by the High Court on the grounds
urged before it has not been assailed before us except in so far as the High
Court has held that the punishment of dismissal imposed upon the appellant was
in no way disproportionate to the gravity of the offence committed by him.
6.
Mr. P.S. Patwalia, learned senior counsel appearing for the
appellant argued that the order of dismissal of the appellant from service was
in the facts and circumstances of the case disproportionate to the gravity of
the charges 7 framed against the appellant. He relied upon the decisions of
this Court to which we shall presently refer to submit that judicial review of
the order of dismissal would justify intervention by a Writ Court in cases
where punishment was disproportionate to the nature of misconduct proved
against the delinquent. The present was according to him one such a case that
called for the Court's intervention to either reduce the punishment or to
direct the same to be reduced by the competent authority.
7.
In Coimbatore District Central Coop. Bank v. Employees Assn.
(2007) 4 SCC 669 this Court declared that the doctrine of proportionality has
not only arrived in our legal system but has come to stay. With the rapid
growth of the administrative law and the need to control possible abuse of
discretionary powers by various administrative authorities, certain principles
have been evolved by reference to which the action of such authorities can be
judged. If any action taken by an authority is contrary to law, improper,
irrational or otherwise 8 unreasonable, a court competent to do so can
interfere with the same while exercising its power of judicial review.
8.
This Court referred with approval to the decision of the House of
Lords in Council of Civil Service Union v. Minister for Civil Service (1985 AC
374) where Lord Diplock summed up the grounds on which administrative action
was open to judicial review by a Writ Court. Lord Diplock's off-quoted passage
dealing with the scope of judicial review of an administrative action may be gainfully
extracted at this stage:
"Judicial
review has I think developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one can
conveniently classify under three heads the ground on which administrative
action is subject to control by judicial review. The first ground I would call
`illegality', the second `irrationality' and the third `procedural
impropriety'. That is not to say that further development on a case-by-case
basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the principle of
`proportionality'....."
9.
The doctrine of proportionality which Lord Diplock saw as a future
possibility is now a well recognized ground on which a Writ Court can interfere
with the order of punishment imposed upon an employee if the same is so
outrageously disproportionate to the nature of misconduct that it shocks
conscience of the Court. We may at this stage briefly refer to the decisions of
this Court which have over the years applied the doctrine of proportionality to
specific fact situations.
10.
In Bhagat Ram v. State of Himachal Pradesh (1983) 2 SCC 442 this
Court held that if the penalty imposed is disproportionate to the gravity of
the misconduct, it would be violative of Article 14 of the Constitution.
11.
In Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC 611,
this Court was dealing with a case where the petitioner had made a
representation about the maltreatment given to him directly to the higher
officers. He 10 was sentenced to rigorous imprisonment for one year for that
offence. While serving the sentence imposed upon him he declined to eat food.
The summary court martial assembled the next day sentenced him to undergo
imprisonment for one more year and dismissal from service.
This
Court held that the punishment imposed upon the delinquent was totally
disproportionate to the gravity of the offence committed by him. So also in
Ex-Naik Sardar Singh v. Union of India & Ors. (1991) 3 SCC 213 instead of
one bottle of brandy that was authorized the delinquent was found carrying four
bottles of brandy while going home on leave. He was sentenced to three months
rigorous imprisonment and dismissal from service which was found by this Court
to be disproportionate to the gravity of the offence proved against him.
12.
The decision of this Court in Hind Construction & Engineering
Co. Ltd. v. Workmen (AIR 1965 SC 917) dealt with a situation where some workers
had remained absent from duty treating a particular day as a holiday.
They were
for that misconduct dismissed from service. This Court held that the absence of
the workmen could have been treated as `leave without pay' and they could also
be warned and not fined. Reversing the order of punishment this Court observed:
"It
is impossible to think that any other reasonable employer would have imposed
the extreme punishment of dismissal on its entire permanent staff in this
manner.
13.
Reference may also be made to Management of the Federation of
Indian Chambers of Commerce and Industry v. Workman, Shri R.K. Mittal (1972) 1
SC 40) where the employer had issued a legal notice to the federation and to
the international chamber of Commerce which brought discredit to the
petitioner-employer. A domestic inquiry was held in which he was found guilty
and his services terminated. This Court held that the punishment was
disproportionate to the misconduct alleged observing:
"The
Federation had made a mountain out of a mole hill and made a trivial matter
into one involving loss of its prestige and reputation."
14.
We may refer to the decision of this Court in M.P. Gangadharan
& Anr. v. State of Kerala & Ors. (2006) 6 SCC 162, where this Court
declared that the question of reasonableness and fairness on the part of the
statutory shall have to be considered in the context of the factual matrix
obtaining in each case and that it cannot be put in a straitjacket formula. The
following passage is in this regard apposite:
"34.
The constitutional requirement for judging the question of reasonableness and
fairness on the part of the statutory authority must be considered having
regard to the factual matrix obtaining in each case. It cannot be put in a
straitjacket formula. It must be considered keeping in view the doctrine of
flexibility. Before an action is struck down, the court must be satisfied that
a case has been made out for exercise of power of judicial review. We are not
unmindful of the development of the law that from the doctrine of Wednesbury
unreasonableness, the court is leaning towards the doctrine of
proportionality........."
15.
That the punishment imposed upon a delinquent should commensurate
to the nature and generally of the misconduct is not only a requirement of
fairness, objectivity, 13 and non-discriminatory treatment which even those
form quality of a misdemeanour are entitled to claim but the same is recognized
as being a part of Article 14 of the Constitution. It is also evident from the
long time of decisions referred to above that the courts in India have
recognized the doctrine of proportionality as one of the ground for judicial
review. Having said that we need to remember that the quantum of punishment in
disciplinary matters is something that rests primarily with the disciplinary
authority. The jurisdiction of a Writ Court or the Administrative Tribunal for
that matter is limited to finding out whether the punishment is so outrageously
disproportionate as to be suggestive of lack of good faith.
What is
clear is that while judicially reviewing an order of punishment imposed upon a
delinquent employee the Writ Court would not assume the role of an appellate
authority. It would not impose a lesser punishment merely because it considers
the same to be more reasonable than what the disciplinary authority has
imposed. It is only in cases where 14 the punishment is so disproportionate to
the gravity of charge that no reasonable person placed in the position of the disciplinary
authority could have imposed such a punishment that a Writ Court may step in to
interfere with the same.
16.
The question then is whether the present is indeed one such case
where the High Court could and ought to have interfered with the sentence
imposed upon the appellant on the doctrine of proportionality. Our answer is in
the negative. The appellant was holding the rank of a Major in the Indian Army
at the time he committed the misconduct alleged and proved against him. As an
officer of disciplined force like the Army he was expected to maintain the
highest standard of honesty and conduct and forebear from doing anything that
could be termed as unbecoming of anyone holding that rank and office. Making a
false claim for payment of transport charges of household luggage and car to
Chandigarh was a serious matter bordering on moral turpitude. Breach of the
rule requiring him to clear his 15 electricity dues upon his transfer from the
place of his posting was also not credit worthy for an officer. The competent
authority was therefore justified in taking the view that the nature of the
misconduct proved against the appellant called for a suitable punishment.
Inasmuch as the punishment chosen was dismissal from service, the competent
authority, did not in our opinion, take an outrageously absurd view of the
matter. We need to remember that the higher the public office held by a person
the greater is the demand for rectitude on his part. An officer holding the
rank of Major has to lead by example not only in the matter of his readiness to
make the supreme sacrifice required of him in war or internal strife but even
in adherence to the principles of honesty, loyalty and commitment. An officer
cannot inspire those under his command to maintain the values of rectitude and
to remain committed to duty if he himself is found lacking in that quality.
Suffice it to say that any act on the part of an officer holding a commission
in the Indian Army which is subversive 16 of army discipline or high traditions
of the Army renders such person unfit to stay in the service of the nation's
Army especially when the misconduct has compromised the values of patriotism,
honesty and selflessness which values are too precious to be scarified on the
altar of petty monetary gains, obtained by dubious means.
17.
In the result this appeal fails and is hereby dismissed.
............................................J. (DALVEER BHANDARI)
............................................J.
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