Chandra Kumar Chopra Vs.
Union of India and others
[Criminal Appeal No.
665 of 2002]
J U D G M E N T
DIPAK MISRA, J.
1.
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 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.
3.
”3.
In pursuance of the charge-sheet, General Court Martial commenced on March 12,
1990 which consisted of five Members, namely, Co. Choudhary SohanLal, 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 Martialon the foundation
that he had lodged a statutory complaint under Section 27of 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, interalia, 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 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 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 on18.2.1989 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.
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 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 affordance 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 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.
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 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 Lalv. Dr. Prem
Chand [1] 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, abias 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 thetribunal.
15.
In
Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport
Corporation and Another[2], it has 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 abias 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 others[3], 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.
17.
In
Dr. S.P. Kapoor v. State of Himachal Pradesh and others[4], 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 others[5], 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 inthe said case that the proceedings
of Court Martial were vitiated as thefourth 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 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 insupporting.
20.
In
S. Parthasarathi v. State of Andhra Pradesh [7], 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 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. Lannon [8] 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.
”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 its conceptual eventuality and inherent quint essentiality 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 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 naturaljustice.
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 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 3285and 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 in charge, 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.
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 here in below: - “53. Plea in bar. –
a. 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.
b. 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 behalf of the accused and the prosecutor in reference to the plea.
c. 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.
d. 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.
e. 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 pointurged 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 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 ofproportionality.
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. Irrationality and perversity are recognised grounds of judicial
review.
30.
”30.
In Ex-Naik Sardar Singh v. Union of India and others [9], 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 had to the nature and degree of the offence, and the decision in
Council of Civil Service Unions v. Minister for the Civil Service[10]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. MukulKumar
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 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 un invocable
and, accordingly, we are compelled to repel the said preponement advanced by the
learned senior counsel without any hesitation and we do so.
33.
Consequently,
the appeal, being devoid of merit, stands dismissed.
..........................J.
[P. Sathasivam]
..........................J.
[Dipak Misra]
New
Delhi;
May
11, 2012
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