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Friday, May 11, 2012

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 uninvocable 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.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 665 OF 2002



Chandra Kumar Chopra                       .....……..Appellant

                                   Versus

Union of India and others                      ………Respondents






                               J U D G M E N T


DIPAK MISRA, J.



      The present appeal by special leave  is  directed  against  the  order
dated July 23, 1991 passed by the High Court of Judicature of Delhi in  Writ
Petition (Criminal) No. 590 of 1991 wherein the  learned  Single  Judge  has
declined to interfere with  the  order  dated  July  20,  1990  whereby  the
confirming authority under Section 164 of the  Army  Act,  1950  (for  short
‘the Act’) had passed an order of confirmation as regards  the  sentence  of
cashiering but reduced the rigorous imprisonment  from  five  years  to  six
months as imposed by the Competent Authority of General Court  Martial  vide
order dated June 4, 1990.


2.    The appellant after joining the Army was  confirmed  in  the  rank  of
Second Lieutenant and eventually became a Major in due 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.    In pursuance of the charge-sheet, General Court Martial  commenced  on
March 12, 1990 which consisted of five Members, namely, Co. Choudhary  Sohan
Lal, Lt. Col. Harpal Singh, Lt. Col. Shiv Kumar Singh, Maj. Saigal  Rajinder
Nath and Maj. Manhas Rajender Singh.


4.    At the commencement of trial in Court Martial, the appellant  objected
to some of the officers being members of the composition  of  Court  Martial
on the foundation that he had lodged a statutory complaint under Section  27
of the Act before the Central Government  regarding  certain  irregularities
against the Commander of the Sub Area and as all the presiding officers  had
worked under the Convening Officer, namely, Brig. Phoolka,  the  composition
of Court Martial was vitiated. The Presiding Officer and  other  Members  of
Court Martial adverted to Section 130 of the Act and Rule  44  of  the  Army
Rules, 1954 (for short ‘the Rules’) and eventually repelled  the  objections
and proceeded with the trial.


5.    After a full length trial, Court Martial found that  all  the  charges
levelled against the appellant had been  proved  and  accordingly  sentenced
him as has been indicated hereinbefore.


6.    After recording of guilt and imposition  of  sentence,  the  appellant
submitted an application under Section 164(1)  of  the  Act  stating,  inter
alia, that the Members of Court Martial were disqualified  as  there  was  a
statutory complaint against the Convening Officer under whom the Members  of
Court  Martial  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  on
18.2.1989 had explained his perception in his reply and at the  instance  of
the Commanding Officer of the Unit,  recovery  for  the  excess  amount  was
effectuated in the month of February, 1989 itself; and that once the  matter
was closed by taking recourse to recovery, it is to  be  presumed  that  the
charge levelled against the appellant  stood  closed  and  condoned  by  the
competent authority and hence, there was  no  justification  or  warrant  to
proceed again in that regard in Court Martial.


8.    As regards the third charge, it  was  urged  that  the  appellant  had
neither collected the alleged railway warrant nor did  he  exchange  it  for
the ticket.  As a matter of fact, he had purchased the ticket for AC-2  Tier
on cash payment for the journey from Jammu to Delhi and back.  It  was  also
propounded that there was no evidence on record to prove that  the  relevant
railway warrant was utilized as no witness from the  railways  was  examined
during the course of Court Martial.


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
      affirmance of the same by the High Court.


(ii)  There has been violation of the principles of natural justice  as  the
      appellant was not provided with a  proper  defending  officer  and  an
      officer was imposed on him who was reluctant to canvass his case.


(iii) The first charge levelled against the  appellant  cannot  be  said  to
      have been proven inasmuch as  no  officer  from  the  Corporation  was
      examined to deny the receipts given by it to the appellant  pertaining
      to transportation of goods from Bangalore to  Udhampur.   That  apart,
      the stand and stance put forth by the appellant is that the bill  that
      has been submitted for transportation was interpolated  to  show  that
      goods had been transported in truck Nos. JKQ 3285 and JKR  9587  by  a
      different transporter.  Undue emphasis has been placed on the evidence
      of DW-6 who had stated that goods were, in fact, not transported.   As
      far as the second charge is concerned, it was imperative on  the  part
      of Court Martial to examine an official from  the  railways  to  prove
      that he 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  Lal
v. 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,  a
bias has affected the judgment, the test always is and  must  be  whether  a
litigant could reasonably apprehend that a bias attributable to a member  of
the tribunal might have operated against him in the final  decision  of  the
tribunal.


15.       In Gullapalli Nageswara Rao and others  v.  Andhra  Pradesh  State
Road Transport Corporation  and  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  a
bias must be assumed to exist, he ought not take part  in  the  decision  or
sit on the tribunal.


16.   In A.K. Kraipak and others v.  Union  of  India  and  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  in
the said case that the proceedings of Court Martial  were  vitiated  as  the
fourth respondent who was biased against the appellant  was  member  of  the
tribunal.  In that regard, it was held that the test of real  likelihood  of
bias is whether a reasonable man, in  possession  of  relevant  information,
would  have  thought  that  bias  was  likely  and  whether  the   concerned
respondent was likely to  be  disposed  to  decide  the  matter  only  in  a
particular way.  The appellant in that case had  sent  a  written  complaint
complaining of ill-treatment at the hands of respondent No.  4  directly  to
the higher officers as a result of which  he  was  punished  with  28  days’
rigorous imprisonment by the said respondent.   Keeping  the  said  fact  in
view, the Bench held that the participation  of  the  respondent  No.  4  in
Court Martial rendered the proceeding coram non-judice.


19.   In M/s. Crawford Bayley & Co. & Ors. v.  Union  of  India  &  Ors.[6],
this Court referred to the circumstances under which the doctrine  of  bias,
i.e., no man can be judge in his own cause, can be  applied.   It  has  been
held therein that for the said doctrine to come into play, it must be  shown
that the officer concerned has a personal bias or connection or  a  personal
interest or was personally connected in the matter concerned or has  already
taken a decision one way  or  the  other  which  he  may  be  interested  in
supporting.


20.    In S. Parthasarathi v. State  of  Andhra  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.  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
quintessentiality forms the bedrock of good  governance.   In  a  democratic
system that is governed by Rule  of  Law,  fairness  of  action,  propriety,
reasonability, institutional impeccability and non-biased  justice  delivery
system constitute the pillars on which its survival remains in continuum.


23.   It is worth noting that despite the sanctity  attached  to  non-biased
attitude of a member of a tribunal or a court and in spite of the  principle
that justice must not only be done but must seen to have been  done,  it  is
to be scrutinized on  the  basis  of  material  brought  on  record  whether
someone makes wild, irrelevant and  imaginary  allegations  to  frustrate  a
trial or it is in consonance with the thinking of  a  reasonable  man  which
can meet the test of real likelihood  of  bias.   The  principle  cannot  be
attracted in vacuum.  In the case at hand, the convening officer had  ceased
to  be  the  Commander.   There  was  a  general   complaint   against   the
irregularities about the Commander, the convening  officer.   The  objection
that was put forth by the appellant in Court Martial was that his  complaint
was pending with the Central Government.   Nothing  was  brought  on  record
that there was anything personal against any of the members who  constituted
Court Martial.  Thus, in the  obtaining  factual  matrix,  it  is  extremely
difficult to hold that  there  was  real  likelihood  of  bias  because  the
prudence of a reasonable man cannot so  conceive  and  a  right  minded  man
would  discard  it  without  any  hesitation.   Hence,  we  repel  the  said
submission raised by the learned senior counsel for the appellant.


24.   The next contention  pertains  to  compliance  of  the  principles  of
natural justice.  The only ground raised  is  that  the  appellant  was  not
provided a defending officer of his choice.  It is not a case where  he  was
not provided with the  assistance  of  a  defending  officer.   On  a  close
scrutiny of Court Martial proceeding, we find  that  the  defending  officer
had acted with due sincerity and put forth the  case  of  the  appellant  in
proper perspective.  There can be no shadow of doubt  that  there  has  been
compliance of the principle of natural justice and  no  prejudice  has  been
caused to the appellant because of any kind of non assistance.  That  apart,
there is nothing in the Act or the Rules which  lay  down  that  an  accused
shall be given a defending officer of his own choice.   Thus,  there  is  no
violation of any mandatory provision and, therefore, it cannot be said  that
the proceeding is vitiated because of violation of the principle of  natural
justice.


25.   The third plank of submission of both  the  learned  counsel  for  the
parties relates to the  issue  whether  the  charges  levelled  against  the
appellant  have  been  really  proven  or  not.   We  have  enumerated   the
submissions relating to charges  and  it  is  apposite  to  deal  with  them
together.  Ms. Indu Malhotra, learned senior counsel, would submit that  the
first charge has not been proven at all  as  the  appellant  had  given  the
responsibility to the Corporation to transport the goods from  Bangalore  to
Udhampur.  There is no dispute  over  the  factum  that  the  appellant  had
produced the receipts from the Corporation.  To satisfy ourselves,  we  have
carefully perused the original file which was produced before us.  The  bill
submitted by the appellant clearly reflects that the  truck  Nos.  JKQ  3285
and JKR 9587 are alleged  to  have  carried  the  goods  of  the  appellant.
Nothing has been mentioned therein that the transportation was made  by  the
Corporation.  To substantiate the claim in respect of  the  said  bill,  the
receipts of the Corporation were filed.  On a perusal of  the  receipts,  it
is perceptible that they neither reflect the name of the truck owner nor  do
they mention the truck numbers.  What is ultimately  argued  is  that  there
had been interpolation in the bill.   On a bare look  at  the  bill,  it  is
luculent that there is no interpolation.   That  apart,  DW-6  Satinder  Pal
Singh  s/o  Janak  Singh,  who  has  been  cited  as  defence   witness   to
substantiate that he had transported  the  goods,  has  specifically  stated
that only a receipt for transporting the goods was given but no goods  were,
in fact, transported.  Apart  from  that,  PW-13,  the  toll  incharge,  has
categorically asserted that the  trucks  namely,  JKQ  3285  and  JKR  9587,
alleged to have carried the goods of the appellant did not cross the  check-
post barrier.  The cumulative effect of all  this  clearly  establishes  the
first charge beyond any trace of doubt.  Thus, the first charge is proved.


26.   As far as the second charge is concerned, it relates  to  availing  of
LTC.  There is no doubt that the LTC was  availed  of  twice  to  which  the
appellant was not entitled to.  What is contended is that once the  recovery
was done, it could not have  been  the  subject  matter  of  Court  Martial.
Needless  to  say,  recovery  of  excess  amount  stands  in   a   different
compartment  altogether  and  Court  Martial  pertains  to  good  order  and
military discipline.  That apart, recovery ipso facto does not create a  bar
for the matter to be tried in Court Martial. In this context, we  may  refer
with profit to Rule 53 of the Rules that deals with plea in bar.   The  said
Rule is reproduced hereinbelow: -


           “53.  Plea in bar. – (1) The accused, at the time of his general
           plea of “Guilty” or “Not Guilty” to a charge for an offence, may
           offer a plea in bar of trial on the ground that –


           (a)   he has been  previously  convicted  or  acquitted  of  the
                 offence by a  competent  criminal  court  or  by  a  court-
                 martial, or has been dealt with  summarily  under  sections
                 80, 83, 84 and 85, as the case may be, for the offence,  or
                 that a charge in respect of the offence has been  dismissed
                 as provided in sub-rule (2) of rule 22; or


           (b)   the offence has been pardoned  or  condoned  by  competent
                 military authority;


           (c)   the period of limitation for trial as laid down in section
                 122 has expired.


           (2)   If he offers such plea in bar, the court shall  record  it
           as well as his general plea, and if it considers that  any  fact
           or facts stated by him are sufficient to  support  the  plea  in
           bar, it shall receive any evidence offered, and hear any address
           made by or on behalf  of  the  accused  and  the  prosecutor  in
           reference to the plea.


           (3)   If the court finds that the plea  in  bar  is  proved,  it
           shall record  its  finding  and  notify  it  to  the  confirming
           authority, and shall either adjourn, or if there  is  any  other
           charge against  the  accused,  whether  in  the  same  or  in  a
           different charge-sheet, which is not affected  by  the  plea  in
           bar, may proceed to the trial of the accused on that charge.


           (4)   If the finding that the plea  in  bar  is  proved  is  not
           confirmed, the court  may  be  re-assembled  by  the  confirming
           authority, and proceed as if the plea has been found not proved.


           (5)   If the court finds that the plea in bar is not proved,  it
           shall proceed with the trial, and the  said  findings  shall  be
           subject to confirmation like any other finding or the court.”





On a bare reading of the aforesaid Rule, it is vivid that recovery  of  the
amount does not come under any of the clauses mentioned in the Rule because
there has neither been any previous conviction or acquittal nor  has  there
been any kind of pardon or condonation by any competent military authority.
Thus, the submission leaves us unimpressed and we unhesitatingly decline to
accept the same.

27.   As far as the third  charge  is  concerned,  it  relates  to  improper
utilisation of the railway warrant from Jammu to New Delhi.  The only  point
urged is that an officer from the railway should  have  been  examined.   On
perusal of the record, it  is  perceivable  that  the  appellant  put  up  a
requisition for obtaining the railway warrant and the same was collected  by
the  representative  on  his  instructions.   He  forwarded  a  letter   for
reservation and thereafter necessary  reservation  was  made.   Exchange  of
warrant for tickets has been duly proven.  Under  these  circumstances,  the
plea that he had not collected the railway warrant  and  there  should  have
been an examination of a competent witness from  railway  administration  is
bound to collapse and, accordingly, we reject the said submission.


28.   The last submission of Ms.  Indu  Malhotra,  learned  senior  counsel,
pertains to the proportionality of punishment.  It is submitted by her  that
the appellant has rendered dedicated and disciplined service for a  span  of
21 years and fought in the front and regard  being  had  to  the  nature  of
charges, the punishment defies logic  and  totally  buries  the  concept  of
proportionality.


29. To appreciate the submission, we may advert to  certain  authorities  in
the field. In the case of Ranjit Thakur (supra), it has been held thus:-


           “The question of the choice and quantum of punishment is  within
           the jurisdiction and discretion of the court-martial.   But  the
           sentence has to suit the offence and the  offender.   It  should
           not be  vindictive  or  unduly  harsh.   It  should  not  be  so
           disproportionate to the offence as to shock the  conscience  and
           amount if itself to conclusive evidence of bias.   The  doctrine
           of proportionality, as part of the concept of  judicial  review,
           would ensure that even on an aspect which is, otherwise,  within
           the exclusive province of the court-martial, if the decision  of
           the court even as to  sentence  is  an  outrageous  defiance  of
           logic, then the sentence would not be  immune  from  correction.
           Irrationality and perversity are recognised grounds of  judicial
           review.”






 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.  Mukul
Kumar Choudhury & Ors.[12], this Court adverted to the concept  of  doctrine
of proportionality and eventually opined that the imposition  of  punishment
is subject to judicial intervention if the same is  exercised  in  a  manner
which is out of proportion to the fault.  If  the  award  of  punishment  is
grossly in excess of the allegations made,  it  cannot  claim  immunity  and
makes itself amenable for interference under the limited scope  of  judicial
review.  The test to be applied while dealing with the question  is  whether
a  reasonable  employer  would  have  imposed  such   punishment   in   like
circumstances.  The question that has to be studiedly addressed  is  whether
the punishment imposed is really arbitrary  or  an  outrageous  defiance  of
logic so as to be called irrational and perverse warranting interference  in
exercise of the power of  judicial  review.   The  appellant  was  initially
cashiered from the Army and was sentenced to undergo  rigorous  imprisonment
for five years.    The period of sentence  was  reduced  by  the  confirming
authority.  The appellant was a Major  in  the  Army  and  all  the  charges
levelled against him fundamentally pertain to commission of illegal acts  in
fiscal sphere.   The acts done  by  him  were  intended  to  gain  pecuniary
advantage.  The primary obligation  of  a  member  of  Armed  Forces  is  to
maintain discipline in all aspects.  Discipline in fiscal matters has to  be
given top priority as that mirrors  the  image  of  any  institution.   That
apart, the appellant was a  Major  in  the  Army.   Irreproachable  conduct,
restrained  attitude,  understanding  of  responsibility  and  adherence  to
discipline in an apple pie order were expected of him.   The proven  charges
luminously project that the said aspects have been given a total go by.   In
this backdrop, it is well nigh impossible to hold that  the  punishment  was
harsh or arbitrary.   Regard being had to the nature of  rank  held  by  the
appellant and the disciplined conduct expected of  him,  we  find  that  the
doctrine  of  proportionality  is  uninvocable  and,  accordingly,  we   are
compelled to repel the said  preponement  advanced  by  the  learned  senior
counsel without any hesitation and we do so.

33.   Consequently, the appeal, being devoid  of  merit,  stands  dismissed.





                                               ...........................J.
                                                             [P. Sathasivam]






                                                ..........................J.
                                  [Dipak Misra]

New Delhi;
May 11, 2012
-----------------------
[1]    AIR 1957 SC 425
[2]    (1959) Supp.1 SCR.319
[3]    AIR 1970 SC 150
[4]    (1981) 4 SCC 716
[5]    (1987) 4 SCC 611
[6]    AIR 2006 SC 2544
[7]    (1974) 3 SCC 459
[8]    (1969) 1 QB 577, 599
[9]   [10] (1991) 3 SCC 213
[11]   (1984) 3 ALL ER 935
[12]   (1983) 2 SCC 442
[13]   AIR 2010 SC 75