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
