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CASE NO.:

Appeal (civil) 7052-7053 of 2001

PETITIONER:

UNION OF INDIA AND ORS.

RESPONDENT:

R.K. SHARMA

DATE OF JUDGMENT: 09/10/2001

BENCH:

K.T. THOMAS & S.N. VARIAVA

JUDGMENT:

JUDGMENT

2001 Supp(3) SCR 664

The Judgment of the Court was delivered by S.N. VARIAVA, J. Leave granted.

Heard parties.

These Appeals are against an Order dated 16th March, 2001 by which two

Appeals, one filed by the Appellant (herein) and the other filed by the

Respondent (herein), were dismissed.

Briefly stated the facts are as follows :

The Respondent was, at the relevant time, serving as Deputy Commandant of

Assam Rifles. On 28th November, 1986 he was served with a charge-sheet.

Thereafter a General Court Martial was held and the Respondent was found

guilty of four of the charges. The penalty of dismissal from service was

imposed on the Respondent. The Central Government dismissed the Appeal

filed by the Respondent. The Respondent then filed a Writ Petition in the

High Court. By an Order dated 14th October, 1999, a Single Judge of the

High Court held that the Court Martial had been properly conducted and that

there was no breach of principles of natural justice. It was further held

that the four charges had been established in the General Court Martial and

that the Respondent was liable for punishment. It was however held that

having regard to the nature and degree of the offences established the

extreme and severe punishment of dismissal from service was violative of

the provisions of Section 72 of the Army Act, 1950. The order of dismissal

was set aside and the matter was sent back to the General Court Martial,

for awarding any lesser punishment than dismissal from service. It was

directed that the Respondent would not receive any salary and allowances

for the period when he was out of service.

Both the Appellant and the Respondent filed Appeals. The Appellate Court

refused to grant any stay to the Appellants herein. The Appellants,

therefore, approached this Court. This Court by an Order dated 7th August,

2000 granted an interim stay. This was then confirmed by an Order dated

16th October, 2000. By the Order dated 16th October, 2000 the High Court

was requested to dispose of the Appeals expeditiously.

The Division Bench has, in the impugned Order, relied upon the authority of

this Court in the case of Bhagat Ram v. State of H.P. reported in AIR 1983

SC 454, for proposition that the penalty must be commensurate with the

gravity of mis-conduct and that any penalty disproportionate to the gravity

of mis-conduct would be violative of Article 14 of the Constitution. To be

noted that this case was not under the Army Act, but in respect of a civil

servant.

The Division Bench also relied upon the following observations in the case

of Ranjit Thakur v. Union of India reported in [1987] 4 SCC 611 :

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"Judicial review generally speaking, is not directed against a decision,

but is directed against the "decision making process". The question of

choice and quantum of punishment is within the jurisdiction and discretion

of the Court-martial. But the sentence has to suit the offence and the

offender. It should not be vindictive or unduly harsh. It should not be so

disproportionate to the offence as to shock the conscience and amount in

itself to conclusive evidence of bias. The doctrine of proportionality, as

part of the concept of judicial review, would ensure that even on an aspect

which is, otherwise, within the exclusive province of the Court-martial, if

the decision of the Court even as to sentence is an outrageous defiance of

logic, then the sentence would not be immune from correction. Irrationality

and perversity are recognized grounds of judicial review."

Based on the above authorities the Division Bench has held that the

sentence awarded was too harsh considering the nature of the allegation and

the charge established. The Division Bench has also directed that if the

original General Court Martial was not available, as two of its members

have retired, then another General Court Martial could be constituted with

available members for purpose of imposing a lesser punishment. Being

aggrieved by this Order the Appellants have filed this Appeal.

In order to consider the correctness of the impugned Order it is necessary

to see the charges which have been held proved. The four charges read as

follows :

___________________________________________________________________________

____

"First Charge AN ACT PREJUDICIAL TO

Army Act GOOD ORDER AND MILITARY

Section 63 DISCIPLINE

In that he, at field, on 31 Oct. 84 while being the Officer Commanding 'A'

Coy, 11 Assam Rifles on receipt of signal No. O 2140 dated 31 Oct. 84 from

Tac HQ 11 Assam Rifles directing Coy Cdrs to visit fwd posts immediately to

check alterness and report all OK did not himself visit the fwd post but

improperly detailed JC-111310 Sub GS Panthi, the Senior JCO of the Coy for

the task.

Second Charge BEING AN OFFICER

Army Act BEHAVING IN A MANNER

Section 45 UNBECOMING HIS POSITION

AND THE CHARACTER EXPECTED

OF HIM.

In that he,

at field, between the period 14 Oct. 84 to 30 Nov. 84 drew ration for

personal consumption of Rs. 930.37 (Rupees Nine hundred thirty and paise

thirty seven) only from the Quartermaster 'A' Coy but did not pay for the

same.

Third Charge IN A TOUR DIARY

Army Act MADE BY HIM KNOWINGLY

Section 57(a) MAKING A FALSE STATEMENT

In that he,

At field, on 17 Dec. 84 while being the Officer Commanding 'A' Coy in his

Tour Diary stated that he left Manigong on 20 Oct. 84 for Tadadege well

knowing the said statement to be false.

Fourth Charge IN A TOUR DIARY

Army Act ' MADE BY HIM KNOWINGLY

Section 57(a) MAKING A FALSE STATEMENT

___________________________________________________________________________

______

In that he, at field, on 07.01.85, while being the Officer Commanding 'A'

Coy in his Tour Diary stated that he left Manigong on 26 Nov 84 for Shiet

well knowing the said statement to be false."

At this stage the Sections of the Army Act, 1950, on which these charges

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are framed, may be looked at. The first charge is based on Section 63.

Section 63 provides for violation of good order and discipline. Under

Section 63 if such a charge is found proved, then on conviction by Court

Martial, the person found guilty could be sentenced to suffer imprisonment

for a term which may extend to seven years or to some other lesser

punishment. The second charge is under Section 45. It is in respect of

unbecoming conduct. The punishment is dismissal or such lesser punishment

as is mentioned in the Act. The third and fourth charges are under Section

57. They relate to falsifying official documents and making false

declarations. On conviction the punishment could be for a term which may

extend to 14 years or any other lesser punishment.

Section 72 of the Army Act, 1950, reads as follows :

"72. Alternative punishments awardable by court-martial.-Subject to the

provisions of this Act, a court-martial may, on convicting a person subject

to this Act of any of the offences specified in Secs. 34 to 68 inclusive,

award either the particular punishment with which the offence is stated in

the said sections to be punishable, or in lieu thereof, any one of the

punishments lower in the scale set out in Sec. 71, regard being had to the

nature and degree of the offence."

Under Section 71 various punishments are prescribed according to scale. One

of them, at item (e) is dismissal from service. Above this at items (a) to

(d) are : (a) death; (b) transportation for life or for any period not less

than seven years; (c) imprisonment, either rigorous or simple, for any

period not exceeding fourteen years; (d) cashiering, in the case of

officers. Various other punishments with which we are not concerned, are

prescribed after item (e). Thus it is to be seen that dismissal from

service is a lesser punishment than imprisonment for either 7 years or 14

years as contemplated under Sections 57 and 63 of the Army Act, 1950.

The law on the subject is aptly set out in the case of Union of India v.

Major A. Hussain reported in [1998] 1 SCC 537. This was a case where a

Major had been court-martialed and dismissed from service. The High Court

quashed the Court Martial and the sentence on the ground that the

delinquent had been denied a reasonable opportunity to defened himself.

This Court, after considering various Army Orders, Rules and Provisions of

the Army Act, concluded that the Court Martial had been properly held. It

was then held as follows :

"23. Though court-martial proceedings are subject to judicial review by the

High Court under Article 226 of the Constitution, the court-martial is not

subejct to the superintendence of the High Court under Article 227 of the

Constitution. If a court-martial has been properly convened and there is no

challenge to its composition and the proceedings are in accordance with the

procedure prescribed, the High Court or for that matter any court must stay

its hands. Proceedigs of a court-martial are not to be compared with the

proceedings in a criminal court under the Code of Criminal Procedure where

adjournments have become a matter of routine though that is also against

the provisions of law. It has been rightly said that court-martial remains

to a significant degree, a specialised part of overall mechanism by which

the military discipline is preserved. It is for the special need for the

armed forces that a person subject to Army Act is tried by court-martial

for an act which is an offence under the Act. Court-martial discharges

judicial function and to a great extent is a court where provisions of

Evidence Act are applicable. A court-martial has also the same

responsibility as any court to protect the rights of the accused charged

before it and to follow the procedural safeguards. If one looks at the

provisions of law relating to court-martial in the Army Act, the Army

Rules, Defence Service Regulations and other Administrative Instructions of

the Army, it is manifestly clear that the procedure prescribed is perhaps

equally fair if not more than a criminal trial provides to the accused.

When there is sufficient evidence to sustain conviction, it is unnecessary

to examine if pre-trial investigation was adequate or not. Requirement of

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proper and adequate investigation is not jurisdictional and any violation

thereof does not invalidate the court-martial unless it is shown that the

accused has been prejudiced or a mandatory provision has been violated. One

may usefully refer to Rule 149 quoted above. The High Court should not

allow the challenge to the validity of conviction and sentence of the

accused when evidence is sufficient, court-martial has jurisdiction over

the subject-matter and has followed the prescribed procedure and is within

its powers to award punishment."

As stated above, both the single Judge as well as the Divison Bench have

held that the four charges set out have been proved and that the Respondent

was guilty of those charges. Having so held it was not open to the Court to

have interfered in the sentence. The awarding of sentence is within the

powers of the Court Martial. These are not matters in which Court should

interfere.

In our view, the observation in Ranjit Thakur's case (supra) extracted

above, have been misunderstood. In that case the facts were such that they

disclosed a bias on the part of the Commanding Officer. In that case the

Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer

because he had complained against the Commanding Officer. For making such a

complaint the Commanding Officer had sentenced him to 28 days rigorous

imprisonment. While he was serving the sentence he was served with another

charge-sheet which reads as follows.

"Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal

Regiment is charged with -

Army Act Disobeying a lawful command given by

Section 41(2) his superior officer

In that he

At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the

orderly Officer of the same Regiment to eat his food, did not do so."

On such a ridiculous charge rigorous imprisonment of one year was imposed.

He was then dismissed from service, with the added disqualification of

being declared unfit for any future civil employment. It was on such gross

facts that this Court made the observations quoted above and held that the

punishment was so strikingly disproportionate that it called for

interference. The above observations are not to be taken to mean that a

Court can, while exercising powers under Article 226 or 227 and/or under

Article 32, interfere with the punishment because it considers the

punishment to be disproportionate. It is only in extreme cases, which on

their face show perversity or irrationality that there can be judicial

review. Merely on compassionate grounds a Court should not interfere.

We find that the lower Court erred in coming to the conclusion that the

punishment of dismissal was violative of provisions of Section 72 of the

Army Act, 1950. Section 72 merely provides that the Court Martial may, on

convicting a person, award either the punishment which is provided for the

offence or any of the lesser punishment set out in the scale in Section 71.

Section 72 does not set out that in all cases, a lesser punishment must be

awarded. In other words, merely because a lower punishment is not granted,

it would not mean that the punishment was violative of Section 72. In any

case, in this case, under Section 63 there could have been a punishment of

imprisonment for a term which may extend to 7 years. Under Section 57 there

could have been a punishment for imprisonment for a term which may extend

to 14 years. The charges under Sections 57 and 63 had been held to be

proved. The General Court Martial could have imposed a punishment of

imprisonment. The General Court Martial has chosen to give a lower

punishment of dismissal from service. The Court below should not have

interfered on the erroneous assumption that provisions of Section 72 of the

Army Act, 1950 had been violated.

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Even otherwise, in our view, both the Courts below have erred in coming to

the conclusion that the sentence awarded was too harsh considering the

nature and degree of the offence established. The first charge, as set out

hereinabove, indicates that the Respondent, who was the Commanding Officer

of 'A' Company 11 Assam Rifles, had received a signal to visit the forward

post, check alertness and report all OK. It is not denied that the signal

had been received. It has been proved that the Respondent did not visit the

forward post. The Respondent improperly detailed a JCO of the Company to

vist the forward post. This was a very serious charge. If a Commanding

Officer breaches orders received from the Head Quarters how can discipline

be maintained in the Army.

Mr. J.M. Sharma submitted that during that period, i.e. in October 1984,

there was an operation, known as operation "Ran Vijay", in progress. He

submitted that as a result of the operation the troops were already on high

alert. He submitted that 'A' Company had four forward posts. He submitted

that just a few days before the receipt of the signal, the Respondent had

already visited two of the forward posts viz. Tatadege and Henakar. He

submitted that as the troops were already on high alert and as he had just

returned back from two of the forward post the Respondent sent the JCO to

check alertness in the remaining two forward posts. He further submitted

that there was to be a visit, to the 'A' Company, of a VIP and the

Respondent was therefore required to remain in Manigong. He submitted that

for that reason also the Respondent could not personally visit the forward

posts. It was further submitted that in that area, apart them 'A' Company,

there were three other Companies, namely 'B', 'C' and 'D' Companies. He

submitted that that the Commandants of 'C' Company and 'D' Company had also

not visited the forward post after receipt of signal. He submitted that

therefore the charge was not that serious and that this was the factor

which was taken into consideration by both the Courts below. Mr. Sharma

further submitted that even the other charges were not of very serious

nature inasmuch as the second charge only related to non payment of a small

sum of Rs. 930.37. He submitted that the third and fourth charges only

related to making entries in the tour Diary maintained by the Respondent.

We are unable to accept the submissions of Mr. Sharma. It has to be

immediately noted that the Company Commandants of 'C' and 'D' Companies had

stayed back after getting permission from the Head Quarters. The Respondent

did not apply for any permission. The further case that the Respondent was

required to stay back because a VIP was to visit the 'A' Company is also of

no substance. The VIP was to visit only on 5th November. By that time the

JCO, who had been improperly deputed by the Respondent, had already visited

the forward posts and come back. Thus the Respondent could also have

visited the post and returned well in time to receive the VIP. It is also

not possible to accept the case that the Respondent had already visited two

of the forward posts a few days earlier. It is to be seen that the third

Charge is in respect of making a false entry in the tour diary to show that

the Respondent had gone to the forward posts. That charge was proved. This

showed that a false entry had been made to show that the Respondent had

gone to those posts when in fact he had not gone there. Not only did the

Respondent not obey the command from the Headquarter but he falsified

records in order to make out a case that he had already gone to two of the

forward posts. These are very serious offences. These are offences for

which the General Court Martial would have been justified in awarding

imprisonment. The General Court Martial took a lenient view by merely

dismissing him from service. There was just no justification for

interference by the High Court.

Mr. Sharma next submitted that the General Court Martial was not properly

convened. When asked whether such a contention was taken up in the Writ

Petition. Mr. Sharma placed reliance on the following observations in the

Judgment of the Single Judge :

"The petitioner vehemently argued that preliminary hearing when the summary

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evidence was recorded, the provisions of rules 22,23 and 24 of the Army

Rules, 1954, as well as Army Order 70/84 were not strictly followed. In

this context, he pointed out that the Army Order 70/84 prescribed a form

which was required to be filled up by the commanding Officer at the time of

hearing of a charge against a person subjected to Army Act, 1950, but the

said form was not duly filled up by the Commanding Officer." We are unable

to accept that the above observation show that in the Writ Petition there

was a challenge to constitution of the General Court Martial. The above

observations are in respect of a preliminary hearing under rules 22, 23 and

24 of the Army Rules, 1954. This is a hearing which precedes the Court

Martial. In any event the High Court has held against the Respondent on

this point and no Appeal was filed by him. This point not having been

raised in the Writ Petition cannot now be urged before this Court for the

first time. We therefore did not permit Mr. Sharma to argue this point.

Under these circumstances, we set aside the Order passed by the learned

single Judge as well as the impugned Order. The Writ Petition filed by the

Respondent shall stand dismissed. There will be no Order as to costs.