Criminal Appeal No 67 of 1991
From the Judgement and Order dated 27111987 of the Delhi High Court in Crl
W No 527 of 1987
NN Gupta and Rajiv Dutta for the Appellant
JD Jain Maninder Singh and Ms Sushma Suri for the Respondents
The Judgement of the Court was delivered by K JAYACHANDRA REDDY J
This appeal pursuant to the special leave granted is directed against the order of the High Court of Delhi dismissing the writ petition filed by the appellant summarily
The appellant was serving as a Jawan in the Indian Army
On 17th September 1985 he applied for leave and it was granted
He was going to his home town a village in Rajasthan
He 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
Admittedly the appellant was entitled to carry 4 bottles of rum and one bottle of brandy as per the Unit Regulationsleave certificate when he was proceeding on leave
According to the appellant the remaining 7 bottles of rum he was able to purchase from the Unit Canteen over and above his entitlement on the orders of its Company Commander and Commanding Officer on compassionate grounds and that there was a written order to that effect which was retained by the Salesman of the Unit Canteen at the time of delivery of the extra 7 bottles of rum
Enroute to his home 679 town he had to pass through Surendra Nagar which was under prohibition
The local Civil Police at Surendra Nagar intercepted him and confiscated the bottles of liquor and handed over the appellant alongwith the liquor bottles to the City Police Station Surendra Nagar
The City Police in turn handed over him to his Unit authorities for action
The 6th respondent the Officer Commanding 98 Field Regiment ordered a summary court martial during which the witnesses including the Civil Police Officer of Surendra Nagar were examined
Ultimately the summary court martial sentenced the appellant to three months  RI and dismissed him from service with effect from 9th October 1985 by which time the appellant had already put in 10 years of service
His plea throughout has been that he had purchased the liquor for the marriage of his brother in law on the basis of the permit issued to him and the chits issued by his superiors enabling him to draw the extra 7 bottles of rum and that he had no other bad intention in carrying the liquor bottles
He preferred an appeal to the Army Commander mentioning several irregularities in the summary trial
He also pleaded that he was having unblemished record of service in the Army but his appeal was rejected
Thereafter he filed a writ petition in the Delhi High Court which was summarily rejected
In this appeal the learned counsel for the appellant submitted that several irregularities have been committed in conducting the summary trial
But from the records we find that the evidence has been duly recorded and further it is an admitted fact that the appellant was carrying extra 7 bottles of rum without the necessary permit
Therefore we are unable to agree with the counsel that the trial is vitiated and we are of the view that no prejudice has been caused
The main submission and perhaps the only submission if we may say so in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him
According to the learned counsel the extreme punishment of imprisonment for 3 months and dismissal from the service under the circumstances is uncalled for
We find considerable force in this submission
Admittedly the appellant was granted leave when he was proceeding to his home town and unfortunately enroute to his home town he had to pass through Surendra Nagar where there was prohibition in force
However he had a valid permit to carry 5 bottles the extra 7 bottles of rum according to the appellant were purchased from the Army Canteen itself and there is no dispute about the same
Unless he had some permits or chits given by some higher authorities permitting him to purchase these bottles he could not have purchased the same from the Canteen 680 over and above the bottles for which he had a valid permit
He was taking this liquor to his home town to celebrate his brother in law s marriage but to his bad luck the Civil Police of Surendra Nagar checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles
Under these circumstances the question is whether such a severe penalty is called for
In the chargesheet it is merely stated that the action of the appellant in carrying 11 bottles of sealed rum and one bottle of sealed brandy when he was proceeding to his home town is contrary to the existing orders on the subject
In the counter affidavit it is stated that such an act of the appellant comes within the meaning of Section 63 of Chapter VI of the Act  for short which enumerates various types of offences
Section 63 lays down as under 63
Violation of good order and discipline Any person subject to this who is guilty of any act or omission which though not specified in this  is prejudicial to good order and military discipline shall on conviction by court martial be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned
The Section may cover various types of misconducts committed by a person by way of an act or omission
This Section also provides for awarding any other lesser punishment mentioned in the 
Therefore such depends on the nature of the act or omission of which the person is found guilty
The provisions in Chapter VII enumerate various punishments that can be awarded
Section 71 of the deals with punishments awardable by court martial and reads as under 71
Punishments awardable by courts martial Punishments may be inflicted in respect of offences committed by persons subject to this and convicted by courts martial according to the scale following that is to say 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 681 d cashiering in case of officers e dismissal from the service f reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of warrant officers
 and reduction to the ranks or to a lower rank or grade in the case of non commissioned officers Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy g forfeiture of seniority of rank in the case of officers junior commissioned officers warrant officers and non commissioned officers and forfeiture of all or any part of their service for the purpose of promotion in the case of any of them whose promotion depends upon length of service h forfeiture of service for the purpose of increased pay pension or any other prescribed purpose i severe reprimand or reprimand in the case of officers junior commissioned officer warrant officers and non commissioned officers j forfeiture of pay and allowances for a period not exceedind three months for an offence committed on active service k forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal l stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good
 It can be seen that Sections 71a to 71e and Section 71k provide for extreme punishments and are severe in nature
Sections 71f to 71j and Section 71l provide for comparatively lesser punishments
Section 72 of the is the next relevant Section which reads as under 682 72
Alternative punishments awardable by court martial Subject to the provisions of this  a Court Martial may on convicting a person subject to this to any of the offences specified in Sections 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 set out in Section 71 regard being had to the nature and degree of the Offence emphasis supplied Section 73 of the deals with combination of punishments and it reads as under 73
Combination of punishments A sentence of a court martial may award in addition to or without any one other punishment the punishment specified in clause d or clause e of Section 71 and any one or more of the Punishments specified in clauses f to l of that section
 It can be seen that under Section 73 of the  the court martial may award more than one punishments as mentioned therein
In the instant case Section 63 also is not mentioned in the chargesheet
Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment the court martial has to keep in view the spirit behind Section 72 of the and it has to give due regard to the nature and degree of the offence
It can be seen that Section 63 provides for awarding any of the lesser punishments enumerated in Section 71 of the 
In view of these provisions of law and having regard to the nature and degree of the offence we are firmly of the view that the punishments awarded to the appellant namely three months  RI and dismissal from service are severe and are also violative of Section 72
In Council of Civil Service Unions vs Minister for the Civil Service   950 Lord Diplock said Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review
The first ground I would call illegality  the second irrationa 683 lity  and the third procedural impropriety  This is not to say that further development on a case by case basis may not in course of time add further grounds
I have in mind particularly the possible adoption in the future of the principle of proportionality  which is recognised in the administrative law of several of our fellow members of the Eurpoean Economic community  This principle was followed in Ranjit Thakur vs Union of India and Others where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the and it was observed 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 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 recognised grounds of judicial review
 In Bhagat Ram vs State of Himachal Pradesh 1983 2 SCC 442 this Court held as under It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution
 Applying these principles to the instant case We are also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant
We have heard both the learned counsel on this aspect elaborately and we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments
Having given our earnest consideration to the 684 facts and circumstances of this case and in view of the submissions made by both the counsel we feel that ends of justice will sufficiently be met if a lesser punishment as provided under Section 71f is awarded to the appellant
Accordingly we set aside the punishments of three months  RI and dismissal from service and remand the matter to the court martial which shall award any of the lesser punishments having due regard to the nature and circumstances of the case and in the light of the above observations made by us
Since we are setting aside the sentence of three months  RI any detention suffered by the appellant after the orders of the court martial shall not be treated as a disqualification for being reinstated into service which shall however be subject to any of the minor punishments to be awarded by the court martial
Already much time has lapsed therefore we hope the court martial would dispose of the matter as expeditiously as possible preferably within three months
The appeal is thus disposed of subject to the above directions
NPV Appeal disposed of


Summary:
The General Office Order No 26 dated 1121943 of the Appellant Company provided that employees with 30 years  service or more would be eligible to receive Retiring Allowance pension
The said office order also provided that all permanent employees who were in the Company s service prior to 111947 and who do not qualify for retiring allowance on retirement will be eligible for gratuity on finally leaving the Company s service subject to the prescribed conditions being fulfiled
In 1956 a memorandum of settlement was signed by the appellant company and the Employees  Union under which the employees in service prior to 1147 were required to opt at the time of leaving service either for gratuity or in lieu of the gratuity the retiring allowance
Later the came into force and the payment of gratuity became statuory
The employer and the Employees  Union jointly applied to the Government for exemption from the provisions the statue which was refused
Some of the retiring employees of company filed applications under Section 33 C2 of the before the Labour Court claiming pension by alleging that payability of pension was a condtion of service and the employer had stopped it without any Justification
The Labour Court allowed the applications
Against the 638 order of the Labour Court the employer preferred six writ petitions
In the meantime the same dispute was referred to the Industrial Tribunal and by an award the Tribunal answered the reference against the employees
The Employees  Union challenged the award by filling a writ petition in the High Court
All the writ petitions were heard by a learned single judge of the High Court who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the Labour Union challenging the award of the Tribunal
Writ appeals were carried against the single Judges  decision
The Appellate Bench of the High Court held that gratuity provided under the settlement was not a substitute of pension and the claim of pension was available to employees notwithstanding the settlement
Hence this appeal by the employer company
Dismissing the appeals this Court HELD The 1956 settlement between the parties does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6d of the settlement
The retiral benefit pension was payable to all qualfied employees as a matter of practice
If under the settlement that was not done away with the benefit arising out of General Office order No 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension
The Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and therefore the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956
The High Court rigtly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petition under section 33 C2 of the 1947 Act
641C D 642C D