Civil Appeal No 2630 of 1987
516 From the Judgment and order dated 31986 of the Patna High Court in CWJC No 2823 of 1986
RN Sinha MM Prasad Sinha and PC Kapur for the Appellant
B Datta Additional Solicitor General MS Rao C Ramesh and CVS Rao for the Respondents
The Judgment of the Court was delivered by VENKATACHALIAH J
This appeal by special leave preferred against the order dated July 3 1986 of the Division Bench of the Patna High Court in CWJC No 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe guards in Section 130 of the Indian  Act  in the conduct of the Courts Martial
The High Court dismissed in limine the appellant s writ petition under Article 226 challenging the proceedings dated March 30 1985 of the Summary Court Martial imposing the punishment of dismissal from service and a sentence of an year s rigorous imprisonment on the appellant
Appellant Ranjit Thakur joined the Armed Services on September 7 1972 and was at the relevant time a Signal Man in 4 Corps operating Signal Regiment Apparently appellant had not commended himself well to respondent No 4 who was the commanding officer of the regiment
On March 29 1985 appellant was already serving out a sentence of 28 days  rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers
Appellant is stated to have sent representation complaining of ill treatment at the hands of Respondent 4 directly to the higher officers
Appellant was punished for that by Respondent 4
Appellant was held in the Quarter guard Cell in handcuffs to serve that sentence of rigorous imprisonment
While so serving the sentence appellant is stated to have committed another offence on March 29 1985 for which the punishment now impugned was handed down by Respondent 4
The nature of this offence had better be excerpted from the charge sheet itself The accused No 1429055 M Signalman Ranjit Thakur of 517 4 Corps operating Signal Regiment is charged with Section 412 Disobeying a lawful command given by his superior officer Section 412 In that he at 1530 hrs
On 2951985 when ordered by JC 10625 lP Sub Ram Singh the orderly officer of the same Regiment to eat his food did not do so
 To try this offence a Summary Court Martial was assembled the very next day ie March 30 1985
Respondent 4 and 2 others were on the Court Martial
Some witnesses were examined
Appellant is stated to have pleaded guilty
A sentence of rigorous imprisonment for one year was imposed in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence
Appellant has served out the sentence
He was also dismissed from service with the added disqualification of being declared unfit for any future civil employment
The representation of the appellant to the confirming authority under Section 164 of the was rejected by General of ficer Commanding on 2451985
The High Court however persuaded itself to dismiss in limine appellant s writ petition challenging the proceedings of the Summary Court Martial
We have heard learned counsel on both sides
The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities
Apparently nothing came out of it
F The submissions of Shri Sinha in support of the appeal admit of being formulated thus a i The proceedings of the Court Martial are vitiated by non compliance with the mandate of Section 1301 of the in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section ii The proceedings of the Court Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings H 518 b In as much as the appellant was then serving a sentence of rigorous imprisonment he was not in active service and that no question of disobeying any lawful command could at all arise c Appellant s refusal while serving a sentence to accept food did not amount to disobedience under Section 41 of any lawful command of a superior officer in such manner as to show a wilful defiance of authority d At all events the punishment handed down is so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness
Re contention a The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the was complied with
Section 130 provides 1301 At all trials by general district or summary general court martial as soon as the court is assembled the names of the presiding officer and members shall be read over to the accused who shall thereupon be asked whether he objects to being tried by any officer sitting on the court
2If the accused objects to any such officer his objection and also the reply thereto of the officer objected to shall be heard and recorded and the remaining officers of the Court shall in the absence of the challenged officer decide on the objection
 The proceedings do not indicate this was not disputed at the hearing that appellant was asked whether he objects to be tried by any officer sitting at the Court Martial
This in our opinion imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial
The  constitutes a special law in force conferring a special jurisdiction on the Court Martial prescribing a special procedure for the trial of the offences under the  
Chapter VI of the   comprising of sections 34 to 68 specify and define the various offences under the  
Sections 7 to 89 of Chapter VII specify the various 519 punishments
Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of and before the Summary Court Martial
The and A the Rules constitute a self contained Code specifying offences and the procedure for detention custody and trial of the offenders by the Courts Martial
The procedural safe guards contemplated in the must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction
The procedural safe guards should be commensurate with the sweep of the powers
The wider the power the greater the need for the restraint in its exercise and correspondingly more liberal the construction of the procedural safeguards envisaged by the Statute
The oft quoted words of Frankfurter J in Vitarelli vs Seaton 359 US535 are again worth re calling  if dismissal from employment is based on a defined procedure even though generous beyond the requirements that bind such agency that procedure must be scrupulously observed        
This judicially evolved rule of administrative law is now firmly established and if I may add rightly so
He that takes the procedural sword shall perish with that sword
E The history of liberty said the same learned Judge has largely been the history of observance of procedural safeguards
  We are afraid the non compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more vitiates the proceedings
lndeed it has been so held by this Court in Prithvi Pal Singh vs Union of India AIR 1982 SC 1413 where Desai J referring to the purpose of section 130 observed  Whenever an objection is taken it has to be recorded
In order to ensure that anyone objected to does not participate in disposing of the objection    
This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection
H 520  
The provision conferring a right on the accused to object to a member of the Court Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court Martial
This is pre eminently a rational provision which goes a long way to ensure a fair trial
 What emerges therefore is that in the present case there is a non compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court Martial are rendered infirm in law
This disposes of the first limb of the contention a
The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4
The test of real likelihood of bias is whether a reasonable person in possession of relevant information would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way
It is the essence of a judgment that it is made after due observance of the judicial process that the Court or Tribunal passing it observes at least the minimal requirements of natural justice is composed of impartial persons acting fairly and without bias and in good faith
A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice
See Vassiliadas vs Vassiliades AIR 7
As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party
The proper approach for the judge is not to look at his own mind and ask himself however honestly
Am I biased but to look at the mind of the party before him
Lord Esher in Allinson vs General Council of Medical Education and Registration l at 758 said The question is not whether in fact he was or was not biased
The Court cannot inquire into that     
In the administration of justice whether by a recognised legal court or by persons who although not a legal public court are acting in a similar capacity public 521 policy requires that in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased
 In Metropolitan Properties Co FGC Ltd vs Lannon   at 599 Lord Denning MR Observed B  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 never theless 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   
D Frankfurter J in Public Utilities Commission of the District of Columbia vs Pollack  at 466 said The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them
He must think dispassionately and submerge private feeling on every aspect of a case
There is a good deal of shallow talk that the judicial robe does not change the man within it
It does
The fact is that on the whole judges do lay aside private views in discharging their judicial functions
This is achieved through training professional habits self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested
But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware
When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating judges refuse themselves
They do not sit in judgment  
Referring to the proper test Ackner LJ in Regina vs Liverpool City Justices Ex parte Topping 1983 I WLR 119 said H 522 Assuming therefore that the justices had applied the test advised by Mr Pearson Do I feel prejudiced then they would have applied the wrong test exercised their discretion on the wrong principle and the same result namely the quashing of the conviction would follow Thus tested the conclusion becomes inescapable that having regard to the antecedent events the participation of Respondent 4 in the Courts Martial rendered the proceedings coram non judice
Re contention b The mere circumstance that the appellant was at the relevant point of time serving a sentence of imprisonment and could not therefore be said to be in active service  does not detract from the fact that he was still a person subject to this 
 This is clear from the second clause of Section 412 which refers to offences committed when not in active service 
The difference is in the lesser punishment contemplated
We are therefore unable to appreciate the appositeness of this contention of Shri Sinha
Re contention c The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces
Every aspect of life of a soldier is regulated by discipline
Rejection of food might under circumstances amount to an indirect expression of remonstrance and resentment against the higher authority
To say that a mere refusal to eat food is an innocent neutral act might be an over simplification of the matter
Mere in action need not always necessarily be neutral
Serious acts of calumny could be done in silence
A disregard of a direction to accept food might assume the complexion of disrespect to and even defiance of authority
But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter productive and even by itself be subversive of discipline
Appellant was perhaps expressing his anguish at what he considered an unjust and disproportionate punishment for airing his grievances before his superior officers
However it is not necessary in this case to decide contention c in view of our finding on the other contentions
Re contention d Judicial review generally speaking is not directed against a decision but is directed against the decision making process
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial
But the 523 sentence has to suit the offence and the offender
It should not be A 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 B logic then the sentence would not be immune from correction
Irrationality and perversity are recognised grounds of judicial review
In Council of Civil Service Unions vs Minister for the Civil Service 1984 3 Weekly Law Reports 1174 HL Lord Deplock 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 upon which administrative action is subject to control by judicial review
The first ground l would call illegality 
the second irrationality  and the third procedural impropriety 
That 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 European Economic Community     
E In BhagatRam vs State of Himachal Pradesh AIR 1983 SC 454 this Court held 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
The point to note and emphasise is that all powers have legal limits
In the present case the punishment is so strikingly disproportionate as to call for and justify interference
It cannot be allowed to remain uncorrected in judicial review
In the result for the foregoing reasons the appeal is allowed the order of the High Court set aside the writ petition preferred in the High Court allowed and the impugned proceedings of the 524 Summary Court Martial dated March 30 1985 and the consequent order and sentence are quashed
The appellant is entitled to and shall be reinstated with all monetary and service benefits
There will however be no order as to costs
NPV Appeal allowed


Summary:
 Respondent No 1 Shri PK Mukerjee filed an application under the UP Act No 3 of 1947 Temporary Control of Rent and Eviction Act OLD Act seeking permission to file a suit for eviction of his tenant Harbans Lal Soni the father of the appellant DK Soni on the grounds of his bona fide requirement for his personal need
The Rent Control and Eviction officer rejected the application holding that the respondent s requirement was not bona fide
A revision was filed by the respondent No 1 before the Commissioner who allowed the same
The UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 new Act came into effect on July 15 1972
On August 2 1972 the State Government rejected the representation of the tenant father of the appellant filed under section 7 of the old Act against the order of the Commissioner aforementioned
The tenant then moved a writ petition in the High Court
A Single Judge of the High Court allowed the petition and set aside the abovesaid orders of the Commissioner and the State Government
Upon an appeal being filed by the respondent No 1 against the order of the Single Judge a Division Bench of the High Court allowed the same setting aside the order of the Single Judge and upholding the above said orders of the commissioner and the State Government allowing the eviction of the tenant
In September 1978 the respondent No 1 moved an application under section 21 read with section 432rr of the new Act
Thereafter the respondent executed an agreement as vendor to sell the permises in dispute in favour of the vendee the wife of the appellant Smt
Madhu Soni daughter in law of the tenant Harbans Lal
The agreement was dated November 7 1978 and it mentioned therein that the landlord respondent No 1 had filed an application against the tenant above 617 named
The father in law of the vendee for permission to file a suit for eviction of the tenant from the premises in dispute on account of the respondent s personal need and that the permission had been granted
The agreement recited that a vacant portion of the land of the disputed premises would be in the exclusive possession of the vendor and the rest of the property the disputed premises would be sold to the vendee Smt
Madhu Soni
The agreement stipulated that the vendee or the other members of the family had no right over the portion of the land to be kept with the vendor and that the appellant had given up his tenancy rights in respect of the same and also that premises would be built on the said vacant land with the money to be obtained by selling the disputed house to Smt
Madhu Soni
The price of the house was settled at Rs100000 out of which a sum of Rs5000 was paid as earnest money and it was stipulated that the rest of the amount would be paid at the time of registration
It was agreed that the parties would move the authorities for permission to transfer as early as possible and the saledeed would be executed within one month of the grant of permission and notice to the vendee
It was stated that if the vendee failed to get the sale deed executed within the time stipulated the earnest money of Rs5000 would be forfeited and the property would stand released in favour of the vendor
It was also stipulated that the need of the vendor for the premises subsisted and the agreement had been entered into to enable the vendor to get money out of the sale to construct a house for himself on the vacant piece of land
On December 12 1978 the father of the appellant who was the tenant died leaving behind a widow two sons including the appellant and a daughter
On December 22 1978 the appellant informed the Prescribed Authority before whom the application under section 211a of the New Act read with section 432rr was pending about the death of the tenant Shri Harbans Lal Soni
On March 23 1979 the respondent No 1 filed an application in Case No 53 of 1978 for substitution of the legal heirs of the deceased tenant along with an application under section 5 of the Limitation Act
The Prescribed Authority rejected the application for substitution on grounds of delay
On December 11 1979 the respondent No 1 moved a second application under section 211a read with section 432rr of the new Act on the ground as in his earlier application which was registered as Case No 68 of 1979
On March 12 1981 the respondent No 1 executed two separate agreements for sale of the property in dispute in favour of RP Kanodia and PK Kanodia respectively
618 The Prescribed Authority decided the Case No 68 of 1979 abovementioned on July 7 1981 directing the tenant to be evicted from the premises in dispute
The Additional District Judge dismissed the appeal against the order of eviction passed by the Prescribed Authority
On March 11 1983 the appellant s wife Smt
Madhu Soni filed a suit for injunction restraining the respondent No 1 from dispossessing her from the premises in dispute on the strength of the registered agreement asserting that she resided in the premises in part performance of the agreement under section 53A of the Transfer of Property Act
The trial Court dismissed the suit
The High Court was then moved for relief by a writ petition against the orders of the Prescribed Authority for eviction and the order of the Additional District Judge
The writ petition was dismissed followed by the dismissal of a Review Petition too
Aggrieved thereby the appellant has appealed to this Court by special leave
Dismissing the appeal the Court  HELD The questions involved in the appeal are Firstly in view of the provisions of section 432rr was the High Court right in its decision in the facts and circumstances of the case specially the factum of the death of the original tenant being alleged and in view of the fact that the execution of the order for eviction had become final before the new Act came into operation Secondly how far do the subsequent events namely the agreements by the respondent No 1 with the wife of one of the sons of the tenant and with the Kanodias to sell the property in dispute demolish or destroy the case of a bona fide need of the landlord 622G H 623A In substance the need was there of the landlord for his occupation of his premises as he wanted to reside in his house after his retirement from Government service and for this purpose he had sought eviction and obtained the order of eviction prior to the coming into operation of the new Act
The object of the landlord was not defeated by the provisions of the New Act
626G H Considering the subsequent events namely the refusal of permission by the Urban Ceiling Authorities the escalation of building cost upto 1987 failure on the part of the vendee to register and execute the document it is not possible to hold that the subsequent events have so materially altered the position as to defeat the original order for possession passed in favour of the landlord
The subsequent events do not in 619 any way affect the existence of the need of the landlord for possession of premises in question
627C E There was no failure on the part of the landlord to take steps for the substitution
Nothing was proved before the Court that the agreements with RP Kanodia and PK Kanodia were valid today or given effect to in view of the provision of the Land ceiling Act
It was not proved to the satisfaction of the authorities below that any agreement to sell the premises to Kanodias had been given effect to and acted upon and in that view of the matter the need of the landlord indubitably succeeds and any allegations made do not merit any revision of the order which had become final
Finality of the judicial decisions is one of the essential ingredients upon which the administration of justice must rest
In that view of the matter even if the contentions advanced on behalf of the respondents are taken into consideration and a new look is taken because of the subsequent events which cannot be done in view of the specific provisions in clause rr of section 432 of the new Act the appellant has no case
The High Court was right in not interfering with the order of the Prescribed Authority
Finality of the decisions of the authorities under the Act has to be given due reverence and place in the judicial administration
629A C The appeal fails
As the appellant had been staying in the premises for quite some time time till April 30 1988 granted to him to deliver vacant possession of the house to the landlord subject to his filing usual undertaking within four weeks
629E F Pasupuleti Venkateswarlu vs The motor and general Traders   Pattersion vs State of Alabama  at 607 Ramji Dayawala and SonsP Ltd vs Invest Import   Hasmat Rai and Anr
vs Raghunath Prasad   Syed Asadullah Kazmi vs The Addl
District Judge Allahabad and Ors
   Sher Singh and Ors
vs The State of Punjab   Bansilal Sahu vs The Prescribed Authority and Anr 1980 All LJ 331 Smt
Sarju Devi vs Prescribed Authority Kanpur 1977 All LJ 251 and Tara Chand Khandelwal vs Prescribed Authority Agra 1976 All LJ 708 referred to