JUDGMENT [ENTITY], J.
1. This writ petition has been filed for quashing the order dated 28th December, 1992 informing the petitioner that the Summary Court Martial had sentenced him to Rigorous Imprisonment for four months and had also dismissed him from service. The quashing of the order dated 27th December 1993 intimating the petitioner that his petition before the Vice-Chief of the Army Staff against the aforesaid order had been rejected. The consequential relief for reinstating the petitioner with full back wages has also been sought.
2. The petitioner who was posted as [ENTITY] in the Indian Army at Bareilly was staying in the residential quarters provided to Army Personnels was issued a charge-sheet dated 22nd December, 1992 charging him under [SECTION] the [ACT] (hereinafter referred to as the 'Act') for committing an act prejudicial to Good Order and Military Discipline. It was stated that on 123rd July, 1992 between 2:00 hours to 3:00 hours he improperly knocked at the house of [ENTITY] of 66 Engineer Regiment when lie was out of station to attend the Bridge Training Camp.
3. The Summary Court Martial was held. Smt. [ENTITY] wife of [ENTITY] was examined. She stated that on 21st July, 1992 she had gone to the Military Hospital, Bareilly for OPD and as there was no transport available for coming back, she went to hire a rickshaw when the petitioner whom she had seen in the Military Hospital on the same day approached her and offered her a lift on his bicycle after asking her where she had to go. He also inquired about her husband's unit. She told him that her husband was in 66 Engineer Regiment. The petitioner told her that he is also in the same unit. Smt. [ENTITY] then went with the petitioner on his bicycle and when they reached her quarter she offered him a glass of water. He had the glass of water and asked her where her husband was to which she replied that he had gone out of station for Bridge Training Camp. He finished the water and went away. In the night of 22/23rd July, 1992 between 2:00 hours to 2:30 hours somebody knocked in her door. She got up and asked who was at the door and when she saw the person moving on to the window and whistling, she flashed the torch and saw that it was the same person who had given her the lift on the bicycle on 21st July, 1992. She asked him why he had come and when he told her to open the door and kept standing in the staircase she told him to go away or else she will raise an alarm. The petitioner then went down the stairs. In the morning she went to the house of [ENTITY] and narrated the entire incident to him. She also deposed that when [ENTITY] came to her house and inquired about the incident she told him that she could recognize the person. On 24th July, 1992 at about 17:00 hours [ENTITY] came to her house and asked her to sit near the road with few other ladies so that she could recognize the person in case he again took the same road. She saw the petitioner after sometime on his bicycle and gave indication to [ENTITY] who followed him and after some time brought him. She recognized him to be the same person who had come to her house on 23th July, 1992. It needs to be mentioned that Smt. [ENTITY] was cross examined by the accused. He specifically put a question (question No. 23) to her that as she had seen him earlier on 21st July. 1992 then why did she ask who he was when she saw him through the window on the night on 22/23nd July, 1992. Smt. [ENTITY] answered that she did not show that she had recognized him otherwise he should not come to that area again and it would not be possible to apprehend in as she did not know his name. He also specifically put a question that if the person was standing on the stairs and was leaning on to the open window then the torch flash from inside will have its focus on the window and side profile and, therefore, it would not be possible to recognize the person. She replied that when she flashed the torch it fell directly on the face. The proceedings of the Court Martial further indicate that at this juncture the Court moved to the quarter along with the accused, and the friend of the accused and Officers attending the trial. The accused was asked to stand on the stairs in the position described by Smt. [ENTITY] during her statement and she was asked to flash the torch. The focus of the torch fell directly on his lace. The Court therefore, felt satisfied with the statement made by Smt. [ENTITY].
4. [ENTITY] and Major [ENTITY] were also examined by the Summary Court Martial. [ENTITY] stated that he had asked the petitioner to narrate the incident. The petitioner told him that he had attended a party hosted by CFM [ENTITY] on the occasion of his son's birthday. He had taken beer. He also stated that [ENTITY] told him that he was with the petitioner in the party and they broke off together but after walking tot some distance the petitioner asked him to continue while he would follow him after urinating.
5. [ENTITY] deposed that when he got the report of the incident, he immediately went to [ENTITY] and then went to the house of Smt. [ENTITY] to enquire about the incident. He also deposed that after she narrated the entire incident he went back to [ENTITY] who had asked him to take Smt. [ENTITY] and ask her to recognise the man. He then narrated how Smt. [ENTITY] recognised the petitioner when came on the road on the bicycle and when Smt. [ENTITY] had recoghised him he took him to [ENTITY].
6. [ENTITY] was also examined, He stated that he was with the petitioner in the party hosted by [ENTITY] and after finishing the drinks they had dinner. It was around 00:30 hours that they took leave after which he walked about 50 yards on the track and when they reached the main road, the petitioner asked him to continue as r e wanted to urinate.
7. The petitioner was asked by the Summary Court Martial whether he wanted to call any witness of his own. At his request his wife Smt. [ENTITY] was also examined. The petitioner also deposed. He denied having gone to the house of [ENTITY] in the night on 22/23rd July, 1992 and Stated that he was with his wife.
8. On the basis of the evidence, the Summary Court Martial held the petitioner guilty of the charges and sentenced him to Rigorous Imprisonment for four months apart from dismissal from service.
9. Learned Counsel for the petitioner submitted that the petitioner was not the person who had knocked at the door of the house of [ENTITY] in the night on 22/23rd July, 1992 at around 2:00 hours to 3:00 hours as the petitioner was at his home sleeping. He further submitted that the findings against the petitioner are based merely on presumption and conjectures and there is no evidence to support the findings, apart from the fact that the testimony of Smt. [ENTITY] is not consistent. It has also been submitted that the punishment awarded is disproportionate to the gravity of the offence.
10. Learned Counsel for the respondents, however, submitted that there was sufficient evidence to sustain the punishment and the scope of interference with sufficient punishment awarded by the disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the Court should not interfere with the same, more particularly in Court Martial proceedings.
11. I have carefully considered the submissions advanced by the learned Counsel for the parties.
12. In support of his contention learned Counsel for the petitioner submitted Smt. [ENTITY] had not recognized the petitioner as is clear from question No. 23 put by the petitioner to Smt. [ENTITY] in cross examination and the case of prosecution was based on no evidence and the findings have been recorded merely on the basis of the conjectures and surmises and in support of his contention he has relied upon a decision of the Supreme Court in the case of [ENTITY] v. Union of India . The question put by the petitioner was that when she had seen him earlier on 21st July, 1992 then why did she ask who he was on 22/23rd July, 1992 after seeing him through the window. Learned Counsel for the petitioner submitted that this clearly shows that Smt. [ENTITY] had not recognized the petitioner at all and the answer given by her that she had deliberately not shown any recognition as otherwise he would not have come in that area again and it would not have possible to apprehend him was totally improbable.
13. The contention of the learned Counsel for the petitioner cannot be accepted. In the first instance the inference drawn by the petitioner from the answer given by Smt. [ENTITY] to the aforesaid question in cross-examination is not correct. Smt. [ENTITY] had replied that she had deliberately not shown any recognition so as to give an impression to the petitioner that she had not recognized him otherwise he would not have come near her house again and it would not have been possible to apprehend him. It needs to be mentioned that Smt. [ENTITY] did not know the name of the petitioner and it is only by face that she recognized him as she had met him only a day before in the Military Hospital. This only shows the presence of mind and it cannot be said that the answer given by her was absolutely improbable.
14. The adequacy or reliability of the evidence is not a matter which can be limited to be canvassed before the Court in writ proceedings as the High Court does not act as an appellate authority. This is what has been repeated held by the Supreme Court. In the case of High Court of Judicature at Bombay through its Registrar v. Shri Udaysingh s/o [ENTITY] Ors. the Supreme Court observed:
In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid if power to re-appreciate the evidence and would (sic) come to its own conclusion op the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide [ENTITY] v. Union of India , [PRECEDENT] , [PRECEDENT] , [PRECEDENT] and [ENTITY] v. Union of India (at pp. 759-60)
15. The Supreme Court in [PRECEDENT]. observed:
Under these circumstances, the question arises whether the High Court would be correct in law appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under [SECTION] does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence is if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained.
16. In [PRECEDENT] , the Supreme Court observed:
Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
A narration of the charges and the reasons of the inquiring authority for accepting the charges, is seen from the records, shows that the inquiring authority has based its conclusions on material available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under [SECTION] of the [ACT] and we do not find any fault with the findings of the High Court in this regard.
17. In the case of [PRECEDENT]. the Supreme Court observed:
While exercising jurisdiction under [SECTION] of the [ACT] the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to comet errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
18. In view of the discussion made above, I am not inclined to accept the if contention of the learned Counsel for the petitioner that as the answer given by Smt. [ENTITY] to question No. 23 put to her in cross-examination is improbable, there is no evidence on the record to indicate that the petitioner had knocked at her house.
19. Learned Counsel for the petitioner then contended that the punishment imposed upon the petitioner was disproportionate as the only charge against he petitioner was that he had improperly knocked at the house of [ENTITY] when he was out of station to attend the Bridge Training Camp and in Support of his contention he has placed reliance upon the case of [ENTITY] (supra).
20. The scope of interference by Courts with the quantum of punishment has been the subject matter of a number of decisions and it has been repeatedly emphasised that interference cannot be done in a routine manner and that the principles relating to judicial review of administrative action have necessarily to be examined.
21. The famous "[ENTITY] Case" Associated Provincial Picture Houses Ltd. v. [ENTITY] Corporation (1947) 2 All ER 680 (CA) is considered to be the landmark in so far as the basic principles relating to judicial review of administrative or statutory discretion are concerned. A passage from the judgment of Lord [ENTITY] is important and is quoted:
It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.
(emphasis supplied)
22. The principles of judicial review of administrative action were further summarized by Lord [ENTITY] in [PRECEDENT], (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. It was observed in this case as follows:
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 '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 recognized in the administrative law of several of our fellow members of the European Economic Community.
By 'irrationality' I mean what can by now be succinctly referred to as '[ENTITY] unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
(emphasis supplied)
23. In Union of India and Anr. v. [ENTITY] the Supreme Court after referring to the aforesaid [ENTITY] case and CCSU case held:
We are of the view that even in our country in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying [ENTITY] and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of [ENTITY] and CCSU tests. The choice of the options available is for the authority; the court/tribunal cannot substitute its view as to what is reasonable.
In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to [ENTITY] or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in [ENTITY] case that the Court might - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority.
(emphasis supplied)
24. In [ENTITY] v. Union of India and Ors. , which has been referred to in the aforesaid decision in [ENTITY] (supra) the Supreme Court after referring to a number of its earlier decisions observed as under:
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
(emphasis supplied)
25. In [PRECEDENT] , the Supreme Court again observed:
Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
26. The matter relating to quantum of punishment was also elaborately considered by the Supreme Court in [PRECEDENT] and it was observed:
But where an administrative action is challenged as "arbitrary" under [SECTION] on the basis of [PRECEDENT] (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order "rational" or "reasonable" and the test then is the [ENTITY] test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors ii to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In [PRECEDENT] . [ENTITY], J. (as he then was) pointed out that "reasonableness" of the administrator under [SECTION] in the context of administrative law has to be judged from the stand point of [ENTITY] rules. In [PRECEDENT], [PRECEDENT] , [PRECEDENT] and [PRECEDENT] while judging whether the administrative action is "arbitrary" under [SECTION] (i.e. otherwise then being discriminatory), this Court has confined itself to a [ENTITY] review always.
Thus, when administrative action is attached as discriminatory under [SECTION], the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under [SECTION]* the principle of secondary review based on [ENTITY] principles applies.
(emphasis supplied).
27. Proportionality was also explained by observing:
By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.
28. The decision of the Supreme Court in [ENTITY] (supra) was considered in [PRECEDENT] . It was observed that it was a case where there was a bias on the pan of the Commanding Officer. The charge was that he had did not eat his food when it was ordered by JC [ENTITY] and on such charge one year rigorous imprisonment has been imposed upon him and he was also dismissed from in service. The Supreme Court, therefore, observed:
In our view, the observation in [ENTITY] v. Union of India , 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 [ENTITY] 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 read as follows:
At 15.30 hrs. on May 29. 1985 when ordered by JC 106251-P sub [ENTITY], 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 [SECTION] or [SECTION] and/or under [SECTION] interfere with the punishment because it consider the punishment to be disproportionate. It is only in extreme cases, winch on their face show perversity or irrationality that there can be judicial view. Merely on compassionate grounds a court should not interfere.
29. In [PRECEDENT]. , the Supreme Court observed:
The only other plea is regarding punishment awarded. As has been observed in a series of cases the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made 10 a few of them. [PRECEDENT] [PRECEDENT] Union of India v. [ENTITY] , 1997 SCC (L & S) 1806, [PRECEDENT] and [PRECEDENT].
30. In [PRECEDENT] the Supreme Court observed:
though court-martial proceedings are subject to judicial review by the High Court under [SECTION] of the [ACT], the court-martial is lot subject to the superintendence of the High Court under [SECTION] of the [ACT]. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings ire in accordance with the procedure prescribed, he High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal co in under the [ACT] 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 specialized part of overall mechanism by which the military discipline is preserved. It is foil the special need for the armed forces that a person subject to [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 [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 provision of law relating to court-martial in the [ACT], Me 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 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 [SECTION] 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 Land has followed the prescribed procedure and it within its powers to award punishment.
31. A perusal of the aforesaid judgments clearly shows that the Court has a very limited power in examining the quantum of punishment. It is the disciplinary authority which has the exclusive power to consider the evidence and impose the appropriate punishment and the High Court should not normally substitute its own conclusion on penalty and impose some other penalty. It is only when the punishment imposed by the disciplinary authority stocks the conscience of the High Court that it should appropriately mould the relief.
32. In the present case, it is clear that the petitioner went to the house of [ENTITY] at odd hours in the night between 2:00 AM and 2:30 AN Knowing fully well that he was out of station in connection with the Bridge Training Camp and that his wife was alone in the house. He knocked at the house and asked her to open the door and kept standing on the staircase staring at her. It was only when she told him to go away or else she will raise an alarm en he went. The act of the petitioner is clearly prejudicial to Good Order and Military Discipline. In such circumstances it cannot be said that the punishment posed upon the petitioner is so shockingly disproportionate that it would shock the conscience of the Court. J, therefore, do not find any merit in tin contention of the learned Counsel for the petitioner that the punishment is disproportionate to the gravity of the offence.
33. There is, therefore, no merit in any of the contention advanced by the learned Counsel for the petitioner. The writ petition is, accordingly, dismissed.