Case: Union of India &amp; Others Vs. Bodupalli Gopalaswami &amp; Others

the supplier of the animals. The government had entered into a contract with that supplier and clause 51(a) of Special Conditions is an undertaking by the Contractor which reads thus : “I/We shall maintain complete at all time from/upto .......... as reserve of not less than three days supply animals (sheep/goat) based on the average number of animals to be slaughtered as meat on hoof daily”. 30. Contract also provided (vide clause 52) that if the contractor failed to do so, the supply officer shall be at liberty to effect risk purchase be effected at the cost of the contractor and also take other steps. Therefore, failure to maintain reserve stocks of animals was not an omission on the part of any person in charge or overall charge of the butchery, but a breach by the contractor. The omission that could be attributed to the officer in-charge of the butchery or the first respondent is that when the contractor failed to maintain reserves failure to bring it to the contractors notice or failure to take action to make risk purchase and other steps in terms of the contract. But the charge is not that risk purchase was not effected or that the first respondent failed to take necessary remedial steps. The evidence showed that arrangements were made to procure the animals required for slaughter on day to day basis to ensure no breaks in supply of meat. It has also come in evidence that ever since 1989, the first respondent had been informing and complaining to his higher ups that the Ambala area where the supply depot was situated, had a shortage of stock of animals, that the contractor was not in a position to maintain the required reserves and therefore, suggesting that tenders should be invited from contractors in Delhi where there was an abundance of stocks. Therefore, an omission of the contractor cannot be considered to be an omission on part of the Contract Operating Officer, particularly when he had pointed out deficiencies, and taken remedial steps. Therefore, the effect of the finding in regard to charge (4) is that the contractor did not keep any animals as reserve between 11.3.1990 and 22.3.1990 as undertaken by it under clause 51(a) of the Special Conditions. The failure attributed to the supervisory staff of butchery and the first respondent who was in overall charge was that they failed to ensure that the contractor performed his obligations. What is established against first respondent under charge (4) is therefore, only a technical lapse. 31. Charge 5(c) is that the appellant failed to implement the standard operating procedure for butchery which required passed animals to be segregated and not allowed to mix with the other animals of the contractor. Animals that were branded and accepted for supply were the `passed animals. The evidence was not that passed animals and other animals were being kept together. The evidence was that on a particular day when the surprise inspection took place, the passed animals had not been segregated from the other animals of the contractor which were yet to be branded and passed. It was also not disputed that there was no specific directive relating to segregation. Even if there was any lapse, it was a lapse of the JCO as per the standard procedure for the butchery and not the Commandant of the supply depot. The omission that could be attributed is at best would be a technical lapse as far as the first respondent is concerned. 32. The omissions attributed to first respondent in regard to charges 4 and 5(c) were actually omissions by his sub-ordinates and those sub- ordinates were charge-sheeted. In regard to the subject of charges (1) and (4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered and sentenced to undergo rigorous imprisonment for 30 months and the Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of eight years past service for the purpose of pension and severely reprimanded. In regard to the subject of charges (4) and 5(c), the Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role of the appellant being that of an overall controlling officer of the supply depot was limited and the charges in so far as the first respondent were technical in nature. But for the limitation of interference with regard to findings of fact in judicial review, this might even be a case for interference with the findings of guilt recorded. Be that as it may. 33. In the circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service.34.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The direction of the High Court to reconsider the matter in the light of the legal principles laid down by the Full Bench of the Delhi High Court in Brig. A.K. Malhotra is no longer valid in view of the fact that the decision in Brig. A.K. Malhotra was reversed by this Court in Union of India v. P.D. Yadav - 2002 (1) SCC 405. This Court held that even if the GCM while imposing punishment, does not direct forfeiture of service or forfeiture of pension under section 71 of the Act having regard to Regulation 16(a) of the Pension Regulations, it is permissible for the President of India to direct forfeiture of pension in regard to a person dismissed or cashiered consequent to a trial by the GCM. This Court also held that for passing an order for forfeiture of pension under Regulation 16(a), all that was necessary was that cashiering or dismissal of the officer from service and there was no further need, either to assign reasons for forfeiture or to consider whether the merit of his prior service warranted any relaxation or relief againstheld that the proceedings of the GCM was proper and findings of guilt did not suffer from any infirmity and the punishment of dismissal did not call for any interference, the High Court could not have interfered with the power and discretion exercised under Pension Regulation 16(a). If there is no violation of rules in conducting the GCM and if there is no infirmity in the award of punishment, having regard to the decision of this Court in P.D. Yadav, the forfeiture of pension was not required to be supported by any other independent reasons nor was it necessary to consider the previous service or gravity of the offence or other circumstances. The High Court therefore committed an error in quashing the order dated 22.12.1995 passed by the President of India, forfeiting the pension of the appellant. The appeal by the appellants (Criminal Appeal No.876 of 2003) is bound to succeed. But this is, however, subject to the decision in the appeal, preferred by the first respondent. If the first respondent is able to demonstrate in his appeal that either the proceedings of the GCM violated the provisions of the Act/Rules/the procedure prescribed, or that the findings of guilt were perverse and unsustainable, or that the punishment was shockingly disproportionate to the gravity of the proved offences and warranted interference, and if this Court accepting his contentions allows his appeal, and sets aside the order of dismissal or reduces the punishment, then the very basis for issue of the order of forfeiture of pension under Pension Regulation 16(a) will disappear and consequently, that order of forfeiture also will not survive. Therefore, we may now examine the contentions of the first respondent challenging the validity of the proceedings of the GCM and imposition ofto first respondent, the Presiding Officer of the Court Martial - Brig. S.K. Kaushal had earlier summarily tried two prosecution witnesses - Sub. Baryam Singh and Sub. Harjinder Singh (who had drawn meat for their units on 14.2.1990) for drawing less quantity of meat and awarded the reprimand for negligent performance of duties. As the summary trials were in regard to the same incident when the prosecutor disclosed the said fact on 15.4.1990, the first respondent raised a challenge objecting to Brig. S.K.Kaushal being the Presiding Officer, as he was disqualified from serving on a GCM having regard to clause (c) of sub-rule (2) of Rule 39 of the Army Rules 1954 (`Rules for short). He further alleged that the Presiding Officer would have formulated an opinion in regard to the incident and consequently, be biased. In spite of it, the Convening Authority wrongly directed the GCM to proceed, overruling his objection under section 130 of the Act read with rule 44 of the Rules. He submits that participation by the Presiding Officer vitiated the entire proceedings, rendering the same invalid andHigh Court after exhaustive consideration found that the trial was conducted in accordance with the rules and there was no violation of the procedure or principles of natural justice. On behalf of the prosecution, as many as 13 witnesses were examined. A large number of documents (marked A to Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart from three material objects (ME1 to ME 3) were exhibited. The first respondent was supplied with complete set of proceedings including all exhibits. He was permitted to have the assistance of a legal practitioner. He was given due opportunity to cross examine the witnesses and lead his own evidence. After completion of evidence, the General Court Martial put questions to the accused with reference to the evidence and gave him an opportunity to explain his position. Detailed submissions on behalf of the prosecution and the defence were heard. It was thereafter that the Court Martial gave its findings and imposed the punishment. This is not a case of no-evidence. Inadequacy and unreliability of evidence are not grounds for interference. The Court Martial had jurisdiction. Violation of prescribed procedure has not been made out. In exercise of power of judicial review, it is not possible to re-assess the evidence or sit in judgment over the finding of guilt recorded by the Military Tribunal. The scope of interference with the findings of the GCM is very narrow and should be exercised in rare cases. This is not one of them. We, therefore, find no reason to interfere with findings of guilt regarding changes 1, 4 andcharges that are held to be proved against the first respondent, are:(i) Being the Contract Operating Officer for dressed meat, the first respondent with intent to defraud, caused the acceptance of meat from the contractor with `heart as part of the meat knowing that the same was not acceptable part of carcasses as per para 86 of special conditions of the contract (vide first charge);(ii) The first respondent, as the Commandant incharge of the Supply Depot failed to ensure that required stocks were maintained as reserve, in the Butchery as required by para 51(a) of the special conditions of contract (vide fourth charge);(iii) The first respondent as the Commandant responsible for the overall control of the operation of the Butchery improperly failed to implement the standard operating procedure for Butchery resulting in `passed animals not being segregated and being allowed to mix with the other animals of the contractor.According to the charge-sheet, the first charge was an offence falling under section 52(f) of the Act which provides that subject to the provisions of the Act, any person who does anything with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person, shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is mentioned in the Act. The other two charges which are held to be proved relate to acts or omissions which are said to beto good order and militarypunishable under section 63 of the Act on conviction by Court Martial, with imprisonment for a term which may extend to seven years or such less punishment as is mentioned in the Act. We may now consider the nature and content of the charges proved. Section 52(f) and section 63 are very broadly and generally worded and deal with residuary offences, (one dealing with property and another dealing with discipline) to provide for and cover offences which are not specifically provided in sections 34 to 64 of the Act. The offences under these residuary provisions may fall under a wide spectrum, ranging from the mildest technical violations to the severest offences relating to fraud or gross indiscipline. It is therefore necessary to find the degree of gravity of the offence when a person is found guilty of offences under section 52(f) or section 63. Only then, the court can consider whether the punishment is so disproportionate to the gravity of the proved offences that it shocks the conscience of the court or is so perverse or irrational that it cannot be allowed to stand. As held by this Court repeatedly, there could be no judicial review merely because the court feels that the punishment should have been lesser or on the ground of sympathy orcharge that has been held to have been proved is an offence under section 52(f) of the Act that is while commanding the supply depot, the first respondent being the Contract Operating Officer for dressed meat, with intent to defraud, caused the acceptance of meat from the contractor with heart as part of meat between 1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of the carcass as per para 86 of the Special Conditions of Contract. What was established was that when the butchery was raided and the meat issued to units were inspected on 14.2.1990, it was found that out of the dressed meat weighing 1411.2 kgs. that was issued to various units, the weight of hearts found as part of the meat was 14.5 kgs. The Supervisory Officer and Veterinary Officer have been charged and punished in this behalf. The case against the first respondent was not that he had instructed heart to be accepted as part of dressed meat nor is it the case that heart was being regularly accepted as part of dressed meat from the contractor. The case against first respondent was that when the butchery was being inspected on 14.2.1990, the first respondent as Commandant visited the butchery and during discussions with the inspecting officers made an observation that to the best of his knowledge, heart was an edible offal and could be issued on demand of units and also reiterated the said observation in his confidential report dated 15.2.1990. Making of the said remark has been interpreted as the first respondent accepting meat from the contractor with heart as part of the dressed meat, knowing well that heart was not acceptable part of carcass; to defraud the government. This charge depends upon the interpretation of para 86 of the special conditions of the contract and an inference that his understanding of para 86 amounted to causing acceptance of heart as part of the dressedthe circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service.