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

The first respondent was the officiating Commandant and later the Commandant of 227 Company ASC (Supply) Type `G, Ambala Cantonment (hereinafter referred to as the `Supply Depot) from 19.10.1988 to 26.6.1990. The supply depot had three sections - Dry Rations, Fresh Rations and Butchery. The appellant as the Commandant was in overall charge of the supply depot. As per the standard operative procedure for the Butchery, the following staff were detailed forSupervisory Officer - Cap. P. S. Malhotra(ii) Veterinary Officer - Lt. Col. G. S. Srivastava(iii) J.C.O. in-charge - Sub. G. L. Kalra(iv) NCO in-charge - Havaldar Clerk D. L.On receiving complaints about irregularities in the butchery, a team of three officers from the Central Bureau of Investigation and two Army Officers carried out a raid/surprise inspection of the butchery on 14.2.1990, with the prior permission of the second respondent. They intercepted eleven vehicles belonging to different units returning from butchery after collecting meat and checked the meat for quality and quantity. They also inspected the butchery. The Report of the Inspection Team disclosed certain irregularities in the quality of the dressed meat supplied by the contractor, (which were being issued to the indenting units), maintenance of live stock and supervision. As a consequence, the officials of the Butchery were all separately charge-sheeted.4. The first respondent, who was the Commandant of the Supply Depot was also issued a charge-sheet dated 30.12.1992 containing the following chargeschargeSUCH AN OFFENCE AS IS MENTIOEND IN CLAUSE (f) OF SECTION 52Army Act OF THE ARMY ACT WITH INTENT TO DEFRAUD,Section 52(f)In that he, at Ambala Cantonment, on 14 Feb.1990, while Commanding 27 Company Supply (ASC), being contract operating officer for meat dressed, with intent to defraud caused the acceptance of meat from the contractor with heart as part of meat, well knowing that the same was not acceptable part of carcasses as per para 86 of Special Condition of the Contract deed for the period from 1st May 1989 to 31st March, 1990, concerning meat supply at Ambala.Second chargeAN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARYArmy Act DISCIPLINE,Section 63In that he,at Ambala Cantonment, on 14 February 1990, while Commanding 27 Company Supply (ASC), having visited butchery of the said company at the time of inspection of carcasses by the Veterinary Officer and having found the carcasses dribbling with water, failed to ensure that wet meat dribbling with water is not issued to the Units, contrary to para 14(j) of Headquarters PH and HP area Shimla (ST Branch) Technical Instruction dated 30th November, 1989.Third chargeAN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARYArmy Act DISCIPLINE,Section 63In that he,at Ambala Cantonment, during the period from 26th February 1990 to 8th March 1990 while Commanding 27 Company Supply (ASC) failed to ensure that stock of reserve animals was maintained in the butchery of the said company as per para 51(a) of Special Condition of the Contract deed for the period from 1st May 1989 to 31st March 1990, consequently no animals were held in reserve in the said butchery during that period.Fourth chargeAN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY Army Act DISCIPLINE,Section 63In that he,at Ambala Cantonment, during the period from 11th March 1990 to 22nd March 1990, while Commanding 27 Company supply (ASC), failed to ensure that stock of reserve animals was maintained in the butchery of the said company as per para 51(a) of Special Conditions of the Contract deed for the period from 1st May, 1989 to 31st March, 1990, consequently no animals were held in reserve in the said butchery during that period.Fifth chargeAN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARYArmy Act DISCIPLINE,Section 63In that he,at Ambala Cantonment, between 15th January 1990 and March 1990, while Officer Commanding 27 Company Supply (ASC) and responsible for overall control of the operation of unit butchery, improperly failed to implement the Standard Operating Procedure for Butchery Group Supply Depot Ambala Cantt dated 9th May, 1988, as amended, resulting in the following malpractices:(a) Duplicate Brands and Veterinary Officers stamp were found in possession of contractors butcher.(b) All rejected meat and other offals were not being destroyed as per laid down instructions.(c) Passed animals were not segregated but were allowed to mix with the other animals of contractor.(d) Hanging room was not sealed by the JCO Incharge butchery after taking the green weight of the carcasses.(e) Animals passed and branded were not segregated for a minimum mandatory period of 12 hours before slaughtering. (f) Over issue/under issue of meat was made to the units in connivance with the representatives of the units.Charges 1 and 2 related to what was found during the inspection on 14.2.1990. Charges 3 and 4 related to failure to maintain adequate animals in reserve subsequent to 14.2.1990. Charge 5 related to miscellaneous omissions and commissions generally based upon what was observed during the inspection on 14.2.1990.On 14.1.1993, a direction for trial of the first respondent by General Court Martial (`GCM or `Court Martial for short) was issued. On the same day, an order convening the GCM was issued by the third appellant. The trial commenced on 22.1.1993 and concluded on 30.7.1993. At the end of the trial, the GCM found the first respondent not guilty of the second and third charges, but guilty of the first charge, fourth charge and item (c) of the fifth charge. On that basis, the GCM imposed the sentence of dismissal from service on first respondent on 30.7.1993.6. In pursuance of it, a show cause notice dated 30.6.1995 was issued to the first respondent calling upon him to show cause why his pensionary benefits should not be forfeited under Rule 16(a) of the Pension Regulations for the Army (Part I), 1961 (for short `the Pension Regulations). After considering the first respondents representation, the President of India ordered the forfeiture of the entire pensionary benefits of the first respondent, communicated by letter dated 22.12.1995 from the Defence Ministry to the Chief of Army Staff.7. Feeling aggrieved, the first respondent filed writ petition in the Punjab & Haryana High Court (registered as Crl.WP No.1797/1997) challenging General Court Martial proceedings, findings of the General Court Martial holding him guilty of the charges, sentence of dismissal from service and the decision of the appellants to forfeit his pensionary benefits. The High Court by judgment dated 25.8.2000 allowed the writ petition in part. The High Court held that the GCM proceedings were in order, there was no violation of any rules or procedure. It also found no ground to interfere with findings of guilt or the sentence. Consequently, the punishment imposed by the GCM was upheld. But the High Court held that the order forfeiting the pension and pensionary benefits of the first respondent was invalid as no reasons were assigned in the order dated 22.12.1995, for forfeiture thereof. The High Court therefore quashed the order dated 22.12.1995 forfeiting the pension and directed the appellants to reconsider the matter with reference to Regulation 16(a) of the Pension Regulations and the principles laid down by the Full Bench of the Delhi High Court in Brig.A.K. Malhotra v. Union of India - (1997) (4) SLR 51. In short, the writ petition was allowed to the extent of quashing forfeiture of the pension but dismissed in regard to the challenge to the proceedings of GCM and the order of dismissal.8. Aggrieved by the quashing of the pension forfeiture order dated 22.12.1995, the appellants (Union of India and the Army Authorities) have filed Criminal Appeal No.876/2003. Aggrieved by the rejection of the challenge to the GCM findings and the imposition of the punishment, the first respondent has filed Criminal Appeal No.877/2003.

Reasoning:
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.