Case: Union Of India and Others Vs. R.K. Sharma

4. Briefly stated the facts are as follows :The respondent was at the relevant time, serving as Deputy Commandant of Assam Rifles. On 28th November, 1986 he was served with aThereafter a General Court Martial was held and the respondent was found guilty of four of the charges. The penalty of dismissal from service was imposed on the respondent. The Central Government dismissed the appeal filed by the respondent. The respondent then filed a writ petition in the High Court. By an Order dated 14th October, 1999, a Single Judge of the High Court held that the Court Martial had been properly conducted and that there was no breach of principles of natural justice. It was further held that the four charges had been established in the General Court Martial and that the respondent was liable for punishment. It was however held that having regard to the nature and degree of the offences established the extreme and severe punishment of dismissal from service was violative of the provisions of Section 72 of the Army Act, 1950. The order of dismissal was set aside and the matter was sent back to the General Court Martial for awarding any lesser punishment than dismissal from service. It was directed that the respondent would not receive any salary and allowances for the period when he was out of service.5. Both the appellant and the respondent filed appeals. The Appellate Court refused to grant any stay to the appellants herein. The appellants, therefore, approached this Court. This Court by an Order dated 7th August, 2000 granted an interim stay. This was then confirmed by an Order dated 16th October, 2000. By the Order dated 16th October, 2000 the High Court was requested to dispose of the appeals expeditiously.6. The Division Bench has, in the impugned Order, relied upon the authority of this Court in the case of Bhagat Ram v. State of U.P., reported in AIR 1983 SC 454 , for proposition that the penalty must be commensurate with the gravity ofand that any penalty disproportionate to the gravity ofwould be violative of Article 14 of the Constitution. To be noted that this case was not under the Army Act, but in respect of a civil servant.7. The Division Bench also relied upon the following observations in the case of Ranjit Thakur v. Union of India, reported in 1987(4) SCC 611 :"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of choice and quantum of punishment is within the jurisdiction and discretion of theBut the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is otherwise within the exclusive province of theif the decision of the Court even as to sentence is an outrageous definance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."Based on the above authorities the Division Bench has held that the sentence awarded was too harsh considering the nature of the allegation and the charge established. The Division Bench has also directed that if the original General Court Martial was not available, as two of its members have retired, then another General Court Martial could be constituted with available members for purpose of imposing a lesser punishment. Being aggrieved by this Order the Appellants have filed this appeal.

Reasoning:
9. Under Section 71 various punishments are prescribed according to scale. One of them, at item (e) is dismissal from service. Above this at items (a) to (d) are : (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment either rigorous or simple for any period not exceeding fourteen years; (d) cashiering, in the case of officers. Various other punishments with which we are not concerned are prescribed after item (e). Thus it is to be seen that dismissal from service is a lesser punishment than imprisonment for either 7 years or 14 years as contemplated under Sections 57 and 63 of the Army Act, 1950.As stated above, both the single Judges as well as the Division Bench have held that the four charges set out have been proved and that the respondent was guilty of those charges. Having so held it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of the Court Martial. These are not matters in which Court should interfere.12. In our view, the observations in Ranjit Thakurs case (supra), 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 Ranjit Thakur 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.We find that the lower Court erred in coming to the conclusion that the punishment of dismissal was violative of provisions of Section 72 of the Army Act, 1950. Section 72 merely provides that the Court Martial may, on convicting a person, award either the punishment which is provided for the offence or any of the lesser punishments set out in the scale in Section 71. Section 72 does not set out that in all cases, a lesser punishment must be awarded. In other words, merely because a lower punishment is not granted, it would not mean that the punishment was violative of Section 72. In any case, in this case, under Section 63 there could have been a punishment of imprisonment for a term which may extend to 7 years. Under Section 57 there could have been a punishment for imprisonment for a term which may extend to 14 years. The charges under Sections 57 and 63 had been held to be proved. The General Court Martial has chosen to give a lower punishment of dismissal from service. The Court below should not have interfered on the erroneous assumption that provisions of Section 72 of the Army Act, 1950 had been violated.14. Even otherwise, in our view, both the Courts below have erred in coming to the conclusion that the sentence awarded was too harsh considering the nature and degree of the offence established. The first charge, as set out hereinabove, indicates that the respondent, who was the Commanding Officer of "A" Company 11 Assam Rifles, had received a signal to visit the forward post, check alertness and report all OK. It is not denied that the signal had been received. It has been proved that the respondent did not visit the forward post. The respondent improperly detailed a JCO of the company to visit the forward post. This was a very serious charge. If a Commanding Officer breaches orders received from the Head Quarters how can discipline be maintained in the Army.We are unable to accept the submission of Mr. Sharma. It has to be immediately noted that the Company Commandants of `C and `D Companies had stayed back after getting permission from the Head Quarters. The respondent did not apply for any permission. The further case that the respondent was required to stay back because a VIP was to visit the `A Company is also of no substance. The VIP was to visit only on 5th November. By that time the JCO, who had been improperly deputed by the respondent, had already visited the forward posts and come back. Thus the Gram Sahayak could also have visited the post and returned well in time to receive the VIP. It is also not possible to accept the case that the respondent had already visited two of the forward posts a few days earlier. It is to be seen that the third Charge is in respect of making a false entry in the tour diary to show that the respondent had gone to the forward posts. That charge was proved. This showed that a false entry had been made to show that the respondent had gone to those posts when in fact he had not gone there. Not only did the respondent not obey the command from the Headquarter but he fasified records in order to make out a case that he had already gone to two of the forward posts. These are very serious offences. These are offences for which the General Court Martial would have been justified in awarding imprisonment. The General Court Martial took a lenient view by merely dismissing him from service. There was just no justification for interference by the High Court.We are unable to accept that the above observations show that in the writ petition there was a challenge to the constitution of the General Court Martial. The above observations are in respect of a preliminary hearing under rules 22, 23 and 24 of the Army Rules, 1954. This is a hearing which precedes the Court Martial. In any event the High Court has held against the respondent on this point and no appeal was filed by him. This point not having been raised in the writ petition cannot now be urged before this Court for the first time. We therefore did not permit Mr. Sharma to argue this point.