UNION OF INDIA AND ORS.

R.K. SHARMA

. OCTOBER?· 2001

[K.T. THOMAS AND S.N. VARIAVA, JJ.]

Military Law:

AnyAct, 1950-Sections45, 57, 63, 71 and.72-General CourtMartial-'- Penalty of dismissal from service~High Court held charges established- However, it set aside the order of dismissal as the sentence fl-Warded was too harsh considering the nature and degree of offence established-On appeal held punishment imposed by General Court Martial correct as it has the powers-Thus interference by High Court not justified.

Respondent was found guilty of four charges and was awarded punishment of dismissal from service by the General Court Martial (GCM).

Central Government dismissed respondent's appeal. Single Judge of the High Court held that the Court Martial had been properly conducted and four charges had been established in the GCM. However, the Single Judge was of the view that having regard to the nature and degree of the offences

 E established the extreme and severe punishment of dismissal from service was violative of the provisions of Section 72 of the Army Act, 1950. Thus the order of dismissal was set aside arid matter was sent b.ack to GCM for awarding any lesser punishment. Thereaner, cross appeals were filed which were dismissed and the Division Bench also held that a lesser punishment p be imposed. Hence the present appeals.

Disposing of the appeals, the Court

HELD : 1. The Respondent did not obey the command from the Headquarter, did not make payment of certafo amount and also falsified records in order to make out a case that he had already gone to two of the forward posts which are very serious offences for which the respondent could be sentenced tci imprisonment for either 7 years or.· 14 years as contemplated under Sections 57 and 63 of the Army Act,· 1950. However, General Court Martial took a lenient view by merely dismissing him from service which is a lesser punishment. Therefore, the courts below erred in H coming to the conclusion that the order of dismissal from service imposed 664

U.0.1. v. R.K. SHARMA 665

by the General Court Martial on the respondent was too harsh considering A the nature of allegation and the charges established against him.

(673-D-E; 672-B-C]

Bhagat Ram v. State of H.P., AIR (1983) SC 454 and Ranjit Thakur v.

Union of India, [1987] 4 SCC 611, referred to.

2. Both the Single Judge as well as the Division Bench have held that the charges levied on the respondent have been proved and he was guilty of these charges. Therefore, it was not open . to the courts below to have interfered with the sentence since awarding of sentence is within the powers of the Court Martial. [670-G-Hl

Union of India v. Major A. Hussain, (1998] 1 SCC 537, relied on.

3. The punishment of dismissal was not violative of the provisions of Section 72 of the Act which 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 D 71 of the Act. It does not set out that in all cases, a lesser punishment must be awarded. Merely because a lower punishment is not imposed, it would . not mean that the punishment was violative of Section 72 of the Act.

[671-F-H]

4. The observation in Ranjit Thakur case that when punishment is so E strikingly disproportionate it calls for interference should not to be taken to mean that a Court can, while exercising powers u~1der Article 226. or 227 and/or under Article 32 of the Constitution of India, 1950 interfere with the punishment because it considers. the punishment to be disproportionate.

It is only in extreme cases, which on their face show perversity or F irrationality that there can be judicial review. Merely on compassionate grounds a Court should not interfere. [67l•E; F]

Ranjit Thakur v. Union of India, [1987] 4 SCC 611, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7052-7053 of 2001.

From the Judgment and Order dated 16.3.2001 of the Assam High Court in W.A. Nos. 442/99 and W.A. No. 115 of 2000.

Harish N. Salve, Solicitor General and Kai lash Vasdev, A.K. Srivastava,

Hemant Sharma and. Ms. Sushma Suri for the Appe!lants.

A Jitendra Mohan Sharma, Revindra Kumar and Sandeep Singh for the

Respondent.

The Judgment of the Court was delivered by

S.N. VARIAVA, J. Leave granted.

Heard parties.

These Appeals are against an Order dated 16th March, 2001 by which two Appeals,. one filed by the Appellant (herein) and the other filed by the Respondent (herein), were dismissed.

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 a charge-sheet.

Thereafter 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 Ptition in the High Court. By an Order dated 14th October, 1999, a Single Judge of.the High Cort held that the Court M_artial 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.

Both the Appellant and the Re.spondent 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.

The Division Bench has, in the impugned Order, relied upon the authority H of this Court in the case of Bhagat Ram v. State of H.P. reported in AIR 1983

•· 4

SC 454, for proposition that the penalty must be commensurate with the gravity A of mis-conduct and that any penalty disproportionate to the gravity of misconduct would 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.

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 ar.d quantum of punishment is within the jurisdiction and discretion of the Court-martial. But 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 the Court-martial, if the decision of the Court even as to sentence is an outrageous defiance 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 haye 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.

In order to consider the correctness of the impugned Order it is necessary to see the charges which have been held. proved. Th<! four charges read as. follows : ·

"First Charge Army Act Section 63

AN ACT PREJUDICIAL TO

GOOD ORDER AND MILITARY

DISCIPLINE

In that he,

at field, on 31 Oct. 84 while being the Officer Commanding 'A' H

SUPREME COURT REPORTS [:iOOl] SUPP. 3 S.C.R. . . .

Coy, 11 Assam Rifles on receipt of signal No. 0 2140 dated 31 Oct. 84 from Tac HQ 11 Ass~ Rifles directing Coy Cdrs to visit fwd posts immediately to check alterness and report all OK did not himself visit the fwd post but improperly detailed JC-111310 Sub GS Panthi, the Senior JCO of the Coy for the task.

Second Charge Army Act Section 45

BEING AN OFFICER

BEHAVING IN A MANNER

UNBECOMING

HIS

POSITION

AND THE CHARACTER EXPECTED ·

OF HIM.

In that he,

at field, between the period 14 Oct. 84 to 3(>°Nov: 84 drew ration for personal consumption of Rs. 930.37 (Rupees Nine hundred thirty and paise thirty seven) only from the Quartermaster 'N Coy but did riot pay for the same.

Third Charge Army Act Section 57(a)

IN A TOUR DIARY

MADE BY HIM KNOWINGLY

MAKING A FALSE STATEMENT

In that he,

At field, on .17 Dec. 84 while being the Officer Commanding 'A' Coy in his Tour Diary stated that he left Manigong on 20 Oct. 84 for Tadadege well knowing the said statement to be false.

Fo•Jrth Charge Army' Act Section 57(a)

IN A TOUR DIARY

MADE BY HIM KNOWINGLY

MAKING A FALSE STATEMENT

In that he,

at field, on 07.01.85, while being the Officer Commanding 'A' Coy in his Tour Diary stated that he left Mani gong on 26 Nov 84 for Shiel well knowing the said statement to be false." ·.

At this stage the Sections of the Army Act, 1950, on which these charges are framed, may be looked at. The first charge is based on Section 63. Section 63 .

H provides for violation of good order and discipline. Under Syction 63 if such

a charge is found proved, then on conviction by Court Martial, the person found guilty could be sentenced to suffer imprisonment for a term which may extend to seven years or to some other lesser punishment. The second charge is under Section 45. It is in respect of unbecoming conduct. The punishment is dismissal or such lesser punishment as is mentioned in the Act. The third and fourth charges are under Section 57. They relate to falsifying official documents and making false declarations. On conviction the punishment could be for a term which may extend to 14 years or any other lesser punishment.

Section 72 of the Army Act, 1950, reads as follows :

"72. Alternative punishments awardable by court-martial.-Subject to C the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in Secs. 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thereof, any one of the punishments lower in the scale set out in Sec. 71, regard being had to the nature and degree of the offence."

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) transpottation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen ears; (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.

The law on the subject is aptly set out in the case of Union of India v.

Major A. Hussain reported in [ 1998] 1 SCC 537. This was a case where a Major had been court-martialed and dismissed from service. The High Court quashed the Court Martial and the sentence on the ground that the delinquent had been denied a reasonable opportunity to defened himself. This Court, after considering various Army Orders, Rules and Provisions of the Army Act, concluded that the Court Martial had been properly held. It was then held as follows :

"23. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the courtmartial is not subejct ~-the superintendence of the High Court under

Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedigs of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure 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 specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by courtmartial 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 Evidence 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 provisions of law relating to court-martial in the Army Act, the 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 i<ivestigation 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 Rule 149 quoted above. The High Cciurt should not al) ow the challenge to th.e validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction oer the subject-matte~ and has followed the prescribed procedure and is within. its powers to award punishment."

As stated above, both the single Judge as w.ell as the Divison 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.

H In our view, the observation in Ranjit 1:/iakttr~· case (supra) extracted

.__..

.;:_

above, have been misunderstood. In that case the facts were such that they A 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. While he was serving the sentence he was served with another charge-sheet which reads as follows.

"Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with -

Army Act Section 41(2) Disobeying a lawful command given by his superior officer

In that he

At 15.30 hrs on May 29, 1985 when _ ordered by JC 106251:P Sub Ram Singh, 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 t:::>proportionate that it called for interference. The above observations are not to be taken to mean that a Court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a Court should not interfere.

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 punishment 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 could have imposed a punishment of imprisonment. 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 violate~.

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 recei.ved. It has been proved that the Respondent did not visit the forward post. The R, espondent improperly detailed _a JCO of the Company to vist 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.

Mr. J.M. Sharma submitted that during that period, i.e. in October 1984, there was an operation, known as operation "Ran Vijay", iri progress. He submitted that as a result of the operation the troops were already on high alert.

He submitted that 'A' Company had four forward posts. He submitted that just a few days before the receipt of the signal, the Respondent had already. visited two of the forwar4 posts viz. Tatadege and Henakar. He submitted that as the troops were already on high alert and as he had just returned back from two of the forward post the Respondent sent tr~ JCO to check alertness in the remaining two forward posts. He further submitted that there was to be a visit, to the 'A' Company, of a VIP and the .Respondent was therefore required to . remain in Manigong. He submitted. that for that reason also the Respondent could not personally visit the forward posts. It was further submitted that in that area, apart them 'A' Company, there were three other Companies, namely 'B', 'C' and 'D' Companies. He submitted that that the Commandants of 'C' Company and 'D' Company had also not visited the forward post after receipt of signal. He submitted that therefore the charge was not that serious and that th}s was the factor which was taken into consideration by both the Courts below. Mr. Sharma further submitted that even the other charges were H not of very serious nature inasmuch as the second charge only related to non

r . ..,,

payment of a small sum of Rs. 930.37. He submitted that the third and fourth A charges only related to making entries in the tour Diary maintained by the Respondent.

We are unable to accept the submissions 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, hi; td already visited the forward posts and come back. Thus the Respondent 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 falsified 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 .E view by merely dismissing l:iim from service. There was just no justification for interference by the High Col}rt.

Mr. Sharma next submitted that the General Court Martial was not properly convened. When asked whether such a contention was taken up in the F Writ Petition. Mr. S.harma placed reliance on the following observations in the Judgment of the Single Judge :

"The petitioner vehemently argued that preliminary hearing when the summary evidence was recorded, the provisions of rules 22, 23 and 24 of the Army Rules, 1954, as well as Army Order 70/84 were not strictly G followed. In this context, h~ pointed out that the Army Order 70/84 prescribed a form which was required to be filled up by the commanding Officer at the time of hearing of a charge against a person subjected to Army Act, 1950, but the said form was not duly filled up by the Commanding Officer." H

We are unable to accept , that the above observation show that in the Writ Petition there was a challenge to 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.

Under tese circumstances, we set aside. the Order passed by the learned single Judge as well as the impugned Order. The Writ Petition filed by the C Respondent shall stand dismissed. There will be no Order as to costs.

N.J.

Appeals disposed of.

I I