Madras High Court
A.N. Jegannathan (Deceased), ... vs The Union Of India (Uoi), Represented By ... on 3 June, 2002
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER A.K. Rajan, J.
1. This writ petition was filed for issue of writ of certiorarified mandamus to call for the records in Proceedings No.C/03052/AG/DV-2, dated 15/8/1993 and quash the same.
2. This writ petition was filed originally by one A.N.Jegannathan who was an officer in the Indian Army. During the pendency of the writ petition, he died and therefore, his wife and children were brought on record as legal representatives of the petitioner.
3. The said A.N.Jegannathan joined Indian Army in the year 1965 as Second Lieutenant. Thereafter, he was promoted in course of time and in the year 1987, he was appointed as Commanding Officer in Coimbatore. While he was in service, he received several awards and certificates of merit. While so, the third respondent prepared a charge sheet and seven charges were framed; three charges under Section 52(C) of the Army Act and two under Section 63 of the Army Act and two under Section 52(F) and in the alternative to the 6th charge, seventh charge under Section 63 of the Act were framed. All the charges were based on the alleged offence of committing breach of trust in respect of properties belonging to the Military Institution. The General Officer, Commanding, ordered the matter to be dealt by the General Court Martial; on 15.5.1992, the Presiding Officer and four other officers were appointed. Petitioner's objection regarding the jurisdiction of the Court Martial was ruled out. Thereafter, he filed a writ petition before this Court for issue of writ of prohibition against the respondents from proceeding the enquiry, but that was dismissed. Thereafter, enquiry was not conducted properly and the witnesses were not competent to depose against the petitioner. On 16.6.1992, the Court Martial held the charges proved; the evidence relied upon by the Court Martial were inadmissible and some were vague. Thereafter on 19.6.1992, a statement about the character of the petitioner in the Military Service was given in which his services were commended upon and it was stated as exemplary. He submitted a Mercy Petition also on the same day. But without considering that, award was passed dismissing the petitioner from service. Thereafter, he filed a petition to the Confirming Authority on 20.6.1992, but that order was confirmed on 29.8.1992. Thereafter, he filed an appeal under Section 164(2) of the Army Act; that was rejected by the Court Martial by a single line order without giving any opportunity and without any reason whatsoever. The first respondent is duty bound to pass a reasoned order. Aggrieved by that, the present writ petition has been filed.
4. In the counter-affidavit, it is stated as follows: The petitioner was commissioned into the Madras Regiment on 15th June, 1966. He was posted to 110 Infantry Battalion (TA) at Coimbatore On 16th August, 1987 as Battalion Commander. Then he was posted out as Branch Recruiting Officer, Ahmedabad, on 31st July, 1990. Then he handed over the Battalion to his successor with an all-correct report from all the store-holders. However, in October, 1990, when the stock-taking board of the Canteen Stores Department held, deficiencies in stock amounting to approximately rupees one lakh were detected. Therefore, enquiry was held in March, 1991 which revealed certain irregular practices that were followed by the petitioner. He was selling items from the canteen without bills and not entering such sales in the Daily Sales Summary. Therefore, in the Stock-Ledger, the cash realised from such sales was collected by Subedar Major K.Sridharan Nair and in turn, was utilised by Junior Commissioned Officer and the petitioner for their personal purposes. The Canteen Junior Commissioned Officer Subedar Chellappan and Naik Subedhar M.Jagadeesan were actively involving in this corrupt practices. The Court of Enquiry also revealed that the petitioner indulged in taking stores from the canteen without payment of bills. Large quantities of liquor were taken by the petitioner exceeding the limits prescribed. The records revealed that he had his own ways of transacting the business in respect of stores obtained in the canteen by-passing Second-in-Command and Canteen Officer and obtained cash/stores directly from salesmen, Canteen Junior Commissioned Officer of the Unit. When the petitioner was the Commanding Officer of 110 Infantry Battalion (TA), 42 packages of tentage were collected by the Battalion along with other stores from Ordnance Depot, Avadi. These packages were siphoned off unauthorisedly. The petitioner knowing well that those stores were not demanded by his Unit dishonestly retained them at his residence, with an intent to cause wrongful gain to himself. This was brought out in the Court of Enquiry. Subsequently, the petitioner was attached to Army School Mechanical Transport, Bangalore for disciplinary proceedings against him. A summary of evidence was recorded against him in December, 1990 and additional summary of evidence in February, 1991. There was overwhelming direct and circumstantial evidence against the petitioner for the charges framed. In the enquiry, the petitioner was found guilty of the first, second, third, fifth and sixth charges and found not guilty of charges-4 and 7. He was awarded the sentence of dismissal from service which was confirmed by Southern Command on 12th August 1992. No petition was received from the petitioner before the sentence was confirmed by the General Officer, Commanding-in-Chief. In his Post-Confirmation Petition, he had prayed for mitigating the award of dismissal to any lower punishment. It is further stated that this Court does not have any jurisdiction to go into the evidence in respect of Court Martial. The factual aspects and the correctness of the conclusion arrived at, "to find the petitioner guilty by the Court Martial cannot be gone into in the Writ Petition." The General Court Martial proceedings revealed that there is sufficient evidence on all the charges framed against him. Punishment was imposed after taking into account the materials placed before it. The petitioner filed Pre-Confirmation Petition after the sentence was confirmed by the authorities. Therefore, his Pre-Confirmation Petition has become infructuous and no orders can be passed on that. The provisions of the Arms Act was complied with. There was enough evidence to find that the petitioner was guilty. The Court also considered the conduct sheet of the petitioner before sentencing him. Therefore, the writ petition is devoid of merit and it is liable to be dismissed.
5. The counsel for the petitioners submitted that the charges that were framed against the petitioners are minor in nature, whereas the punishment is excessive. Under such circumstances, the Supreme Court in the case of Ranjit Thakur v. Union of India and Others ( (1987) 4 Supreme Court Cases 611), has held that, " Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and 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 recognised grounds of judicial review. "
The learned counsel for petitioners further relied upon a decision in Union of India and another v. B.C. Chaturvedi , wherein it has been held as follows: " 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 their 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. "
Further, it was held, " No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law makers do desire application of judicial mind to the question of even proportionality of punishment/penalty."
The counsel for the petitioners submitted relying upon these decisions that the power of Judicial Review of the High Court ensures even to see whether the punishment awarded by the Disciplinary Authority is commensurate with the nature of charge; if the punishment is shocking to the judicial conscience, the High court has power to interfere with the punishment imposed.
6. The Supreme Court in the case, Union of India and another v. B.C. Chaturvedi , dealt with a departmental enquiry which was not a Court martial proceedings. Therefore, this decision has no application to the punishment imposed by Court Martial. In the case , the Supreme Court has held that Doctrine of Proportionality of punishment vis-a-vis nature of charge is applicable to the proceedings under Court Martial. Therefore, the argument of the counsel for the petitioner that this Court must apply the test of proportionality of punishment, has force.
7. Therefore, it is necessary to see the nature of charges framed against the petitioner. The charges that were held to have been proved are Charge Nos.1, 2, 3, 5 and 6. Charges-4 and 7 have been held not proved. Charge No.1 is that when the Officer was serving at Coimbatore on 18th July, 1989, he dishonestly misappropriated a sum of Rs.1,500/-, the property belonging to the Unit Canteen. Charge No.2 is that while he was serving in Coimbatore, on 16th day of February, 1990, he dishonestly misappropriated a sum of Rs,.3,600/- of the Unit Canteen. Charge No.3 is that on 20th day of February, 1990, he dishonestly misappropriated a sum ofRs.2,500/- of the Unit Canteen. Charge No.5 is between 1st August 1989 and 31st March, 1990, the officer improperly drew 1,321 bottles of rum from the Unit Canteen contrary to Army Headquarter's letter dated 15th June, 1988 which directed that an officer can draw maximum of six bottles of rum per month. Charge No.6 is that he shifted from the Government Stores, "with an intent to defraud" the Unit Stores, about 67 tents of various weights to his residence, some of them were old.
8. The counsel for the petitioner referred to the judgment of the Supreme Court in Ex-Naik Sardar Singh v. Union of India and others ; in that case, when a Jawan having been permitted to carry five bottles of rum, carried seven bottles extra purchased from the Army Canteen, the Supreme Court has held that, " Even assuming that the offence committed by the appellant Jawan is covered by the residuary Section 63, the Court-Martial has to keep in view the spirit behind Section 72 of the Act in awarding the punishment and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding any of the lesser punishments enumerated in Section 71 of the Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty. "
The counsel for the petitioner, therefore submitted that the Court Martial should have imposed a lesser punishment considering the nature of charges.
9. The counsel for the respondents submitted that the Supreme Court in the case of Union of India v. Major A.Hussain, reported in Military Law Journal, 1998, S.C. 18, has held that Court martial proceedings are subject to judicial review under Article 226, but Court Martial is not subject to superintendence of High Courts, under Article 227. Therefore, there is no scope for Judicial Review when the Court Martial is properly convened and proceedings are conducted in accordance with the procedure prescribed without challenge to its members. Hence, the punishment awarded is within the power of Court Martial and the High Court or for that matter any Court must stay its hand. The learned counsel further relied upon the decision in Union of India and Others v. Himmat Singh Chahar, (Military Law Journal, 1999 SC 1), wherein it was held, " ..The High Court under Article 226 has the power of Judicial Review but for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out whether there has been violation of principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act....
" The said power of judicial review cannot be a power of Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in Court Martial proceedings. "
In this case, the Supreme Court finally set aside the judgment of the High Court interfering with the punishment imposed by Court Martial. Therefore, the counsel for the respondent submitted that this Court cannot interfere with the punishment imposed by the Court Martial.
10. The Supreme Court in the above two decisions cited by the respondents, has not overruled or rejected the doctrine of proportionality of punishment laid in its earlier decisions. Therefore, that test can be applied by this Court.
11. The seventh charge was an alternative charge of the sixth charge and that was not proved. Sixth charge is that "with an intent to defraud" the Unit Stores, he shifted the tents to his residence. The very same act was termed as an "act prejudicial to good order and military discipline" which is the seventh charge. Hence, the sixth charge is unsustainable. Even in the finding of the Enquiry Officer, it is stated that those tents "were returned" to the Unit on the direction of the accused; there is no misappropriation of the property of the Army. In the circumstances, the punishment of dismissal cannot be said to be commensurate with Charge No.6.
12. Further, the impugned order is in a way appears to be an order in appeal which is an order on Post-Confirmation Petition; the order passed therein is in the nature of quasi-judicial order. The order of the quasi-judicial authority must be a speaking order; but has simply rejected as devoid of merits. It reads as follows:
" C/03052/AG/DV-2 ORDER OF THE CHIEF OF THE ARMY STAFF ON THE POST-CONFIRMATION PETITION DATED 11 AUG 92 UNDER THE ARMY ACT SECTION 164(2) SUBMITTED BY IC-17067 COL AN JAGANNATHAN OF BRO AHMEDABAD.
...
The Post-Confirmation Petition dated 11 Aug 92 submitted by IC-1767 Col AN Jagannathan is hereby rejected being devoid of merit.
Signed at New Delhi on this fifteenth day of August, 1993.
BC Joshi, Chief of the Army Staff. "
The above order is an one line non-speaking order. Therefore, this order cannot be considered as valid order. Even in the counter-affidavit, it has not been stated as to whether any reasons were given in the order passed by the authorities and that only the extract of the order was communicated to the petitioner. In the circumstances, it has to be concluded that there was no speaking order while disposing of the appeal (Post-Confirmation Petition). Therefore, it is an arbitrary order. Hence, it is liable to be set aside.
13. The sixth charge cannot result in the order of dismissal from service when the test of proportionality of punishment is applied. At the same time, this Court cannot come to the conclusion whether the authorities would have imposed the punishment of dismissal from service for the remaining charges alone. The Supreme Court in The General Court Martial and Others v. Col. Aniltej Singh Dhaliwal , where the Court Martial awarded a sentence on all the four charges and when one of the charges was found unsustainable and quashed by the High Court, remanded the matter to Court Martial for deciding the question of sentence. Therefore, this matter is also remanded back to the authorities to pass a considered order.
14. While considering the punishment, the authorities shall also take into account the fact that the original petitioner is already dead and the only legal representatives are fighting the case. The authorities would decide bearing in mind the decision in Ex-Naik Sardar Singh v. Union of India and others .
15. In the result, the writ petition is allowed and the impugned order is set aside and the matter is remitted to the Chief of the Army Staff to consider and pass appropriate orders.