Allahabad High Court
Kailash Nath Tiwari Son Of Shri Ram Sewak ... vs Union Of India (Uoi) And Ors. on 1 May, 2007
Equivalent citations: 2008(1)SLJ546(NULL)
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. This writ petition has been filed for quashing the order dated 3rd Murch. 1982, sentencing the petitioner, who was working as Ambulance Assistant in Military Hospital, Ramgarh Cantt., to suffer Rigorous Imprisonment for three years and also dismissing him from service in the Court Martial proceedings that had been held under the provisions of the Army Act, 1950 (hereinafter referred to as the 'Act'). The quashing of the order dated 12th April, 1982 of confirmation of sentence as also the order dated 27th August, 1984 by which his petition against the sentence was rejected by the Chief of the Army Staff have also been sought.,
2. The petitioner who was working in the Military Hospital, Ramgarh Cantt. was served with a letter dated 14th February, 1982 mentioning that he would be tried by a General Court Martial. Along with the said letter, copy of the summary of evidence and a copy of the charge-sheet dated 12th January, 1982 was also enclosed. The charge-sheet mentioned that he, had committed civil offence by voluntarily causing grievous hurt to Subedar SKT(I) J.C. Philipose of the same Unit by fracturing his left forearm with a stick. He was thereafter informed that the General Court Martial will commence from 22nd February, 1982 and the Constitution of the Court was also indicated to him. He was also given an opportunity to give the names of the witnesses he desired to call in defence.
3. The case of the prosecution was that on 23rd September, 1981 at about 16:00 hours when Subedar SKT(I) Philipose was working in the store house, the petitioner came and set on the bench, but alter a little discussion with him, he went away. A short-while later, the petitioner again entered the office and gave multiple stick blows to Subedar SKT(I) Philipose who ran out shouting. He was given medical treatment and it was found that be had sustained multiple injuries including fracture in left forearm. The matter was reported to the Commanding Officer and the petitioner was also taken into custody. The case set up by the petitioner was that it was for the prosecution to prove the elements of the charge and that except Subedar SKT(I) Philipose, no one else had seen the petitioner beating him. The General Court Martial found the petitioner guilty of the charges and sentenced him to suffer Rigoro is Imprisonment for three years and he was also dismissed from service. This was confirmed with remission of 18 months Rigorous Imprisonment out of the sentence of three years. The petitioner then filed a petition before the Chief of the Army Staff pointing out that he had three minor children to support and he would be completely ruined if the punishment has awarded. He, therefore pleaded for pardon so that he could serve the nation cheerfully for the rest of his life. This petition was dismissed by the Chief of the Army Staff and the petitioner was informed of this fact by the letter dated 12th August, 1984.
4. When the petition was initially heard, a learned Judge of this Court by of the judgment and order dated 13th November, 1995 dismissed this petition on the ground that it was not maintainable since the impugned orders been passed by authorities situated beyond the territorial jurisdiction of this Court. However, the Special Appeal No. 97 of 1995 flied by the petitioner against the said judgment was allowed by this Court by the judgment and order dated 9th January, 2002 in view of the decision of the Supreme Court in the case of Dinesh Chandra Gahtori v. Chief of Army Staff . The operative portion of the judgment passed in Special Appeal is footed below:
Following the principle as laid down by the Supreme Court in the aforesaid decision, we are of the view that the writ petition should not have been dismissed merely on the ground of territorial jurisdiction and should be heard and disposed of on merits.
Accordingly, the special appeal is allowed and he order of the learned single Judge is set aside. The writ petition is restored to file and it shall be listed before the learned Single Judge dealing with such matters. Sri Subodh Kumar prays for and is allowed three weeks' time to the counter affidavit. Rejoinder affidavit be filed within one week thereafter. List the writ petition after six/weeks. It is expected that the writ petition shall be taken up and disposed of early since this a very old matter subject, however, to the convenience of the learned single Judge.
5. Sri Subodh Kumar learned Counsel appearing for the respondents, raised a preliminary objection that in view of the Full Bench decision of this Court, in Rajendra Kumar Mishra v. Union of India and Ors. 2004 (4) ESC 2313, this petition was liable to be dismissed as no part of cause of action had arisen within the territorial jurisdiction of this Court. Sri SudhakarPandey learned Counsel appearing for the petitioner, however, submitted that this preliminary objection had been earlier rejected by the Special Appeal Bench by the judgment and order dated 9th January, 2002 and, therefore, the petition should be heard on merits.
6. I had earlier reserved order on this issue as to whether this petition should be dismissed as not maintainable in view of the Full Bench decision of this Court in Rajendra Kumar Mishra (supra) or whether it should be heard on merits in view of the judgment and order dated 9th January, 2002 passed by this Court. The preliminary objection raised by Sri Subodh Kumar learned Counsel or the respondents was rejected for reasons to be stated subsequently.
7. It needs to be mentioned that after the passing of the judgment in Special Appeal on 9th January, 2002 the decision of the Full Bench of this Court in Rajendra Kumar Mishra (supra) was delivered on 5th October. 2004. The Full Bench elaborately dealt with the decision of the Supreme Court in the case of Dinesh Chandra Gahtori (supra) and observed as follows:
5. The petitioner has challenged the Court Martial Proceedings and the sentence dated 15.4.1999 Annexure 3 to the writ petition on various grounds, but in our opinion, this petition is liable to be dismissed on the short ground that the Allahabad High Court does not have jurisdiction in the case and only the Calcutta High Court or Delhi High Court has jurisdiction in this case.
6. Learned Counsel for the petitioner has urged that in view of the Supreme Court decision in Dinesh Chandra Gahtori v. Chief of Army Staff (2001) 2 UPLBEC 1275 a writ petition challenging the impugned sentence can be filed in any High Court in India as the Army Chief has been made a party (respondent No. 2) in this case.
7. He has further urged that since the petitioner is a resident of district Ballia the writ petition can be tiled in the Allahabad High Court as Ballia is in U.P.
8. We have carefully perused the decision in Dinesh Chandra Gahtori's case (supra). The entire judgment of the Supreme Court is as follows:
By the Court - Leave granted.
The notice on the special leave petition stated that die matter might be disposed of at this stage by an order setting aside the order under challenge and restoring the; writ petition to the file on the High Court to be heard and disposed of on merits.
The appellant filed a writ petition before the High Court at Allahabad to quash a communication sent to his - wife which stated that the appellant had been tried by s Summary Court Martial and had been found guilty of using criminal force against his superior officer and awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding, "In view of the fact that the Summary Court Martial proceedings were conducted in the State of Punjab and orders were also passed in Punjab by the West Command, we are of the view that this Court has got no territorial jurisdiction to entertain this writ petition.
The writ petition was filed in 1992. The impugned order was passed in 1999.
This is a fact that the High Court should have taken to have consideration. More importantly, it should have taken into consideration fact that the Chief of Army Staff may be sued anywhere in the country. Placing reliance only on the cause of action, as the High Court did, was not justified.
The appeal is allowed. The order under appeal is set aside, The writ petition (CM WP No. 39209/92) is restored to the file of the High Court to be heard and disposed of on merits expeditiously.
No orders as to costs.
9. In our opinion, the observation in the aforesaid decision "The Chief of Army Staff may be sued in any High Court in the country" cannot be construed to mean that the Supreme Court Has laid down any absolute proposition that it is open to the petitioner to file a writ petition in any High Court in India. Such an absolute proposition as canvassed by the learned Counsel for the petitioner may lead to conflicting decisions because different petitions can be filed in different High Courts by co-accused in the same case and conflicting decisions can be given.
10. It may be noted that the aforesaid observation in the three Judge decision of the Supreme Court in Dinesh Chandra Gahtori's case (supra) is only a laconic observation and it cannot be override large Bench decisions of the Supreme Court.
11. In the present case, it may be noted that the misconduct was committed at Calcutta and the Summary Court Martial was also held at Calcutta. Thus, the entire cause of action arose at Calcutta. We therefore fail to understand how a writ petition can be entertained at Allahabad High Court where no part of the, cause of action had arisen.
12. In our opinion, merely because the petitioner is presently residing in Ballia this will not give jurisdiction to this Court in view of the seven Judge Bench decision of the Supreme Court in Lt. Col. Khajoor Singh v. Union of India ....
....
30. In our opinion, the judgment of the three Judge Bench decision of the Supreme Court in Dinesh Chandra Gahtori's case (supra) cannot prevail over the Constitution Bench decisions of the Supreme Court in K.S. Rashid v. Income Tax Investigation Commission (supra) and Election Commission v. S. Venkata Rao (supra). It is well settled that if there is a conflict between a larger Bench decision of the Supreme Court and a smaller Bench decision then the view of the larger Bench will prevail.
....
39. For the reasons given above, we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located at a place where the cause of action, wholly or in part, arises.
....
41. In the present case, no part of the cause of action has arisen in U.P; Hence, in our opinion, the writ petition is not maintainable in this Court....
8. In the present case, as noticed above, even part of cause of action did not arise within the territorial jurisdiction of this Court as the incident took place in the State of Bihar and the General Court Martial proceedings were also held in the State of Bihar. The petition was, therefore, likely to be dismissed as not maintainable in view of the Full Bench decision of this Court in Rajendra Kumar Mishra (supra) but as the preliminary objection had been rejected by the Special Appeal Bench, this petition has to be heard on merits.
9. I have heard Sri Sudhakar Pandey learned Counsel for the petitioner and Sri Subodh Kumar learned Counsel appearing for the respondents.
10. Learned Counsel for the petitioner submitted that the petitioner had made a request before the General Court Martial that he may be permitted to engage Lt. Col. K.N. Ganeshan as the Defending Officer and for the said, purpose he has submitted an application dated 3rd February, 1982 but his request was not considered and, therefore, the General Court Martial proceedings were contrary to the provisions of Rules 33 and 34 of the Army Rules, 1954. He further submitted that Rules 33(7) and 34 of the Army Rules were also violated; that neither the petitioner was given an opportunity to examine his witnesses and nor any opportunity was given to cross examine, the, witnesses ' of the prosecution; that the General Court Martial did not properly appreciate the evidence given by the parties and that in view of the matter the punishment imposed upon the petitioner was disproportionate to the offence.
11. Sri Subodh Kumar learned Counsel appearing for the respondents, however, submitted that there was no infirmity in the Court Martial proceedings; that adequate opportunity had been given to the petitioner to engage a Defending Officer; that the provisions of Rules 33 and 34 of the Army Rules had been duly complied with and that the contention of the petitioner that the General Court Martial had not properly appreciated the evidence or that the punishment was disproportionate to the offence was incorrect.
12. The first contention of the learned Counsel for the petitioner is that he was not permitted to engage Lt. Col. K.N. Ganeshan as the Defending Officer. This has been stated by the petitioner in paragraph-16 of the petition and in support of his contention the petitioner has placed reliance upon the application dated 3 February, 1982 state to have been tiled by him. In paragraph-20 of the counter affidavit filed on behalf of the respondents, these facts have been specifically denied. It has been stated that the application dated 3rii February, 1982 had never been filed by the petitioner and the records indicate that, in fact, the petitioner had asked for appointment of Major Beg as his Defending Officer but this request could not be accepted as he was a witness to be produced by the prosecution. Subsequently, Major Seva Singh was appointed, as his Defending Officer during the trial and the petitioner never objected to this appointment.
13. In view of the specific case taken by the respondents in the counter affidavit, I am not inclined to accept the version of the petitioner that he had made any request for appointment of Lt. Col. K.N. Ganeshan as the Defending Officer. This apart, the petitioner has annexed as Annexure 6-B, the proceedings before the General Court Martial. The same reveals that question No. 5 had been put to the accused to which he gave a reply and the same are as follows:
Question 5. Do you wish to apply for an adjournment on the ground that any of the rules relating to procedure before trial have not been complied with and that you have been prejudiced thereby on the ground that you have not had sufficient opportunity for preparing your defence:
Answer 5. The Defending Officer has arrived only last evening. I did not get sufficient time and opportunity for briefing him in the preparation of my defence. I, therefore, request that 1 may kindly be granted one day's time to enable me to brief the Defending Officer for proper preparation of my defence.
14. This clearly shows that not only the petitioner had not raised any objection regarding the appointment of the Defending Officer but also that Tie did not object that any of the Rules relating to procedure before the trial had not been complied with. The records indicate that the adjournment sought for by the petitioner was accepted and the Court adjourned the matter to 23rd February, 1982.
15. The second contention of the learned Counsel for the petitioner is that Rules 33(7) and 34 of the Army Rules had not been complied with. This fact has also been denied in paragraph 7 of the counter affidavit and it has been stated that the witnesses had given their statements in Hindi, which language the petitioner understands and that the statements were not only given in the presence of the petitioner but he was also given an opportunity to cross-examine the witnesses and he had, in fact, also cross examined the witnesses. The statements were, however, translated in English while recording the same view of the Rule 23(4) of the Army Rules. The petitioner had not raised any objection before the Court Martial that Lt. Col. S.N. Haldar did not assist the petitioner by translating the summary of evidence in Hindi. It has also been stated that there was no violation of Rules 33(7) or 34 of the Army Rules and that the petitioner had been given a copy o( the charge sheet and summary of evidence on 14th February, 1982 while the General Court Martial had assembled on 22lul February, 1982 after more than 96 hours. The petitioner has filed a rejoinder affidavit and in paragraph-7 of the rejoinder affidavit it has been stated that the statement of concerned witnesses were not" recorded and nor opportunity was given to the petitioner to produce his witnesses. It has also been stated that even the charge-sheet was not served upon the petitioner.
16. The statements made by the petitioner are factually incorrect inasmuch as the petitioner himself has annexed Annexure 1 to the writ petition a copy of the letter dated 14th February, 1982 sent to him enclosing the copy of the summary of evidence running into 13 sheets and a copy of the charge-sheet running into 1 sheet. The petitioner has also annexed a copy of the statement of the 4Ih witness for the prosecution Major N.K. Bhatia and the same shows that he was also cross-examined by the Defending Officer. Likewise, the other witnesses have also been cross-examined as is clear from the statements which have been annexed by the petitioner in the writ petition. The petitioner has also annexed as Annexure-1-B of the writ petition a letter sent to him by Lt. Col. S.S. Sarkar mentioning therein that the General Court Martial will commence from 22nd February, 1982. The letter also indicates the constitution of the Court and also mentions that the petitioner could submit the name of those witnesses he desired to call in his defence. In this view of the matter, this contention raised by the learned Counsel for the petitioner cannot also be accepted.
17. It also needs to be mentioned that the petitioner had not pointed out what prejudice, if any, had been caused to him. In. this connection it may be relevant to refer to the decision of the Supreme Court in Union of India and Ors. v. Major A. Hussain wherein the Supreme Court observed:
though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to 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 m accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings 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 specialized 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 court-martial 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 investigation 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 Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment.
18. The petitioner has not stated what prejudice had been caused to him and thus also, in view of the aforesaid decision of the Supreme Court this contention the learned Counsel for the petitioner cannot also be accepted.
19. The next contention of the learned Counsel for the petitioner is that the General Court Martial did not properly appreciate the evidence on record and in this connection he submitted that as there was no evidence on the record to indicate that the petitioner had actually beaten Subedar SKT(I) Philipose, the, punishment could not have been imposed upon him.
20. The adequacy or reliability of the evidence is not a matter, which can be permitted to be canvassed before the Court in writ proceedings as the High Court does not act as an appellate authority. This is what has been repeatedly held by the Supreme Court. In the case of High Court of Judicature at Bombay through its Registrar v. Shri Udaysingh s/o Garipatrao Naik Nimbalkar and Ors. the Supreme Court observed:
...In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would (sic) come to its own conclusion on the proof of the charge, The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi v. Union of India , State of Tamil Nadu v. T.V. Venugopalan , Union of India v. Upendra Singh , Government of Tamil Nadu v. A. Rajapandian and B.C. Chaturvedi v. Union of India at pp. 759-60.
21. The Supreme Court in Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. observed:
Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances the question-of examining the evidence; as was done, by the High Court, as a first appellate court, is wholly illegal and cannot be sustained.
22. In R.S. Saini v. State of Punjab , the Supreme Court observed:
Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the Rile that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to-be canvassed before the court in writ proceedings.
A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with die findings of the High Court in this regard.
23. In the case of Lalit Popli v. Canara Bank and Ors the Supreme Court observed:
While exercising jurisdiction, under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles, of natural justice-Judicial review is not akin to adjudication of the case on merits as an appellate authority.
24. The proceedings of the General Court Martial indicates that a number of witnesses had been examined on behalf of the prosecution including Major N.K. Bhatia, Havaldar K.N. Thombre, Subedar SKT(I) Philipose, Major M.S. Begh and Havaldar S.C. Charan. They clearly described as to how the incident took place and what happened after the incident. The petitioner also cross-examined them. The petitioner also gave his statement mentioning therein that he had been falsely implicated as he has reported against him Subedar SKT(I) Philipose to Major M.S. Beg for tress-passing through the fencing which was strictly prohibited.
25. In my opinion, it was for the General Court Martial to have arrived at a finding on the basis of the evidence. Learned Counsel for the petitioner has not pointed out any infirmity in the statement of the witnesses or the cross-examination of the witnesses which could have persuaded the Court to come to a different conclusion that the petitioner had not committed the offence. As seen above, the Supreme Court has repeatedly emphasized that the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in the writ proceedings and while exercising the powers of judicial review under Article 226 of the Constitution of India, the Writ Court cannot adjudicate the case on merit as an Appellate Authority. Such being the position, it is not possible to accept the contention of the learned-counsel for the petitioner that the General Court Martial did not properly appreciate the evidence.
26. Learned Counsel for the petitioner then contended that the punishment imposed upon the petitioner was disproportionate as the only charge against the petitioner was that he had caused grievous hurt to Subedar SKT(I) J.C. Philipose of the same Unit by fracturing his left arm with a stick and in support of his contention he has placed reliance upon the case of Ranjit Thakur v. Union of India AIR 1987 SC 2586.
27. The scope of interference by Courts with the quantum of punishment has been the subject matter of a number of decisions and it has been repeatedly emphasised that interference cannot be done in a routine manner and that the principles relating to judicial review of administrative action-have necessarily to be examined.
28. The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 Ail Eli 680 (CA) is considered to be the, landmark in so far as the basic principles relating to judicial review of administrative or statutory discretion tire concerned. A passage from the judgment of Lord Greene is important and is quoted:
It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted' with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what lie has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority.... In another, it is taking into consideration extraneous matters. It is unreasonable that it mi gin almost be described as being done in bad faith; and in fact, all these things run into one another.
(emphasis supplied)
29. The principles Judicial review of administrative action were further summarized by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service 1984 (3) Al. ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. It was observed in this case of follows:
...Judicial review has I think, developed to a stage today when, without reiterating, any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial, review. The first ground I would calf 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the. future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.
..........
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
(emphasis supplied)
8.In Union of India and Anr. v. G. Ganayutham the Supreme Court after referring 1to the aforesaid Wednesbury case and CCSU case held:
We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of-administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only "go" into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority; the court/tribunal cannot substitute its view as to what is reasonable.
............
In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according " to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for. reconsideration. It is only in. very rare cases as pointed out in B.C. Chaturvedi case that the Court might - to shorten litigation - think of substituting its own view as to the quantum of punishment in tire place of the punishment awarded by the competent authority.
(emphasis supplied)
30. In B.C. Chaturvedi V. Union of India and Ors. , which has been referred to in the aforesaid decision in G. Ganayutham (supra), the Supreme Court after referring to a number of its earlier decisions observed as under:
A review of the above legal position would establish that 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 ifs own conclusion on penalty and impose some other penalty. If the punishment imposed 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.
(emphasis supplied).
31. In Apparel Export Promotion Council v. A.K. Chopra , the Supreme Court again observed:
...Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
32. The matter relating to quantum of punishment was also elaborately considered by the Supreme Court in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386 and it was observed:
But where an administrative action: is. challenged as "arbitrary" under Article 14 on the basis of Royappa (1994) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is, "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally of has omitted relevant factors from, consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council Venkatachaliah, J, (as he then was) pointed out that "reasonableness": of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India (1994) 6 SCC 651, Indian Express Newspapers Bombay (P) Ltd. v. Union of India (1935) 1 SCC 641, Supreme Court Employees' Welfare Assn. v. Union of India ( arid U.P. Financial Corporatio v. Gem Cap (India)(P) Ltd. while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.
Thus, when administrative action is attached as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14, the principle of secondary review based on Wednesbury principles applies.
(emphasis supplied).
33. Proportionality was also explained by observing:
By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what, is meant by proportionality.
34. The decision of the Supreme Court in Ranit Thakur (supra) was considered in Union of India and Ors. v. R.K. Sharma . It was observed that it was a case where there was a bias on the part of the Commanding Officer. The charge was that he had did not eat his food when it was ordered by JC Subedar Ram Singh and on such charge one year rigorous imprisonment has been imposed upon him and he was also dismissed from service. The Supreme Court, therefore, observed:
In our view, the observation in Ranjit Thakur v. Union of India , 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. While he was serving the sentence he was served with another charge-sheet which read as follows:
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 disproportionate that it called for interference. The above observations are no 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 consider the punishment to be disproportionate. It is only in extreme cases, which on their lace show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a court should not interfere.
35. In Mithilesh Singh v. Union of India and Ors. , the Supreme Court observed:
The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made to a few of them. (BC Chaturvedi v. Union of India , State of U.P. v. Ashok Kumar Singh , Union of India v. G. Ganayutham , Union of India v. J.R. Dhiman and Om Kumar v. Union of India (2001) 2 SCC 386 L 2001 SCC (L&S) 1039.
36. A perusal of the aforesaid judgments clearly shows that the Court has a very limited power of examining the quantum of punishment. It is the disciplinary authority which has the exclusive power to consider the evidence and impose the appropriate punishment and the High Court should not normally substitute its own conclusion on penalty arid impose some other penalty. It is only when the punishment imposed by the disciplinary authority shocks the conscience of the High Court that it should appropriately mould the relief.
37. In the present case, the charge against the petitioner is very serious that he had caused grievous hurt to Subedar SKT (I) J.C. Philipose of the same Unit by fracturing his left forearm with a stick. Discipline in Army has to be maintained at all cost. The scope of interference is very limited and unless the punishment appears to be shockingly disproportionate, the Court should not interfere with the same. I, therefore, do not find any merit in the contention advanced by the learned Counsel the petitioner that the punishment awarded to him is disproportionate to the gravity of the offence.
38. Thus for the reasons stated above, there is no merit in this petition. It is, accordingly, dismissed.