IMPORTANT POINT
Ordinerily a court, which execrusing powers under Articles 226,227 and /or under 32 cannot interfere with the punishment, if charges are proved, on ground that it considers the punishment to be disproportionate.

Headnote:Army Act, 1950-Sections 45, 57, 63, 65, 71 and 72-Court Martial of respondent, Deputy Commandant of Assam Rifles of four charges under Setions 45, 57, 63 and 65-Charges proved-Court Martial awarded him penalty of dismissal under Section 71(e)-High Court holding charges are proved but remaded the case for passing a lesser sentence invoking Section 72 and principle that punishment should commensurate to guilt-Whether correct? (No)-Appeal allowed-Case law discussed-(Constitution of India -Articles 226, 227, 32 and 136) (Army Rules, 1954-Rules 22, 23 and 24).
       Held (relying on 1998(1) SCC 537) : As stated above, both the single Judge us 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. (Para 13)
       Held (explaining 1987(4) SCC 61) : 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 canbe judiciate 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 violated. 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. (Paras 14, 15 & 16)
       Held finally : Under these circumstances, we set aside the Order passed by the learned single judge as well as the impugned Order. The Writ petition filed by the Respondent shall stand dismissed. There will be no Order as to costs. (Para 21)

JUDGMENT

S. N. Variava, J.-Leave granted.

2. Heard parties.

3. 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.

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 a charge-sheet. Thereafter a General Court Martial was held and the Respondent as 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 under 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 H.P.1 for proposition that the penalty must be commensurate with the gravity of mis-conduct 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.

7. The Division Bench also relied upon the following observations in the case of Ranjit Thakur v. Union of India2 :

"Judicial review generally speaking, is not directed again a decision, but is directed against the "decision making process". The question of choice and quantum of punishment is with 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 he 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 criminal 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.

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

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2001 Supreme(SC) 1401

IMPORTANT POINTOrdinerily a court, which execrusing powers under Articles 226,227 and /or under 32 cannot interfere with the punishment, if charges are proved, on ground that it considers the punishment to be disproportionate.

Cases Referred (3)

IMPORTANT POINT
Ordinerily a court, which execrusing powers under Articles 226,227 and /or under 32 cannot interfere with the punishment, if charges are proved, on ground that it considers the punishment to be disproportionate.