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2002 DIGILAW 175 (DEL)

S. K. SHARMA M. HAV. (AEC) v. UNION OF INDIA

2002-02-07

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL ( 1 ) THE petitioner is aggrieved by his dismissal from service in pursuance to the finding and sentence of a summary court martial dated 4. 3. 1996. ( 2 ). The charge against the petitioner related to making accusations against his Commanding officer for failure to take action on his application for railway warrant and regarding allotment of accommodation knowing fully well that such accusations were false. The petitioner, in his petition dated 1. 6. 1995, addicssed to the GOC-in-C, Eastern Command had complained that Lt. Col. K. L. Yadav did not take action on his application for railway warrant dated 18. 5. 1995 by the camp office on 25. 5. 1995. It is stated in the charge-sheet that the petitioner made this false accusation fully knowing the same to be false. The petitioner was further charged with act prejudicial to good order and military discipline by making correspondence to higher officials on service matters without proceeding through authorised channels. It may be stated that the petitioner had put in more than 11 years of service in the rank of Havildar as Education Instructor prior to the decision taken sentencing him to be dismissed from service. ( 3 ). The petitioner belonged to 20 Mountain Division and was attached to 1842 Light regiment on 9. 11. 1995 for disciplinary proceedings. Initially recommendations were made for petitioner s trial by the District Court Martial in January, 1996 by the Commanding Officer but the convening order was issued on 22. 2. 1996 whereby it was decided that the petitioner would be tried by summary court martial. After the summary court martial the petitioner was found guilty of charges and was dismissed from service. ( 4 ). Ms. Rekha Palli, learned counsel for the petitioner, has assailed the trial of the petitioner by summary court martial taking into consideration the fact that initial recommendation was made for the petitioner s trial by District Court Martial. It was contended by the learned counsel that the decision to try the petitioner by summary court martial after a period of 3-1/2 months of his attachment for trial by district court martial has deprived the petitioner of valuable rights of defence. It was contended by the learned counsel that the decision to try the petitioner by summary court martial after a period of 3-1/2 months of his attachment for trial by district court martial has deprived the petitioner of valuable rights of defence. It is alleged that the petitioner was denied leave to prepare legal advice and relevant material and once the petitioner was attached to another unit for disciplinary proceedings there was no urgency to justify the petitioner to be tried by summary court martial. Ms. Rekha Palli, learned counsel for the petitioner, relied upon the judgment of learned Single Judge of this court in Ex-Havildar Mahipal Singh Vs. Union of India and Ors. 55 (1994) DLT 176 to advance her proposition that the said summary court martial could not have been conducted by the Commanding Officer of 1842, Light Regiment since the petitioner belonged to 20, Mountain Division. Learned Single Judge had held that the commanding Officer of an outside unit to which the petitioner did not belong had no jurisdiction to hold a summary court martial. The learned Single Judge observed as under :- "7. Section 116 of the Act deals with Summary Court martial and the same is reproduced as follows:- 116. Summary Court-martial- (1) A Summary Court-martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the Court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either and who shall not as such be sworn or affirmed. Note 5, which is appended to the Section in the publication, manual of Military Law , issued by Government of India, Ministry of Defence, reads as follows: "5. See Regulations Army para 381 for the circumstances under which a CO of a different unit may hold the trial by SCM of a person subject to AA. " ( 5 ). It is accordingly, contended that the petitioner was transferred to another Unit for the purpose of trial by SCM which was neither permissible under Section 116 nor by Note 5, as referred above. The only exception, which is made by Note 5, is with regard to trial of deserters, as stated in paragraph 381 of the Army Regulations. It is accordingly, contended that the petitioner was transferred to another Unit for the purpose of trial by SCM which was neither permissible under Section 116 nor by Note 5, as referred above. The only exception, which is made by Note 5, is with regard to trial of deserters, as stated in paragraph 381 of the Army Regulations. It is admitted that the petitioner was tried by the Commanding Officer of ZRO with whom he was placed on temporary duty. Section 120 (3) of the Act also provides that a Summary Court-martial may try any person subject to this Act and under the command of the officer holding the Court, except an officer, junior commissioned officer or warrant officer . The explanation to this sub- clause is given in Note 5 appended to the Section, which reads as follows:- "5. A NCO or a sepoy cannot be attached to another unit for the purpose of trial by scm except as provided in Regulations Army para 381. " the petitioner ought to have been tried by the CO of his own Unit No. 27ad regiment, as required by law and the Summary Court-martial of the petitioner for the alleged offences is, therefore, without jurisdiction. "9. I have, therefore, no hesitation in holding that the Summary Court-martial as conducted by CO of an outside Unit to which the petitioner did not belong, and therefore, had no jurisdiction to proceed in the matter and the trial is, accordingly, vitiated. Note 5 as appended to Section 120 further reiterates that a NCO or a Sepoy cannot be attached to another unit for the purpose of trial by SCM except as provided in Army Regulations, para 381. ( 6 ). Learned counsel for the petitioner, thus contended that in view of the aforesaid interpretation of section 116 of the Army Act ( for short the said Act) and of Note 5 of the manual on Military Law the only exception when a summary court martial may be held by commanding Officer of a different unit is with regard to the trial of a deserter and admittedly the petitioner was not a deserter. ( 7 ). ( 7 ). Learned counsel also referred to the observations in Ex-Havildar Mahipal Singh s case (supra) in para 10 of the judgment to the effect that the reading of sub-section 2 of section 120 of the Act clearly indicates that when there is no grave reason for immediate action and reference can without detriment to the discipline, be made to the officer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged offender, an officer holding a summary court martial shall not try without such reference any offence punishable under any of the section 34, 37 and 69 or any offence against the officer holding the court. ( 8 ). Section 120 of the Act is as under: "120. Powers of summary Court-martial- Subject to the provisions of Sub-section (2), a summary Court-martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district Court- martial or on active service a summary general Court-martial for the trial of the alleged offender an officer holding a summary Court-martial shall not try without such reference any offence punishable under any of the Sections 34,37 and 69, or any offence against the officer holding the Court. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 9 ). Mr. Rajiv Aneja, learned counsel for the respondent, on the other hand, has contended that the grievance made by the petitioner in this behalf is without any basis since the petitioner was tried by the summary court martial on 3 charges - 2 charges under section 56 (a) and 1 charge under section 63 of the Act and thus sub section (2) of Section 120 of the act would have no application. It is further stated that the petitioner participated in the trial without raising any objections and after pleading not guilty to the charges was permitted extensive cross-examination of the witnesses. It is further stated that the petitioner participated in the trial without raising any objections and after pleading not guilty to the charges was permitted extensive cross-examination of the witnesses. It is further stated that the petitioner had levelled allegations against his own Commanding Officer and in order to afford a fair trial was attached to a different unit under the Army order 89/81 of the Army Act. It is further contended that the provisions of sub-section 2 of Section 20 of the said Act does not debar in any manner from holding of trial for offences under section 56 (a) and 63 and thus would have no application. It was contended that the Commanding Officer had referred the case to the Superior Military Authority in compliance of Rule 24 of the Army Rules before proceeding with the trial and the superior military authority in its wisdom directed the trial by summary court martial. ( 10 ). Learned counsel for the respondent has relied upon the judgment of the Division bench of this court in Ex. Sepoy Vijay Kumar Sr. Vs. Union of India and Ors in LPA 34/2000 decided on 13. 9. 2001 to contend that holding of summary court martial in such a situation is not prohibited. ( 11 ). There is no doubt that in view of the allegations having been made by the petitioner against his own Commanding Officer, the decision of the respondents to attach the petitioner to a different unit cannot be faulted. The proceeding before the summary court martial also shows that the petitioner was granted opportunity to cross-examine the witness, in view of the offence charged, there would also be no question of application of Section 120 (2) of the Act. The question however, remains whether the petitioner having been once attached to a different unit other than his own, summary court martial proceedings could or could not take place after such attachment. The question is not to doubt the bonafides of the attachment to the other unit since the same was rightly done. In Ex. Havildar Mahipal Singh s case (supra), the learned Single Judge has considered the scope and ambit of a summary court martial under section 116 of the Act and has categorically held that the summary court martial cannot take place by transfer of the petitioner to another unit for purposes of trial. In Ex. Havildar Mahipal Singh s case (supra), the learned Single Judge has considered the scope and ambit of a summary court martial under section 116 of the Act and has categorically held that the summary court martial cannot take place by transfer of the petitioner to another unit for purposes of trial. The only exception made out vide Note 5 of the Manual of Military Law would not apply to the case of the petitioner since the petitioner was admittedly not a deserter. It has also to be kept in mind that in fact the Commanding Officer had recommended a District Court Martial but the superior Military Authority, in their wisdom, directed holding of a summary court martial. It cannot be doubted that the superior authority does have a right to direct summary court martial as stated in judgment in Ex-Sepoy Vijay Kumar s case (supra ). The controversy has arisen in the present case by reason of the fact that as a consequence of the direction to hold a summary court martial the same had to be held by a Commanding Officer other than the Commanding Officer of Regiment to which the petitioner was attached where he is alleged to have committed the offence for which he was allegedly charged. The letter dated 8. 2. 1996 (Annexure R ) further makes it clear that the petitioner was attached to 1842 Light regiment only for discipline purposes. In view of the aforesaid I am of the considered view that the ratio of Ex. Havildar Mahipal Singh s case (supra) would squarely apply to the facts of the present case and in view of the fact that summary court martial has been held by a commanding Officer of another unit, the same cannot be sustained in law. ( 12 ). The petitioner has also made a grievance that the convening order dated 22. 2. 1996 by the Competent Authority was without jurisdiction as same was not issued by the competent authority in terms of Army Rule 37. It was contended that the said convening order was passed by Major R. V. Alookaran and the same could not have been done in view of the provisions of Rule 37 (3) of the Army Rules. Learned counsel for the petitioner referred to the judgment of the Supreme Court in Union of India Vs. It was contended that the said convening order was passed by Major R. V. Alookaran and the same could not have been done in view of the provisions of Rule 37 (3) of the Army Rules. Learned counsel for the petitioner referred to the judgment of the Supreme Court in Union of India Vs. Harish Chander Goswami JT 1999 (3) sc 324 where it was held that a convening order appointing personnel of court martial signed by Colonel for Lt. Col and not containing signatures or initials of the Lt. General could not be held to nave satisfied the requirements of Rule 37 and thus could not be sustained in law. It was further held that unless there is record to show that the appointment of the personnel of the court martial was by the Lt. General, Rule 37 would not be fully satisfied. ( 13 ). Rule 37 (3) of the Army Rules is as under;- "37 (3) The officer convening a court-martial shall appoint or detail the officers to form the court and, may also appoint, or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court. " ( 14 ). The aforesaid objection really flows from the contention that the officer convening the court martial should appoint the officers to form the court. The order dated 22. 2. 1996 has been issued by Col. A K Gadre, the Commanding Officer but has been signed by Major R. V. Alookaran. There is thus force in submissions of learned counsel for the petitioner that in view of the judgment of the Supreme Court in Harish Chander Goswami s case (supra) and in the absence of any record showing the decision having been taken by the Commanding officer, the convening of the court martial is not sustainable in law. ( 15 ). The last grievance by the petitioner is in respect of the quantum of sentence. ( 15 ). The last grievance by the petitioner is in respect of the quantum of sentence. It is contended by learned counsel for the petitioner that the punishment is harsh and disproportionate as the charges only relate to petitioner having made complaints regarding non-allotment of accommodation by his Commanding Officer regarding non-processing of his application for railway warrants but the petitioner has been sentenced with gravest punishment and proper discretion has not been exercised under section 71 and 72 of the said Act. The petitioner referred to the DB judgment of this court in Union of India and Ors. Vs. B. R. Sharma 2002 (1) Forces Law Journal 53 where the Division Bench rejected the contention advanced on behalf of Union of India that in writ jurisdiction the court was not competent to examine the quantum of punishment. It was held that by now it is well settled law that the writ court enjoys equitable jurisdiction and was competent not only to look into the disproportionate-ness of punishment awarded to the delinquent employee but to do away with it where it was found disproportionate to charge resulting in mis-carriage of justice. ( 16 ). Learned counsel for the petitioner also referred to the judgment of the learned Single judge of this court in Parimal Singh Vs. Union of India and Ors. 2001 IV AD (Delhi) 679 holding that judicial review was called for where exercise of discretion is perverse or lacking substance and the same would apply in case of disproportionate punishment. Learned counsel also referred to the decision of the Supreme Court in Ranjit Thakur Vs. Union of india and Ors. (1987) 4 SCC 611 where while dealing with the issue of quantum of sentence it was held as under:- "25. 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 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. In Council of Civil Service Unions V. Minister for the Civil Service Lord Diplock said: ( 17 ). 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 call 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 recognised in the administrative law of several of our fellow members of the European Economic Community;. . . 26. In Bhagat Ram Vs. State of Himachal Pradesh this Court held. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. 27. In the present case the punishment strikingly disproportionate a to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. " ( 18 ). Learned counsel for the respondent, on the other hand, has contended that the sentence awarded to the petitioner is commensurate with the gravity of offence and in view of the fact that the petitioner has been previously convicted twice his past record does not warrant any interference. " ( 18 ). Learned counsel for the respondent, on the other hand, has contended that the sentence awarded to the petitioner is commensurate with the gravity of offence and in view of the fact that the petitioner has been previously convicted twice his past record does not warrant any interference. ( 19 ). Having heard learned counsel for the parties I am of the considered view that taking into consideration nature of allegations the punishment is undoubtedly disproportionate to an extent calling for an interference by this court. The petitioner has been dismissed from service after putting in more than 11 years of service. The nature of allegations relate to making false complaints regarding non-allotment of the accommodation by the Commanding officer and processing of the application of the petitioner for railway warrants. Even allegations made against the Commanding Officer are really not of a serious nature. As held in B. R. Sharma s case (supra), Parimal s case (supra) and Ranjit Thakur s case (supra) in such a case of disproportionate punishment the writ court under Article 226 of the Constitution of India would rightly intervene. In fact the Supreme Court very succinctly set out that a sentence has to suit the offence and the offender and should not be vindictive or unduly harsh. The punishment in the present case is so disproportionate to the offences as to shock the conscience of the court to intervene under Article 226 of the Constitution of India. Thus on the account of disproportionate punishment also the impugned orders are bad in law. ( 20 ). The result of the aforesaid is that the proceedings of the summary court martial and the findings and sentence dated 4. 3. 1996 are without jurisdiction and the punishment is excessive and disproportionate to the offences and is thus quashed. The Rule is made absolute. ( 21 ). It is clarified that this decision will not preclude the respondents from holding a court martial in accordance with law and to consider appropriate sentence in case the said court martial holds that the charges against the petitioner are proved. The parties are left to bear their own costs. ( 22 ). These applications dealing with interim reliefs and directions do not survive for consideration in view of the disposal of the main writ petition and are dismissed as infructuous.