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2002 DIGILAW 735 (RAJ)

Gokul Ram v. Union of India

2002-04-08

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Articles 226 & 227 of the Constitution of India has been filed by the petitioner against the respondents on 22-3-83. Thereafter amended writ was filed on 20-6-83 with a prayer that the findings dated 30-11-1982 and 22-12-1982 given by the respondent No. 4 and the order dated 15-1-83 passed by the respondent No. 2 i.e. the order of confirming authority given by respondent No. 2 be quashed and the petitioner be reinstated on the rank of Corporal with continuity of service and with full back wages and Annex. R/1 dated 14-6-1983 be quashed. 2. It arises in the following circumstances : (i) The petitioner was serving as Corporal having number 242643 as Medical Assistant in No. 10 Sqn. Air Force attached to No. 32 Wing, Air Force at Jodhpur and had served for more than 11 years. (ii) The petitioner was served with a charge-sheet dated 5-11-1982 with the summary of evidence recorded under Rule 24 of the Air Force Rules, 1969 (hereinafter referred to as the Rules of 1969). (iii) The respondent No. 2 appointed following officers as Members of the District Court Martial and the Senior Officer was nominated as Presiding Officer : (1) Wing Commander S. K. Verma (7821) (2) Sqn. Leader V.R. Deshpande (8492) (3) Sqn. Leader Ajit Singh (9049) (iv) The respondent No. 2 appointed Wing Commander S. S. Saxena (7512) as Prosecutor and Sqn. Leader K.S. Bhati (11254) as Judge Advocate. 3. The petitioner faced two charges which are as follows : (i) He, at Jodhpur, on 27th May, 1982 caused hurt to 241025 Sgt. Sirpaul SD Med./Asst. of No. 32 Wing, Air Force by hitting him on his head with a stick. (ii) He, at Jodhpur on 17 Aug. 82, obtained for himself an amount of Rs. 1000/- (Rupees one thousand only) from Shri Modu Ram S/o Shri Pusha Ram for the purpose of procuring the enrolment of the said Shri Modu Ram in the Air Force. 4. The Enquiry Officer after recording evidence and after trial came to the conclusion that the petitioner was found guilty of first charge, but was not found guilty of second charge and on 22-12-82 Wing Commander S. K. Verma, Presiding Officer and K. S. Bhati, Sqn. Leader, Judge Advocate passed sentence on first charge in the following manner : (a) To suffer rigorous imprisonment for one year. Leader, Judge Advocate passed sentence on first charge in the following manner : (a) To suffer rigorous imprisonment for one year. (b) To be dismissed from the service. 5. The findings of punishment and sentence imposed on the petitioner were further affirmed by the Vice Martial. 6. In the writ petition, various submissions have been raised by the learned counsel for the petitioner, but the main submission which has been raised at Bar before this Court is that the case be remanded back on point of sentence as the sentence, according to the learned counsel for the petitioner is excessive one and is not in accordance with law and furthermore, mitigating circumstances were not considered by the Judges who imposed the sentence on the petitioner. Hence, it has been prayed that this writ petition may be allowed and on point of sentence, the case may be remanded back. 7. To the writ petition, a reply was filed by the respondents on 7-6-83 and the main submission raised by the learned counsel for the respondents is that this Court cannot act as Court of appeal and will not go into the question of appreciation of evidence and adequacy of evidence for the findings arrived at by the Court Martial. 8. This point is not in dispute as the only prayer made by the learned counsel for the petitioner is about quantum of punishment. 9. On quantum of punishment, it has been alleged by the learned counsel for the respondents that mitigating circumstances were considered by the Judges who imposed sentence, and therefore, no question of review arises or no question arises that the case be remanded back on the point of sentence. It has further been argued that the scope of judicial review of the orders passed by the Court Martial by this Court is very limited and thus from this point of view also, sentence awarded to the petitioner should not be reviewed. Hence the present writ petition be dismissed. 10. I have heard both the parties and perused the record. 11. The Hon'ble Supreme Court in the case of Ranjit Thakur v. Union of India reported in AIR 1987 SC 2386 has held that (para 9) : "Re. Hence the present writ petition be dismissed. 10. I have heard both the parties and perused the record. 11. The Hon'ble Supreme Court in the case of Ranjit Thakur v. Union of India reported in AIR 1987 SC 2386 has held that (para 9) : "Re. Contention (d) 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 vindicative 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, (1984) 3 WLR 1174 (HL) Lord Diplock said : ".......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 upon 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.......: In Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 (at p. 460) 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." 12. Keeping the law laid down in the above case in mind, now it is to be seen whether the punishment awarded to the petitioner for charge No. 1 in the present case can be regarded or termed as disproportionate as to call for and justify interference or not. 13. At page 264, it appears that on the point of sentence, the accused petitioner submitted written plea of mitigation of punishment and the same was read and marked as exhibit by the Judges and after considering it, punishment was awarded to the petitioner. 14. On sentence, Rule 74 of the Rules of 1969 may be reproduced here : "74. Sentence:- The Court shall award one sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge in respect of which it can be given and not to be awarded in respect of any offence in a charge in respect of which it cannot be given.". 15. Similarly Rules 75 and 76 of the Rules of 1969 which deal with recommendation to mercy are reproduced hereunder : "75. Recommendation to mercy:- (1) If the Court makes a recommendation to mercy, it shall give its reasons for its recommendation. (2) The number of opinions by which a recommendation to mercy mentioned in this rule or any question relative thereto, is adopted or rejected, may be entered in the proceedings." "76. Announcement of sentence and signing and transmission of proceedings :- (1) the sentence together with any recommendation to mercy and the reasons for any such recommendation shall be announced in open Court as subject to confirmation. (2) Upon the Court awarding the sentence, the Presiding Officer shall date and sign the sentence and such signature shall authenticate the whole of the proceedings and the proceedings upon being signed by the Judge advocate, if any, shall at once be transmitted for confirmation". 16. (2) Upon the Court awarding the sentence, the Presiding Officer shall date and sign the sentence and such signature shall authenticate the whole of the proceedings and the proceedings upon being signed by the Judge advocate, if any, shall at once be transmitted for confirmation". 16. Thus, from perusing the above Rules, it is crystal clear that while awarding sentence, if the Presiding Officer feels that it is a fit case for making recommendation to mercy, it shall give reasons for recommendation otherwise nothing has to be done and in the present case, it is evident that the plea of mitigation was considered by the Judges who passed the sentence and, therefore, it cannot be said that mitigating circumstances were not considered by the Judges who imposed the sentence on the petitioner. 17. Thus looking to the scope of judicial review in the present case, it cannot be said that the sentence awarded to the petitioner suffers from perversity or irrationality and cannot be regarded as disproportionate to the gravity of misconduct or charge proved against the petitioner. Therefore, it cannot be said that the order of sentence is contrary to any of the rules of 1969. 18. When this being the position, no interference is called for and this writ petition is liable to be dismissed.For the reasons mentioned above, the present writ petition fails and is hereby dismissed. Cost made easy.Petition dismissed. *******