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2003 DIGILAW 647 (BOM)

Shivaji Bhimrao Sapate v. Union of India & others

2003-07-01

A.B.NAIK, V.G.MUNSHI

body2003
JUDGMENT - NAIK A.B., J.:-The petitioner by this petition is claiming following prayers: "B) Quash and set aside the order of dismissal dated 14-2-1994 and the orders dated 10-3-1994 and for that purpose pass necessary orders; C) Issue a writ of mandamus, order on direction in the nature of mandamus directing the respondents Nos. 1 to 3 to reinstate the petitioner in service and/or give him all the pensionary benefits according to the law as if the petitioner has retired w.e.f. 26-7-95 in regular course, and for that purpose issue necessary orders." 2. Originally the petition was filed as crimianl writ petition and which was numbered as Criminal Writ Petition No. 247 of 1995. With the leave of the Court dated 27th September, 1995 the criminal writ petition was permitted to convert into civil writ petition. Accordingly, the petition was renumbered as W.P. No. 4721 of 95. On 1-3-1996 this Court issued Rule nisi and declined interim relief. The petition was thus listed for final hearing before us. 3. The petition arises out of the following facts : On 27-8-1980 the petitioner joined Indian Army as Sepoy in Bombay Engineering Group No. 105 at Pune. After completion of training the petitioner was taken on regular basis in the army and posted in various places. In the year 1993 the Unit in which the petitioner was working was stationed at Merath in Uttar Pradesh and the said unit was moved in forward area of Jammu District at Nagrota. The incident in question occurred in the evening of 8-2-1994. According to the petitioner he returned to the barrack after completion of 24 hours continuous duty. At that time Subedar Singarasingh came in the barrack in order to obtain signature of Shri Nalawade, the colleague of the petitioner. However, Nalawade, refused to sign on the papers brought by Subedar Sangarasingh. While Sangarasingh was leaving the barrack, it is the contention of the petitioner that it is alleged by Sangarasingh that petitioner uttered some words in Marathi which according to Sangarasingh that the petitioner has abused him in filthy language. On hearing this utterance from the petitioner Sangarasingh returned back and questioned the petitioner and asked to explain what he said in Marathi. At that time it is alleged that Sangarasingh abused him and scuffle took place. On hearing this utterance from the petitioner Sangarasingh returned back and questioned the petitioner and asked to explain what he said in Marathi. At that time it is alleged that Sangarasingh abused him and scuffle took place. On account of scuffle between the petitioner and other colleagues the petitioner was taken to the custody and sent to the Military prison. On 12-2-1994, the petitioner was served with the charge-sheet. The said charge-sheet is placed on record at Exh. A. The petitioner was charged with "Using criminal force to his superior officers in the field while on active service on 8-2-1994, 21.15 hours where he hit Major Subedar (VAJ) Shangara Singh of the same regiment, which constitute of offence under section 40(a) of the Army Act (hereinafter referred to as Army Act). Pursuant to the charge-sheet witnesses were examined and the petitioner was allowed to cross-examine those witnesses. The respondents examined five witnesses and one independent witness Naib Subedar S.G. Jagtap of 402 Fd. Co 105, Engineering Regiment. After this Summary Court Marshal trial the Commanding Officer found the petitioner guilty and passed an order on 14-2-1994 and dismissed the petitioner from service with effect from 15-2-1994. 4. On 20-4-1994 the petitioner filed appeal to the Commanding Officer, Commanding Officer in turn informed the petitioner that appeal shall lay to the Chief of Army Staff and the petitioner should submit the appeal. Accordingly, on 13-7-1994, the petitioner submitted appeal to the Chief of Army Staff who dismissed the said appeal by his order dated 10-3-1995. The petitioner in this petition impugned both these orders contending that the punishment of dismissal from service is harsh one and disproportionate to the charge levelled. It is contended by the petitioner that the petitioner has been singled out and tried for summary Court Marshal. Another colleague of the petitioner Subedar Shri Tonde, who has taken part in this scuffle was not tried, hence the petitioner contended that the action of the authorities being arbitrary and liable to be set aside. It is further contended by the petitioner that the dismissal of appeal by the Chief of Army Staff being illegal, the said appeal is dismissed without recording reason. The petitioner further stated that there was no opportunity given to the petitioner to cross-examine the witnesses. It is further contended by the petitioner that the dismissal of appeal by the Chief of Army Staff being illegal, the said appeal is dismissed without recording reason. The petitioner further stated that there was no opportunity given to the petitioner to cross-examine the witnesses. The petitioner stated that he could not utilise the opportunity to cross-examine the witnesses as he was in Military prison during the Court Martial followed by the Military authorities in conducting summary Court Martial being illegal, arbitrary and violative of Article 14 of the Constitution. The petitioner further stated that the conclusion arrived at by the authorities on merit are totally based on misconception. The petitioner stated that the alleged incident is connected with the abusive language and on that background the punishment so awarded being harsh one. The petitioner further stated that petitioner has a clean record and he has not served with any adverse remark or dealt with any adverse action. The petitioner lastly contended that he was to retire on 26-7-1995 and if he would have been in service, he was entitled for pension but for conviction in summary Court Martial the petitioner is deprived of his right of receiving pension. He contended that another person Shri Tonde, is retained in service for no valid reasons. With these contentions the petitioner challenged the order passed by the authorities. 5. The affidavit-in-reply came to be filed on behalf of the respondents denying all the contentions made in the petition. It is stated by the respondents that Sangarasingh was asked to obtain signature of Subedar Shivaji Nalawade as the protection guard was to proceed to operational area in Rajuri Sector early in the morning on 19-3-1994. Subedar Sangarasingh of the same company was ordered by the company commandant Cap. R.D. Singh to get the signature of Shivaji Nalawade on the authority letter for drawal of ammunition, as the protection guard was to leave early in the morning and for that purpose Sangarasingh was asked to get the signature of Subedar Nalawade, on that night only, in order to take the signature of Subedar Nalawade, Sangarasingh accompanied by one Hawaldar went to the barrack, where Nalawade and petitioner were camping. At that time it was found that Shivaji Nalawade and the petitioner were drunk and seeing this condition Subedar Sangarasingh and Hawaldar were coming out of the barrack. At that time it was found that Shivaji Nalawade and the petitioner were drunk and seeing this condition Subedar Sangarasingh and Hawaldar were coming out of the barrack. When they reached door of the barrack, the petitioner abused in Marathi to both the officers who have come there to obtain signature of Subedar Nalawade. After hearing the abuse Subedar Sangarasingh stopped there and asked the petitioner as to why he abused him. At that time, the petitioner again abused to Sangarasingh. The petitioner and Tonde physically attacked Sangarasingh and knocked down his Pagadi. It is stated in the affidavit that both Tonde and petitioner garbed Sangarasingh and dragged him. At that time the colleagues arrived and separated Sangarasingh from the petitioner and Tonde. It is contended that after this incident summary evidence was recorded in the regiment officers and it was found that the petitioner and Tonde have committed offence under section 40(a) and thereafter, the summary Court Martial was conducted and the petitioner was punished for dismissal of service under section 40(a) of the Act. It is specifically denied by the deponent regarding the contentions raised in the petition by the petitioner that no adverse remarks have been communicated to the petitioner. It is stated that previously the petitioner was punished for three days imprisonment in Military custody by Commanding Officer Depot Battalion Bombay Engineering Group, Kirkee on 3rd September, 1984 under section 39(d)(b) of the Act, 100 days imprisonment in Military Custody by Commanding Officer, 205 Engineer Regiment on 12th April, 1985 under the Act. Therefore, it is contended that at the summary Court Martial trial the petitioner was given full opportunity to cross-examine the witness. The Court Martial came to the conclusion that the petitioner is guilty of charges levelled. It is contended that the punishment awarded on the petitioner by the Military authorities being proper and valid and punishment is awarded after following the procedure prescribed under the Act and the Rules. It is contended that though the petitioner was in Military jail, but at the time of trial he was before the Court Martial, in fact, he cross-examined the prosecution witnesses Nos. 2, 3 and 4 and declined to cross-examine prosecution witness No. 1. Therefore, respondents denied the contention that is raised by the petitioner that he could not cross-examine the witnesses and he was in Military jail. 2, 3 and 4 and declined to cross-examine prosecution witness No. 1. Therefore, respondents denied the contention that is raised by the petitioner that he could not cross-examine the witnesses and he was in Military jail. It is contended that the punishment awarded to the petitioner is just and proper. Therefore, it is contended that the act of the petitioner of using filthy language and assaulting higher officers amounts to an offence under section 40 of the Act, hence he was properly awarded punishment. 6. Shri Gaikwad, instructed by Shir R.N. Dhorde, learned Advocate for the petitioner based his submission on the contentions that are raised in the petition which we have referred to above. The contention that is raised by the learned Advocate for the petitioner that the punishment that is awarded is disproportionate to the charges alleged. He therefore, submitted that this Court can interfere in the order of punishment considering the fact that the petitioner was to retire in the year 1995. Shri Gaikwad, contended that this Court can review the punishment awarded by Military authorities as the judicial review is permissible to review the quantum of punishment. For this proposition the learned Advocate placed reliance on the judgment of the Apex Court in (Ranjeet Thakur v. Union of India)1, reported in A.I.R. 1987 Supreme Court 2386. The learned Advocate further submitted that the Chief of Army Staff has dismissed his appeal without recording any reason for the same. Therefore, he submitted that dismissal of appeal without disclosing reason is thus not in conformity with the sound judicial principles. The learned Advocate further submitted that this Court may reduce sentence or quantum of punishment by modifying the punishment into compulsory retirement and direct the authorities to grant retirement benefits. 7. Shri P.G. Godhamgaonkar, learned Standing Counsel has submitted that Commanding Officer who conducted summary Court Martial considered the evidence and came to the conclusion that the charges are proved. He submitted that in order to prove the charges five witnesses were examined by the respondents and in addition one independent witness was also examined. The Summary Court Martial on considering evidence that is produced by the respondent came to the conclusion that the petitioner has committed an offence as referred to and punishable under section 40 of the Act. He submitted that in order to prove the charges five witnesses were examined by the respondents and in addition one independent witness was also examined. The Summary Court Martial on considering evidence that is produced by the respondent came to the conclusion that the petitioner has committed an offence as referred to and punishable under section 40 of the Act. He submitted that section 40 also provides the punishment to be imposed if offence as alleged is proved as per that provision the person found guilty can be punished for 14 years imprisonment or any other punishment provided under the Act. Dismissal is one of the punishment prescribed, therefore, by using discretion, instead of imposing imprisonment a lesser penalty of dismissing from service is awarded. He submitted that the Court in such situation in a petition under Article 226 of the Constitution of India may consider quantum of punishment. In order to support his submission he relied on two judgments of the Apex Court in (Om Kumar and others v. Union of India)2, reported in 2001(1) Supreme Court Cases 386 and (Union of India and others v. R.K. Sharma)3, reported in A.I.R. 2001 Supreme Court 3053. The learned Standing Counsel submitted that Ranjeet Thakur's case which is relied on by the petitioner has been considered in the later judgment referred to above. The learned Counsel further submitted that it is not necessary for the Appellate Authority to record reasons for dismissing the appeal and for this proposition he relied on the judgment of the Supreme Court in (Som Datt Datta v. Union of India and others)4, reported in A.I.R. 1969 Supreme Court 414 and (S.N. Mukherjee v. Union of India)5, reported in A.I.R. 1990 Supreme Court 1984. 8. Before we deal with rival submissions we now refer to the provisions of the Army Act. It is not disputed before us that the charge-sheet which was issued to the petitioner was under section 40(a) reads thus : 'CHARGE-SHEET The accused, number 1554076 M. Sappar (Lance Naik) Dvr PMT) Sepate Shivaji Bhimrao of 105 Engineer Regiment is charged with : USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER. In that he at field, while on active service on 8th February, 1994 (at approx. 21.15 hours) hit JC 159496 M. Sub. (VAJ) Shangara Singh of the same regiment. In that he at field, while on active service on 8th February, 1994 (at approx. 21.15 hours) hit JC 159496 M. Sub. (VAJ) Shangara Singh of the same regiment. Station Field Sd/- (G.S. PADDA) Date 12 Feb., 94 Colonel Commanding Officer 105 Engineer Regiment." (Taken as it is as per page 10-Exh. A) Section 40 of the Act reads thus : "40. Striking or threatening superior officers.-Any person subject to this Act who commits any of the following offences, that is to say (a) uses criminal force to or assaults his superior officer; or (b) uses threatening language to such officer; or (c) uses insubordinate language to such officer; shall on conviction by Court Martial, if such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as in this Act mentioned : Provided that in the case of an offence specified in Clause (c), the imprisonment shall not exceed five years." Now we will note in brief some of the provisions of the Act. Section 71 deals with the various kinds of punishment to be awarded by the Court Martial . Section 108 deals with kinds of Courts Martial and it is not disputed before us that the summary Courts Martial be constituted in accordance with section 108(d) of the Act. Section 116 provides for a summary Court Martial. Section 120 deals with the powers of the summary Courts Martial. Chapter 11 deals with the procedure of Court Martial. The learned Counsel for the petitioner submitted that the petitioner has not taken any objection as contemplated under section 130 of the Act. Section 164 deals with the remedy against the order of sentence of Court Martial. We have referred these provisions in brief as the learned Advocate for the petitioner has submitted before us that procedure as contemplated under the Act is not followed. Section 164 deals with the remedy against the order of sentence of Court Martial. We have referred these provisions in brief as the learned Advocate for the petitioner has submitted before us that procedure as contemplated under the Act is not followed. Considering the reply filed by the respondents and the documents annexed to the petition by the petitioner are of the view that the submissions made by the learned Advocate for the petitioner that the procedure under the Act is not followed without any substance. The petitioner was validly charged and he was tried by the summary Court Martial which was constituted as per the Act. The procedure prescribed have been followed. The punishments which are provided under the Act and in particular as contemplated under section 40 read with section 71 of the Act, the petitioner was awarded punishment properly. The punishment so awarded was by summary Court Martial, considered by the Vice Chief of the Army Staff under section 164(2) and in our view considering the provisions of the Act and the documents annexed to the petition, we are of the view that the discretion used by the summary Court Martial in imposing punishment and the Chief of Army Staff confirming it being valid and proper, cannot be faulted with. 9. Before dealing with the submissions of the learned Advocate for the petitioner regarding the imposition of punishment by the summary Court Martial and interference by the courts. We may refer to a judgment of the Apex Court in (Union of India and others v. Shivendra Bikaram Singh)6, reported in 2004(1) Bom.C.R.(Cri.) (S.C.)98, wherein the Apex Court has considered the scope of the High Court, in writ jurisdiction filed in a petition under Article 226 of the Constitution of India and the parameters of interference by the Court. The case arose out of the trial by the Court Martial of an officer of Indian Navy, the Naval Officer was convicted and sentenced by the Court Martial as well as the order of the Chief of the Navy Staff in exercise of the powers under sections 162 and 163 of the Navy Act. The said orders were challenged by the convicted officer by filing a writ petition under Article 226 of the Constitution of India to the High Court, Mumbai (Bench of Goa) assailing the said orders on several grounds. The said orders were challenged by the convicted officer by filing a writ petition under Article 226 of the Constitution of India to the High Court, Mumbai (Bench of Goa) assailing the said orders on several grounds. The challenges were upheld and this Court interfered in the orders passed by the Court Martial and by Chief of Naval Staff. The Union of India challenged the order of this Court in the Apex Court, the Apex Court has considered the scope of writ jurisdiction of the High Court in following way : "5. The High Court first considered the scope of its writ jurisdiction in such matters and the parameters of judicial interference. It considered the judgments of this Court in (Union of India and others v. Himmat Singh Chahar)7, 1999(5) Bom.C.R. (S.C.)559; (Lt. Col. Prithi Pal Singh Bedi v. Union of India and others)8, A.I.R. 1982 S.C. 1413 and (Union of India and others v. Major A. Hussain)9, 1998(1) S.C.C. 537 and held that though the Court Martial proceedings are subject to judicial review by the High Court in exercise of its writ jurisdiction, the Court Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. In exercise of its jurisdiction the High Court will not minutely examine the record of the Court Martial as if it was sitting in appeal. If the Court Martial has been properly convened, and there is no challenge to its composition, and the proceedings are in accordance with the procedure prescribed, the High Court, or for that matter any Court, must stay its hand. Proceedings of a Court Martial are not to be compared with the proceedings in a Criminal Court under the Code of Criminal Procedure since these proceedings remain to a significant degree, a specialized part of overall mechanism by which military discipline is preserved. The Court Martial discharge judicial function and the procedure prescribed provide for a fair trial to the accused. Therefore, unless it is shown that prejudice has been caused or mandatory provisions have been violated, the High Court should not allow the challenge to validity of the conviction and sentence of the accused when evidence is sufficient." (underline supplied) Keeping in mind the above said observation of the Apex Court, we apply the law to the facts of this case which are not much in dispute. The petitioner at relevant time was in active service and posted in Jammu District while on duty he committed an offence punishable under section 40(a) of the Act. The summary Court Martial was conducted against the petitioner following the procedure; (i) Charge-sheet was served (ii) Witnesses were examined; (iii) some of witnesses were cross-examined; (iv) petitioner has not challenged the constitution of summary Court Martial under section 130 of the Act; (v) The Summary Court Martial acted fairly; (vi) Appeal filed under section 164(2) dismissed by the Vice Chief of Army Staff. With these undisputed facts coupled with the fact that the petitioner has suppressed the fact from this Court that in past at two occasions he was convicted by the Commanding Officer and awarded imprisonment for three days and 10 days respectively. These aspects while awarding the punishment were duly considered. In view of these facts it is now not open to the petitioner to say that the punishment awarded was not proper and he deserves to some other minor penalty. This would amount to assuming a primary role with a limited scope of judicial review while reviewing the order of punishment, we have to consider whether some relevant facts were omitted from consideration or whether irrelevant facts were taken into account. What we find from the record that the summary Court Martial has considered the evidence of 5 witnesses and also the past record of the petitioner who was in fact punished twice. The petitioner should have disclosed this facts in the petition. The petitioner has not demonstrated before this Court that while awarding punishment some irrelevant facts are taken into consideration. Once we accept that the relevant record has been considered and the punishing authority has also considered the punishment to be awarded. Section 40 sub-section (a) of the Act provides for punishment also which provides for a imprisonment of a term which may extend to 14 years or such less punishment as provided under the Act. The petitioner was in fact, in active service and posted at forward area and considering the fact that the charge has been established the authority instead of imposing imprisonment of 14 years, it has awarded less punishment from dismissal of service as provided under section 71(e) of the Act. The petitioner was in fact, in active service and posted at forward area and considering the fact that the charge has been established the authority instead of imposing imprisonment of 14 years, it has awarded less punishment from dismissal of service as provided under section 71(e) of the Act. Therefore, we are of the view that the submission that is made by the learned Advocate that some lesser punishment should have been awarded cannot be accepted on the facts of this case and in particular following the law declared by the Apex Court in Shivendra Bikaram Singh (supra). Turning to the judgment relied on by the learned Advocate for the petitioner in Ranjeet Thakur's case (supra). The charge which was levelled against Ranjeet was under section 41 sub-section (2) of the Act i.e. disobeying a lawful command given by the superior office. Ranjeet joined the army on September 7, 1972 and at relevant time a Signal Man in "4, Crops Operating Signal Regiment". Apparently, appellant had not commended himself well to respondent No. 4, who was the Commanding Officer of the regiment. On March 29, 1985 Ranjeet was already serving out a sentence of rigorous imprisonment on him for violating the norms for presenting the representation to higher officers. He had seen representation complaining of ill-treatment as the hands of respondent No. 4 directly to the higher officers and for that purpose he was punished by respondent No. 4. Ranjeet was held in Quarterguard Cell in handcuffe to serve that imprisonment. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by respondent No. 4. On the facts stated above, the Apex Court found that there was non-compliance of the mandate of section 100 which goes to the root of the jurisdiction and without more vitiate the proceeding. In the present case no such objections were raised by the petitioner. Considering this aspect of the matter and considering the fact that Ranjeet was charged for offence which is punishable under section 41 of the Act and while awarding punishment the procedure was not followed on the facts of the case. The Apex Court considered the scope of judicial review in the following manner : "9. Considering this aspect of the matter and considering the fact that Ranjeet was charged for offence which is punishable under section 41 of the Act and while awarding punishment the procedure was not followed on the facts of the case. The Apex Court considered the scope of judicial review in the following manner : "9. Re : contention (d) judicial review generally speaking, is not directed against a decision, but it 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 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 catrageous definance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial view. In (Council of Civil Service Unions v. Minister for the Civil Service)10, 1984(3) W.L.R. 1174(H.L.) Lord Deplock 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)11, A.I.R. 1983 S.C. 454 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. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." Ranjeet Thakur's case came for consideration before the Apex Court in R.K. Sharma's case and the Apex Court has explained the ratio of Ranjeet's case which is stated in para 13 : "13. In our view, the observation in Ranjeet Thakur's case (supra), 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 Ranjeet 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: "Accused 1429055-M Signalman Ranjeet Thakur of 4 Crops Operating Signal Regiment is charged with-- Army Act Disobeying lawful command given Section 41(2) by his Superior Officer. In that he 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 dis-qualification 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 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 can be judicial review. Merely on compansionate grounds a Court should not interfere." (underlines ours) In our view the law as stated by the Apex Court in Ranjeet Thakur's case (supra) is not applicable in the present case as we find that the petitioner was given full opportunity to defend himself. The petitioner declined to cross-examine some of the witnesses. Merely on compansionate grounds a Court should not interfere." (underlines ours) In our view the law as stated by the Apex Court in Ranjeet Thakur's case (supra) is not applicable in the present case as we find that the petitioner was given full opportunity to defend himself. The petitioner declined to cross-examine some of the witnesses. The evidence so led was accepted by the summary Court martial and particularly the fact that after considering the past record the punishment was imposed. Therefore, in this view of the matter Ranjeet Thakur's case is not helpful to the petitioner. Now we will turn to the two judgments which are relied on by the learned Advocate for the respondents namely; Om Kumar and R.K. Sharma (supra); the Apex Court considered the scope of judicial review of the order passed by the authorities below in a petition filed under Article 226 of the Constitution of India. The Apex Court has held that the quantum of punishment in disciplinary matter is primarily for Disciplinary Authority to decide and the jurisdiction of High Court under Article 226 of the Constitution of India or of the Administrative Tribunal is limited in confining to the applicability of the one or other of the well-known principles known as Wednesbury's principles: "69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14. 70. In this context, we shall only refer these cases. In Ranjeet Thakur v. Union of India this Court referred "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India that Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. 71. Thus, from the above principles as decided cases, it must be held that where an administrative decision relating punishment in disciplinary cases questioned as "arbitrary" under Article 14 the Court is confined to Wednesbury but principles as a secondary reviewing authority. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. 71. Thus, from the above principles as decided cases, it must be held that where an administrative decision relating punishment in disciplinary cases questioned as "arbitrary" under Article 14 the Court is confined to Wednesbury but principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing could because no issue of fundamental freedom nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment." Now we will refer to case of R.K. Sharma, where the Apex Court had an occasion to consider awarding of sentence by Court martial. The Apex Court considering the judgment of Major A. Hussain, Ranjeet Thakur etc. the Apex Court held that imposition of punishment by Court martial is interfered only in extreme cases. No interference on the compassionate grounds is permitted. The Apex Court held thus : "11. The law on the subject is aptly set out in the case of Union of India v. Major A. Hussain, reported in 1998(1) S.C.C. 537 . This was a case where a Major had been Court martialled and dismissed from service. The High Court quashed the Court Martial and the sentence on the ground that the delinquent had been denied a reasonable opportunity to defend himself. This Court, after considering various Army Orders, Rules and Provisions of the Army Act, concluded that the Court Martial has been properly held. It was then held as follows : "23. 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. It was then held as follows : "23. 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 in accordance with the procedure prescribed, the High Court or for that matter any High 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 the adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said the Court martial remains to a significant degree, a specialised 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 procedural and is within its power to award punishment." 12. 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 procedural and is within its power to award punishment." 12. As stated above, both the Single Judge as 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 Court Martial. These are not matters in which Court should interfere." Considering the law declared by the Apex Court we are of the view that there is hardly any scope for interference in the matter of punishment by this Court in this petition. 10. Now remains the question to consider whether it was incumbent on the Appellate Authority to give reasons. We may quote at this stage two judgments which are relied on by the learned Advocate for the respondents. The Apex Court was considering in case of S.N. Mukherjee regarding recording of reasons by the Court Martial. The Constitution Bench of the Apex Court following the earlier judgment reported in Som Datta's case has observed thus : "7. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and others, 1969(2) S.C.R. 177 . In that case it was contended before this Court that the order of the Chief of Army Staff confirming the proceedings of the Court Martial under section 164 of the Act was illegal since no reason had been given in support of the order by the Chief of the Army Staff and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under section 165 of the Act and that the order of the Central Government was also illegal. This contention was negatived. This contention was negatived. After referring to the provisions contained in sections 164, 165 and 162 of the Act this Court pointed out that while section 162 of the Act expressly provides that the Chief of the Army Staff may "for reasons base on the merits of the case" set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed, there is no express obligations imposed by sections 164 and 165 of the Act on the confirming authority or upon the Central Government to give reasons support of its decision to confirm the proceedings of the Court Martial. The Court observed that no other section of the Act or any of the Rules made therein had been brought to its notice from which necessary implication can be drawn then such a duty is cast upon the Central Government or upon the confirming authority. This Court did not accept the contention that apart from any requirement imposed by the statute or statutory Rules either expressly or by necessary implication, there is a general principle or a rule of natural justice that a statutory Tribunal should always and in every case give reasons in support of its decision. "7. Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta's case (supra) to the extent it holds that there is no general principle or Rule of natural justice that a Statutory Tribunal should always and in every case give reasons support of its decision need reconsideration inasmuch as it is not consonance with the other decisions of the Court. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in (Bhagat Raja v. Union of India and others)12, 1967(3) S.C.R. 302 , (Mahabir Prasad Santosh Kumar v. State of U.P. and others)13, 1971(1) S.C.R. 201 ; (Woolcombers of India Ltd. v. Woolcombers Workers Union and another)14, 1974(1) S.C.R. 503 and (Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India and another)15, A.I.R. 1976 S.C. 1785." After considering the various provisions of the Army Act and the Regulations made therein the Apex Court has held that for confirmation of sentence it is not necessary to record reasons: "45. of India Ltd. v. Union of India and another)15, A.I.R. 1976 S.C. 1785." After considering the various provisions of the Army Act and the Regulations made therein the Apex Court has held that for confirmation of sentence it is not necessary to record reasons: "45. The provisions mentioned above show that confirmation of the findings and sentence of the Court Martial is necessary before the said findings or sentence become operative. In other words the confirmation of the findings and sentence is an integral part of the proceedings of a Court Martial and before the findings and sentence of a Court Martial are confirmed the same are examined by the deputy or assistant Judge Advocate general of the command which is intended as a check on the legality and propriety of the proceedings as well as the findings and sentence of the Court Martial. Moreover we find that in section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary Court Martial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for confirmation. The only inference that can be drawn from section 162 is that reasons have to be recorded only in cases where the proceedings of a summary Court Martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while confirming the findings and sentence of a Court Martial and it must be held that the confirming authority is not required to record reasons while confirming the findings and sentence of the Court Martial." In view of the pronouncement of the Constitution Bench decision of the Apex Court in S.N. Mukherjee, we find no substance in the contention of the learned Advocate that it was necessary for the Appellate Authority i.e. Chief of Army Staff to record reasons. As reasons are not recorded the order of dismissing the appeal is bad in law and same be set aside and matter be submitted to Appellate Authority to record reasons. We reject the contentions raised by the learned Advocate for the petitioner. As reasons are not recorded the order of dismissing the appeal is bad in law and same be set aside and matter be submitted to Appellate Authority to record reasons. We reject the contentions raised by the learned Advocate for the petitioner. Besides the submissions which we have recorded, no other submissions are advanced before us. Accordingly, we find no substances in the petition. Rule discharged. No order as to costs. Petition dismissed. -----