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Ex. Sigmn Surendra Bahadur Singh Vs. the Chief of the Army Staff and Others - Court Judgment

LegalCrystal Citation
CourtArmed forces Tribunal AFT Principal Bench New Delhi
Decided On
Case NumberTA 561 of 2009 WP (C) 8383 of 1992
Judge
AppellantEx. Sigmn Surendra Bahadur Singh
RespondentThe Chief of the Army Staff and Others
Excerpt:
r.c. mishra member (j): 1. by virtue of section 34 of the armed forces tribunal act, 2007, brought into force w.e.f. 07.08. 2009, this petition, under article 226 of the constitution of india, pending before the high court of delhi, stood transferred to this tribunal. it was filed on 20th april, 2009 for issuance of (i) a writ/order in the nature of mandamus commanding respondent no.1 to treat the petitioner as having continued in service with all consequential benefits and (ii) a writ of certiorari to quash the impugned proceedings of scm (summary court martial) and the documents connected therewith including the order dated 02.11.2008,passed by the respondent no. 1,rejecting the petitioners statutory complaint, under section 164(2) of the army act,1950. 2. background facts may be.....
Judgment:

R.C. Mishra Member (J):

1. By virtue of section 34 of the Armed Forces Tribunal Act, 2007, brought into force w.e.f. 07.08. 2009, this petition, under Article 226 of the Constitution of India, pending before the High Court of Delhi, stood transferred to this Tribunal. It was filed on 20th April, 2009 for issuance of

(i) a writ/order in the nature of Mandamus commanding respondent no.1 to treat the petitioner as having continued in service with all consequential benefits and

(ii) a writ of Certiorari to quash the impugned proceedings of SCM (Summary Court Martial) and the documents connected therewith including the order dated 02.11.2008,passed by the respondent no. 1,rejecting the petitioners Statutory complaint, under Section 164(2) of the Army Act,1950.

2. Background facts may be summarized as under:-

The petitioner was enrolled as Signalman in the Indian Army. At the relevant point of time, he was serving in 14 Rapid Signal Regiment. On 21.03.2007,he was tried and convicted on his plea of guilty by a SCM in respect of the following Charges:-

First Charge (Offence under Section 36(d) of the Army Act,1950)

Leaving his post without orders from his superior - in that he, at Dehradun, between 0400 hrs and 0600 hrs on 17 Dec 2006, when on sentry duty at Bahadur Post, quitted his post without orders from his superior officers.

Second Charge(Offence under Section 69 of the Army Act,1950)

Committing a Civil offence, that is to say, using criminal force to a woman with the intent to outrage her modesty, contrary to Section 354 of the Indian Penal Code in that he, at Dehradun, on 17 Dec 2006, used criminal force to Ms Laxmi Rawat, daughter of No. 40682335Y Hav Sabar Singh of 8 GARH RIF, by grabbing her hand and catching her by trousers (Salwar) intending thereby to outrage her modesty.

Third Charge(Offence under Section 69 of the Army Act,1950)

Committing a civil offence, that is to say, wrongful confinement of a person, contrary to Section 342 of the Indian Penal Code in that he, at Dehradun, on 17 Dec 2006, wrongfully confined Sh Laxman Singh Rawat, son of No. 4068233Y Hav Sabar Singh of 8 GARH RIF.

3. The order dated 21.03.2007 passed by the S C M at Dehradun, convicting the applicant of the offences and imposing sentences of Rigorous Imprisonment for Nine months and dismissal from service was sought to be called in question by way of Statutory Complaint under Section 164(2) of the Army Act,1950.Highlighting the fact that, the Complaint, submitted on 03.02.2008,had remained undecided even after expiry of the period of one month, as prescribed for the purpose, by Para 365(j) of DSR(Army)1987,the petitioner moved the High Court by filing a Writ Petition, (that was numbered as WP(C) 4985/08) for appropriate direction to the respondent no. 1 to decide the Complaint by a reasoned order. The High Court, by way of its order dated 15.07.2008,directed the respondent no.1 to dispose of the Complaint within a time frame of 3 months. However, in response, he was informed that an earlier Complaint made on his behalf by his father on 12.04.2007 had already been rejected by the respondent no.1 vide order dated 02.11.2007.

4. The prosecution case, may briefly be stated thus:-

On 17.12.2006,at about 5.45 a.m. the prosecutrix, a girl aged about 11 years and student of Class V, had gone along with her 13 years old brother Lakshman Singh to the Gymnasium located inside the Brigade Head Quarters Complex in Garhi Cantt. Dehradun. On being told by the Sentry on duty that the Gym was to remain closed till 9.00 a.m., they started walking back to their residence situated in the nearby Lower Camp. As they reached a distance of about 100 Meters from the gate of the Gym, the petitioner, who was performing Sentry duty at the Bahadur Post, persuaded them to accompany him saying that he would get the Gym opened for them. Treading through a gap in the fence, he took them to a room of the Gym. It was dark inside the room. The petitioner then caught hold of both viz the prosecutrix and her brother. They offered resistance and in the process, Lakshman managed to free himself and move out of the room. He raised an alarm but no one came forward for help. Meanwhile, the prosecutrix was also able to extricate herself and slid out of the room. She then joined Lakshman, who was running towards their residence. On reaching there,the prosecutrix as well as her brother narrated the incident to their mother Leela Devi,who being enraged rushed to the post and informed Havaldar Rajendra Prasad Kote about the misdemeanor of the person detailed for duty as Sentry at the post. Before the Court of Inquiry, the prosecutrix clearly identified the petitioner as the person who had outraged her modesty.

5. We have heard learned Counsel for the parties at length and have gone through record of the SCM and the supplementary affidavit filed by the petitioner. In order to appraise the merits of rival contentions in the right perspective, it would be desirable to discuss the grounds as raised against legality and propriety of the impugned proceedings under the following heads “

A. Assignment of Lt. Col.Amrik Singh, as the œFriend of the Accused?

6. Admittedly, Lt. Col. Amrik Singh, who had recorded Summary of Evidence on 10th and 11th of January 2007,was detailed by the convening authority as "the friend of the accused" at the trial. According to the petitioner, by providing services of Lt. Col. Amrik Singh, who ought to have been appointed as the Prosecutor or in any case cited as one of the prosecution witnesses, the Authority not only violated the Principles of Natural Justice Fair Play and Equity but also contravened the guideline laid down in the (a) Notes below Rule 39(2) of the Army Rules 1954 (for short AR), (b) para 8 (d) of Appendix III published on page 440 of MML 1983 as well as AO 215/72 and (c) Note2 below AR 77 read with para 37 published on page 443 of Manual of Indian Military Law (for brevity œMML?) 1983.For a ready reference, para 37(supra) may be reproduced thus:

PARA 37 Duties ; The prosecutor will as a Rule be the officer who had recorded the Summary of Evidence .The Court will look to him for an explanation of any defect or omission apparent or alleged by the accused.

7. However, fact of the matter, as highlighted in the order dated 2nd November 2007 (Annexure P-13) authored by the then Chief of the Army Staff and not controverted by the petitioner is that Lt. Col. Amrik Singh was detailed as "the friend of the accused" upon a written request made by the petitioner only. He, therefore, cannot be allowed to complain that he was prejudiced in defence. Further, AR 39(2) is applicable to General or District Court Martial and not to an SCM. Moreover, the petitioner had been convicted on his plea of guilty in respect of all the charges. The relevant Rule couched in the form of AR 129 reads :

œ129. Friend of Accused. -- In any summary court-martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the court.

8. Learned Counsel for the petitioner, placing implicit reliance on the judgment in Ex Sepoy Driver (MT) V.D.Jha vs. Union of India and Ors. (T.A. No. 988/2010 decided on 7th August 2013, by Lucknow Bench of this Tribunal) has strenuously contended that assignment of duty to Lt. Col. Amrik Singh to act as œthe friend of the accused? was sufficient to vitiate the proceedings.

9. In Union of India Vs. Dinesh Prasad (2012)12 SCC 63, the Apex Court had the occasion to deal with what may be termed by learned Counsel as a comparatively more disadvantageous situation. There, the same Commandant not only signed and issued the charge-sheet to Dinesh Prasad but also convened and presided over the SCM. On these facts, a Division Bench of Gauhati High Court affirmed the view taken by learned Single Judge that the proceedings of the SCM leading to the punishment of dismissal from service were vitiated on account of likelihood of bias as while issuing charge-sheet, the Commandant tentatively made up his mind that there was some material against the delinquent and therefore ,he ought not to have convened the Court Martial and in any event ought not to have conducted the proceedings. By applying the ratio in Vidya Prakash's case (AIR 1988 SC 705),the Supreme Court, proceeded to hold that the Commanding officer who signed and issued the charge-sheet, was competent to serve on the SCM for trial of the respondent and accordingly the contention that the order of dismissal from service was in violation of the principles of natural justice was rejected. Adverting to the facts of the present case, the logical corollary would be that there was no violation of the principles of natural justice in detailing Lt. Col. Amrik Singh as the "friend of the accused" in the trial.

B. Compliance with AR34(1) and and para 8 (a) of Appendix III published on page 440 of MML 1983 Vol.1

10. AR 34(1) is couched in these terms:-

34. Warning of accused for trial. ---

(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desires to call in his defence, reasonable steps shall be taken for procuring their attendance, and those steps shall be taken accordingly.

The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours.

11. It is well settled that time-frame provided in Rule 34 has a definite purpose and non-observance thereof vitiates the entire proceeding(See Union of India vs A. K. Pandey AIR 2009 SC (Supp) 2381). However, the argument pertaining to violation of AR 34(1) deserves to be rejected as apparently misconceived in the light of the facts that the charge sheet was handed over to the petitioner on 12th March,2007 whereas he was subjected to the trial on 21st March,2007.As such, the interval between the respondent having been informed of the charges for which he was to be tried and his arraignment was more than ninety-six hours.

C. Compliance with AR 111(2)

12. This sub-rule mandates that each charge has to be read so as to enable the accused to plead separately to each charge. A bare perusal of page B of the SCM format would reveal that plea of the accused was recorded on each charge separately. The contention that after arraignment in the instant case only first charge was shown to have been read over also does not deserve acceptance. It is also not the case of the petitioner that he could not understand the charges because at the arraignment the same were read out together. The decision in Havildar Shiv Kumar Joshi vs. UOI and others { O.A.No.02/2009 decided by Lucknow Bench of this Tribunal on 16.03.2010} is of no avail to the petitioner simply because in that case a composite plea of guilty was recorded in respect of both the charges.

D. Compliance with AR 115(2) and 52(2A() as well as Army HQ policy letter N0.C 33418/AG/DV/1 dated 15th March 1988,

13. The next ground of challenge to the proceedings is based on AR115(2),which in the opinion of Learned Counsel, has to be read in conjunction with , AR 52(2A) as well as Army HQ policy letter N0. C 33418/AG/DV/1 dated 15th March 1988.Thepolicy letter says:-

œWith a view evolving a uniform procedure and to avoid any faulty recording of the proceedings an endorsement as per specimen given below should be made by the presiding officer of the General or District Court Martial or the officer holding Summary Court Martial on Page B of the Court Martial Proceedings i.e. IAFD-907 as may be. Before recording the plea of œGuilty? of the accused the court explained to the accused the meaning of the charge (s) to which he had pleaded œGuilty? and ascertained that the accused had understood the nature of the charge (s) to which he had pleaded œGuilty?. The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself that the accused understands the charge (s) and the effect of his plea of œGuilty?, accepts and records the same. The provisions of rule 52(2) and 115(2) are thus complied with.

14. Learned Counsel for the petitioner has vehemently argued that the absence of his signatures on the so called plea of guilty and the corresponding certificate under, by itself, is sufficient to say that the statutorily mandatory requirements laid down in AR. 115(2) and (2A) were not satisfied while recording the plea of guilty of the petitioner. Attention has also been invited to the fact that the entire proceedings comprising arraignment, recording of plea, and statement of the accused under AR 116 (3), finding and sentence were completed within a short span of 2 hours. He is further of the view that the non-compliance with the sub-rules had rendered recording of proceedings by Commanding Officer on Page C of the SCM Format violative of AR 116.To fortify the contention, reference has been made to the under-mentioned decisions:

(1) Ex Hav. Rakesh Dhaka vs. UOI and others {T.A.No. 684/2009 decided by Principal Bench of this Tribunal on 02.07.2010}

(2) Ex Sepoy Driver V.D.Jha vs. UOI and others { supra}

15. In response, learned counsel for the respondents has submitted that a bare reading of the provisions would show that neither the plea of guiltyŸnor the Certificate was required to be signed by the accused and therefore, SCM proceedings cannot be held to be vitiated for want of signatures. According to him, it is also not possible to infer that the petitioner had not pleaded guilty from the following surrounding circumstances.

(i) During recording of summary of Evidence in the presence of an independent witness namely Capt. C Sarvanan, the petitioner, in his statement scribed on 11th January 2007, had voluntarily confessed the guilt.

(ii) Indisputably, copy of the Summary of Evidence was supplied to the petitioner, alongwith the Charge-sheet on 12th March 2007.

(iii) Immediately, after entering the plea of guilty, at the SCM, the in presence of Major Bharat Bhakta and Captain Navratan, the petitioner, on being called upon to make any statement in reference to the charge or in mitigation of punishment had reaffirmed the plea by saying that

œI have committed a grave mistake. I have never ever done such a mistake. I have old parents at home and my brother has broken his leg in an accident. There is no earning member in my family.

The girl is like my sister and I have made a mistake.?

(iv) In his statutory complaint also, the petitioner had not averred specifically that on being charged with the offences at the trial he had not admitted the guilt.

16. Before proceeding further, it is necessary to focus attention on relevant provisions, reproduced as under:-

AR115. General plea of œGuilty? or œNot Guilty?. ”(1) ¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦. (2) If an accused person pleads œGuilty?, that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty. (2A) Where an accused pleads œGuilty?, such plea and the factum of compliance of sub-rule (2) of this rule, shall be recorded by the court in the following manner:-

œBefore recording the plea of œGuilty? of the accused the court explained to the accused the meaning of the charge (s) to which he had pleaded œGuilty? and ascertained that the accused had understood the nature of the charge (s) to which he had pleaded œGuilty?. The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself that the accused understands the charge (s) and the effect of his plea of œGuilty?, accepts and records the same. The provisions of rule 115(2) are thus complied with.

AR 116(2)

"After the recording of plea of guilty on a charge (if the trial does not proceed on any charge), the Court shall read the summary of evidence and annex it to proceedings or if there is no such summary, it shall take and record sufficient evidence to enable it to determine the sentence and the Reviewing Officer to know all the circumstances connected with the offence ......."

AR 23. Procedure for taking down the summary of evidence “

(1) ...............

(2) ................

(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Any statement thereupon made by the accused shall be taken down and read to him, but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires, any witnesses as to character.

(Emphasis supplied)

17. A bare perusal of the sub- rules (2) and (2A) 0f AR 115 would show that the intention of the legislature was not to make it mandatory to obtain signature of the accused on his plea of guilty. This aspect of matter can be better appreciated by way of illustration. Sub-section (5) of Section 281of the Code of Criminal Procedure requires an accused to sign his statement in ordinary trial, but in view of sub-section (6), it does not apply to the examination of an accused under Section 263. Accordingly, in a summary trial, the examination of an accused is not required to be signed by him.

18. We are not oblivious of the decisions like the one rendered in Sukanta Mitra vs. Union of India and Ors. 2007 (2) 197 (JandK), wherein the impugned SCM proceedings were set aside primarily on the ground of absence of signature of the accused on his plea of guilty . The relevant observations made in Sukantas case and relied upon by various High Courts and Co-ordinate Bench of this Tribunal in Rakesh Dhakas case (supra) may be extracted as under:

œThis apart the fact remains that the appellant has been convicted and sentenced on the basis of his plea of guilt. The plea of guilt recorded by the Court does not bear the signatures of the appellant. The question arising for consideration, therefore, is whether obtaining of signatures was necessary. In a case Union of India and Ors. Vs. Ex-Havildar Clerk Prithpal Singh and Ors. KLJ 1991 page 513, a Division Bench of this Court has observed:

œThe other point which has been made basis for quashing the sentence awarded to respondent-accused relates to clause (2) of rule 115. Under this mandatory provision the court is required to ascertain, before it records plea of guilt of the accused, as to whether the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of charge to which he has pleaded guilty. The Court is further required under this provision of law to advise the accused to withdraw that plea if it appears from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate of the same. We may take it that the signature of the accused are not required even after recording plea of guilt but as a matter of caution same should have been taken.?

19. As explained by the Constitution Bench in Union of India Vs Tulsiram Patel AIR 1985 SC 1416,Court can not expand procedure laid down by statute to include rules of natural justice contrary to the intention of the Legislature. More recently, in the case of Mandvi Co-op. Bank Ltd., M/s. v. Nimesh B. Thakore AIR 2010 SC 1402, the Supreme Court has again laid down that “

œIf the legislature in their wisdom did not think 'it proper to incorporate a word 'accused' with the word 'complainant' in S. 145(1) of the Negotiable Instruments Act, it was not open to the High Court to fill up the self-perceived blank?.

20. The ratio which emerges from the decision is that it is the duty of the Court to adopt construction of any provision of the Act, which advances object of the legislation.

œIt must also be borne in mind that the army authorities are entrusted with certain powers and duties under the Act which also enjoined on them certain important responsibilities particularly in the matter of holding the enquiries and trials. The Parliament in its wisdom in exercise of its powers under Article 33 has enacted this law and the officers are to be guided by factors like exigencies of service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed. Normally having regard to the high office they hold there should not be any scope to apprehend deliberate lapse or intentional omission on their part.?

(Major G.S. Sodhi v. Union of India, (1991) 2 SCC 382 relied on)

21. It needs to be noticed that Rule 142 of BSF Rules 1969, except the proviso to sub-rule 2 inserted on 25th November, 2011 is in pari materia with AR 115. In a recent decision rendered in Maya Ram Sharma vs. Union of India and Another { W.P.(C) 3583/2001 decided on 20th January 2014} a Division Bench of Delhi High Court dealing with the same point concerning BSF Rule 142 has made the following illuminating observations:-

œ20. We note that various decisions of Division Benches of this Court have taken conflicting views with respect to absence of signatures of an accused beneath the plea of guilt at a SSFC trial. In the decision reported as 2008 (152) DLT 611 Subhas Chander vs. UOI the view taken was that a plea of guilt which has not been signed by the accused would vitiate the punishment. The decision reported as 2004 (110) DLT 268 Choka Ram vs.UOI holds to the converse. Neither decision has taken note of the jural principle that a default in procedure, unless hits the very root of the matter would not vitiate a decision making process. In an unreported decision dated August 06, 2012 deciding WP(C)2681/2000 Anil Kumar vs. UOI and Ors., the view taken is that mere absence of signatures beneath the plea of guilt by itself is not fatal being a procedural default and that the Court should look at the surrounding circumstances.?

22. The legal position emerging from the above-mentioned provisions governing the SCM proceedings and crystallized in a series of judgments may be re-stated in the following terms:

1. There is no mandatory requirement to obtain signatures of the accused on his plea of guilty or the Certificate contemplated in AR 115(2A) .However, the signatures on the plea may be taken by way of abundant caution only.

2. Mere absence of signatures beneath the plea of guilt, by itself, would not be sufficient to invalidate the decision making process; and

3. In order to ascertain as to whether the unsigned plea of guilty was voluntary and true, the surrounding circumstances must be seen.

23. AR 23 deals with preparation of Summary of Evidence and requires that evidence of witnesses who were present and give evidence before the Commanding Officer, whether against or for the accused shall be taken down in writing in the presence and hearing of the accused. Accordingly, statements of as many as 9 witnesses including the prosecutrix, her brother and mother, were recorded. The prosecutrix (PW1) vividly describe as to how the petitioner outraged her modesty by catching hold of her in a dark room where she was taken upon the pretext that the petitioner would be able to get the Gym opened for her and her brother. Her statement drew ample support from the deposition of Lakshman (PW2). Thus, the summary of evidence provided sufficient incriminating material for subjecting the petitioner for trial by SCM.

24. Applying the principles, culled out above, to the facts and circumstances of the case, it may be observed that the Court did not commit any illegality in accepting the plea as voluntary and true in the light of petitioners overall conduct in declining to cross-examine the witnesses particularly the prosecutrix and her brother; in making a confessional statement despite the fact that, he had the right to remain silent during recording of summary of evidence and in giving statement admitting his mistake in reference to the charge or in mitigation of punishment, just after recording of the plea of guilty. Page B of the Format shows that the accused having pleaded guilty to the charges, the provisions of Army R.115 (2A) were complied with which means that the Court had ascertained that the accused understood the nature and meaning of the charges to which he had pleaded guilty and explained to him the general effect of the plea of guilty and the difference in the procedure which would be made on a plea of guilty. Page A of the format reflected that the SCM proceedings were witnessed by Maj Bharat Bhakta, Captain Navratan and Friend of the Accused namely Lt Col Amrik Singh.

25. To sum up, none of the contentions raised against validity of the SCM proceedings has any merit or substance. It is manifestly clear from the record that the provisions of the Act and the rules were scrupulously followed in the conduct of the Court-Martial proceedings and particularly in recording the plea of guilty. At any rate, no prejudice was caused to the petitioner in his defence. Needless to say that in view of the foregoing discussion, the pronouncements in the cases of Rakesh Dhaka and V.D.Jha (above) are of no assistance to the petitioner.

26. 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 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, 1973 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 the 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. (Union of India and Ors. vs. IC 14827, Major A. Hussain (AIR 1998 SC 577 referred to).

27. It is also well settled that the scope of judicial review of punishment upon the delinquent employee is limited. The Tribunal is not empowered to set aside the punishment altogether or impose some other penalty unless it finds that there has been a substantial non-compliance with the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. For this, reference may be made to the Wednesbury principles as explained by Justice N. Jagannadha Rao in Om Kumar and others vs. Union of India AIR 2000 SC 3689 in the following terms :-

œWhen a statute gave discretion to an Administrator to take a decision, the scope of judicial review would remain limited. Interference was not permissible unless one or other of the following conditions were satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles known as Wednesbury principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983 Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, 1983 (1) AC 768 (called the GCHQ case) summarized the principles of judicial review of administrative action as based upon one or other of the following “ viz. illegality, procedural irregularity and irrationality. He, however, opined that that proportionality was a œfuture possibility?.

28. Apparently, the misdemeanor attributed to the appellant was unbecoming of a member of the disciplined force. Taking into account the nature of offences and considering the social impact thereof and other relevant aspects of the sentencing policy, it may be observed that there is no extenuating or mitigating circumstance justifying imposition of lesser punishment than what was awarded by the Court Martial.

29 In the result, the TA stands dismissed with no order as to costs.


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