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the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to

The Grand Trunk Road in India, section Ambala ...

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 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 876 of 2003

Union of India & Ors. ... Appellants

Vs.

Bodupalli Gopalaswami ... Respondent

 With

 CRIMINAL APPEAL NO. 877 of 2003

Bodupalli Gopalaswami ... Appellant

Vs.

Union of India & Ors. ... Respondents

 J U D G M E N T

R.V.RAVEENDRAN,J.

 As the ranks of parties in the two appeals are different, for 

convenience, we will refer to the parties by their ranks in Criminal Appeal 

No.876/2003.

 2

2. The first respondent was the officiating Commandant and later the 

Commandant of 227 Company ASC (Supply) Type `G', Ambala 

Cantonment (hereinafter referred to as the `Supply Depot') from 19.10.1988 

to 26.6.1990. The supply depot had three sections - Dry Rations, Fresh 

Rations and Butchery. The appellant as the Commandant was in overall 

charge of the supply depot. As per the standard operative procedure for the 

Butchery, the following staff were detailed for operation:

 (i) Supervisory Officer - Cap. P. S. Malhotra

 (ii) Veterinary Officer - Lt. Col. G. S. Srivastava

 (iii) J.C.O. in-charge - Sub. G. L. Kalra

 (iv) NCO in-charge - Havaldar Clerk D. L. Prasad

3. On receiving complaints about irregularities in the butchery, a team of 

three officers from the Central Bureau of Investigation and two Army 

Officers carried out a raid/surprise inspection of the butchery on 14.2.1990, 

with the prior permission of the second respondent. They intercepted eleven 

vehicles belonging to different units returning from butchery after collecting 

meat and checked the meat for quality and quantity. They also inspected the 

butchery. The Report of the Inspection Team disclosed certain irregularities 

in the quality of the dressed meat supplied by the contractor, (which were 

being issued to the indenting units), maintenance of live stock and 

 3

supervision. As a consequence, the officials of the Butchery were all 

separately charge-sheeted. 

4. The first respondent, who was the Commandant of the Supply Depot 

was also issued a charge-sheet dated 30.12.1992 containing the following 

charges : 

 First charge SUCH AN OFFENCE AS IS MENTIOEND IN CLAUSE (f) OF SECTION 52 

 Army Act OF THE ARMY ACT WITH INTENT TO DEFRAUD,

 Section 52(f)
 In that he,

 at Ambala Cantonment, on 14 Feb.1990, while Commanding 27 

 Company Supply (ASC), being contract operating officer for meat 

 dressed, with intent to defraud caused the acceptance of meat from 

 the contractor with heart as part of meat, well knowing that the same 

 was not acceptable part of carcasses as per para 86 of Special 

 Condition of the Contract deed for the period from 1st May 1989 to 

 31st March, 1990, concerning meat supply at Ambala. 

 Second charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY 

 Army Act DISCIPLINE,

 Section 63
 In that he,

 at Ambala Cantonment, on 14 February 1990, while Commanding 

 27 Company Supply (ASC), having visited butchery of the said 

 company at the time of inspection of carcasses by the Veterinary 

 Officer and having found the carcasses dribbling with water, failed 

 to ensure that wet meat dribbling with water is not issued to the 

 Units, contrary to para 14(j) of Headquarters PH and HP area Shimla 

 (ST Branch) Technical Instruction dated 30th November, 1989. 

 Third charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY 

 Army Act DISCIPLINE,

 Section 63
 In that he,

 at Ambala Cantonment, during the period from 26th February 1990 

 to 8th March 1990 while Commanding 27 Company Supply (ASC) 

 failed to ensure that stock of reserve animals was maintained in the 

 4

 butchery of the said company as per para 51(a) of Special Condition 

 of the Contract deed for the period from 1st May 1989 to 31st March 

 1990, consequently no animals were held in reserve in the said 

 butchery during that period. 

 Fourth charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY 

 Army Act DISCIPLINE,

 Section 63
 In that he,

 at Ambala Cantonment, during the period from 11th March 1990 to 

 22nd March 1990, while Commanding 27 Company supply (ASC), 

 failed to ensure that stock of reserve animals was maintained in the 

 butchery of the said company as per para 51(a) of Special 

 Conditions of the Contract deed for the period from 1st May, 1989 to 

 31st March, 1990, consequently no animals were held in reserve in 

 the said butchery during that period.

 Fifth charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY 

 Army Act DISCIPLINE,

 Section 63
 In that he,

 at Ambala Cantonment, between 15th January 1990 and March 1990, 

 while Officer Commanding 27 Company Supply (ASC) and 

 responsible for overall control of the operation of unit butchery, 

 improperly failed to implement the Standard Operating Procedure 

 for Butchery Group Supply Depot Ambala Cantt dated 9th May, 

 1988, as amended, resulting in the following malpractices: 

 (a) Duplicate Brands and Veterinary Officer's stamp were 

 found in possession of contractor's butcher.

 (b) All rejected meat and other offals were not being destroyed 

 as per laid down instructions.

 (c) Passed animals were not segregated but were allowed to mix 

 with the other animals of contractor.

 (d) Hanging room was not sealed by the JCO Incharge butchery 

 after taking the green weight of the carcasses.

 (e) Animals passed and branded were not segregated for a 

 minimum mandatory period of 12 hours before slaughtering. 

 (f) Over issue/under issue of meat was made to the units in 

 connivance with the representatives of the units. 

Charges 1 and 2 related to what was found during the inspection on 

14.2.1990. Charges 3 and 4 related to failure to maintain adequate animals in 

 5

reserve subsequent to 14.2.1990. Charge 5 related to miscellaneous 

omissions and commissions generally based upon what was observed during 

the inspection on 14.2.1990.

5. On 14.1.1993, a direction for trial of the first respondent by General 

Court Martial (`GCM' or `Court Martial' for short) was issued. On the same 

day, an order convening the GCM was issued by the third appellant. The 

trial commenced on 22.1.1993 and concluded on 30.7.1993. At the end of 

the trial, the GCM found the first respondent not guilty of the second and 

third charges, but guilty of the first charge, fourth charge and item (c) of the 

fifth charge. On that basis, the GCM imposed the sentence of dismissal from 

service on first respondent on 30.7.1993.

6. In pursuance of it, a show cause notice dated 30.6.1995 was issued to 

the first respondent calling upon him to show cause why his pensionary 

benefits should not be forfeited under Rule 16(a) of the Pension Regulations 

for the Army (Part I), 1961 (for short `the Pension Regulations'). After 

considering the first respondent's representation, the President of India 

ordered the forfeiture of the entire pensionary benefits of the first 

respondent, communicated by letter dated 22.12.1995 from the Defence 

Ministry to the Chief of Army Staff. 

 6

7. Feeling aggrieved, the first respondent filed writ petition in the Punjab 

& Haryana High Court (registered as Crl.WP No.1797/1997) challenging 

General Court Martial proceedings, findings of the General Court Martial 

holding him guilty of the charges, sentence of dismissal from service and the 

decision of the appellants to forfeit his pensionary benefits. The High Court 

by judgment dated 25.8.2000 allowed the writ petition in part. The High 

Court held that the GCM proceedings were in order, there was no violation 

of any rules or procedure. It also found no ground to interfere with findings 

of guilt or the sentence. Consequently, the punishment imposed by the GCM 

was upheld. But the High Court held that the order forfeiting the pension and 

pensionary benefits of the first respondent was invalid as no reasons were 

assigned in the order dated 22.12.1995, for forfeiture thereof. The High 

Court therefore quashed the order dated 22.12.1995 forfeiting the pension 

and directed the appellants to reconsider the matter with reference to 

Regulation 16(a) of the Pension Regulations and the principles laid down by 

the Full Bench of the Delhi High Court in Brig.A.K. Malhotra v. Union of 

India - (1997) (4) SLR 51. In short, the writ petition was allowed to the 

extent of quashing forfeiture of the pension but dismissed in regard to the 

challenge to the proceedings of GCM and the order of dismissal. 

 7

8. Aggrieved by the quashing of the pension forfeiture order dated 

22.12.1995, the appellants (Union of India and the Army Authorities) have 

filed Criminal Appeal No.876/2003. Aggrieved by the rejection of the 

challenge to the GCM findings and the imposition of the punishment, the 

first respondent has filed Criminal Appeal No.877/2003. On the contentions 

urged, the following questions arise for our consideration: 

 In Crl.Appeal No.876/2003

 (i) Whether the High Court having upheld the order imposing the 

 punishment of dismissal, is justified in quashing the order dated 

 22.12.1995 made under Pension Regulation 16(a), forfeiting the 

 pension and directing reconsideration?

 In Crl.Appeal No.877/2003

 (ii) Whether the finding of the High Court that conduct of the 

 proceedings of the GCM did not violate any rules, calls for 

 interference?

 (iii) Whether the findings of guilt in regard to charges 1, 4 and 5(c) 

 require interference?

 (iv) Whether the punishment of dismissal is excessively 

 disproportionate to the gravity of the charges proved?

Re : Question (i) 

 8

9. The High Court having held that there was no irregularity in the court 

martial proceedings or infirmity in the findings of guilt and the punishment 

imposed, held that there was no justification for forfeiting the pension on the 

following reasoning : 

 ".... the general court martial did not think it appropriate to order for the 

 forfeiture of the pension and pensionary benefits under section 71(h) and 

 (k) of the Army Act and the obvious inference seems to be that the court 

 martial did not think it appropriate that despite the dismissal of the service 

 of the petitioner, he should be awarded the forfeiture of pension and 

 pensionary benefits as a punishment. As held by the Full Bench of the 

 Delhi High Court in the case of Brig. A. K. Malhotra (supra), the pension 

 and pensionary benefits are to eb granted in the normal course unless there 

 are such circumstances existing under which the offence against the 

 concerned officer is found to be extra-ordinarily grave and in that case 

 sufficient reasons must be recorded for the forfeiture of the pension by the 

 competent authority taking action on the administrative side. In the instant 

 case the impugned order, Annexure P-12, shows that the forfeiture of the 

 pension and pensionary benefits was ordered by having regard to 

 circumstances of the case leading to the dismissal of the officer from 

 service. In other words, the President considered the forfeiture of the 

 pension and pensionary benefits only on the circumstances which led to 

 the trial, conviction and sentence of dismissal from service of the 

 petitioner by the General Court Martial. The impugned order, annexure P-

 12, does not show that it was considered to be a case of extra-ordinarily 

 grave charge where the pension and pensionary benefits should have been 

 forfeited or there were other valid and good reasons for the forfeiture of 

 the pension and pensionary benefits. 

10. For this purpose, the High Court relied upon the decision of the Delhi 

High Court in Brig. A. K. Malhotra. In the said decision, the Delhi High 

Court held that under section 71 of the Army Act, 1950 (`Act' for short), 

forfeiture of pension was provided as a measure of punishment for offences 

 9

tried by the court martial and if the court martial did not, in a given case, 

think it fit to forfeit the pension while awarding the punishment, then the 

only inference that could be drawn is that the Court Martial was of the view 

that the punishment of dismissal alone was sufficient for the offences and 

there was no need to inflict the additional punishment of forfeiture of 

pension. The Delhi High Court further held that the normal rule is that 

pensionary and other benefits are to be granted unless the competent 

authority comes to the conclusion that the service of the officer taken as a 

whole was not satisfactory from the beginning or unless the offences which 

are proved and for which he had been sentenced are so extra-ordinarily 

grave that the entire previous satisfactory service has to be excluded from 

consideration. The High Court reasoned that if the offence was so extra-

ordinarily grave, the court martial itself would have forfeited the pensionary 

benefits, and where the court martial did not deem it necessary, if the 

competent authority wanted to deny pension, he must record good and valid 

reasons as to why normal rule of granting pensionary benefits is not to be 

followed. 

11. The direction of the High Court to reconsider the matter in the light 

of the legal principles laid down by the Full Bench of the Delhi High Court 

in Brig. A.K. Malhotra is no longer valid in view of the fact that the 

 10

decision in Brig. A.K. Malhotra was reversed by this Court in Union of 

India v. P.D. Yadav - 2002 (1) SCC 405. This Court held that even if the 

GCM while imposing punishment, does not direct forfeiture of service or 

forfeiture of pension under section 71 of the Act having regard to Regulation 

16(a) of the Pension Regulations, it is permissible for the President of India 

to direct forfeiture of pension in regard to a person dismissed or cashiered 

consequent to a trial by the GCM. This Court also held that for passing an 

order for forfeiture of pension under Regulation 16(a), all that was necessary 

was that cashiering or dismissal of the officer from service and there was no 

further need, either to assign reasons for forfeiture or to consider whether the 

merit of his prior service warranted any relaxation or relief against 

forfeiture. 

12. As clarified by this Court in P.D.Yadav, the power to deny pension as 

a consequence of an officer being cashiered or dismissed or removed from 

service, vests only with the President of India under Pension Regulation 

16(a). The President of India may direct either forfeiture of the entire 

pension or only a percentage of the pension. Further section 71 of the Act 

does not provide for forfeiture of pension as one of the punishments 

awardable by Court Martial. Imposition of punishments of cashiering and 

 11

dismissal from service are provided in clauses (d) and (e) of section 71. 

Clauses (h) and (k) of section 71 relied upon to hold that the Court Martial 

could also impose the punishment of forfeiture of pensionary benefits, are 

extracted below : 

 "(h): The forfeiture of service for the purpose of increased pay, pension or 

 any other prescribed purpose. 

 (k): The forfeiture in the case of a person's sentence to cashiering or 

 dismissal from service of all arrears of pay and allowances and other 

 public money due to him at the time of such cashiering or dismissal."

Neither clause (h) nor clause (k) nor any of the other clauses in section 71 

refers to and provides for forfeiture of pension as a penalty. This Court held: 

 "Under Section 71(h), a punishment of forfeiture of service for the 

 purpose of increased pay, pension or any other prescribed purpose, can be 

 imposed. If forfeiture of service has the effect of reducing total qualifying 

 service required to earn pension, a person concerned is disentitled for 

 pension itself. In other cases, it may have bearing in regard to claim for 

 increased pay or any other purpose. If by virtue of such punishment itself, 

 a person is not entitled for any pension, the question of passing an order 

 forfeiting pension under Regulation 16(a) may not arise. As per Section 

 71(k), in case of a person sentenced to cashiering or dismissal from the 

 service, a further punishment of forfeiture of all arrears of pay and 

 allowances and other public money due to him at the time of such 

 cashiering or dismissal may be imposed. Clause (k) of Section 71 does not 

 speak of pension unlike clause (h) of the same Section. x x x x x

 Merely because punishment is not imposed under clause (h) or (k) of 

 Section 71 and other punishments are imposed, it does not mean that the 

 President is deprived of his power and jurisdiction to pass order under 

 Regulation 16(a);..."

 12

Therefore, the question of court martial imposing the punishment of 

forfeiture of pension does not arise at all. The court martial can impose any 

of the penalties enumerated in section 71 of the Act. Dismissal or cashiering 

of an officer does not lead to automatic forfeiture of pension. The power and 

discretion vested in the President of India by virtue of Pension Regulation 

16(a), to forfeit and deny the pension in full or in part to an officer, who is 

dismissed or cashiered, is independent of the punishment imposed under 

section 71 of the Act by the court martial. 

13. Having held that the proceedings of the GCM was proper and findings 

of guilt did not suffer from any infirmity and the punishment of dismissal 

did not call for any interference, the High Court could not have interfered 

with the power and discretion exercised under Pension Regulation 16(a). If 

there is no violation of rules in conducting the GCM and if there is no 

infirmity in the award of punishment, having regard to the decision of this 

Court in P.D. Yadav, the forfeiture of pension was not required to be 

supported by any other independent reasons nor was it necessary to consider 

the previous service or gravity of the offence or other circumstances. The 

High Court therefore committed an error in quashing the order dated 

22.12.1995 passed by the President of India, forfeiting the pension of the 

 13

appellant. The appeal by the appellants (Criminal Appeal No.876 of 2003) is 

bound to succeed. But this is, however, subject to the decision in the appeal, 

preferred by the first respondent. If the first respondent is able to 

demonstrate in his appeal that either the proceedings of the GCM violated 

the provisions of the Act/Rules/the procedure prescribed, or that the findings 

of guilt were perverse and unsustainable, or that the punishment was 

shockingly disproportionate to the gravity of the proved offences and 

warranted interference, and if this Court accepting his contentions allows his 

appeal, and sets aside the order of dismissal or reduces the punishment, then 

the very basis for issue of the order of forfeiture of pension under Pension 

Regulation 16(a) will disappear and consequently, that order of forfeiture 

also will not survive. Therefore, we may now examine the contentions of the 

first respondent challenging the validity of the proceedings of the GCM and 

imposition of punishment. 

Re : Question (ii)

14. The first respondent has contended that there is a serious procedural 

irregularity in the constitution and conduct of the court martial, that in spite 

of his challenge, it was not set right and therefore, the entire Court Martial 

proceedings and consequently, the punishment, were vitiated. According to 

 14

first respondent, the Presiding Officer of the Court Martial - Brig. S.K. 

Kaushal had earlier summarily tried two prosecution witnesses - Sub. 

Baryam Singh and Sub. Harjinder Singh (who had drawn meat for their units 

on 14.2.1990) for drawing less quantity of meat and awarded the reprimand 

for negligent performance of duties. As the summary trials were in regard to 

the same incident when the prosecutor disclosed the said fact on 15.4.1990, 

the first respondent raised a challenge objecting to Brig. S.K.Kaushal being 

the Presiding Officer, as he was disqualified from serving on a GCM having 

regard to clause (c) of sub-rule (2) of Rule 39 of the Army Rules 1954 

(`Rules' for short). He further alleged that the Presiding Officer would have 

formulated an opinion in regard to the incident and consequently, be biased. 

In spite of it, the Convening Authority wrongly directed the GCM to 

proceed, overruling his objection under section 130 of the Act read with rule 

44 of the Rules. He submits that participation by the Presiding Officer 

vitiated the entire proceedings, rendering the same invalid and void. 

15. Rule 39 of the Army Rules 1954 reads thus : 

 "39. Ineligibility and disqualification of officers for court-martial.--(1) An 

 officer is not eligible for serving on a court-martial if he is not subject to the Act.

 (2) An officer is disqualified for serving on a general or district court-martial if he

 --

 (a) Is an officer who convened the court; or 

 (b) Is the prosecutor or a witness for the prosecution; or

 15

 (c) Investigated the charges before trial, or took down the summary of evidence, 

 or was a member of a court of inquiry respecting the matters on which the 

 charges against the accused are founded, or was the squadron, battery, 

 company, or other commander, who made preliminary inquiry into the case, or 

 was a member of a previous court-martial which tried the accused in respect of 

 the same offence; or

 (d) Is the commanding officer of the accused, or of the corps to which the 

 accused belongs; or 

 (e) Has a personal interest in the case.

 (3) The provost-marshal or assistant provost-marshal is disqualified from serving 

 on a general court-martial or district court-martial."

It is clear from Rule 39 that an officer is disqualified for serving on a GCM 

if (i) he had investigated the charges before trial, or (ii) he took down the 

summary of evidence, or (iii) he was a member of a court of inquiry 

respecting the matters on which the charges against the accused were 

founded, or (iv) he was a Squadron, Battery, Company or other Commander 

who made preliminary inquiry into the case, or (v) he was a member of a 

previous Court Martial which tried the accused in respect of the same 

offence. A careful reading of the said Rule demonstrates that the act of 

summarily trying others for other offences relating to the same incident is 

not a ground of disqualification. The charges against the first respondent 

were completely different from the charges against the persons who were 

summarily tried by Brig. Kaushal. The Presiding Officer did not suffer from 

any of the disqualifications enumerated in Rule 39. The Convening 

 16

Authority was therefore justified in directing the GCM to proceed with the 

trial. Therefore, the challenge to the constitution of the GCM with Brig. 

Kaushal as the Presiding Officer is liable to be rejected. 

16. The High Court did not find any merit in the contention that after the 

Court Martial was constituted on 3.2.1993, the first respondent ought to have 

given 96 hours after giving the names of the members constituting the Court 

Martial. The first respondent has also not established his allegations that 

Judge Advocate was biased and Dy. JAG who ultimately reviewed the 

findings, was also biased as he was actively guiding the prosecution. The 

first respondent has not been able to demonstrate any error in the finding of 

the High Court that there was no infirmity in the constitution of the Court 

Martial and the procedure followed by it. 

Re : Question (iii)

17. The principles relating to judicial review in regard to court martial 

proceedings are well settled. Unless the court martial has acted without 

jurisdiction, or exceeded its jurisdiction or had acted perversely or 

arbitrarily, the proceedings and decision of the court martial will not be 

 17

interfered in exercise of power of judicial review. In Union of India vs. 

Major A. Hussain - 1998 (1) SCC 537, this Court held : 

 "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 court must 

 stay its hands. Proceedings of a court-martial are not to be compared with 

 the proceedings in a criminal court under the CrPC 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 specialised part of overall mechanism by which the military dis-

 cipline 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 safe-

 guards. If one looks at the provisions of law relating to court-martial in the 

 Army Act, the Army Rules, Defence Service Regulations and other Ad-

 ministrative Instructions of the Army, it is manifestly clear that the proce-

 dure prescribed is perhaps equally fair if not more than a criminal trial 

 provides to the accused. When there is sufficient evidence to sustain con-

 viction, it is unnecessary to examine if pre-trial investigation was adequate 

 or not. Requirement of proper and adequate investigation is not jurisdic-

 tional and any violation thereof does not invalidate the court-martial un-

 less it is shown that the accused has been prejudiced or a mandatory provi-

 sion has been violated. One may usefully refer to Rule 149 quoted above. 

 The High Court should not allow the challenge to the validity of convic-

 tion and sentence of the accused when evidence is sufficient, court-martial 

 has jurisdiction over the subject-matter and has followed the prescribed 

 procedure and is within its powers to award punishment."

18. The High Court after exhaustive consideration found that the trial was 

conducted in accordance with the rules and there was no violation of the 

procedure or principles of natural justice. On behalf of the prosecution, as 

 18

many as 13 witnesses were examined. A large number of documents 

(marked A to Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart 

from three material objects (ME1 to ME 3) were exhibited. The first 

respondent was supplied with complete set of proceedings including all 

exhibits. He was permitted to have the assistance of a legal practitioner. He 

was given due opportunity to cross examine the witnesses and lead his own 

evidence. After completion of evidence, the General Court Martial put 

questions to the accused with reference to the evidence and gave him an 

opportunity to explain his position. Detailed submissions on behalf of the 

prosecution and the defence were heard. It was thereafter that the Court 

Martial gave its findings and imposed the punishment. This is not a case of 

no-evidence. Inadequacy and unreliability of evidence are not grounds for 

interference. The Court Martial had jurisdiction. Violation of prescribed 

procedure has not been made out. In exercise of power of judicial review, it 

is not possible to re-assess the evidence or sit in judgment over the finding 

of guilt recorded by the Military Tribunal. The scope of interference with the 

findings of the GCM is very narrow and should be exercised in rare cases. 

This is not one of them. We, therefore, find no reason to interfere with 

findings of guilt regarding changes 1, 4 and 5(c). 

 19

Re : Question (iii)

19. This takes us to the last question as to whether the punishment of 

dismissal is shockingly disproportionate to the gravity of the charges. The 

principles relating to judicial review of punishment imposed, as a part of the 

decision making process by Court Martial, have been explained, in Ranjit 

Thakur vs. Union of India - 1987 (4) SCC 611, where this Court interfered 

with the punishment imposed by a court martial on the ground that it was 

strikingly disproportionate to the gravity of offence on the following 

reasoning : 

 "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 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 Union of India vs. R.K. Sharma - 2001 (9) SCC 492, this Court explained 

the observations in Ranjit Thakur. It clarified that in Ranjit Thakur, the 

charge was ridiculous, the punishment was harsh and disproportionate and it 

was on such gross facts that this Court had held that the punishment was so 

 20

strikingly disproportionate that it called for interference; and the said 

observations in Ranjit Thakur are not to be taken to mean that a court can, 

while exercising the power of judicial review, interfere with the punishment 

merely because it considers the punishment to be disproportionate. It was 

held that only in extreme cases, which on their face, show perversity or 

irrationality, there could be judicial review and merely on compassionate 

grounds, courts should not interfere. In this background, we may examine 

the third question. 

20. The charges that are held to be proved against the first respondent, 

are: (i) Being the Contract Operating Officer for dressed meat, the first 

respondent with intent to defraud, caused the acceptance of meat from the 

contractor with `heart' as part of the meat knowing that the same was not 

acceptable part of carcasses as per para 86 of special conditions of the 

contract (vide first charge); (ii) The first respondent, as the Commandant 

incharge of the Supply Depot failed to ensure that required stocks were 

maintained as reserve, in the Butchery as required by para 51(a) of the 

special conditions of contract (vide fourth charge); (iii) The first respondent 

as the Commandant responsible for the overall control of the operation of 

the Butchery improperly failed to implement the standard operating 

 21

procedure for Butchery resulting in `passed' animals not being segregated 

and being allowed to mix with the other animals of the contractor. 

21. According to the charge-sheet, the first charge was an offence falling 

under section 52(f) of the Act which provides that subject to the provisions 

of the Act, any person who does anything with intent to defraud, or to cause 

wrongful gain to one person or wrongful loss to another person, shall, on 

conviction by court martial, be liable to suffer imprisonment for a term 

which may extend to ten years or such less punishment as is mentioned in 

the Act. The other two charges which are held to be proved relate to acts or 

omissions which are said to be "prejudicial to good order and military 

discipline" punishable under section 63 of the Act on conviction by Court 

Martial, with imprisonment for a term which may extend to seven years or 

such less punishment as is mentioned in the Act. We may now consider the 

nature and content of the charges proved. Section 52(f) and section 63 are 

very broadly and generally worded and deal with residuary offences, (one 

dealing with property and another dealing with discipline) to provide for and 

cover offences which are not specifically provided in sections 34 to 64 of the 

Act. The offences under these residuary provisions may fall under a wide 

spectrum, ranging from the mildest technical violations to the severest 

 22

offences relating to fraud or gross indiscipline. It is therefore necessary to 

find the degree of gravity of the offence when a person is found guilty of 

offences under section 52(f) or section 63. Only then, the court can consider 

whether the punishment is so disproportionate to the gravity of the proved 

offences that it shocks the conscience of the court or is so perverse or 

irrational that it cannot be allowed to stand. As held by this Court 

repeatedly, there could be no judicial review merely because the court feels 

that the punishment should have been lesser or on the ground of sympathy or 

compassion. 

22. It is necessary to know who was responsible for what in the butchery. 

As per the standard operating procedure of Butchery, the responsibility has 

been divided among the Supervisory Officer, JCOs and NCOs. The duties of 

the supervisory officer included the following : 

 "Duties of Supervisory Officer

 The Supervising Officer, Butchery will be responsible for the proper and 

 efficient functioning of the butchery. He will : 

 (a) Be responsible for passing goat and sheep and maintaining the 

 reserve stock of animals at all times. 

 (b) Ensure that proper branding of animals is carried out without any 

 cruelty to the animals and the branding so done lasts till the carcass 

 is passed fit by the veterinary officer. 

 23

 (c) Be personally responsible for the books and records showing 

 reserve stock and animals passed. The records must be complete 

 and up to date at all times and signed by him duly completed in all 

 respects. 

 (d) Visit butchery during slaughter hours at least once a week. 

 (e) Ensure that the butchery surroundings are kept scrupulously clean. 

 (f) Ensure that branding irons are kept in sealed box in quarter guard 

 and take the same whenever required for branding the animals. 

 (g) Ensure that branding irons are not left over with any body in the 

 butchery. He will also ensure that weights and measures are 

 calibrated periodically by the workshop. 

 (h) He will ensure that the quality of meat always conforms to ASC 

 specifications and no deviation from these specifications will be 

 allowed. In doing so he will ensure that the contractor does not use 

 unfair means such as use of water except for cleaning of carcasses. 

 (i) He will be present in the butchery throughout the issue time and 

 will ensure that units get their entitlements. He will also ensure that 

 every unit rep signs for the quantity and quality of the items being 

 collected. He will be responsible to check the following documents 

 maint in the butchery for its correctness and will be responsible to 

 put up the same to Commandant once a month : 

 xxxxxx

The duties of JCOs: 

(a) "He is responsible for the smooth functioning of the butchery 

 under the order of Supervising Officer.

(b) He will ensure that highest standard of cleanliness is maintained in 

 the butchery.

(c) He will ensure that reserve stock of animals is maintained by the 

 contractor at all times. 

(d) He will ensure that strict security is observed as regards to 

 segregation pen, hanging room, disposal of rejected meat by the 

 VO and disposal of dead and rejected animals.

(e) He will supervise the slaughter of all animals as per procedure laid 

 down in order from time to time. He will be personally responsible 

 24

 to ensure that only jhatka meat is being issued unless otherwise 

 demanded by a unit. 

(f) He will be responsible to observe the slaughtering animals. He will 

 ensure that only branded and segregated animals are slaughtered 

 and will be present throughout the slaughtering times. He will 

 ensure that no water is injected in the carcasses by contractor. He 

 will ensure that the grown weight is taken and minimum 5 hrs 

 setting time is allowed. 

(g) He will ensure that books and records maintained in the butchery 

 are kept up to date at all times. 

(h) He will be responsible to supervise the issue of meat to troops and 

 ensure that correct quantity as per their demand is issued and 

 receipt of the same is obtained. 

(i) He will ensure that proper duties are allotted to other NCO's and 

 Sepoy detailed to assist him. 

(j) He will ensure that from the time of slaughtering to the time of 

 issue, the butchery will be open and NCO/Sepoy will sleep at night 

 properly guarded in the butchery. 

(k) He will be responsible for proper setting of meat in that he will see 

 that the butchers do not use water for any other purpose except for 

 the cleaning of carcasses. 

(l) He will ensure that the meat is properly set before the postmortem 

 is carried out by Veterinary Officer and will be responsible for 

 retail issue to units. 

The duties of the Veterinary Officer : 

"He will be responsible for ante-mortem and post mortem inspection. His 

advice as a rule will be accepted unless there are other reasons. He will 

ensure that only good and hygienic meat is issued to troops. In doing so he 

will ensure : 

 a. That offals which are not edible are removed. 

 b. That the meat or the carcasses which is unfit for human 

 consumption is removed. 

 c. He will ensure that the rejected meat potion/carcasses are 

 destroyed either by burning or by deep burying in his presence. 

 d. He will ensure that meat inspected by him is properly set and 

 no water is dripping from the carcasses. He will bring to the 

 25

 notice of SO butchery and Commandant if any water is found 

 in the carcasses so that remedial measures can be taken. 

 e. He will ensure that veterinary officer stamp has been put on 

 each and every carcasses including the portion of carcasses 

 after he had carried out the post mortem examination. 

The Commandant was to be in overall charge of the supply depot and his 

duties were as under : 

 "(a) A CO will supervise and control all duties performed by those 

 under his command, and will be held accountable for, and be responsible 

 for the security and condition of, all public buildings, armaments, 

 equipment and stores, of whatever description, appertaining to or on 

 charge of his unit, corps or establishment. 

 (b) A CO is responsible for the correct receipt, issue, accounting and 

 stock taking of all supplies, stores and equipment received or issued by the 

 unit. He will ensure that daily issues are inspected and weighed in the 

 presence of an officer or a Junior Commissioner Officer. 

 (c) A CO is responsible for the maintenance of discipline, efficiency 

 and proper administration in the unit under his command. He is also 

 responsible for its training and readiness for war." 

23. We may now consider the first charge. The charge that has been held 

to have been proved is an offence under section 52(f) of the Act that is while 

commanding the supply depot, the first respondent being the Contract 

Operating Officer for dressed meat, with intent to defraud, caused the 

acceptance of meat from the contractor with heart as part of meat between 

1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of 

the carcass as per para 86 of the Special Conditions of Contract. What was 

 26

established was that when the butchery was raided and the meat issued to 

units were inspected on 14.2.1990, it was found that out of the dressed meat 

weighing 1411.2 kgs. that was issued to various units, the weight of hearts 

found as part of the meat was 14.5 kgs. The Supervisory Officer and 

Veterinary Officer have been charged and punished in this behalf. The case 

against the first respondent was not that he had instructed heart to be 

accepted as part of dressed meat nor is it the case that heart was being 

regularly accepted as part of dressed meat from the contractor. The case 

against first respondent was that when the butchery was being inspected on 

14.2.1990, the first respondent as Commandant visited the butchery and 

during discussions with the inspecting officers made an observation that to 

the best of his knowledge, heart was an edible offal and could be issued on 

demand of units and also reiterated the said observation in his confidential 

report dated 15.2.1990. Making of the said remark has been interpreted as 

the first respondent accepting meat from the contractor with heart as part of 

the dressed meat, knowing well that heart was not acceptable part of carcass; 

to defraud the government. This charge depends upon the interpretation of 

para 86 of the special conditions of the contract and an inference that his 

understanding of para 86 amounted to causing acceptance of heart as part of 

the dressed meat. 

 27

24. Para 86 of the `special conditions - meat dressed/meat on hoof' reads 

as under : 

 "86. I/We agree that I/We will supply meat dressed (Jhatka/Halal) as per 

 ASC Specification No.115, including liver, kidney and testicles passed fit 

 by the Veterinary Officer/Contract Operating Officer of the total arising of 

 carcasses and as a part of meat dressed at the rate of meat dressed 

 (Jhatka/Halal) by weight as given in the schedule. Any other offals, 

 cuttings and arising of meat carcasses will not be taken over by the 

 Contract Operating Officer. The same will be removed by me/us and will 

 be disposed off by me/us in any manner I/We like at my/our cost." 

 (emphasis supplied)

The word `offal' has two meanings. Firstly, it refers to the edible internal 

parts of an animal such as heart, livers, kidneys, testicles and tongue. 

Secondly the term `offal' refers to the refuse or waste that is cuttings and 

other non-edible parts of the animal which are either fallen or cut-off. One 

way of interpreting clause 86 of the special conditions of contract is that the 

dressed meat supplied may include liver, kidney, testicles (which are 

specifically mentioned) but not other edible internal parts like heart and 

tongue. The other interpretation in view of the use of the words "including 

liver, kidney, testicles" would be that the dressed meat can include all edible 

internal parts which include liver, kidney, and testicles as also heart, and 

what should be excluded from the supply are other waste like cuttings, fallen 

portions and inedible portions. Be that as it may. Even if we proceed on the 

 28

basis that clause 86 should be interpreted as specifying that the dressed meat 

to be supplied could include only liver, kidney and testicles, but not heart, 

that by itself does not mean that the appellant committed any offence. On the 

day of raid and inspection, it was found that the supplies included heart (out 

of a take quantity of 1411.2 kg. of meat supplied to various indenting units, 

14.5 kgs. were heart). The first respondent who visited the Butchery at the 

time of the inspection observed that the heart is also an edible offal and 

could be issued on demand by the units. He did not say that heart was a part 

of dressed meat under clause 86 or that heart was required to be regularly 

supplied as part of dressed meat. No evidence was given that he had 

instructed the butchery staff to accept `heart' as part of dressed meat and 

issue it to the units. It is of some interest to note that the first respondent had 

stated that the earlier supply contract was in the monopoly of one Om 

Prakash and when that was broken and the contract was given to M/s Rajan 

Malik & Co., Om Prakash became inimical to M/s Rajan Malik & Co., that 

some of the persons employed by M/s Rajan Malik & Co. in the Butchery 

where ex-employees of Om Prakash owing allegiance to Om Prakash, that 

some mischief had been done at the instance of Om Prakash to prevent 

Rajan Malik & Co. from continuing as contractor, that the raid was at the 

instance of Om Prakash and that he and his henchmen were present all 

 29

through the inspection. The first respondent submitted that he was a victim 

in a fight between the contractors. Be that as it may. Therefore, all that is 

established is at best a wrong interpretation of clause 86 of the Special 

Conditions of Contract. 

25. The charge 4 is that between 11.3.1990 and 22.3.1990, the first 

respondent failed to ensure that the reserve stock of animals were maintained 

in the butchery as per para 51(a) of the Special Conditions of Contract. Here 

again the charge should be properly understood. The first respondent was 

not the supplier of the animals. The government had entered into a contract 

with that supplier and clause 51(a) of Special Conditions is an undertaking 

by the Contractor which reads thus : "I/We shall maintain complete at all 

time from/upto .......... as reserve of not less than three days supply animals 

(sheep/goat) based on the average number of animals to be slaughtered as 

meat on hoof daily". Contract also provided (vide clause 52) that if the 

contractor failed to do so, the supply officer shall be at liberty to effect risk 

purchase be effected at the cost of the contractor and also take other steps. 

Therefore, failure to maintain reserve stocks of animals was not an omission 

on the part of any person in charge or overall charge of the butchery, but a 

breach by the contractor. The omission that could be attributed to the officer 

 30

in-charge of the butchery or the first respondent is that when the contractor 

failed to maintain reserves failure to bring it to the contractor's notice or 

failure to take action to make risk purchase and other steps in terms of the 

contract. But the charge is not that risk purchase was not effected or that the 

first respondent failed to take necessary remedial steps. The evidence 

showed that arrangements were made to procure the animals required for 

slaughter on day to day basis to ensure no breaks in supply of meat. It has 

also come in evidence that ever since 1989, the first respondent had been 

informing and complaining to his higher ups that the Ambala area where the 

supply depot was situated, had a shortage of stock of animals, that the 

contractor was not in a position to maintain the required reserves and 

therefore, suggesting that tenders should be invited from contractors in Delhi 

where there was an abundance of stocks. Therefore, an omission of the 

contractor cannot be considered to be an omission on part of the Contract 

Operating Officer, particularly when he had pointed out deficiencies, and 

taken remedial steps. Therefore, the effect of the finding in regard to charge 

(4) is that the contractor did not keep any animals as reserve between 

11.3.1990 and 22.3.1990 as undertaken by it under clause 51(a) of the 

Special Conditions. The failure attributed to the supervisory staff of butchery 

and the first respondent who was in overall charge was that they failed to 

 31

ensure that the contractor performed his obligations. What is established 

against first respondent under charge (4) is therefore, only a technical lapse. 

26. Charge 5(c) is that the appellant failed to implement the standard 

operating procedure for butchery which required passed animals to be 

segregated and not allowed to mix with the other animals of the contractor. 

Animals that were branded and accepted for supply were the `passed 

animals'. The evidence was not that passed animals and other animals were 

being kept together. The evidence was that on a particular day when the 

surprise inspection took place, the passed animals had not been segregated 

from the other animals of the contractor which were yet to be branded and 

passed. It was also not disputed that there was no specific directive relating 

to segregation. Even if there was any lapse, it was a lapse of the JCO as per 

the standard procedure for the butchery and not the Commandant of the 

supply depot. The omission that could be attributed is at best would be a 

technical lapse as far as the first respondent is concerned. 

27. The omissions attributed to first respondent in regard to charges 4 

and 5(c) were actually omissions by his sub-ordinates and those sub-

ordinates were charge-sheeted. In regard to the subject of charges (1) and 

 32

(4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered 

and sentenced to undergo rigorous imprisonment for 30 months and the 

Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of 

eight years past service for the purpose of pension and severely 

reprimanded. In regard to the subject of charges (4) and 5(c), the 

Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role 

of the appellant being that of an overall controlling officer of the supply 

depot was limited and the charges in so far as the first respondent were 

technical in nature. But for the limitation of interference with regard to 

findings of fact in judicial review, this might even be a case for interference 

with the findings of guilt recorded. Be that as it may. 

28. In the circumstances, the punishment of dismissal from service is 

shockingly disproportionate to the gravity of the offences held to be proved. 

While we may not interfere with the findings of guilt, in a case of this 

nature, having regard to the nature of offences, we may consider the 

proportionality of punishment to find out whether it is perverse and 

irrational. Even accepting the said findings of guilt regarding charges (1), (4) 

and 5(c), it is clearly a case of shockingly disproportionate punishment being 

meted out to the Commandant for offering an alternative interpretation to 

 33

clause (86), for the lapses of his supervisory officer and for the breach 

committed by the contractor. In the normal course, we would have set aside 

the punishment and referred the matter back for consideration and 

imposition of a lesser punishment. But having regard to the fact that the 

matter is more than 20 years old and the first respondent reached the age of 

superannuation long ago, no purpose would be served, by referring it back to 

the appellants. We are of the view on the facts and circumstances, interests 

of justice would be served if the punishment of dismissal is substituted by 

the following punishment : (a) forfeiture of eight years of service for the 

purpose of pension; and (b) Severe reprimand. As a consequence, the order 

forfeiting pension requires to be set aside as pension can be denied under 

Pension Regulation 16(a) only to the officers who are cashiered, dismissed 

or removed from service. 

29. We accordingly dispose of the appeals as under : 

(i) We allow Criminal Appeal No.876 of 2003 and set aside the order of 

the High Court quashing the order dated 22.12.1995.

(ii) We allow Criminal Appeal No.877 of 2003 filed by the first 

respondent and set aside the order of punishment dated 30.7.1993 imposing 

the punishment of dismissal from service and substitute the same with the 

 34

punishment of forfeiture of eight years of service for purposes of pension 

and severe reprimand. 

(iii) As a consequence of the punishment of dismissal being set aside and 

substituted by a lesser punishment necessarily, the order dated 22.12.1995 

forfeiting the pension, passed under Pension Regulation 16(a), is set aside. 

The respondents are directed to process and settle his pension claim within 

six months.

(iv) The first respondent will not be entitled to any back-wages from the 

date of his dismissal to the date of his superannuation, as a consequence of 

his dismissal being set aside. 

 .............................J

 [R. V. Raveendran]

 .............................J

 [P. Sathasivam]

New Delhi; September 12, 2011. 

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