Union Of India & Ors vs Bodupalli Gopalaswami

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.