Sepoy Lakhbir Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 504 Del

JUDGMENT

Vijender Jain, J.

1. The petitioner has filed this writ petition aggrieved by the order of summary court martial dated 3.1.92, awarding six months imprisonment and dismissal from service. Mr. Bikramjit Nayar counsel for the petitioner has contended that the award of dismissal by the summary court martial was illegal and without jurisdiction. On 25.1.96, Division Bench of this Court passed the following order:-

"Counsel for the petitioner urges that one of his contentions is that the penalty of dismissal awarded to the petitioner is not contemplated in respect of the charges which were brought against the petitioner before the Summary Court martial. Sections 39(a) and 48 of the Army Act are the provisions under which the petitioner was charged before the Summary Court Martial. He has pointed out that under these provisions the penalty of dismissal from service is not contemplated for the officials of the rank of the petitioner. This point was taken by the petitioner in his representation dated 26th March, 1992 but the representation was rejected without indicating whether this point has been considered, if so, what could be the reason for not agreeing with the submissions of the petitioner. Even in the counter affidavit the respondents have not clarified this point. Counsel for the respondents states that he would like to study this point and seeks adjournment."

2. Today again Mr. Nayyar has contended that in spite of the order passed on 25.1.1996, the respondents have not filed any affidavit on this point in this Court. Mr. Nayyar has further contended that the petitioner was a sepoy attached with 28th Battalion, Punjab Regiment and he has been punished for minor and trivial offence. The charge sheet at page 20 of the paper book is to the following effect:-

"ABSENTING HIMSELF WITHOUT LEAVE" First Charge Army Act Section 39(a) In that he,

"When on active service in 'Operation Rhino' absented himself without leave from unit area (Headquarters 2 Mountain Division Camp) at 0800h on 29 Dec. 91 and remained so absent till apprehended by civil police at 1530h on 29 Dec. 91."

"INTOXICATION"    Second Charge
     Army Act
     Section 48
  in that he,

"When on active service in 'Operation
Rhino' having absented himself without
proper permission consumed liquor from
unauthorised sources and found in state of
intoxication at 1503h on 29 Dec. 91."
 
 

3. From the bare perusal of the charges, the petitioner absented himself without leave till 1530 hours on 29th December, 1991, when he was allegedly apprehended. That makes unauthorised leave from Unit for seven and a half hours and the second charge was that he had consumed liquor and was found in the state of intoxication at 1530 hours on 29th December, 1991.

4. Quoting from Mr. Nayyar has contended that the punishment awarded was not proportionate. Mr. Nayyar has also contended that trial of the petitioner had commenced from 1430 and by 1500 hours on the same day it had concluded with the pronouncement of severe sentence and the commanding officer had simply provided the brief proceedings even before the trial had commenced and he had got the copies typed before hand and therefore the provisions of Army Rule 115(2) had not been complied. It was contended that the signature of the petitioner was obtained even before the trial.

5. On the other hand Major Vijay Kumar appearing for the respondent has contended that this Court is not a Court of Appeal and would not sit in the judgment of the summary court martial. He has further contended that from a conjoint reading of Section 39(a) 48, 71, 72 and 73 of the Army Act, summary court martial could have awarded the punishment of dismissal from service. He has further contended that from the previous records and conduct of the petitioner, petitioner was not a fit person to be retained in the Army. He has further contended that the respondent has complied with the army rules while holding summary court martial.

6. I have given my careful consideration to the arguments advanced by counsel for both the parties.

7. In Ranjit Thakur v. Union of India, it was held that irrationality and perversity were recognised grounds of judicial review.

8. The controversy revolves about the interpretation of Sections 71, 72 and 73 of the Army Act. The same are reproduced below:

"71. Punishment awardable by courts-martial.- Punishment may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts-martial, according to the scale following, that is to say,-

(a) death;

(b) transportation for live or for any period not less than seven years;

(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;

(d) cashiering, in the case of officers;

(e) dismissal from the service;

(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned officers:

(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length or service;

(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(i) severe reprimand or reprimand, in the case of of officers, junior commissioned officers, warrant officers and non-commissioned officers;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;

(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;

(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

72. Alternative punishments awardable by court martial.- Subject to the provisions of this Act, a court martial may, on convicting a person subject to this Act or any of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thererof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence.

73. Combination of punishments.- A sentence of a court-martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of Section 71 and any one or more of the punishments specified in clauses (f) to (l) of that section."

9. The relevant Section under which charge sheet was issued to the petitioner is Section 39 which is to the following effect:-

"39. Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say,-

(a) absent himself without leave;

or .....

shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned."

10. Section 48 which is also relevant for deciding the controversy is to be following effect:-

"48. Intoxication.-(1) Any person subject to this Act who is found in a state of intoxication, whether on duty or not, shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is not an officer, be liable, subject to the provisions of Sub-section (2), to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

(2) Where an offence of being intoxicated is committed by a person other than an officer when not an active service or not an duty, the period of imprisonment awarded shall not exceed six months."

11. Major Vijay Kumar on the basis of Section 71, 72 & 73 has tried to urge before me that although Section 39(a) and 48 of the Army Act does not provide punishment of dismissal of service but from a conjoint reading of Sections 71, 72 & 73, a penalty of dismissal could be awarded by the summary court martial. The submission of Major Vijay Kumar is totally contrary to what was held by Supreme Court in Sardar Singh v. Union of India AIR 1992, SC 417. Their lordship in Sardar Singh's case(Supra) held:-

"It can be seen that under Section 73 of the Act, the court-martial may award more than one punishments as mentioned therein. In the instant case Section 63 also is not mentioned in the charge-sheet. Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment the court-martial has to keep in view the spirit behind Section 72 of the Act and it has to give due regard to the nature and degree of the offence. It can be seen that Section 63 provides for awarding any of the Lesser punishments enumerated in Section 71 of the Act. In view of these provisions of law and having regard to the nature and degree of the offence, we are firmly of the view that the punishments awarded to the appellant namely, three months' R.I. and dismissal from service are severe and are also violative of Section 72."

12. Similarly in the instant case the petitioner was charged under Sections 39(a) and 48 of the Army Act. Respondent had to give regard to the nature and degree of offence. Resultant punishment of dismissal from service awarded to the petitioner for charges of seven and half hours unauthorised leave and found to be under intoxication are not only severe and harsh, but disproportionate to the nature and degree of offence.

Normally this Court would be reluctant to interfere with regard to quantum of punishment awarded by the summary court martial as the same is within the jurisdiction and discretion of the court martial, but the basic principle is that the sentence has to suit offence and the offender. It should not be vindictive or unduly harsh. It should not be disproportionate 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.

13. The statutory appeal under Section 164(1) & (2) of the Army Act was submitted by the petitioner to the Chief of the Army Staff and Chief of the Army Staff had also not taken into consideration the point raised by the petitioner with regard to award of punishment of jurisdiction of Sections 39(a) and 48 of the Army Act.

14. On this ground also the award of dismissal from service passed by the summary court martial suffers from illegality. In the circumstances, I remand the case back to the Chief of the Army Staff who is the competent authority to consider the representation of the petitioner in the light of what has been observed in the judgment and award any of the lesser punishment having due regard to the nature and circumstances of the case. The detention suffered by the petitioner after the order of the court martial shall not be treated as a disqualification for being reinstated into service which shall be subject to minor punishment to be awarded with all consequential benefits to the petitioner.

15. Mr. Nayyar counsel for the petitioner says that in order to avoid any delay he will file new representation with the Chief of the Army staff within two weeks. The Chief of the Army Staff shall take the decision in terms of observations made above, within eight weeks, thereafter.

16. Petition stands disposed of accordingly.