Ex. Swar Ramji Rai vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 56 Del

JUDGMENT

Vijender Jain, J.

1. We have heard learned Counsel for the parties.

2. This Letters Patent Appeal has been filed by the appellant impugning the order passed by the learned Single Judge of this Court. Mr. Sinha, learned Counsel appearing for the appellant has contended that initially the order dismissing the appellant from the service was passed by the respondents on 19.12.1990, respondents had sentenced the appellant to undergo four months' rigorous imprisonment. It was contended that after having sentenced the appellant to undergo four months' rigorous imprisonment, the penalty of dismissal from the service was not proportionate to the offence committed by the appellant. In support of his contention, learned Counsel for the appellant has cited , S.N. Mukherjee v. Union of India and , Union of India and Anr. v. G. Ganayutham. Mr. Sinha has also contended that the law laid down by the Supreme Court in Ranjit Thakur v. Union of India and Ors., , even after the said judgment having been reviewed by the Supreme Court in , Union of India v. Ranjit Thakur, the operative paragraphs as appearing in the judgment, paragraphs 6 and 9 hold the field even today.

3. Mr. Chawla, learned Counsel appearing for the respondents has contended that there was no pre-determined mind of the respondents. Before recording of summary of evidence a show cause notice was given to the appellant, thereafter summary of evidence was recorded and thereafter Summary Court Martial proceedings took place and the appellant was found guilty, he was sentenced for four months' rigorous imprisonment as well as penalty of dismissal was imposed on the appellant in view of the overall career profile of the appellant. Our attention has been drawn to the counter-affidavit filed in the writ petition before the learned Single Judge. In paragraph 3(a) of the said counter-affidavit, it has been mentioned that the appellant was awarded 21 days' rigorous imprisonment on 20.4.1985 for an offence under Section 40(a) of the Army Act using criminal force on his superior officer and thereafter the appellant was awarded 7 days confinement on4.4.1986 for an offence under Section 54(b) of the Army Act for the loss of identity card, appellant was dismissed keeping in view of all these facts into consideration and was not only on account of the act pertaining to insubordination and misconduct for which he was given four months' rigorous imprisonment.

4. We have heard the arguments of learned Counsel for the parties. Initially when the appellant was dismissed from the service, that order was challenged by filing a writ petition in this Court (CW No. 2800/1991). That petition came up for hearing before a Division Bench. The said writ petition was dismissed. It seems that the appellant filed a special leave petition before the Supreme Court (SLP (Civil) No. 11802/1992). A statement was made by the Counsel for the petitioner that the

representation was filed before the Government of India and the same was pending, (although the pendency of the said representation has been disputed before us by the respondents) but we need not go into that issue as the Supreme Court had directed that the said representation be disposed of within two months. After the Union of India rejected the said representation, the appellant filed another Civil Writ Petition No. 1688/1993, which was dismissed on 28.11.2001. Against the dismissal of the said writ petition present Letters Patent Appeal has been filed.

5. We have gone through the judgment cited by learned Counsel for the appellant. We find no force in the argument of Mr. Sinha that this Court should interfere in view of the proportionality of punishment awarded by the respondents to the appellant keeping in view the circumstances of his wife's death and his own health condition. In Ranjit Thakur v. Union of India and Ors., Supreme Court held:

"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 proportionately, 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".

6. From the above proposition of law as enunciated in the aforesaid judgment, we are unable to persuade ourselves that decision making process suffers from arbitrariness or irrationality. To us it also does not seem to be based on perversity or in defiance of logic. The punishment has taken into consideration the past conduct of the appellant as well. We may also like to point out that we have perused the records shown by the respondents. The appellant in its representation has nowhere mentioned that Summary Court Martial was conducted behind his back. As a matter of fact, he himself has admitted that the Summary Court Martial proceedings took place in his presence, although he has taken the plea that he was in a state of shock on account of his wife's death and the same has also not been taken as a plea in the writ petition.

7. We find no merit in this appeal. The same is dismissed with no order as to costs.