Madhya Pradesh High Court
No.143003734(Naik Gd)Ravinder ... vs Union Of India on 23 June, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
WRIT APPEAL No. 594 of 2006
Between:-
NO.143003734 (NAIK GD) RAVINDER PANDEY S/O
MITHILESH PANDEY, EX-75, MEDIUM
REGIMENT, AGED ABOUT 54 YEARS,
OCCUPATION: VILLAGE AND POST MEHUTI
DISTRICT SATNA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI KAILASH CHANDRA GHILDIYAL - SENIOR
ADVOCATE ASSISTED BY SHRI ADITYA VEER SINGH -
ADVOCATE)
AND
1. UNION OF INDIA THROUGH : SECRETARY
MINISTRY OF DEFENCE SOUTH BLOCK NEW
DELHI
2. CHIEF OF ARMY STAFF ARMY HEAD QUARTERS
NEW DELHI
3. COMMANDER 19, ARTILLERY BRIGADE C/O 56
APO
4. COMMANDING OFFICER 75, MEDIUM
REGIMENT C/O 56 APO
.....RESPONDENTS
(BY MS. KANAK GAHARWAR - ADVOCATE)
Signature Not Verified
SAN
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.06.24 14:42:05 IST
2
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Reserved on : 14.06.2022
Delivered on : 23.06.2022
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This appeal coming on for hearing this day, Hon'ble Shri Justice
Vishal Mishra, passed the following:
ORDER
Present Writ Appeal under Section 2(1) of Madhya Pradesh Uchcha
Nyayalaya (Khand Peeth Ko Appeal) Adhiniyam, 2005 has been filed
assailing the order dated 08.11.2005 passed by learned Single Judge in
Miscellaneous Petition No.3196 of 1992 dismissing the writ petition on
merits.
2. Facts giving rise to the litigation are that the appellant was enrolled
in the Army (Corps of Artillery) on 03rd of September, 1969. He was
promoted to the ranks of Lance Naik and Naik respectively and due for
promotion to the rank of Havaldar. The petitioner's promotion was
obstructed, for which, a complaint was made by him on 12/13 of January,
1988 before the Chief of Army Staff. The unit of the petitioner was
moved from Gurgaon to some where in Northern Sector. Hence, a small
unit was left for Gurgaon. The appellant proceeded on annual leave from
12th January, 1988 to 13th March, 1988. He reported back from leave on
23rd of March, 1988. It was pointed out that the authorities were annoyed
with the appellant and alleged that on 15th January, 1988 at Raj Rifle
Regimental Centre, Delhi, he had taken Rs.12,000/- from Gunner Balwan
Singh of his unit. The charges were levelled against the appellant under
Section 64(a) of the Army Act regarding accepting of illegal gratification
to the tune of Rs.12,000/- for procuring enrollment of Shri Siya Ram and
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SAN Shri Madan Lal. The respondent No.3 ordered the trial by a District Court
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JHARIYA
Date: 2022.06.24 14:42:05 IST
Martial. On 9th of December, 1988, the Court found the appellant to be
guilty of the charges and awarded punishment to suffer rigorous
imprisonment for one year and to be dismissed from the service vide
order of sentence dated 20th of December, 1988 and in pursuance to the
same, he was arrested on 15th of December, 1988.
3. The appellant while in custody made a representation on 04 th of
March, 1989 to the Chief of Army Staff and the same was considered and
rejected on 16.08.1989. The appellant preferred a separate petition on
09th of November, 1990 to the Central Government for grant of pension
and it was informed to the appellant vide letter dated 07th May, 1991 of
the Ministry of Defence, Government of India that since the appellant
was dismissed from service, therefore, he was not entitled for pensionary
benefits. Thereafter, the impugned punishment in the proceedings of
District Court Martial has been put to challenge by way of filing the
Miscellaneous Petition and learned Writ Court has dismissed the
Miscellaneous Petition vide impugned order dated 08.11.2005.
4. Learned Senior Counsel appearing for the appellant submits that
legal ground regarding the competency of the authority to conduct the
District Court Martial proceedings is neither pleaded in the miscellaneous
petition nor in this writ appeal, but as the legal ground is available to him,
therefore, he may be permitted to argued on the same.
5. The aforesaid aspect is not objected by the counsel appearing for
the respondents as the legal issue can always be addressed before the
Court. Therefore, this Court has permitted the appellant's counsel to
argue the legal issue.
6. It is pointed out that the competent authority has not passed a
convening order, rather the order has been signed by one Satish Chander,
Signature Not Verified
SAN Major, Deputy Assistant Accountant General for Officiating Commander,
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.06.24 14:42:05 IST
which is not permissible under the Army Act, 1950 and the Army Rules,
1954. Section 109 of the Act provides that a general court-martial may be
convened by the Central Government of the Chief of the Army Staff or by
any officer empowered in this behalf by warrant of the Chief of the Army
Staff. Section 110 of the Army Act provides that a district court martial
may be convened by an officer having power to convene a general court-
martial or by officer empowered in this behalf by way of any such officer.
7. It is further pointed out that convening order does not reflect that it
has been passed by a competent authority under the Army Act and,
therefore, the entire proceedings are vitiated as the same has not been
drawn up by a competent authority. Heavy reliance has been placed upon
a judgment of Hon'ble Supreme Court in the case of Union of India vs.
Harish Chandra Goswami reported in 1999 (4) SCC 575.
8. Apart from the ground of jurisdiction, other grounds have also been
raised regarding merits of the case. It is submitted that no proper
opportunity of hearing was provided to the appellant, the documents
relied upon by the authorities were not supplied to the appellant and no
proper procedure for carrying out district court-martial has been followed.
In absence of proper opportunity of hearing to defend himself, the entire
proceedings are bad in law. Taking us to various documents, he has tried
to demonstrate the deficiencies which have been committed by the
authority. But the fact remains that there is limited scope of interference
in the case of departmental enquiry as well as in the cases of district
court-martial and this Court cannot review the entire evidence. Hon'ble
Supreme Court in catena of judgments has considered the scope of
judicial review as far as the cases of departmental enquiry and court-
martial proceedings are concerned and has held that only procedural error
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SAN can be looked into in a judicial review.
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.06.24 14:42:05 IST
9. Learned writ Court has considered all the aspects as far as merits of
the case is concerned taking into consideration several judgments passed
by Hon'ble Supreme Court and has held that district court-martial
resulted into dismissal of the appellant from service, therefore, he is not
entitled to claim pension and gratuity. Provisions of dismissal from
service makes the appellant ineligible for pension and gratuity in view of
the order passed by the Supreme Court in the case of Union of India vs.
Subedar Ram Narayan reported in 1998(8) SCC 52.
10. That, there is a very limited scope of interference as far as merits of
the case are concerned. The interference can only be made at the
procedural aspect, if it is showed to be defective and being an outcome of
a malafide or bias on the part of the authority. There were serious charges
of accepting illegal gratification against the appellant. Recently, the
Hon'ble Supreme Court in the case of Union of India and others vs.
Managobinda Samantaray (Civil Appeal Nos.1622-1623 of 2022
decided on 24.02.2022) has held as under:
"9. Impugned judgment by the Division Bench is
difficult to sustain as it equates appellate power under
Rule 52 of the CISF Rules, 2001, with power of judicial
review exercised by constitutional courts. Rule 523 of the
CISF Rules, 2001 empowers the appellate authority to
examine whether the penalty imposed is excessive,
adequate or inadequate and pass consequential order
confirming, enhancing, reducing or setting aside the
penalty.
Rule 52 - Consideration of appeals - (1) In the case of an
appeal against an order of suspension, the appellate
authority shall consider whether in the light of the
provisions of rule 33 and having regard to the
circumstances of the case, the order of suspension is
justified or not and confirm or revoke the order
accordingly.
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(2) In the case of an appeal against the order imposing
any of the penalties specified in rule
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JHARIYA
Date: 2022.06.24 14:42:05 IST
34, or enhancing any penalty imposed under the said
rules, the appellate authority shall consider -
(a) Whether the procedure laid down in these rules has
been complied with and if not, whether such non-
compliance has resulted in the violation of any
provisions of the Constitution of India or in the failure of
justice;
(b) Whether the findings of the disciplinary authority are
warranted on the basis of the evidence on the record ;
and
(c) whether the penalty or the enhanced penalty imposed
is excessive, or adequate, or inadequate and pass orders;
(i) Confirming, enhancing, reducing or setting aside the
penalty; or
(ii) Remitting the case to the authority which imposed or
enhanced the penalty, or to any other authority with such
direction as it may deem fit in the circumstances of the
case.
(iii) No order imposing enhanced penalty shall be made
in any other case unless the appellant has been given a
reasonable opportunity as far as may be in accordance
with the provisions of rule 37, of making a representation
against such enhanced penalty.
Provided that - (i) If such enhanced penalty which the
appellate authority proposes to impose is one of the
penalties specified in clauses (i) to (v) of rule 34 and an
inquiry under rule 36 has not already been held in the
case, the appellate authority shall, subject to the
provisions of rule 39, itself hold such an inquiry or direct
that such inquiry be held in accordance with rule 36 and
thereafter on a consideration of the proceedings of such
inquiry make such orders as it may deem fit; and
(ii) If the enhanced penalty which the appellate authority
proposes to impose is one of the penalties specified in
clause (i) to (v) of rule 34 and an inquiry under rule 36
has already been held in the case, the appellate authority
shall make such orders as it may deem fit.
In the present case, the procedure requiring issue
of show-cause notice and compliance with the principles
of natural justice is made. Quantum of punishment is
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SAN
within the discretionary domain and the sole power of
the decision-making authority once the charge of
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JHARIYA
Date: 2022.06.24 14:42:05 IST
misconduct stands proved. Such discretionary power is
exposed to judicial interference if exercised in a manner
which is grossly disproportionate to the fault, as the
constitutional courts while exercising the power of
judicial review do not assume the role of the appellate
authority. Writ jurisdiction is circumscribed by limits of
correcting errors of law, procedural error leading to
manifest injustice or violation of principles of natural
justice. The decision are also disturbed when it is found
to be ailing with perversity. On the question of quantum
of punishment, the court exercising the power of judicial
review can examine whether the authority has been a
reasonable employer and has taken into consideration
measure, magnitude and degree of misconduct and all
other relevant circumstances and excluded irrelevant
matters. In the context of quantum of punishment these
aspects are examined to consider whether there is any
error in decision making process. On merits of the
quantum of punishment imposed, the courts would not
interfere unless the exercise of discretion in awarding
punishment is perverse in the sense the punishment
imposed is grossly disproportionate."
11. In the case of Union of India and others vs. Pravin Kumar
(supra), the Hon'ble Supreme Court has held as under:
"28. It is thus well settled that the Constitutional Courts
while exercising their powers of judicial review would
not assume the role of an appellate authority. Their
jurisdiction is circumscribed by limits of correcting
errors of law, procedural errors leading to manifest
injustice or violation of principles of natural justice. Put
differently, judicial review is not analogous to venturing
into the merits of a case like an appellate authority"
.
12. In the case of Union of India and others vs. P. Gunasekaran
reported in (2015) 2 SCC 610, the Hon'ble Supreme Court has held as
under:
"12. Despite the well-settled position, it is painfully
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SAN disturbing to note that the High Court has acted as an
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JHARIYA
Date: 2022.06.24 14:42:05 IST
appellate authority in the disciplinary proceedings, re-
appreciating even the evidence before the enquiry officer.
The finding on Charge no. I was accepted by the
disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a
second court of first appeal. The High Court, in exercise
of its powers under Article 226/227 of the Constitution of
India, shall not venture into re- appreciation of the
evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice
in conducting the proceedings;
(d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could
ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India,
the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may appear
to be;
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SAN
(vii) go into the proportionality of punishment unless it
shocks its conscience."
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.06.24 14:42:05 IST
Looking to the limited scope of interference as far as merits of the
case are concerned, no glaring irregularity or procedural lapse could be
pointed out, therefore, the grounds raised are of no help to the appellant.
13. As far as competency of the authority is concerned, counsel
appearing for the respondent has drawn attention of this Court to the
documents filed alongwith the reply and the petition and has submitted
that the document dated 09th December, 1988 i.e. convening order was
signed by an authority in the name of Colonel Sandhu Gurdharshan Singh
Officiating Commander, 19 Artillery Brigade being a competent authority
in terms of Sections 109 & 110 of the Army Act. The endorsement of the
convening order should be made by the official personally or for him by
the staff officer. Admittedly, in the present case there is an endorsement
on the order that it has been passed by Colonel Sandhu Gurdharshan
Singh, Officiating Commander and was officiating by the Deputy
Assistant, Accountant General for Officiating Commander. The entire
proceedings in terms of Army Rule 22 has been carried out by the
commanding officer.
14. The fact that convening order can be signed by the staff of
competent officer was taken into consideration by Hon'ble Supreme court
in the case of Major G.S. Sodhi vs. Union of India reported in (1991) 2
SCC 382 wherein Hon'ble Court has held as under:
"18. Now we shall advert to some of the submissions
about the alleged defects in the general court-martial.
Under Section 109 the Act a general court-martial can
be convened by the Central Government or Chief of the
Army Staff or any officer empowered in this behalf by
warrant of the Chief of the Army Staff. It is submitted
that GOC Infantry Division could not have ordered the
general court-martial because GOC had examined and
studied the GOI and given investigative directions for
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SAN initiation of a disciplinary action and have recorded a
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JHARIYA
Date: 2022.06.24 14:42:05 IST
SOE. It is also submitted that warrant for convening the
general court-martial does not authorise a Staff officer
to sign the convening order. Even otherwise the
convening order has been signed in a mechanical way
and it is not in the name of concerned person in office. It
is also submitted that on 4th May, 1989 Col. S.K. Maini
informed the petitioner about his court-martial to be held
on 15th May, 1989 whereas the petitioner was issued a
charge-sheet on 8th May, 1989 and that general court
martial was convened on 15th May, 1989 whereas Col.
S.K. Maini had already detailed court composition on
10th May, 1989. The learned Counsel relied on Note 3b
to Section 109 page 361 of the book wherein it is stated
that if the officer on whom the command devolves is the
commanding officer of the person to be tried or an
officer who had investigated the case, he cannot
afterwards act as convening officer in the same case but
must refer it to a superior authority. The submission is
that the General Officer Commanding 9 Infantry
Division because of the above steps taken by him must be
deemed to have investigated the case, therefore he could
not have convened the general court-martial. From the
record we find the order convening the general court-
martial is signed by D.M. Jadhav, Lt. Col. for General
Officer Commanding 9 Infantry Division. It is stated that
he is the Principal Staff Officer. From this endorsement it
can be seen that he has signed for the General Officer. In
the form for convening the general court-martial
annexed to the Rules, we find an endorsement to the
effect that the convening order must be signed by the
officer personally or for him by a Staff Officer. Therefore
there is no noticeable defect because the convening order
is ultimately deemed to have been signed by a superior
officer namely General Officer and not the Officer who
investigated the case. "
15. After going through the aforesaid observations made by Hon'ble
Supreme Court and in terms of Sections 109 and 110 of the Army Act, it
is apparently clear that the convening order can be signed by the officer
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SAN personally or for him by the staff officer. Thus, the legal ground which
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JHARIYA
Date: 2022.06.24 14:42:05 IST
has been raised by counsel for the appellant has no legs to stand as the
convening order clearly reflects that the same has been signed by an
officer of the rank of Deputy Assistant, Accountant General for officiating
Commander Colonel Sandhu Gurdharshan Singh.
16. At this stage, learned Senior counsel has submitted that looking to
the length of service rendered by the appellant, a lenient view be taken
and the punishment imposed be modified to certain extent. Discipline is
the essence of the organization and structure of the Army. The appellant
was charge-sheeted for taking illegal gratification, which was found
proved in district court martial proceedings. He was held guilty. No
indulgence or latitude can be granted in such cases. No other grounds
have been raised by the appellant in the present case.
17. As far as interference in the cases of court martial proceedings is
concerned, the same can only be made if there is a jurisdictional error or
defects in the procedure adopted by the authority are pointed out or in the
event of any malafide or colourable exercise of powers by the authority is
demonstrated. Counsel for the appellant failed to show any malafide or
any procedural lapses being taken up by the authority while carrying out
the court martial proceedings.
18. In such circumstances, the order passed by the authority as well as
by the Writ Court are just and proper and does not call for any
interference in the present writ appeal.
19. The appeal sans merits and is accordingly dismissed. No orders as
to cost.
(RAVI MALIMATH) (VISHAL MISHRA)
Signature Not Verified
SAN
CHIEF JUSTICE JUDGE
SJ
Digitally signed by SUSHEEL KUMAR
JHARIYA
Date: 2022.06.24 14:42:05 IST
