REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.1027 OF 2002

Charanjit Lamba …Appellant

Versus

Commanding Officer, Southern …Respondents Command & Ors.

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  by  special  leave  arises  out  of  an  order  

dated 15th September,  1998 passed by the High Court  of  

judicature at Bombay whereby Criminal Writ Petition No.489  

of 1997 filed by the appellant has been dismissed and the

order  of  dismissal  from  service  on  proved  misconduct  

affirmed. The  factual  matrix  giving  rise  to  the  disciplinary  

proceedings against the appellant and his eventual dismissal  

from service has been set out by the High Court in the order  

under appeal.  We need not, therefore, re-count the same  

over again.  Suffice it to say that the appellant who at the  

relevant time was serving as a Major in the Indian Army was  

consequent upon a finding recorded against him in a Court  

of Inquiry brought up for trial before a General Court Martial  

(GCM for short) on the following two distinct charges:  

FIRST CHARGE ARMY ACT SECTION 52(f).

SUCH  AN  OFFENCE  AS  IS  MENTIONED  IN  CLAUSE (f)  OF  SECTION 52  OF THE ARMY  ACT,  WITH  INTENT  TO  CAUSE  WRONGFUL  LOSS TO A PERSON  

In that he, at field on 30th Jul 92, with intent  to cause wrongful gain to himself, improperly  claimed Rs.16,589.30 (Rs. Sixteen thousand  five  hundred  eighty  nine  and  paise  thirty  only)  from  CDA  (Q)  Pune  on  account  of  moving  his  household  luggage  and  car  to  Chandigarh, well knowing that he was legally  not entitled to the same.  

SECOND CHARGE, ARMY ACT SECTION 45

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BEING AN OFFICER BEHAVING IN A MANNER  UNBECOMING  HIS  POSITION  AND  THE  CHARACTER EXPECTED OF HIM  

In that he, at Pune, between 03 Sep 92 and  Jun  93,  improperly  failed  to  pay  the  final  electricity bill dated 03 Sep 92 amounting to  Rs.8132.35 (Rs. eight thousand one hundred  thirty  two  and  paise  thirty  five  only)  to  Maharashtra  State  Electricity  Board  (MSEB)  in respect of H No.12-B Kohun Road, Pune-1  which was allotted to him.”  

2. Evidence adduced before the GCM eventually led to the  

appellant  being  held  guilty  for  improperly  claiming  

Rs.16,589.30  on  account  of  transfer  of  his  household  

luggage and car to Chandigarh.  The GCM found that the  

family of the appellant had continued to occupy government  

accommodation at Pune even after his posting to the field  

area and that the agency who is alleged to have transported  

the luggage and the car of the appellant did not exist at the  

given address.  The evidence given by the appellant in his  

defence  was  also  found  by  the  GCM to  be  unreliable  on  

account of material  contradictions in the deposition of the  

defence  witnesses.  The  GCM on proof  of  the  said  charge  

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sentenced  him to  forfeiture  of  ten  years  past  service  for  

purposes of pension. In so far as the second charge, viz.  

non-payment  of  electricity  bill  was  concerned,  the  GCM  

declared the appellant not guilty. In its opinion the appellant  

had never refused to pay the electricity bill which was at any  

rate  a  matter  between  him  and  the  Maharashtra  State  

Electricity Board. The GCM took the view that the default of  

the petitioner could not be termed as conduct unbecoming of  

an  official  subject  to  the  Army  Act  to  call  for  any  penal  

action.   

3.      Aggrieved by the findings and the sentence awarded to  

him by the GCM the petitioner  filed an appeal  before the  

General Officer Commanding, Maharashtra and Gujarat Area  

(hereinafter  referred  to  as  the  ‘GOC  M  &  G  Area’)  who  

happened to be the confirming authority also.  The GOC M &  

G Area, however, took the view that the sentence awarded  

to the appellant on the first charge was lenient inasmuch as  

the  offence  committed  by  the  appellant  was  serious  and  

involved moral  turpitude.  It  also noted that  the  appellant  

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had past convictions to his credit which ought to be kept in  

view.  The  finding  recorded  by  the  GCM in  regard  to  the  

second charge framed against the appellant was also found  

to be untenable by GOC M & G Area as according to him the  

conduct of the appellant fell within the ambit of Section 4E  

of the Army Act which made his behaviour unbecoming of an  

officer. The  GOC  M  &  G  Area  accordingly  remanded  the  

matter back to the GCM for re-consideration on the question  

of  sentence  to  be  awarded  to  the  appellant  on  the  first  

charge and whether the appellant could be held guilty on the  

second charge. The order made it clear that the GOC M & G  

Area did not intend to interfere with the discretion vested in  

the GCM which was free to decide the matter in the manner  

it liked.

4.      The GCM accordingly assembled again to consider the  

matter  and  while  sticking  to  the  reasons  given  by  it  in  

regard to the first charge found the second charge also to  

have  been  proved.  The  GCM  on  that  basis  revoked  the  

earlier  sentence and sentenced the  appellant  to  dismissal  

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from  service  which  order  was  after  confirmation  by  the  

competent  authority  assailed  by  the  appellant  before  the  

High Court at  Bombay in Criminal  Writ  Petition No.489 of  

1997 as already noticed earlier.    

5.   Before the High Court several contentions appear to have  

been urged on behalf of the appellant which were examined  

and  repelled  by  the  High  Court  while  dismissing  the  writ  

petition in terms of the order impugned in this appeal. The  

correctness  of  the  view  taken  by  the  High  Court  on  the  

grounds  urged  before  it  has  not  been  assailed  before  us  

except  in  so  far  as  the  High  Court  has  held  that  the  

punishment of dismissal imposed upon the appellant was in  

no  way  disproportionate  to  the  gravity  of  the  offence  

committed by him.    

6.   Mr. P.S. Patwalia, learned senior counsel appearing for  

the  appellant  argued  that  the  order  of  dismissal  of  the  

appellant from service was in the facts and circumstances of  

the  case  disproportionate  to  the  gravity  of  the  charges  

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framed against the appellant. He relied upon the decisions of  

this Court to which we shall presently refer to submit that  

judicial  review  of  the  order  of  dismissal  would  justify  

intervention by a Writ Court in cases where punishment was  

disproportionate to the nature of misconduct proved against  

the delinquent. The present was according to him one such a  

case that called for the Court’s intervention to either reduce  

the punishment or to direct the same to be reduced by the  

competent authority.  

7. In  Coimbatore  District  Central  Coop.  Bank  v.  

Employees Assn. (2007) 4 SCC 669 this Court declared  

that the doctrine of proportionality has not only arrived in  

our  legal  system  but  has  come  to  stay. With  the  rapid  

growth of  the  administrative  law and the need to control  

possible  abuse  of  discretionary  powers  by  various  

administrative  authorities,  certain  principles  have  been  

evolved by reference to which the action of such authorities  

can  be  judged.  If  any  action  taken  by  an  authority  is  

contrary  to  law,  improper,  irrational  or  otherwise  

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unreasonable, a court competent to do so can interfere with  

the same while exercising its power of judicial review.  

8. This Court referred with approval to the decision of the  

House  of  Lords  in  Council  of  Civil  Service  Union  v.  

Minister  for  Civil  Service  (1985  AC  374) where  Lord  

Diplock  summed  up  the  grounds  on  which  administrative  

action  was  open to  judicial  review by a  Writ  Court.  Lord  

Diplock’s  off-quoted  passage  dealing  with  the  scope  of  

judicial review of an administrative action may be gainfully  

extracted at this stage:  

“Judicial  review has I  think  developed to a  stage  today  when,  without  reiterating  any  analysis  of  the  steps  by  which  the  development  has  come  about,  one  can  conveniently classify  under three heads the  ground  on  which  administrative  action  is  subject  to  control  by  judicial  review.  The  first  ground  I  would  call  ‘illegality’,  the  second ‘irrationality’ and the third ‘procedural  impropriety’.  That is not to say that further  development  on  a  case-by-case  basis  may  not in course of time add further grounds.  I  have  in  mind  particularly  the  possible  adoption  in  the  future  of  the  principle  of  ‘proportionality’…..”  

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9. The doctrine of proportionality which Lord Diplock saw  

as a future possibility is now a well recognized ground on  

which  a  Writ  Court  can  interfere  with  the  order  of  

punishment imposed upon an employee if  the same is so  

outrageously disproportionate to the nature of  misconduct  

that it shocks conscience of the Court.   We may at this stage  

briefly refer to the decisions of this Court which have over  

the years applied the doctrine of proportionality to specific  

fact situations.  

10. In  Bhagat  Ram  v. State  of  Himachal  Pradesh  

(1983)  2  SCC  442 this  Court  held  that  if  the  penalty  

imposed is disproportionate to the gravity of the misconduct,  

it would be violative of Article 14 of the Constitution.   

11. In Ranjit Thakur v. Union of India & Ors. (1987) 4  

SCC 611,  this  Court  was  dealing  with  a  case  where  the  

petitioner  had  made  a  representation  about  the  

maltreatment given to him directly to the higher officers.  He  

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was sentenced to  rigorous  imprisonment  for  one year  for  

that offence. While serving the sentence imposed upon him  

he  declined  to  eat  food.  The  summary  court  martial  

assembled  the  next  day  sentenced  him  to  undergo  

imprisonment for one more year and dismissal from service.  

This  Court  held  that  the  punishment  imposed  upon  the  

delinquent was totally disproportionate to the gravity of the  

offence  committed  by  him.  So  also  in  Ex-Naik  Sardar  

Singh  v. Union  of  India  &  Ors.  (1991)  3  SCC  213  

instead  of  one  bottle  of  brandy  that  was  authorized  the  

delinquent was found carrying four bottles of brandy while  

going home on leave.  He was sentenced to three months  

rigorous imprisonment and dismissal from service which was  

found by this Court to be disproportionate to the gravity of  

the offence proved against him.   

12.      The decision of  this  Court  in  Hind Construction &  

Engineering Co. Ltd.  v. Workmen (AIR 1965 SC 917)  

dealt  with  a  situation  where  some workers  had remained  

absent  from duty  treating  a  particular  day as  a  holiday.   

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They were for that misconduct dismissed from service. This  

Court  held  that  the  absence  of  the  workmen  could  have  

been treated as ‘leave without pay’ and they could also be  

warned and not fined.  Reversing the order of punishment  

this Court observed:

“It  is  impossible  to  think  that  any  other  reasonable employer would have imposed the  extreme punishment of dismissal on its entire  permanent staff in this manner.  

13. Reference may also be made to  Management of the  

Federation  of  Indian  Chambers  of  Commerce  and  

Industry v. Workman, Shri R.K. Mittal (1972) 1 SC 40)  

where  the  employer  had  issued  a  legal  notice  to  the  

federation and to the international  chamber of  Commerce  

which  brought  discredit  to  the  petitioner-employer.  A  

domestic inquiry was held in which he was found guilty and  

his services terminated. This Court held that the punishment  

was disproportionate to the misconduct alleged observing:

“The Federation had made a mountain out of  a mole hill and made a trivial matter into one  involving loss of its prestige and reputation.”

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14.      We may refer  to  the decision of  this  Court  in  M.P.  

Gangadharan & Anr. v. State of Kerala & Ors. (2006) 6  

SCC 162,  where this  Court  declared that  the question of  

reasonableness  and  fairness  on  the  part  of  the  statutory  

shall  have to  be  considered  in  the context  of  the  factual  

matrix obtaining in each case and that it cannot be put in a  

straitjacket formula. The following passage is in this regard  

apposite:

“34. The  constitutional  requirement  for  judging the question of reasonableness and  fairness on the part of the statutory authority  must  be  considered  having  regard  to  the  factual  matrix  obtaining  in  each  case.  It  cannot  be  put  in  a  straitjacket  formula.  It  must  be  considered  keeping  in  view  the  doctrine  of  flexibility.  Before  an  action  is  struck down, the court must be satisfied that  a  case  has  been  made  out  for  exercise  of  power  of  judicial  review.  We  are  not  unmindful of the development of the law that  from  the  doctrine  of  Wednesbury  unreasonableness,  the  court  is  leaning  towards the doctrine of proportionality………”

15. That the punishment imposed upon a delinquent should  

commensurate  to  the  nature  and  generally  of  the  

misconduct is not only a requirement of fairness, objectivity,  

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and  non-discriminatory  treatment  which  even  those  form  

quality  of  a  misdemeanour  are  entitled  to  claim  but  the  

same  is  recognized  as  being  a  part  of  Article  14  of  the  

Constitution.   It  is  also  evident  from  the  long  time  of  

decisions  referred to above that  the  courts  in  India  have  

recognized  the  doctrine  of  proportionality  as  one  of  the  

ground  for  judicial  review.  Having  said  that  we  need  to  

remember that the quantum of punishment in disciplinary  

matters  is  something  that  rests  primarily  with  the  

disciplinary authority.  The jurisdiction of a Writ Court or the  

Administrative Tribunal for that matter is limited to finding  

out  whether  the  punishment  is  so  outrageously  

disproportionate as to be suggestive of lack of good faith.   

What is clear is that while judicially reviewing an order of  

punishment imposed upon a delinquent employee the Writ  

Court would not assume the role of an appellate authority. It  

would  not  impose  a  lesser  punishment  merely  because it  

considers the same to be more reasonable than what the  

disciplinary authority has imposed.  It is only in cases where  

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the  punishment  is  so  disproportionate  to  the  gravity  of  

charge that no reasonable person placed in the position of  

the  disciplinary  authority  could  have  imposed  such  a  

punishment that a Writ Court may step in to interfere with  

the same.   

16. The question then is whether the present is indeed one  

such case where the High Court could and ought to have  

interfered with the sentence imposed upon the appellant on  

the  doctrine  of  proportionality.  Our  answer  is  in  the  

negative. The appellant was holding the rank of a Major in  

the Indian Army at the time he committed the misconduct  

alleged and proved against him.  As an officer of disciplined  

force like the Army he was expected to maintain the highest  

standard of honesty and conduct and forebear from doing  

anything that could be termed as unbecoming of  anyone  

holding  that  rank  and  office.  Making  a  false  claim  for  

payment of transport charges of household luggage and car  

to  Chandigarh  was  a  serious  matter  bordering  on  moral  

turpitude.  Breach  of  the  rule  requiring  him  to  clear  his  

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electricity  dues  upon  his  transfer  from  the  place  of  his  

posting  was  also  not  credit  worthy  for  an  officer.  The  

competent  authority  was  therefore  justified  in  taking  the  

view that the nature of the misconduct proved against the  

appellant called for a suitable punishment. Inasmuch as the  

punishment  chosen  was  dismissal  from  service,  the  

competent  authority,  did  not  in  our  opinion,  take  an  

outrageously  absurd  view  of  the  matter.  We  need  to  

remember that the higher the public office held by a person  

the  greater  is  the  demand  for  rectitude  on  his  part.  An  

officer holding the rank of Major has to lead by example not  

only in the matter of  his readiness to make the supreme  

sacrifice required of him in war or internal strife but even in  

adherence  to  the  principles  of  honesty,  loyalty  and  

commitment.  An  officer  cannot  inspire  those  under  his  

command to maintain the values of rectitude and to remain  

committed  to  duty  if  he  himself  is  found  lacking  in  that  

quality. Suffice it to say that any act on the part of an officer  

holding a commission in the Indian Army which is subversive  

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of  army discipline  or  high traditions  of  the  Army renders  

such person unfit to stay in the service of the nation’s Army  

especially when the misconduct has compromised the values  

of patriotism, honesty and selflessness which values are too  

precious to be scarified on the altar of petty monetary gains,  

obtained by dubious means.       

                                   17. In the result this appeal fails and is hereby dismissed.    

………………………….……….…J. (DALVEER BHANDARI)

……………………….………….…J. (T.S. THAKUR)

New Delhi July 6, 2010

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