Army Act, 1950 – Section 164 – The primary obligation of a member of Armed Forces is to maintain discipline in all aspects. Discipline in fiscal matters has to be given top priority as that mirrors the image of any institution. That apart, the appellant was a Major in the Army. Irreproachable conduct, restrained attitude, understanding of responsibility and adherence to discipline in an apple pie order were expected of him. The proven charges luminously project that the said aspects have been given a total go by. In this backdrop, it is well nigh impossible to hold that the punishment was harsh or arbitrary.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
P. Sathasivam and Dipak Misra, JJ.
May 11, 2012
CRIMINAL APPEAL NO. 665 OF 2002
Chandra Kumar Chopra Vs. Union of India and others
J U D G M E N T
DIPAK MISRA , J.
The present appeal by special leave is directed against the order dated July 23, 1991 passed by the High Court of Judicature of Delhi in Writ Petition (Criminal) No. 590 of 1991 wherein the learned Single Judge has declined to interfere with the order dated July 20, 1990 whereby the confirming authority under
Section 164 of the Army Act, 1950
(for short ‘the Act’) had passed an order of confirmation as regards the sentence of cashiering but reduced the rigorous imprisonment from five years to six months as imposed by the Competent Authority of General Court Martial vide order dated June 4, 1990.
2. The appellant after joining the Army was confirmed in the rank of Second Lieutenant and eventually became a Major in due course of time. In the month of August, 1988 while serving at Bangalore he was transferred to Udhampur at Jammu. While he was functioning at Udhampur in the rank of Major a General Court Martial proceeding was convened against him on the following 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 DEFRAUD,
In that he, at field, on 30th Jan. 89, with intent to defraud submitted a claim of Rs.35,270/- in respect of transportation of his household luggage and car in civil truck No. JKQ 3285 and JKR 0587 respectively on permanent posting from Bangalore to Udhampur well knowing that his such luggage and car had not been so transported.
Second Charge Army Act Section 52(D)
SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (D) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD,
In that he, at field, on 18th Jan. 89, with intent to defraud submitted Leave Travel Concession (LTC) claim for year 1988 to CDA (O) Pune, well knowing that he had already availed the LTC for the year 1988.
Third Charge Army Act Section 63
“ AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE.
In that he, at field, on 17th Nov. 1988, improperly utilised for himself IAFT- 1752-PA/53-869651 dated 15th Nov. 1988, single/ return journey railway warrant from Jammu to New Delhi and back.”
3. In pursuance of the charge-sheet, General Court Martial commenced on March 12, 1990 which consisted of five Members, namely, Co. Choudhary Sohan Lal, Lt. Col. Harpal Singh, Lt. Col. Shiv Kumar Singh, Maj. Saigal Rajinder Nath and Maj. Manhas Rajender Singh.
4. At the commencement of trial in Court Martial, the appellant objected to some of the officers being members of the composition of Court Martial on the foundation that he had lodged a statutory complaint under Section 27 of the Act before the Central Government regarding certain irregularities against the Commander of the Sub Area and as all the presiding officers had worked under the Convening Officer, namely, Brig. Phoolka, the composition of Court Martial was vitiated. The Presiding Officer and other Members of Court Martial adverted to
Section 130 of the Act and Rule 44 of the Army Rules, 1954
(for short ‘the Rules’) and eventually repelled the objections and proceeded with the trial.
5. After a full length trial, Court Martial found that all the charges levelled against the appellant had been proved and accordingly sentenced him as has been indicated hereinbefore.
6. After recording of guilt and imposition of sentence, the appellant submitted an application under Section 164(1) of the Act stating, inter alia, that the Members of Court Martial were disqualified as there was a statutory complaint against the Convening Officer under whom the Members of Court Martial were functioning; that he was not afforded adequate opportunity to prepare his defence inasmuch as the officer whose name had been given by him to defend his case was not provided; and that the principles of natural justice had been flagrantly violated. As far as the first charge was concerned, it was stated that the household luggage and car were transported from Bangalore to Udhampur in the hired vehicle of Karnataka Transport Corporation (for short ‘the Corporation’) and documents were produced to that effect but the same were not taken into consideration; that no officer from the Corporation was examined to find out the veracity of the said receipts; that the bill alleged to have been submitted by the appellant had been interpolated; that the evidence brought on record was inadmissible as evidence being hearsay; that he had handed over his personal luggage and car to the Corporation for transportation and, therefore, the reliance on the evidence of DW-6 was totally misconceived; and that there was no material on record to disprove the factum that the Corporation had transported the luggage from Bangalore to Udhampur as claimed by the appellant. In this backdrop, it was contended that the first charge was not proved against the appellant.
7. As far as the second charge was concerned, it was put forth that the appellant had not obtained Leave Travel Concession twice as he had availed LTC once while he was posted at Bangalore and again at Udhampur; that as per Regulation 177(A) and other provisions relating to availing of LTC while serving in field area as defined in Travel Regulation 177(C), he had availed two LTCs one while being posted at Bangalore and the other at Udhampur and, therefore, his claim for the LTC twice in a year was reasonable and acceptable though it may suggest an erroneous interpretation of Travel Regulations 177(A) and 177(C) but there was no intention to defraud. That apart, after the said mistake was detected, the appellant on 18.2.1989 had explained his perception in his reply and at the instance of the Commanding Officer of the Unit, recovery for the excess amount was effectuated in the month of February, 1989 itself; and that once the matter was closed by taking recourse to recovery, it is to be presumed that the charge levelled against the appellant stood closed and condoned by the competent authority and hence, there was no justification or warrant to proceed again in that regard in Court Martial.
8. As regards the third charge, it was urged that the appellant had neither collected the alleged railway warrant nor did he exchange it for the ticket. As a matter of fact, he had purchased the ticket for AC-2 Tier on cash payment for the journey from Jammu to Delhi and back. It was also propounded that there was no evidence on record to prove that the relevant railway warrant was utilized as no witness from the railways was examined during the course of Court Martial.
9. The confirming authority, as stated earlier, only reduced the rigorous imprisonment from five years to six months.
10. Being dissatisfied with the aforesaid orders, the appellant assailed the same before the High Court. Before the High Court, it was contended that when the appellant had expressed lack of confidence in the composition of Court Martial, it was incumbent upon the convening officer to have attached him to another unit; that there was inherent bias in the functioning of Court Martial and the same got manifested by denial of any engagement of proper officer; that the finding recorded as regards the claim of transportation charges without transporting the goods was contrary to the material on record and, in fact, perverse since no officer from the Corporation was examined; and that when the amount of LTC was recovered, a charge of similar nature could not have been framed as the same did amount to double jeopardy. The learned single Judge negatived all the contentions and dismissed the writ petition.
11. Ms. Indu Malhotra, learned senior counsel appearing on behalf of the appellant, questioning the pregnability of the order passed by the authorities under the Act and the writ court, has raised the following contentions:-
(i) When lack of faith and confidence was expressed in the competent authority who had convened the proceeding and the composition of Court Martial in view of the statutory complaint filed by the appellant, the whole proceeding is vitiated as the ultimate conclusion is the result of a biased forum. The fundamental principle that ‘justice should not be done but should appear to have been done’ has been guillotined by rejecting the objection raised by the appellant in Court Martial and the concurrence thereof by the confirming authority and the eventual affirmance of the same by the High Court.
(ii) There has been violation of the principles of natural justice as the appellant was not provided with a proper defending officer and an officer was imposed on him who was reluctant to canvass his case.
(iii) The first charge levelled against the appellant cannot be said to have been proven inasmuch as no officer from the Corporation was examined to deny the receipts given by it to the appellant pertaining to transportation of goods from Bangalore to Udhampur. That apart, the stand and stance put forth by the appellant is that the bill that has been submitted for transportation was interpolated to show that goods had been transported in truck Nos. JKQ 3285 and JKR 9587 by a different transporter. Undue emphasis has been placed on the evidence of DW-6 who had stated that goods were, in fact, not transported. As far as the second charge is concerned, it was imperative on the part of Court Martial to examine an official from the railways to prove that he had availed the warrant and exchanged the same for a ticket. As regards the third charge, the same is absolutely unsustainable inasmuch as after the misconception was cleared, the amount was recovered which amounts to condonation of the act.
(iv) The appellant had served with dedication and devotion in the war field and at difficult stations for a period of 21 years and had an unblemished career and hence, the punishment imposed is totally disproportionate and it is a fit case which undoubtedly invites the invocation of the doctrine of proportionality.
12. Mr. R. Balasubramanian, learned counsel appearing on behalf of the respondents, per contra, has submitted as follows:-
(i) The statutory complaint alleged to have been made by the appellant was against Commander 71, Sub Area and at the time of lodging of the complaint, the concerned authority was one Brig. I.S. Sahni whereas the convening officer of Court Martial was Brig. J.S. Phoolka and, therefore, the convening of the proceeding cannot be flawed. The objections raised with regard to certain officers who had formed Court Martial were absolutely vague and, in fact, the plea of bias was a figment of imagination of the appellant and the authorities as well as the High Court have appositely repelled the said stand.
(ii) The appellant was duly defended by the officer concerned who was engaged to defend him and, therefore, there had been no violation of the doctrine of audi alteram partem and, in any case, no prejudice was caused to him.
(iii) The allegation of interpolation of the bill is farthest from the truth inasmuch as the document to the naked eye would clearly reveal the signature of the appellant and he was holding the post of Major in the Army and the person in his position very well knew what was written over there and there is no interpolation. The plea of interpolation is an afterthought and the same does not merit any consideration. The charges have been duly proven and the findings are based on evidence, both oral and documentary, brought on record.
(iv) Keeping in view the post that was held by the appellant, the submission that the principle of proportionality should be invoked and a lesser punishment be imposed, does not stand to reason since the charges are grave in the backdrop of a disciplined force like Army.
13. First, we shall deal with the issue of bias. On a perusal of the record, it is graphically clear that it was Brig. J.S. Phoolka who had convened Court Martial under Section 109 of the Act. The statutory complaint submitted by the appellant pertained to certain irregularities committed by Commander 71, Sub Area. Be it noted, in Court Martial, as soon as the court assembled, it read over the names of the presiding officer and other members to the accused and enquired if he had any objection to any of the members being party to the tribunal. The appellant objected to the composition of the tribunal basically on the ground of lodging of the statutory complaint. The question that arises for consideration is whether a complaint made pertaining to irregularities by the commanding officer of the relevant Sub Area would tantamount to composition of the tribunal as a biased forum solely on the foundation that all members worked in the said Sub Area.
14. In this regard, we may profitably refer to the decision in