Supreme Court of India
CHANDRA KUMAR CHOPRAversusUNION OF INDIA AND OTHERS
- Citation
- 2012 INSC 231
- Decided
- 11 May 2012
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Supreme Court held that there was no real likelihood of bias, natural justice was complied with, the charges were proved, and the punishment was not disproportionate, thereby dismissing the appeal.
Summary
Major Chandra Kumar Chopra was tried by a General Court Martial under the Army Act, 1950 for three offences involving fraud, misuse of Leave Travel Concession and improper use of a railway warrant. He challenged the composition of the court martial, alleging bias because he had lodged a statutory complaint against the convening officer, and claimed denial of a proper defending officer, violation of natural justice, and that the charges were not proved. The Supreme Court examined the test for real likelihood of bias, held that mere suspicion without material evidence does not satisfy the test, and found that the defending officer had acted sincerely, satisfying natural justice requirements. The Court also found the evidence sufficient to prove all three charges and concluded that the punishment, though severe, was not disproportionate given the rank and nature of the offences. Consequently, the appeal was dismissed, upholding the court‑martial’s findings and sentence.
Issues considered
- The existence of a real likelihood of bias in the composition of the Court Martial
- Whether the appellant was denied the assistance of a defending officer in violation of natural justice
- Whether the three charges against the appellant were proved beyond reasonable doubt
- The applicability of the doctrine of proportionality to the sentence of cashiering and rigorous imprisonment
- The validity of the confirming authority’s reduction of the rigorous imprisonment term
Legislation cited
- Army Act, 1950s. 109, s. 164, s. 27, s. 52(d), s. 52(f), s. 63, s. 71, s. 72, s. 73
- Army Rules, 1954s. 44, s. 53
Subjects
Court Martialbiasnatural justicedoctrine of proportionalityArmy Actdisciplinary proceedingssentencingjudicial review
Judgment
[2012] 5 S.C.R. 1029
CHANDRA KUMAR CHOPRA A
v.
UNION OF INDIA AND OTHERS
(Criminal Appeal No. 665 of 2002)
MAY 11, 2012
B
[P. SATHASIVAM AND DIPAK MISRA, JJ.]
Army Act, 1950: Court Martial - Various charges levelled
against the appellant, Major in Indian Army - Objection by
appellant against the composition of court martial, repelled - C
Trial - Charges found proved and sentence of cashiering and
rigorous imprisonment of five years passed against him -
Confirming authority passed order of confirmation as regards
the sentence of cashiering but reduced the rigorous
imprisonment from five years to six months - Writ petition D
dismissed - Appeal on the ground that the court martial
proceeding was vitiated as the ultimate decision was result of
biased forum, that the rules of natural justice were violated as
proper defending officer was not provided to appellant and all
the charges were not proved against him - On appeal, held: E
Nothing was brought on record that there was anything
personal against any of the members who constituted Court
Martial - Thus, it cannot be held that there was real likelihood
of bias because the prudence of a reasonable man cannot
so conceive and a right minded man would discard it without F
any hesitation - It was not a case where the appellant was not
provided with the assistance of a defending officer - A close
scrutiny of Court Martial proceeding showed that the
defending officer had acted with due sincerity and put forth the
case of the appellant in proper perspective, therefore, there G
was compliance of the principle of natural justice and no
prejudice was caused to the appellant - Perusal of records
showed that appellant was guilty of all the charges - All the
charges levelled against the appellant fundamentally
1029 H
1030 SUPREME COURT REPORTS [2012] 5 S.C.R.
A pertained to commission of illegal acts in fiscal sphere to gain
pecuniary advantage - 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 - The charges luminously
B projected that the said aspects were given a total go by - Thus,
the punishment was not harsh or arbitrary - Regard being had
to the nature of rank held by the appellant and the disciplined
conduct expected of him, the doctrine of proportionality was
uninvocable.
c The appellant was Major in the Indian Army. A
General Court Martial proceeding was convened against
him on the charges of committing offence with an intent
to defraud and commit act prejudicial to good order and
military discipline. At the commencement of trial in Court
D 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 Army Act, 1950 before the Central
Government regarding certain irregularities against the
E Commander of the Sub-Area and as all the presiding
officers had worked under the Convening Officer 'P', the
composition of Court Martial was vitiated. The objection
was repelled. The Court Martial proceeded with the trial
and found that all the charges levelled against the
F appellant were proved and passed sentence of
cashiering and rigorous imprisonment for five years. The
confirming authority passed an order of confirmation as
regards the sentence of cashiering but reduced the
rigorous imprisonment from five years to six months. The
G appellant filed a writ petition which was dismissed.
In the instant appeal, it was contended for the
appellant that since lack of faith and confidence was
expressed in the convening officer and the composition
H of Court Martial in view of the statutory complaint filed by
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1031
the appellant, the whole proceeding was vitiated as the A
ultimate conclusion was the result of a biased forum; that
there was 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; that the first charge B
levelled against the appellant was not proved 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 and
that the bill that was submitted for transportation was c
interpolated to show that goods were transported in truck
Nos. JKQ 3285 and JKR 9587 by a different transporter;
that as far as the second charge was concerned, it was
imperative on the part of Court Martial to examine an
official from the railways to prove that he had availed the
0
warrant and exchanged the same for a ticket; and that as
regards the third charge, the same was absolutely
unsustainable inasmuch as after the misconception was
cleared, the amount was recovered which amounted to
condonation of the act; and lastly it was contended that
the appellant had served with dedication and devotion in E
the war field and at difficult stations for a period of 21
years and had an unblemished career and, therefore, the
punishment imposed was totally disproportionate and it
was a fit case which undoubtedly invited the invocation
of the doctrine of proportionality. F
Dismissing the appeal, the Court
HELD: 1. Perusal of record showed that it was 'P'
who had convened Court Martial under Section 109 of the G
Army Act, 1950. The statutory complaint submitted by the
appellant pertained to certain irregularities committed by
Commander 71, Sub Area. 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
H
1032 SUPREME COURT REPORTS [2012] 5 S.C.R. .
A 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. Mere suspicion or apprehension is
not good enough to entertain a plea of bias. It cannot be
8 a facet of one's imagination. It must be in accord with the
prudence of a reasonable man. It is not to be forgotten
that in a democratic polity, justice in its conceptual
eventuality and inherent quintessentiality forms the
bedrock of good governance. In a democratic system
C that is governed by Rule of Law, fairness of action,
propriety, reasonability, institutional impeccability and
non-biased justice delivery system constitute the pillars
on which its survival remains in continuum. Despite the
sanctity attached to non-biased attitude of a member of
a tribunal or a court and in spite of the principle that
0
justice must not only be done but must seen to have been
done, it is to be scrutinized on the basis of material
brought on record whether someone makes wild,
irrelevant and imaginary allegations to frustrate a trial or
it is in consonance with the thinking of a reasonable man
E which can meet the test of real likelihood of bias. The
principle cannot be attracted in vacuum. In the case at
hand, the convening officer had ceased to be the
Commander. There was a general complaint against the
irregularities about the Commander, the convening
F officer. The objection that was put forth by the appellant
in Court Martial was that his complaint was pending with
the Central Government. Nothing was brought on record
that there was anything personal against any of the
members who constituted Court Martial. Thus, in the
G obtaining factual matrix, it is extremely difficult to hold
that there was real likelihood of bias because the
prudence of a reasonable man cannot so conceive and
a right minded man would discard it without any
hesitation. [Paras 13, 22, 23) [1043-D-F; 1047-A-H; 1048-
H A]
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1033
Manak Lal v. Dr. Prem Chand AIR 1957 SC 425: 1957 A
SCR 575; Gul/apal/i Nageswara Rao and others v. Andhra
Pradesh State Road Transport Corporation and Another
(1959) Supp.1 SCR.319; A.K. Kraipak and others v. Union
of India and others AIR 1970 SC 150: 1970 (1) SCR 457;
Dr. S.P. Kapoor v. State of Himachal Pradesh and others B
(1981) 4 SCC 716: 1982 (1) SCR 1043; Ranjit Thakur v.
Union of India and others (1987) 4 SCC 611: 1988 (1) SCR
512; Mis. Crawford Bayley & Co. & Ors. v. Union of India &
Ors. AIR 2006 SC 2544: 2006 (3) Suppl. SCR 240; S.
Parthasarathi v. State of Andhra Pradesh (1974) 3 SCC 459: c
1974 (1) SCR 697 - relied on.
2. It was not a case where the appellant was not
provided with the assistance of a defending officer. A
close scrutiny of Court Martial proceeding showed that
the defending officer had acted with due sincerity and put D
forth the case of the appellant in proper perspective.
There can be no shadow of doubt that there has been
compliance of the principle of natural justice and no
prejudice was caused to the appellant because of any
kind of non assistance. That apart, there is nothing in the E
Act or the Rules which lay down that an accused shall
be given a defending officer of his own choice. Thus,
there was no violation of any mandatory provision and,
therefore, it cannot be said that the proceeding is vitiated
because of violation of the principle of natural justice. F
[Para 24] [1048-A-D]
3. The bill submitted by the appellant clearly reflected
that the truck Nos. JKQ 3285 and JKR 9587 were alleged
to have carried the goods of the appellant. Nothing was G
mentioned therein that the transportation was made by
the Corporation. To substantiate the claim in respect of
the said bill, the receipts of the Corporation were filed. On
a perusal of the receipts, it is perceptible that they neither
reflect the name of the truck owner nor do they mention H
1034 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the truck numbers. What is ultimately argued is that there
had been interpolation in the bill. On a bare look at the
bill, it is luculent that there is no interpolation. That apart,
DW-6 who was cited as defence witness to substantiate
that he had transported the goods specifically stated that
B only a receipt for transporting the goods was given but
no goods were, in fact, transported. Apart from that, PW-
13, the toll in-charge categorically asserted that the
trucks namely, JKQ 3285 and JKR 9587, alleged to have
carried the goods of the appellant did not cross the
c check-post barrier. The cumulative effect of all this clearly
established the first charge beyond any trace of doubt.
Thus, the first charge was proved. The second charge
related to availing of LTC. No doubt, the LTC was availed
of twice to which the appellant was not entitled to.
0 Recovery of excess amount stands in a different
compartment altogether and Court Martial pertains to
good order and military discipline. That apart, recovery
ipso facto does not create a bar for the matter to be tried
in Court Martial. On a bare reading of the Rule 53, it is
vivid that recovery of the amount does not come under
E any of the clauses mentioned in the Rule because there
has neither been any previous conviction or acquittal nor
has there been any kind of pardon or condonation by any
competent military authority. The third charge related to
improper utilisation of the railway warrant from Jammu
F to New Delhi. On perusal of the record, it is perceivable
that the appellant put up a requisition for obtaining the
railway warrant and the same was collected by the
representative on his instructions. He forwarded a letter
for reservation and thereafter necessary reservation was
G made. Exchange of warrant for tickets was duly proved.
Under these circumstances, the plea that he had not
collected the railway warrant and there should have been
an examination of a competent witness from railway
administration is rejected. [Paras 25-27) [1048-G-H; 1049-
H A-E; 1050-F-H; 1051-A-C]
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1035
Ex-Naik Sardar Singh v. Union of India and others (1991) A
3 SCC 213: 1991 (2) SCR 676; Council of Civil Service
Unions v. Minister for the Civil Service (1984) 3 ALL ER 935;
Bhagat Ram v. State ofH.P. (1983) 2 SCC 442; Chairman-
cum-Managing Director, Coal India Ltd. & Anr. v. Mukul
Kumar Choudhury & Ors. AIR 2010 SC 75: 2009 (13) SCR B
487 - relied on.
Metropolitan Properties Co. (F. G. C.) Ltd. v. Lannon
(1969) 1 QB 577, 599 - referred to.
4. The appellant was initially cashiered from the Army C
and was sentenced to undergo rigorous imprisonment
for five years. The period of sentence was reduced by the
confirming authority. The appellant was a Major in the
Army and all the charges levelled against him
fundamentally pertained to commission of illegal acts in D
fiscal sphere. The acts done by him were intended to gain
pecuniary advantage. 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 E
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 projected that the said aspects were given a F
total go by. Thus, it is well nigh impossible to hold that
the punishment was harsh or arbitrary. Regard being had
to the nature of rank held by the appellant and the
disciplined conduct expected of him, the doctrine of
proportionality is uninvocable. [Para 32] [1053-D-H; 1054- G
A]
Case Law Reference:
1957 SCR 575 referred to Para 14
(1959) Supp.1 SCR.319 referred to Para 15 H
1036 SUPREME COURT REPORTS [2012) 5 S.C.R.
A 1970 (1) SCR 457 referred to Para 16
1982 (1) SCR 1043 referred to Para 17
1988 (1) SCR 512 referred to Paras 18, 29
2006 (3) Suppl. SCR 240 referred to Para 19
B
1974 (1) SCR 697 referred to Para 20
(1969) 1 QB 577, 599 referred to Para 21
• 1991 (2) SCR 676 referred to Para 30
c
(1984) 3 ALL ER 935 referred to Para 30
(1983) 2 sec 442 referred to Para 31
2009 (13) SCR 487 referred to Para 32
D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 665 of 2002.
From the Judgment & Order dated 23.07.2001 of the High
Court of Delhi at New Delhi in Criminal Writ Petition No. 590
E of 1991.
lndu Malhotra, Kush Chaturvedi, Vansh Deep Dalmia,
Madhu Moolchandani for the Appellant.
R. Balasubramanian, S. Wasim A. Qadri, Santosh Kumar,
F B. V. Bala ram Das for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The present appeal by special leave
is directed against the order dated July 23, 1991 passed by
G 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
H
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1037
[DIPAK MISRA, J.]
regards the sentence of cashiering but reduced the rigorous A
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 B
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 C
against him on the following charges: -
"First Charge SUCH AN OFFENCE AS IS MENTIONED
Army Act IN CLAUSE (f) OF SECTION 52 OF THE
Section 52(f) ARMY ACT WITH INTENT TO DEFRAUD,
In that he, D
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 E
respectively on permanent posting from Bangalore
to Udhampur well knowing that his such luggage
and car had not been so transported.
Second Charge SUCH AN OFFENCE AS IS MENTIONED
Army Act IN CLAUSE (D) OF SECTION 52 OF THE F
Section 52(D) 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 G
year 1988 to CDA (0) Pune, well knowing that he
had already availed the LTC for the year 1988.
Third Charge " AN ACT PREJUDICIAL TO GOOD
Army Act ORDER AND MILITARY DISCIPLINE.
Section 63 H
1038 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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."
B
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
C 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
0 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
E 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
F charges levelled against the appellant had been proved and
accordingly sentenced him as has been indicated
herein before.
6. After recording of guilt and imposition of sentence, the
G 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 oppo~unity
H to prepare his defence inasmuch as the officer whose name
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1039
[DIPAK Ml'3RA, J.]
had been given by him to defend his case was not provided; A
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 B
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 c
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 th.e Corporation had 0
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 E
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 F
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 G
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 H
1040 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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.
B 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 tcrDelhi and back. It was also propounded
that there was no evidence on record to prove that the relevant
C 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 imprisqnment from five years to six months.
D
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
E 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
F 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.
G
11. Ms. lndu 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: -
H
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1041
[DIPAK MISRA, J.]
(i) When lack of faith and confidence was expressed A
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 B
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 c
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 D
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 E
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 F
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
G
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
H
1042 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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
B
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.
c
12. Mr. R. Balasubramanian, learned counsel appearing
on behalf of the respondents, per contra, has submitted as
follows: -
D (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. l.S. Sahni
whereas the convening officer of Court Martial was
Brig. J.S. Phoolka and, therefore, the convening of
E
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
F 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
G 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
H
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1043
[DIPAK MISRA, J.]
appellant and he was holding the post of Major in A
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 B
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 C
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 D
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
l\rea. Be it noted, in Court Martial, as soon as the court E
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 F
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
t.ribunal as a biased forum solely on the foundation that all
members worked in the said Sub Area.
G
14. In this regard, we may profitably refer to the decision
in Manak Lal v. Dr. Prem Chand1 where it has been opined
that every member of a tribunal who proceeds to try issues in
'1. AIR 1957 SC 425. H
1044 SUPREME COURT REPORTS (2012] 5 S.C.R.
A judicial or quasi-judicial proceeding must be able to act
judicially. It is the essence of judicial administration that judges
should be able to act impartially, objectively and without any
bias. In such cases, the test is not whether, in fact, a bias has
affected the judgment, the test always is and must be whether
B a litigant could reasonably apprehend that a bias attributable
to a member of the tribunal might have operated against him
in the final decision of the tribunal.
15. In Gul/apal/i Nageswara Rao and others v. Andhra
Pradesh State Road Transport Corporation and Another, it
C has been held that the principles governing the "doctrine of bias"
vis-a-vis judicial tribunals are well-settled and they are: (i) no
man shall be a judge in his own cause; (ii) justice should not
only be done but manifestly and undoubtedly seem to be done.
The two maxims yield the result that if a member of a judicial
D body is subject to a bias (whether financial or other) in favour
of, or against, any party to a dispute, or is in such a position
that a bias must be assumed to exist, he ought not take part in
the decision or sit on the tribunal.
E 16. In A.K. Kraipak and others v. Union of India and
others 3, this Court was dealing with the constitution of a
Selection Board. One of the members was to be considered
for selection. In that context, it was observed that it was against
all canons of justice to make a man judge in his own cause. It
F was further observed that the real question is not whether he
was biased, for it is difficult to prove the state of mind of a
person. What is required to be seen is whether there is
reasonable ground for believing that a person is likely to have
been biased. A mere suspicion of bias is not sufficient. There
has to be reasonable likelihood of bias. It was emphasised that
G while deciding the question of bias, the Court is required to take
into consideration human probabilities and ordinary course of
human conduct.
2. (1959) Supp.1 SCR 319.
H 3. AIR 1970 SC 150.
-
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1045
[DIPAK MISRA, J.]
17. In Dr. S.P. Kapoor v. State of Himacha/ Pradesh and A
others4 , a two-Judge Bench did not appreciate the Annual
Confidential Reports which were initiated by an officer junior
to the appellant and also an aspirant for promotion to the higher
post along with other candidates, should have been taken into
consideration. It was observed therein that it was not fair on the B
J:iart of the Departmental Promotion Committee to take into
consideration the Annual Confidential Reports made by junior
officer though they might have been revised by the higher
c1uthorities. Emphasis was laid on the fairness of action.
18. In Ranjit Thakur v. Union of India and others 5, this C
Court was dealing with Court Martial proceeding.
\/enkatachaliah, J. (as his Lordship then was) emphasised on
the procedural safeguards contemplated in the Act regard being
had to the plenitude of summary jurisdiction of Court Martial and
t'he severity of the consequences that visit the person subject D
to that jurisdiction. It was observed that the procedural
~;afeguards should be commensurate with the sweep of the
power. A contention was canvassed in the said case that the
proceedings of Court Martial were vitiated as the fourth
respondent who was biased against the appellant was member E
of the tribunal. In that regard, it was held that the test of real
likelihood of bias is whether a reasonable man, in possession
of relevant information, would have thought that bias was likely
and whether the concerned respondent was likely to be
disposed to decide the matter only in a particular way. The F
appellant in that case had sent a written complaint complaining
of ill-treatment at the hands of respondent No. 4 directly to the
higher officers as a result of which he was punished with 28
<jays' rigorous imprisonment by the said respondent. Keeping
the said fact in view, the Bench held that the participation of G
t:he respondent No. 4 in Court Martial rendered the proceeding
coram non-judice.
4. (1981) 4 sec 716.
E;. (1987) 4 sec 511. H
1046 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 19. In Mis. Crawford Bayley & Co. & Ors. v. Union of India
& Ors. 6, this Court referred to the circumstances under which
~he doctrine of bias, i.e., no man can be judge in his own cause,
can be applied. It has been held therein that for the said doctrine
to come into play, it must be shown that the officer concerned
B has a personal bias or connection or a personal interest or was
personally connected in the matter concerned or has already
taken a decision one way or the other which he may be
interested in supporting.
20. In S. Parthasarathi v. State of Andhra Pradesh 7, while
C dealing with the test of likelihood of bias, it has been opined
that if right minded persons would think there is a real likelihood
of bias on the part of an officer, he must not conduct the inquiry.
It has been observed that surmises or conjectures would not
be enough, there must exist circumstances from which
D reasonable man would think that it is probable or likely that the
inquiring officer will be prejudiced against the delinquent officer.
Be it noted, the issue before the Court was enquiry by an inquiry
officer against whom bias was pleaded and established.
E 21. At this juncture, we may usefully reproduce a passage
from Metropolitan Properties Co. (F. G. C.) Ltd. v. Lannon 6
wherein Lord Denning M.R. observed thus: -
"...... in considering whether there was a real likelihood of
bias, the court does not look at the mind of the justice
F himself or at the mind of the chairman of the tribunal, or
whoever it may be, who sits in a judicial capacity. It does
not look to see if there was a real likelihood that he would,
or did, in fact favour one side at the expense of the other.
The court looks at the impression which would be given
G to other people. Even if he was as impartial as could be,
nevertheless if right-minded persons would think that, in the
6. AIR 2006 SC 2544.
7. (1974) 3 sec 459.
H 8. (1969) 1 QB 577, 599
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1047
[DIPAK MISRA, J.]
circumstances, there was a real likelihood of bias on his A
part, then he should not sit."
22. From the aforesaid pronouncement of law, it is
discernible that mere suspicion or apprehension is not good
enough to entertain a plea of bias. It cannot be a facet of one's
B
imagination. It must be in accord with the prudence of a
reasonable man. The circumstances brought on record would
show that it can create an impression in the mind of a
n~asonable man that there is real likelihood of bias. It is not to
be forgotten that in a democratic polity, justice in its conceptual C
E;ventuality and inherent quintessentiality forms the bedrock of
£1ood governance. In a democratic system that is governed by
Huie of Law, fairness of action, propriety, reasonability,
institutional impeccability and non-biased justice delivery
s.ystem constitute the pillars on which its survival remains in
continuum. D
23. It is worth noting that despite the sanctity attached to
non-biased attitude of a member of a tribunal or a court and in
l:;pite of the principle that justice must not only be done but must
S•een to have been done, it is to be scrutinized on the basis of E
rnaterial brought on record whether someone makes wild,
irrelevant and imaginary allegations to frustrate a trial or it is in
c;onsonance with the thinking of a reasonable man which can
rneet the test of real likelihood of bias. The principle cannot be
attracted in vacuum. In the case at hand, the convening officer F
had ceased to be the Commander. There was a general
complaint against the irregularities about the Commander, the
convening officer. The objection that was put forth by the
appellant in Court Martial was that his complaint was pending
with the Central Government. Nothing was brought on record G
that there was anything personal against any of the members
who constituted Court Martial. Thus, in the obtaining factual
rnatrix, it is extremely difficult to hold that there was real
Iikelihood of bias because the prudence of a reasonable man
cannot so conceive and a right minded man would discard it H
1048 SUPREME COURT REPORTS (2012] 5 S.C.R.
A without any hesitation. Hence, we repel the said submission
raised by the learned senior counsel for the appellant.
24. The next contention pertains to compliance of the
principles of natural justice. The only ground raised is that the
appellant was not provided a defending officer of his choice. It
8
is not a case where he was not provided with the assistance
of a defending officer. On a close scrutiny of Court Martial
proceeding, we find that the defending officer had acted with
due sincerity and put forth the case of the appellant in proper
perspective. There can be no shadow of doubt that there has
C been compliance of the principle of natural justice and no
prejudice has been caused to the appellant because of any kind
of non assistance. That apart, there is nothing in the Act or the
Rules which lay down that an accused shall be given a
defending officer of his own choice. Thus, there is no violation
D of any mandatory provision and, therefore, it cannot be said that
the proceeding is vitiated because of violation of the principle
of natural justice.
25. The third plank of submission of both the learned
E counsel for the parties relates to the issue whether the charges
levelled against the appellant have been really proven or not.
We have enumerated the submissions relating to charges and
it is apposite to deal with them together. Ms. lndu Malhotra,
learned senior counsel, would submit that the first charge has
F not been proven at all as the appellant had given the
responsibility to the Corporation to transport the goods from
Bangalore to Udhampur. There is no dispute over the factum
that the appellant had produced the receipts from the
Corporation. To satisfy ourselves, we have carefully perused the
G original file which was produced before us. The bill submitted
by the appellant clearly reflects that the truck Nos. JKQ 3285
and JKR 9587 are alleged to have carried the goods of the
appellant. Nothing has been mentioned therein that the
transportation was made by the Corporation. To substantiate
the claim in respect of the said bill, the receipts of the
H
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1049
[DIPAK MISRA, J.]
Corporation were filed. On a perusal of the receipts, it is A
perceptible that they neither reflect the name of the truck owner
nor do they mention the truck numbers. What is ultimately argued
is that there had been interpolation in the bill. On a bare look
at the bill, it is luculent that there is no interpolation. That apart,
DW-6 Satinder Pal Singh s/o Janak Singh, who has been cited B
as defence witness to substantiate that he had transported the
goods, has specifically stated that only a receipt for transporting
the goods was given but no goods were, in fact, transported.
Apart from that, PW-13, the toll incharge, has categorically
asserted that the trucks namely, JKQ 3285 and JKR 9587, c
alleged to have carried the goods of the appellant did not cross
the check-post barrier. The cumulative effect of all this clearly
establishes the first charge beyond any trace of doubt. Thus,
the first charge is proved.
26. As far as the second charge is concerned, it relates D
to availing of LTC. There is no doubt that the LTC was availed
of twice to which the appellant was not entitled to. What is
contended is that once the recovery was done, it could not have
been the subject matter of Court Martial. Needless to say,
recovery of excess amount stands in a different compartment E
altogether and Court Martial pertains to good order and military
discipline. That apart, recovery ipso facto does not create a bar
for the matter to be tried in Court Martial. In this context, we may
refer with profit to Rule 53 of the Rules that deals with plea in
bar. The said Rule is reproduced hereinbelow: - F
"53. Plea in bar. - (1) The accused, at the time of his
general plea of "Guilty" or "Not Guilty" to a charge for an
offence, may offer a plea in bar of trial on the ground that
G
(a) he has been previously convicted or acquitted of
the offence by a competent criminal court or by a
court-martial, or has been dealt with summarily
under sections 80, 83, 84 and 85, as the case may
be, for the offence, or that a charge in respect of H
1050 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the offence has been dismissed as provided in sub-
rule (2) of rule 22; or
(b) the offence has been pardoned or condoned by
competent military authority;
B (c) the period of limitation for trial as laid down in.
section 122 has expired.
(2) If he offers such plea in bar, the court shall record it as
well as his general plea, and if it considers that any fact
c or facts stated by him are sufficient to support the plea in
bar, it shall receive any evidence offered, and hear any
address made by or on behalf of the accused and the
prosecutor in reference to the plea.
(3) If the court finds that the plea in bar is proved, it shall
D record its finding and notify it to the confirming authority,
and shall either adjourn, or if there is any other charge
against the accused, whether in the same or in a different
charge-sheet, which is not affected by the plea in bar, may
proceed to the trial of the accused on that charge.
E
(4) If the finding that the plea in bar is proved is not"
confirmed, the court may be re-assembled by the
confirming authority, and proceed as if the plea has been
found not proved.
F
(5) If the court finds that the plea in bar is not proved, it
shall proceed with the trial, and the said findings shall be
subject to confirmation like any other finding or the court."
On a bare reading of the aforesaid Rule, it is vivid that recovery
G of the amount does not come under any of the clauses
mentioned in the Rule because there has neither been any
previous conviction or acquittal nor has there been any kind of
pardon or condonation by any competent military authority. Thus,
the submission leaves us unimpressed and we unhesitatingly
H decline to accept the same.
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1051
[DIPAK MISRA, J.]
27. As far as the third charge is concerned, it relates to A
improper utilisation of the railway warrant from Jammu to New
Delhi. The only point urged is that an officer from the railway
should have been examined. On perusal of the record, it is
perceivable that the appellant put up a requisition for obtaining
the railway warrant and the same was collected by the B
representative on his instructions. He forwarded a letter for
reservation and thereafter necessary reservation was made.
Exchange of warrant for tickets has been duly proven. Under
these circumstances, the plea that he had not collected the
railway warrant and there should have been an examination of c
a competent witness from railway administration is bound to
collapse and, accordingly, we reject the said submission.
28. The last submission of Ms. lndu Malhotra, learned
senior counsel, pertains to the proportionality of punishment. It
is submitted by her that the appellant has rendered dedicated D
and disciplined service for a span of 21 years and fought in
the front and regard being had to the nature of charges, the
punishment defies logic and totally buries the concept of
proportionality.
E
29. To appreciate the submission, we may advert to certain
authorities in the field. In the case of Ranjit Thakur (supra), it
has been held thus:-
"The question of the choice and quantum of punishment
F
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 if itself to conclusive evidence of
bias. The doctrine of proportionality, as part of the concept G
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 H
1052 SUPREME COURT REPORTS (2012] 5 S.C.R.
A and perversity are recognised grounds of judicial review."
30. In Ex-Naik Sardar Singh v. Union of India and others 9,
a two-Judge Bench of this Court adverted to Sections 71, 72
and 73 which deal with punishment awardable by Court Martial,
B alternative punishment awardable by court-martial and
combination of punishments respectively. The Bench also
referred to Section 63 which deals with violation of good order
and discipline. In the said case, the appellant had purchased
11 bottles of sealed rum and one bottle of brandy from his Unit
Canteen as he required the same to celebrate the marriage of
C one of his close relations at his home town. He was entitled to
carry four bottles of rum and one bottle of brandy as per the
Unit Regulations/leave certificate while he was proceeding on
leave. There was confiscation of bottles of liquor by the police
while he was proceeding to his home town. He was handed
D over to the Unit authorities and eventually, in a summary court
martial, he was sentenced to three months rigorous
imprisonment and dismissed from service. The plea of the
appellant before the court martial was that he had purchased
the liquor for the marriage of his brother-in-law on the basis of
E permit that was issued to him. The said plea was not accepted.
This Court, after referring to the language used in Section 72,
which states that any punishment lower in the scale set out in
Section 71 can be imposed regard being had to the nature and
degree of the offence, and the decision in Council of Civil
F Service Unions v. Minister for the Civil Service 10 and other
authorities in the field, expressed the view that there was an
element of arbitrariness in awarding the severe punishment to
the appellant. The Bench opined that the punishment was
excessively severe and violative of the language employed in
G Section 72 of the Act.
31. In Bhagat Ram v. State of H.P. 11 , it has been held that
9. (1991) 3 sec 213.
10. (1984) 3 ALL ER 935.
H 11. (1983) 2 sec 442.
CHANDRA KUMAR CHOPRA v. UNION OF INDIA 1053
[DIPAK MISRA, J.]
penalty imposed must be commensurate with the gravity of the A
misconduct and any penalty disproportionate to the gravity of
the misconduct would be violative of Article 14 of the
Constitution.
32. In Chairman-cum-Managing Director, Coal India Ltd. B
& Anr. v. Mukul Kumar Choudhury & Ors. 12, this Court
adverted to the concept of doctrine of proportionality and
eventually opined that the imposition of punishment is subject
to judicial intervention if the same is exercised in a manner
which is out of proportion to the fault. If the award of punishment C
is grossly in excess of the allegations made, it cannot claim
immunity and makes itself amenable for interference under the
limited scope of judicial review. The test to be applied while
dealing with the question is whether a reasonable employer
would have imposed such punishment in like circumstances.
The question that has to be studiedly addressed is whether the D
punishment imposed is really arbitrary or an outrageous
defiance of logic so as to be called irrational and perverse
warranting interference in exercise of the power of judicial
review. The appellant was initially cashiered from the Army and
was sentenced to undergo rigorous imprisonment for five years. E
The period of sentence was reduced by the confirming
authority. The appellant was a Major in the Army and all the
charges levelled against him fundamentally pertain to
commission of illegal acts in fiscal sphere. The acts done by
him were intended to gain pecuniary advantage. The primary F
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 G
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
12. AIR 2010 SC 75. H
1054 SUPREME COURT REPORTS [2012] 5 S.C.R.
A was harsh or arbitrary. Regard being had to the nature of rank
held by the appellant and the disciplined conduct expected of
him, we find that the doctrine of proportionality is uninvocable
and, accordingly, we are compelled to repel the said
preponement advanced by the learned senior counsel without
B any hesitation and we do so.
33. Consequently, the appeal, being devoid of merit,
stands dismissed.
D.G. Appeal dismissed.
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