Supreme Court of India
UNION OF INDIA & ORS.versusBODUPALLI GOPALASWAMI
- Citation
- 2011 INSC 672
- Decided
- 12 September 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
The President’s discretion under Pension Regulation 16(a) to forfeit the pension of an officer dismissed or cashiered is independent of the court‑martial’s punishment, and where the dismissal is shockingly disproportionate, the punishment must be reduced and the pension forfeiture order set aside.
Summary
The Commandant of 227 Company ASC (Supply) was dismissed by a General Court Martial (GCM) and his pension was forfeited by order of the President under Regulation 16(a) of the Army Pension Regulations. The Punjab & Haryana High Court quashed the pension forfeiture, prompting appeals by the Union of India and the officer. The Supreme Court held that the President’s power to forfeit pension is independent of the punishment imposed by the court‑martial and that the High Court erred in quashing the forfeiture. While the GCM proceedings and findings of guilt were upheld, the Court found the dismissal to be shockingly disproportionate to the technical nature of the offences and substituted the dismissal with forfeiture of eight years of service for pension purposes and a severe reprimand. Consequently, the order forfeiting the pension was set aside, the pension claim was directed to be processed, and the officer was denied back‑wages. The appeals were allowed.
Issues considered
- Whether the High Court was justified in quashing the President’s order under Regulation 16(a) forfeiting the officer’s pension.
- Whether the High Court’s finding that the General Court Martial proceedings were free of procedural irregularities warrants interference.
- Whether the findings of guilt on charges 1, 4 and 5(c) should be interfered with.
- Whether the punishment of dismissal from service was excessively disproportionate to the gravity of the proved offences.
Legislation cited
- Army Act, 1950s. 52(f), s. 63, s. 71
- Army Rules, 1954s. 149, s. 39, s. 44
- Constitution of Indias. 136, s. 2, s. 6
- Pension Regulations for Army (Part I), 1961s. 16(a)
Subjects
pension forfeiturearmycourt martialjudicial reviewproportionalitydismissalRegulation 16(a)military law
Judgment
[2011] 11 S.C.R. 326
A UNION OF INDIA & ORS.
v.
BODUPALLI GOPALASWAMI
(Criminal Appeal No. 876 of 2003)
SEPTEMBER 12, 2011
B
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]
SERVICE LAW:
c Pension and pensionary benefits - Army - Officer
dismissed from service after trial by General Court Martial -
Order by President of India forfeiting pension of the delinquent
officer - High Court quashing the order forfeiting the pension
- Held: The power and discretion vested in the President by
0 virtue of Regulation 16(a) of the Pension Regulations, to forfeit
and deny the pension in full or in part to an officer, who is
dismissed or cashiered, is independent of the punishment
imposed uls. 71 of the Act by the court martial - High Court
having held that there was no irregularity in court martial
E proceedings nor any infirmity in the findings of guilt or the
punishment imposed, committed an error in quashing the
order of the President forfeiting the pension of the officer -
However, if it is demonstrated that either the proceedings of
GCM were violative of the Act/Rules or findings were perverse
or punishment was shockingly disproportionate to the gravity
F of the offence proved, and if order of dismissal is set aside or
punishment is reduced, then the order of forfeiture of pension
will not survive - Pension Regulations for Army (Part I) -
Regulation 16(a).
G Dismissal - Army - Irregularities found in Butchery
section of ASC (Supply) - Commandant, being over all
controlling officer of supply depot tried by General Court
Martial - Charges 1, 4 and 5(c) found proved - Dismissal
from service - Held: The omission as regards charge 1 at best
H 326
UNION OF INDIA & ORS. v. BODUPALLI 327
GOPALASWAMI
would be technical lapse as far as the delinquent officer is A
concerned and further omissions attributed to him in regard
to charges 4 and 5(c) were actually omissions by his
subordinates who were charge-sheeted and punished - In the
circumstances, the punishment of dismissal from seNice is
shockingly disproportionate to the gravity of the offences held B
to have been proved - Accordingly, the order imposing
punishment of dismissal from service is set aside -
Consequently, order forfeiting the pension is a/so set aside -
Instead, punishment of forfeiture of 8 years of seNice for
purpose of pension and seNice reprimand imposed - Further, C
the Officer will not be entitled to any back wages form the date
of his dismissal to the date of his superannuation - Army Act,
1950 - s. 71.
ARMY RULES, 1954:
D
Rule 39 - Irregularity in constitution and conduct of court
martial -Plea that Presiding Officer of Court Martial had
earlier summarily tried two prosecution witnesses in regard to
the same incident -Held: .The act of summarily trying others
for other offences relating to the same incident is not a ground E
of disqualification -Charges against the delinquent officer
were completely different from the charges against the
persons who were summarily tried - Presiding Officer did not
suffer from any disqualifications enumerated in r. 39.
CONSTITUTION OF IND/A, 1950: F
Arlie/es 2~6 and 136 - Writ petition challenging the order
of General Court Martial - Held: Unless the court martial has
acted without jurisdiction or exceeded its jurisdiction or had
acted peNerse/y or arbitrarily, the proceedings and decision G
of the court martial will not be interfered in exercise of power
of judicial review - In the instant case, the charges against
the delinquent officer were technical in nature - While the
Court may not interfere with the findings of guilt, in such a case,
having regard to the nature of offences, the Court may H
328 SUPREME COURT REPORTS [2011) 11 S.C.R.
A consider the proportionality of punishment to find out whether
it is perverse and irrational - Even if accepting the finding of
guilt, the punishment of dismissal from service is shockingly
disproportionate to the gravity of the offences held to have
been proved - Accordingly, the order of dismissal is set aside
8 and punishment of forfeiture of 8 years of service for purpose
of pension and service reprimand imposed - Judicial review.
Respondent no. 1 in Crl. A. No. 876 of 2003, who was
the Commandant of 227 Company ASC (Supply), was,
consequent upon the trial by the General Court Martiai
C (GCM), dismissed from service with forfeiture of the entire
pensionary benefits. The charges found proved against
him were: (i) Charge 1 - Being the Contract Operating
Officer for dressed meat, delinquent officer with intent to
defraud, caused the acceptance of meat from the
D contractor with 'heart' as part of the meat knowing that
the same was not acceptable part of carcasses as per
para 86 of special conditions of the contract; (ii) Charge
4 - The delinquent officer as the Commandant incharge
of the Supply Depot, failed to ensure that required stocks
E were maintained as reserve, in the Butchery as required
by para 51 (a) of the special conditions of the contract ;
and (iii) Charge 5(c) - As the Commandant responsible
for the overall control of the operation of the Butchery,
the delinquent officer improperly failed to ·implement the
F standard operating procedure for Butchery resulting in
'passed' animals not being segregated and being
allowed to mix with the other animals of the contractor.
The writ petition filed by respondent no. 1 was partly
allowed by the High Court and it quashed the order
G dated 22.12.1995 by which the pension and pensionary
benefits to him had been forfeited. Aggrieved, the Union
of India challenged the said part of the order of the High
Court in Crl. A. No. 876 of 2003; whereas the delinquent
Officer filed Cr. A. no. 877 of 2003 against rejection of his
H
UNION OF INDIA & ORS. v. BODUPALLI 329
GOPALASWAMI
challenge to the findings of the GCM. A
The questions for consideration before the Court
were: (i) Whether the High Court having upheld the order
imposing the punishment of dismissal was justified in
quashing the order dated 22.12.1995 made under Pension 8
Regulation 16(a), forfeiting the pension and directing
reconsideration; (ii) whether the finding of the High Court,
that conduct of the proceedings of the GCM did not
violate any rules, calls for interference; (iii) whether the
. findings of guilt in regard to charges 1, 4 and 5(c)
required interference; and (iv) whether the punishment of C
dismissal was excessively disproportionate to the gravity
of the charges proved.
Disposing of the appeals, the Court
HELD: D
Question No. 1:
1.1 The High Court was not right in holding that in
the light of the legal principles laid down by the Full
Bench of the Delhi High Court in the case of Brig. A. K. E
Malhotra* there was no justification for forfeiting the
pension, as that the said decision has been reversed by
this Court in P. D. Yadav's case. This Court has held that
even if the GCM while imposing punishment, does not
direct forfeiture of service or forfeiture of pension u/s. 71 F
of the Army Act, 1950, having regard to Regulation 16(a)
of the Pension Regulations for Army (Part-I), it is
permissible for the President of India to direct forfeiture
of pension in regard to a person dismissed or cashiered
consequent to a trial by the GCM; and that for passing G
an order for forfeiture of pension under Regulation 16(a),
all that was necessary was the cashiering or dismissal
of the officer from service and there was no further need,
either to assign reasons for forfeiture or to consider
whether the merit of his prior service warranted any H
330 SUPREME COURT REPORTS [2011] 11 S.C.R.
A relaxation or relief against forfeiture. (Paras 9 and 11) (342-
G-H; 344-E-H]
Court in Union of India v. P. D. Yadav 2001 ( 4 ) Suppl.
SCR 209 = 2002 (1) sec 405 - relied on.
B *Brig. A. K. Malhotra v. Union of India (1997) (4) SLR 51
- stood reversed in P. D. Yadav.
1.2 As clarified by this Court in P.O. Yadav, the power
to deny pension as a consequence of an officer being
c cashiered or dismissed or removed from service, vests
only with the President of India under Regulation 16(a)
of the Pension Regulations. The President may direct
either forfeiture of the entire pension or only a
percentage of the pension. Further, s. 71 of the Act does
0 not provide for forfeiture of pension as one of the
punishments awardable by court martial. Imposition of
punishments of cashiering and dismissal from service
are provided in clauses (d) and (e) of s. 71. Neither clause
(h) nor clause (k) nor any of the other clauses in s. 71
refers to and provides for forfeiture of pension as a
E
penalty. Therefore, the question of court martial imposing
the punishment of forfeiture of pension does not arise at
all. The power and discretion vested in the President by
virtue of Regulation 16(a) of the Pension Regulations, to
forfeit and deny the pension in full or in part to an officer,
F who is dismissed or cashiered, is independent of the
punishment imposed uls. 71 of the Act by the court
martial. Thus, the High Court having held that there was
no irregularity in the court martial proceedings or infirmity
in the findings of guilt and the punishment imposed
G committed an error in quashing the order dated
22.12.1995 passed by the President, forfeiting the
pension of the appellant. [Paras 12 and 13] (345-A-E; 346-
C-H]
H 1.3 However, on respondent No.1 demonstrating that
UNION OF INDIA & ORS. v. BODUPALLI 331
GOPALASWAMI
either the proceedings of the GCM violated the provisions A
of the Act/Rules/the procedure prescribed, or that the
findings of guilt were perverse and unsustainable, or that
the punishment was shockingly disproportionate to the
gravity of the offences proved and warranted
interference, if the order of dismissal is set aside or the s
punishment is reduced, then the very basis for issue of
the order of forfeiture of pension under Regulation 16(a)
of the Pension Regulations will disappear and
consequently, that order of forfeiture also will not survive.
[Para 13] [347-A-C] c
Question No. 2:
2. As regards the plea of respondent no. 1 that there
is a serious procedural irregularity in the constitution and
conduct of the court martial in as much as the Presiding D
Officer of the Court Martial had earlier summarily tried two
prosecution witnesses in regard to the same incident, a
careful reading of Rule 39(c) of the Army Rules, 1954
demonstrates that the act of summarily trying others for
other offences relating to the same incident is not a E
ground of disqualification. The charges against
respondent no. 1 were completely different from the
charges against the persons who were summarily tried.
The Presiding Officer did not suffer from any of the
disqualifications enumerated in Rule 39. The Convening F
Authority was, therefore, justified in directing the GCM to
proceed with the trial. Respondent no.1 has not been
able to demonstrate any error in the finding of the High
Court that there was no infirmity in the constitution of the
Court Martial and the procedure followed by it. [Para 14 • G
16] (347-E-G; 349-B-C-E-F]
Question No. 3:
3.1 The principles relating to judicial review in regard
to court martial proceedings are well settled. Unless the H
332 SUPREME COURT REPORTS [2011] 11 S.C.R.
A court martial has acted without jurisdiction, or exceeded
its jurisdiction or had acted perversely or arbitrarily, the
proceedings and decision of the court martial will not be
interfered in exercise of power of judicial review. [Para 17]
[349-G-H]
B
Union of India vs. Major A. Hussain 1997 ( 6 ) Suppl.
SCR 218 = 1998 (1) sec 537 - relied or:i.
3.2 The High Court has held that the trial was
conducted in accordance with the rules and there was
C no violation of the procedure or principles of natural
justice. This is not a case of no-evidence. Inadequacy and
unreliability of evidence are not grounds for interference.
The Court Martial had jurisdiction. Violation of prescribed
procedure has not been made out. In exercise of power
D of judicial review, it is not possible to re-assess the
evidence or sit in judgment over the finding of guilt
recorded by the Military Tribunal. The scope of
interference with the findings of the GCM is very narrow
and should be exercised in rare cases. This is not one
E of them. Therefore, there is no reason to interfere with
findings of guilt regarding changes 1, 4 and 5(c). [Para
18] [351-8-F]
Ranjit Thakur vs. Union of India 1988 ( 1 ) SeR 512 =
F 1987 (4) sec 611 - relied on
Union of India vs. R.K. Sharma 2001 (9) Sec 492 -
referred to
Question No. 4:
G 4.1 According to the charge-sheet, the first charge
was an offence falling u/s. 52(f) of the Act which provides
that subject to the provisions of the Act, any person who
does anything with intent to defraud, or to cause wrongful
gain to one person or wrongful loss to another person,
H
UNION OF INDIA & ORS. v. BODUPALLI 333
GOPALASWAMI
shall, on conviction by court martial, be liable to suffer A
imprisonment for a term which may extend to ten years
or such less punishment as is mentioned in the Act The
other two charges which are held to be proved relate to
acts or omissions which are said to .be "prejudicial to
good order and military discipline" punishable u/s. 63 of B
the Act on conviction by Court Martial, with imprisonment
for a term which may extend to seven years or such less
punishment as is mentioned in the Act. [Para 21] [353-E-
F]
4.2 Section 52(f) and s. 63 are very broadly and C
generally worded and deal with residuary offences, (one
dealing with property and another dealing with discipline)
to provide for and cover offences which are not
specifically provided in ss. 34 to 64 of the Act. The
offences under these residuary provisions may fall under D
a wide spectrum, ranging from the mildest technical
violations to the severest offences relating to fraud or
gross indiscipline. It is, therefore, necessary to find the
degree of gravity of the offence when a person is found
guilty of offences u/s. 52(f) or s. 63. Only then, the court E
can consider whether the punishment is so
disproportionate to the gravity of the proved offences that
it shocks the conscience of the court or is so perverse
or irrational that it cannot be allowed to stand. As has
been held by this Court repeatedly, there could be no F
judicial review merely because the court feels that the
punishment should have been lesser or on the ground
of sympathy or compassion. (Para 21] [353-G-H; 354-A-
C]
G
4.3 In the instan.t case, it is pertinent to note that
respondent no.1 being the Commandant, was to be in
overall charge .of the supply depot. The first charge that
has been held to have been proved u/s. 52(f) of the Act
is that respondent no.1 while commanding the supply
~
334 SUPREME COURT REPORTS [2011] 11 S.C.R.
A depot, being the Contract Operating Officer, caused the
acceptance of meat from the contractor with heart as part
of meat. What was established was that when the
butchery was raided and the meat issued to units were
inspected on 14.2.1990, it was found that out of the
s dressed meat weighing 1411.2 kgs. that was issued to
various units, the weight of hearts found as part of the
meat was 14.5 kgs. The Supervisory Officer and
Veterinary Officer have been charged and punished in this
behalf. The case against respondent no.1 was not that he
c had instructed heart to be accepted as part of dressed
meat nor is it the case that heart was being regularly
accepted as part of dressed meat from the contractor.
The case against him was that when the butchery was .
being inspected on 14.2.1990, he, as Commandant, visited
the butchery and during discussions with the inspecting
0
officers made an observation that to the best of his
knowledge, heart was an edible offal and could be issued
on demand of units and also reiterated the said
observation in his confidential report dated 15.2.1990.
Making of the said remark has been interpreted as
E respondent no.1 accepting meat from the contractor with
heart as part of the dressed meat, knowing well that heart
was not acceptable part of carcass; to defraud the
government. This charge depends upon the interpretation
of para 86 of the special conditions of the contract and
F an inference that his understanding of para 86 amounted
to causing acceptance of heart as part of the dressed
meat. Therefore, all that is established is at best a wrong
interpretation of clause 86 of the Special Conditions of
Contract. The omissions attributed to respondent no.1 in
G regard to charges 4 and 5(c) were actually omissions by
his sub-ordinates and in regard to charges 1,4 and 5(c)
those sub-ordinates were cashiered and punished. The
role of respondent no.1 being that of an overall controlling
officer of the supply depot was limited and the charges,
H so far as he was concerned were technical in nature.
UNION OF INDIA & ORS. v. BODUPALLI 335
GOPALASWAMI
{Paras 22 - 24 and 27] [358-E-H; 359-A-C·G-H; 360-G-H; A
362-F-H; 363-A-B]
4.4 In the circumstances, the punishment of dismissal
from service is shockingly disproportionate to the gravity
of the offences held to be-proved. While this Court may
8
not interfere with. the findings of guilt, in a case of this
nature, having regard to the nature of offences, this Court
may consider the prop9rtionality of punishment to find
out whether it is perverse and irrational. Even accepting
the said findings of guilt regarding charges (1 }, (4) and C
5(c}, it is clearly a case of shockingly disproportionate
punishment being meted out to the Commandant for
offering an alternative interpretation to ·clause 86 of the
special conditions of the contract, for the lapses of his
. subordinate officer and for the breach committed by the
contractor. In the normal course, this Court would have D
set aside the punishment and referred the matter back for
consideration and imposition of a lesser punishment. But
having regard to the fact that the matter is more than 20
years old and respondent no.1 reached the age of
superannuation long ago, no purpose would be served, E
by referring it back to the appellants. [Para 28] [363-C-F]
4.5 On the facts and circumstances, interests of
justice would be served if the punishment of dismissal is
· substituted: (a) forfeiture of eight years of service for the F
purpose of pension; and (b} Severe reprimand. As a
consequence, the order forfeiting pension requires to be
set aside as pension can be denied under Pension
Regulation 16(a) of the Pension Regulations only to the
officers who are cashiered, dismissed or removed from G
service. The order dated 30. 7 .1993 imposing the
punishment of dismissal from service is set aside. As a
consequence, the order dated 22.12.~ 995 forfeiting the
pension, passed under Regulation 16(a), is also set aside.
The authorities are directed to process and settle the
.H
336 SUPREME COURT REPORTS [2011] 11 S.C.R.
A pension claim of respondent no.1. However, he will not
be entitled to any back-wages from the date of his
dismissal to the date of his superannuation, as a
consequence of his dismissal being set aside. [Paras 28-
29) [363-F-G; 364-A-D]
B
Case Law Reference:
(1997) (4) SLR 51 reversed Para 7
2001 ( 4 ) Suppl. SCR 209 relied on Para 11
c 1997 ( 6 ) Suppl. SCR 218 relied on Para 12
1988 ( 1 ) SCR 512 relied on Para 19
2001 (9) sec 492 referred to Para 19
o CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 876 of 2003.
From the Judgment & Order dated 25.08.2000 of the High
Court of Punjab & Haryana at Chadi~arh in Crl. W.P. No. 1797
of 1997.
E
WITH
Crl. Appeal No. 877 of 2003.
P.P. Malhotra, ASG, Rajiv Nanda, Rahul Kaushik, B.K.
F Prasad (for B.V. Balaram Das) for the Appellants. ·
Y. Rajagopala Rao, R. Balasubramanyam, Y. Ramesh,
Sureshta Bagga for the Respondent.
The Judgment of the Court was delivered by
G
R.V.RAVEENDRAN,J. 1. As the ranks of parties in the
two appeals are different, for ~onvenience, we will refer to the
parties by their ranks in Criminal Appeal No.876/2003.
2. The first respondent was the officiating Commandant
H and later the Commandant of 227 Company ASC (Supply)
UNION OF INDIA & ORS. v. BODUPALLI 337
GOPALASWAMI [R.V. RAVEENDRAN, J.]
and later the Commandant of 227 Company ASC (Supply) A
Type 'G', Ambala Cantonment (hereinafter referred to as the
'Supply Depot') from 19.10.1988 to 26.6.1990. The supply
depot had three sections - Dry Rations, Fresh Rations and
Butchery. The appellant as the Commandant was in overall
charge of the supply depot. As per the standard operative B
procedure for the Butchery, the following staff were detailed for
··operation:
(i) Supervisory Officer - Cap. P. S. Malhotra
(ii) Veterinary Officer - Lt. Col. G. S. Srivastava
c
(iii) J.C.O. in-charge - Sub. G. L Kalra
(iv) NCO in-charge - Havaldar Clerk D. L. Prasad
D
3. On receiving complaints about irregularities in the
butchery, a team of three officers from the Central Bureau of
Investigation and two Army Officers carried out a raid/surprise
inspection of the butchery on 14.2.1990, with the prior
permission of the second respondent. They intercepted eleven E
vehicles belonging to different units returning from butchery after
collecting meat and checked the meat for quality and quantity.
They also inspected the butchery. The Report of the Inspection
Team disclosed certain irregularities in the quality of the
dressed meat supplied by the contractor, (which were being F
issued to the indenting units), maintenance of live stock and
supervision. As a consequence, the officials of the Butchery
were all separately charge-sheeted.
4. The first respondent, who was the Commandant of the G
Supply Depot was also issued a charge-sheet dated
30.12.1992 containing the following charges :
H
338 SUPREME COURT REPORTS (2011] 11 S.C.R.
A First charge SUCH AN OFFENCE AS IS MENTIOEND
Army Act IN CLAUSE (f) OF SECTION 52 OF THE
Section 52<0 ARMY ACT WITH INTENT TO DEFRAUD,
In that he,
B
at Ambala Cantonment, on 14 Feb.1990,
while Commanding 27 Company Supply
(ASC), being contract operating officer for
meat dressed, with intent to defraud caused
c the acceptance of meat from the contractor
with heart as part of meat, well knowing that
the same was not acceptable part of
carcasses as per para 86 ·of Special
Condition of the Contract deed for the period
D from 1st May 1989 to 31st March, 1990,
concerning meat supply at Ambala.
Second charge AN OMISSION PREJUDICIAL TO GOOD
Army Act ORDER AND MILITARY DISCIPLINE,
E Section 63
In that he,
at Ambala Cantonment, on 14 February
1990, while Commanding 27 Company
F Supply (ASC), having visited butchery of the
said company at the time of inspection of
carcasses by the Veterinary Officer and
having found the carcasses dribbling with
'water, failed to ensure that wet meat
G dribbling with water is not issued to the
Units, contrary to para 140) of Headquarters
PH and HP area Shimla (ST Branch)
Technical Instruction dated 30th November,
1989.
H
UNION OF INDIA & ORS. v. BODUPALLI 339
GOPALASWAMI [R.V. RAVEENDRAN, J.]
Third charge AN OMISSION PREJUDICIAL TO GOOD A
Army Act ORDER AND MILITARY DISCIPLINE,
Section 63
In that he,
at Ambala Cantonment, during the period B
from 26th February 1990 to 8th March 1990
while Commanding 27 Company Supply
(ASC) failed to ensure that stock of reserve
animals was maintained in the butchery of
the said company as per para 51 (a) of
Special Condition of the Contract deed for
c
the period from 1st May 1989 to 31st March
1990, consequently no animals were held in
reserve in the said butchery during that
period.
D
Fourth charge AN OMISSION PREJUDICIAL TO GOOD
Army Act ORDER AND MILITARY DISCIPLINE,
Section 63
In that he, ,
E
at Ambala Cantonment, during the period
from 11th March 1990 to 22nd March 1990,
while Commanding 27 Company supply
(ASC), failed to ensure that stock of reserve
animals was maintained in the butchery of F
, the said company as per para 51 (a) of
Special Conditions of the Contract deed for
the period from 1st May, 1989 to 31st
March, 1990, consequently no animals were
held in reserve in the said butchery during
G
that period.
Fifth charge AN OMISSION PREJUDICIAL TO GOOD
Army Act ORDER AND MILITARY DISCIPLINE,
Section 63
In that he,
H
340 SUPREME COURT REPORTS [2011] 11 S.C.R.
A
at Ambala Cantonment, between 15th
January 1990 and March 1990, while
Officer Commanding 27 Company Supply
(ASC) and responsible for overall control of
B the operation of unit butchery, improperly
failed to implement the Standard Operating
Procedure for Butchery Group Supply Depot
Ambala Cantt dated 9th May, 1988, as
amended, resulting in the following
c malpractices:
(a) Duplicate Brands and Veterinary
Officer's stamp were found in
possession of contrac~or's butcher.
(b) All rejected n:ieat and other offals were
not being destroyed as per laid down
D
instructions.
(c) Passed animals were not segregated
but were allowed to mix with the other
animals of contractor.
(d) Hanging room was not sealed by the
E JCO lncharge butchery after taking the
green weight of the carcasses.
(e) Animals passed and branded were not
segregated for a minimum mandatory
period of 12 hours before slaughtering.
F (f) Over issue/under issue of meat was
made to the units in connivance with the
representatives of the units.
Charges 1 and 2 related to what was found during the
G inspection on 14.2.1990. Charges 3 and 4 related to failure
to maintain adequate animals in reserve subsequent to
14.2.1990. Charge 5 related to miscellaneous omissions and
commissions generally based upon what was observed
during the inspection on 14.2.1990.
H
UNION OF INDIA & ORS. v. BODUPALLI 341
GOPALASWAMI [R.V. RAVEENDRAN, J.]
5. On 14.1.1993, a direction for trial of the first respondent A
by General Court Martial ('GCM' or 'Court Martial' for short) was
issued. On the same day, an order convening the GCM was
issued by"the third appellant. The trial commenced on 22.1.1993
and concluded on 30.7.1993. At the end of the trial, the GCM
found the first respondent not guilty of the second and third B
charges, but guilty of the first charge, fourth charge and item
(c) of the fifth charge. On that basis, the GCM imposed the
sentence of dismissal from service on first respondent on
30.7.1993.
6. In pursuance of it, a show cause notice dated 30.6.1995 C
was issued to the first respondent calling upon him to show
cause why his pensionary benefits should not be forfeited under
Rule 16(a) of the Pension Regulations for the Army (Part I),
1961 (for short 'the Pension Regulations'). After considering the
first respondent's representation, the President of India ordered D
the forfeiture of the entire pensionary benefits of the first
respondent, communicated by letter dated 22.12.1995 from the
Defence Ministry to the Chief of Army Staff.
7. Feeling aggrieved, the first respondent filed writ petition E
in the Punjab & Haryana High Court (registered as Crl.WP
No.1797/1997) challenging General Court Martial proceedings,
findings of the General Court Martial holding him guilty of the
charges, sentence of dismissal from service and the decision
of the appellants to forfeit his pensionary benefits. The High F
Court by judgment dated 25.8.2000 allowed the writ petition in
part. The High Court held that the GCM proceedings were in
order, there was no violation of any rules or procedure. It also
found no ground to interfere with findings of guilt or the sentence.
Consequently, the punishment imposed by the GCM was
upheld. But the High Court held that the order forfeiting the G
pension and pensionary benefits of the first respondent was
invalid as no reasons were assigned in the order dated
22.12.1995, for forfeiture thereof. The High Court therefore
quashed the order dated 22.12.1995 forfeiting the pension and H
342 SUPREME COURT REPORTS [2011] 11 S.C.R.
A directed the appellants to reconsider the matter with reference
to Regulation 16(a) of the Pension Regulations and the
principles laid down by the Full Bench of the Delhi High Court
in Brig.AK. Malhotra v. Union of India- (1997) (4) SLR 51. In
short. the writ petition was allowed to the extent of quashing
B forfeiture of the pension but dismissed in regard to the
challenge to the proceedings of GCM and the order of
dismissal.
8. Aggrieved by the quashing of the pension forfeiture
order dated 22.12.1995, the appellants (Union of India and the
C Army Authorities) have filed Criminal Appeal No.876/2003.
Aggrieved by the rejection of the challenge to the GCM findings
and the imposition of the punishment, the first respondent has
filed Criminal Appeal No.877/2003. On the contentions urged,
the following questions arise for our consideration:
D
In Crl.Appeal No.876/2003
(i) Whether the High Court having upheld the order
imposing the punishment of dismissal, is justified
in quashing the order dated 22.12.1995 made
E
under Pension Regulation 16(a), forfeiting the
pension and directing reconsideration?
In Crl.Appeal No.877/2003
F (ii) Whether the finding of the High Court that conduct
of the proceedings of the GCM did not violate any
rules, calls for interference?
(iii) Whether the findings of guilt in regard to charges
1, 4 and 5(c) require interference?
G
(iv) Whether the punishment of dismissal is excessively
disproportionate to the gravity of the charges
proved?
H
UNION OF INDIA & ORS. v. BODUPALLI 343
GOPALASWAMI [R.V. RAVEENDRAN, J.]
Re : Question (i) A
9. The High Court having held that there was no irregularity
in the court martial proceedings or infirmity in the findings of
guilt and the punishment imposed, held that there was no
justification for forfeiting the pension on the following reasoning B
• .... the general court martial did not think it appropriate
to order for the forfeiture of the pension and pensionary
benefits under section 71 (h) and (k) of the Army Act and
the obvious inference seems to be that the court martial C
did not think it appropriate that despite the dismissal of
the service of the petitioner, he should be awarded the
forfeiture of pension~ and pensionary benefits as a
punishment. As held by the Full Bench of the Delhi High
Court in the case of Brig. A. K. Malhotra (supra), the D
pension and pensionary benefits are to eb granted in the
normal course unless there are such circumstances
existing under which the offence against the concerned
officer is found to be extra-ordinarily grave and in that case
sufficient reasons must be recorded for the forfeiture of the E
pension by the competent authority taking action on the
administrative side. In the instant case the impugned order,
Annexure P-12, shows that the forfeiture of the pension and
pensionary benefits was ordered by having regard to
circumstances of the case leading to the dismissal of the F
officer from service. In other words, the President
considered the forfeiture of the pension and pensionary
benefits only on the circumstances which led to the trial,
conviction and sentence of dismissal from service of the
petitioner by the General Court Martial. The impugned G
order, annexure P-12, does not show that it was
considered to be a case of extra-ordinarily grave charge
where the pension and pensionary benefits should have
been forfeited or there were other valid and good reasons
for the forfeiture of the pension and pensionary benefits.
H
344 SUPREME COURT REPORTS [2011] 11 S.C.R..
A 10. For this purpose, the High Court relied upon the
decision of the Delhi High Court in Brig. A. K. Malhotra. In the
said decision, the Delhi High Court held that under section 71
of the Army Act, 1950 ('Act' for short), forfeiture of pension was
provided as a measure of punishment for offences tried by the
B court martial and if the court marti.al did not, in a given ·case,
think it fit to forfeit the pension while awarding the punishment,
then the only inference that could be drawn is that the Court
Martial was of the view that the punishment of dismissal alone
was sufficient for the offences and there was no need to inflict
c the additional punishment of forfeiture of pension. The Delhi
High Court further held that the normal rule is that pensionary
and other benefits are to be granted unless the competent
authority comes to the conclusion that the service of the officer
taken as a whole was not satisfactory from the beginning or
unless the offences which are proved and for which he had
D been sentenced are so extra-ordinarily grave that the entire
previous satisfactory service ~3s to be excluded from
consideration. The High Court reasoned that if the offence was
so extra-ordinarily grave, the court martial itself would have
forfeited the pensionary benefits, and where the court martial
E did not deem it necessary, if the competent authority wanted
to deny pension, he must record good and valid reasons as to
why normal rule of granting pensionary benefits is not to be
followed.
F 11. The direction of the High Court to reconsider the matter
in the light of the legal principles laid down by the Full Bench
of the Delhi High Court in Brig. A.K. Malhotra is no longer valid
in view of the fact that the decision in Brig. A.K. Malhotra was
reversed by this Court in Union of India v. P.D. Yadav- 2002
G (1) SCC 405. This Court held that ·even if the GCM while
imposing punishment, does not direct forfeiture of service or
forfeiture of pension under section 71 of the Act having regard
to Regulation 16(a) of the Pension Regulations, it is permissible
for the President of India to direct forfeiture of pension in regard
H 10 a person dismissed or cashiered consequent to a trial by
UNION OF INDIA & ORS. v. BODUPALLI 345
GOPALASWAMI [R.V. RAVEENDRAN, J.]
the GCM. This Court also held that for p_assing an order for A
forfeiture of pension under Regulation 16(a), all that was
necessary was that cashiering or dismissal of the officer from
service and there was no further need, either to assign reasons
for forfeiture or to consider whether the merit of his prior service
warranted any relaxation or relief against forfeiture. B
12. As clarified by this Court in P.O. Yadav, the power to
deny pension as a consequence of an officer being cashiered
or dismissed or removed from service, vests only with the
President of India under Pension Regulation 16(a). The C
President of India may direct either forfeiture of the entire
pension or only a percentage of the pension. Further section
71 of the Act does not provide for forfeiture of pension as one
of the punishments awardable by Court Martial. Imposition of
punishments of cashiering and dismissal from service are
provided in clauses (d) and (e) of section 71. Clauses (h) and 0
(k) of section 71 relied upon to hold that the Court Martial could
also impose the punishment of forfeiture of pensionary benefits,
are extracted below :
"(h): The forfeiture of service for the purpose of increased E
pay, pension or any other prescribed purpose.
(k): The forfeiture in the case of a person's sentence to
cashiering or dismissal from service of all arrears of pay
and allowances and other public money due to him at the
F
time of such cashiering or dismissal."
Neither clause (h) nor clause (k) nor any of the other clauses in
section 71 refers to and provides for forfeiture of pension as a
penalty. This Court held:
G
"Under Section 71 (h), a punishment of forfeiture! of service
for the purpose of increased pay, pension or any other
prescribed purpose, can be imposed. If forfeiture of service
has the effect of reducing total qualifying service required
to earn pension, a person concerned is disentitled for H
346 SUPREME COURT REPORTS [2011] 11 S.C.R.
A pension itself. In other cases, it may have bearing in regard
to claim for increased pay or any other purpose. If by virtue
of such punishment itself, a person is not entitled for any
pension, the question of passing an order forfeiting
pension under Regulation 16(a) may not arise. As per
B Section 71 (k), in case of a person sentenced to
cashiering or dismissal from the service, a further
punishment of forfeiture of all arrears of pay and
allowances and other public money due to him at the time
of such cashiering or dismissal may be imposed. Clause
c (k) of Section 71 does not speak of pension unlike clause
(h) of the same Section. x x x xx
Merely because punishment is not imposed under clause
(h) or (k) of Section 71 and other punishments are
imposed, it does not mean that the President is deprived
D of his power and jurisdiction to pass order under
Regulation 16(a); ... "
Therefore, the question of court martial imposing the
punishment of forfeiture of pension does not arise at all. The
E court martial can impose any of the penalties enumerated in
section 71 of the Act. Dismissal or cashiering of an officer
does not lead to automatic forfeiture of pension. The power and
discretion vested in the President of India by virtue of Pension
Regulation 16(a), to forfeit and deny the pension in full or in part
F to an officer, who is dismissed or cashiered, is independent
of the punishment imposed under section 71 of the Act by the
court martial.
13. Having held that the proceedings of the GCM was
proper and findings of guilt did not suffer from any infirmity and
G the punishment of dismissal did not call for any interference,
the High Court could not have interfered with the power and
discretion exercised under Pension Regulation 16(a). If there
is no violation of rules in conducting the GCM and if there is
no infirmity in the award of punishment, having regard to the
H decision of this Court in P.O. Yadav, the forfeiture of pension
UNION OF INDIA & ORS. v. BODUPALLI 347
GOPALASWAMI [R.V. RAVEENDRAN, J.]
was not required to be supported by any other independent A
reasons nor was it necessary to consider the previous service
or gravity of the offence or other circumstances. The High Court
therefore committed an error in quashing the order dated
22.12.1995 passed by the President of India, forfeiting the
pension of the appellant. The appeal by the appellants (Criminal B
Appeal No.876 of 2003) is bound to succeed. But this is,
however, subject to the decision in the appeal, preferred by the
first respondent. If the first respondent is able to demonstrate
·-
in his appeal that either the proceedings of the GCM violated
the provisions of the Act/Rules/the procedure prescribed, or that c
the findings of guilt were perverse and unsustainable, or that
the punishment was shockingly disproportionate to the gravity
of the _proved offences and warranted interference, and if this
Court accepting his contentions allows his appeal, and sets
aside the order of dismissal or reduces the punishment, then
0
the very basis for issue of the order of forfeiture of pension
under Pension Regulation 16(a) will disappear and
consequently, that order of forfeiture also will not survive.
Therefore, we may now examine the contentions of the first
respondent challenging the validity of the proceedings of the E
GCM and imposition of punishm.ent.
Re : Question (ii)
14. The first respondent has contended that there is a
serious procedural irregularity in the constitution and _conduct F
of the court martial, that in spite of his challenge, it was not set
right and therefore, the entire Court Martial proceedings and
consequently, the punishment, were vitiated. According to first
respondent, the Presiding Officer of the Court Martial - Brig.
S.K. Kaushal had earlier summarily tried two prosecution G
witnesses'.'"" Sub. Baryam Singh and Sub. Harjinder Singh (who
had drawn meat for their units on 14.2.1990) for drawing less
quantity of meat and awarded the reprimand for negligent
performance of duties. As the summary trials were in regard
to the same incident when the prosecutor disclosed the said
fact on 15.4.1990, the first respondent raised a challenge H
348 SUPREME COURT REPORTS [2011) 11 S.C.R.
A objecting to Brig. S.K.Kaushal being the Presiding Officer, as
he was disqualified from serving on a GCM having regard to
clause (c) of sub-rule (2) of Rule 39 of the Army Rules 1954
('Rules' for short). He further alleged that the Presiding Officer
would have formulated an opinion in regard to the incident and
B cohsequently, be biased. In spite of it, the Convening Authority
wrongly directed the GCM to proceed, overruling his objection
under section 130 of the Act read with rule 44 of the Rules. He
submits that participation by the Presiding Officer vitiated the
entire proceedings, rendering the same invalid and void.
c 15. Rule 39 of the Army Rules 1954 reads thus :
"39. Ineligibility and disqualification of officers for court-
martial.-(1) An officer is not eligible for serving on a court-
martial if he is not subject to the Act.
D
(2) An officer is disqualified for serving on a general or
district court-martial if he-
(a) Is an officer who convened the court; or
E (b) Is the prosecutor or a witness for the prosecution; or
(c) Investigated the charges before trial, or took down the
summary of evidence, or was a member of a court of
inquiry respecting the matters on which the charges against
the accused are founded, or was the squadron, battery,
F
company, or other commander, who made preliminary
inquiry into the case, or was a member of a previous court-
martial which tried the accused in respect of the same
offence; or
G (d) ls the commanding officer of the accused, or of the
corps to which the accused belongs; or
(e) Has a personal interest in the case.
(3) The provost-marshal or assistant provost-marshal is
H disqualified from serving on a general court-martial or ,
UNION OF INDIA & ORS. v. BODUPALLI 349
GOPALASWAMI [R.V. RflVEENDRAN, J.]
district court-martial." A
It is clear from Rule 39 that an officer is disqualified for serving
on a GCM if (i) he had investigated the. charges before trial, or
(ii) he took down the summary of evidence, or (iii) he was a
member of a court of inquiry respecting the matters on which 8
the charges against the accused were founded, or (iv) he was
a Squadron, Battery, Company\ or other Commander who
made preliminary inquiry into the case, or (v) he was a member
of a previous Court Martial which tried the accused in respect
of the same offence. A careful reading of the said Rule C
demonstrates that the act of summarily trying others for other
offences relating to the same incident is not a ground of
disqualification. The charges against the first respondent were
completely different from the charges against the persons who
were summarily tried by Brig. Kaushal. The Presiding Officer
did not suffer from any of the disqualifications enumerated in D
. Rule 39. The Convening Authority was therefore justified in
directing the GCM to proceed with the trial. Therefore, the
challenge to the constitution of the GCM with Brig. Kaushal as
the Presiding Officer is liable to be rejected.
E
16. The High Court did not find any merit in the contention
that after the Court Martial was constituted on 3.2.1993, the first
respondent ought to have given 96 hours after giving the names
of the members constituting the Court Martial. The first
respondent has also not established his allegations that Judge F
Advocate was biased and Dy. JAG who ultimately reviewed the
findings, was also biased as he was actively guiding the
prosecution. The first respondent has not been able to
demonstrate any error in the finding of the High Court that there
was no infirmity in the constitution of the Court Martial and the G
procedure followed by it.
Re : Question (iii)
17. The principles relating to judicial review in regard to
court martial proceedings are well settled. Unless the court H
350 SUPREME COURT REPORTS [2011] 11 S.C.R.
A martial has acted without jurisdiction, or exceeded its
jurisdiction or had acted perversely or arbitrarily, the
proceedings and decision of the court martial will not be
interfered in exercise of power of judicial review. In Union of
India vs. Major A. Hussain - 1998 (1) SCC 537, this Court
B held:
"Though court~martial proceedings are subject to judicial
review by the High Court under Article 226 of the
Constitution, the court-martial is not subject to the
superintendence of the High Court under Article 227 of the
c Constitution. If a court-marti<ll has been properly convened
and there is no challenge to its composition and the
proceedings are in accordance with the procedure
prescribed, the High Court or for that matter any court must
stay its hands. Proceedings of a court-martial are not to
D be compared with the proceedings in a criminal court
under the CrPC where adjournments have become a
matter of routine though that is also against the provisions
of law. It has been rightly said that court-martial remains
to a significant degree, a specialised part of overall
E mechanism by which the military discipline is preserved.
It is for the special need for the armed forces that a person
subject to Army Act is tried by court-martial for an act
which is an offence under the Act. Court-martial discharges
judicial function and to a great extent is a court where
F provisions of Evidence Act are applicable. A court-martial
has also the same responsibility as any court to protect
the rights of the accused charged before it and to follow
the procedural safeguards. If one looks at the provisions
of law relating to court-martial in the Army Act, the Army
G Rules, Defence Service Regulations and other
Administrative Instructions of the Army, it is manifestly clear
that the procedure prescribed is perhaps equally fair if not
more than a criminal trial provides to the accused. When
there is sufficient evidence to sustain conviction, it is
unnecessary to examine if pre-trial investigation was
H
UNION OF INDIA & ORS. v. BODUPALLI 351
GOPALASWAMI [R.V. RAVEENDRAN, J.]
adequate or not. Requirement of proper and adequate A
investigation is not jurisdictional and any violation thereof
does not invalidate the court-martial unless it is shown that
the accused has been prejudiced or a mandatory provision
has been violated. One may usefully refer to Rule 149
quoted above. The High Court should not allow the B
challenge to the validity of conviction and sentence of the
accused when evidence is sufficient, court-martial has
jurisdiction over the subject-matter and has followed the
prescribed procedure and is within its powers to award
punishment." c
18. The High Court after exhaustive consideration found
that the trial was conducted in accordance with the rules and
there was no violation of the procedure or principles of natural
justice, On behalf of the prosecution 1 as many as 13 witnesses
were examined. A large number of documents (marked A to D
Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart from
three material objects (ME1 to ME 3) were exhibited. The first
respondent was supplied with complete set of proceedings
including all exhibits. He was permitted to have the assistance
of a legal practitioner. He was given due opportunity to cross E
examine the witnesses and lead his own evidence. After
completion of evidence, the General Court Martial put questions
to the accused with reference to the evidence and gave him
an opportunity to explain his position. Detailed submissions on
behalf of the prosecution and the defence were heard. It was F
thereafter that the Court Martial gave its findings and imposed
the punishment. This is not a case of no-evidence. Inadequacy
and unreliability of evidence are not grounds for interference.
The Court Martial had jurisdiction. Violation of prescribed
procedure has not been made out. In exercise of power of G
judicial review, it is not possible to re-assess the evidence or
sit in judgment over the finding of guilt recorded by the Military
Tribunal. The scope of interference with the findings of the GCM
is very narrow and should be exercised in rare cases. This is
not one of them. We, therefore, find no reason to interfere with H
352 SUPREME COURT REPORTS [2011] 11 S.C.R.
A findings of guilt regarding changes 1, 4 and 5(c).
Re : Question (iii)
19. This takes us to the last question as to whether the
punishment of dismissal is shockingly disproportionate fo the
B gravity of the charges. The principles relating to judicial review
of punishment imposed, as a part of the decision making
process by Court Martial, have been explained, in Ranjit
Thakur vs. Union of India - 1987 (4) SCC 611, where this
Court interfered with the punishment imposed by a court martial
C on the ground that it was strikingly disproportionate to the gravity
of offence on the following reasoning :
"Judicial review generally speaking, is not directed against
a decision, but is directed against the "decision making
D process". The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the
Court-Martial. But the sentence has to suit the offence and
the offender. It should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence as to
shock the conscience and amount in itself to conclusive
E
evidence of bias. The doctrine of proportionality, as part
of the concept of judicial review, would ensure that even
on an aspect which is, otherwise, within the exclusive
province of the Court-Martial, if the decision of the Court
even as to sentence is an outrageous defiance of logic,
F then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of
judicial review."
In Union of India vs. R.K. Sharma - 2001 (9) SCC 492, this
G Court explained the observations in Ranjit Thakur. It clarified
that in Ranjit Thakur, the charge was ridiculous, the punishment
was harsh and disproportionate and it was on such gross facts
that this Court had held that the punishment was so strikingly
disproportionate that it called for interference; and the said
H observations in Ranjit Thakur are not to be taken to mean that
UNION OF INDIA & ORS. v. BODUPALLI 353
GOPALASWAMI [R.V. RAVEENDRAN, J.]
a court can, while exercising the power of judicial review, A
. interfere with the punishment merely because it considers the
punishment to be disproportionate. It was held that only in
extreme cases, which on their face, show perversity or
irrationality, there could be judicial review and merely on
compassionate grounds, courts should not interfere. In this B
background, we may examine the third question.
20. The charges that are held to be proved against the first
respondent, are: (i) Being the Contract Operating Officer for
dressed meat, the first respondent with intent to defraud, caused C
the acceptance of meat from the contractor with 'heart' as part
of the meat knowing that the same was not acceptable part of
carcasses as per para 86 of special conditions of the contract
(vide first charge); (ii) The first respor:ident, as the Commandant
incharge of the Supply Depot failed to ensure that required
stocks were maintained as reserve, in the Butchery as required D
by para 51 (a) of the special conditions of contract (vide fourth
charge); (iii) The first respondent as the Commandant
responsible for the overall control of the operation of the
Butchery improperly failed to implement the standard ope.rating
procedure for Butchery resulting in 'passed' animals not being E
segregated and being allowed to mix with the other animals of
the contractor.
21. According to the charge-sheet, the first charge was an
offence falling under section 52(f) of the Act which provides that F
subject to the provisions of the Act, any person who does
anything with intent to defraud, or to cause wrongful gain to one
person or wrongful loss to another person, shall, on conviction
by court martial, be liable to suffer imprisonment for a term
which may extend to ten years or such less punishment as is G
mentioned in the Act. The other two charges which are held to
be proved relate to acts or omissions which are said to be
"prejudicial to good order and military discipline" punishable
under section 63 of the Act on conviction by Court Martial, with
imprisonment for a term which may extend to seven years or H
354 SUPREME COURT REPORTS [2011] 11 S.C.R.
A such less punishment as is mentioned in the Act. We may now
consider the nature and content of the charges proved. Section
52(f) and section 63 are very broadly and generally worded and ·
deal with residuary offences, (one dealing with property and
another dealing with discipline) to provide for and cover
B offences which are not specifically provided in sections 34 to
64 of the Act. The offences under these residuary provisions
may fall under a wide spectrum, ranging from the mildest
technical violations to the severest offences relating to fraud or
gross indiscipline. It is therefore necessary to find the degree
c of gravity of the offence when a person is found guilty of
offences under section 52(f) or section 63. Only then, the court
can consider whether the punishment is so disproportionate to
the gravity of the proved offences that it shocks the conscience
of the court or is so perverse or irrational that it cannot be
allowed to stand. As held by this Court repeatedly, there could
0
be no judicial review merely because the court feels that the
punishment should have been lesser or on the ground of
sympathy or compassion.
22. It is necessary to know who was responsible for what
E in the butchery. As per the standard operating procedure of
Butchery, the responsibility has been divided among the
Supervisory Officer, JCOs and NCOs. The duties of the
supervisory officer included the following :
F "Duties of Supervisory Officer
The Supervising Officer, Butchery will be responsible for
the proper and efficient functioning of the butchery. He will
G (a) Be responsible for passing goat and sheep and
maintaining the reserve stock of animals at all
times.
(b) Ensure that proper branding of animals is carried
out without any cruelty to the animals and the
H
UNION OF INDIA & ORS. v. BODUPALLI 355
GOPALASWAMI [R.V. RAVEENDRAN, J.]
branding so done lasts till the carcass is passed fit A
by the veterinary officer.
(c) Be personally responsible for the books and records
showing reserve stock and animals passed. The
records must be complete and up to date at all
8
times and signed by him duly completed in all
respects.
(d) Visit butchery during slaughter hours at least once
a week.
c
(e) Ensure that the butchery surroundings are kept
scrupulously clean.
(f) Ensure that branding irons are kept in sealed box
in quarter guard and take the same whenever
D
required for branding the animals.
(g) Ensure that branding irons are not left over with any
body in the butchery. He will also ensure that
weights and measures are calibrated periodically by
the workshop. E
(h) He will ensure that the quality of meat always
conforms to ASC specifications and no deviation
from these specifications will be allowed. In doing
so he will ensure that the contractor does not use
F
unfair means such as use of water except for
cleaning of carcasses.
(i) He will be present in the butchery throughout the
issue time and will ensure that units get their
entitlements. He will also ensure that every unit rep G
signs for the quantity and quality of the items being
collected. He will be responsible to check the
following documents maint in the butchery for its
correctness and will be responsible to put up the
same to Commandant once a month : H
356 SUPREME COURT REPORTS [2011] 11 S.C.R.
A )()()()()()(
The duties of JCOs:
(a) "He is responsible for the smooth functioning of the
butchery under the order of Supervising Officer.
B
(b) He will ensure that highest standard of cleanliness
is maintained in the butchery.
(c) He will ensure that reserve stock of animals is
maintained by the contractor at all times.
c
(d) He will ensure that strict security is observed as
regards to segregation pen, hanging room,
disposal of rejected meat by the VO and disposal
of dead and rejected animals
D
(e) He will supervise the slaughter of all animals as per
procedure laid down in order from time to time. He
will be personally responsible to ensure that only
jhatka meat is being issued unless otherwise
E demanded by a unit.
(f) He will be responsible to observe the slaughtering
animals. He will ensure that only branded and
segregated animals are slaughtered and will be
present throughout the slaughtering times. He will
F ensure that no water is injected in the carcasses by
contractor. He will ens·ure that the grown weight is
taken and minimum 5 hrs setting time is allowed.
(g) He will ensure that books and records maintained
G in the butchery are kept up to date at all times.
(h) He will be responsible to supervise the issue of
meat to troops and ensure that correct quantity as
per their demand is issued and receipt of the same
is obtained.
H
UNION OF INDIA & ORS. v. BODUPALLI 357
GOPALASWAMI [R.V. RAVEENDRAN, J.]
(i) He will ensure that proper duties are allotted to A
other NCO's and Sepoy detailed to assist him.
He will ensure that from the time of slaughtering to
the time of issue, the butchery will be open and
NCO/Sepoy will sleep at night properly guarded in B
the butchery.
(k} He will be responsible for proper setting of meat in
that he will see that the butchers do not use water
for any other purpose except for the cleaning of
carcasses. c
(I) He will ensure that the meat is properly set before .
the postmortem is carried out by Veterinary Officer
and will be responsible for retail issue to units.
D
The duties of the Veterinary Officer :
. "He will be responsible for ante-mortem and post mortem
inspection. His advice as a rule will be accepted unless
there are other reasons. He will ensure that only good and
hygienic meat is issued to troops. In doing so he will ensure E
a. That offals which are not edible are removed.
b. That the meat or the carcas~es which is unfit for
human consumption is removed. F
c. He will ensure that the rejected meat potion/
carcasses are destroyed either by burning or by
deep burying in his presence.
G
d. He will ensure that meat inspected by him is
properly set and no water is dripping from the
carcasses. He will bring to the notice of SO butchery
and Commandant if any water is found in the
carcasses so that remedial measures can be
taken.
• H
358 SUPREME COURT REPORTS [2011) 11 S.C.R.
·A e. He will ensure that veterinary officer stamp has
been put on each and every carcasses including the
portion of carbasses after he had carried out the
·post mortem examination.
8 The Commandant was to be in overall charge of the supply
depot and his duties were as under :
"(a) A CO will supervise and control all duties performed
by those under his command, and will be held accountable
for, and be responsible for the security and condition of,
c all public buildings, armaments, equipment and stores, of
whatever description, appertaining to or on charge of his
unit, corps or establishment.
(b) A CO is responsible for the correct receipt, issue,
D accounting and stock taking of all supplies, stores and
equipment received or issued by the unit. He will ensure
that daily issues are inspected and weighed in the
presence of an officer or a Junior Commissioner Officer.
(c) A CO is responsible for the maintenance of discipline,
E efficiency and proper administration in the unit under his
command. He is also responsible for its training and
readiness for war."
23'. We may now consider the first charge. The charge that
F has been held to have been proved is an offence under section
52(f) of the Act that is while commanding the supply depot, the
first respondent being the Contract Operating Officer for
dressed meat, with intent to defraud, caused the acceptance
of meat from the contractor with heart as part of meat between
G 1.5.1989 and 31.3.1990, knowing that the same was not
acceptable part of the carcass as per para 86 of the Special
Conditions of Contract. What was established was that when
the butchery was raided and the meat issued to units were
inspected on 14.2.1990, it was found that out of the dressed
H meat weighing 1411.2 kgs. that was issued to· various units,
UNION OF INDIA & ORS. v. BODUPALLI 359
GOPALASWAMI [R.V. RAVEENDRAN, J.]
the weight of hearts found as part of the meat was 14.5 kgs. A
The Supervisory Officer and Veterinary Officer have been
charged and punished in this behalf. The case against the first
respondent was not that he had instructed heart to be accepted
as partof dressed meat nor is itthe case that heart was being
regularly accepted as part of dressed meat from the contractor. B
The case against first respondent was that when the butchery
was being inspected on 14.2.1990, the first respondent as
Commandant visited the butchery and during discussions with
the inspecting officers made an observation that to the best of
his knowledge, heart was an edible offal and could be issued c
on demand of units and also reiterated the said observation in
his confidential report dated 15.2.1990. Making of the said
remark has been interpreted as the first respondent accepting
meat from the contractor with heart as part of the dresse_d meat,
knowing well that heart was not acceptable part of carcass; to
0
defraud the government. This charge depends upon the
interpretation of para 86 of the special conditions ofthe contract
and an inference that his understanding of para 86 amounted
to causing acceptance of heart as part of the dressed meat.
24. Para 86 of the 'special conditions - meat dressed/meat E
on hoof reads as under :
"86. I/We agree that I/We will supply meat dressed (Jhatka/
Halal) as per ASC Specification No.115, including liver,
kidney and testicles passed fit by the Veterinary Officer/ F
Contract Operating Officer of the total arising of carcasses
and as a part of meat dressed at the rate of meat dressed
(Jhatka/Halal) by weight as given in the schedule. Any
other offals, cuttings and arising of meat carcasses will not
be taken over by the Contract Operating Officer. The same G
will be removed by me/us and will be disposed off by me/
us in any manner I/We like at my/our cost."
(emphasis supplied)
The ~ord~offal' has two meanings. Firstly, it refers to the edible H
360 SUPREME COURT REPORTS (2011] 11 S.C.R.
A internal parts of an animal· such as heart, livers, kidneys,
testicles and tongue. Secondly the term 'offal' refers to the
refuse or waste that is cuttings and other non-edible parts of
the animal which are either fallen or cut-off. One way of
interpreting clause 86 of the special conditions of contract is
B that the dressed meat supplied may include liver, kidney,
testicles (which are specifically mentioned) but not other edible
internal parts like heart and tongue. The other interpretation in
view of the use of the words "including liver, kidney, testicles"
would be that the dressed meat can include all edible internal
c parts which include liver, kidney, and testicles as also heart, and
what should be excluded from the supply are other waste like
cuttings, fallen portions and inedible portions. Be that as it may.
Even if we proceed on the basis that clause 86 should be
interpreted as specifying that the dressed meat to be supplied
could include only liver, kidney and testicles, but not heart, that
0
by itself does not mean that the. appellant committed any
offence. On the day of raid and inspection, it was found that
the supplies included heart (out of a take quantity of 1411.2 kg.
of meat supplied to various indenting units, 14.5 kgs. were
E heart). The first respondent who visited the Butchery at the time
of the inspection observed that the heart is also an edible offal
and could be issued on demand by the units. He did not say
that heart was a part of dressed meat under clause 86 or that
heart was required to be regularly supplied as part of dressed
meat. No evidence was given that he had instructed the
F butchery staff to accept 'heart' as part of dressed meat and
issue it to the units. It is of some interest to note that the first
respondent had stated that the earlier supply contract was in
the monopoly of one Om Prakash and when that was broken
and the contract was given to M/s Rajan Malik & Co., Om
G Prakash became inimical to M/s Rajan Malik & Co., that some
of the persons employed by M/s Rajan Malik & Co. in the
Butchery where ex-employees of Om Prakash owing allegiance
to Om Prakash, that some mischief had been done at the
instance of Om Prakash to prevent Rajan Malik & Co. from
H continuing as contractor, that the raid was at the instance of Om
UNION OF INDIA & ORS. v. BODUPALLI 361
GOPALASWAMI [R.V. RAVEENDRAN, J.]
Prakash and that he and his henchmen were present all through A
the inspection. The first respondent submitted that he was a
victim i.n a fight between the contractors. Be that as it may.
Therefore, all that is established is at best a wrong
interpretation of clause 86 of the Special Conditions of
Contract. B
25. The charge 4 is that between 11.3.1990 and
22.3.1990, the first respondent failed to ensure that the reserve
stock of animals were maintained in the butchery as per para
51 (a) of the Special Conditions of Contract. Here again the C
charge should be properly understood. The first respondent was
not the supplier of the animals. The government had entered
into a contract with that supplier and clause 51{a) of Special
Conditions is an undertaking by the Contractor which reads thus
: "IM/e shall maintain complete ;:it all time from/upto .......... as
reserve of not less than three days supply animals {sheep/goat) D
based on the average number of animals to be slaughtered as
meat on hoof daily". Contract also provided {vide clause 52)
thatif the contractor failed to do so, the supply officer shall be
at liberty to effect risk purchase be effected at the cost of the
contractor and also take other steps. Therefore, failure to E
maintain reserve stocks of animals was not an omission on the
part of any person in charge or overall charge of the butchery,
but a breach by the contractor. The omission that could be
attributed to the officer in-charge of the butchery or the first
respondent is that when the contractor failed to maintain F
reserves failure to bring it to the contractor's notice or failure
to take action to make risk purchase and other steps in terms
of the contract. But the charge is not that risk purchase was not
effected or that the first respondent failed to take necessary
remedial steps. The evidence showed that arrangements were G
made to procure the animals required for slaughter on day to
day basis to ensure no breaks in supply'of meat. It has also
come in evidence that ever since 1989, the first respondent had
been informing and complaining to his higher ups that the
Ambala area where the supply depot was situated, had a H
362 SUPREME COURT REPORTS [2011) 11 S.C.R.
A shortage of stock of animals, that the contractor was not in a
position to maintain the required reserves and therefore,
suggesting that tenders should be invited from contractors in
Delhi where there was an abundance of stocks. Therefore, an
omission of the contractor cannot be considered to be an
B omission on part of the Contract Operating Officer, particulariy
when he had pointed out deficiencies, and taken remedial
steps. Therefore, the effect of the finding in regard to charge
(4) is that the contractor did not keep any animals as reserve
between 11.3.1990 and 22.3.1990 as undertaken by it under
c clause 51 (a) of the Special Conditions. The failure attributed
to the supervisory staff of butchery and the first respondent who
was in overall charge was that they failed to ensure that the
contractor performed his obligations. What is established
against first respondent under charge (4) is therefore, only a
technical lapse.
0
26. Charge S(c) is that the appellant failed to implement
the standard operating procedure for butchery which required
passed animals to be segregated and not allowed to mix with
the other animals of the contractor. Animals that were branded
E and accepted for supply were the 'passed animals'. The
evidence was not that passed animals and other animals were
being kept together. The evidence was that on a particular day
when the surprise inspection took place, the passed animals
had not been segregated from the other animals of the
F contractor which were yet to be branded and passed. It was
also not disputed that there was no specific directive relating
to segregation. Even if there was any lapse, it was a lapse of
the JCO as per the standard procedure for the butchery and
not the Commandant of the supply depot. The omission that
. G could be attributed is at best would be a technical lapse as far
as the first respondent is concerned.
27. The omissions attributed to first respondent in regard
to charges 4 and S(c) were actually omissions by his sub-
ordinates arid those sub-ordinates were charge-sheeted. In
H
UNION OF INDIA & ORS. v. BODUPALLI 363
GOPALASWAMI [R.V. RAVEENDRAN, J.]
regard to the subject of· charges (1) and (4), .the supervisory A
officer Capt. Paramjeet Singh Malhotra was cashiered and
sentenced to undergo rigorous imprisonment for 30 months
and the Veterinary Officer Lt. Capt. G. S. Srivastava was
punished with forfeiture of eight years past service for the
purpose of pension and severely reprimanded. In regard to the B
subject of charges (4) and S(c), the Supervisory Officer Capt.
Paramjeet Singh Malhotra was punished. The role of the
appellant being that of an overall controlling officer of the supply
depot was limited and the charges in so far as the first
respondent were technical in nature. But for the limitation of c
interference with regard to findings of fact in judicial review, this
might even be a case for interference with the findings of guilt
recorded. Be that as it may.
28. In the circumstances, the punishment of dismissal from
service is shockingly disproportionate to the gravity of the D
offences held to be proved. While we may notinterfere with the
findings of guilt, in a case of this nature, having regard to the
nature of offences, we may consider the proportionality of
punishment to find out whether it is perverse and irrational. Even
accepting the said findings of guilt regarding charges (1), (4) E
and S(c), it is clearly a case of shockingly disproportionate
punishment being meted out to the Commandant for offering
an alternative interpretation to clause (86), for the lapses of his
supervisory officer and for the breach committed by the
contractor. In the normal course, we would have set aside the F
punishment and referred the matter back for consideration and
imposition of a lesser punishment. But having regard to the fact
that the matter is more than 20 years old and the first respondent
reached the age of superannuation long ago, no purpose would
be served, by referring it back to the appellants. We are of the G
view on the facts and circumstances, interests of justice would
be served if the punishment of dismissal is substituted by the
following punishment : (a) forfeiture of eight years of service for
the purpose of pension; and (b) Severe reprimand. As a
consequence, the order forfeiting pension requires to be set H
364 SUPREME COURT REPORTS [2011] 11 S.C.R.
A aside as pension can be denied under Pension Regulation
16(a) only to the officers who are cashiered, dismissed or
removed from service.
29. We accordingly dispose of the appeals as under :
B (i) We allow Criminal Appeal No.876 of 2003 and set aside
the order of the High Court quashing the order dated
22.12.1995.
(ii) We allow Criminal Appeal No.877 of 2003 filed by the
c first respondent and set aside the order of punishment dated
30.7.1993 imposing the punishment of dismissal from service
and substitute the same with the punishment of forfeiture of eight
years of service for purposes of pension and severe reprimand.
(iii) As a consequence of the punishment of dismissal
D being set aside and substituted by a lesser punishment
necessarily, the order dated 22.12.1995 forfeiting the pension,
passed under Pension Regulation 16(a), is set aside. The
respondents are directed to process and settle his pension
claim within six months.
E
(iv) The first respondent will not be entitled to any back-
wages from the date of his dismissal to the date of his
superannuation, as a consequence of his dismissal being set
aside.
'F
R.P. Appeals disposed of.
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