9911796707
TMI Blog1991 (5) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... th September, 1985, he applied for leave and it was granted. He was going to his home town, a village in Rajasthan. He 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 one of his close relations at his home town. Admittedly, the appellant was entitled to carry 4 bottles of rum and one bottle of brandy as per the Unit Regulations/leave certificate when he was proceeding on leave. According to the appellant, the remaining 7 bottles of rum he was able to purchase from the Unit Canteen over and above his entitlement on the orders of its Company Commander and Commanding Officer on compassionate grounds and that there was a written order to that effect which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the appellant submitted that several irregularities have been committed in conducting the summary trial. But from the records we find that the evidence has been duly recorded and further it is an admitted fact that the appellant was carrying extra 7 bottles of rum without the necessary permit. Therefore we are unable to agree with the counsel that the trial is vitiated and we are of the view that no prejudice has been caused. The main submission and perhaps the only submission, if we may say so, in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him. According to the learned counsel the extreme punishment of imprisonment for 3 months and dismissal from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 63 lays down as under: 63. Violation of good order and discipline-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned . The Section may cover various types of misconducts committed by a person by way of an act or omission. This Section also provides for awarding any other lesser punishment mentioned in the Act. Therefore such depends on the nature of the act or omission of which the person is found guilty. The provisions in Chapter VII enumerate various pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pay and allowances for a period not exceedind three months for an offence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good. It can be seen that Sections 71(a) to 71(e) and Section 71(k) provide for extreme punishments and are severe in nature. Sections 71(f) to 71(j) and Section 71(l) provide for comparatively lesser punishments. Section 72 of the Act is the next relevant Section which reads as under: 72. Alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to the nature and degree of the offence, we are firmly of the view that the punishments awarded to the appellant namely, three months' R.I. and dismissal from service are severe and are also violative of Section 72. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All ER 935, 950 Lord Diplock said: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third 'procedural improprie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Applying these principles to the instant case, We are also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant. We have heard both the learned counsel on this aspect elaborately and we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments. Having given our earnest consideration to the facts and circumstances of this case and in view of the submissions made by both the counsel, we feel that ends of justice will sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X
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