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TMI Blog2011 (9) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) Supervisory Officer - Cap. P.S. Malhotra (ii) Veterinary Officer - Lt. Col. G.S. Srivastava (iii) J.C.O. in-charge - Sub. G.L. Kalra (iv) NCO in-charge - Havaldar Clerk D.L. Prasad 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 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 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 Supply Depot was also issued a charge-sheet dated 30.12.1992 containing the following charges: First charge Army Act Section 52(f) SUCH AN OFFENCE AS IS MENTIOEND IN CLAUSE (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peration of unit butchery, improperly failed to implement the Standard Operating Procedurefor Butchery Group Supply Depot AmbalaCantt dated 9th May,1988, as amended, resulting in the following malpractices: (a) Duplicate Brands and Veterinary Officer's stamp werefound in possession of contractor's butcher. (b) All rejected meat and other offals were not being destroyedas per laid down instructions. (c) Passed animals were not segregated but were allowed to mixwith the other animals of contractor. (d) Hanging room was not sealed by the JCO Inchargebutcheryafter taking the green weight of the carcasses. (e) Animals passed and branded were not segregated for aminimum mandatory period of 12 hours before slaughtering. (f) Over issue/under issue of meat was made to the unitsinconnivance with the representatives of the units. Charges 1 and 2 related to what was found during the 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. 5. On 14.1.1993, a direction for trial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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? 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 under Pension Regulation 16(a), forfeiting the pension and directing reconsideration? In Crl.Appeal No. 877/2003 (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? (iv) Whether the punishment of dismissal is excessively disproportionate to the gravity of the charges proved? Re : Question (i) 9. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of the view that the punishment of dismissal alone was sufficient for the offences and there was No. need to inflict 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 been sentenced are so extra-ordinarily grave that the entire previous satisfactory service has 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (k) of Section 71 does not speak of pension unlike Clause (h) of the same Section. x x x x x 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 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 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 Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, the Presiding Officer of the Court Martial - Brig. S.K. Kaushal had earlier summarily tried two prosecution 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 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 consequently, 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. 15. Rule 39 of the Army Rules 1954 reads thus: 39. Ineligibility and disqualification of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first Respondent has also not established his allegations that Judge 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 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 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 v. Major A. Hussain: 1998 (1) SCC 537, this Court 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 Constitution. If a court-martial has been properly convened and there is No. challenge to its composition and the proceedings are in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 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 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 findings of guilt regarding changes 1, 4 and 5(c). Re : Question (iii) 19. This takes us to the last quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud, caused 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 Respondent, as the Commandant incharge of the Supply Depot failed to ensure that required stocks were maintained as reserve, in the Butchery as required 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 operating procedure for Butchery resulting in 'passed' animals not being 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spects. (d) Visit butchery during slaughter hours at least once a week. (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 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. (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 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 signs for the quantity and quality of the items being collected. He will be responsible to check the following documents main in the butchery for its correctness and will be responsible to put up the same to Commandant once a month: xxxxxx The duties of JCOs: (a) "He is responsible for the smooth functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by deep burying in his presence. 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. e. He will ensure that veterinary officer stamp has been put on each and every carcasses including the portion of carcasses after he had carried out the post mortem examination. 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, 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, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 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 word 'offal' has two meanings. Firstly, it refers to the edible 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 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 parts which include liver, kidney, and testicles as also heart, and what should be excluded from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete at all time from/upto.... as reserve of not less than three days supply animals (sheep/goat) based on the average number of animals to be slaughtered as meat on hoof daily". Contract also provided (vide Clause 52) that if 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary 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 subject of charges (4) and 5 (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 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 offences held to be proved. While we may not interfere 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) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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