Full Judgment Text
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PETITIONER:
RANJIT THAKUR
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT15/10/1987
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 2386 1988 SCR (1) 512
1987 SCC (4) 611 JT 1987 (4) 93
1987 SCALE (2)773
CITATOR INFO :
R 1988 SC1099 (6)
D 1991 SC1617 (10,26,33,34)
R 1992 SC 188 (5)
R 1992 SC 417 (5)
ACT:
Army Act, 1950/Army Rules, 1954: Sections 41 and
130/Rules 106-133-Court Martial-When proceedings vitiated-
Participation of officer who has punished accused-Whether
amounts to bias-Soldier-Refusing to eat food-Whether amounts
to disobedience of lawful command.
Constitution of India, 1950: Articles 32, 136 and 226-
Judicial Review-Irrationality and perversity-Extentof.
Administrative Law: Natural Justice-Fair Trial-Judgment
only after due observance of Judicial Process-Quantum of
punishment disproportionate to offence Whether conclusive
evidence of bias.
Interpretation of Statutes: Procedural safeguards-
Statutory Provisions-How to be construed.
HEADNOTE:
%
The appellant, a Signal Man in a Signal Regiment of the
Armed Services, while serving out a sentence of 28 days’
rigorous imprisonment imposed on him by the Commanding
officer of the Regiment respondent No. 4, for violating
norms for presenting representations to higher officers, was
alleged to have committed another offence by refusing to eat
his food on March 29, 1985 when ordered to do so. He was
charged under section 41(2) of the Army Act, 1950 for
disobeying a lawful command given by his superior officer. A
sentence of rigorous imprisonment for one year was imposed
by a Summary Court Martial consisting of respondent No. 4
and others. He was removed to the civil prison and he served
out the sentence.
The appellant’s representation to the confirming
authority under section 164 of the Act was rejected by the
General officer Commanding on May 24,1985.
The appellant’s writ petition challenging proceedings
of the Summary Court-Martial was dismissed in limine by the
High Court.
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513
In the appeal by special leave, it was contended on
behalf of the appellant that the proceedings of the Court-
Martial were vitiated (i) by a non-affording of an
opportunity to challenge the constitution of the Summary
Court-Martial under section 130(1); (ii) by bias on the part
of the respondent No. 4 who participated in and dominated
the proceedings; (iii) by awarding a punishment so
disproportionate to the offence as to amount in itself to
conclusive evidence of bias and vindictiveness; and (iv) by
ignoring that as the appellant was then serving-out an
earlier sentence he could not be need to be in active-
service so as to be amenable to disciplinary jurisdiction
and that the appellant’s refusal, while already serving a
sentence, to accept food did not amount to disobedience
under section 41, of any lawful command of a Superior
officer.
Allowing the appeal,
^
HELD: 1.1 The Indian Army Act, 1950 constitutes a
special law in force conferring a special jurisdiction on.
the Court-Martial prescribing a special procedure for the
trial of the offences under the Act. The Act and Rules
constitute a self-contained Code specifying offences and the
procedure for detention, custody and trial of the offenders
by the Court-Martial. [518G-H; 519A]
1.2 The procedural safeguards contemplated in the Act
must be considered in the context of and corresponding to
the plenitude of the Summary jurisdiction of the Court-
Martial and the severity of the consequences that visit the
person subject to that jurisdiction. The procedural
safeguards should be commensurate with the sweep of the
powers. The wider the power, the greater the need for the
restraint in its exercise ad correspondingly, more liberal
the construction of the procedural safeguards envisaged by
the Statute. [519B-C I
1.3 Non-compliance with the mandate of section 130 is
an infirmity which goes to the root of jurisdiction and
without more, vitiates the proceedings. [519F]
Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413
relied on.
Vitarelli v. Seaton, 359 U.S. 535 referred to.
514
2.1 It is the essence of a judgment that it is made
after due observance of the judicial process; that the Court
or Tribunal passing it observes, at least the minimal
requirements of natural justice, is composed of impartial
persons. acting fairly and without bias and in good faith. A
judgment which is the result of bias or want of impartiality
is a nullity and the trial ’coram non judice’. [520D-E]
Vassiliades v. Vassiliades, AIR 1945 PC 38 referred to.
2.2 As to the tests of the likelihood of bias what is
relevant is the reasonableness of the apprehension in that
regard in the mind of the party. The proper approach for the
Judge is not to look at his own mind and ask himself,
however, honestly, "Am I biased"? but to look at the mind of
the party before him. [520F]
Allinson v. General Council of Medical Education and
Registration, [1894] 1 Q.B. 750 at 758; Metropolitan
Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1. Q.B. 577 d
599; Public Utilities Commission of the District of Columbia
v. Pollack, 343 US 451 at 466 and Regina v. Liverpool City
Justices, Ex-parte Topping, [1983] 1 WLR 119 referred to.
Having regard to the antecedent events, the
participation of respondent No. 4 in the Courts-Martial
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rendered the proceedings Coram non judice. [522B]
3. The mere circumstance’that the appellant was at the
relevant point of time, serving a sentence of imprisonment
and could not, therefore, be said to be in ’active service’
does not detract from the fact that he was still a person
subject to the Act, as is clear from the second clause of
section 41(2) which refers to offences committed when not in
’active service’, the difference being in the lesser
punishment contemplated. [522C-D]
4. Every aspect of life of a soldier is regulated by
discipline. Rejection of food might, under circumstances,
amount to an indirect expression of remonstrance and
resentment against the higher authority. To say that a mere
refusal to eat food is an innocent, neutral act might be an
over simplification of the matter. Mere in-action need not
always necessarily be neutral. Serious acts of calumny could
be done in silence. A disregard of a direction to accept
food might assume the
515
complexion of disrespect to, and even defiance of authority.
But an unduly harsh and cruel reaction to the expression of
the injured feelings may he counter-productive and even by
itself be subversive of discipline. [522E-F]
In the instant case, appellant was perhaps expressing
his anguish at, what he considered, an unjust and
disproportionate punishment for airing his grievances before
his superior officers. [522G]
5. Judicial review generally speaking, is not directed
against a decision, but is directed against the "decision
making 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
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, then the
sentence would not be immune from correction. Irrationality
and perversity are recognised grounds of judicial review.
All powers have legal limits. [522G-H; 523A-C]
Council of Civil Service Unions v. Minister for the
Civil Service, [1984] 3 Weekly Law Reports 1174 HL and
Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454
referred to.
In the instant case, the punishment is so strikingly
disproportionate as to call for and justify interference.
[523G]
The Court order set aside. The writ petition in the
High Court allowed, and the impugned proceedings of Summary
Court-Martial and the consequent order and sentence quashed.
Appellant entitled to be reinstated with all monetary and
service benefits. [523H, 524A]
(Note: on point 1.3 the finding is to be read with and
subject to the subsequent order dated 10.8.88).
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2630 of
1987.
516
From the Judgment and order dated 3.?.1986 of the Patna
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High Court in C.W.J.C. No. 2823 of 1986.
R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the
Appellant.
B. Datta, Additional Solicitor General, M.S. Rao, C.
Ramesh and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by
VENKATACHALIAH, J. This appeal, by special leave,
preferred against the order dated July 3, 1986, of the
Division Bench of the Patna High Court in C.W.J.C. No. 2823
of 1986 raises a substantial question as to the scope and
content of the procedural safe-guards in Section 130 of the
Indian Army Act, 1950 (’Act’) in the conduct of the Courts-
Martial.
The High Court dismissed, in limine, the appellant’s
writ petition, under Article 226, challenging the
proceedings dated March 30, 1985, of the Summary Court-
Martial imposing the punishment of dismissal from service
and a sentence of an year’s rigorous imprisonment on the
appellant.
2. Appellant, Ranjit Thakur, joined the Armed Services
on September 7, 1972, and was, at the relevant time, a
Signal Man in "4, Corps operating Signal Regiment."
Apparently, appellant had not commended himself well to
respondent No. 4, who was the commanding officer of the
regiment. On March 29, 1985, appellant was already serving-
out a sentence of 28 days’ rigorous imprisonment imposed on
him for violating the norms for presenting representations
to higher officers. Appellant is stated to have sent
representation complaining of ill-treatment at the hands of
Respondent 4 directly to the higher officers. Appellant was
punished for that by Respondent 4. Appellant was held in the
Quarter-guard Cell in handcuffs to serve that sentence of
rigorous imprisonment.
3. While so serving the sentence appellant is stated to
have committed another offence on March 29, 1985, for which
the punishment now impugned was handed down by Respondent 4.
The nature of this offence had better be excerpted from the
charge-sheet itself:
"The accused No. 1429055 M Signalman Ranjit Thakur
of
517
4 Corps operating Signal Regiment is charged with-
Army Act Section 41(2)
Disobeying a lawful command given by his superior
officer Section 41(2)
In that he
at 15.30 hrs. On 29.5.1985 when ordered by JC
10625 lP Sub Ram Singh, the orderly officer of the
same Regiment to eat his food, did not do so."
To try this offence a Summary Court Martial was assembled
the very next day i.e. March 30, 1985. Respondent 4 and 2
others were on the Court-Martial. Some witnesses were
examined. Appellant is stated to have pleaded guilty. A
sentence of rigorous imprisonment for one year was imposed,
in pursuance of which appellant was removed immediately to
the civil prison at Tejpur to serve out the sentence.
Appellant has served out the sentence. He was also dismissed
from service, with the added disqualification of being
declared unfit for any future civil employment. The
representation of the appellant to the confirming-authority
under Section 164 of the Act was rejected by General of
ficer Commanding on 24.5.1985.
The High Court, however, persuaded itself to dismiss,
in limine, appellant’s writ petition challenging the
proceedings of the Summary Court Martial.
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4. We have heard learned counsel on both sides. The
matter was adjourned on two earlier occasions on the
submission of the learned Additional Solicitor General, that
the question whether a lesser punishment was warranted was
engaging the attention of the appropriate authorities.
Apparently, nothing came out of it. F
The submissions of Shri Sinha, in support of the
appeal, admit of being formulated thus:
(a) (i) The proceedings of the Court-Martial are
vitiated by non-compliance with the mandate
of Section 130(1) of the Act in that the
Summary Court Martial did not afford to the
appellant an opportunity to challenge its
constitution as required by that section;
(ii) The proceedings of the Court-Martial were
vitiated by bias on the part of Respondent 4
who participated in and dominated the
proceedings; H
518
(b) In as much as the appellant was then serving a
sentence of rigorous imprisonment, he was not in
"active service" and that no question of
disobeying any lawful command could at all arise;
(c) Appellant’s refusal, while serving a sentence to
accept food did not amount to disobedience, under
Section 41, of any lawful command of a superior
officer in such manner as to show a wilful
defiance of authority;
(d) At all events, the punishment handed down is so
disproportionate to the offence as to amount, in
itself to conclusive evidence of bias and
vindictiveness.
5. Re: contention (a):
The records of the proceedings of the Special Summary
Court Martial do not indicate that the procedural safeguard
against bias contained in Section 130 of the Act was
complied with. Section 130 provides:
"130(1) At all trials by general district or
summary general court-martial, as soon as the
court is assembled, the names of the presiding
officer and members shall be read over to the
accused, who shall thereupon be asked whether he
objects to being tried by any officer sitting on
the court.
(2)If the accused objects to any such officer, his
objection, and also the reply thereto of the
officer objected to, shall be heard and recorded,
and the remaining officers of the Court shall, in
the absence of the challenged officer decide on
the objection."
The proceedings do not indicate-this was not disputed
at the hearing-that appellant was asked whether he objects
to be tried by any officer, sitting at the Court-Martial.
This, in our opinion, imparts a basic infirmity to the
proceedings and militates against and detracts from the
concept of a fair trial.
The "Act" constitutes a special law in force conferring
a special jurisdiction on the Court-Martial prescribing a
special procedure for the trial of the offences under the
’Act’. Chapter VI of the ’Act’ comprising of sections 34 to
68 specify and define the various offences under the ’Act’.
Sections 7] to 89 of Chapter VII specify the various
519
punishments. Rules 106 to 133 of the Army Rules 1954
prescribe the procedure of, and before, the Summary Court-
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Martial. The Act and A the Rules constitute a self contained
Code, specifying offences and the procedure for detention,
custody and trial of the offenders by the Courts-Martial.
The procedural safe-guards contemplated in the Act must
be considered in the context of and corresponding to the
plenitude of the Summary jurisdiction of the Court-Martial
and the severity of the consequences that visit the person
subject to that jurisdiction. The procedural safe-guards
should be commensurate with the sweep of the powers. The
wider the power, the greater the need for the restraint in
its exercise and correspondingly, more liberal the
construction of the procedural safeguards envisaged by the
Statute. The oft-quoted words of Frankfurter, J. in
Vitarelli v. Seaton, 359 U.S.535 are again worth re-calling;
"... if dismissal from employment is based on a
defined procedure, even though generous beyond the
requirements that bind such agency, that procedure
must be scrupulously observed
..............................................
This judicially evolved rule of administrative law
is now firmly established and, if I may add,
rightly so. He that takes the procedural sword
shall perish with that sword. E
"The history of liberty" said the same learned Judge
"has largely been the history of observance of procedural
safeguards." (318 US 332).
We are afraid, the non-compliance of the mandate of
section 130 is an infirmity which goes to the root of the
jurisdiction and without more, vitiates the proceedings.
lndeed it has been so held by this Court in Prithvi Pal
Singh v. Union of India, AIR 1982 SC 1413 where Desai, J
referring to the purpose of section 130 observed:
"...... .Whenever an objection is taken it has to
be recorded. In order to ensure that anyone
objected to does not participate in disposing of
the objection .........
........ This is a mandatory requirement because
the officer objected to cannot participate in the
decision disposing of the objection. H
520
....... The provision conferring a right on the
accused to object to a member of the Court-Martial
sitting as a member and participating in the trial
ensures that a charge of bias can be made and
investigated against individual members composing
the Court-Martial. This is pre eminently a
rational provision which goes a long way to ensure
a fair trial."
What emerges, therefore, is that in the present case
there is a non-compliance with the mandate of section 130
with the attendant consequence that the proceedings of the
Summary Court-Martial are rendered infirm in law. This
disposes of the first limb of the contention (a).
6. The second limb of the contention is as to the
effect of the alleged bias on the part of respondent 4. The
test of real likelihood of bias is whether a reasonable
person, in possession of relevant information, would have
thought that bias was likely and is whether respondent 4 was
likely to be disposed to decide the matter only in a
particular way.
It is the essence of a judgment that it is made after
due observance of the judicial process; that the Court or
Tribunal passing it observes, at least the minimal
requirements of natural justice, is composed of impartial
persons acting fairly and without bias and in good faith. A
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judgment which is the result of bias or want of impartiality
is a nullity and the trial "coram non-judice". (See
Vassiliadas v. Vassiliades-AIR 1945 PC 38).
7. As to the tests of the likelihood of bias what is
relevant is the reasonableness of the apprehension in that
regard in the mind of the party. The proper approach for the
judge is not to look at his own mind and ask himself,
however, honestly. "Am I biased? "but to look at the mind of
the party before him.
Lord Esher in Allinson v. General Council of Medical
Education and Registration, l 1894] 1 Q.B. 750 at 758 said:
"The question is not, whether in fact he was or
was not biased. The Court cannot inquire into that
.......... ............. In the administration of
justice, whether by a recognised legal court or by
persons who, although not a legal public court,
are acting in a similar capacity, public
521
policy requires that, in order that there should
be no doubt about the purity of the administration
any person who is to A take part in it should not
be in such a position that he might be suspected
of being biased."
In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon,
[1969] 1 Q.B. 577, at 599, Lord Denning M.R. Observed: B
". .. in considering whether there was a real
likelihood of bias, the court does not look at the
mind of the justice himself or at the mind of the
chairman of the tribunal, or whoever it may be,
who sits in a judicial capacity. It does not look
to see if there was a real likelihood that he
would, or did, in fact favour one side at the
expense of the other. The court looks at the
impression which would be given to other people.
Even if he was as impartial as could be never-
theless if right minded persons would think that
in the circumstances there was a real likelihood
of bias on his part, then he should not sit
....... ". D
Frankfurter J in Public Utilities Commission of the
District of Columbia v. Pollack (343 US 451 at 466) said:
"The judicial process demands that a judge move
within the frame work of relevant legal rules and
the court covenanted modes of thought for
ascertaining them. He must think dispassionately
and submerge private feeling on every aspect of a
case. There is a good deal of shallow talk that
the judicial robe does not change the man within
it. It does. The fact is that on the whole judges
do lay aside private views in discharging their
judicial functions. This is achieved through
training, professional habits, self-discipline and
that fortunate alchemy by which men are loyal to
the obligation with which they are interested. But
it is also true that reason cannot control the
subconscious influence of feelings of which it is
unaware. When there is ground for believing that
such unconscious feelings may operate in the
ultimate judgment or may not unfairly lead others
to believe they are operating, judges refuse
themselves. They do not sit in judgment .. ".
Referring to the proper test, Ackner LJ in Regina v.
Liverpool City Justices, Ex-parte Topping [1983] I WLR 119
said: H
522
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"Assuming therefore, that the justices had applied
the test advised by Mr. Pearson-Do I feel
prejudiced? then they would have applied the wrong
test, exercised their discretion on the wrong
principle and the same result, namely, the
quashing of the conviction would follow."
Thus tested the conclusion becomes inescapable that,
having regard to the antecedent events, the participation of
Respondent 4 in the Courts-Martial rendered the proceedings
coram non-judice.
7. Re: contention (b): The mere circumstance that the
appellant was, at the relevant point of time, serving a
sentence of imprisonment and could not therefore, be said to
be in ’active service’ does not detract from the fact that
he was still "a person subject to this Act." This is clear
from the second clause of Section 41(2) which refers to
offences committed when not in ’active service’. The
difference is in the lesser punishment contemplated. We are,
therefore, unable to appreciate the appositeness of this
contention of Shri Sinha.
8. Re: contention (c): The submission that a disregard
of an order to eat food does not by itself amount to a
disobedience to a lawful command for purposes of section 41
has to be examined in the context of the imperatives of the
high and rigorous discipline to be maintained in the Armed
Forces. Every aspect of life of a soldier is regulated by
discipline. Rejection of food might, under circumstances,
amount to an indirect expression of remonstrance and
resentment against the higher authority. To say that, a mere
refusal to eat food is an innocent, neutral act might be an
over-simplification of the matter. Mere in-action need not
always necessarily be neutral. Serious acts of calumny could
be done in silence. A disregard of a direction to accept
food might assume the complexion of disrespect to, and even
defiance of authority. But an unduly harsh and cruel
reaction to the expression of the injured feelings may be
counter-productive and even by itself be subversive of
discipline. Appellant was perhaps expressing his anguish at,
what he considered, an unjust and disproportionate
punishment for airing his grievances before his superior
officers. However, it is not necessary in this case to
decide contention (c) in view of our finding on the other
contentions.
9. Re: contention (d): Judicial review generally
speaking, is not directed against a decision, but is
directed against the "decision making process". The question
of the choice and quantum of punishment is within the
jurisdiction and discretion of the Court-Martial. But the
523
sentence has to suit the offence and the offender. It should
not be A vindictive or unduly harsh. It should not be so
disproportionate to the offence as to shock the conscience
and amount in itself to conclusive 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 B logic, then the sentence would
not be immune from correction. Irrationality and perversity
are recognised grounds of judicial review. In Council of
Civil Service Unions v. Minister for the Civil Service,
[1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock 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
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about, one can conveniently classify under three
heads the grounds upon which administrative action
is subject to control by judicial review. The
first ground l would call ’illegality’. the second
irrationality’ and the third ’procedural
impropriety’. That is not to say that further
development on a case by case basis may not in
course of time add further grounds. I have in mind
particularly the possible adoption in the future
of the principle of ’proportionality’ which is
recognised in the administrative law of several of
our fellow members of the European Economic
Community ............................ E
In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983
SC 454 this Court held:
"It is equally true that the penalty imposed must
be commensurate 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.
The point to note, and emphasise is that all powers have
legal limits.
In the present case the punishment is so strikingly
disproportionate as to call for and justify interference. It
cannot be allowed to remain uncorrected in judicial review.
10. In the result, for the foregoing reasons, the
appeal is allowed, the order of the High Court set aside,
the writ petition preferred in the High Court allowed and
the impugned proceedings of the
524
Summary Court-Martial dated March 30, 1985, and the
consequent order and sentence are quashed. The appellant is
entitled to and shall be reinstated with all monetary and
service benefits. There will, however, be no order as to
costs.
N.P.V. Appeal allowed.
525