B. S. HARI COMMANDANTversusUNION OF INDIA & ORS.

                         [2023] 3 S.C.R. 431                               431


                   B. S. HARI COMMANDANT                                   A
                                   v.
                     UNION OF INDIA & ORS.
                (Criminal Appeal No(s). 1890 of 2014)
                           APRIL 13, 2023                                  B
                  [KRISHNA MURARI AND
               AHSANUDDIN AMANULLAH, JJ.]
       Border Security Force Act, 1968 – Appellant-Commandant in
Border Security Force was sentenced to 10 years’ rigorous
                                                                           C
imprisonment; imposed fine of Rs. 1,00,000/- and dismissed from
service for allegedly permitting smuggling of contraband goods
from India to Pakistan from Border fencing gate under his control
– Held: Though in the armed forces, including the paramilitary
forces, utmost discipline, unity of command are the sine qua non, the
doctrine of proportionality still holds the field – In the present case,   D
there is no direct evidence against the appellant – Except the
statement of the Subedar (who was the actual in-charge of the area
where the activity allegedly occurred) roping in the appellant, there
is no material against him – Statement of a single person alone,
ought not to have resulted in his conviction without other material(s)
                                                                           E
incriminating him or pointing to his guilt – Thus, in the absence of
direct and cogent evidence against the appellant, even if the General
Security Force Court (GSFC) was convinced of his guilt, the
punishment handed out was too harsh and disproportionate –
Appellant was a first-time delinquent and not a habitual offender –
Moreover, the appellant has served the country for over 31½ years          F
without blame or blemish and received various awards including
medal from Hon’ble the President of India – His track record is
otherwise unquestionable – Impugned judgment of High Court set
aside – Conviction and sentence awarded by the GSFC set aside –
Appellant entitled to full retiral benefits from the date of
                                                                           G
superannuation till date – Narcotic Drugs and Psychotropic
Substances Act, 1985 – Doctrine of Proportionality – Armed Forces.
      Constitution of India – Article 226:
      Criminal writ petitions – Power of High Courts to sift through
evidence – Discussed.                                                      H
                                  431
432            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A            Limit on exercise of power – Held: Art.226 is a succour to
      remedy injustice and any limit on exercise of such power is only
      self-imposed.
            Judgments/Orders – Paragraph-wise numbering in – Held: It
      is desirable that all Courts and Tribunals, as a matter of practice,
B     number paragraphs in all Orders and Judgments in seriatim –
      Hon’ble Chief Justices of High Courts to consider adoption of a
      uniform format for Judgments and Orders, including paragraphing
      and accordingly direct the Courts and Tribunals subordinate to their
      High Courts – Directions by Supreme Court.
C           Allowing the appeal, the Court
            HELD: 1.1 In the armed forces of the Union, including the
      paramilitary forces, utmost discipline, unity of command et al are
      the sine qua non. That said, the doctrine of proportionality still
      holds the field. In the absence of direct and cogent evidence
D     against the appellant, even if the GSFC was convinced of the
      appellant’s guilt, the punishment handed out was too harsh, paying
      heed that the appellant would, even then, be a first-time
      delinquent, and not a habitual offender. Arguendo, that there be
      some semblance of truth in the allegations, the punishment meted
      out was disproportionate. [Paras 36, 37][442-H; 443-A-B]
E
            1.2 The appellant has served the country for over 31 ½
      years without blame or blemish, and has received various awards,
      inter alia, including medal from Hon’ble the President of India.
      The appellant’s track record is otherwise unquestionable. On
      the alleged criminality, the undisputed and uncontroverted fact
F     remains that the appellant was commanding the Force operating
      over a large area, including from where the Jerrycans allegedly
      moved from the Indian side to the Pakistani side. However, it is
      equally not in dispute that the actual manning of the area is by
      the subordinate personnel of the Force. In the present instance,
G     the subordinate personnel have been adjudged guilty, indicating
      their active involvement. Being the persons on the spot, it was
      their primary responsibility to ensure that no crimes/offences/
      questionable incidents took place on their watch. Moreover,
      there is no direct evidence against the appellant. [Paras 38,
      41][443-C, E-G]
H
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                       433


       1.3 Save and except Subedar DS’s statement, roping in the        A
appellant, there is no material against him. Hence, ceteris paribus,
without other material(s) incriminating the appellant or pointing
to his guilt, the statement of a single person alone, ought not to
have, in this instance, resulted in his conviction. At the proximate
time, the search of the appellant’s house, did not result in recovery
                                                                        B
of any incriminating documents/articles. Such non-recovery would
obviously enure to the appellant’s benefit. [Paras 45, 46][445-C-
D]
      1.4 Article 226 of the Constitution is a succour to remedy
injustice, and any limit on exercise of such power, is only self-
imposed. The High Courts, under the Constitutional scheme,              C
are endowed with the ability to issue prerogative writs to safeguard
rights of citizens. For exactly this reason, this Court has never
laid down any strait-jacket principles that can be said to have
“cribbed, cabined and confined” the extraordinary powers vested
under Articles 226 or 227 of the Constitution. This was a fit case      D
for the High Court to have examined the matter threadbare, more
so, when it did not involve navigating a factual minefield. The
Impugned Judgement is quashed and set aside. The conviction
and sentence awarded by the GSFC is also set aside. The appellant
is held entitled to full retiral benefits from the date of his
superannuation till date. [Paras 50, 51][446-E-H; 447-A]                E

      E P Royappa v State of Tamil Nadu AIR 1974 SC 555 :
      [1974] 2 SCR 348 – followed.
      Mohd. Jamiludin Nasir v State of West Bengal (2014) 7
      SCC 443 : [2014] 14 SCR 1; Nawab Shaqafath Ali                    F
      Khan v Nawab Imdad Jah Bahadur (2009) 5 SCC 162
      : [2009] 4 SCR 589; Surya Dev Rai v Ram Chander
      Rai (2003) 6 SCC 675 : [2003] 2 Suppl. SCR 290; A V
      Venkateswaran v Ramchand Sobhraj Wadhwani (1962)
      1 SCR 573; U P State Sugar Corporation Ltd. v Kamal
      Swaroop Tandon (2008) 2 SCC 41 : [2008] 1 SCR 887;                G
      Shakuntala Shukla v State of Uttar Pradesh 2021 SCC
      OnLine SC 672; State Bank of India v Ajay Kumar
      Sood 2022 SCC OnLine SC 1067 – relied on.

                                                                        H
434            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A           State of Jharkhand v Jitendra Kumar Srivastava (2013)
            12 SCC 210 : [2013] 8 SCR 177; Veena Pandey v
            Union of India (2022) 2 SCC 379; Council of Civil
            Service Unions v Minister for the Civil Service [1984]
            3 WLR 1174 (HL); Bhagat Ram v State of Himachal
            Pradesh (1983) 2 SCC 442; Ranjit Thakur v Union of
B
            India (1987) 4 SCC 611 : [1988] 1 SCR 512; Andhra
            Pradesh Industrial Infrastructure Corporation Limited
            v S N Raj Kumar (2018) 6 SCC 410 : [2018] 3 SCR
            455; D S Nakara v Union of India (1983) 1 SCC 305 :
            [1983] 2 SCR 165; State of West Bengal v Haresh C
C           Banerjee (2006) 7 SCC 651 : [2006] 5 Suppl. SCR
            620; Dr Hira Lal v State of Bihar (2020) 4 SCC 346 :
            [2020] 2 SCR 907; Radhey Shyam v Chhabi Nath
            (2015) 5 SCC 423 : [2015] 3 SCR 197 – referred to.
                            Case Law Reference
D     [2013] 8 SCR 177                  referred to            Para 23
      [1988] 1 SCR 512                  referred to            Para 34
      [2018] 3 SCR 455                  referred to            Para 35
      [1983] 2 SCR 165                  referred to            Para 39
E     [2006] 5 Suppl. SCR 620           referred to            Para 39
      [2020] 2 SCR 907                  referred to            Para 39
      [2014] 14 SCR 1                   relied on              Para 44
      [2009] 4 SCR 589                  relied on              Para 48
F
      [2003] 2 Suppl. SCR 290           relied on              Para 49
      [2015] 3 SCR 197                  referred to            Para 49
      (1962) 1 SCR 573                  relied on              Para 50
      [2008] 1 SCR 887                  relied on              Para 50
G
      [1974] 2 SCR 348                  followed               Para 50
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1890 of 2014.
            From the Judgment and Order dated 19.02.2010 of the High Court
H     of Punjab & Haryana at Chandigarh in CRWP No. 3 of 1997.
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                              435


      Vivek Singh, Adv. for the Appellant.                                     A
      Jayant K. Sud, ASG, Mrs. Sonia Mathur, Sr. Adv., Sanjay Kumar
Tyagi, Harish Pandey, Mrs. Swarupama Chaturvedi, S.N. Terdal,
Simarjeet Singh Saluja, Ms. Divik Mathur, Ms. Ronika Tater, Ms.
Pratiksha Mishra, Ms. Rupakshi Soni, Nikhil Jaiswal, Arvind Kumar
Sharma, Advs. for the Respondents.                                             B
      The Judgment of the Court was delivered by
      AHSANUDDIN AMANULLAH, J.
      Heard learned counsel for the parties.
      2. The present criminal appeal is directed against the Final             C
Judgment and Order dated 19.02.2010 (hereinafter referred to as the
“Impugned Judgment”) [2010 SCC OnLine P&H 2558] rendered by
the High Court of Punjab and Haryana at Chandigarh dismissing Criminal
Writ Petition No. 03 of 1997 (hereinafter referred to as the “High Court”)
preferred by the appellant (original writ petitioner). Leave was granted       D
vide Order dated 29.08.2014.
      THE FACTUAL PRISM:
       3. The appellant joined the Indian Army on 09.02.1964. He was
absorbed as an Assistant Commandant in the Border Security Force
(hereinafter referred to as the “Force”) on 04.06.1969. Thereafter, he         E
was promoted to the post of Commandant in the Force as well as granted
selection grade in the rank of Commandant. He was also awarded various
medals, including the Police Medal in 1994 by Hon’ble the President of
India for rendering about 30 years of unblemished service. Later, he
was transferred to Punjab as Commandant of the 1956 Battalion (BN)             F
(BSF) with Headquarters at Mamdot, Punjab.
        4. On 05.04.1995, the local police conducted a search and a few
Jerrycans of Acetic Anhydride, a controlled substance under Section 9A
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the “NDPS Act”), were stated to be located         G
in Pakistani territory and in the fields owned by Indian civilians adjoining
the border, for which First Information Report No. 92 dated 05.04.1995
i.e., on the same day, was lodged in Police Station Ferozepur, Punjab by
the local police naming two persons viz. Lakhwinder Singh and Surjit
Singh @ pahalwan as the accused showing them to be smugglers.
                                                                               H
436             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A            5. On 07.04.1995, the appellant was directed to hand over charge
      and move to the STC, the Force, Kharkan, where he was placed under
      arrest. However, search of the appellant’s house did not lead to any
      recovery of any incriminating material(s).
             6. On 09.04.1995, a one-man Staff Court of Inquiry was ordered
B     into the incident headed by one Mr. V.K. Sharma. In the said Inquiry,
      Inspector Didar Singh, who was in actual and physical command and
      control of the area in the vicinity of which the alleged Jerrycans were
      recovered, is said to have made a statement that he was involved in the
      incident at the behest of the appellant.
C           7. On the basis of the Inquiry Report, the appellant was issued
      charge sheet dated 04.07.1995 under Sections 40 & 46 of the Border
      Security Force Act, 1968 (hereinafter referred to as the “BSF Act”).
      However, the charges, as laid aforesaid, were dropped.
            8. Thereafter, the appellant superannuated on 31.08.1995 after
D     rendering service in the Force for 31 years, 6 months and 22 days.
            9. On 20.10.1995, a fresh charge sheet containing three charges
      was served on the appellant. Two charges were under Section 46 of the
      BSF Act for Civil offence committed in contravention of Section 25 of
      the NDPS Act and one charge under Section 40 of the BSF Act. Trial
E     against the appellant commenced on 30.10.1995 by convening a General
      Security Force Court (hereinafter referred to as the “GSFC”).
             10. The appellant, invoking Article 226 of the Constitution of India
      (hereinafter referred to as the “Constitution”), filed Writ Petition No.
      16008 of 1995 before the High Court, against the rejection of his application
F     questioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.
             11. Meanwhile, one accused alleged smuggler in FIR No. 92 dated
      05.04.1995 (described supra), namely Surjit Singh @ Pahalwan, moved
      the High Court, by way of Criminal Miscellaneous No. 10562-M of 1996,
      seeking quashing of the FIR against him. The ground urged was that, on
      the date of alleged incident, Surjit Singh @ Pahalwan was lodged in the
G
      Central Jail, Amritsar and could not have been involved in the crime.
      The said petition was allowed vide order dated 01.11.1996.
            12. On 10.04.1996, the GSFC gave its verdict, finding the appellant
      not guilty of the first charge but guilty of the second and third charges. It
      sentenced him to 10 years’ Rigorous Imprisonment; imposed fine of Rs.
H
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                               437
             [AHSANUDDIN AMANULLAH, J.]

1,00,000/-, and; dismissed him from service. This was confirmed by the          A
Confirming Officers.
       13. Statutory petition against his conviction and sentence was then
filed by the appellant on 15.05.1996. As the same was not being decided
by the concerned authority, the appellant moved the High Court vide
Civil Writ Petition No. 13020 of 1996, which was disposed of by order           B
dated 28.08.1996, directing the respondent-Authority to dispose of the
statutory petition within a period of two months.
       14. Pursuant thereto, the respondent-Authority rejected the
appellant’s statutory petition on 02.11.1996. In this light, the appellant
filed Criminal Writ Petition No. 3 of 1997 before the High Court for            C
quashing his trial and the impugned order therein, as also seeking directions
to quash all consequential orders and to release the pensionary and other
benefits to the appellant.
      15. On 19.09.1997 [1997 SCC OnLine P&H 1176], the appellant
was granted bail by the High Court and he remained on bail w.e.f.,              D
19.09.1997 till 19.02.2010.
      16. In the meantime, the other co-accused viz. Lakhwinder Singh
was discharged by the learned Trial Court in the absence of any evidence.
      17. The High Court dismissed Criminal Writ Petition No. 3 of
1997 on 19.02.2010, which is the Impugned Judgment.                             E
      SUBMISSIONS BY THE APPELLANT:
      18. Learned counsel for the appellant submitted that as far as
Charge No.1 was concerned, i.e., of knowingly having permitted
Lakhwinder Singh, on the intervening night of 9/10th March, 1995, to
                                                                                F
take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India
to Pakistan through border fencing gate No. 205 of BOP Barrake under
his control, the same was not proved against the appellant.
      19. However, the learned counsel for the appellant submitted that
Charge No. 2, which was identical though the date(s) were 4/5 thApril,
1995, of having knowingly permitted the two smugglers to take out 44            G
Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan
from Border fencing gate No. 205 of BOP Barake, under his control has
been held to be proved by the GSFC, is clearly unsustainable as one
accused Surjit Singh @ Pahalwan was given relief by the High Court
by quashing the FIR against him on the ground that he was lodged in             H
438             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     Central Jail, Amritsar on the said date(s), and the other co-accused
      Lakhwinder Singh was also discharged by the trial court itself in the
      absence of any evidence. Thus, according to learned counsel, two persons,
      stated to have taken away the Jerrycans having themselves been let off,
      the case against the appellant automatically fails. As far as Charge No.
      3, of knowingly acting prejudicial to good order and discipline of the
B
      Force during his tenure as Commandant at Mamdot between November,
      1994 and April, 1995 of the 67 Battalion of the Force and having improperly
      influenced Subedar Didar Singh of his unit to facilitate the alleged
      smuggling of contraband goods from India, is clearly not established for
      the reason that it was on the statement of the said Didar Singh (who
C     was his subordinate and the actual in-charge of the area where the said
      activity is alleged to have occurred) has, clearly, made a statement to
      save himself from the obvious and severe consequences, which would
      have entailed. Learned counsel submitted that this may even have been
      at the behest of the superior officers of the appellant, inasmuch as there
      was genuine apprehension of the same, for the appellant had stoutly
D
      refused to oblige his Controlling Officer, on an earlier occasion. It was
      contended that the trial itself was a nullity as the BSF Act does not
      envisage the GSFC trying offence(s) under the NDPS Act and it also
      did not obtain the requisite sanction from the Central Government for
      initiating trial against the appellant as required under and in terms of
E     Section 59(3) of the NDPS Act. It was further contended that Rule 102
      of the BSF Rules, 1969 (hereinafter referred to as “the Rules”) provides
      that only one sentence shall be awarded in respect of all the offences of
      which the accused is found guilty. However, in the present case three
      punishments were given, which contravenes Rule 102 of the Rules read
      with Section 48 of the BSF Act.
F
             20. It was the submission of learned counsel that the sentence of
      dismissal from service is also illegal as the appellant retired on 31.08.1995,
      even before the issuance of the charge sheet in question and thus there
      cannot be any sentence of dismissal from service, which is made clear
      from Rule 166 of the Rules, which stipulate that the sentence of dismissal
G     shall take effect from the date of promulgation of such sentence or from
      any subsequent date as may be specified at the time of promulgation,
      which in the present case is much after the superannuation of the appellant
      from service. Likewise, it was contended that once the first charge sheet
      dated 04.07.1995 was dropped, apparently for insufficient evidence, the
H     appellant was required to be discharged under Rule 59(1)(i) of the Rules
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                               439
             [AHSANUDDIN AMANULLAH, J.]

and thus, the second charge sheet dated 20.10.1995 is illegal more so           A
since Chapter VIII of the Rules do not contemplate the issuance of any
second charge sheet under the BSF Act and the Rules. It was submitted
that the Rules specifically provide for amendment of the charge sheet
i.e., addition, omission or alteration in the charge by the GSFC; whereas
in the instant case, an entirely new charge sheet had been issued by the
                                                                                B
Additional DIG which tantamounted to, in effect, a second trial which is
prohibited under Section 75 of the BSF Act.
      21. On the point of withholding the appellant’s pension, gratuity
and other benefits, it was submitted that having already superannuated
on 31.08.1995, there was no authority vested in the Force to withhold
the same and due to such arrogant and arbitrary action, the appellant,          C
now aged about 82 years and having superannuated about almost 28
years back, is in a very poor financial condition and is unable to sustain
himself, having no means for his daily needs and medical expenses.
      22. Learned counsel submitted that neither the BSF Act nor the
Rules envision withholding pension, gratuity, leave encashment and other        D
dues/benefits of any retiree, after retirement without there being a specific
order under Section 48(1)(k) & 48(1)(l) of the BSF Act, which in the
present case has admittedly, not been passed. Even otherwise it was
contended that withholding pension is violative of Rule 9 of the Central
Civil Services (Pension) Rules, 1972 (hereinafter referred to as “the           E
Pension Rules”) which provide that only Hon’ble the President of India
can withhold pension of an employee.
       23. In support of such contention, reliance was placed on the
decisions of this Court in State of Jharkhand v Jitendra Kumar
Srivastava, (2013) 12 SCC 210, the relevant being at Paragraph No. 16           F
holding that a person cannot be deprived of his pension without the
authority of law, which is the constitutional mandate enshrined in Article
300A of the Constitution of India, and further, in Veena PandeyvUnion
of India, (2022) 2 SCC 379, the relevant being at Paragraph No. 10
where it was held that pension is the deferred portion of compensation
for rendering long years of service and is a hard-earned benefit accruing       G
to an employee and has been held to be in the nature of property. We
note that the appellant had addressed representations to different
authorities seeking release of his dues or a copy of the order by which
the same have been withheld, filed alongwith the application seeking
early hearing i.e. Crl. M.P. No. 74756/2021 at Pages 16-17.                     H
440             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           24. It was also submitted that as far as Acetic Anhydride is
      concerned, it is neither a narcotic drug nor a psychotropic substance, but
      only a controlled substance under Section 9A of the NDPS Act,
      punishable under Section 25A of the NDPS Act.
             25. Summing up, it was submitted by learned counsel for the
B     appellant that there have also been violations of other statutory provisions
      of the BSF Act and the Rules and the principles of natural justice were
      not conformed to during trial.
            SUBMISSIONS OF THE RESPONDENTS:
            26. Per contra, learned senior counsel for the respondents
C     supported the Judgment under challenge. It was submitted that there
      was no infirmity in the appellant being tried separately as he was charged
      under the NDPS Act and under Sections 40 & 46 of the BSF Act read
      with Section 25 of the NDPS Act.
             27. It was urged that Subedar Didar Singh was tried and convicted
D     by GSFC and sentence of forfeiture of ten years of service for the
      purpose of pension and severe reprimand were handed out; Sub. N. K.
      Satpal was tried by GSFC and inflicted with reduction to the rank of
      Lance Naik (L/NK), and Constable Keshav Singh was tried by the GSFC
      and awarded sentence of rigorous imprisonment for 45 days in force
E     custody. It was contended that the appellant cannot derive benefit from
      the discharge of the two purported smugglers as they were charged
      with the offence of placing the contraband substance on the spot from
      where it was recovered, while the appellant was charged under Section
      25 of the NDPS Act. It was submitted that the contraband items could
      not have been taken outside the area controlled by the Force, which was
F     under the overall control of the appellant, to the Pakistani side without it
      having passed through the gates which were manned by the personnel
      of the Force. Further, it was submitted that Surjit Singh @ Pahalwan
      was given relief by quashing the FIR concerned, as he was able to
      establish his incarceration in jail on the date of the incident.
G            28. Learned counsel submitted that as per the secret information
      received by the appellant, the Jerrycans of Acetic Anhydride were placed
      near the international borders by the two smugglers with the help of the
      officials of the Force and even if the said two persons were the lead
      perpetrators, the role of the appellant and other officers/personnel of the
      Force, in aiding such movement was clearly established. It was submitted
H
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                            441
             [AHSANUDDIN AMANULLAH, J.]

that the appellant was in overall command of the area and is, hence,         A
responsible for the incidents narrated hereinbefore.
       29. On the question of pension, gratuity and other retiral benefits
being withheld, learned counsel for the respondents submitted that the
appellant had been paid GPF and CGEIS. Further, it was stated at the
Bar that he had also been paid provisional pension under Rule 69 of the      B
Pension Rules, and only later on, the same was stopped, taking recourse
to Rule 24 of the Pension Rules, as dismissal from service entails
forfeiture of past service.
      ANALYSIS, REASONING AND CONCLUSION:
      30. Having perused the materials on record and surveyed the            C
relevant judicial pronouncements, upon an overall examination, this Court
is unable to uphold the view taken by the learned Single Bench of the
High Court.
       31. Procedural deficiencies in the process and/or trial, canvassed
by learned counsel for the appellant, have purposely not been dealt with.    D
Expressing no opinion thereon, we leave those question(s) of law open
for adjudication in a more appropriate case, as we are interfering on
merits.
      32. In Council of Civil Service Unions v Minister for the Civil
Service, [1984] 3 WLR 1174 (HL), the House of Lords, speaking through        E
Lord Diplock, stated:
      “… 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         F
      action is subject to control by judicial review. The first ground
      I 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
                                                                             G
      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; …”
                                                     (emphasis supplied)
                                                                             H
442            SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A            33. In Bhagat Ram v State of Himachal Pradesh, (1983) 2 SCC
      442, it was opined:
            “15. … 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
B           would be violative of Article 14 of the Constitution. … ”
                                                       (emphasis supplied)
             34. In Ranjit Thakur v Union of India, (1987) 4 SCC 611, this
      Court, in the circumstances therein, commented, at paragraph no. 27, that:
            “… the punishment is so strikingly disproportionate as to call
C
            for and justify interference. It cannot be allowed to remain
            uncorrected in judicial review.”.
            35. In Andhra Pradesh Industrial Infrastructure Corporation
      Limited v S N Raj Kumar, (2018) 6 SCC 410, this Court exposited:
D           “20.… In the realm of Administrative Law “proportionality”
            is a principle where the court is concerned with the process,
            method or manner in which the decision-maker has ordered
            his priorities and reached a conclusion or arrived at a
            decision. The very essence of decision-making consists in the
            attribution of relative importance to the factors and
E
            considerations in the case. The doctrine of proportionality
            thus steps in focus true nature of exercise — the elaboration
            of a rule of permissible priorities [Union of India v. G.
            Ganayutham, (1997) 7 SCC 463: 1997 SCC (L&S) 1806].
            De Smith [Judicial Review of Administrative Action (1995),
F           para 13.085, pp. 601-605; see also, Wade: Administrative
            Law (2009), pp. 157-158, 306-308.] also states that
            “proportionality” involves “balancing test” and “necessity
            test”. The “balancing test” permits scrutiny of excessive
            onerous penalties or infringement of rights or interests and a
            manifest imbalance of relevant considerations.”
G
                                                       (emphasis supplied)
             36. We are quite conscious that in the armed forces of the Union,
      including the paramilitary forces, utmost discipline, unity of command et
      al are the sine qua non. That said, the doctrine of proportionality still
H     holds the field.
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                              443
             [AHSANUDDIN AMANULLAH, J.]

      37. In the absence of direct and cogent evidence against the             A
appellant, even if the GSFC was convinced of the appellant’s guilt, the
punishment handed out was too harsh, paying heed that the appellant
would, even then, be a first-time delinquent, and not a habitual offender.
Arguendo, that there be some semblance of truth in the allegations, the
punishment meted out, in our considered view, was disproportionate.
                                                                               B
       38. Another factor which has nudged this Court to introspect vis-
à-vis proportionality herein, is that the appellant has served the country
for over 31 ½ years without blame or blemish, and has received various
awards, inter alia, including medal from Hon’ble the President of India.
The appellant’s track record is otherwise unquestionable.
                                                                               C
       39. There is no quarrel with the propositions enunciated in Jitendra
Kumar Srivastava (supra) and Veena Pandey (supra). The need to
restate the settled position of law in, inter alia, D S Nakara v Union of
India, (1983) 1 SCC 305; State of West Bengal v Haresh C Banerjee,
(2006) 7 SCC 651, and; Dr Hira Lal v State of Bihar, (2020) 4 SCC
346, is obviated – this Court has taken the consistent view that a person      D
cannot be deprived of pension dehors the authority of law.
       40. If things stood only thus, we may have considered remanding
the matter back to the GSFC. But, given the long period of time elapsed,
the age of the appellant, and our finding below on the evidentiary aspect,
we refrain from adopting that course of action.                                E

       41. On the alleged criminality, the undisputed and uncontroverted
fact remains that the appellant was commanding the Force operating
over a large area, including from where the Jerrycans allegedly moved
from the Indian side to the Pakistani side. However, it is equally not in
dispute that the actual manning of the area is by the subordinate personnel    F
of the Force. In the present instance, the subordinate personnel have
been adjudged guilty, indicating their active involvement. Being the persons
on the spot, it was their primary responsibility to ensure that no crimes/
offences/questionable incidents took place on their watch. Moreover,
there is no direct evidence against the appellant.                             G
       42. Illustratively, it would not be out of place to draw an analogy
from a situation where a crime occurs under the jurisdiction of the
Superintendent of Police and in the criminal proceedings emanating
therefrom, some police personnel are held guilty, and thereafter, a criminal
case as also departmental proceedings, based on such acts of
                                                                               H
444             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     commissions or omissions, is opened against the said Superintendent of
      Police, on the premise that such incident transpired under his overall
      watch and control. This would be an extreme and absurd extension of
      the principle of dereliction of duty and/or active connivance, in the absence
      of overwhelming material establishing guilt, or at the very least, negating
      the probability of his innocence.
B
             43. This Court would hasten to add that it should not be construed
      that the appellant, being the Commandant, had no responsibility/duty to
      prevent such incident, but to stretch it to the extent to label him an active
      partner and/or facilitator of such crime is wholly unjustified, having regard
      to the present factual matrix. Notably, solely on the strength of the
C     statement of Subedar Didar Singh – who is said to have confessed to his
      involvement in the incident but goes on to add that it was at the behest of
      and upon the direction of the appellant – the appellant was subjected to
      punishment.
            44. In Mohd. Jamiludin Nasir v State of West Bengal, (2014) 7
D     SCC 443, examining Sections 10 and 30 of the Evidence Act, 1872, it
      was held:
            “144. Going by the above provisions, the relevance, efficacy
            and reliability of the confessional statement of appellant Nasir
            when examined on the touchstone of Sections 10 and 30 of
E           the Evidence Act, it will have to be stated that the confession
            of a co-accused cannot be treated as substantive evidence to
            convict other than the person who made the confession on
            the evidentiary value of it. It is, however, well established
            and reiterated in several decisions of this Court that based
F           on the consideration of other evidence on record and if such
            evidence sufficiently supports the case of the prosecution and
            if it requires further support, the confession of a co-accused
            can be pressed into service and reliance can be placed upon
            it. In other words if there are sufficient materials to reasonably
            believe that there was concert and connection between the
G           persons charged with the commission of an offence based on
            a conspiracy, it is immaterial even if they were strangers to
            each other and were ignorant of the actual role played by
            them of such acts which they committed by joint effort. Going
            by Section 30 of the Evidence Act, when more than one person
H           are being tried jointly for the same offence and a confession
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                             445
             [AHSANUDDIN AMANULLAH, J.]

      made by one of such persons is found to affect the maker as             A
      well as the co-accused and it stands sufficiently proved, the
      Court can take into consideration such confession as against
      other persons and also against the person who made such
      confession from the above proposition, we can make reference
      to the decisions of this Court in Natwarlal Sakarlal Mody v.
                                                                              B
      State of Bombay [(1963) 65 Bom LR 660 (SC)] and Govt.
      (NCT of Delhi) v. Jaspal Singh [(2003) 10 SCC 586 : 2004
      SCC (Cri) 933].”
                                                      (emphasis supplied)
      45. As emphasised hereinbefore, save and except Subedar Didar           C
Singh’s statement, roping in the appellant, there is no material against
him. Hence, ceteris paribus, without other material(s) incriminating the
appellant or pointing to his guilt, the statement of a single person alone,
ought not to have, in this instance, resulted in his conviction.
      46. This Court is mindful that at the proximate time, the search of     D
the appellant’s house, did not result in recovery of any incriminating
documents/articles. Such non-recovery would obviously enure to the
appellant’s benefit.
      47. While declining to consider the plea raised of insufficiency of
evidence, the learned Single Bench, at page 13 (of 19) of the Impugned        E
Judgment, has commented:
      “The finding by a Security Force Court on the basis of
      appreciation of evidence would be beyond the purview of a
      writ Court as has been consistently held by various Courts
      including the Hon’ble Supreme Court.”                                   F
        48. The High Court ought to have been cognizant that, considering
the seriousness of the issue(s) raised, it was not denuded of the power
to sift through the evidence, even in a criminal writ petition. This Court
in Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur, (2009)
5 SCC 162, held:
                                                                              G
      “48. If the High Court had the jurisdiction to entertain either
      an appeal or a revision application or a writ petition under
      Articles 226 and 227 of the Constitution of India, in a given
      case it, subject to fulfilment of other conditions, could even
      convert a revision application or a writ petition into an appeal
                                                                              H
446             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           or vice versa in exercise of its inherent power. Indisputably,
            however, for the said purpose, an appropriate case for exercise
            of such jurisdiction must be made out.”
                                                            (emphasis supplied)
             49. In respectful agreement with the above statement of law, we
B     reiterate that High Courts, under Articles 226 and/or 227, are to exercise
      their discretion “… solely by the dictates of judicial conscience
      enriched by judicial experience and practical wisdom of the judge.”,
      as highlighted in Surya Dev Rai v Ram Chander Rai, (2003) 6 SCC
      675. This guiding principle still governs the field, and the 3-Judge Bench
C     in Radhey Shyam v Chhabi Nath, (2015) 5 SCC 423 had only partly
      overruled Surya Dev Rai (supra) in terms below:
            “29.1. Judicial orders of the civil court are not amenable to
            writ jurisdiction under Article 226 of the Constitution.
            29.2. Jurisdiction under Article 227 is distinct from jurisdiction
D           under Article 226.
            29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram
            Chander Rai, (2003) 6 SCC 675] is overruled.”
             50. Article 226 of the Constitution is a succour to remedy injustice,
      and any limit on exercise of such power, is only self-imposed. Gainful
E
      reference can be made to, amongst others, A V Venkateswaran v
      Ramchand Sobhraj Wadhwani, (1962) 1 SCR 573 and U P State Sugar
      Corporation Ltd. v Kamal Swaroop Tandon, (2008) 2 SCC 41. The
      High Courts, under the Constitutional scheme, are endowed with the
      ability to issue prerogative writs to safeguard rights of citizens. For
F     exactly this reason, this Court has never laid down any strait-jacket
      principles that can be said to have “cribbed, cabined and confined”
      [to borrow the term employed by the Hon. Bhagwati, J. (as he then
      was) in E P Royappa v State of Tamil Nadu, AIR 1974 SC 555] the
      extraordinary powers vested under Articles 226 or 227 of the Constitution.
      Adjudged on the anvil of Nawab Shaqafath Ali Khan (supra), this was
G
      a fit case for the High Court to have examined the matter threadbare,
      more so, when it did not involve navigating a factual minefield.
            51. For reasons aforenoted, this criminal appeal succeeds and
      stands allowed. Consequently, (a) the Impugned Judgement is quashed
      and set aside, and; (b) the conviction and sentence awarded by the GSFC
H
   B. S. HARI COMMANDANT v. UNION OF INDIA & ORS.                               447
             [AHSANUDDIN AMANULLAH, J.]

dated 10.04.1996 is also set aside. The appellant is held entitled to full      A
retiral benefits from the date of his superannuation till date. All payments
due to him be processed and made within twelve weeks from today,
albeit after adjusting amount(s), if any, already paid.
       52. Costs made easy.
       ADDITIONAL DIRECTIONS:                                                   B

      53. The Impugned Judgment annexed in the paperbook is a certified
copy obtained from the High Court. However, it is not numbered
paragraph-wise.
     54. In Shakuntala Shukla v State of Uttar Pradesh, 2021 SCC                C
OnLine SC 672, this Court had the occasion to observe:
       “35. … A judgement should be coherent, systematic and
       logically organised …”.
     55. Likewise, in State Bank of India v Ajay Kumar Sood, 2022
SCC OnLine SC 1067, this Court opined:                                          D
       “21.It is also useful for all judgments to carry paragraph
       numbers as it allows for ease of reference and enhances the
       structure, improving the readability and accessibility of the
       judgments. A Table of Contents in a longer version assists
       access to the reader.”                                                   E
                                                      (emphasis supplied)
       56. It is desirable that all Courts and Tribunals, as a matter of
practice, number paragraphs in all Orders and Judgments in seriatim,
factoring in the judgments afore-extracted.
                                                                                F
       57. The learned Secretary-General shall circulate this judgement
to the learned Registrars General of all High Courts, to place the same
before Hon’ble the Chief Justices, to consider adoption of a uniform
format for Judgments and Orders, including paragraphing. The learned
Chief Justices may direct the Courts and Tribunals subordinate to their
High Courts accordingly as well.                                                G


Divya Pandey                                                  Appeal allowed.
(Assisted by : Shevali Monga, LCRA)


                                                                                H