CHARANJIT LAMBAversusCOMMANDING OFFICER, SOUTHERN COMMAND AND ORS.

                              [2010) 7 S.C.R. 820


     A                    CHARANJIT LAMBA
                                   v.
           COMMANDING OFFICER, SOUTHERN COMMAND AND
                                 ORS.
                  (Criminal Appeal No. 1027 of 2002)
     B                           JULY 06, 2010
               [DALVEER BHANDARI AND T.So THAKUR, JJ.)

                Service Law - Dismissal - On ground of misconduct -
     C    Appellant, a Major in the Indian Army - Dismissed on the
          ground of committing the misconduct of a) making false claim
          towards payment of transport charges of his household
          luggage and car and b) of violating the rule requiring him to
/         clear his electricity dues upon his transfer from the place of
    /'D   his posting - Dismissal challenged by appellant as being
          disproportionate to the gravity of the offence committed by him
          - Held: The challenge is not tenable - As an officer of
          disciplined force like the Army, appellant was expected to
          maintain the highest standard of honesty and conduct, and
     E    forebear from doing anything that could be termed as
          unbecoming of anyone holding that rank and office - Making
          a false claim for payment of transport charges of household
          luggage and car was a serious matter bordering on moral
          turpitude - Breach of the rule requiring him to clear his
     F    electricity dues upon his transfer from the place of his posting
          was also not credit worthy for an officer- Any act on the part
          of an officer holding a commission in the Indian Army which
          is subversive of army discipline or high traditions of the Army
          renders such person unfit to stay in the service of the nation's
          Army especially when the misconduct has compromised the
     G     values of patriotism, honesty and selflessness which values
           are too precious to be scarified on the altar of petty monetary
          gains, obtained by dubious means - Army Act - ss. 45 and
           52(f).

      H                                 820
  CHARANJIT LAMBA v. COMMANDING OFFICER,                 821
       SOUTHERN COMMAND AND ORS.
     Administrative Law - Administrative action - Judicial      A
review by Writ Court - Scope - Constitution of India, 1950 -
Articles 226 and 14 -Doctrines - Doctrine of proportionality.

    Appellant was a Major in the Indian Army. He was
charged with the misconduct of a) making false claim            B
towards p1;1yment of transport charges of his household
luggage and car and b) of violating the rule requiring him
to clear his electricity dues upon his transfer from the
place of his posting. The alleged misconduct was found
proved, whereupon the appellant was dismissed from              C
service. Writ petition filed by the appellant was dismissed
by the High Court.

     In this Court, the appellant contended that the order
of his dismissal was disproportionate to the gravity of the
offence committed by him.                                       D
    Dismissing the appeal, the Court

     HELD:1.1. The courts in India have recognized the
doctrine of proportionality as one of the ground for
judicial review. The doctrine of proportionality is now a       E
well recognized ground on which a Writ Court can
interfere with the order of punishment imposed upon an
employee if the same is so outrageously disproportionate
to the nature of misconduct that it shocks conscience of
the Court. [Paras 9 and 15] (830-G-H; 828-F]                    F

    1.2. That the punishment imposed upon a delinquent
should commensurate to the nature and generally of the
misconduct is a requirement of fairness, objectivity, and
non-discriminatory treatment. The same is recognized as         G
being a part of Article 14 of the Constitution. [Para 15]
[830-G]

    1.3. The quantum of punishment in disciplinary
matters is something that rests primarily with the
disciplinary authority. The jurisdiction of a Writ Court or     H
    822     SUPREME COURT REPORTS              [2010) 7 S.C.R.

A the Administrative Tribunal for that matter is limited to
  finding out whether the punishment is so outrageously
  disproportionate as to be suggestive of lack of good
  faith. What is clear is that while judicially reviewing an
  ordet of punishment Imposed upon a delinquent
B employee the Writ Court would not assume the role of an
  appellate authority. It would not Impose a lesser
  punishment merely because it considers the same to be
  mc>re reasonable than what the disciplinary authority has
  imposed. It is only in cases where the punishment is so
c disproportionate to the gravity of charge that no
  reasonable person placed in the position of the
  disciplinary authority could have imposed such a
  punishment that a Writ Court may step in to interfere with
  the same. [Para 15) [830-H; 831-A-C]
D        Coimbatore District Central Coop. Bank v. Employees
    Assn. (2007) 4 SCC 669 and M.P. Gangadharan & Anr. v.
    State of Kera/a & Ors. (2006) 6 SCC 162 - relied on.

       Bhagat Ram v. State of Himacha/ Pradesh (1983) 2 SCC
E 442; Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC 611;
  Ex-Naik Sardar Singh v. Union of India & Ors. (1991) 3 SCC
  213; Hind Construction & Engineering Co. Ltd. v. Workmen
  AIR 1965 SC 917; Management of the Federation of Indian
  Chambers of Commerce and Industry v. Workman, Shri R.K.
F Mittal (1972) 1 SC 40 - referred to.
        Council of Civil Service Union v. Minister for Civil
    Service (1985) AC 374 - referred to.
      2. The present case is not one where the High Court
G could and ought to have interfered with the sentence
  imposed upon the appellant on the doctrine of
  proportionality. The appellant was holding the rank of a
  Major in the Indian Army at the time he committed the
  misconduct alleged and proved against him. As an officer
H
  CHARANJIT LAMBA v. COMMANDING OFFICER,              823
       SOUTHERN COMMAND AND ORS.
of disciplined force like the Army, he was expected to A
maintain the highest standard of honesty and conduct
and forebear from doing anything that could be termed
as unbecoming of anyone holding that rank and office.
Making a false claim for payment of transport charges of
houseOhold luggage and car to Chandigarh was a B
serious matter bordering on moral turpitude. Breach of
the rule requiring him to clear his electricity dues upon
his transfer from the place of his posting was also not
credit worthy for an officer. The competent authority was
therefore justified in taking the view that the nature of the c
misconduct proved against the appellant called for a
suitable punishment. Inasmuch as the punishment
chosen was dismissal from service, the competent
authority did not take an outrageously absurd view of the
matter. The higher the public office held by a person the D
greater is the demand for rectitude on his part. An officer
holding the rank of Major· has to lead by example not only
in the matter of his readiness to make the supreme
sacrifice required of him in war or internal strife but even
in adherence to the principles of honesty, loyalty and
commitment. An officer cannot inspire those under his E
command to maintain the values of rectitude and to
remain committed to duty if he himself is found lacking
in that quality. Suffice it to say that any act on the part of
an officer holding a commission in the Indian Army which
is subversive of army discipline or high traditions of the F
Army renders such person unfit to stay in the service of
the nation's Army especially when the misconduct has
compromised the values of patriotism, honesty and
selflessness which val·· are too precious to be scarified
on the altar of petty m... ,.ary gains, obtained by dubious G
means. [Para 16] [831-D-H; 832-A-C]
                    Case Law Reference:
    (2007) 4 sec 669        relied on            Para 7
                                                             H
    824      SUPREME COURT REPORTS               [2010] 7 S.C.R.


A         (1985) AC 374           referred to          Para 8
          (1983) 2 sec 442        referred to          Para 10
          (1987) 4 sec 611       referred to           Para 11
          (1991) 3 sec 213        referred to          Para 11
B
          AIR 1965 SC 917         referred to          Para 12

          (1972) 1 SC 40          referred to          Para 13

          (2006) 6 sec 162        relied on            Para 14
c
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1027 of 2002.

      From the Judgment & Order dated 15.09.1998 of the High
  Court of Judicature at Bombay in Criminal Writ Petition No. 489
D of 1997.

        P.S. Patwalia, Jagjit Singh Chhabra, A.S. Rahi, Tushar
    Bakshi, Jaswant Persoya, for the Appellant.

E       Indira Jaising, ASG, S.K. Dubey, Balasubramanium,
    Sarnridhi Sinha, S. Anand, Anil Katiyar, B.V. Balaram Das,
    Asha Gopalan Nair for the Respondents.

          The Judgment of the Court was delivered by

F      T.S. THAKUR, J. 1. This appeal by special leave arises
  out of an order dated 15th September, 1998 passed by the
  High Court of judicature at Bombay whereby Criminal Writ
  Petition No.489 of 1997 filed by the appellant has been
  dismissed and the order of dismissal from service on proved
G misconduct affirmed. The factual matrix giving rise to the
  disciplinary proceedings against the appellant and his eventual
  dismissal from service has been set out by the High Court in
  the order under appeal. We need not, therefore, re-count the
  same over again. Suffice it to say that the appellant who at the
H
  CHARANJIT LAMBA v. COMMANDING OFFICER,    825
SOUTHERN COMMAND AND ORS. [T.S. THAKUR, J.]
relevant time was serving as a Major in the Indian Army was         A
consequent upon a finding recorded against him in a Court of
Inquiry brought up for trial before a General Court Martial (GCM
for short) on the following two distinct charges:

    FIRST CHARGE ARMY ACT SECTION 52(f).                            B
    SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (f)
    OF SECTION 52 OF THE ARMY ACT, WITH INTENT TO
    CAUSE WRONGFUL LOSS TO A PERSON

    In that he, at field on 30th Jul 92, with intent to cause       C
    wrongful gain to himself, improperly claimed Rs.16,589.30
    (Rs. Sixteen thousand five hundred eighty nine and paise
    thirty only) from CDA (Q) Pune on account of moving his
    household luggage and car to Chandigarh, well knowing
    that he was legally not entitled to the same.                   D

    SECOND CHARGE, ARMY ACT SECTION 45

    BEING AN OFFICER BEHAVING IN A MANNER
    UNBECOMING HIS POSITION AND THE CHARACTER
    EXPECTED OF HIM                                                 E

    In that he, at Pune, between 03 Sep 92 and Jun 93,
    improperly failed to pay the final electricity bill dated 03
    Sep 92 amounting to Rs.8132.35 (Rs. eight thousand one
    hundred thirty two and paise thirty five only) to Maharashtra
                                                                    F
    State Electricity Board (MSEB) in respect of H No.12-B
    Kohun Road, Pune-1 which was allotted to him."

      2. Evidence adduced before the GCM eventually led to the
appellant being held guilty for improperly claiming Rs.16,589.30
on account of transfer of his household luggage and car to          G
Chandigarh. The GCM found that the family of the appellant
had continued to occupy government accommodation at Pune
even after his posting to the field area and that the agency who
is alleged to have transported the luggage and the car of the
appellant did not exist at the given address. The evidence given    H
    826      SUPREME COURT REPORTS                  [2010] 7 S.C.R


A by the appellant in his defence was also found by the GCM to
  be unreliable on account of material contradictions in the
  deposition of the defence witnesses. The GCM on proof of the
  said charge sentenced him to forfeiture of ten years past
  service for purposes of pension. In so far as the second charge,
B viz. non-payment of electricity bill was concerned, the GCM
  declared the appellant not guilty. In its opinion the appellant had
  never refused to pay the electricity bill which was at any rate a
  matter between him and the Maharashtra State Electricity
  Board. The GCM took the view that the default of the petitioner
c could not be termed as conduct unbecoming of an official
  subject to the Army Act to call for any penal action.

         3. Aggrieved by the findings and the sentence awarded
    to him by the GCM the petitioner filed an appeal before the
    General Officer Commanding, Maharashtra and Gujarat Area
D   (hereinafter referred to as the 'GOC M & G Area') who
    happened to be the confirming authority also. The GOC M &
    G Area, however, took the view that the sentence awarded to
    the appellant on the first charge was lenient inasmuch as the
    offence committed by the appellant was serious and involved
E   moral turpitude. It also noted that the appellant had past
    convictions to his credit which ought to be kept in view. The
    finding recorded by the GCM in regard to the second charge
    framed against the appellant was also found to be untenable
    by GOC M & G Area as according to him the conduct of the
F   appellant fell within the ambit of Section 4E of the Army Act
    which made his behaviour unbecoming of an officer. The GOC
    M & G Area accordingly remanded the matter back to the GCM
    for re-consideration on the question of sentence to be awarded
    to the appellant on the first charge and whether the appellant
G   could be held guilty on the second charge. The order made it
    clear that the GOC M & G Area did not intend to interfere with
    the discretion vested in the GCM which was free to decide the
    matter in the manner it liked.

          4. The GCM accordingly assembled again to consider the
H
 GHARANJIT LAMBA v. COMMANDING OFFICER,     827
SOUTHERN COMMAND AND ORS. [T.S. THAKUR, J.]
matter and while sticking to the reasons given by it in regard         A
to the first charge found the second charge also to have been
proved. The GCM on that basis revoked the earlier sentence
and sentenced the appellant to dismissal from service which
order was after confirmation by the competent authority assailed
by the appellant before the High Court at Bombay in Criminal           B
Writ Petition No.489 of 1997 as already noticed earlier.

     5. Before the High Court several contentions appear to
have been urged on behalf of the appellant which were
examined and repelled by the High Court while dismissing the
writ petition in terms of the order impugned in this appeal. The       C
correctness of the view taken by the Hign Court on the grounds
urged before it has not been assailed before us except in so
far as the High Court has held that the punishment of dismissal
imposed upon the appellant was in no way disproportionate to
the gravity of the offence committed by him.                           D

     6. Mr. P.S. Patwalia, learned senior counsel appearing for
the appellant argued that the order of dismissal of the appellant
from service was in the facts and circumstances of the case
disproportionate to the gravity of the charges framed against          E
the appellant. He relied upon the decisions of this Court to which
we shall presently refer to submit that judicial review of the order
of dismissal would justify intervention by a Writ Court in cases
where punishment was disproportionate to the nature of
misconduct proved against the delinquent. The present was              F
according to him one such a case that called for the Court's
intervention to either reduce the punishment or to direct the
same to be reduced by the competent authority.

     7. In Coimbatore District Central Coop. Bank v.
Employees Assn. (2007) 4 SCC 669 this Court declared that              G
the doctrine of proportionality has not only arrived in our legal
system but has come to stay. With the rapid growth of the
administrative law and the need to control possible abuse of
discretionary powers by various administrative authorities,
certain principles have been evolved by reference to which the         H
    828      SUPREME COURT REPORTS                    [2010] 7 S.C.R


A   action of such authorities can be judged. If any action taken by
    ar;i authority is contrary to law. improper, irrational or otherwise
    unreasonable, a court competent to do so can interfere with the
    same while exercising its power of judicial review.

       8. This Court referred with approval to the decision of the
8
  House of Lords in Council of Civil Service Union v. Minister
  for Civil Service (1985 AC 374) where Lord Diplock summed
  up the grounds on which administrative action was open to
  judicial review by a Writ Court. Lord Diplock's off-quoted
  passage dealing with the scope of judicial review of an
C administrative action may be gainfully extracted at this stage:

          "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
D         classify under three heads the ground 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 impropriety'. That is
          not to say that further development on a case-by-case basis
E         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' ..... "

       9. The doctrine of proportionality which Lord Diplock saw
  as a future possibility is now a. well recognized ground on which
F a Writ Court can interfere with the order of punishment imposed
  upon an employee if the same is so outrageously
  disproportionate to the nature of misconduct that it shocks
  conscience of the Court. We may at this stage briefly refer to
  the decisions of this Court which have over the years applied
G the doctrine of proportionality to specific fact situations.

       10. In Bhagat Ram v. State of Himachal Pradesh (1983)
  2 SCC 442 this Court held that if the penalty imposed is
  disproportionate to the gravity of the misconduct, it would be
H violative of Article 14 of the Constitution.
  CHARANJIT LAMBA v. COMMANDING OFFICER, 829
SOUTHERN COMMAND AND ORS. [T.S. THAKUR, J.]
     11. In Ranjit Thakur v. Union of India & Ors. (1987) 4        A
sec 611, this Court was dealing with a case where the
petitioner had made a representation about the maltreatment
given to him directly to the higher officers. He was sentenced
to rigorous imprisonment for one year for that offence. While
serving the sentence imposed upon him he declined to eat           B
food. The summary court martial assembled the next day
sentenced him to undergo imprisonment for one more year and
dismissal from service. This Court held that the punishment
imposed upon the delinquent was totally disproportionate to the
gravity of the offence committed by him. So also in Ex-Naik        c
Sardar Singh v. Union of India & Ors. (1991) 3 SCC 213
instead of one bottle of brandy that was authorized the
delinquent was found carrying four bottles of brandy while going
home on leave. He was sentenced to three months rigorous
imprisonment and dismissal from service which was found by         D
this Court to be disproportionate to the gravity of the offence
proved against him.

     12. The decision of this Court in Hind Construction &
Engineering Co. Ltd. v. Workmen (AIR 1965 SC 917) dealt
with a situation where some workers had remained absent from       E
duty treating a particular day as a holiday. They were for that
misconduct dismissed from service. This Court held that the
absence of the workmen could have been treated as· 'leave
without pay' and they could also be warned and not fined.
Reversing the order of punishment this Court observed:             F

    "It is impossible to think that any other reasonable
    employer would have imposed the extreme punishment of
    dismissal on its entire permanent staff in this manner.

     13. Reference may also be made to Management of the           G
Federation of Indian Chambers of Commerce and Industry
v. Workman, Shri R. K. Mittal (1972) 1 SC 40) where the
employer had issued a legal notice to the federation and to the
international chamber of Commerce which brought discredit to
the petitioner-employer. A domestic inquiry was held in which      H
    830       SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   he was found guilty and his services terminated. This Court held
    that the punishment was disproportionate to the misconduct
    alleged observing:

          "The Federation had made a mountain out of a mole hill
          and made a trivial matter into one involving loss of its
8
          prestige and reputation."

       14. We may refer to the decision of this Court in M.P.
  Gangadharan & Anr. v. State of Kera/a & Ors. (2006) 6 SCC
  162, where this Court declared that the question of
C reasonableness and fairness on the part of the statutory shall
  have to be considered in the context of the factual matrix
  obtaining in each case and that it cannot be put in a straitjacket
  formula. The following passage is in this regard apposite:

D         "34. The constitutional requirement for judging the question
          of reasonableness and fairness on the part of the statutory
          authority must be considered having regard to the factual
          matrix obtaining in each case. It cannot be put in a
          straitjacket formula. It must be considered keeping in view
          the doctrine of flexibility. Before an action is struck down,
E
          the court must be satisfied that a case has been made out
          for exercise of power of judicial review. We are not
          unmindful of the development of the law that from the
          doctrine of Wednesbury unreasonableness, the court is
          leaning towards the doctrine of proportionality ........ ."
F
       15. That the punishment imposed upon a delinquent should
  commensurate to the nature and generally of the misconduct
  is not only a requirement of fairness, objectivity, and non-
  discriminatory treatment which even those form quality of a
G misdemeanour are entitled to claim but the same is recognized
  as being a part of Article 14 of the Constitution. It is also evident
  from the long time of decisions referred to above that the courts
  in India have recognized the doctrine of proportionality as one
  of the ground for judicial review. Having said that we need to
H remember that the quantum of punishment in disciplinary
   CHARANJIT LAMBA v. COMMANDING OFFICER,    831
 SOUTHERN COMMAND AND ORS. [T.S. THAKUR, J.)

·matters is something that rests primarily with the disciplinary     A
 authority. The jurisdiction of a Writ Court or the Administrative
 Tribunal for that matter is limited to finding out whether the
 punishment is so outrageously disproportionate as to be
 suggestive of lack of good faith. What is clear is that while
 judicially reviewing an order of punishment imposed upon a          s
 delinquent employee the Writ Court would not assume the role
 of an appellate authority. It would not impose a lesser
 punishment merely because it considers the same to be more
 reasonable than what the disciplinary authority has imposed.
 It is only in cases where the punishment is so disproportionate     c
 to the gravity of charge that no reasonable person placed in
 the position of the disciplinary authority could have imposed
 such a punishment that a Writ Court may step in to interfere
 with the same.

      16. The question then is whether the present is indeed one     D
such case where the High Court could and ought to have
interfered with the sentence imposed upon the appellant on the
doctrine of proportionality. Our answer is in the negative. The,
appellant was holding the rank of a Major in the Indian Army a1
the time he committed the misconduct alleged and proved              E
against him. As an officer of disciplined force like the Army he
was expected to maintain the highest standard of honesty and
conduct and forebear from doing anything that could be termed
as unbecoming of anyone holding that rank and office. Making
a false claim for payment of transport charges of household          F
luggage and car to Chandigarh was a serious matter bordering
on moral turpitude. Breach of the rule requiring him to clear his
electricity dues upon his transfer from the place of his posting
was also not credit worthy for an officer. The competent authority
was therefore justified in taking the view that the nature of the    G
misconduct proved against the appellant called for a suitable
punishment. Inasmuch as the punishment chosen was dismissal
from service, the competent authority, did not in our opinion,
take an outrageously absurd view of the matter. We need to
remember that the higher the public office held by a person the      H
    832      SUPREME COURT REPORTS                  [2010] 7 S.C.R.

A greater is the demand for rectitude on his part. An officer
  holding the rank of Major has to lead by example not only in
  the matter of his readiness to make the supreme sacrifice
  required of him in war or internal strife but even in adherence
  to the principles of honesty, loyalty and commitment. An officer
B cannot inspire those under his command to maintain the values
  of rectitude and to remain committed to duty if he himself is
  found lacking in that quality. Suffice it to say that any act on the
  part of an officer holding a commission in the Indian Army which
  is subversive of army discipline or high traditions of the Army
C renders such person unfit to stay in the service of the nation's
  Army especially when the misconduct has compromised the
  values of patriotism, honesty and selflessness which values are
  too precious to be scarified on the altar of petty monetary g(lins,
  obtained by dubious means.

D         17. In the result this appeal fails and is hereby dismissed.

    B.B.B.                                       Appeal dismissed.