Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. The Writ Petition filed by the appellant, as noticed hereinbefore, has been dismissed by the High Court. We may, however, before proceeding with matter notice that the records of the Court of Enquiry were not placed before G the High Court.
11. Ms. Lily Thomas, learned counsel appearing on behalf of the appellant inter alia would submit : (0 Appellant having been suffering from mental illness and having been undergoing rigorous imprisonment for seven days on a ….. 1 .._ _.._ SHEEL KR. ROYv. SECRETARY M/O DEFENCE [S.B. SINHA, J.] different charge, service of the charge on him during that period A as also holding of a Court Martial wherein the Commanding Officer played both the role of a prosecutor as also a Judge amount to denial of his human right as also Article 21 of the Constitution of India. No legal assistance was also provided to him and furthermore no time having been granted for preparation B ')f his case as he was in custody, the proceeding should be eated to be an eye-wash. (ii) Imposition of two punishments, viz., rigorous imprisonment as also dismissal from service is violative of Section 39 read with Section 71 of the Act. c (ill) Appellant having been found to be not fit for being retained in service in a medical proceedings held on 17 .5.1990, quick successive convictions one for making a complaint to the Adjutant General directly and another for violation of Section 39 of the Act must be held to be wholly illegal. Charge against the appellant in regard to his alleged unauthorized absence was based on incorrect facts as from the movement order filed by the respondents themselves, it would appear that he had been admitted in Medical Hospital, Ambala on 11.7.1990. (iv) Recommendations of the Court of Enquiry although noticed by the Commanding Officer himself in the Summary Court Martial E Proceedings having not been taken into consideration, the said authority must be held to have misdirected itself in law. Had the recommendations been taken into consideration, the Commanding Officer would have regularized his leave and in any event he having been found to be admitted in a Medical Hospital or in a F Hospital as a patient, the findings of unauthorized absen~e is perverse.
12. Mr. Vikas Singh, learned Additional Solicitor General, appearing on behalf of the respondents, on the other hand, would submit that: (i) the appellant having been found fit for joining his services, no G illegality has been committed by the Commanding Offi9er in awarding a punishment of six months' Rigorous Imprisonment as also dismissal from service. (ii) Although the appellant had pleaded guilty before the Commanding H [2007) 7 S.C.R. Officer, he qad proceeded in terms of Section 116 of the Act on the .. i.- premise as· if the delinquent officer had not pleaded guilty and, thus, the Summary Court Martial proceedings must be held to have been conducted in accordance with law, particularly when he had again pleaded guilty before the Commanding Officer in the said proceedings. (iii) The contentions raised before us having not been raised before the High Court, this Court should not entertain the same.
13. The fact that the appellant was suffering from mental illness for a long time is not in dispute. We have noticed hereinbefore that he was c recommended to be placed in Medical Category CEE for six to twelve years. His medical re-categorization, however, had not been done periodically.
14. From the records produced by the respondents, it is evident that the appellant had remained in one or the other Army Medical Hospitals from …. 8.7.1990.
15. Although he is said to have absented himself on and from 10. 7 .1990, it now transpires that he had been admitted at the Command Hospital, Ambala – !- Cantt from 11.7.1990. This discrepancy has not been explained. The Court of __,. Enquiry in the aforementioned situation must be presumed to have made recommendations for regularization of his leave upon consideration of the E relevant records and particularly the movement orders. It is true that the . opinion_ofthe Court of Enquiry is only recommendary in nature but it is also true that the Commanding Officer in a proceeding for Summary Court Martial was required to take that fact into consideration. It is one thing to say that the recommendations of the Court of Enquiry had not been accepted but then if such recommendations had been made having regard to the materials which F were brought on the records by the respondents themselves, we are of the 't opinion that it was obligatory on his part to assign some reasons in support -f thereof. It is evident that the premise on which such recommendation has been made by the Court of Enquiry was not taken into consideration in the Summary Court Martial proceeding.
16. In any event, the respondents themselves should have explained in their counter-affidavit as to why the recommendations of the Court of Enquiry were not accepted. Once it is held that for the period of the purported absence ·-r in question or a part thereof he had not been absconding but was admitted in Military Hospital, Ambala Cantt, the matter deserved a deeper scrutiny at H the hands of the competent authority. The movement orders in respect of the SHEEL KR. ROY v. SECRET ARY MIO DEFENCE [S.B. SINHA, J.] appellant who had been described as a patient clearly shows that he was A -1 admitted in Amabala Cantt Hospital on 11.7.1990. The movement order furthermore shows that he was also transferred to Chandigarh Hospital.
17. Fairness and reasonableness in the action of the State whether in a criminal proceeding or otherwise is the hallmark of Article 14 of the Constitution of India. The doctririe of proportionality is one of the grounds on the basis B whereof the power of judicial review could be exercised. It was so held in Ex.Naik Sardar Singh v.Union of India and Ors. (1991] 3 SCC 213. f
18. We may also notice that in Ranjit Thakur v. Union of India and Ors., -<– reported in (1987] 4 SCC 611, this Court held: c " … 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 D 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." E
19. We although agree with the learned Additional Solicitor General that it is legally permissible to award more than one punishment in terms of Section 71 of the Act but we may notice that Section 39(a) specifically deals with the misconduct in respect of absence without leave. It is one thing to say that legally it is permissible to impose more than one punishments but F then also it is another thing that in exercising the said power all attending situations which fell for consideration by the punishing authority in regard 't- to the quantum thereof would not be taken into consideration. It is clear that ·the Commanding Officer in the Summary Court Martial proceedings failed to take into consideration the relevant fact and, thus, committed an error apparent G on the face of the record. We are also of the opinion that in a case of this nature, imposition of both punishment of rigorous imprisonment for six years as also dismissal from service was wholly arbitrary in nature. It is also vitiated in law as all relevant facts were not taken into consideration . …,.
20. The learned Additional Solicitor General took pains in explaining to H (2007] 7 S.C.R. us that the appellant's condition had improved and, in fact the medical category was upgraded from CEE to A YE and ultimately he was found fit for joining his duties only on 12.8.1991. The said submission, however, in our opinion, does not stand a moment's scrutiny. What was required to be taken into consideration is the conduct of the appellant for the period 16.7.1990 to B 22. 7. I 991. It is not the case of the respondents that even during the said period, his behaviour or mental condition :was such which enabled the authorities to put him on trial or his behaviour even during the said period deserved a harsh punishment, assuming he was guilty of commission of misconduct.
21. On their own showing, the respondents accepted that during his entire service career, the appellant remained a mental patient and had been undergoing his treatment in one hospital or the other. It was, therefore, obligatory on the part of the Commanding Officer to take into consideration the said fact for the purpose of arriving at a finding of his guilt on the charges of misconduct as also for fixing the quantum of punishment. It is in that D limited sense, assignment of some reasons in a case of this nature must be held to be necessary. It is now a well settled legal principle which has firmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a E Division Bench of the Delhi High Court in Nirmal Lakra v. Union of India & Ors., reported in (2003) I SLJ 151.
22. Once it is held that arbitrariness of the Commanding Officer in the matter of holding the appellant and awarding punishment upon him is apparent on the face of the-record, the impugned order must be held to be wholly F unsustainable.
23. We regard our inability to accept the contentions of the learned Additional Solicitor General that even in a case of this nature we would shut our eyes to the realities of case and allow gross injustice meted to a citizen of India to be perpetuated on mere technicalities.
24. Moreover, we have noticed hereinbefore that the learned counsel for the appellant stated before us that even the recommendations of the Court of Enquiry had not been produced before the High Court. If that be so, even at that stage, the appellant did not have the advantage of a better assistance from his counsel. t ·f ( _…, SHEEL KR. ROYv. SECRET ARY MIO DEFENCE [S.B. SINHA, I.]
25. The question, however, which arises for consideration is the relief A which can be granted to the appellant. He has already undergone the sentence. He has not been working since 1991. He had also remained in Hospital for a fong time. Although, thus, it is not possible for us to grant him all the prayers made in his writ petition before the High Court, we are of the opinion t~at keeping in view the peculiar facts and circumstances of this case, interest 1i3 of justice would be met if it is directed that he should be deemed to have been discharged from 7.9.1991. He would, thus, be entitled to all benefits arising therefrom. The appeal is allowed in part and to the extent mentioned herein before. However, in the facts and circumstances of this case, there shall be no order as to costs. D.G. Appeal allowed. c