SQUADRON LEADER S MUKHERJEE Vs. UNION OF INDIA
LAWS(DLH)-2007-4-135
HIGH COURT OF DELHI
Decided on April 20,2007

EX. SQUADRON LEADER S. MUKHERJEE Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

T.S.THAKUR, J. - (1.) In Ranjit Thakur vs. Union of India and Ors. (1987) 4 SCC 611, the Supreme Court evolved the doctrine of proportionality as a possible ground for judicial review of a decision leading to imposition of a punishment. The court held that while judicial review is, generally speaking, directed against the decision making process more than the decision itself and the choice and quantum of punishment is within the jurisdiction and discretion of a court martial, the sentence must suit the offence and the offender. It should not be vindicative or unduly harsh. It should not be disproportionate to the offence so as to shock the conscience of the court and amount in itself to proof of bias against the offender. The Court would, therefore, interfere in a case where the sentence, is in outrageous defiance of logic or could be termed as irrational or perverse. That view was reiterated though with a note of caution by the Supreme Court in Union of India and Ors. vs. R.K. Sharma AIR 2001 SC 3053. The court martial had, in that case, held an officer guilty of the charges and dismissed him from service as a measure of punishment. The said order was challenged in a writ petition before the High Court who set aside the punishment order and sent the matter back to the court martial for awarding a lesser punishment having regard to the nature and the degree of offence established against the officer. In a further appeal before the Supreme Court, their lordships held that the awarding of sentence is within the powers of the court martial and that while exercising powers under Articles 226 and 227 of the Constitution, a writ court cannot interfere with the punishment merely because it considers the same to be disproportionate. It is only in extreme cases which on their own face show perversity or irrationality that the court can, in exercise of its power of judicial review, interfere. Interference on a compassionate ground was, according to their lordships, wholly misplaced. To the same effect is the decision of the Supreme Court Union of India and Ors. vs. Datta Linga Toshatwas (2005) 13 SCC 709 where desertion of a person serving in the armed forces was held to be a serious matter and dismissal from service held to be a justified disciplinary action in no way disproportionate to the misconduct alleged.
(2.) The legal position thus stands fairly well settled. While the quantum of punishment is a matter that is not immune from judicial review, a writ court could not ordinarily interfere with the same unless the punishment can be said to be so outrageously disproportionate to the gravity of the offence that it may be termed as perverse or irrational. What has to be brone in mind is that a writ court does not?sit in appeal over the decision of a subordinate authority. The mere fact that the court would, if placed in the position of the authority, levied a lesser punishment would not therefore be a ground sufficient to justify interference.
(3.) The question that falls for determination in the present writ petition is not whether the punishment is adequate. The question is whether the punishment is so grossly disproportionate as to constitute a perversity or irrationality of a kind that no prudent person would accept. That is the legal backdrop in which the petitioner's challenge to the order of dismissal from service shall have to be examined in the instant case.;


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