LexUNION OF INDIA & ORS. versus BODUPALLI GOPALASWAMI
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A B [2011] 11 S.C.R. 326 UNION OF INDIA & ORS. v. BODUPALLI GOPALASWAMI (Criminal Appeal No. 876 of 2003) SEPTEMBER 12, 2011 [R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.] SERVICE LAW: c Pension and pensionary benefits - Army - Officer dismissed from service after trial by General Court Martial - Order by President of India forfeiting pension of the delinquent officer - High Court quashing the order forfeiting the pension - Held: The power and discretion vested in the President by 0 virtue of Regulation 16(a) of the Pension Regulations, to forfeit and deny the pension in full or in part to an officer, who is dismissed or cashiered, is independent of the punishment imposed uls. 71 of the Act by the court martial - High Court having held that there was no irregularity in court martial E proceedings nor any infirmity in the findings of guilt or the punishment imposed, committed an error in quashing the order of the President forfeiting the pension of the officer - However, if it is demonstrated that either the proceedings of GCM were violative of the Act/Rules or findings were perverse or punishment was shockingly disproportionate to the gravity F of the offence proved, and if order of dismissal is set aside or punishment is reduced, then the order of forfeiture of pension will not survive - Pension Regulations for Army (Part I) - Regulation 16(a). G Dismissal - Army - Irregularities found in Butchery section of ASC (Supply) - Commandant, being over all controlling officer of supply depot tried by General Court Martial - Charges 1, 4 and 5(c) found proved - Dismissal from service - Held: The omission as regards charge 1 at best H 326 UNION OF INDIA & ORS. v. BODUPALLI 327 GOPALASWAMI would be technical lapse as far as the delinquent officer is A concerned and further omissions attributed to him in regard to charges 4 and 5(c) were actually omissions by his subordinates who were charge-sheeted and punished - In the circumstances, the punishment of dismissal from seNice is shockingly disproportionate to the gravity of the offences held B to have been proved - Accordingly, the order imposing punishment of dismissal from service is set aside - Consequently, order forfeiting the pension is a/so set aside - Instead, punishment of forfeiture of 8 years of seNice for purpose of pension and seNice reprimand imposed - Further, C the Officer will not be entitled to any back wages form the date of his dismissal to the date of his superannuation - Army Act, 1950 - s. 71. ARMY RULES, 1954: Rule 39 - Irregularity in constitution and conduct of court martial -Plea that Presiding Officer of Court Martial had earlier summarily tried two prosecution witnesses in regard to the same incident -Held: . The act of summarily trying others D for other offences relating to the same incident is not a ground E of disqualification -Charges against the delinquent officer were completely different from the charges against the persons who were summarily tried - Presiding Officer did not suffer from any disqualifications enumerated in r. 39. CONSTITUTION OF IND/A, 1950: F Arlie/es 2~6 and 136 - Writ petition challenging the order of General Court Martial - Held: Unless the court martial has acted without jurisdiction or exceeded its jurisdiction or had acted peNerse/y or arbitrarily, the proceedings and decision G of the court martial will not be interfered in exercise of power of judicial review - In the instant case, the charges against the delinquent officer were technical in nature - While the Court may not interfere with the findings of guilt, in such a case, having regard to the nature of offences, the Court may H 328 SUPREME COURT REPORTS [2011) 11 S.C.R. A consider the proportionality of punishment to find out whether it is perverse and irrational - Even if accepting the finding of guilt, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to have been proved - Accordingly, the order of dismissal is set aside 8 and punishment of forfeiture of 8 years of service for purpose of pension and service reprimand imposed - Judicial review. Respondent no. 1 in Crl. A. No. 876 of 2003, who was the Commandant of 227 Company ASC (Supply), was, consequent upon the trial by the General Court Martiai C (GCM), dismissed from service with forfeiture of the entire pensionary benefits. The charges found proved against him
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