TaxTMI 
TaxTMI 
2010 (7) TMI 1241
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....nt 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 relevant time was serving as a Major in the Indian Army was 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). 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 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. SECOND CHARGE, ARMY ACT SECTION 45 BEING AN OFFICER BEHAVING IN A MANNER UNBECOMING HIS POSITION AND THE CHARACTER EXPECTED OF HIM In that he, at Pune, between 03 Sep 92 and Jun 93, improperly failed to pay the final....
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....manded 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 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 matter and while sticking to the reasons given by it in regard 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 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 correctness of the view taken by the High Court on the grounds urged before it has not been as....
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....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 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 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 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 violative of Article 14 of the Constitution. 11. In Ranjit Thakur v. Union of India and Ors. (1987) 4 SCC 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 senten....
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.... that it cannot be put in a straitjacket formula. The following passage is in this regard apposite: 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, 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.... 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 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 d....