Criminal Writ Petition No.489 of 1997

15th September, 1998

Petitioner Counsel: Mr.M.K. DHAR
Respondent Counsel: Mr.H.V. MEHTA, Lt.DEEPA KURUVILLA, Mrs.J.S. PAWAR

Cases Cited:
1997 ALL MR (Cri) 885 [Para 12]
(1983) 2 SCC 442 [Para 14]
(1987) 4 SCC 611 [Para 14]
(1991) 3 SCC 213 [Para 14]
(1998) 1 SCC 537 [Para 18]

JUDGMENT

VISHNU SAHAI, J. :- By means of this petition preferred under Article 226 of the Constitution of India, the petitioner - Major C J Lamba - has impugned his dismissal order and prayed for some consequential reliefs.

2. The factual matrix from which this petition arises, in brief, is as under :-

The petitioner was posted under General Officer Commanding-in-Chief, Southern Command, in Pune, in the years 1991-1992. He was occupying married accommodation at 12-B Kahun Road, Pune and was staying there with his wife and children. In the early part of 1992, he was transferred to a field area in Kashmir. Consequently, it became imperative for his family to shift to separated family quarters accommodation. On 9.7.1992 he applied for such accommodation and in due course was allotted the same. Till then his family continued staying at 12-B Kahun Road Pune.

On 30.7.1992 the petitioner preferred a claim of Rs.16,589-30 paise for shifting his baggage and car to Chandigarh. The same was disallowed.

In the mean time it transpired to the authorities that the petitioner had actually not shifted his baggage and car to Chandigarh and made a false claim. Consequently three Courts of Inquiry were set up vide orders dated 15.6.1993, 23.12.1993 and 4.7.1994. This was because the first two were not held in accordance with law; the first as no evidence was called from Station Headquarters, Pune or CDA (O)/MES authorities and the second because though the Inquiry was completed but in the process of finalising the Report of the Court of Inquiry, the finalising authority, i.e. General Officer Commanding, HQ M & G Area found that the said Court of Inquiry had been constituted in violation of para 518 of DSR as one of the members was junior to the petitioner.

It is common ground between the counsel for the parties that the third Court of Inquiry indicted the petitioner.

2(A) It is also pertinent to point out that the petitioner did not pay to the Maharashtra State Electricity Board the electricity bill of Rs.8132-35 paise for the period 3.9.1992 and June 1993 in respect of house No.12-B Kahun Road, Pune, which had been allotted to him.

2(B) In due course, the petitioner was put up for trial before the General Court Martial comprising of five members; presided over by Col SP Singh. On 8.6.95, the following two charges were framed against him.

"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 30 July 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(O) 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 Sept 92 and Jun 93, improperly failed to pay the final electricity bill dated 03 Sept 92 amounting to Rs.8132.35 (Rs eight thousand one hundred thirty two and paise thirty five only) to Maharashtra State Electricity Board (MSEB) in respect of H. No.12-B Kahun Road, Pune-1 which was allotted to him.

Sd/-

(SP Singh), Col."

2(C) Evidence was led before the General Court Martial which found the petitioner guilty only in respect of the first charge viz. improperly claiming Rs.16,589.30 for shifting his house hold luggage and car to Chandigarh which he had not done. It assigned three reasons for finding him guilty.

"(a) The court is satisfied that family of the accused continued to occupy Govt. accommodation at Pune consequent to his posting to field area.

(b) That the transporters who allegedly transported the luggage and car of the accused did not exist at their given address.

(c) That the evidence of DW-2 & 7 was not relied upon because of material contradictions in their testimonies."

It sentenced him to forfeit ten years past service for the purpose of pension.

On the second charge, viz. that pertaining to electricity bill, the General Court Martial did not find the petitioner guilty because in its view he had never refused to pay the electricity bill and the matter was between him and the M.S.E.B. In its view this default of the petitioner could not be termed as behavior unbecoming of his position which is penal under section 45 of the Army Act.

2(D) The petitioner, through on appeal, challenged the verdict of the General Court Martial before the General Officer Commanding, Maharashtra and Gujarat Area herein after also referred to as GOC M & G Area, who was also the confirming authority vide a A3 warrant dated 5.5.1960 issued by the Central Government by virtue of the powers vested in it by section 154 of the Army Act, 1950.

2(E) It would be pertinent to point out that by virtue of the provisions of section 160 of the Army Act, the confirming authority has the powers to once revise a finding or sentence of General Court Martial.

The GOC M & G Area who was both the confirming and revising authority through a judicious and well reasoned order dated 21.1.1996.

Which would provoke the envy of the very best on the judicial side, came to the conclusion that the sentence awarded to the petitioner on the first charge appeared to be lenient because (a) the offence involves moral turpitude; (b) it was serious in nature; and (c) there were past convictions of the petitioner.

The GOC M & G Area also concluded that the General Court Martial erred in not finding the petitioner guilty on the second charge and was of the opinion that the view of the General Court Martial that the offence was merely of a social nature, was not tenable and the act of the petitioner fell within the ambit of section 45 of the Army Act which made the behavior of an officer in a manner unbecoming of his position, penal.

Hence the GOC M & G Area remanded the matter to the General Court Martial for reconsideration of :- (a) sentence of the petitioner on the first charge; and (b) whether he was guilty on the second charge. But in para 2 of the order he made it expressly clear that he was in no way intending to interfere with the discretion vested in General Court Martial which should decide these questions independently.

2(F) Pursuant to the order of remand dated 21.1.1996 the General Court Martial again assembled on 7.2.1996 and thereafter found the petitioner guilty in respect of the second charge, viz. non-payment of electricity bill, on the ground that he did not make any efforts to get the bill rectified or pay the same and did not pay final electricity bill to MSEB which was ultimately recovered from his pay and allowances in June 1993.

In respect of the first charge, it adhered to the reasons given by it on page 130 of the proceedings.

The General Court Martial revoked the earlier sentence and sentenced the petitioner to dismissal from service.

2(G) Once again the finding and sentence of the General Court Martial came up for confirmation before the GOC, M & G Area, who vide his order dated 20.3.1996 ordered "I reserve the findings and sentence of the Court for confirmation by Superior military authority". Consequently the confirmation proceedings came up before the superior military authority of GOC, M & G Area, the General Officer Commanding in Chief, Southern Command, Pune, who had been appointed the confirming authority vide a A-3 Warrant dated 22.7.1950 issued by the Central Government. Vide his order dated 22.4.1996, he confirmed the findings and sentence of the General Court Martial.

2(H) Aggrieved by the confirmation order dated 22.4.1996, the petitioner preferred in this Court criminal writ petition no.241 of 1996 but the same was dismissed in liminae on 10.4.1996 by a Division Bench of this Court on the ground that the petitioner had an adequate alternative remedy under section 164 of the Army Act and should avail of the same. Consequently, the petitioner preferred post confirmation petition under section 164(2) of the Army Act. Vide letter dated 26.12.1996, Mr.R.G. Hegde under Secretary to the Government of India, intimated the petitioner that the Central Government had rejected his petition as it was lacking in substance.

3. It is in these circumstances that the petitioner has preferred the present petition under Article 226 of the Constitution of India seeking reliefs referred to in para 1 of our judgment.

4. We have heard Mr.M.K. Dhar for the petitioner, Mr.H.V.Mehta and Lt. Deepa Kuruvilla for respondent nos.1 and 2 and Mrs J.S. Pawar for respondent no.3. We have perused the averments contained in the petition, in the accompanying annexures, and in the affidavits filed by the rival parties. Mr.M.K. Dhar, learned counsel for the petitioner, made the following submissions before us :-

(i) The revision order could only have been made by the confirming authority and since the General Officer Commanding-in-Chief, Southern Command had confirmed the General Court Martial proceedings, it was not open to General Officer Commanding Maharashtra & Gujarat Area to have passed the revision order.

(ii) There is nothing to indicate that a A-3 warrant appointing GOC-in-Chief, Southern Command, as the confirming authority, had been issued by the Central Government under section 154 of the Army Act.

(iii) Since there was a A-3 Warrant appointing General Officer Commanding, Maharashtra and Gujarat Area as the confirming authority and the said authority had issued the revision order, it could not have reserved confirmation for GOC-in-C Southern Command. When the findings and sentence again came back to it for confirmation after the General Court Martial had passed the impugned order.

(iv) The original A-3 Warrants should have been produced before Court by the respondent nos.1 and 2.

(v) It was not in the province of the revising authority to have directed reconsideration on the question of adequacy of sentence.

(vi) The General Court Martial had no jurisdiction to try the petitioner.

(vii) The impugned order was a malafide order.

(viii) At any rate, the sentence of dismissal from service was grossly disproportionate in relation to the gravity of the offence committed by the petitioner and warrants to be reduced.

5. We, now, propose taking up each of the said submissions. We first propose to consider the first five submissions canvassed by Mr.Dhar.

Sections 153, 154 and 160 of the Army Act.

"153. Finding and sentence not valid, unless confirmed. No finding or sentence of a general, district or summary court-martial shall be valid except so far as it may be confirmed as provided by this Act.

154. Power to confirm finding and sentence of general court-martial. The findings and sentences of general courts-martial may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government.

160. Revision of finding or sentence. (i) Any finding or sentence of a court-martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence.

(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.

(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a general court-martial, it still consists of five officers, or, if a summary general or district court-martial, of three officers."

Rules 68 and 70 of the Army Rules.

"68. Revision (i) Where the finding is sent back for revision under section 160, the court shall re-assemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court.

(2) Except where the court is directed to take fresh evidence no fresh evidence shall be adduced.

(3) The Court may, on a request from the prosecutor, in the interest of justice, allow a witness to be called or re-called for the purpose of rebutting any material statement made by a witness for the defence during revision.

(4) After the revision order has been read in open court, whether the revision is of finding or sentence and the evidence, if any, in accordance with sub-rule (1), (2) and (3) has been taken, the prosecutor and the accused shall be given a further opportunity to address the court in the order as laid down in rule.

59. If necessary, the judge-advocate, if any, may sum up the (additional) evidence and advise the court upon the law relating to the case. The court shall then deliberate on its finding or the sentence, as the case may be, in closed court.

(5) Where the finding is sent back for revision and the court does not adhere to its former finding, it shall revoke the finding and sentence, and record the new finding, in the manner laid down in rule 62, and if such new finding involves a sentence, pass sentence afresh, after complying with rule 64.

(6) Where the sentence alone is sent back for revision, the court shall not revise the finding.

(7) After the revision, the presiding officer shall date and sign the decision of the court, and the proceedings, upon being signed by the judge advocate, if any, shall at once be transmitted for confirmation".

"70. Confirmation. Upon receiving the proceedings of a general or district court martial, the confirming authority may confirm or refuse confirmation, or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings".

6. We take up the first submission namely that the revision order could only have been made by the confirming authority and since GOC-in-C Southern Command had confirmed the Court Martial proceedings it was not open to GOC M & G Area to have passed the revision order. A perusal of section 154 of the Army Act shows that the proceedings of General Court Martial can be confirmed either by the Central Government or by an officer appointed by it by a Warrant. We have already mentioned in para 2(O) that by a A-3 warrant dated 5.5.1960, Central Government had appointed General Officer Commanding, Maharashtra & Gujarat Area as the confirming authority.

Section 160 of the Army Act provides that the confirming authority would also be the revising authority. Since the GOC, M & G Area was the confirming and revising authority, it was well within his province to have passed the revision order.

The fallacy in Mr.Dhar's submission is that it is founded on the postulate that the authority which makes the final confirmation is alone the confirming authority. This postulate is belied by the provisions of section 154 of the Army Act which only provides that the confirming authority would either be the Central Government or an officer appointed by it by a warrant. The expression an authority which makes the final confirmation in Court Martial proceedings is not synonymous with the expression confirming authority as used in section 154 of the Army Act. And this is apparent from a perusal of rule 70 of the Army Rules which provides that the confirming authority upon receiving proceedings of a general or district court martial may either make or refuse the confirmation or reserve it for his superior authority. Hence the first submission canvassed by the learned counsel for the petitioner is rejected.

7. We now take up the second submission namely that there is nothing to indicate that a A3 warrant appointing GOC-in-C, Southern Command as the confirming authority had been issued by the Central Government. In para 2(G) of this judgment, we have mentioned that a A-3 Warrant dated 22.7.1950 had been issued by the Central Government whereby the GOC-in-C Southern Command had been appointed the confirming authority. Learned counsel for respondent nos.1 and 2 have produced for our perusal a certified copy of the said warrant. Hence this submission also fails.

8. We also do not find any merit in the third submission, namely that GOC M & G Area could not have reserved confirmation for his superior authority. A perusal of rule 70 of the Army Rules which we have extracted earlier, shows that upon receiving the proceedings of General Court Martial, the confirming authority may confirm or refuse confirmation or reserve confirmation for superior authority. Since GOC-in-C Southern Command was both the confirming authority and superior authority in view of the provisions contained in rule 70, it was perfectly permissible for GOC M & G Area to have reserved confirmation for GOC-in-C Southern Command.

9. The fourth submission of the petitioner's counsel namely that it was incumbent for the respondent nos.1 and 2 to produce the original A-3 Warrants whereby GOC, M & G Area and the GOC-in-C Southern Command were appointed by the Central Government, by virtue of powers vested in it by section 154 of the Army Act as the confirming authority, is also devoid of merit. Zerox copy of A-3 Warrant pertaining to the former and the certified copy of the said warrant pertaining to the latter have been made available to us by the learned counsel for the respondents.

10. We also do not find any merit in the 5th submission of the petitioner's counsel viz. that it was not open for the revising authority to direct the General Court Martial to reconsider the question of adequacy of the petitioner's sentence on the first charge. A perusal of section 160(1) of the Army Act would show that the confirming authority has the power to once revise any finding or sentence. That being so it follows as a logical imperative that it can remand the question of adequacy of sentence to General Court Martial. Section 160 (1) of the Army Act has to be read conjunctively with rule 68 of the Army Rules. A perusal of rule 68(4) would show that where the question of sentence has been remitted, the authority shall have power to pass a fresh sentence.

11. Mr.Dhar's sixth contention is that the General Court Martial had no jurisdiction. This plea of jurisdiction was taken under rule 51 of the Army Rules and was raised on the third date of hearing after the petitioner had pleaded to the charges framed against him. Rule 51(1) reads thus :-

"51. Special plea to the jurisdiction. (i) The accused before pleading to a charge, may offer a special plea to the general jurisdiction of the court, and if he does so, and the court considers that anything stated in such plea shows that the court has no jurisdiction it shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and any address by or on behalf of the accused and reply by the prosecutor in reference thereto".

A perusal of this Rule would show that the plea of special jurisdiction should be taken before the accused makes his plea to the charges framed. In the instant case, the plea of special jurisdiction was raised after the charge had been framed. It would be pertinent to point out that the proceedings of General Court Martial show that since the charge had been framed before the plea of special jurisdiction was raised, the said plea was rejected. But in all fairness the General Court Martial ordered that if the petitioner desired he was at liberty to raise the plea in respect of bar of the trial under rule 53 of the Army Rules. The proceedings of General Court Martial also show that when the counsel for the petitioner was asked he informed the court that he did not wish to raise plea of bar of trial under Rule 53.

For the said reasons we reject this contention of Mr.Dhar.

12. We now take up Mr Dhar's seventh contention that the impugned order is malafide. To substantiate his plea of malafides he strenuously urged that the petitioner was not found guilty by the first and second Court of Inquiry; the confirming authority (GOC M & G Area) instead of dealing with the confirmation proceedings himself reserved it for a superior authority (GOC-in-C Southern Command); and GOC-in-C Southern Command passed the confirmation order eight months after General Court Martial had found the petitioner guilty in respect of the first charge.

We regret that on the basis of this material we cannot conclude that the impugned order was malafide. A Division Bench of this Court, of which one of us (Vishnu Sahai, J.) was a member, in the decision rendered in the case of Kashinath Kashya Tukaram Lad Vs. R.D. Tyagi and ors. reported in 1997 ALL MR (Cri) 885, in para 12, with reference to the question as to when inference of malafide should be raised, observed thus :-

"12. We wish to emphasise that courts should be extremely careful and cautious in raising an inference of malafides, which in sum and substance means malice on the part of the authority which has passed an order. The inference of malafides should only be raised when it is an irresistible inference from the facts in a given case. The facts should be so clear, cogent and clinching that they are incapable of any other inference excepting that of malafides. A hasty inference in respect of malafides may certainly result in injustice to the authority which has passed the order".

13. In our view on the said material the inference of malafides cannot be raised.

From a perusal of paras 14 and 15 of the affidavit of Captain Raghbir Singh Randhawa filed in this Court to rebut the averments made in the petition, it is clear that the first two courts of inquiry were not held in accordance with law; the first because no evidence was called and the second because though the inquiry was completed but in the process of finalising the report of the inquiry, the finalising authority (GOC M & G Area) found that the said court of inquiry had been constituted in violation of para 518 of DSR as one of the members of the said court of inquiry was junior to the petitioner.

In such a situation even if the petitioner was exonerated by the first and second court of inquiry, as contended by his counsel, the act of the authorities in setting up a third court of inquiry cannot be termed as malafide.

The circumstance that the confirming authority (GOC M & G Area) reserved the finding for confirmation for his superior authority can be no basis for inferring malafides as he had powers to do so under rule 70 of the Army Rules.

Finally the contention that between the order of the general Court Martial finding the petitioner guilty on the first charge and the confirmation by GOC-in-C Southern Command there was a yawning gap of eight months, is misconceived. What was confirmed by the GOC-in-C Southern Command was not the first order of the General Court Martial passed eight months ago because the same was remanded by the revisional authority (GOC M & G Area) but the order passed by the General Court Martial pursuant to the remand sometimes after 7.2.1996 by which it sentenced the petitioner to dismissal from service. Between 7.2.1996 and 22.4.1996 the latter being the date when the order of General Court Martial was confirmed by GOC-in-C, Southern command, there was only a gap of 2.1/2 months. For the said reasons, we find no merit in this submission.

14. We now take up the final submission canvassed by Mr Dhar viz. that the sentence of dismissal from service is grossly disproportionate in relation to the gravity of the charges against the petitioner and hence should be reduced. To substantiate this submission, he cited before us the decisions of the Apex Court in the following cases :-

1. (1983) 2 Supreme Court Cases 442

Bhagat Ram Versus State of Himachal Pradesh and others.

2. (1987) 4 Supreme Court Cases 611

Ranjit Thakur Vs. Union of India & ors.

3. (1991) 3 Supreme Court Cases 213

Ex-Naik Sardar Singh Vs. Union of India and others.

In Bhagat Ram's case (supra), Mr.Dhar invited our attention to para 15 wherein the Supreme Court observed thus :-

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution".

In Ranjit Thakur's case (supra), he drew our attention to para 25 wherein the Supreme Court observed thus :-

"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 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."

A perusal of the said decisions and that rendered in the case of Ex-Naik Sardar Singh, (supra) wherein the said decisions have been relied upon would show that there must be a corelation or nexus between the gravity of the offence and the quantum of the sentence awarded.

15. We regret to observe that the said decisions would have no bearing as regards the present case for the offence committed in each of them was trifling in terms of gravity as compared to the present case and was committed by petty officials and not by a senior officer like a Major in the Army, as is the case here.

15(A). It should be borne in mind that if an officer of the defence service commits the same offence which a person of the ranks commits the gravity would be more because being an officer he is expected to behave with a greater sense of responsibility than one in the ranks, in fact he is expected to set the tone and example for him. Consequently if for the same offence an officer is awarded a stiffer sentence than one in the ranks the differentiation would be perfectly rational and intelligible. It should be always remembered that the right to equality enshrined in Article 14 of the Constitution of India only postulates that the likes should be treated alike. It only prohibits irrational discrimination and not rational classification.

15(B). It should not be understood to mean that the principle of proportionality culled out by the Apex Court, in the decisions referred to in paragraph 14, implies that if the same offence is committed by an officer and by one in the ranks identical punishment would be meted out to both. Though the offence may be the same but since the gravity would be more in the case of an officer, it would only be just and equitable to award him a stiffer sentence. For instance if in place of the petitioner one in the ranks was found guilty on the first charge and dismissed from service perhaps it could have been contended that the sentence of dismissal was too harsh.

15(C) The concept of proportionality is dynamic and not static in nature. Courts do not apply it in a wooden manner. Its application would vary according to the position of the person who commits the crime.

16. We now propose examining in detail each of the said decisions of the Apex Court.

In Bhagat Ram's case, some trees were cut in forest lands and Bhagat Ram who was a Forest Guard did not take any action in respect of felling of the trees. The penalty imposed on Bhagat Ram was removal from service. He preferred a writ petition in the High Court which was dismissed in liminae. The Supreme Court ordered his reinstatement with the direction that his two increments with future effect would be withheld and he should only be paid 50% of the arrears of salary from the date of termination till the date of reinstatement.

In Ranjit Thakur's case, the facts were that Ranjit Thakur had joined the Armed Services on September 7, 1972 and some times about March 1985 had sent a representation complaining ill-treatment at the hands of the respondent no.4 directly to the higher officer. He was sentenced to undergo 28 days R.I. for the said offence by respondent no.4. He was held in the Quarter-guard Cell in handcuffs to serve that sentence. While serving the same, on March 29, 1985, when he was ordered to eat his food by Sub Ram Singh he did not do so. A Summary Court Martial was assembled the very next day. Of the said Summary Court Martial, respondent no.4 was also a member. The Summary Court Martial sentenced Ranjit Thakur to undergo one year rigorous imprisonment and dismissed him from service. The Supreme Court, on these facts, made observations extracted above.

In the case of Ex-Naib Sardar Singh, Supra, the facts were that Sardar Singh was entitled to carry four bottles of rum and one bottle of brandy. He instead purchased 11 bottles of rum and one bottle of brandy and while carrying the same was apprehended by the civil police and was handed over to the Military authorities which held a Summary Court Martial wherein he was sentenced to three months R.I. and dismissed from service with effect from 9.10.1985 by which time he had already put in ten years of service. On these facts, relying upon Ranjit Thakur's case and Bhagat Ram's case supra, the Supreme Court held that considering the gravity of the crime, the sentence awarded was unduly excessive and, therefore, set aside the sentence imposed in the Summary Court Martial and remanded the matter to the Court Martial for imposing any of the lesser punishments provided in law.

17. A perusal of the said decisions would show that the quantum of sentence would depend upon the gravity of the charges and the charges therein were of a trifiling nature against persons in the ranks. In the instant case, charge of a grave nature has been found established against the petitioner, who was an officer of the rank of Major, by the General Court Martial. The charge of making a bogus claim of Rs.16,589/- for shifting his baggage and car to Chandigarh involves moral turpitude and in terms of gravity is far more serious than the charges in the three decisions of the Supreme Court, referred to above.

In this connection it would also be pertinent to refer to rule 64 of the Army Rules which provides that general character and past convictions of the accused would also be relevant for determining the quantum of punishment.

In the instant case when the said considerations coupled with the gravity of the offence committed by the petitioner are borne in mind, the sentence awarded to the petitioner cannot be stigmatized as excessive. In this connection, it would be necessary to peruse para 7 of the revision order passed by GOC M & G Area (the confirming authority) which shows that as per schedule of IAFD-905 (Exh "FFFF"), the petitioner had wrongfully informed the CO that he had only one previous conviction and award of reprimand. On the converse, the truth was that he was summarily tried twice for three offences and awarded "Reprimand" and "Severe Reprimand".

18. We wish to emphasise that integrity, truthfulness and clean antecedents are the foremost requirements in defence services and in a case where we find that an officer of the rank of Major who is expected to set the tone and example for his subordinates is lacking in them and not only makes a bogus claim in respect of shifting his baggage and car but lies with impunity in connection with his previous convictions and the nature of punishment we cannot show any leniency to such an officer. A deterrent sentence should be awarded to such an officer so that others are deterred from committing such offences.

In this connection, it would be appropriate to refer to para 23 of the decision of the Supreme Court, rendered in the case of Union of India and ors Vs. Major A. Hussain (IC-14827) reported in (1998) 1 Supreme Court Cases 537 wherein the Supreme Court has observed:-

"................ ..... The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court- martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment".

19. For the said reasons we feel that the petitioner's sentence was commensurate with the gravity of the offence committed by him and warrants no interference.

20. In the result, this petition is dismissed. Rule is discharged. We would be failing in our fairness if we do not mention that with great tenacity and thoroughness this case was argued by the learned counsel of the parties and Lt.Deepa Kuruvilla rendered commendable assistance to us. In case a certified copy of this judgment is applied for by the counsel for the parties, the same shall be issued on an expedited basis.

Petition dismissed.