Ram Narayan Tiwari Vs
Union of India & Ors.
JUDGMENT
Dr. MUKUNDAKAM
SHARMA, J.
1.
Leave
granted.
2.
The
present appeal is directed against the judgment and order dated 06.04.2007 passed
by the Division Bench of the Allahabad High Court dismissing the appeal filed by
the appellant herein and confirming the judgment and order passed by the learned
single Judge in the Writ Petitioner No. 2341 of 1990.
3.
In
order to appreciate the contentions raised before us it will be necessary to
set out the brief facts of the case. The appellant while serving as Corporal in
the Indian Air Force - Police Wing was served with a charge sheet dated 20.03.1980
containing three charges which were in the following manner: -
a. Committed carnal intercourse
against the order of nature with Sanjay Kumar minor on 15.03.1980;
b. Consumed `Ganja' while
on duty on the same date; and
c. Left his place of duty
for half an hour and the room remained unattended.
4.
However,
subsequently, another amended chargesheet was served upon him wherein the charges,
namely, "consuming Ganja while on duty" and "remaining absent from
duty" were dropped. The first charge of the first chargesheet was retained
and another charge to the effect as shown was included therein, namely, "he
placed his penis in the region of the exposed buttock of master Sanjay Kumar
aged about 9 years".
5.
Thereafter
the appellant was tried in the District Court Martial. Witnesses were examined and
after conclusion of the trial, the District Court Martial found charge No. 1 as
not proved but held that the charge No. 2 stood proved. Consequent to the findings
so recorded, punishment of three months detention and reduction in rank was
awarded to the appellant. As per the provisions of the Air Force Act, 1950 the
aforesaid findings as well as the punishment were subject to confirmation by the
Confirming Authority, consequently, the records were placed before the Confirming
Authority which confirmed the said findings but commuted the punishment of
detention for three months to dismissal from service vide order dated
07.08.1980.
6.
Being
aggrieved by the aforesaid order, the appellant filed Writ Petition No. 8251 of
1980 before the Allahabad High Court challenging the order dated 07.08.1980. The
said Writ Petition was dismissed by the High Court vide judgment and order dated
21.02.1985. However, the said judgment and order was challenged before this
Court which was registered as Criminal Appeal No. 421 of 1989. This Court by its
order dated 10.07.1989 remanded the case back to the Confirming Authority with the
following observations: -
"In view of the
facts and the circumstances of the case, the order dated the 7th August, 1980 confirming
the findings and sentence by the Court Martial is set aside. The matter should
go back to the Confirming Authority for reconsideration and confirmation, in
accordance with the law."
7.
In
view of the aforesaid findings and directions recorded by this Court the matter
was once again placed before the Confirming Authority which reconsidered the
matter. Upon such reconsideration a revised confirmation order was passed by the
Confirming Authority on 30.10.1989 by which the finding as well as the sentence
awarded by the District Court Martial was confirmed. However, the Confirming Authority
commuted the punishment of the detention for three months to dismissal from service.
The said order was challenged by the appellant by filing Writ Petition No. 2341
of 1990 before the learned single Judge, Allahabad High Court which was
dismissed by order dated 26.07.2000.
8.
Being
aggrieved by the aforesaid judgment and order a special appeal was filed before
the Division Bench of the Allahabad High Court which was registered as Special Appeal
No. 569 of 2000. Before the Division Bench the counsel appearing for the appellant
contended that the appellant is not aggrieved by the findings recorded by the District
Court Martial or by the Confirming Authority at all and the sole contention that
was raised by the counsel, apparently on instructions from the appellant, was
that in exercise of powers under Section 157 of the Air Force Act [for short "the
Act"], the Confirming Authority could mitigate, remit or commute the sentence
but could not enhance the punishment. Therefore, in a nutshell what was
submitted was that the punishment of dismissal from the service was more severe
and harsher than serving three months' detention and, therefore, the order passed
by the Confirming Authority altering the punishment given by the District Court
Martial was not permissible.
9.
In
support of the said contention reference was made and reliance was placed on
Section 73 of the Act which reads as follows: -
"Punishments awardable
by courts-martial - Punishments may be inflicted in respect of offence committed
by persons subject to this Act and convicted by courts-martial according to the
scale following, that is to say -
a. death;
b. transportation for life
or for any period not less than seven years, in respect of civil offences;
c. imprisonment, either rigorous
or simple, for any period not exceeding fourteen years;
d. detention for a term not
exceeding two years in the case of airmen;
e. cashiering, in the
case of officers;
f. dismissal from
service;
g. reduction to the ranks
or to a lower rank or classification, in the case of warrant officers and
non-commissioned officers;
Provided that a warrant
officer reduced to the ranks shall not be required to serve in the ranks as an airman;
a.
b.
c.
d.
e.
f.
g.
h. forfeiture of seniority
of rank, in the case of officers, warrant officers and non-commissioned officers,
and forfeiture of all or any part of their service for the purpose of promotion,
in the case of any of them whose promotion depends upon length of service
i. forfeiture of service
for the purpose of increased pay, pension or any other prescribed purpose;
j. severe reprimand or reprimand,
in the case of officers, warrant officer and non-commissioned officers;
k. forfeiture of pay and
allowances for a period not exceeding three months for an offence committed on active
service;
l. forfeiture in the case
of a person sentenced to cashiering or dismissal from the service, of all arrears
of pay and allowances and other public money due to him at the time of such
cashiering or dismissal;
m. stoppage of pay and
allowances until any proved loss or damage occasioned by the offence of which
he is convicted is made good."
10.
The
Division Bench of the High Court, however, held that the aforesaid provision of
the Act provides for a scale according to the severity of the punishment and that
detention has been placed higher than the dismissal from service in the said
scale and, therefore, it is difficult to hold that by commuting the punishment of
three months detention and imposing the punishment of dismissal, the Confirming
Authority has imposed a harsher punishment. Having held thus, the appeal filed by
the appellant was dismissed. No other issue was either raised or discussed by the
Division Bench of the High Court and, therefore, the present appeal is also restricted
and confined only to the aforesaid issue.
11.
Counsel
appearing for the appellant placed reliance on Section 73 of the Act and submitted
that the order of dismissal is a more severe punishment than the order of reduction
in rank and short-term confinement. Counsel also submitted that awarding two sentences
in respect of one offence is manifestly illegal.
12.
Counsel
appearing for the respondent, however, refuted the aforesaid submission and submitted
that detention under the aforesaid Section 73 of the Act is considered to be a harsher
punishment than the dismissal from service and, therefore, the order of punishment
awarded against the appellant is legal and valid.
13.
We
considered the aforesaid submission in the light of the records of the case. Section
73 of the Act provides for scale of punishment. According to the said scale,
the most severe punishment under the said provision is considered to be the
punishment of death and, therefore, the same has been put on the top followed by
imprisonment, detention, cashiering, dismissal from service and then other lesser
punishments. The Confirming Authority has commuted the punishment of three months
detention and imposed the punishment of dismissal and, since, the punishment itself
is of dismissal from service there is no question of his reduction to the ranks
at all. Therefore, it cannot be said that, in fact, two punishments have been awarded
to the appellant for one single offence.
14.
With
regard to the issue of awarding of punishment by the Confirming Authority, almost
a similar issue came up for consideration before this Court in the case of Union
of India and others v. R.K. Sharma reported in (2001) SCC 592 which was a case
relating to the provisions of the Army Act, 1950, viz., Sections 71 & 72, which
are practically pari materia with the Air Force Act.
15.
We
have considered the said decision in the light of said sections of the Army Act.
On going through the said decision we find that Section 71 of the Army Act, 1950
is pari materia with Section 73 of the Air Force Act, 1950. In the said decision
this Court held that Section 72 of the Army Act merely provides that the Court Martial
may, on convicting a person, award either the punishment which is provided for the
offence or any of the lesser punishments set out in the scale in Section 71. It
was also held that Section 71 does not set out that in all the cases a lesser
punishment must be awarded and, therefore, merely because a lesser punishment is
not granted it would not mean that the punishment was violative of Section 72 of
the Act. It was further held that dismissal from service provided in item (e)
of Section 71 of the Army Act, 1950 as one of the punishments according to scale
is a lesser punishment than imprisonment as contemplated under Section 57 and 63
of the Army Act. In our considered opinion the ratio of the aforesaid decision
squarely applies to the facts of the present case.
16.
Counsel
appearing for the appellant also submitted that the punishment awarded to the appellant
was too severe and harsh considering the nature and the degree of the offences established.
The appellant belongs to Air Force, which is a disciplined service. The
allegations made against the appellant were serious. The charge number (2)
against him stood proved. The said charge is also serious and we are of the considered
opinion that for an offence of the aforesaid nature the authority was justified
in awarding him the punishment of dismissal from service.
17.
The
scale of punishment provided in Section 73 of the Act clearly confirms the
position that dismissal from service is a lesser punishment than that of
detention in prison. By commuting the punishment of three months detention and imposing
the punishment of dismissal, the Confirming Authority has strictly followed the
scale of punishment provided for in Section 73 of the Act and, therefore, there
is no justification for any interference with the nature of punishment awarded
to the appellant.
18.
We,
therefore, hold that there was no violation of the provisions of Section 73 of the
Air Force Act, 1950. The appeal, therefore, has not merit and is dismissed
accordingly, but without costs.
............................................J
[Dr. Mukundakam Sharma ]
…………………………………..J
[ Anil R. Dave ]
New
Delhi,
February
21, 2011.
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