1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1978  OF 2011 [Arising out of SLP (C) No. 15218 of 2007]

lRam Narayan Tiwari      …. Appellant

Versus

Union  of  India  &  Ors.

  ….  

Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

l1.Leave granted.

2 l2. 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.

l3. 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  chargesheet  dated  

20.03.1980  containing  three  charges  which  were  in  the  

following manner: -

3 l1.Committed  carnal  intercourse  against  the  

order of nature with Sanjay Kumar minor on  15.03.1980;

l2.Consumed  ‘Ganja’  while  on  duty  on  the  same date; and

l3.Left his place of duty for half an hour and  the room remained unattended.

l4.  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

4 Kumar aged about 9 years”.  

l5. 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

5 commuted the punishment of detention for three months to  

dismissal from service vide order dated 07.08.1980.  

l6. 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: -

6 “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.”

l7. 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

7 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.  

l8. 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

8 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 l9. In support of the said contention reference was made and  

reliance was placed on Section 73 of the Act which reads as  

follows: -

“73.  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;

10 (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;

(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;

11 (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.”

l10.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

12 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.

l11. 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.

13 l12.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.

l13.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,

14 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.

l14. 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

15 India  and others  v.  R.K.  Sharma reported  in  (2001) 9  

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.  

l15. 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

16 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.

17 l16. 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.  

l17. The scale of punishment provided in Section 73 of the

18 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.  

l18.  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,

19 but without costs.

   ............................................J

     [Dr. Mukundakam Sharma ]

.... .................. ..................

....J

     [ Anil R. Dave ]

New Delhi, February 21, 2011.