RAM NARAYAN TIWARI Vs UNION OF INDIA .
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE, , ,
Case number: C.A. No.-001978-001978 / 2011
Diary number: 18469 / 2007
Advocates: Vs
D. S. MAHRA
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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.