Ram Narayan Tiwari vs Union Of India & Ors

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

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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

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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

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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;

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(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

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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

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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.