RAM NARAYAN TIWARIversusUNION OF INDIA & ORS

                       [2011] 2 S.C.R. 1104


A                     RAM NARAYAN TIWARI
                                 v.
                    UNION OF INDIA & ORS.
                 (Civil Appeal No. 1978 of 2011)
                       FEBRUARY 21, 201.1
B
              [DR. MUKUNDAKAM SHARMA AND
                     ANIL R. DAVE, JJ.]

        AIR FORCE ACT, 1950:
c
        s. 73 - Punishments awardable by Court-Martial -
  Corporal in Air Force - Charged with sexual abuse against a
  boy of 9 years - Punishment of reduction in rank and
  confinement awarded by District Court-Martial commuted by
0 Confirming Authority to dismissal from service - Held: The
  scale of punishment provided in s.3 clearly confirms the
  position that dismissal from service is a lesser punishment
  than that of detention - Since punishment is itself of dismissal
  from service, there is no question of reduction in rank at all,
  therefore, it cannot be said that tWo punishments have been
E awarded - Besides, the charge leveled against the delinquent
  was serious and was proved justifying punishment of
  dismissal.

      The appellant, a Corporal in Indian Air Force, was
F awarded by the District Court Martial the punishment of
  detention for three months and reduction in rank, for
  committing sexual abuse against a boy of nine years. The
  Confirming Authority confirmed the findings of the District
  Court Martial, but commuted the punishment of detention
G for three months to dismissal from service. The High
  Court declined to interfere.

        It was contended for the appellant that keeping In
    view s.73 of the Air Force Act, 1950, dismissal from
H                               1104
 RAM NARAYAN TIWARI v. UNION OF INDIA & ORS. 1105


service was a more severe punishment than order of            A
reduction in rank and the short term confinement; and
that awarding two punishments in respect of one offence
was illegal.

    Dismissing the appeal, the Court                          B
    HELO: .1.1. Section 73 of the Air Force Act, 1950
provides for'scale of punishment, according to which, the
most severe;. punishment under the said provision is
considered tobe the punishment of death and, therefore,
the same has been put on the top followed by                  C
imprisonment, detention, cashiering, dismissal from
service and then other lesser punishments. The scale of
punishment provided in s.73 of the Act clearly confirms
the position that dismissal from service is a lesser
punishment than that of detention in prison. By               D
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 s.73 of the Act. Since, the
punishment it$elf is of dismissal from service, there is no   E
question of reduction of rank at all. Therefore, it cannot
be said that two punishments have been awarded to the
appellant for one single offence. [Para 13, 17) [1111·B·C·
D; 1112-E·F]

   Union of India and Ors. Vs. R.K. Sharma 2001 (3) Suppl.    F
          =
SCR 664 (2001) 9 sec 592 - relied on.

     2. The appellant belongs to Air Force, which is a
disciplined service. The allegations made against the·
appellant were serious. The charge number (2) against G
him stood proved. The said charge is also serious and
for an offence of the said nature the authority was
justified in awarding him the punishment of dismissal
from service. There is no justification for any interference
with the nature of punishment awarded to the appellant. H
     1106        SUPREME COURT REPORTS             (2011] 2 S.C.R.


A    There was no violation of the provisions of s.73 of the Act.
     [Para 16, 17, 18] [1112-C-D-F-G]

                            Case Law Reference:
         2001 (3) Suppl. SCR 664 Relied on                Para 14
B
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     1978 of 2011.

         From the Judgment & Order dated 06.04.2007 of the High
     Court of Judicature at Allahabad in Special Appeal No. 569 of
c    2000.

         Manoj Prasad for the Appellant.

       P.P. Tripathi, ASG, Shadan Farasat, R. Balasubramanian,
 D D.S. Mahra for the Respondents.

         The Judgment of the Court was delivered by

         DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.

 E      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
 F 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 chargesheet dated 20.03.1980
- G containing three charges which were in the following manner: -

            1.     Committed carnal intercourse against the order of
                   nature with Sanjay Kumar minor on 15.03.1980;

 H
 RAM NARAYAN TIWARI v. UNION OF INDIA & ORS. 1107
       [DR. MUKUNDAKAM SHARMA, J.]

      2.    Consumed 'Ganja' while on duty on the same date;         A
            and

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

     4. However, subsequently, another amended chargesheet           B
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            C
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   D
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           E
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       F
filed WritPetition 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             G
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    H
    1108    SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A       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."
B
       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
C 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,
D 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
E 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
F 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 Actj, the Confirming Authority
  could mitigate, remit or commute the sentence but could not
  enhance the punishment. Therefore, in a nutshell what was
G 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.
H       9. In support of the said contention reference was made
 RAM NARAYAN TIWARI v. UNION OF INDIA & ORS. 1109
       [DR. MUKUNDAKAM SHARMA, J.]
and reliance was placed on Section 73 of the Act which reads         A
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
                                                                     8
    courts-martial according to the scale following, that is to
    say-

    (a) death;

    (b) transportation for life or for any period not less than      c
    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     D
    of airmen;

    (e) cashiering, in the case of officers;

    (f) dismissal from service;
                                                                     E
    (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      F
           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   G
    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;                         H
    1110    SUPREME COURT REPORTS                   [2011) 2 S.C.R.


A       0) 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;
B
        (I) 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;
c
        (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
D 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
E 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
F 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
G 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
 RAM NARAYAN TIWARI v. UNION OF INDIA & ORS. 1111
       [DR. MUKUNDAKAM SHARMA, J.]

under the aforesaid Section 73 of the Act is considered to be       A
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
                                                                    B
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       c
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    D
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       E
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.

     15. We have considered the said decision in the light of       F
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,        G
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      l;l
       1112     SUPREME COURT REPORTS                  [2011] 2 S.C.R.

    A 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
    s 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
    C 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
    D 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
    E 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
    F 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,
    G but without costs.

        R.P.                                        Appeal dismissed.