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Ram Narayan Tiwari v. Union Of India And Ors. - SPECIAL APPEAL No. 569 of 2000 [2007] RD-AH 6361 (6 April 2007)


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Special Appeal NO.569  OF 2000


Ram Narayan Tiwari              


     The Union of India & Ors

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Ran Vijai Singh, J.

(By the Court)

This Special Appeal has been preferred against the impugned judgment and order of the learned Single Judge dated 26/7/2000 by which the writ petition filed by the petitioner-appellant against the order of his dismissal from service has been dismissed.

Facts and circumstances giving rise to this case are that the  petitioner - appellant while serving as Corporal (Indian Air Force-Police Wing) was served  charge-sheet dated 20/3/1980 containing three charges namely;

1.Committed carnal intercourse against the order of               nature with Sanjay Kumar minor on 15/3/1980;

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

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

    After considering the matter, another amended charge-sheet dated 15/7/1980 was served upon him, wherein two charges i.e. Consuming Ganja while on duty and remaining absent from duty were dropped. First charge remained intact and another charge was added, i.e. "he placed his penis in the region of the exposed buttocks of Master Sanjay Kumar aged about 9 years." Petitioner was put to District Court Martial. The District Court Martial proceedings stood concluded, wherein the charge no.1 was not proved, but the charge no.2 stood proved. Punishment of three months detention and reduction in rank was also given. The aforesaid findings as well as the punishment were subject to confirmation by the Confirming Authority. The said Authority confirmed the said findings but commuted the punishment of detention for three months to dismissal from service vide order dated 07/8/1980.

       Being aggrieved, the petitioner-appellant filed Writ Petition No. 8521 of 1980 before this Court challenging the order dated 07/8/1980. The said writ petition was dismissed vide judgment and order  dated 21/2/1985. While deciding the said writ petition, this Court held that there was no statutory requirement  for recording the reasons by the Confirming Authority, and no reasons were required to be recorded while disposing of the representation under Section 161 (2) of the Air Force Act 1950 (hereinafter called the Act). The said judgment and order 21/2/1985 was challenged before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court while deciding the Criminal Appeal No. 421 of 1989 vide order dated 10/7/1989, remanded the case to the Confirming Authority to decide a fresh. The entire judgment and order dated 10/7/1989 reads as under:

   "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.

The appeal is disposed of accordingly."

      In view of the judgment of the Hon'ble Supreme Court, the matter was reconsidered by the Confirming Authority and the revised confirmation order was passed on 22/10/1989 by which the finding as well as the sentence  awarded by the District Court Martial was confirmed, but the Confirming Authority commuted the punishment of detention for three months to dismissal from service. The said order was challenged by the petitioner-appellant by filing Writ Petition No. 2341 of 1990 which was dismissed by the learned Single Judge vide judgment and order dated 26/7/2000. Hence this Special Appeal.

  Shri H.S. Kulshreshtha, learned counsel appearing for the appellant has submitted that he is not aggrieved of the findings recorded by the District Court Martial or by the Confirming Authority at all nor he is willing to challenge the said findings. The sole contention raised by him is that in exercise of power under Section 157 of the Act, the Confirming Authority could mitigate, remit or commute the sentence, but could not enhance the   punishment. In nutshell the submission made by Shri Kulshrestha is that the dismissal from service as had serious civil consequences as the appellant lost the service and the retiral benefits, the punishment of dismissal from service is more severe than serving three months detention. Therefore, the order passed by the Confirming Authority altering the punishment given by the District Court Martial was not permissible. In support of his submissions Shri Kulshreshtha has placed a very heavy reliance upon the judgment of the learned Single Judge of the Punjab and Haryana High Court in Ex-LAC Ind Raj Vs. Union of India & Ors., 1991 (5) SLR 201 wherein the Court   made the following observation:

"In the written statement it has been averred that the punishment of dismissal from service appears to be lesser than that of detention and is consequently lower in scale. A perusal of Section 73  no doubt shows that the imprisonment can be  for a term not exceeding 14 years and detention for term not exceeding 2 years in the case of airmen. In other cases, even detention can be for a higher term. In that context, it may be possible to hold that imprisonment or detention when awarded for a longer term, dismissal may be a lesser punishment. However, in the context of the facts of the present case, it appears difficult to hold that the punishment of dismissal was lower than that of reduction in rank and detention for 3 months. In a poor country where it is difficult to get a job, the need for two square meals a day is the primary concern of every citizen. Dismissal would not only deprive the petitioner of the job but also of all retirement benefits. He thus appears to be right in his contention that the punishment awarded by the Confirming Authority is severe than that awarded by the General Court Martial .

  Section 157 of the Air Force Act does not authorise the Confirming Authority to award punishment higher than that awarded by the General Court Martial. The action of the respondents in the present case was certainly beyond the provisions of Section 157."

     In view of the above, it has been submitted by Shri Kulshreshtha, learned counsel for the appellant that the appeal deserves to be allowed and the appellant is entitled for the reliefs sought by him.

    On the contrary Shri Rai, learned Standing Counsel for the respondents has vehemently submitted that the said judgment of the Punjab and Haryana High Court has not been decided in correct perspective. The appeal is liable to be dismissed.

    Section 73 of the Act reads as under:

73. Punishments awardable by courts-martial.- Punishments may be inflicted in respect of offences 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 airman;

(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.

(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 officers 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."

      It is, thus evident that Section 73 of the Act provides for scale of punishment, according to which severe most punishment of death has been put on the top, then comes imprisonment; detention, cashiering, dismissal from service and then other lesser punishments. Therefore, the submissions made by the Shri Kulshrestha are not worth acceptance.  

     As the aforesaid provision provides for a scale according to the severity of the punishments and detention has been placed higher than dismissal from service, 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 severe punishment. This view stands fortified by the judgment of the Hon'ble Supreme Court in Union of India & Ors. Vs. R.K. Sharma., AIR 2001 SC 3053, wherein the Court has held that taking a lenient view  punishment of dismissal from service has been imposed, otherwise the General Court Martial could have imposed a punishment of imprisonment. The Court held as under:

     "These are very serious offences. These are offences for which the General Court Martial would have been justified in awarding imprisonment. The General Court Martial took a lenient view by merely dismissing him from service. There was just no justification for interference by the High Court."

         In view of the above, we are of the considered opinion that passing the order of dismissal from service after commuting the punishment of 3 months detention tantamounts to imposing a lesser punishment. More so, dismissal cannot be held to be a punishment of severe magnitude than detention. Considering the scale of punishment under Section 73 of the Act  the submissions made by Shri Kulshrestha are preprosterous.

       Imprisonment is always treated to be severe than any punishment  having only civil consequences. The Court is bound to decide the case as per the statutory requirement, determining the legislative intent. More so, dismissal from service cannot be held to be disproportionate to the gravity of proved misconduct, particularly in a case where finding on the said charge No. 2 is not challenged, rather accepted by the learned counsel for the appellant-petitioner. No other point has been canvassed before us.

       The Special Appeal is misconceived and is accordingly dismissed.  




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