B.S.Chauhan, Ran Vijai Singh - (1.) -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.
(2.) 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 7.8.1980. Being aggrieved, the petitioner-appellant filed Writ Petition No. 8521 of 1980 before this Court challenging the order dated 7.8.1980. 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 dated 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."
(3.) 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-L.A.C. Ind Raj v. Union of India and others, 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." ;