DAMODARAN Vs. UNION OF INDIA

JUDGEMENT

(1.) WHEN C. M. P. No. 29554 of 1995 came up for orders learned counsel appearing on either side wanted the Civil Miscellaneous Petition and the Original Petition to be heard and finally disposed of. Accordingly, I heard learned counsel at length. . I am disposing of both the Civil Miscellaneous petition and the original petition.

(2.) O. P. No. 6902 of 1988 was filed through counsel who later became a judge of this court. Thereupon he entrusted the case with his junior. The junior counsel met with fatal accident in June, 1991. Thereafter the petitioner was not represented by any counsel. While so, the case came up for final hearing before a learned single judge on 1. 7. 1991. On the ground of non-appearance of the petitioner and counsel Learned judge dismissed the original petition. Petitioner was not aware of the dismissal at that time. After a lapse of more than four years, he made enquiries about the original petition and then alone he came to know of the dismissal of the original petition on 1. 7. 1991. Immediately he filed C. M. P. No. 29554 of 1995 praying for condonation of the delay in filing the application for restoration, vis, C. M. P. No. 29555 of 1995. No counter affidavit has been filed by the respondents objecting the prayers in these petitions. Therefore, I condone the delay in filing the restoration application and original petition is restored to file. I am dispose of the original petition on merits.

(3.) SECTION 71 of the Army Act deals with various punishments that may be inflicted on officers by court martial. Among other punishments it allows punishment of imprisonment, either rigorous or simple, for any period not exceeding fourteen years. This punishment can be imposed as per SECTION 71 (c ). Cl. (d) of that section contemplates punishment of cashiering in the case of officers and Cl. (e) contemplates punishment of dismissal from service, in the case of other personnel. Thus SECTION 71 (c) and (d) allows the imposition of punishment of imprisonment for a period not exceeding fourteen years and dismissal from service. Now the question that arises for consideration is whether a military personnel on whom imprisonment as contemplated by SECTION 71 (c) is imposed can also be dismissed from service as per Cl (e) of that section. In order to understand this aspect of the matter one has to refer to SECTION 73. SECTION 73 is dealing with combination of punishments. It states: A sentence of a court-martial may award in addition to or without any one other punishment, the punishment specified in Cl. (d) or Cl. (e)of Sec. 71 and any one or more of the punishment specified in Cl. (f) to (I) of that section. " According to the learned counsel as per Sec. 73 of the army Act if the punishment imposed by court-martial happens to be under clauses (d)or (e) of-Sec. 71, then and then alone can the delinquent be awarded punishments specified in clauses (f) to (1) of that SECTION. If the punishment awarded by court-martial happens to be under clause (e) of Sec. 71, it is argued that no other punishment under any other clause of Sec. 71 can be imposed. If read in this manner one or more punishments specified in Cls. (f) to (1) of Sec. 71 can be added only if the punishment imposed is under Cl. (d) or Cl (e) of Sec. 71. In other words, when a sentence under Cl. (c) is imposed, punishment specified in cl. (d) or Cl. (e) of Sec. 71 cannot be imposed on the deliquent officer. I do not find my way to accept this contention. Punishment under Cl. (d) is cashiering. Cashiering as per Chambers 20th Century Dictionary means 'a punishment for army and naval officers, severer than dismissal. Clause (e) of SECTION 71 contemplates dismissal from the service. When an officer or a military personnel is imposed the punishment of cashiering or dismissal he is removed from service. When he is so removed from service there is no possibility of any punishment mentioned in Cls. (f) to (1) being imposed on him. Clauses (f) to (1) contemplates reduction to the lower rank, forfeiture of seniority of rank, forfeiture of service for the purpose of increased pay, severe reprimand or reprimand, forfeiture of pay and allowances, forfeiture of all arrears of pay and allowances and stoppage of pay and allowances. A person who has been dismissed from service cannot be further imposed with such a punishment. Therefore, provisions of SECTION 73 cannot be taken to mean that an officer or a military personnel who has been dismissed from service can be subjected to the above mentioned punishments as well. In this view of the matter SECTION 73 cannot be read in the manner suggested by the learned counsel. The only reasonable interpretation that can be put to SECTION 73 is that court-martial may award any sentence in addition to the punishments specified in Cl. (d) or Cl. (e)of SECTION 71 and any one of the other punishments including punishments mentioned in Cls. (f) to (1) of that SECTION. According to me, when an officer or a military personnel is sentenced to undergo imprisonment by a court martial, that officer or the military personnel can be imposed the punishment of cashiering or dismissal along with any other punishment mentioned in SECTION 71. It therefore follows that in the instant case the punishment of imprisonment for unauthorized absence imposed by court-martial can be imposed along with the punishment of dismissal from service. Therefore, I do not find any ground to interfere with the punishment imposed on the petitioner.