IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.927 of 2010 Against the order dated 17.3.2010 passed by the learned Single Judge of this Court in Civil Review No.12 of 2009. ........ 1. The Union of India through the Secretary, Ministry of Defence, Govt.of India, New Delhi 2. The General Officer Commanding in Chief, Centre Command, Lucknow, Uttar Pradesh 3. The Brigadier, R.P. Nantiyal, Commandant, The Bihar Regiment Centre, Danapore 801503 4. Sri R.N. Srivastva, the Colonet, Training Battalion, Commander, Bihar Regiment Centre, Danapore Cantt, 801503 5. The Members of Summary Court Martial, The Bihar Regiment Centre, Danapore Cantt, District Patna …….Appellants Versus Sri Suni Lal Besara No.4256609(M), Havildar (Clerk), S/o Late Lakhiram Besara, resident of Village Karma, Tond, P.O. Gogisinal, via Kurwa, P.S. Dumka, District Santhal Pargana, Dumka, Pin Code No.814101, at present resident of Raja Bazar, Police Station Shastri Nagar, District-Patna ………Respondent With LPA No.327 of 2011 Against the order dated 25.09.2008 passed by the learned Single Judge of this Court in C.W.J.C.No.10111 of 2006. 1. The Union of India through the Secretary, Ministry of Defence, Govt.of India, New Delhi 2. The General Officer Commanding in Chief, Centre Command, Lucknow, Uttar Pradesh 3. The Brigadier, R.P. Nantiyal, Commandant, The Bihar Regiment Centre, Danapore 801503 4. Sri R.N. Srivastva, the Colonet, Training Battalion, Commander, Bihar Regiment Centre, Danapore Cantt, 801503 5. The Members of Summary Court Martial, The Bihar Regiment Centre, Danapore Cantt, District Patna …….Appellants Versus Sri Suni Lal Besara No.4256609(M), Havildar (Clerk), S/o Late Lakhiram Besara, resident of Village Karma, Tond, P.O. Gogisinal, 2 via Kurwa, P.S. Dumka, District Santhal Pargana, Dumka, Pin Code No.814101, at present resident of Raja Bazar, Police Station Shastri Nagar, District-Patna ………Respondent For the Appellants : Mr. Binay Kumar Pandey, Advocate (CGC) For the Respondent: Mr. Devendra Kumar Sinha, Sr. Advocate Mr. Fulman Singh, Advocate ----------- P r e s e n t THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE SAMARENDRA PRATAP SINGH SK Katriar,J The Union of India has preferred the two appeals under Clause 10 of the Letters Patent of the High Court of Judicature at Patna. L.P.A. No.327 of 2011, raises a grievance with respect to the order dated 25.9.2008, passed by a learned Single Judge of this Court in C.W.J.C.No.10111 of 2006 (Sri Suni Lal Besra Vs The Union of India & Ors), whereby the writ petition has been allowed, and the order of punishment against the writ petitioner has been set aside. In L.P.A. No.927 of 2010, the Union of India has raised grievance with respect to the order dated 17.3.2010, passed by the learned Single Judge in Civil Review No.12 of 2009 (Union of India Vs Sunil Lal Besara), whereby he has declined to review the said order on the writ petition. 2. A brief statement of facts essential for disposal of the 3 appeals may be indicated. We shall go by the description of the parties occurring in L.P.A. No.327 of 2011, and shall draw the basic facts therefrom. The respondent was appointed in the Indian Defence Service as a Sepoy on 16.12.1977. He was promoted to next higher rank of Lance Naik on 1.4.1982, to the rank of Naik on 1.4.1983, and finally to that of Havildar on 28.7.1984. The authorities of the Bihar Regimental Centre, Danapur, received a complaint from one Ram Babu Singh that the respondent had demanded a sum of Rs.25,000/- from him by way of illegal gratification to secure him recruitment in the defence service. This led to initiation of Court Martial proceeding against the respondent under the Army Act, 1950 (hereinafter referred to as „the Act‟). Charge sheet dated 9.1.1998 was served on him. Court Martial proceeding was carried to its logical conclusion. By order dated 22.1.1998, passed by the Headquarters, the following punishment was inflicted on the respondent: “2. You have been awarded the sentence by the Summary Court Martial:- (a) to be dismissed from the service. (b) to suffer rigorous imprisonment for one year (and I direct the sentence of rigorous imprisonment shall be carried out by confinement in civil prison). The accused is recommended for Division C ( or III) while undergoing sentence in the civil prison. 3. You may submit a petition against this award to any of the authorities Specified in paragraph 1 above. In case you 4 wish to address to the General Officer Commanding in Chief, Central Command or any authority superior to him, your petition if any may be forwarded to the following address:-“ 3. In view of the provisions of Section 162 of the Act, the order dated 22.1.1998 was forwarded for confirmation. The Competent authority, being the Major General at Jabalpur, substituted the punishment as follows: “2. The GOC MP B&O Area has remitted the sentence as under:- (a) to be reduced to the ranks. (b) to suffer rigorous imprisonment for six months (and I direct that the sentence of rigorous imprisonment should be carried out by confinement in civil prison). The accused is recommended for Division C (or III) while under going the sentence in the civil prison. (c) to be dismissed from the service.” 4. The respondent challenged the same by preferring C.W.J.C.No.4964 of 1998, which was disposed of by a learned Single Judge of this court by order dated 19.4.1999, whereby the competent authority was directed to dispose of the revision application preferred by the respondent. The competent authority, being the Lieutenant General, the General Officer Commanding-in-Chief, rejected the revision application by order dated 7.10.1999. The relevant portion of the order is reproduced herein below: “4. It is evident from the documents on record and 5 para wise comments of the officer holding the trial that the Summary Court Martial proceedings were conducted in compliance of all provisions relevant thereto. The petitioner was assisted by an officer as Friend of the Accused and also afforded full opportunity to cross examine the witnesses during the trial. Individual has been a habitual offender and earlier been severely reprimanded in the year 1991 under Army Act Section 63 and then again in the year 1993 under Army Act Section 39(b). Having regard to the nature and gravity of the offence committed by the petitioner coupled with his past unsatisfactory service record, his dismissal from service, six months rigorous imprisonment and reduction to ranks as a consequence to his Summary Court Martial under Army Act Section 53(b) was just, legal and in the interest of maintenance of discipline in the Army. The averments of the individual are not supported by evidence on record and are, therefore, bereft of merit”. 5. The respondent challenged the Court Martial proceeding by preferring the aforesaid C.W.J.C.No.10111 of 2006, which has been allowed by the learned Single Judge and has set aside the aforesaid order dated 23.4.1998, passed by the Major General on the sole ground that the punishment of “to be reduced to ranks”, and “to be dismissed from service”, are mutually contradictory and cannot stand by side. He has, therefore, set aside the order of punishment and directed for his re-instatement in service with consequential orders. 6. Aggrieved by the order dated 25.9.2008, the Union of India preferred the aforesaid Civil Review No.12 of 2009, seeking review of the order on the writ petition which has been 6 rejected by the aforesaid order dated 17.3.2010, giving rise to L.P.A. No.927 of 2010. Learned counsel for the appellant presses I.A. No.5221 of 2010, seeking condonation of the delay in filing L.P.A.No. 927 of 2010. It is stated therein that there has been delay of 25 days in filing this appeal. In the facts and circumstances of the case, the delay in filing L.P.A.No.927 of 2010 is hereby condoned. I.A. No.5221 of 2010 is accordingly disposed of. 7. This was followed by L.P.A. No.327 of 2011, challenging the aforesaid order dated 25.9.2008, passed in C.W.J.C.No.10111 of 2006. Learned counsel for the appellant presses I.A. No.1397 of 2011, seeking condonation of the delay in filing L.P.A.No. 327 of 2011. It is stated therein that there has been delay of 2 years and 58 days in filing this appeal which has, inter alia, occurred because the appellant was bona fide pursuing the review application. In the facts and circumstances of the case, we are satisfied that case for condonation of the delay in filing L.P.A.No. 327 of 2011 is made out. The delay is condoned. I.A. No.1397 of 2011 is accordingly disposed of. 8. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to 7 us on a perusal of the order dated 25.9.2008, passed in C.W.J.C.No.10111 of 2006, that the learned Single Judge completely ignored the meaning and content of the expression “to be reduced to the ranks”, as prevalent in defence service. We have today the benefit of the assistance of Lt. Col. Yohannan K.M. who is present and has assisted us. The expression “Cashiering” applies to Commissioned Officers in defence service which means that, under appropriate circumstances, a Commissioned rank officer can be deprived of his rank in defence service which means that he loses the status and position as a Commissioned Officer, and is reduced to the position of a civilian. The corresponding expression, namely, “to be reduced to the ranks” applies to non-commissioned Officers. If a non-commissioned Officer is reduced to the ranks, it would mean that he has been deprived of his status and position as a member of defence service, and is reduced to the position of a civilian. The expression “to be reduced to the ranks”, is not equivalent to the expression “reduction in rank” occurring in Article 311 of the Constitution of India which means demotion to the next lower rank in the service. In case of the latter, the employee continues to be in service though on the next lower level, and the employer-employee relationship 8 subsists. On the other hand, in case of the former, the employer- employee relationship comes to an end. Once this difference is understood, which was not brought to the notice of the learned Single Judge, the issue becomes clear. 9. It appears to us from a perusal of the materials on record that the Court Martial had taken place in the presence of Colonel R.N. Shrivastava on 20.1.1998, and the respondent had pleaded guilty, as is evident from a photo copy of the original proceeding. The same further states that the implication of the alleged guilt was explained to him and which he had understood and put his signature at the bottom of the deposition. The Court Martial proceeding led to the aforesaid order dated 22.1.1998, whereby the punishment of dismissal from service and rigorous imprisonment of one year was inflicted on him. The same needed confirmation in terms of section 162 of the Act. The Major General added the punishment “to be reduced to the ranks”, which in fact was a natural corollary to, or essential implication of, the sentence of rigorous imprisonment and dismissal from service. In other words, addition of the expression “to be reduced to ranks”, is not an extra punishment but only statement of a natural implication of the orders of punishment of imprisonment and 9 dismissal from service. This order has been confirmed in full by the Lieutenant General. 10. We must at this stage notice the contention advanced by learned counsel for the respondent that Section 71 prescribes the list of punishments which can be inflicted on a Court Martialled person. Imprisonment, dismissal from service etc. are some of the punishments indicated therein. Learned counsel for the respondent places particular reliance on section 53 and submits that on a combined reading of section 71 and 73, the two punishments of imprisonment and dismissal from service cannot be inflicted simultaneously. We regret our inability to accede to the submission because it completely overlooks the provision of Section 53 of the Act which reads as follows: “53. Extortion and corruption- Any person subject to this Act who commits any of the following offences, that is to say- (a) commits extortion; or (b) without proper authority exacts from any person money, provisions or service, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned”. In our view, a member of defence service can be visited with one or more than one punishment in terms of section 71 read with section 73 of the Act. Section 53 of the Act in addition provides that in case of extortion and corruption, the 10 Patna High Court April 20th, 2011 KHAN/AFR further punishment of imprisonment can be inflicted. In other words, the combined effect of sections 71, 73 and 53 of the Act is that, in case a charge of extortion and/or corruption is proved against a member of defence service, the punishment of dismissal as well as imprisonment can be inflicted on him. 11. In the result, L.P.A. No.327 of 2011 is hereby allowed. We disagree with the order dated 25.9.2008, passed by the learned Single Judge in C.W.J.C.No.10111 of 2006. In that view of the matter, no separate order is needed in L.P.A. No.927 of 2010, which is rendered infructuous by our judgment in L.P.A. No.327 of 2011. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar,J) S.P.Singh,J I agree (S.P.Singh,J) 11