Nagendra Rai, J.
1. The present application has been filed for quashing the order dated 6-9-1983, contained in Annexure-8, passed by the Commanding Officer, 19-Vayu Raksha Regiment (respondent No. 5), by which he has sentenced the petitioner to suffer rigorous imprisonment for four months by confinement in a civil prison and dismissed him from the service in a summary Court Martial proceeding as well as the order dated 16th December, 1983 passed by the GOC-in-C, HQ. Northern Command, rejecting the petition filed by the petitioner against the aforesaid imposition of the penalty.
2. The petitioner was appointed as a Gunner (Clerk-General Duties) in the Air Defence Regiment in the Indian Army. He took annual leave for 60 days in the month of January-February, 1983, and came to his village home at Bankatti, district Madhubani, and over-stayed the leave upto first week of April, 1983. Thereafter, he joined his duty. The Commanding Officer on production of medical certificate regularised his leave exceeding 60 days according to the relevant rules of the Army. Again the petitioner came to his village home on 13 days casual leave from 5th June, 1983 and again over-stayed and joined his duty on 3rd July, 1983. This time the Commanding Officer did not regularise his leave, on the other hand, sentenced him to undergo for an imprisonment for 28 days, for committing the offence under Section 39 of the Army Act, which provides punishment for a person who over stays the leave granted to him without sufficient cause.
3. While the petitioner was undergoing an imprisonment in Military Custody the petitioner refused to obey the order of the Superior Officer. The allegation against the petitioner is that he refused to turn-out and carry out the prescribed duty of prisoner. Accordingly, summary Court-martial proceeding was initiated against the petitioner, charge-sheet dated 23-8-1983 (Annexure-3) was served upon the petitioner and summary of evidence was recorded in presence of the petitioner.
4. According to the petitioner, without following the procedure, as provided for conducting the summary trial proceeding, the impugned order was passed against him.
5. A counter-affidavit has been filed on behalf of the respondent Commanding Officer and Ors. wherein, it has been stated that while the petitioner was undergoing imprisonment in Military custody he refused to obey the order of the superior Officer. Thereafter, Court-Martial proceeding was initiated, charge-sheet dated 23-8-1993 was submitted and summary of evidence was recorded in presence of the petitioner. He was also given an opportunity to make statement in his defence but he did not make any statement. The summary court martial was conducted according to the rules framed under the Army Rules and thereafter be was found guilty and was awarded punishment.
6. This case was placed for hearing before a learned Single Judge of this Court, who referred the case to a Division Bench to decide the question 'as to whether under the Army Act read with the Rules made thereunder can a person be awarded more than one sentence for all the offences of which be is found guilty'.
7. Learned Counsel for the petitioner submitted that the petitioner cannot be awarded two punishment under the relevant provisions of the Army Act and Rules and as such the sentence of imprison men t as well as dismissal of service of the petitioner is not sustainable in law. He also contended that is this case sentence awarded to the petitioner is disproportionate to the offence proved against the petitioner and on this ground |also the impugned orders have to be set aside and the matter has to be remanded back to the Court-Martial for fresh consideration in accordance with law.
8. Learned Counsel appearing for the respondents, on the other hand contended that more than one punishment can be awarded under the provisions of the Army Act. He also contended that in the present case it has been found that the petitioner was in the habit of over-staying the leave and while he was undergoing imprisonment in military custody he disobeyed the order of the Superior officer and as such the punishment awarded to him cannot be said to be disproportionate to the gravity of misconduct, and, as such there is no arbitrariness in awarding the punishment to the petitioner.
9. After perusal of the records it is clear that there is no procedural irregularity in conducting the summary Court Martial proceeding. The petitioner was afforded an opportunity according to the relevant provisions of the Army Act and Rules. He was found to have disobeyed the order of the Superior Officer while undergoing imprisonment in Military custody for over-staying the leave granted to him. The offence which the petitioner is alleged to have committed is under Section 41(1) of the Army Act, 195U (hereinafter referred to as the Act), which runs as follows:
Any person subject to this Act who disobeys in such manner as to show a wilful defiance of authority any lawful command given personally by his superior officer in execution of his office whether the same is given orally, or in writing or by signal or otherwise, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act, mentioned.
10. Before deciding the question as to whether two punishments can be awarded or not to a person who is found guilty in a summary Court-Martial proceeding, it is necessary to refer to the relevant provisions of the Army Act. Section 71 of the Act which prescribes the punishment awardable by a court-martial runs as follows:
Section 71. Punishment awardable by Courts-martial. - Punishments may be inflicted in respect of offence 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 ;
(c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering, in the case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers ; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned officers:
Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as sepoy;
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned 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 ;
(h) forfeiture of service for the purpose 'of increased pay, pension or any other prescribed purpose;
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;
(k) 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;
(1) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
11. Section 72 of the Act provides alternative punishments awardable by the court-martial, which runs as follows.
Section 72. Alternative punishments awardable by Court-martial - Subject to the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in Sections 34 to 68 inclusive award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence.
12. Section 73 provides for combination of punishments, which runs as follows:
Section 73. Combination of punishments, A sentence of a court-martial may award in addition to or without any one other punishment, the punishment specified in Clause (d) or Clause (e) of Section 71 and any one or more of the punishments specified in Clauses (f) to (i) of that section.
13. From bare perusal of the aforesaid sections, it is clear that Section 41 provides that a person incase of disobedience of an order of superior officer, on conviction by court-martial is liable for imprisonment for a term which may extent to fourteen years or such less punishment as in this Act mentioned. Section 71 provides different forms of punishment which can be awarded by a court-martial. Section 71 (a) to (e) and (k) provides for major punishments and Section 71 (f) to (j) and (1) provides for lessor punishments. Section 72 provides that if a person convicted under any of the sections specified in Sections 34 to 68, the court-martial may award either a particular punishment with which the offence is stated is the said sections to be punishable, or in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence. Section 73, on the other band, says that more than one punishment can be awarded by the court-martial.
14. According to the learned Counsel for the petitioner, from reading of Sections 71 to 73 together, the punishment of imprisonment and dismissal from service cannot be passed against a convict by the court-martial. In this connection, be referred to the provisions of Section 73 and submitted that a court-martial may award in addition to or without any one other punishment, the punishment specified in Clause (d) of Section 71 which provides cashiering, in the case of officers and Clause (e) of Section 71 which provides dismissal from services, or any one or more of the punishments specified in Clauses (f) to (1) of that section. The imprisonment cannot be awarded against a convict by court-martial while ordering, for dismissal from service. Some lessor sentence can be passed by the court-martial in view of the provisions of Section 71 read with Section 73 of the Act. I am unable to agree with the aforesaid submissions. Section 73 of the Act provides for combination of punishment and bare perusal of the aforesaid Section shows that the court-martial may award punishment specified in Clauses (d) and (el of Section 71 and any one or more of the punishment specified in Clauses (f) to (1) to that section in addition to other punishment. The other punishment is already provided under Section 41 of the Act which provides for imprisonment which may extend upto 14 years. There is no legal bar in awarding the sentence of imprisonment and dismissal from the service at the same time. The power to award two punishments is dear from the reading of Section 73 of the Act. No doubt, if the authority decides not to award more than one punishment then the authority may take recourse to the provisions of Section 72 of the Act but to say that there is no such power to the authority to pass more than one punishment is to make the provisions of Section 73 of the Act redundant. This question was considered by a Division Bench of Allahabad High Court in : AIR1976All405 , Ranjit Singh Chaurama v. The Union of India and Ors. wherein, it was held that the summary Court-martial has jurisdiction Under Section 73 to inflict the punishment of dismissal in addition to the punishment of imprisonment awardable under Section 40(c) for the offence of insubordination. The order of the summary court-martial was in accordance with the provisions of Section 73 and cannot be successfully challenged as being without jurisdiction. Section 73 empowers a court-martial to inflict in addition to the punishments specified for the various offences in Sections 34 to 68, the punishment specified in Clauses (f) to (1) of Section 71.' The Supreme Court in the case of Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors. : 1990CriLJ60a , has also held that the court-martial may award more than one punishment under Section 73 of the Act. Thus, there is no difficulty in holding that the court-martial can award more than one punishment to a person on conviction and as such the impugned order do not suffer from any legal infirmity.
15. Regarding the submission advanced on behalf of the petitioner that the penalty imposed on the petitioner in this case is disproportionate to the gravity of the misconduct, it is to be stated that it is well-settled that the punishment imposed upon the convict must be commensurate with the gravity of the misconduct and if the penalty imposed is disproportionate to the gravity of the misconduct the same should be set aside on the ground of violation of Article 14 of the Constitution of India.
16. The question for determination in the present case is as to whether punishment awarded to the petitioner is disproportionate to the offence alleged to have been committed by him. Discipline is the back-bone of the Indian Army. If the military personnel indulge in insubordination, the same would be the distructive of the discipline in the Army. In the present case, according to the case of the petitioner, the petitioner over stayed his leave on two occasions. The charge against the petitioner is that while he was undergoing imprisonment in military custody for 28 days he indulged in insubordination in the sense that he did not obey the command of the superior officer. The allegation, in my view, is serious one and any leniency shown to the petitioner in the matter of awarding punishment to him in the facts and circumstances of the case would not be proper. The sentence awarded to the petitioner cannot be said to be disproportionate or not commensurate with the gravity of the misconduct proved against the petitioner. In my opinion, this is not a case where the punishment awarded to the petitioner can be interefered with on the ground that the same in disproportionate to the offence found against the petitioner.
17. Accordingly, I do not find any merit in the submissions raised on behalf of the petitioner and, as such, the application is dismissed.
N.K. Sinha, J.
18. I agree.