Semantic Analysis by spaCy
Union of India and ors. Vs. Prem Masih.
Decided On : Nov-26-2010
Court : Jammu and Kashmir
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Prem Masih.', 'casenote' => '[MARKANDEY KATJU; GYAN SUDHA MISRA, JJ.] - Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). ', 'caseanalysis' => null, 'casesref' => 'R. Shanmugam (Appellant) v. The Officer Commanding;', 'citingcases' => null, 'counselplain' => 'Mr. Tashi Rabstan, Adv. ', 'counseldef' => 'Mr. M.K. Bhardwaj ; Mr. C.S.Azad, Advs. ', 'court' => 'Jammu and Kashmir', 'court_type' => 'HC', 'decidedon' => '2010-11-26', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Muzaffar Hussain Attar ; Dr. Aftab H. Saikia, J.J.', 'judgement' => '1. Respondent was enrolled on 23rd of Feb. 1976 as Sepoy (Safaiwala) by the appellants. On the allegation of having overstayed his leave the respondent suffered punishment of reduction in rank and dismissal from service in terms of decision of the Summary Court Martial. The order was issued on 8th Feb. 1994.</p><p style="text-align: justify;">2. Respondent being aggrieved of the said order, challenged the same by filing writ petition, which was registered as SWP No. 2861/2001. The learned Writ Court after considering the material on record and after hearing the ld counsel for parties, allowed the writ petition and issued the order, which has effect of setting aside the award of punishment of dismissal.</p><p style="text-align: justify;">3. The appellants are aggrieved of the said judgment of the ld Writ Court and have challenged the same in this Letters Patent Appeal (LPA). We have heard ld counsel for parties. Considered the material on record.</p><p style="text-align: justify;">4. Mr. Tashi Rabstan ld counsel, appearing for the appellants submitted that the punishment of reduction in rank and dismissal from service being permissible in terms of Section 73 of the Army Act of 1950, (for short Act of 1950), the ld Writ Court was, thus, wrong in holding that two punishments could not be awarded to the respondent- writ petitioner. Ld counsel invited attention of the court to Section 73 of the Act of 1950 and stated that this provision authorizes for awarding of more than one punishment and the award of more than one punishment can be combined in view of the said Provision. The ld counsel referred to and relied upon a Division Bench judgment of Madras High Court, in case titled R. Shanmugam (Appellant) v. The Officer Commanding 65 Coy A.S.S Supply (Type B) Fort St. George, Madras and ors (Respondents), reported in 1984(1) SLR page 108 to canvass his point that the delinquent official can be awarded two punishments. Ld counsel, accordingly, submitted that the judgment impugned in this LPA merits to be set-aside.</p><p style="text-align: justify;">5. Mr. M.K. Bhardwaj ld Sr. Advocate, appearing for respondent while contesting the submission of ld counsel for the appellants submitted that in the facts and circumstances of this case, there could not have been combination of punishment and the respondent could not have been awarded punishment of reduction in rank and dismissal from service. The ld counsel submitted that as the allegation against the respondent was that he overstayed the leave/absented without leave, same would constitute an offence in terms of Section 39 of the Act of 1950. The ld counsel further submitted that punishment could be inflicted in respect of offences committed by a person subject to the Act of 1950 and could be convicted by the Court Martial. The ld counsel submitted that in terms of Section 39 of the Act of 1950, the respondent was not sentenced by the Court Martial, but was punished in terms of Section 72 of the Act of 1950. He was awarded alternate punishment by the Court Martial, and that only one punishment could be awarded in terms of the aforementioned provisions of law. The ld counsel submitted that the learned writ court has rightly appreciated the legal position and the judgment impugned in this LPA, thus, does not suffer from any legal infirmity. Ld counsel prayed for dismissal of the LPA. In order to appreciate the contentions raised at bar, it would be apposite to notice the relevant provisions of the Act of 1950.</p><p style="text-align: justify;">39. Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) absents himself without leave; or</p><p style="text-align: justify;">(b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or</p><p style="text-align: justify;">(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or</p><p style="text-align: justify;">(f) when in camp or garrison or elsewhere, is foun beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or</p><p style="text-align: justify;">(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.</p><p style="text-align: justify;">71. 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,-</p><p style="text-align: justify;">(a) death;</p><p style="text-align: justify;">(b) transportation for life or for any period not less than seven years;</p><p style="text-align: justify;">(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;</p><p style="text-align: justify;">(d) cashiering, in the case of officers;</p><p style="text-align: justify;">(e) dismissal from the service;</p><p style="text-align: justify;">(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:</p><p style="text-align: justify;">Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;</p><p style="text-align: justify;">(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non- commissioned officers;</p><p style="text-align: justify;">(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;</p><p style="text-align: justify;">(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;</p><p style="text-align: justify;">(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. What is not in dispute is that the respondent had un-authorizedly absented from duty. Chapter VI of the Act of 1950 deals with the offences and Section 39 thereof provides that any person subject to the Act who commits any of the offences mentioned therein which interalia includes absence without leave or without sufficient cause overstays leave on conviction by the Court Martial is liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the Act of 1950. On the projected allegations the respondent has committed offence as defined in Section 39 of the Act of 1950 and on proof thereof was liable to be convicted by the Court Martial and consequently would suffer imprisonment. In this case, the Court Martial has not sentenced respondent to suffer the imprisonment. Chapter VII deals with the punishment to be awarded by Court Martial. Section 71 provides the punishment which may be inflicted by Court Martial in respect of offences committed by persons subject to Act of 1950 and convicted by it according to the scale mentioned in the said section. Section 71 (l) provides punishment which include death and stoppage of pay allowances until any proved loss or damage occasioned by the offence of which a person is convicted is made good. Section 71 clause (e) provides for punishment of dismissal from service and clause (f) provides for reduction of rank or to a lower ranks 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 case of non-commissioned officers;</p><p style="text-align: justify;">7. Section 72 of the Act of 1950 provides that subject to the provisions of the Act, a Court Martial may, on convicting a person 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 the section 71, regard being had to the nature and degree of the offence.</p><p style="text-align: justify;">8. Section 73 of the Act of 1950 provides that sentence of Court Martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) and clause (e) of Section 71 and any one or more of the punishment specified in clause (f) to (l) of the said section.</p><p style="text-align: justify;">9. The issue, which has cropped for consideration of the court is as to in the facts and circumstances of this case which between provisions of Section 72 and 73 gets attracted. While interpreting a statute, or a provision thereof, it needs to be re-stated, that the meaning is to be derived and understood from its language . Chapter VI of the Act of 1950 provides for offences. Section 39 thereof deals with the offence of absence without leave etc and it is provided in the said section that on conviction by Court Martial delinquent shall either suffer imprisonment for a term which may extend to three years, or such less punishment provided in the Act. The charging part of the section 39 provides, two distinct and different eventualities when conviction is awarded by the Court Martial viz that a person on conviction is to suffer imprisonment for a term which may extend to three years or is inflicted with such less punishment as is mentioned in the Act of 1950. The word or occurring in the charging part of the section 39 shows that two different alternate punishments one for imprisonment and other for less punishment can be inflicted. Admittedly the respondent has not been sentenced to suffer imprisonment.</p><p style="text-align: justify;">10. A conjoint reading of the charging part of Section 39 with Section 73 of the Act of 1950 would show that sentence of 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 clause (f) to (l) of the said section.</p><p style="text-align: justify;">11. Thus, in order to attract the provisions of Section 73 of the Act of 1950, awarding of sentence by Court Martial is a legal re-requirement. Admittedly, the respondent has not been sentenced by the Court Martial to undergo imprisonment. The second charging part of section 39 authorizes for inflicting of less punishment as is provided in the Act of 1950, which on the plain interpretation of the statute and language in which it is couched does show that section 72 of the Act of 1950 is attracted as it provides an alternate punishment awardable by Court Martial. The section 39 of Act of 1950 authorizes the court Martial to award sentence on convicting a person in respect of the offence specified in Section 34 to 68 inclusive, 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. The competent authority has invoked second limb of charging part of the Section 39 of the Act of 1950 in as much as respondent was not sentenced, so could be awarded any one of the punishments as provided in section 71 as is the mandate of section 72 of the said Act. The competent authority in view of the reasons stated hereinabove could thus, inflict only one punishment on the respondent in lieu of imprisonment. The nature of allegations against the Sepoy (Safaiwala) in view of the duties he is required to discharge cannot be said to be of grave and serious nature. The only one punishment in view of the scheme of the Act of 1950 as discussed hereinabove could be inflicted on the respondent. The judgment of Madras High Court in R. Shanmugam s case referred to by ld counsel for appellants proceeds on its own facts. In that case the official was sentenced to three months rigorous imprisonment and was ordered to be reduced in rank by Court Martial. It is in this back drop that the contention of the appellants therein that respondent could have not been awarded two punishments was negatived on the strength of the provisions of 73 of the Act of 1950. The said contention was rightly upheld by the Division Bench of Madras High Court, as section 73 did provide for combination of punishments. As stated, hereinabove, the respondent was not sentenced but recourse was taken to the second limb of charging part of section 39 of the Act of 1950 so could not be punished under Sec 73. The facts in the above referred case being materially different from the facts of this case, the said judgment is, thus, of no help to the appellants.</p><p style="text-align: justify;">12. For the reasons stated in the judgment, we hold that two punishments could not be inflicted on the respondent and, accordingly, we uphold the judgment of the ld writ court and dismiss the appeal.', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Prem Masih.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '911615' ) ) $title_for_layout = 'Union of India and ors. Vs. Prem Masih. 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Prem Masih.', 'casenote' => '[MARKANDEY KATJU; GYAN SUDHA MISRA, JJ.] - Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). ', 'caseanalysis' => null, 'casesref' => 'R. Shanmugam (Appellant) v. The Officer Commanding;', 'citingcases' => null, 'counselplain' => 'Mr. Tashi Rabstan, Adv. ', 'counseldef' => 'Mr. M.K. Bhardwaj ; Mr. C.S.Azad, Advs. ', 'court' => 'Jammu and Kashmir', 'court_type' => 'HC', 'decidedon' => '2010-11-26', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Muzaffar Hussain Attar ; Dr. Aftab H. Saikia, J.J.', 'judgement' => '1. Respondent was enrolled on 23rd of Feb. 1976 as Sepoy (Safaiwala) by the appellants. On the allegation of having overstayed his leave the respondent suffered punishment of reduction in rank and dismissal from service in terms of decision of the Summary Court Martial. The order was issued on 8th Feb. 1994.</p><p style="text-align: justify;">2. Respondent being aggrieved of the said order, challenged the same by filing writ petition, which was registered as SWP No. 2861/2001. The learned Writ Court after considering the material on record and after hearing the ld counsel for parties, allowed the writ petition and issued the order, which has effect of setting aside the award of punishment of dismissal.</p><p style="text-align: justify;">3. The appellants are aggrieved of the said judgment of the ld Writ Court and have challenged the same in this Letters Patent Appeal (LPA). We have heard ld counsel for parties. Considered the material on record.</p><p style="text-align: justify;">4. Mr. Tashi Rabstan ld counsel, appearing for the appellants submitted that the punishment of reduction in rank and dismissal from service being permissible in terms of Section 73 of the Army Act of 1950, (for short Act of 1950), the ld Writ Court was, thus, wrong in holding that two punishments could not be awarded to the respondent- writ petitioner. Ld counsel invited attention of the court to Section 73 of the Act of 1950 and stated that this provision authorizes for awarding of more than one punishment and the award of more than one punishment can be combined in view of the said Provision. The ld counsel referred to and relied upon a Division Bench judgment of Madras High Court, in case titled R. Shanmugam (Appellant) v. The Officer Commanding 65 Coy A.S.S Supply (Type B) Fort St. George, Madras and ors (Respondents), reported in 1984(1) SLR page 108 to canvass his point that the delinquent official can be awarded two punishments. Ld counsel, accordingly, submitted that the judgment impugned in this LPA merits to be set-aside.</p><p style="text-align: justify;">5. Mr. M.K. Bhardwaj ld Sr. Advocate, appearing for respondent while contesting the submission of ld counsel for the appellants submitted that in the facts and circumstances of this case, there could not have been combination of punishment and the respondent could not have been awarded punishment of reduction in rank and dismissal from service. The ld counsel submitted that as the allegation against the respondent was that he overstayed the leave/absented without leave, same would constitute an offence in terms of Section 39 of the Act of 1950. The ld counsel further submitted that punishment could be inflicted in respect of offences committed by a person subject to the Act of 1950 and could be convicted by the Court Martial. The ld counsel submitted that in terms of Section 39 of the Act of 1950, the respondent was not sentenced by the Court Martial, but was punished in terms of Section 72 of the Act of 1950. He was awarded alternate punishment by the Court Martial, and that only one punishment could be awarded in terms of the aforementioned provisions of law. The ld counsel submitted that the learned writ court has rightly appreciated the legal position and the judgment impugned in this LPA, thus, does not suffer from any legal infirmity. Ld counsel prayed for dismissal of the LPA. In order to appreciate the contentions raised at bar, it would be apposite to notice the relevant provisions of the Act of 1950.</p><p style="text-align: justify;">39. Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) absents himself without leave; or</p><p style="text-align: justify;">(b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or</p><p style="text-align: justify;">(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or</p><p style="text-align: justify;">(f) when in camp or garrison or elsewhere, is foun beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or</p><p style="text-align: justify;">(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.</p><p style="text-align: justify;">71. 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,-</p><p style="text-align: justify;">(a) death;</p><p style="text-align: justify;">(b) transportation for life or for any period not less than seven years;</p><p style="text-align: justify;">(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;</p><p style="text-align: justify;">(d) cashiering, in the case of officers;</p><p style="text-align: justify;">(e) dismissal from the service;</p><p style="text-align: justify;">(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:</p><p style="text-align: justify;">Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;</p><p style="text-align: justify;">(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non- commissioned officers;</p><p style="text-align: justify;">(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;</p><p style="text-align: justify;">(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;</p><p style="text-align: justify;">(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. What is not in dispute is that the respondent had un-authorizedly absented from duty. Chapter VI of the Act of 1950 deals with the offences and Section 39 thereof provides that any person subject to the Act who commits any of the offences mentioned therein which interalia includes absence without leave or without sufficient cause overstays leave on conviction by the Court Martial is liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the Act of 1950. On the projected allegations the respondent has committed offence as defined in Section 39 of the Act of 1950 and on proof thereof was liable to be convicted by the Court Martial and consequently would suffer imprisonment. In this case, the Court Martial has not sentenced respondent to suffer the imprisonment. Chapter VII deals with the punishment to be awarded by Court Martial. Section 71 provides the punishment which may be inflicted by Court Martial in respect of offences committed by persons subject to Act of 1950 and convicted by it according to the scale mentioned in the said section. Section 71 (l) provides punishment which include death and stoppage of pay allowances until any proved loss or damage occasioned by the offence of which a person is convicted is made good. Section 71 clause (e) provides for punishment of dismissal from service and clause (f) provides for reduction of rank or to a lower ranks 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 case of non-commissioned officers;</p><p style="text-align: justify;">7. Section 72 of the Act of 1950 provides that subject to the provisions of the Act, a Court Martial may, on convicting a person 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 the section 71, regard being had to the nature and degree of the offence.</p><p style="text-align: justify;">8. Section 73 of the Act of 1950 provides that sentence of Court Martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) and clause (e) of Section 71 and any one or more of the punishment specified in clause (f) to (l) of the said section.</p><p style="text-align: justify;">9. The issue, which has cropped for consideration of the court is as to in the facts and circumstances of this case which between provisions of Section 72 and 73 gets attracted. While interpreting a statute, or a provision thereof, it needs to be re-stated, that the meaning is to be derived and understood from its language . Chapter VI of the Act of 1950 provides for offences. Section 39 thereof deals with the offence of absence without leave etc and it is provided in the said section that on conviction by Court Martial delinquent shall either suffer imprisonment for a term which may extend to three years, or such less punishment provided in the Act. The charging part of the section 39 provides, two distinct and different eventualities when conviction is awarded by the Court Martial viz that a person on conviction is to suffer imprisonment for a term which may extend to three years or is inflicted with such less punishment as is mentioned in the Act of 1950. The word or occurring in the charging part of the section 39 shows that two different alternate punishments one for imprisonment and other for less punishment can be inflicted. Admittedly the respondent has not been sentenced to suffer imprisonment.</p><p style="text-align: justify;">10. A conjoint reading of the charging part of Section 39 with Section 73 of the Act of 1950 would show that sentence of 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 clause (f) to (l) of the said section.</p><p style="text-align: justify;">11. Thus, in order to attract the provisions of Section 73 of the Act of 1950, awarding of sentence by Court Martial is a legal re-requirement. Admittedly, the respondent has not been sentenced by the Court Martial to undergo imprisonment. The second charging part of section 39 authorizes for inflicting of less punishment as is provided in the Act of 1950, which on the plain interpretation of the statute and language in which it is couched does show that section 72 of the Act of 1950 is attracted as it provides an alternate punishment awardable by Court Martial. The section 39 of Act of 1950 authorizes the court Martial to award sentence on convicting a person in respect of the offence specified in Section 34 to 68 inclusive, 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. The competent authority has invoked second limb of charging part of the Section 39 of the Act of 1950 in as much as respondent was not sentenced, so could be awarded any one of the punishments as provided in section 71 as is the mandate of section 72 of the said Act. The competent authority in view of the reasons stated hereinabove could thus, inflict only one punishment on the respondent in lieu of imprisonment. The nature of allegations against the Sepoy (Safaiwala) in view of the duties he is required to discharge cannot be said to be of grave and serious nature. The only one punishment in view of the scheme of the Act of 1950 as discussed hereinabove could be inflicted on the respondent. The judgment of Madras High Court in R. Shanmugam s case referred to by ld counsel for appellants proceeds on its own facts. In that case the official was sentenced to three months rigorous imprisonment and was ordered to be reduced in rank by Court Martial. It is in this back drop that the contention of the appellants therein that respondent could have not been awarded two punishments was negatived on the strength of the provisions of 73 of the Act of 1950. The said contention was rightly upheld by the Division Bench of Madras High Court, as section 73 did provide for combination of punishments. As stated, hereinabove, the respondent was not sentenced but recourse was taken to the second limb of charging part of section 39 of the Act of 1950 so could not be punished under Sec 73. The facts in the above referred case being materially different from the facts of this case, the said judgment is, thus, of no help to the appellants.</p><p style="text-align: justify;">12. For the reasons stated in the judgment, we hold that two punishments could not be inflicted on the respondent and, accordingly, we uphold the judgment of the ld writ court and dismiss the appeal.', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Prem Masih.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '911615' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Shanmugam', (int) 3 => 'Madras', (int) 4 => 'M.K. Bhardwaj ld Sr', (int) 5 => 'or(g', (int) 6 => 'interalia', (int) 7 => 'Court Martial', (int) 8 => 'Court Martial', (int) 9 => 'Court Martial', (int) 10 => 'Court Martial', (int) 11 => 'Court Martial', (int) 12 => 'Court Martial', (int) 13 => 'Court Martial', (int) 14 => 'Martial', (int) 15 => 'Court Martial' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second' ), 'NORP' => array( (int) 0 => 'R.' ) ), 'desc' => array( 'Judgement' => array( 'id' => '911615', 'acts' => 'Army Act of 1950 - Sections 73, 39, 72; ', 'appealno' => 'LPASW No. 131 OF 2010.', 'appellant' => 'Union of India and ors.', 'authreffered' => null, 'casename' => 'Union of India and ors. Vs. Prem Masih.', 'casenote' => '[MARKANDEY KATJU; GYAN SUDHA MISRA, JJ.] - Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). ', 'caseanalysis' => null, 'casesref' => 'R. Shanmugam (Appellant) v. The Officer Commanding;', 'citingcases' => null, 'counselplain' => 'Mr. Tashi Rabstan, Adv. ', 'counseldef' => 'Mr. M.K. Bhardwaj ; Mr. C.S.Azad, Advs. ', 'court' => 'Jammu and Kashmir', 'court_type' => 'HC', 'decidedon' => '2010-11-26', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Muzaffar Hussain Attar ; Dr. Aftab H. Saikia, J.J.', 'judgement' => '1. Respondent was enrolled on 23rd of Feb. 1976 as Sepoy (Safaiwala) by the appellants. On the allegation of having overstayed his leave the respondent suffered punishment of reduction in rank and dismissal from service in terms of decision of the Summary Court Martial. The order was issued on 8th Feb. 1994.</p><p style="text-align: justify;">2. Respondent being aggrieved of the said order, challenged the same by filing writ petition, which was registered as SWP No. 2861/2001. The learned Writ Court after considering the material on record and after hearing the ld counsel for parties, allowed the writ petition and issued the order, which has effect of setting aside the award of punishment of dismissal.</p><p style="text-align: justify;">3. The appellants are aggrieved of the said judgment of the ld Writ Court and have challenged the same in this Letters Patent Appeal (LPA). We have heard ld counsel for parties. Considered the material on record.</p><p style="text-align: justify;">4. Mr. Tashi Rabstan ld counsel, appearing for the appellants submitted that the punishment of reduction in rank and dismissal from service being permissible in terms of Section 73 of the Army Act of 1950, (for short Act of 1950), the ld Writ Court was, thus, wrong in holding that two punishments could not be awarded to the respondent- writ petitioner. Ld counsel invited attention of the court to Section 73 of the Act of 1950 and stated that this provision authorizes for awarding of more than one punishment and the award of more than one punishment can be combined in view of the said Provision. The ld counsel referred to and relied upon a Division Bench judgment of Madras High Court, in case titled R. Shanmugam (Appellant) v. The Officer Commanding 65 Coy A.S.S Supply (Type B) Fort St. George, Madras and ors (Respondents), reported in 1984(1) SLR page 108 to canvass his point that the delinquent official can be awarded two punishments. Ld counsel, accordingly, submitted that the judgment impugned in this LPA merits to be set-aside.</p><p style="text-align: justify;">5. Mr. M.K. Bhardwaj ld Sr. Advocate, appearing for respondent while contesting the submission of ld counsel for the appellants submitted that in the facts and circumstances of this case, there could not have been combination of punishment and the respondent could not have been awarded punishment of reduction in rank and dismissal from service. The ld counsel submitted that as the allegation against the respondent was that he overstayed the leave/absented without leave, same would constitute an offence in terms of Section 39 of the Act of 1950. The ld counsel further submitted that punishment could be inflicted in respect of offences committed by a person subject to the Act of 1950 and could be convicted by the Court Martial. The ld counsel submitted that in terms of Section 39 of the Act of 1950, the respondent was not sentenced by the Court Martial, but was punished in terms of Section 72 of the Act of 1950. He was awarded alternate punishment by the Court Martial, and that only one punishment could be awarded in terms of the aforementioned provisions of law. The ld counsel submitted that the learned writ court has rightly appreciated the legal position and the judgment impugned in this LPA, thus, does not suffer from any legal infirmity. Ld counsel prayed for dismissal of the LPA. In order to appreciate the contentions raised at bar, it would be apposite to notice the relevant provisions of the Act of 1950.</p><p style="text-align: justify;">39. Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) absents himself without leave; or</p><p style="text-align: justify;">(b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or</p><p style="text-align: justify;">(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or</p><p style="text-align: justify;">(f) when in camp or garrison or elsewhere, is foun beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or</p><p style="text-align: justify;">(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.</p><p style="text-align: justify;">71. 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,-</p><p style="text-align: justify;">(a) death;</p><p style="text-align: justify;">(b) transportation for life or for any period not less than seven years;</p><p style="text-align: justify;">(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;</p><p style="text-align: justify;">(d) cashiering, in the case of officers;</p><p style="text-align: justify;">(e) dismissal from the service;</p><p style="text-align: justify;">(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:</p><p style="text-align: justify;">Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;</p><p style="text-align: justify;">(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non- commissioned officers;</p><p style="text-align: justify;">(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;</p><p style="text-align: justify;">(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;</p><p style="text-align: justify;">(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. What is not in dispute is that the respondent had un-authorizedly absented from duty. Chapter VI of the Act of 1950 deals with the offences and Section 39 thereof provides that any person subject to the Act who commits any of the offences mentioned therein which interalia includes absence without leave or without sufficient cause overstays leave on conviction by the Court Martial is liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the Act of 1950. On the projected allegations the respondent has committed offence as defined in Section 39 of the Act of 1950 and on proof thereof was liable to be convicted by the Court Martial and consequently would suffer imprisonment. In this case, the Court Martial has not sentenced respondent to suffer the imprisonment. Chapter VII deals with the punishment to be awarded by Court Martial. Section 71 provides the punishment which may be inflicted by Court Martial in respect of offences committed by persons subject to Act of 1950 and convicted by it according to the scale mentioned in the said section. Section 71 (l) provides punishment which include death and stoppage of pay allowances until any proved loss or damage occasioned by the offence of which a person is convicted is made good. Section 71 clause (e) provides for punishment of dismissal from service and clause (f) provides for reduction of rank or to a lower ranks 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 case of non-commissioned officers;</p><p style="text-align: justify;">7. Section 72 of the Act of 1950 provides that subject to the provisions of the Act, a Court Martial may, on convicting a person 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 the section 71, regard being had to the nature and degree of the offence.</p><p style="text-align: justify;">8. Section 73 of the Act of 1950 provides that sentence of Court Martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) and clause (e) of Section 71 and any one or more of the punishment specified in clause (f) to (l) of the said section.</p><p style="text-align: justify;">9. The issue, which has cropped for consideration of the court is as to in the facts and circumstances of this case which between provisions of Section 72 and 73 gets attracted. While interpreting a statute, or a provision thereof, it needs to be re-stated, that the meaning is to be derived and understood from its language . Chapter VI of the Act of 1950 provides for offences. Section 39 thereof deals with the offence of absence without leave etc and it is provided in the said section that on conviction by Court Martial delinquent shall either suffer imprisonment for a term which may extend to three years, or such less punishment provided in the Act. The charging part of the section 39 provides, two distinct and different eventualities when conviction is awarded by the Court Martial viz that a person on conviction is to suffer imprisonment for a term which may extend to three years or is inflicted with such less punishment as is mentioned in the Act of 1950. The word or occurring in the charging part of the section 39 shows that two different alternate punishments one for imprisonment and other for less punishment can be inflicted. Admittedly the respondent has not been sentenced to suffer imprisonment.</p><p style="text-align: justify;">10. A conjoint reading of the charging part of Section 39 with Section 73 of the Act of 1950 would show that sentence of 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 clause (f) to (l) of the said section.</p><p style="text-align: justify;">11. Thus, in order to attract the provisions of Section 73 of the Act of 1950, awarding of sentence by Court Martial is a legal re-requirement. Admittedly, the respondent has not been sentenced by the Court Martial to undergo imprisonment. The second charging part of section 39 authorizes for inflicting of less punishment as is provided in the Act of 1950, which on the plain interpretation of the statute and language in which it is couched does show that section 72 of the Act of 1950 is attracted as it provides an alternate punishment awardable by Court Martial. The section 39 of Act of 1950 authorizes the court Martial to award sentence on convicting a person in respect of the offence specified in Section 34 to 68 inclusive, 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. The competent authority has invoked second limb of charging part of the Section 39 of the Act of 1950 in as much as respondent was not sentenced, so could be awarded any one of the punishments as provided in section 71 as is the mandate of section 72 of the said Act. The competent authority in view of the reasons stated hereinabove could thus, inflict only one punishment on the respondent in lieu of imprisonment. The nature of allegations against the Sepoy (Safaiwala) in view of the duties he is required to discharge cannot be said to be of grave and serious nature. The only one punishment in view of the scheme of the Act of 1950 as discussed hereinabove could be inflicted on the respondent. The judgment of Madras High Court in R. Shanmugam s case referred to by ld counsel for appellants proceeds on its own facts. In that case the official was sentenced to three months rigorous imprisonment and was ordered to be reduced in rank by Court Martial. It is in this back drop that the contention of the appellants therein that respondent could have not been awarded two punishments was negatived on the strength of the provisions of 73 of the Act of 1950. The said contention was rightly upheld by the Division Bench of Madras High Court, as section 73 did provide for combination of punishments. As stated, hereinabove, the respondent was not sentenced but recourse was taken to the second limb of charging part of section 39 of the Act of 1950 so could not be punished under Sec 73. The facts in the above referred case being materially different from the facts of this case, the said judgment is, thus, of no help to the appellants.</p><p style="text-align: justify;">12. For the reasons stated in the judgment, we hold that two punishments could not be inflicted on the respondent and, accordingly, we uphold the judgment of the ld writ court and dismiss the appeal.', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Prem Masih.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '911615' ) ) $title_for_layout = 'Union of India and ors. Vs. Prem Masih. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 73', (int) 1 => 'the Army Act', (int) 2 => 'Section 73 of the Act of', (int) 3 => 'Section 39 of the Act of', (int) 4 => 'Section 39 of the Act of', (int) 5 => 'Section 72 of the Act of', (int) 6 => 'section 71', (int) 7 => 'section 71', (int) 8 => 'Chapter VI', (int) 9 => 'Section 39', (int) 10 => 'Section 39', (int) 11 => 'Chapter VII', (int) 12 => 'Section 71', (int) 13 => 'Section 71', (int) 14 => 'Section 71', (int) 15 => 'Section 72 of the Act of', (int) 16 => 'Section 73 of the Act of', (int) 17 => 'Section 71', (int) 18 => 'Section 72', (int) 19 => 'Chapter VI', (int) 20 => 'Section 39', (int) 21 => 'Section 73 of the Act of', (int) 22 => 'section 71', (int) 23 => 'Section 73 of the Act of', (int) 24 => 'section 39', (int) 25 => 'section 72', (int) 26 => 'Section 34', (int) 27 => 'section 71', (int) 28 => 'the Section 39 of the Act of', (int) 29 => 'section 71', (int) 30 => 'section 72', (int) 31 => 'section 73', (int) 32 => 'section 39' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => 'two', (int) 2 => 'more than one', (int) 3 => 'more than one', (int) 4 => '1984(1', (int) 5 => '108', (int) 6 => 'two', (int) 7 => 'only one', (int) 8 => '1950.39', (int) 9 => 'less than seven', (int) 10 => 'fourteen', (int) 11 => '34', (int) 12 => '68', (int) 13 => 'one', (int) 14 => 'one', (int) 15 => '68', (int) 16 => 'one', (int) 17 => 'one', (int) 18 => '73', (int) 19 => 'two', (int) 20 => 'two', (int) 21 => 'one', (int) 22 => 'one', (int) 23 => '68', (int) 24 => 'one', (int) 25 => 'only one', (int) 26 => 'one', (int) 27 => 'two', (int) 28 => '73', (int) 29 => 'two' ), 'DATE' => array( (int) 0 => '23rd of Feb. 1976', (int) 1 => '8th Feb. 1994.2', (int) 2 => '2861/2001', (int) 3 => '1950', (int) 4 => '1950', (int) 5 => '1950', (int) 6 => '1950', (int) 7 => '1950', (int) 8 => '1950', (int) 9 => '1950', (int) 10 => 'march', (int) 11 => 'march', (int) 12 => 'three years', (int) 13 => 'three months', (int) 14 => '1950', (int) 15 => 'three years', (int) 16 => '1950', (int) 17 => '1950', (int) 18 => '1950', (int) 19 => '1950', (int) 20 => 'the section 71', (int) 21 => '1950', (int) 22 => '1950', (int) 23 => 'three years', (int) 24 => 'three years', (int) 25 => '1950', (int) 26 => '1950', (int) 27 => '1950', (int) 28 => '1950', (int) 29 => '1950', (int) 30 => '1950', (int) 31 => '1950', (int) 32 => '1950', (int) 33 => 'three months', (int) 34 => '1950', (int) 35 => '1950' ), 'ORG' => array( (int) 0 => 'Sepoy (Safaiwala', (int) 1 => 'the Summary Court Martial', (int) 2 => 'Writ Court', (int) 3 => 'Provision', (int) 4 => 'Madras High Court', (int) 5 => 'Coy A.S.S Supply', (int) 6 => 'LPA', (int) 7 => 'the Court Martial', (int) 8 => 'the Court Martial', (int) 9 => 'the Court Martial', (int) 10 => 'LPA', (int) 11 => 'LPA', (int) 12 => 'or(d', (int) 13 => 'un', (int) 14 => 'the Court Martial', (int) 15 => 'the Court Martial', (int) 16 => 'the Court Martial', (int) 17 => 'Sections 34', (int) 18 => 'Court Martial', (int) 19 => 'the Court Martial', (int) 20 => 'the Sepoy (Safaiwala', (int) 21 => 'Madras High Court', (int) 22 => 'the Division Bench', (int) 23 => 'Madras High Court', (int) 24 => 'Sec 73' ), 'PERSON' => array( (int) 0 => 'dismissal.3', (int) 1 => 'Tashi Rabstan', (int) 2 => 'R. Shanmugam', (int) 3 => 'Madras', (int) 4 => 'M.K. Bhardwaj ld Sr', (int) 5 => 'or(g', (int) 6 => 'interalia', (int) 7 => 'Court Martial', (int) 8 => 'Court Martial', (int) 9 => 'Court Martial', (int) 10 => 'Court Martial', (int) 11 => 'Court Martial', (int) 12 => 'Court Martial', (int) 13 => 'Court Martial', (int) 14 => 'Martial', (int) 15 => 'Court Martial' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second' ), 'NORP' => array( (int) 0 => 'R.' ) ) $desc = array( 'Judgement' => array( 'id' => '911615', 'acts' => 'Army Act of 1950 - Sections 73, 39, 72; ', 'appealno' => 'LPASW No. 131 OF 2010.', 'appellant' => 'Union of India and ors.', 'authreffered' => null, 'casename' => 'Union of India and ors. Vs. Prem Masih.', 'casenote' => '[MARKANDEY KATJU; GYAN SUDHA MISRA, JJ.] - Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). ', 'caseanalysis' => null, 'casesref' => 'R. Shanmugam (Appellant) v. The Officer Commanding;', 'citingcases' => null, 'counselplain' => 'Mr. Tashi Rabstan, Adv. ', 'counseldef' => 'Mr. M.K. Bhardwaj ; Mr. C.S.Azad, Advs. ', 'court' => 'Jammu and Kashmir', 'court_type' => 'HC', 'decidedon' => '2010-11-26', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'Muzaffar Hussain Attar ; Dr. Aftab H. Saikia, J.J.', 'judgement' => '1. Respondent was enrolled on 23rd of Feb. 1976 as Sepoy (Safaiwala) by the appellants. On the allegation of having overstayed his leave the respondent suffered punishment of reduction in rank and dismissal from service in terms of decision of the Summary Court Martial. The order was issued on 8th Feb. 1994.</p><p style="text-align: justify;">2. Respondent being aggrieved of the said order, challenged the same by filing writ petition, which was registered as SWP No. 2861/2001. The learned Writ Court after considering the material on record and after hearing the ld counsel for parties, allowed the writ petition and issued the order, which has effect of setting aside the award of punishment of dismissal.</p><p style="text-align: justify;">3. The appellants are aggrieved of the said judgment of the ld Writ Court and have challenged the same in this Letters Patent Appeal (LPA). We have heard ld counsel for parties. Considered the material on record.</p><p style="text-align: justify;">4. Mr. Tashi Rabstan ld counsel, appearing for the appellants submitted that the punishment of reduction in rank and dismissal from service being permissible in terms of Section 73 of the Army Act of 1950, (for short Act of 1950), the ld Writ Court was, thus, wrong in holding that two punishments could not be awarded to the respondent- writ petitioner. Ld counsel invited attention of the court to Section 73 of the Act of 1950 and stated that this provision authorizes for awarding of more than one punishment and the award of more than one punishment can be combined in view of the said Provision. The ld counsel referred to and relied upon a Division Bench judgment of Madras High Court, in case titled R. Shanmugam (Appellant) v. The Officer Commanding 65 Coy A.S.S Supply (Type B) Fort St. George, Madras and ors (Respondents), reported in 1984(1) SLR page 108 to canvass his point that the delinquent official can be awarded two punishments. Ld counsel, accordingly, submitted that the judgment impugned in this LPA merits to be set-aside.</p><p style="text-align: justify;">5. Mr. M.K. Bhardwaj ld Sr. Advocate, appearing for respondent while contesting the submission of ld counsel for the appellants submitted that in the facts and circumstances of this case, there could not have been combination of punishment and the respondent could not have been awarded punishment of reduction in rank and dismissal from service. The ld counsel submitted that as the allegation against the respondent was that he overstayed the leave/absented without leave, same would constitute an offence in terms of Section 39 of the Act of 1950. The ld counsel further submitted that punishment could be inflicted in respect of offences committed by a person subject to the Act of 1950 and could be convicted by the Court Martial. The ld counsel submitted that in terms of Section 39 of the Act of 1950, the respondent was not sentenced by the Court Martial, but was punished in terms of Section 72 of the Act of 1950. He was awarded alternate punishment by the Court Martial, and that only one punishment could be awarded in terms of the aforementioned provisions of law. The ld counsel submitted that the learned writ court has rightly appreciated the legal position and the judgment impugned in this LPA, thus, does not suffer from any legal infirmity. Ld counsel prayed for dismissal of the LPA. In order to appreciate the contentions raised at bar, it would be apposite to notice the relevant provisions of the Act of 1950.</p><p style="text-align: justify;">39. Absence without leave.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) absents himself without leave; or</p><p style="text-align: justify;">(b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or</p><p style="text-align: justify;">(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or</p><p style="text-align: justify;">(f) when in camp or garrison or elsewhere, is foun beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or</p><p style="text-align: justify;">(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.</p><p style="text-align: justify;">71. 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,-</p><p style="text-align: justify;">(a) death;</p><p style="text-align: justify;">(b) transportation for life or for any period not less than seven years;</p><p style="text-align: justify;">(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;</p><p style="text-align: justify;">(d) cashiering, in the case of officers;</p><p style="text-align: justify;">(e) dismissal from the service;</p><p style="text-align: justify;">(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:</p><p style="text-align: justify;">Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;</p><p style="text-align: justify;">(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non- commissioned officers;</p><p style="text-align: justify;">(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;</p><p style="text-align: justify;">(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;</p><p style="text-align: justify;">(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. What is not in dispute is that the respondent had un-authorizedly absented from duty. Chapter VI of the Act of 1950 deals with the offences and Section 39 thereof provides that any person subject to the Act who commits any of the offences mentioned therein which interalia includes absence without leave or without sufficient cause overstays leave on conviction by the Court Martial is liable to suffer imprisonment for a term which may extend to three years or such less punishment as is mentioned in the Act of 1950. On the projected allegations the respondent has committed offence as defined in Section 39 of the Act of 1950 and on proof thereof was liable to be convicted by the Court Martial and consequently would suffer imprisonment. In this case, the Court Martial has not sentenced respondent to suffer the imprisonment. Chapter VII deals with the punishment to be awarded by Court Martial. Section 71 provides the punishment which may be inflicted by Court Martial in respect of offences committed by persons subject to Act of 1950 and convicted by it according to the scale mentioned in the said section. Section 71 (l) provides punishment which include death and stoppage of pay allowances until any proved loss or damage occasioned by the offence of which a person is convicted is made good. Section 71 clause (e) provides for punishment of dismissal from service and clause (f) provides for reduction of rank or to a lower ranks 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 case of non-commissioned officers;</p><p style="text-align: justify;">7. Section 72 of the Act of 1950 provides that subject to the provisions of the Act, a Court Martial may, on convicting a person 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 the section 71, regard being had to the nature and degree of the offence.</p><p style="text-align: justify;">8. Section 73 of the Act of 1950 provides that sentence of Court Martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) and clause (e) of Section 71 and any one or more of the punishment specified in clause (f) to (l) of the said section.</p><p style="text-align: justify;">9. The issue, which has cropped for consideration of the court is as to in the facts and circumstances of this case which between provisions of Section 72 and 73 gets attracted. While interpreting a statute, or a provision thereof, it needs to be re-stated, that the meaning is to be derived and understood from its language . Chapter VI of the Act of 1950 provides for offences. Section 39 thereof deals with the offence of absence without leave etc and it is provided in the said section that on conviction by Court Martial delinquent shall either suffer imprisonment for a term which may extend to three years, or such less punishment provided in the Act. The charging part of the section 39 provides, two distinct and different eventualities when conviction is awarded by the Court Martial viz that a person on conviction is to suffer imprisonment for a term which may extend to three years or is inflicted with such less punishment as is mentioned in the Act of 1950. The word or occurring in the charging part of the section 39 shows that two different alternate punishments one for imprisonment and other for less punishment can be inflicted. Admittedly the respondent has not been sentenced to suffer imprisonment.</p><p style="text-align: justify;">10. A conjoint reading of the charging part of Section 39 with Section 73 of the Act of 1950 would show that sentence of 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 clause (f) to (l) of the said section.</p><p style="text-align: justify;">11. Thus, in order to attract the provisions of Section 73 of the Act of 1950, awarding of sentence by Court Martial is a legal re-requirement. Admittedly, the respondent has not been sentenced by the Court Martial to undergo imprisonment. The second charging part of section 39 authorizes for inflicting of less punishment as is provided in the Act of 1950, which on the plain interpretation of the statute and language in which it is couched does show that section 72 of the Act of 1950 is attracted as it provides an alternate punishment awardable by Court Martial. The section 39 of Act of 1950 authorizes the court Martial to award sentence on convicting a person in respect of the offence specified in Section 34 to 68 inclusive, 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. The competent authority has invoked second limb of charging part of the Section 39 of the Act of 1950 in as much as respondent was not sentenced, so could be awarded any one of the punishments as provided in section 71 as is the mandate of section 72 of the said Act. The competent authority in view of the reasons stated hereinabove could thus, inflict only one punishment on the respondent in lieu of imprisonment. The nature of allegations against the Sepoy (Safaiwala) in view of the duties he is required to discharge cannot be said to be of grave and serious nature. The only one punishment in view of the scheme of the Act of 1950 as discussed hereinabove could be inflicted on the respondent. The judgment of Madras High Court in R. Shanmugam s case referred to by ld counsel for appellants proceeds on its own facts. In that case the official was sentenced to three months rigorous imprisonment and was ordered to be reduced in rank by Court Martial. It is in this back drop that the contention of the appellants therein that respondent could have not been awarded two punishments was negatived on the strength of the provisions of 73 of the Act of 1950. The said contention was rightly upheld by the Division Bench of Madras High Court, as section 73 did provide for combination of punishments. As stated, hereinabove, the respondent was not sentenced but recourse was taken to the second limb of charging part of section 39 of the Act of 1950 so could not be punished under Sec 73. The facts in the above referred case being materially different from the facts of this case, the said judgment is, thus, of no help to the appellants.</p><p style="text-align: justify;">12. For the reasons stated in the judgment, we hold that two punishments could not be inflicted on the respondent and, accordingly, we uphold the judgment of the ld writ court and dismiss the appeal.', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Prem Masih.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '911615' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 73, the Army Act, Section 73 of the Act of, Section 39 of the Act of, Section 39 of the Act of, Section 72 of the Act of, section 71, section 71, Chapter VI, Section 39, Section 39, Chapter VII, Section 71, Section 71, Section 71, Section 72 of the Act of, Section 73 of the Act of, Section 71, Section 72, Chapter VI, Section 39, Section 73 of the Act of, section 71, Section 73 of the Act of, section 39, section 72, Section 34, section 71, the Section 39 of the Act of, section 71, section 72, section 73, section 39
CARDINAL: 1, two, more than one, more than one, 1984(1, 108, two, only one, 1950.39, less than seven, fourteen, 34, 68, one, one, 68, one, one, 73, two, two, one, one, 68, one, only one, one, two, 73, two
DATE: 23rd of Feb. 1976, 8th Feb. 1994.2, 2861/2001, 1950, 1950, 1950, 1950, 1950, 1950, 1950, march, march, three years, three months, 1950, three years, 1950, 1950, 1950, 1950, the section 71, 1950, 1950, three years, three years, 1950, 1950, 1950, 1950, 1950, 1950, 1950, 1950, three months, 1950, 1950
ORG: Sepoy (Safaiwala, the Summary Court Martial, Writ Court, Provision, Madras High Court, Coy A.S.S Supply, LPA, the Court Martial, the Court Martial, the Court Martial, LPA, LPA, or(d, un, the Court Martial, the Court Martial, the Court Martial, Sections 34, Court Martial, the Court Martial, the Sepoy (Safaiwala, Madras High Court, the Division Bench, Madras High Court, Sec 73
PERSON: dismissal.3, Tashi Rabstan, R. Shanmugam, Madras, M.K. Bhardwaj ld Sr, or(g, interalia, Court Martial, Court Martial, Court Martial, Court Martial, Court Martial, Court Martial, Court Martial, Martial, Court Martial
ORDINAL: second, second, second
NORP: R.