IMPORTANT POINT
In the face of proved serious charge, punishment of dismissal cannot be said to be harsh.

JUDGMENT

Dr. Mukundakam Sharma, J. —

1. Leave granted.

2. The present appeal is directed against the judgment and order dated 06.04.2007 passed by the Division Bench of the Allahabad High Court dismissing the appeal filed by the appellant herein and confirming the judgment and order passed by the learned single Judge in the Writ Petitioner No. 2341 of 1990.

3. In order to appreciate the contentions raised before us it will be necessary to set out the brief facts of the case. The appellant while serving as Corporal in the Indian Air Force - Police Wing was served with a chargesheet dated 20.03.1980 containing three charges which were in the following manner: -

1.Committed carnal intercourse against the order of nature with Sanjay Kumar minor on 15.03.1980;

2.Consumed ‘Ganja’ while on duty on the same date; and

3.Left his place of duty for half an hour and the room remained unattended.

4. However, subsequently, another amended chargesheet was served upon him wherein the charges, namely, “consuming Ganja while on duty” and “remaining absent from duty” were dropped. The first charge of the first chargesheet was retained and another charge to the effect as shown was included therein, namely, “he placed his penis in the region of the exposed buttock of master Sanjay Kumar aged about 9 years”.

5. Thereafter the appellant was tried in the District Court Martial. Witnesses were examined and after conclusion of the trial, the District Court Martial found charge No. 1 as not proved but held that the charge No. 2 stood proved. Consequent to the findings so recorded, punishment of three months detention and reduction in rank was awarded to the appellant. As per the provisions of the Air Force Act, 1950 the aforesaid findings as well as the punishment were subject to confirmation by the Confirming Authority, consequently, the records were placed before the Confirming Authority which confirmed the said findings but commuted the punishment of detention for three months to dismissal from service vide order dated 07.08.1980.

6. Being aggrieved by the aforesaid order, the appellant filed Writ Petition No. 8251 of 1980 before the Allahabad High Court challenging the order dated 07.08.1980. The said Writ Petition was dismissed by the High Court vide judgment and order dated 21.02.1985. However, the said judgment and order was challenged before this Court which was registered as Criminal Appeal No. 421 of 1989. This Court by its order dated 10.07.1989 remanded the case back to the Confirming Authority with the following observations: -

“In view of the facts and the circumstances of the case, the order dated the 7th August, 1980 confirming the findings and sentence by the Court Martial is set aside. The matter should go back to the Confirming Authority for reconsideration and confirmation, in accordance with the law.”

7. In view of the aforesaid findings and directions recorded by this Court the matter was once again placed before the Confirming Authority which reconsidered the matter. Upon such reconsideration a revised confirmation order was passed by the Confirming Authority on 30.10.1989 by which the finding as well as the sentence awarded by the District Court Martial was confirmed. However, the Confirming Authority commuted the punishment of the detention for three months to dismissal from service. The said order was challenged by the appellant by filing Writ Petition No. 2341 of 1990 before the learned single Judge, Allahabad High Court which was dismissed by order dated 26.07.2000.

8. Being aggrieved by the aforesaid judgment and order a special appeal was filed before the Division Bench of the Allahabad High Court which was registered as Special Appeal No. 569 of 2000. Before the Division Bench the counsel appearing for the appellant contended that the appellant is not aggrieved by the findings recorded by the District Court Martial or by the Confirming Authority at all and the sole contention that was raised by the counsel, apparently on i