JUDGMENT Poonam Srivastava, J.
1. Heard learned Counsel for the Union of India and Sri Anurag Khanna Advocate for the plaintiff-respondent.
2. This second appeal is preferred against the judgment and order dated 22.3.1991 passed in Civil Appeal No. 26 of 1989 allowing the appeal of the plaintiff-respondent. A Civil Suit No. 368 of 1984 was instituted in the court of 1st Additional Munsif Kanpur Nagar claiming the relief of revocation of order of dismissal passed against the plaintiff-respondent Laxmi Narain and the same stood dismissed.
3. The facts giving rise to the dispute is that the plaintiff was enrolled in the Air Force as an Airman and was posted in No. 7 Air Force Hospital Kanpur w.e.f. 4.11.1977. He married Smt. Arti Devi on 28.1.1975. After completing formalities like taking permission for his marriage, information to the Air Force authorities and necessary entries were made in his service documents. He was entitled to all service privileges such as family compensation, availing railway concession vouchers, medical facility etc. Subsequently the marriage did not survive and a decree of divorce was passed on 30 1 1980 between the plaintiff and Arti Devi. The plaintiff did not submit due information to the department regarding his divorce with Arti Devi The allegation was levelled against him that he continued to avail all service privileges of family personnel and this was done in violation of Section 57(e) of the Air Force Act, 1950 (hereinafter referred to as the Act). It is further alleged that the plaintiff-respondent continued to draw all compensation such as. in lieu of quarters, living out ration allowance and continued to avail other facilities for travelling etc not only for himself but also his family including his wife which reflected his dishonesty. When this fact came to the knowledge of the department that the plaintiff has subsequently married a lady Smt. Rajinder Rani on 11.10.1980 but concealed this fact from the department which is again a violation of the aforesaid Act, he was charge sheeted on 12.5.1981. Altogether 38 charges were levelled against him. Alter summary of the evidence was recorded, the matter was referred to the Superior Authority in accordance with Rule 25(b) of the Air Force Rules 1969 which was disposed of in accordance with Section 20(3) of the Act read with Rule 18 of the Rules. The plaintiff was issued a show cause notice. The competent authority after considering the entire material on record dismissed the respondent from service A departmental appeal was preferred to the Chief of the Air Staff which stood dismissed. This order was challenged in Original Suit No. 368 of 1984 which has given rise to the instant second appeal. The Additional Munsif Kanpur Nagar dismissed the suit, against which a civil appeal was preferred vide Appeal No. 26 of 1989 and the said appeal was allowed. This second appeal has been filed by Union of India challenging the order of the appellate authority. At the stage of admission, the second appeal was admitted on the following substantial question of law' Whether the provisions of Section 20 of Air Force Act and Rule 18 of Air Force Rules, 1969 are applicable and also that the proceedings for Court Martial were liable to be initiated ?
4. Learned Counsel for the appellant has argued that it is not always necessary that the person charge sheeted should be brought before the Court Martial for his conduct or be tried under Section 82 of the Act. It is for the authority to decide whether they will take action against the concerned person or would like to hold a Court Martial. The appellate court illegally allowed the appeal. The findings by the lower appellate court has emphatically been assailed on the ground that since the termination of service of the plaintiff-respondent was in accordance with provisions of the Act and Rules. The Civil Court had no jurisdiction whatsoever to hold the order of the competent authority illegal. Reliance has also been placed on a decision of Delhi High Court in the case of Gurdial Singh Cheema v. The Union or India and Ors. 1976 LAB. I.C. 59. The other decision relied upon by the learned Counsel for the appellant is Union of India v. S.K. Rao ,
5. Sri Anurag Khanna has emphatically disputed each and every arguments of the counsel for the appellants.
6. The trial court framed a number of issues. Issue No. 1 was on the question of validity and legality of the order of the dismissal dated 31 1.1982 and appellate order dated 31.10.1983. The remaining issues were, whether the wife of the plaintiff was admitted in the hospital on the relevant date and time and also facilities from the Air Force were availed for her treatment as well as issue No. 4, whether the orders of the Administrative Authority are malafide at the instance of interested person and liable to be quashed ? Issue Nos. 1 and 4 were decided simultaneously by the trial court, who came to conclusion that the order of dismissal passed against the plaintiff and its confirmation in appeal is justified, legal and can not be said to be without application of mind. The appellate court has reversed the finding the trial court after examining the various provisions of the Act and Rules. Section 73 of the Act provides that the punishment can be inflicted in respect of an offence committed by a person subject to this Act and convicted by Court Martial according to Scale provided in the various sub-clauses. Section 73(f) provides the punishment of dismissal from service. Section 20 of the Act also deals with dismissal, removal or reduction by Chief of the Air Staff and other officers. Section 20(7) is quoted below:
(7) The exercise of any powers under this section shall be subject to the other provisions contained in this Act and the Rules and regulations made thereunder'.
7. A perusal of the aforesaid provision makes it obligatory on the concerned authority that the powers to be exercised under Section 20(7) 'shall be subject' to the other provisions contained in this Act. Meaning thereby that the authority to remove a person from service under the provisions of the Act is under Section 20(3) and Section 73 of the Act. Section 54 enumerates injury in respect of property and Section 57 deals with falsifying official documents and declaration. The allegation levelled against the plaintiff in the instant case is squarely' covered within the offences defined under Section 52(a) and Section 57(d), in as much as, the officer concerned was under a duty to make declaration regarding his divorce with the first wife Smt. Arti Devi and his second marriage with Smt. Rajinder Rani and also availing the facilities for his second wife in respect of whom no information was given. Section 82 of the Act is another provision where punishment is provided to persons other than officers and warrant officers. However perusal of the various punishment detailed in paragraph 82(a) to 82(j) the punishments are minor in nature and will not cover the case of the appellant. Minor punishment has also been defined in Air Force Rules 82(c), which is quoted below:
Minor Punishment Air Force Rules Definition 82(c)- minor punishment means punishment inflicted without the intervention of a Court Martial under Section 82 or Section 86 It is thus clear that the provisions of Section 82 or 86 can be levelled only in respect of minor punishment but in the instant case admittedly, an offence which falls within the purview of Section 52(a) and 57(d) of the Act. Air Force Rules Chapter V provides that the investigation of charges and trial is by a Court Martial The lower appellate court has examined the various rules and also the provisions of the Act viz-a-viz disciplinary proceedings. Para 667 of the Regulation framed under the Rules provides that the charges for offence involving moral turpitude, fraud, dishonesty and culpable negligence causing financial loss require to be seriously dealt with where it appears that an offence of the above nature has been committed, the commanding officers should, as a rule not dispose of the case summarily but initiate action to bring the offender to trial by court martial. The rules which were challenged before the Apex Court was held not to be ultra vires of the Act, in the case of Union of India v. S.K. Rao (supra).
8. I have examined the judgment of the lower appellate court in the light of question of law framed by this Court at the time of admission. Learned Counsel for the appellant has tried to argue that the plaintiff could be removed or dismissed from service in exercise of powers under Section 20(3) of the Act. Counsel for the respondent has emphatically placed the provisions of Section 20(7) of the Act, which clearly provides that the exercise of any power under this Section shall be subject to the provisions contained in this Act, Rules and Regulation. Admittedly, the Rules and Regulation provides that where the offence is of serious nature which calls for punishment of dismissal then it shall be done investigated in a trial by the court martial. In view of these provisions, I have examined the judgment of the lower appellate court It has considered the various Rules and Regulations in detail and has recorded a finding that the procedure adopted by the appellant in passing an order of dismissal, has not been done in accordance with provisions of the Act, Rules and Regulations
9. Learned Munsif has examined only the factual aspects and, therefore without examining the relevant provisions of the Act, Rules and Regulations framed there under. Admittedly the plaintiff was awarded major punishment of dismissal' and, therefore, the recourse to summary proceedings by the appellant can not be accepted. I have examined the impugned judgment and 1 do not find any illegality whatsoever in the judgment and order of the lower appellate court. The second appeal lacks merit and is accordingly dismissed. The substantial question of law is decided accordingly. No order towards costs.