Bombay High Court
Ex-Surgeon Commander Bhaskar Roy vs Union Of India & Ors. on 17 October, 1997
Equivalent citations: 1998(1)MHLJ220
Author: T. K. Chandrashekhara Das
Bench: Vishnu Sahai, T. K. Chandrashekhara Das
JUDGMENT T. K. Chandrashekhara Das, J.
1. The Petitioner was serving in Indian Navy as Doctor in the post of Surgeon Commander. He was subjected to trial by Court Martial for the offence punishable under section 354 of the Indian Penal Code and for violation of certain Navy Rules of discipline. After the trial by Court Martial by the impugned order dated 29th November, 1995, he was found guilty under section 354, Indian Penal Code and under Sections 68, 77(2) and 74 of the Navy Act, 1957 and sentenced to undergo R.I. for 24 calendar months. He was also dismissed with disgrace from the Naval Service as a consequential penalty. Against this Order, Petitioner filed a Writ Petition before this Honourable Court as Criminal Writ Petition No. 1334 of 1995 and the aforesaid Writ Petition was disposed of by the Judgment dated 18th December, 1995 with direction to the Reviewing Authority to dispose of the Petitioner's Appeal/representation within four weeks. Accordingly, the Reviewing Authority has passed an order dated 29th March, 1996 produced Exh. 'E' in this Writ Petition whereby the RI of two years imposed on Petitioner by Court Martial was reduced to one year; but however other penalties have been maintained. The Order Exh, 'E' passed by the Chief of Naval Staff Admiral Shekhawat also exonerated the Petitioner of charges 3 and 4. The Petitioner challenges these two orders in this Writ Petition. Though charges levelled against the Petitioner are not required to be dealt with in detail here it is necessary to refer to the same for the purpose of the discussion of the points raised in the Writ Petition. The charges framed against the Petitioner are stated hereunder :
Charge No. 1 : Did between 1800 hours and 1900 hours on 26th August, 1995 use criminal force to Miss Ritu Vohra with an intent to outrage her modesty in that he slipped his hand inside her bra whilst examining her for sore throat and fever ailment at Family Clinic, Naval Officers' Flats Residential Area, an offence under Section 354 of the India Penal Code.
Charge No. 2 : Did between 1430 hours and 1630 hours on 21 January, 1995 use criminal force to Miss Nupura Acharekar with an intent to outrage her modesty in that he pawed her breast in the ante-room of INS Viraat, an offence punishable under section 354 of the Indian Penal Code.
Charge No. 3 : Was between 1330 hours and 1500 hours on 30 January, 1995 guilty of an act to the prejudice of good order and naval discipline in that he threatened to lower the medical category or Captain JS Bedi (01002 A), Commanding Officer, INS Viraat to 53A3 if the Commanding Officer would report the misconduct committed by him towards Miss Nupura Acharekar in the ante-room of INS Viraat on 21 January, 1995 to the higher authorities, an offence punishable under section 74 of the Navy Act, 1957.
Charge No. 4 : Did between 1600 hours and 1900 hours on 26th August, 1995 contravene Regulation 48(12) of Regulations for the Medical services of the Armed Forces 1983 in that he examined Miss Ritu Vohra, a female Patient, at the Family Clinic, Naval Officers' Flats Residential Area without the presence of a nurse or a female attendant and thereby committed an offence punishable under section 68 of the Navy Act, 1957.
2. Though, in the trial, the Petitioner totally denied charges. The Court Martial and also Chief of Naval Staff as an appellate authority have found on facts that the Petitioner is guilty of outraging of modesty under section 354, Indian Penal Code levelled against him under charge 1 and 2. The Counsel for the Petitioner though tried to place before us the evidence adduced during the Court Martial trial, we are not inclined to go through the same because in a Petition under Article 226 it is not appropriate for this Court to take up the task of reappreciating the evidence and find out whether the original authority or appellate authority was right in holding on facts that the Petitioner is guilty of the offence charge or not. It is by now well established that under the exercise of power under Article 226 normally this Court will not venture to scan through the evidence for reappreciation and substitute its wisdom with decision of facts finding Authority.
3. The learned Counsel for the petitioner Mr. Nitin Pradhan, however, submits that the procedure followed in the trial in prosecuting the Petitioner by Court Martial is arbitrary and discriminatory, in the sense that the procedure that is to be followed for Court Martial under the Army Act has not been followed in the case of the Petitioner, being a member of the defence service. Mr. Pradhan points out that the opportunity afforded to a delinquent Officer by virtue of Rules 24 and 25 of the Army Rules has not been provided under Rule 149 of the Navy Rules. As far as Navy Rule 149 is concerned, it is the regulation pertains to investigation while it does not provide any opportunity to cross examine the person questioned by the investigating agency at the preliminary stage whereas Rules 24 and 25 gives the Army personnel a right to cross-examine the witness at the stage of preliminary investigation itself. This is per se discriminatory and, therefore, the proceedings under Navy regulation are ab-initio-void, according to the counsel for the Petitioner. Dwelling on this point, the main contention of Mr. Pradhan is that the Army, Navy or Air Force are the defence forces and all the members of the defence forces have to be treated similarly and alike and, therefore, the extra safeguard provided under the Army Rules 24 and 25 in the matter of investigation of offence against Army personnel must also be made available to the members of other forces also.
4. The Additional Solicitor General Mr. Rafique Dada appearing for Union of India countered the very foundation of the argument of Mr. Pradhan. He submits that all the personnel of three Defence Services cannot be treated alike. Mr. Dada submits that even though personnel belonging to Army, Navy or Air Force can be commonly called as Defence Service Personnel for convenience, they are governed by the different Acts and different Rules. He points out that the very fact that the separate enactments have been passed by the Parliament itself will prima facie show that three Defence Forces belong to different classes. He also brought to our notice the historical background of three different enactments pertaining to three different forces as indicated in the objects and reasons of these enactments. Therefore, Mr. Rafique Dada contended that the Petitioner cannot insist that the Rules framed under Army Regulations should be made applicable to the Naval personnel. He further brought to our notice the decision of the Supreme Court which deals with this aspect of the argument of the learned Counsel for the Petitioner in in which the Supreme Court has held thus :
The relevant Chapters of the Army Act, the Navy Act and the Air Force Act embody a completely self-contained comprehensive Code specifying the various offences under those Acts and prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by Courts Martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by Courts Martial, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on Courts Martial and prescribing a special form of procedure for the trial of the offences under those Acts."
5. In view of this ruling of the Supreme Court, we cannot accept the contention of the learned Counsel Mr. Pradhan that the benefit of Rules 24 and 25 of the Army Rules should have been given to the Petitioner. We cannot hold classification made by the Parliament as irrational. Counsel for the Petitioner could not demonstrate as to how the said classification made by the Parliament among the defence personnel is unintelligible. It must be noticed here, even the Constitution treated these three forces separately as mentioned in entry No. 2, List I of the Constitution, mentioning separately as Army, Navy, Air Force. If the three forces are treated alike the entry would have been mentioned as defence personnel or by any other common name. Therefore, it is not possible to accept the contention of Mr. Pradhan that these personnel should be treated similarly in matters of investigation of offences. At this juncture, Mr. Rafique Dada, learned Additional Solicitor General submits that Petitioner cannot base his arguments on violation of any fundamental right under Chapter III of the Constitution of India. Before we examine this question, we have to consider this Court's jurisdiction under Article 226 which is limited as far as disciplinary actions are concerned in exercise of its power of discretion. This Court should only see whether there was any violation of the Rules in conducting disciplinary proceedings, or trial by Court Martial or there was any violation of principles of natural justice, at any stage of the trial and also whether punishment awarded is shockingly disproportionate to the gravity of offence or guilt. In this connection, a very material point has been raised by the learned Additional Solicitor General about the applicability of Article 14 of the Constitution of India so far as the defence personnel are concerned. Mr. Rafique Dada, points out in this context Article 33 of the Constitution of India which empowers Government to restrict or abrogate the application of fundamental rights as far as personnel belonging to the defence are concerned. Article 33 reads as follows :
"33. Power of Parliament to modify the rights conferred by this Part in their application to forces, etc. - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, -
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with the telecommunication systems set up for the purposes of any force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."
This Article clearly shows that by legislation, Parliament can restrict or abrogate the fundamental rights under Part III in its application to Army, Navy and Air Force and section 4 of the Navy Act, 1957 says fundamental rights Part III are restricted and abrogated to the extent they are in conflict with provisions of the Navy Act.
6. In this context, the learned Additional Solicitor General cited decision in the case of Ram Sarup v. Union of India, in which Paragraph 16 reads as thus :
"16. Lastly, Mr. Rana, learned Counsel for the petitioner, urged in support of the first point that in the exercise of the power conferred on parliament under Article 33 of the Constitution to modify the fundamental rights guaranteed by Part III, in their application to the armed forces, if enacted section 21 of the Act which empowers the Central Government, by notification, to make rules restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the fundamental rights under Articles 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the Articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those Articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right.
Captain Chander Kumar Chopra v. Union of India, , the Supreme Court has repeated the same view. Paragraph 15 of the decision reads thus :
"Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referable to an entry in the relevant list. Entry 2 in List I : Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act and armed with this power the Act was enacted in July, 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself terms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act. This is no more res integra in view of the decision of the Constitution Bench of this Court in Ram Sarup v. Union of India, in which repelling the contention that the restriction or abrogation of the fundamental rights in exercise of the power conferred by Article 33 is limited to one set out in section 21 of the Act."
Therefore, It is well settled law that the rights available under the Constitution for ordinary citizens are not available to the personnel of defence service and the ground of attack on the violation of fundamentals, as available to the ordinary citizen is not available to the Petitioner.
7. The learned Additional Solicitor General however, has pointed out that in case of the Petitioner, the complaint cannot be made in regard to violation of principles of natural justice. The statement recorded under Rule 25 of the Army Act cannot be equated with the statement recorded under Rule 149 of the Navy Act. Under Rule 41 of the Army Act, the statement recorded under Rule 25 is part of the documents and evidence given to the Court Martial. This is not so under the Navy Regulations because Regulation 159(3), prohibits giving such statement under Rule 149 of the Court Martial. However, the statement taken under Rule 149 of the Navy Regulations was given to the accused. The evidence of the witnesses was taken once again in open Court and the accused was once again entitled to cross-examine the witnesses. Therefore contention based of Rule 25 of the Army Rules will not be available to the Petitioner. On perusal of the relevant rules, we find considerable force in the contention of the learned Additional Solicitor General. We find no case is made out on the ground of violation of principles of natural justice. The petitioner was given ample opportunity to study the statement of witnesses given against him and also to cross-examine the witnesses on the basis of the statement. In fact, the Petitioner has meticulously cross-examined the witnesses in this case. In short, contention of the Petitioner's counsel that Court Martial proceedings are vitiated by the breach of fundamental rights and the natural justice has no basis.
8. With regard to the contention of the counsel for the Petitioner that the respondent has not changed the prosecutor even though he alleged bias against him, the argument of the counsel for the respondent is that Prosecutor cannot be changed on the allegation of bias. But, bias has not been established against none of the members of the Court Martial.
9. Another contention of the Counsel for the Petitioner is that the Navy Act and the Regulations framed do not provide any appeal to be heard by any judicial authority or by any such authority which is a trained lawyer or a Judge. We do not understand the rationale behind this argument. As we have stated in the earlier part of the Judgment, against the order passed by the Court Martial as directed by this Court on Appeal/representation filed by the Petitioner under Section 160 of the Navy Act the Appellate Authority has passed the impugned order which was referred to above. In fact, the Appellate Authority on reappreciation of evidence and consideration of all the facts and circumstances, exonerated the Petitioner from certain charges and reduced the duration of sentence to one year. Therefore, the Petitioner cannot have any grievance on this score inasmuch as procedural irregularity, if any, contained in the original order of Court Martial is deemed to have been cured or corrected by the Appellate Authority. Therefore, the contention based on the complaints that great prejudice is caused in the absence of appeal provisions in the Navy Act cannot be accepted.
10. We would be failing in our duty if we do not mention about that the Master Court verdict is not consistent with principles of fair play for furnishing no reasons in support of findings in the impugned Order.
11. As mentioned earlier when the Petitioner was found guilty of the offence by the Court Martial proceedings, we do not understand on what basis finding was entered into by the Court Martial. When the matter was discussed at the time of hearing of the case, it has disclosed by the Additional Solicitor General that in the Court Martial proceeding, no reasons are usually stated and only finding is given. We find that a serious refraction of principle of natural justice was committed by the Court Martial for not stating reasons for its findings. The submission of Mr. Rafique Dada, the learned Additional Solicitor General is that the imposition of punishment against the Petitioner will not vitiate in the absence of any reason stated for the finding, because the Chief of Naval Staff has discussed the entire evidence and stated reason on which the findings were entered into while disposing off the Petitioner's representation under section 160 of the Navy Act. We cannot approve of this submission. The Court Martial proceeding has been initiated in this case for an offence committed under section 354, Indian Penal Code. In normal circumstances, it is an offence triable by a Magistrate. It is in the special circumstances that culled out in the Navy Act, this jurisdiction is being exercised by the Court Martial. If Magistrate's Order of conviction can be challenged on the ground of not furnishing reason to support its finding, we consider it is equally palpable to criticize the order of the Court Martial on the same reasons. Several witnesses were examined by the Court Martial. Though the procedure in Court Martial is different, it does not mean that its Judgment need not be supported by any reason, as is done by the Criminal Court. It is elementary in procedural jurisprudence, in particular, when the matter is effecting rights of the citizen that the finding should be supported by reason. The contention of Additional Solicitor General that this defect, if it all is a defect, has been rectified by the Chief of Naval Staff exercising on the power under section 160 of the Act, is not the answer for the Court Martial for adopting a course defying the principles of fair play and natural justice. Let us now examine section 160 of the Navy Act.
Section 160 Rules reads as follows :
S. 160(1) All proceedings of trial by Court Martial or by disciplinary courts shall be reviewed by the Judge Advocate General of the Navy either on his own motion or on application made to him within the prescribed time by any person aggrieved by any sentence or finding, and the Judge Advocate General of the Navy shall transmit the report of such review together with such recommendations as may appear just and proper to the Chief of the Naval Staff for his consideration and for such action as the Chief of the Naval Staff may think fit.
2. Where any person aggrieved has made an application under sub-section (1) the Judge Advocate General of the Navy may, if the circumstances of the case so require, give him an opportunity of being heard either in person or through a legal practitioner or an officer of the Indian Navy.
Jurisdiction under section 160 can be invoked where the person aggrieved files an application or when the Judge Advocate General of the Navy on his own motion or makes an application for Judicial review within the prescribed time, then alone Judge Advocate General of the Navy shall transmit the report of such review together with such recommendations as may appear just and proper to the Chief of the Naval Staff for his consideration. Therefore Judicial review of Naval Service envisaged under section 160 can only be invoked in particular circumstances. If circumstances do not exist, the invocation of jurisdiction under section 160 does not arise. In other words, the order passed by the Court Martial in Court Martial Proceedings becomes final and binding on the party. Since the recourse under section 160 is optional, Order passed by Court Martial is final as far as trial of the offence is concerned. Such final order should always contain reasons.
12. It is well recognised rule of prudence that any quasi judicial authority or administrative authority shall state reasons for its decision. Though earlier the Indian Courts were reluctant to recognise this reason as a part of principle of natural justice, it has been nowadays recognised as an extension of the principles of natural justice and fair play. Therefore, the Court Martial ought to have shown the reasons for its decision. It is true that the Supreme Court, in Som Dutta v. Union of India, , has held that apart from any requirements imposed by the Statute as mandatory rules, either expressly or by necessary implication, it cannot be said that there is any general principle or any rule of natural justice that an authority or Tribunal should always and in every case, state reason in support of their decision but, however, it is urged in Raipur Development Authority v. Chokhamal Contractors, 1989 II CLR 539 (SC), the decision in Soma Dutta's case (supra) has been recorded without considering an earlier Constitution Bench decision in Bhagat Raja v. Union of India, and, therefore, that Dutta's case has to be treated as per incuriam. However, in Raipur Authority (supra) case, the Supreme Court held thus :
"A careful reading of this decision shows that it is not based on the ground that the order of the Central Government was not in conformity with the principles of natural justice but on the ground that the order of the Central Government was subject to the supervisory powers of the High Courts under Article 227 of the Constitution of India and the appellate powers of this Court under Article 136 of the Constitution of India. It is no doubt true that in Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India, , a Bench of three Judges of this Court held that every quasi Judicial order of a tribunal must be supported by reasons and the rule requiring the reasons to be given in support of the order was like the principles of natural justice which must involve every quasi judicial process and that the said rule should be observed in the proper spirit. In that case again an order whose validity had been questioned in this Court in an appeal filed under Article 136 of the Constitution of India was an order passed by the Central Government under the Customs Act. A reading of the decision in this case shows that the Court felt that the rule requiring reasons in support of an order was a rule not covered by the principle of audi alteram partem but an independent principle of natural justice. We have already observed that the two recognised principles of natural justice were (i) that a Judge or an umpire who is entrusted with the duty to decide a dispute should be disinterested and unbiased (nemo Judex in causa sua); and (ii) that the parties to dispute should be given adequate notice and opportunity by the authority (audi alteram partem). For the first time this court laid down that the rule requiring reasons in support of an order is a third principle of natural justice. It may be as observed in Bhagat Raja's case, (supra) that the Court may require a tribunal to give reasons in support of its order in order to make the exercise of power of the High Courts under Articles 226 and 227 of the Constitution of India and the powers of this Court under Article 136 of the Constitution of India effective."
The Supreme Court, after surveying all the decisions on the subject in S. N. Mukerjee v. Union of India, , has held that even an Administrative Authority should state reasons supporting its conclusion in compliance of principle of natural justice. In Para 39 of the aforesaid decision, the Supreme Court held thus :
"39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."
It is thus clear that the Order of the Court Martial under Navy Act is a trial Order enforcing penalty on the Navy personnel and Judicial Review under 160 is only optional, in the absence of any express provision against stating reasons.
13. We are of the view that the Court Martial should have given reason for its finding. However, we are not going to set aside the punishment imposed by the Court Martial on this ground because whatever defects the order passed by the Court Martial suffers from the Chief of Naval Staff endeavoured to discuss entire evidence and then come to the conclusion that whatever finding of the guilt entered was into by the Court Martial was legal. We discuss this aspect in this case only for future guidance of Court Martial proceedings. We trust and hope that the Court Martial will always state reasons and communicate the same to the aggrieved party this being consistent with principles of natural justice and fair play.
14. Now let us come to the next phase of the case viz. the quantum of punishment. Sections 81 and 82 of the Navy Act deal with the quantum of punishment and manner in which punishment is to be enforced. The punishments mentioned in sub-section (1) of section 81 are supposed to be the substantial punishments. Sub-section (2) of section 81 says the punishments mentioned in sub-section (1) has been arranged according to its gravity. Section 82 almost deals with the consequence of the punishment or manner in which the punishment has to be enforced. Punishment mentioned in section 81(1)(b) is the one awarded against the Petitioner which reads as follows :
81(1)(b) : imprisonment which may be for the term of life or any other lesser term:
81(1)(c) : dismissal with disgrace from the naval service;
81(1)(e) : dismissal from the naval service.
Sub-section (2) of section 81 indicates that more than one punishment cannot be inflicted upon the delinquent for an offence. In other words, if in a case imprisonment is awarded, dismissal from Naval service cannot be awarded. Now, let us examine section 82.
Sections 82(1), 82(3) and 82(4) reed as follows :
82(1) : The punishment that may be inflicted under this Act shall be awarded in accordance with the provisions of the following sub-sections.
(3) : The punishment of imprisonment for a term exceeding two years shall in all cases be accompanied by a sentence of dismissal with disgrace from the naval service.
(4) : The punishment of imprisonment for a term not exceeding two years may in all cases be accompanied by a sentence of dismissal with disgrace or dismissal from the naval services :
Provided that in the case of officers, unless the sentence of dismissal with disgrace is also awarded, such sentence of imprisonment shall not involve dismissal from the naval service.
(5) : The sentence of imprisonment may be rigorous or simple, or partly rigorous and partly simple.
(6) : The sentence of dismissal with disgrace shall involve in all cases forfeiture of all pay, head money, bounty, salvage, prize money and allowances that have been earned by and of all annuities, pensions, gratuities, medals and decorations that may have been granted to the offender and an incapacity to serve Government again in a defence service, or a civil service, or to hold any post connected with defence or any civil post under the Government :
Provided that the forfeiture of moneys shall not apply, except in the case of deserters, to moneys which should have been paid on the last pay day preceding conviction.
15. In this case the petitioner was awarded, two years R.I. as substantial punishment by the Court Martial and by operation of section 82(3), the penalty of dismissal from Naval service with disgrace was also imposed.
16. As we have seen the review authority has not confirmed the finding of the guilt of the Petitioner in respect of the charge 3 and 4. Section 82 says that punishment that may be inflicted under this Act shall be awarded in accordance with the provisions of the following mentioned in section 82. Relevant sub-sections in this case are as pointed out earlier. Sub-section (3) of section 82 says punishment of imprisonment for a term exceeding two years shall in all cases be accompanied by a sentence of dismissal with disgrace from the Naval service. We have to mention here that the dismissal with disgrace from Naval service in this case is not as substantial sentence. It is only consequential penalty of having been sentenced for imprisonment. According to sub-section (3), unless imprisonment is exceeded two years there cannot always be a dismissal with disgrace. Some margin is given to the discretion of the authority under sub-section (4) of section 82 of the Navy Act. Admittedly, sentence imposed under sub-section (3) by the original authority Court Martial has no power to impose the consequential penalty of dismissal with disgrace. Under sub-section (3) of section 82 because the Petitioner was sentenced to undergo imprisonment only for two years i.e. not exceeding two years. Therefore in normal circumstances, it is not a sentence which entails dismissal with disgrace. But further, the punishment of imprisonment for a term not exceeding two years some time in certain circumstances may also be attracted dismissal with disgrace. But, it is not always in all cases. Rule implies as special circumstances have to be made out for resulting dismissal with disgrace when the sentence is less than two years. In other words, where a Naval Officer sentenced to imprisonment less than two years, a discretion is vested in the disciplinary authority as to why it should or not award the dismissal with disgrace. Dismissal from Naval service with disgrace and with grace are quite different. Consequent dismissal with disgrace is more serious than the dismissal from the service, simpliciter. Therefore, for the imprisonment of less than two years, it is the bounden duty of the imposing authority to state the reason as to why it is necessary to impose the dismissal disgrace or dismissal from service, as the case may be. As already stated, as the Court Martial's order is silent about this, a serious infraction of rules has been committed by Court Martial as regards imposition of this part of punishment is concerned. Again we have to note that appellate authority viz. Chief of Naval Staff reduced imprisonment from two years to one year and reasons also were stated in the order. Chief of Naval Staff has failed, while reducing the sentence to one year to state special circumstances why the penalty of dismissal from service with disgrace is to be maintained. Even Naval authority has not stated any reason why the Petitioner is suffer to dismissal from service with disgrace. In the facts of the case, it appears to us that the Petitioner was found guilty for commission of an offence under section 354, Indian Penal Code and he was sentenced to undergo imprisonment for one year. It may be incidentally noted that the sentence as prescribed for an offence under section 354, Indian Penal Code cannot exceed two years. Imposition of penalty of sub-section (2) of section 82 will not arise in this case at all. Under sub-section (4) of section 82 the discretion that may be exercised has not been properly exercised in this case by the authorities; both Court Martial and Chief of Naval Staff. It is true that the modesty of two ladies was outraged by the act of the petitioner and hence the Petitioner being a Doctor is not entitled to continue in service of Navy. Therefore, we think it proper, taking account of seriousness of the offence that the appropriate punishment to the Petitioner is one year imprisonment and dismissal from Naval service. In other words, impugned order is to be modified to the extent that the Petitioner's dismissal from service with disgrace is to be deleted and instead it should be substituted by dismissal from Naval Service, simpliciter.
17. In the result, Writ Petition is partly allowed. The Impugned Orders stand modified to the extent indicated above that the Petitioner's dismissal from Naval service with disgrace has to be substituted by dismissal from Naval Service. The Petitioner therefore, is entitled to all consequential benefits arising out of the alteration of this penalty. Sentence and penalty of dismissal from service, however, is not effected by this Judgment.
18. There shall be no order as to costs.
19. In all other respects impugned orders are unaltered.
20. CC expedited.
21. Petition partly allowed.