DR DHANANJAYA Y CHANDRACHUD,J.
Admitted.
The respondent was enrolled in the Indian Army as a
Sepoy in the Army Service Corps on 25 April 1996. On 11
November 2007, he was dispatched on a permanent posting
to 874 ASC Batallion, which was deployed in Jammu and
Kashmir. Having failed to report to his new Unit on 21
November 2007, he was declared as absent without leave on
22 November 2007. In terms of Section 106 of the Army
Act 1950, a Court of Inquiry was held and the respondent
was declared to be a deserter with effect from 22
November 2007. On 18 September 2008, after a lapse of
302 days, the respondent reported to the ASC Centre
(North) at Gaya.
unauthorized absence over a period of 302 days without
leave; while the second count related to the loss of
certain equipment and clothing. The respondent pleaded
guilty to the two charges. In his statement before the
Summary Court Martial, the respondent stated thus:
“14. I No 6492086-A Sep/ASH Kulbeer Singh of 874
AT Bn ASC att with HQ Wing, ASC Centre (North)
was enrolled in the Army on 25 Apr 1996. I
belong to Vill – Sampla Begampur, PO – Sarsawa,
PS – Nakur, Teh – Nakur, Distt – Saharanpur,
State – UP. My family consists of my father aged
55 yrs, mother aged 52 yrs, wife aged 29 yrs and
son aged 3 yrs.
15. I was posted to 874 AT Bn ASC from 514 ASC
Bn during Nov 2007. During my preparatory leave
I went to my house. On reaching home, I cam to
know that my uncle had taken possession of my old
house. The matter was reported to Village
Sarpanch & Tehsildar. Tehsildar investigated the
matter & the house was recovered from my uncle
and handed over to my father. Thereafter I
reported at HQ Wing on 18 Sep 2008 afternoon
after being absent for 302 days.
16. I was found to be deficient of clothing and
equipment items for Rs.2265/- (Rupees two
thousand two hundred sixty five only) as
mentioned in the kit deficiency list att as Appx
to IAFD-918 (Annexure – II produced by
Prosecution Witness No.2).
17. The above statement has been read over to me
in the language (Hindi). I understand better and
sign it as correct in the presence of independent
witness.”
The Summary Court Martial found the respondent guilty
and sentenced him to dismissal from service.
The respondent submitted a petition under Section 164
of the Army Act on 17 May 2010, which was rejected by the
GOC, Madhya Pradesh Area on 13 April 2011. The
respondent challenged his conviction and dismissal from
service before the Armed Forces Tribunal at its Regional
Bench in Lucknow. By an order dated 21 August 2015, the
Tribunal came to the conclusion that the finding arrived
at by the Summary Court Martial was correct, but that the
sentence of dismissal was disproportionate. The Tribunal
noted that in his twelve years of service, the respondent
had been punished in 2007 for having overstayed his leave
by 140 days and this was his second infraction. In the
view of the Tribunal, the punishment could have been
modulated so as to allow the respondent to continue to
serve the Army until he qualified for pension. The
Tribunal found that the punishment which was awarded to
the respondent was disproportionate having regard to his
service of twelve years and, accordingly, issued the
following directions:
“20. Accordingly, the O.A. is only partly
allowed. While affirming the Summary Court
Martial proceedings and the Attachment Order to
be a valid, we direct that the punishment of
dismissal be hereby quashed. The petitioner will
be deemed to be notionally in service w.e.f.
12.11.2008 till he attains the service which
entitles him to receive pension and thereafter he
shall be granted pension with all consequential
benefits. We clarify that the petitioner shall
not be paid salary during the period of notional
service. No order as to costs.”
Assailing the aforesaid directions, the Union of
India is in appeal.
Ms. Madhavi Divan, learned Additional Solicitor
General along with Ms. Rukhmini Bobde, learned counsel
appearing for the appellants, submitted that the
respondent had duly admitted the charge of misconduct.
The Tribunal specifically found no reason to interfere
with the finding of the Summary Court Martial. Once this
was duly established, there was no justification for the
Tribunal to hold that the punishment was
disproportionate, considering the fact that there was an
unauthorized absence of 302 days by a member of the Armed
Force.
Two submissions were urged on behalf of the
respondent. Firstly, it was submitted that Section 39 of
the Army Act, 1950 provides that on conviction by a Court
Martial, a person who has committed an offence inter alia
of overstaying the leave granted shall be liable to
suffer imprisonment for a term which may extend to three
years or such lesser punishment as may be mentioned in
the Act. In the present case, it was, hence, urged that
instead of subjecting the respondent to a term of
imprisonment under Section 39, he was dismissed from
service. Secondly, it was submitted that if the
statement of the respondent is duly construed, it would
be incorrect to hold that he had admitted the charge of
misconduct.
We do not find any merit in the first submission.
Section 39 of the Army Act, 1950 is comprised in Chapter
VI which deals with “Offences”. Section 39 provides that
on a conviction by Court Martial for an offence involving
absence without leave, a sentence of imprisonment which
may extend up to three years may be imposed. Chapter VII
which deals with “Punishments” contains Section 71.
Clause (e) of Section 71 specifically contemplates the
punishment of dismissal from service on conviction by
Court Martials. Hence, we find no merit in the first
submission.
Insofar as the second submission is concerned, it is
evident from the statement, which was extracted earlier,
that the respondent had admitted his absence for 302 days
without leave. The statement contains a justification
for the absence. From the record, it is evident that the
respondent did not make any effort to apply for extension
of his leave. Absence of 302 days from his duty by a
member of the Armed Force could not be condoned. We are
clearly of the view that the Armed Forces Tribunal was in
error in coming to the conclusion that the punishment
which was imposed was harsh. The only basis for the
finding was that the respondent had put in twelve years
of service. This was all the more a reason why any
responsible member of the Armed Force should not have
absented from service without permission.
The Tribunal clearly misdirected itself in law in
coming to the conclusion that the punishment of dismissal
from service was harsh and disproportionate.
We accordingly allow the appeal and set aside the
impugned judgment and order of the Armed Forces Tribunal
dated 21 August 2015. In consequence, OA 483 of 2012
filed by the respondent shall stand dismissed. However,
there shall be no order as to costs.
Civil Appeal No(s).3095/2017
UNION OF INDIA & ORS. Appellant(s)
VERSUS
EX. NO.6492086A SEP/ASH KULBEER SINGH Respondent(s)
Date : 11-03-2019 This appeal was called on for hearing today.
CORAM :
For Appellant(s) Ms. Madhavi Divan, ASG
Ms. Rukhmini Bobde, Adv.
Mr. Shailender Saini, Adv.
Mr. A.K. Sharma, Adv.
Mr. Mukesh Kumar Maroria, AOR
For Respondent(s) Ms. Anindita Pujari, AOR
Ms. Aarti Krupa Kumar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Admitted.
The appeal is allowed in terms of the signed
reportable judgment. However, there shall be no order as
to costs.
Pending application, if any, stands disposed of.
(Signed reportable judgment is placed on the file)