Armed Forces – Appellant was posted to 3 Rashtriya Rifles (RR) Battalion in 2006 – According to the prosecution while the appellant was so serving, it was ordered on August 13, 2006 to cordon and carry out search in a village in the Jammu and Kashmir – On reaching the village there was exchange of fire, after which the militants took cover in a maize field – When the appellant and the group in which he was given the responsibility to search the house was searching the said house, they heard firing from the direction of the maize field and as such the group exited the house and the cordon was thereafter adjusted around the maize field – In that regard the Light Machine Gun (LMG) was also placed and the LMG was manned by Sapper ‘GS’ and the appellant – Intense fire came from the direction of the maize field towards the LMG spot wherein Sapper ‘GS’ and the appellant were also positioned – Charge against the appellant is that he left his post, jumped across the stone wall and failed to retaliate against the militants due to which the militants broke the cordon and killed ‘GS’ – Appellant dismissed from service, sentenced to undergo imprisonment for six months by the Summary General Court Martial (SGCM) – Armed Forces Tribunal (AFT) upheld the order – On appeal, held: Task assigned to the group of officers was to cordon the area and prevent the militants from breaking through – Apart from the fact that the appellant was hit by a bullet in the leg while jumping over the wall, the other actions indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed – Though he contended that he jumped the wall to protect himself, there is no reasonable explanation as to why he did not use the weapons with him when the attack from the militants had already taken place and his colleague was injured – Tribunal rightly concluded that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious – In that circumstance, when the evidence has been adverted to by the AFT and when such conclusion reached does not indicate any perversity it would not be appropriate to interfere in the matter – No other material or circumstance brought on record by the appellant to indicate, but for the incident that there was any other reason due to which he was victimized or to show that it is a malafide action – Order of dismissal justified – However, in the peculiar facts and circumstance of the case, the order to undergo rigorous imprisonment is set aside – Army Act, 1950 – s.34(c) – Service Law.
Service Law – Disciplined Forces – Grant of punishment – Considerations for – Held: Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied.
Disposing of the appeal, the Court
HELD: 1. The task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for Supreme Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. The SGCM and the Armed Forces Tribunal were justified. The order of dismissal is justified and does not call for interference. In so far as the order for imprisonment, in the present facts and circumstance it is noticed that though the appellant had exhibited cowardice, the fact remains that he had also received a gunshot injury in the incident. Further, there is long lapse of time and as such in the peculiar facts and circumstance the order of imprisonment need not be implemented at this stage. [Paras 6-9] [35-A, D-H; 36-A-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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