Army Act, 1950 – s.39 (b) – Dismissal from service – Overstaying the leave – Appellant was enrolled in the Army service Corps as a Mechanical Transport Driver – Initially leave for 39 days granted to appellant – Further extension of leave was also granted on compassionate grounds – However, further request for extension of leave was rejected – Appellant failed to join – Court of Inquiry conducted – Appellant was declared deserter – Appellant finally surrendered after 108 days – Charges were framed – Appellant was held guilty and awarded punishment of dismissal from service – Appeal preferred was dismissed – Writ petition filed before the High Court, subsequently transferred to AFT was also dismissed – On appeal, held: Appellant had made a habit of remaining absent without leave even on earlier occasions – Earlier, punishments for overstayal of leave were also imposed – This was his sixth infraction for the very same offence – Gross indiscipline on the part of the appellant who was a member of the Armed Forces could not be countenanced – He remained out of line far too often for seeking condonation of his absence of leave, this time, for a prolonged period of 108 days which if accepted, would have sent a wrong signal to others in service – No infirmity found in the impugned judgment passed by the AFT – Appellant deserves no leniency – Impugned judgment upheld – Service Law.
Dismissing the appeal, the Court
HELD : 1. The appellant did not place any document on record by way of the treatment summary or medical certificate of his wife to demonstrate that she was seriously ill and required his presence for constant treatment. Instead, a bald statement was made by him during the Summary of Evidence to the effect that he had remained absent without leave on account of his wife’s ill health. Moreover, the appellant failed to cross-examine any of the prosecution witnesses produced by the respondents during the Summary of Evidence conducted on 12th July, 1999. Further, the appellant pleaded guilty to the charge levelled against him of having failed to rejoin duty on expiry of the leave granted to him from 8th November, 1998 to 15th January, 1999. [Para 8][1204E-G]
3. Appellant had made a habit of remaining absent without leave even on earlier occasions. It is apparent from the table that the appellant was a habitual offender. Such gross indiscipline on the part of the appellant who was a member of the Armed Forces could not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave, this time, for a prolonged period of 108 days which if accepted, would have sent a wrong signal to others in service. One must be mindful of the fact that discipline is the implicit hallmark of the Armed Forces and a non-negotiable condition of service. [Paras 9 and 10][1204-H; 1205-D-E]
4. It is apparent from a bare reading of the provision which deals with offences relating to absence without leave, that in case of an offence of overstaying leave without sufficient cause, on a conviction by a Court Martial, punishment by way of imprisonment for a term that may extend to three years or such less punishment as contemplated in the Act can be imposed on the delinquent person. Section 71 that falls under Chapter VII of the Act deals with punishments that may be inflicted for offences on conviction by the Court Martial, listed in a sliding scale. The punishment of imprisonment finds mention at sub-clause (c) whereas that of dismissal from service is mentioned down below, in sub-clause (e). In other words, the punishment of dismissal from service on conviction by Court Martial has been treated as a lesser punishment vis-à-vis the punishment of imprisonment for any period below 14 years. That being the position, the appellant cannot be heard to state that the punishment inflicted on him is graver than the one contemplated under the Act. [Para 12][1206E-G]
5. For the aforesaid reasons, this Court do not find any infirmity in the impugned judgment passed by the AFT. The appellant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the very same offence. Therefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him. [Para 17][1208-G-H; 1209-A]
Union of India and Others v. Ex. No. 6492086 Sep/Ash Kulbeer Singh (2019) 13 SCC 20 – relied on.
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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