Army Act, 1950 – s.120 – Appellant enrolled in the 43 Armed Brigade and at the material time was posted as Acting Lance Dafadar – Allegation that in August, 2007 while on duty for cleaning the service area in the morning, the appellant entered the residence of a colleague and while his spouse was washing her son, placed his hands on her shoulder – Summary Court Martial (SCM)– Appellant dismissed from service – Armed Forces Tribunal (AFT) while holding that the charge was duly established, concluded that the punishment of dismissal being disproportionate be modified to discharge – Plea of appellant that convening of an SCM is by way of an exception where immediate action is necessary– Held: In the exercise of its appellate jurisdiction, Supreme Court would be circumspect in reassessing the evidence when the AFT duly applied its mind to the findings of fact – Power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary, as enunciated by three judge Bench of Supreme Court in Union of India and Others v. Vishav Priya Singh [2016] 5 SCR 473 while interpreting s.120 – Sub-s.(2) of s.120 is prefaced by the words “when there is no grave reason for immediate action”– In the present case, though the incident took place on 11 August 2007, SCM took place on 22 May 2008– Convening of an SCM was contrary to law – Nearly 12 years have elapsed since the date of the incident – Appellant had nearly twelve years’ service when he was dismissed from service – Ends of justice would meet if the discharge of the appellant takes effect from the date on which he completes fifteen years of service so as to render him eligible for the grant of pension – Order of AFT modified – Arrears of pension be paid over to the appellant – Constitution of India – Art.142 – Practice & Procedure.
Appellant was enrolled in 1996 in the 43 Armed Brigade and at the material time was posted as Acting Lance Dafadar. It was alleged that in August 2007 while on duty for cleaning the service area in the morning, the appellant entered the residence of a colleague and while his spouse was washing her son, placed his hands on her shoulder. Summary Court Martial (SCM) was conducted and the appellant was dismissed from the service. Armed Forces Tribunal held that the charge was duly established, but concluded that the punishment of dismissal was disproportionate and the same be modified to order of discharge. Hence, the present appeal.
Allowing the appeal, the Court
HELD: 1.1 In the exercise of its appellate jurisdiction, Supreme Court would be circumspect in reassessing the evidence when the Armed Forces Tribunal has duly applied its mind to the findings of fact. The submission of the appellant has also been duly assessed that the appellant had lodged a complaint in the past against the spouse of the victim for pilferage of petrol. It is not necessary for Supreme Court to enter upon the findings of fact since there is an independent ground on which the submissions of the appellant would be worthy of acceptance. Section 120 of the Army Act, 1950 was interpreted in the decision in Ex-Havildar Ratan Singh and subsequently in Vishav Priya Singh. In a review petition filed by the Union of India in Vishav Priya Singh, the earlier judgment was clarified on 16 February 2017. The clarification indicates that the requirement of recording reasons for convening a Summary Court Martial shall apply from
5 July 2016. However, the fundamental principle of law which has been enunciated is that the power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary. Sub-section (2) of Section 120 is prefaced by the words “when there is no grave reason for immediate action”. In the present case, though the incident took place on 11 August 2007, the SCM took place on
22 May 2008. The convening of an SCM was contrary to law. Ordinarily liberty would have been granted to the respondents to pursue proceedings against the appellant in accordance with law. However, nearly twelve years have elapsed since the date of the incident. The appellant had nearly twelve years’ service when he was dismissed from service. In this view of the matter, we are of the view that the ends of justice would be met if in the exercise of our jurisdiction under Article 142 of the Constitution of India, we order and direct that the discharge of the appellant shall take effect from the date on which he completes fifteen years of service so as to render him eligible for the grant of pension. The learned counsel appearing on behalf of the appellant has submitted that this would meet the ends of justice. We accordingly allow the appeal and modify the impugned order of the Armed Forces Tribunal in the above terms. The appellant shall stand discharged from service on the completion of the minimum pensionable service with the result that he would be entitled to the disbursal of his pensionary benefits in accordance with law. The arrears of pension shall be paid over to the appellant within a period of three months from the date of receipt of a certified copy of this order.[Paras 8, 10-15] [929-D-E; 930-C-D; 931-C, E-H; 932-A-D]
Union of India and Others v. Vishav Priya Singh (2016) 8 SCC 641 : [2016] 5 SCR 473 – relied on. Ex Havildar Ratan Singh v. Union of India & Ors . AIR 1992 SC 415 : [1991] 2 Suppl. SCR 370
– referred to.
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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