Army Act, 1950 – s.106 – Inquiry into absence without leave – Respondent-sepoy in the Indian Army failed to report to his new unit – He was declared to be a deserter – However, respondent reported after a lapse of 302 days – He was tried by a Summary Court Martial – Respondent pleaded guilty and he was dismissed from service – However, Armed Forces Tribunal came to conclusion that the finding arrived at by the Summary Court Martial was correct, but the sentence of dismissal was disproportionate – On appeal, held: On perusal of 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 was not condonable – Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh – The only basis for finding was that the respondent had put in twelve years of service – However, this was all more a reason why any responsible member of the Armed Forces should not have absented himself from service without permission – Judgment and order of the Armed Forces Tribunal set aside.
The respondent was enrolled in the Indian Army as a Sepoy in the Army Service Corps. Having failed to report to his new Unit, he was declared as absent without leave. However, after a lapse of 302 days, the respondent reported to the ASC Centre (North) at Gaya. Thereafter, he was tried by a Summary Court Martial, wherein respondent pleaded guilty. The Summary Court Martial found the respondent guilty and sentenced him to dismissal from service. The respondent challenged his conviction and dismissal from service before the Armed Forces Tribunal. 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. Hence, present Special Leave Petition.
Allowing the appeal, the Court
HELD: It is evident from the statement of the respondent, that he 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. This Court is 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. [Paras 10 and 11] [1103-E-H]
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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