UNION OF INDIA & ORS. versus EX. NO.6492086A SEP/ASH KULBEER SINGH on 11 March 2019

1. Admitted.

2. The respondent was enrolled in the Indian Army as a Sepoy inthe Army Service Corps on 25 April 1996. On 11 November 2007, he H

was dispatched on a permanent posting to 874 ASC Batallion, whichwas deployed in Jammu and Kashmir. Having failed to report to hisnew Unit on 21 November 2007, he was declared as absent withoutleave on 22 November 2007. In terms of Section 106 of the Army Act1950, a Court of Inquiry was held and the respondent was declared tobe a deserter with effect from 22 November 2007. On 18 September2008, after a lapse of 302 days, the respondent reported to the ASCCentre (North) at Gaya.

3. On 12 November 2008, he was tried by a Summary CourtMartial on two counts: the first count was his unauthorized absenceover a period of 302 days without leave; while the second count relatedto the loss of certain equipment and clothing. The respondent pleadedguilty to the two charges. In his statement before the Summary CourtMartial, the respondent stated thus:

“14. I No 6492086-A Sep/ASH Kulbeer Singh of 874 AT Bn ASCatt with HQ Wing, ASC Centre (North) was enrolled in the Armyon 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 52yrs, wife aged 29 yrs and son aged 3 yrs.

15. I was posted to 874 AT Bn ASC from 514 ASC Bn duringNov 2007. During my preparatory leave I went to my house. Onreaching home, I cam to know that my uncle had taken possessionof my old house. The matter was reported to Village Sarpanch &Tehsildar. Tehsildar investigated the matter & the house wasrecovered from my uncle and handed over to my father.Thereafter I reported at HQ Wing on 18 Sep 2008 afternoon afterbeing absent for 302 days.

16. I was found to be deficient of clothing and equipment itemsfor 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 presenceof independent witness.”

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A4. The Summary Court Martial found the respondent guilty andsentenced him to dismissal from service.

5. The respondent submitted a petition under Section 164 of theArmy Act on 17 May 2010, which was rejected by the GOC, MadhyaPradesh Area on 13 April 2011. The respondent challenged his convictionBand dismissal from service before the Armed Forces Tribunal at itsRegional Bench in Lucknow. By an order dated 21 August 2015, theTribunal came to the conclusion that the finding arrived at by the SummaryCourt Martial was correct, but that the sentence of dismissal wasdisproportionate. The Tribunal noted that in his twelve years of service,the respondent had been punished in 2007 for having overstayed hisCleave by 140 days and this was his second infraction. In the view of theTribunal, the punishment could have been modulated so as to allow therespondent to continue to serve the Army until he qualified for pension.The Tribunal found that the punishment which was awarded to therespondent was disproportionate having regard to his service of twelve Dyears and, accordingly, issued the following directions:

Dyears and, accordingly, issued the following directions:

“20. Accordingly, the O.A. is only partly allowed. While affirmingthe Summary Court Martial proceedings and the Attachment Orderto be a valid, we direct that the punishment of dismissal be herebyquashed. The petitioner will be deemed to be notionally in serviceEw.e.f. 12.11.2008 till he attains the service which entitles him toreceive pension and thereafter he shall be granted pension withall consequential benefits. We clarify that the petitioner shall notbe paid salary during the period of notional service. No order asto costs.”

F6. Assailing the aforesaid directions, the Union of India is inappeal.

7. Ms. Madhavi Divan, learned Additional Solicitor General alongwith Ms. Rukhmini Bobde, learned counsel appearing for the appellants,submitted that the respondent had duly admitted the charge of misconduct.GThe Tribunal specifically found no reason to interfere with the finding ofthe Summary Court Martial. Once this was duly established, there wasno justification for the Tribunal to hold that the punishment wasdisproportionate, considering the fact that there was an unauthorizedabsence of 302 days by a member of the Armed Force.

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8. Two submissions were urged on behalf of the respondent.Firstly, it was submitted that Section 39 of the Army Act, 1950 providesthat on conviction by a Court Martial, a person who has committed anoffence inter alia of overstaying the leave granted shall be liable tosuffer imprisonment for a term which may extend to three years or suchlesser punishment as may be mentioned in the Act. In the present case,it was, hence, urged that instead of subjecting the respondent to a termof imprisonment under Section 39, he was dismissed from service.Secondly, it was submitted that if the statement of the respondent is dulyconstrued, it would be incorrect to hold that he had admitted the chargeof misconduct.

9. We do not find any merit in the first submission. Section 39 ofthe Army Act, 1950 is comprised in Chapter VI which deals with“Offences”. Section 39 provides that on a conviction by Court Martialfor an offence involving absence without leave, a sentence ofimprisonment 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 dismissalfrom service on conviction by Court Martials. Hence, we find no meritin the first submission.

10. Insofar as the second submission is concerned, it is evidentfrom the statement, which was extracted earlier, that the respondenthad admitted his absence for 302 days without leave. The statementcontains a justification for the absence. From the record, it is evidentthat the respondent did not make any effort to apply for extension of hisleave. Absence of 302 days from his duty by a member of the ArmedForce could not be condoned. We are clearly of the view that the ArmedForces Tribunal was in error in coming to the conclusion that thepunishment which was imposed was harsh. The only basis for the findingwas that the respondent had put in twelve years of service. This was allthe more a reason why any responsible member of the Armed Forceshould not have absented from service without permission.

11. The Tribunal clearly misdirected itself in law in coming to theconclusion that the punishment of dismissal from service was harsh anddisproportionate.

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1104SUPREME COURT REPORTS

[2019] 4 S.C.R.

A12. We accordingly allow the appeal and set aside the impugnedjudgment and order of the Armed Forces Tribunal dated 21 August 2015.In consequence, OA 483 of 2012 filed by the respondent shall standdismissed. However, there shall be no order as to costs.

BAnkit Gyan

Appeal allowed.

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