EX SEPOY MADAN PRASAD versus UNION OF INDIA AND OTHERS on 28 July 2023

1. The present appeal is directed against the judgment and orderdated 16[th] February, 2015, passed by the Armed Forces Tribunal[1], RegionalBench, Lucknow whereby the appeal[2] originally filed by the appellant asa Writ Petition before the High Court of Judicature at Allahabad[3] andsubsequently transferred to the AFT, which was dismissed and the ordersdated 24[th] August, 1999 and 4[th] October, 2001 passed by the respondentsNo. 5 and 2, respectively upholding the charge levelled against him underSection 39(b) of the Army Act, 1950[4] of overstaying the leave granted 1 For short “AFT”

2 Transfer Application No. 1227 of 2010

3 Writ Petition No. 3439 of 2003

4 For short “The Act”

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Ato him without sufficient cause, thereby dismissing him from service,were endorsed.

2. Briefly stated, the facts of the case are that the appellant wasenrolled in the Army Service Corps[5] on 4[th] January, 1983 as a MechanicalTransport Driver. In the year 1998, he was initially granted leave for 39Bdays from 8[th] November, 1998 to 16[th] December, 1998. His request forextension of leave on compassionate grounds was allowed by therespondents and he was granted advance annual leave for 30 days inthe year 1999, from 17[th] December, 1998 to 15[th] January, 1999. However,the appellant failed to rejoin duty. Claiming that his wife had fallen ill andhe was arranging her medical treatment and looking after her, heCoverstayed the leave granted to him. The petitioner’s telephonic requestfor extension of leave was rejected[6]. However, he did not report backimmediately. On 15[th] February 1999, a Court of Inquiry was conductedunder Section 106 of the Army Act to investigate the circumstancesunder which the appellant had overstayed leave. The Court opined thatDthe appellant be declared a deserter with effect from 16[th] January, 1999.

3. The appellant finally surrendered after 108 days, on 3[rd] May,1999 at HQ Wing, ASC Centre (South), Bangalore. The charge framedagainst him was heard by the Commanding Officer under Rule 22 of theArmy Rules on 8[th] July, 1999. The appellant declined to cross examineEany of the witnesses. After recording the Summary of Evidence, aSummary Court Martial[7] was conducted by the Commanding Officer,HQ Wing Depot Coy (MT), ASC Centre (South), Bangalore, where theappellant was attached. The respondent No. 5 constituted the Court toconduct SCM[8] which held the appellant guilty and awarded punishmentof dismissal from service.F

4. Aggrieved by the dismissal order, the appellant preferred anappeal under Section 164 of the Army Act before the respondent No. 2that came to be dismissed vide order dated 4[th] October, 2001. The saidorders were challenged by the appellant before the High Court ofJudicature at Allahabad by filing a writ petition that was transferred toGthe AFT for decision and was finally dismissed by the impugned order.

5 For short “ASC”

6 Vide Telegram dt. 18.01.1999

7 For short ‘SCM’

8 On 24th August, 1999

5. Mr. Shiv Kant Pandey, learned counsel for the appellant seeksto assail the impugned order on the ground that the respondents haveviolated the provisions of Section 39(b) and Section 120 of the Act; thatthe SCM could not have awarded punishment of dismissal from serviceand the maximum punishment was of imprisonment for a period of oneyear which could have been awarded; that Section 72 which deals withalternative punishment awardable by the Court Martial and Section 73that contemplates a combination of punishments as a sentence of a CourtMartial, as set out in Section 71, is not applicable to a SCM but only to aGeneral Court Martial or a District Court Martial and lastly, that Regulation448 of the Defence Service Regulations, 1987[9] prescribes the scale ofpunishment awardable by SCM and in the table of punishments mentionedin the Schedule, absence without leave or overstaying leave features atserial No. 4 which entails a punishment of rigorous imprisonment forthree months or less, whereas the appellant has wrongly been imposedsuch a harsh punishment of dismissal from service. It was thus arguedthat the punishment of dismissal from service imposed on the appellantwas disproportionate to the offence committed.

6. Per contra, Mr. R. Balasubramanian, learned Senior Advocateappearing for the respondents refuted the arguments advanced by theother side and submitted that the appellant remained a habitual defaulterwhich is apparent from the number of punishments imposed on him, asset out in para 4 of the impugned order. It was argued that contrary tothe assertion of the appellant that he had reported to his Unit on 18[th]February, 1999 but was not allowed entry, as per the records, he did notreport for duty on expiry of the extended leave; nor did he provide anydocuments to support his claim that his wife was so unwell and he wasgetting her treated. The allegation of the appellant that the procedurefollowed during the conduct of the Court of Enquiry or the SCM wascontrary to the Rules, was strongly refuted by the learned senior counselwho stated that the Court of Enquiry was conducted under the orders ofthe respondent No. 4 and there was no procedure prescribed for therespondent No. 4 to have reported the matter directly to the respondentNo. 3, as contended. Learned senior counsel concluded by submittingthat the appellant having pleaded guilty of the charge during the courseof the SCM, he cannot be permitted to renege subsequently and questionthe entire process.

9 For short “DSR”

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A7. We have heard the arguments advanced by learned counselfor the parties and perused the records. The contention of the appellantthat he was granted leave for the period between 8[th] November, 1998and 15[th] January, 1999 and his request for extension of leave wasunreasonably rejected by the respondents whereupon he had returnedto the Unit on 8[th] February, 1999, thus, having overstayed leave only byB34 days, is not borne out from the records. The appellant was grantedleave for 39 days from 8[th] November, 1998 to 16[th] December, 1998, andhis request for extension was acceded to upto 15[th] January, 1999. Whenhis request for further extension of leave was turned down by therespondents, the appellant ought to have reported for duty immediatelyCon expiry of the extended leave but he failed to do so. No document wasproduced by the appellant to demonstrate that he had reported to theUnit on 18[th] February, 1999. In fact, even in his statement made duringthe Summary of Evidence, the appellant failed to mention that he hadreported to the Unit on 18[th] February, 1999. Quite apparently, this wasan after-thought. In fact, in his statement, the appellant had clearlyDadmitted that he left his home and came to Bangalore where hesurrendered on 3[rd] May, 1999, after remaining unauthorizedly absent for108 days.

8. The appellant did not place any document on record by way ofthe treatment summary or medical certificate of his wife to demonstrateEthat she was seriously ill and required his presence for constant treatment.Instead, a bald statement was made by him during the Summary ofEvidence to the effect that he had remained absent without leave onaccount of his wife’s ill health. Moreover, the appellant failed to cross-examine any of the prosecution witnesses produced by the respondentsFduring the Summary of Evidence conducted on 12[th] July, 1999. It isnoteworthy that during the course of the SCM conducted on 24[th] August,1999, after the charge sheet was read out and explained to the appellantwhen he was asked whether he pleaded guilty or not to the chargepreferred against him, he had categorically answered in the affirmative,by stating “Guilty”. In other words, the appellant pleaded guilty to theGcharge levelled against him of having failed to rejoin duty on expiry ofthe leave granted to him from 8[th] November, 1998 to 15[th] January, 1999.

9. It is also relevant to note that this was not the first occasionwhen the appellant had remained absent without leave. He had made ahabit of remaining absent without leave even on earlier occasions. AH

EX SEPOY MADAN PRASAD v. UNION OF INDIA ANDOTHERS [HIMA KOHLI, J.]

summary of the punishments for overstayal of leave imposed on theappellant under Sections 39 (b) and 63 of the Army Act, set out in theimpugned judgment are extracted below :

10. It is apparent from the above table that the appellant was ahabitual offender. There were four red ink entries and one black inkentry against him before the present incident cited at serial number (f)above. Such gross indiscipline on the part of the appellant who was amember of the Armed Forces could not be countenanced. He remainedout 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, wouldhave sent a wrong signal to others in service. One must be mindful ofthe fact that discipline is the implicit hallmark of the Armed Forces anda non-negotiable condition of service.

11. As for the plea taken on behalf of the appellant that the chargeunder Section 39(b) is not maintainable or that the provisions of Section120 provide for a maximum punishment of imprisonment for one year,the same is found to be misconceived. Section 39 falling under ChapterVI of the Act is extracted below for ready reference :

“39. Absence without leave. Any person subject to this Actwho commits any of the following offences, that is to say,- (a) absents himself without leave; or (b) without sufficient cause overstays leave granted tohim; or

(c) being on leave of absence and having received informationfrom proper authority that any corps, or portion of a corps, orany department, to which he belongs, has been ordered on A

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active service, fails, without sufficient cause, to rejoin withoutdelay; or (d) without sufficient cause fails to appear at the time fixed atthe parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficientBcause or without leave from his superior officer, quits the paradeor line of march; or (f) when in camp or garrison or elsewhere, is found beyondany limits fixed, or in any place prohibited, by any general,local or other order, without a pass or written leave from hisCsuperior officer; or (g) without leave from his superior officer or without due cause,absents himself from any school when duly ordered to attendthere; Dshall, on conviction by court- martial, be liable to sufferimprisonment for a term which may extend to three years or suchless punishment as is in this Act mentioned.”

12. It is apparent from a bare reading of the aforesaid provisionwhich deals with offences relating to absence without leave, that in caseof an offence of overstaying leave without sufficient cause, on a convictionEby a Court Martial, punishment by way of imprisonment for a term thatmay extend to three years or such less punishment as contemplated inthe Act can be imposed on the delinquent person. Section 71 that fallsunder Chapter VII of the Act deals with punishments that may be inflictedfor offences on conviction by the Court Martial, listed in a sliding scale.FThe punishment of imprisonment finds mention at sub-clause (c) whereasthat of dismissal from service is mentioned down below, in sub-clause(e). In other words, the punishment of dismissal from service on convictionby Court Martial has been treated as a lesser punishment vis-à-vis thepunishment of imprisonment for any period below 14 years. That beingthe position, the appellant cannot be heard to state that the punishmentGinflicted on him is graver than the one contemplated under the Act.

13. In a case of proportionality of the punishment imposed forunauthorised absence in Union of India and Others v. Ex. No. 6492086Sep/Ash Kulbeer Singh[10], this Court had turned down the contention

made on behalf of the respondent therein that instead of subjecting himto a term of imprisonment under Section 39, he had been dismissed fromthe service, which was disproportionate to the offence, it was held thus:

“6. 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 the CourtMartial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may beimposed. Chapter VII which deals with “punishments” containsSection 71. Clause (e) of Section 71 specifically contemplates thepunishment of dismissal from service on conviction by CourtMartials. Hence, we find no merit in the first submission.”

14. The provision of Section 120 of the Act relied on by learnedcounsel for the appellant is also inapplicable to the facts of the instantcase. Section 120 deals with the power of Summary Court Martial. Sub-sections (1), (2) and (4) of Section 120 reads as follows :

“120. Powers of summary courts- martial.

(1) Subject to the provisions of sub- section (2), a summarycourt- martial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action andreference can without detriment to discipline be made to theofficer empowered to convene a district court- martial or onactive service a summary general court- martial for the trial ofthe alleged offender, an officer holding a summary court-martial shall not try without such reference any offencepunishable under any of the sections 34, 37 and 69, or anyoffence against the officer holding the court.”

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(4) A summary court- martial may pass any sentence whichmay be passed under this Act, except a sentence of death ortransportation, or of imprisonment for a term exceeding thelimit specified in sub- section (5).”

15. It is explicit from the aforesaid provision that the said sectiondeals with the offences punishable under Section 34 i.e., offences inrelation to the enemy and punishable with death, Section 37, i.e., Army A

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Amutiny and Section 69 i.e., Civil Offences. Sub-section (2) of Section120 places an embargo on an officer holding a SCM to try any of theoffences mentioned in Sections 34, 37 and 69 without any reference to aDistrict Court Martial or a Summary General Court Martial for trial ofthe alleged offender. Read in the aforesaid context, sub-section (4) ofSection 120 clearly states that a SCM can pass any sentence asBcontemplated under the Act except for a sentence of death ortransportation or of imprisonment for a term that may exceed a periodof one year for an officer of the rank of Lieutenant Colonel and aboveand a period of three months for an officer below that rank, as specifiedin sub-section (5). Quite clearly, the aforesaid provision is not applicableChere and cannot come to the aid of the appellant for insisting that aDistrict Court Martial or Summary General Court Martial ought to havebeen convened in his case, when SCM can try any offence punishableunder the Act.

16. Regulation 448 of the DSR cited by learned counselDcontemplated the scale of punishments awardable by the SCM. Thesaid Regulation states in so many words that these are general instructionsissued for the guidance of officers holding SCM for passing a sentenceand that nothing contained in the said Regulation would be construed aslimiting the discretion of the Court to pass any legal sentence, even ifthere is good reason for doing so. Therefore, citing the table ofEpunishments listed under the Schedule appended to Regulation 448 tourge that for absence without leave or for overstaying leave, the normalpunishment being rigorous imprisonment for three years or less to beundergone in military custody, punishment of dismissal from service couldnot have been inflicted on the appellant by the SCM, is unacceptable.

FSufficient discretion vests in the SCM to inflict a higher punishment inthe given facts and circumstances of a case. Same is the position underSections 72 and 73 of the Act. Both the sections leave it to the discretionof the Court Martial to award a particular punishment, depending on thenature and degree of the offence. There is no merit in the submissionmade by learned counsel for the appellant that the said provisions areGnot applicable to a SCM.

17. For the aforesaid reasons, we do not find any infirmity in theimpugned judgment passed by the AFT. The appellant had been takingtoo many liberties during his service and despite several punishmentsawarded to him earlier, ranging from imposition of fine to rigorous H

EX SEPOY MADAN PRASAD v. UNION OF INDIA ANDOTHERS [HIMA KOHLI, J.]

imprisonment, he did not mend his ways. This was his sixth infractionfor the very same offence. Therefore, he did not deserve any leniencyby infliction of a punishment lesser than that which has been awarded tohim.

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18. Accordingly, the present appeal is dismissed as meritless, whileupholding the impugned judgment. The parties are left to bear their ownBcosts.

Ankit Gyan(Assisted by : Tamana, LCRA)

Appeal dismissed.

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