In a writ petition filed before the Jammu & Kashmir and Ladakh High Court against an order dated 08-05-2023 by the Armed Forces Tribunal, Srinagar Bench (Tribunal), whereby the punishment of dismissal imposed upon the respondent was modified to discharge of service with consequential benefits, a Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar quashed the impugned order and upheld the punishment of dismissal.
The respondent was enrolled in the Indian Army on 28-07-1983 and was serving with the Jammu and Kashmir Light Infantry Regiment (JAK LI). As the respondent could not rejoin his unit on the expiry of his 30-day leave, he applied for an extension. However, despite said extension, he failed to report back on 03-09-1998 and ultimately rejoined the unit on 19-01-1999. He had overstayed his leave for a total of 139 days, and as a consequence, he was tried by his Commanding Officer on 05-07-1999 under a Summary Court Martial (SCM), in addition to being sentenced to dismissal from service.
Aggrieved by the said order, the respondent approached the Tribunal contending that during his leave, he had met with an accident and was under severe mental stress due to a failed marriage proposal, which led him into depression. He claimed to be under medical treatment till 31-12-1998 and refrained from joining duty because of fear of his Commanding Officer.
The respondent submitted that the dismissal made him ineligible for pensionary benefits and deprived him of his livelihood. On the other hand, the petitioners submitted that the respondent was a habitual offender who had repeatedly overstayed his leave and had not improved his conduct, thereby setting a poor example for others. The Tribunal observed that the respondent’s overall service record did not reveal any serious misconduct and that the reasons for his overstaying leave appeared genuine.
The Tribunal held that the punishment of dismissal was disproportionate to the offence and modified the same to discharge from service with consequential benefits for three years preceding the filing of the said case. The said order was assailed in the present matter on the ground that it was legally unsustainable.
The Court perused Sections 38 and 39 of the Army Act, 1950, and stated that it was not in dispute that the respondent was not found guilty of desertion. It was noted that the petitioners had rightly relied on Union of Indian & Ors. v. Ex. No. 6492086 Sep/Ash Kulbeer Singh (2019) 13 SCC 20, where the Supreme Court upheld the punishment of dismissal for overstaying leave.
The Court said that the procedure adopted by the SCM had not been assailed and that there was no allegation of procedural irregularity or violation of natural justice. It was noted that the respondent failed to produce substantive evidence before the SCM to justify his overstay. The Court stated that the respondent had remained absent for over four months without authorisation and that the Tribunal had not given cogent reasons for finding the punishment of dismissal disproportionate.
Further, the Court stated that the respondent was expected to maintain the highest standard of discipline, as this is a cornerstone of military service. It was said that his unauthorised absence for more than four months could not be condoned on sympathetic considerations and that unless the punishment was outrageously disproportionate, judicial interference was unwarranted.
The Court held that the Tribunal erred in reversing the SCM’s order and in converting the punishment. Thus, the Court allowed the petition and quashed the impugned order while upholding the punishment of dismissal by the SCM.
Appearances:
For Petitioners – Mr. Rohan Nanda
For Respondents – Mr. Danish Butt
