No retaliation is 'cowardice'

In the context of armed conflicts, the Supreme Court has defined cowardice on the part of a soldier, if he turns his back to challenge thrown at him by the enemy.

In the judgment of the case – Dalbir Singh v. Union of India & Others, delivered on July 2, 2019 Justice M.R.Shah and Justice A.S. Bopanna have pointed out that only scope in a judicial proceeding of this nature is to find out, whether the task entrusted to a soldier, cut out in a definite manner and  duties assigned to him, whether the same have been performed by him based on the finding of fact that is recorded.

In a case, where allegation of cowardice is made, the reason for such allegation is to be taken note of and considered. In that view, without adverting to all other aspects, what is noted is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it.

Limited to this aspect, what is to be noted is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through.

The charge against the appellant is that despite the militants having attacked and killed the Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper and the appellant, the appellant using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot.  

The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured. In the process he had become unconscious for ten seconds and it at that point the militants had picked up the LMG and carried it away. The appellant also stated that his AK-47 was jammed when he tried to use it.

Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. There is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. His unconsciousness was not of such a long duration which could have prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG.

When taking note of the said explanation sought to be put forth by the appellant the Armed Forces Tribunal’s Regional Bench at Chandigarh has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the acts of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for the Supreme Court to interfere in the matter.

As the appellant has not placed any material on record to contend that he was victimized or to show that the action against him was mala fide one, the Apex-Court stated that in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion every time when he has duty to defend the integrity of the nation since such is the trust reposed in a soldier.

The Court has pointed out further, that though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct, but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/ employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied.

The Court states that “the resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such a grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, action taken against the appellant is taken note, we are of the opinion that the SGCM and the Armed Forces Tribunal were justified”.

In this case, the appellant had assailed the order passed on August 26, 2011, by the Armed Forces Tribunal’s Chandigarh Bench, whereby the appeal filed by the appellant herein was dismissed and the sentence imposed by the Summary General Court Martial (SGCM) upheld.

The incident had taken place on august 13, 2011, in Jammu & Kashmir. The appellant was charged with exhibiting cowardice by abandoning his post. The punishment imposed by the SGCM was upheld by the Tribunal.

The Supreme Court also noted that the appellant apart from being dismissed from service was also ordered to undergo RI for six months. For the reasons recorded the order of dismissal is justified and does not call for interference. But, in the “present” facts and circumstances, the Court noticed that though the appellant had exhibited cowardice, the fact remains that he had also suffered a gunshot injury in the incident. Further, there is long lapse of time and as such in the peculiar facts and circumstances, in the opinion of the Court, the order of imprisonment need not be implemented at this stage.

Consequently, the Supreme Court has upheld the order of dismissal of the appellant from service but at the same time set aside the order to undergo imprisonment passed against the appellant .The appeal has been disposed of.