Date of Order:
July 28, 2023
Bench:
Justice Hima Kohli
Justice Rajesh Bindal
Parties:
EX SEPOY MADAN PRASAD
APPELLANT
Versus
UNION OF INDIA AND OTHERS
RESPONDENTS
SUBJECT
- The appeal seeks to overturn the Armed Forces Tribunal’s judgment and order dated 16th February 2015, which dismissed the appellant’s Writ Petition and upheld orders from respondents stating they overstayed leave without sufficient cause.
- The appellant overstayed leave due to wife’s illness, leading to a 1999 Court of Inquiry declaring him a deserter due to compassionate actions.
- Sections 72 and 73 of the Army Act allow Court Martial to award specific punishments based on offenses. The court subsequently held that the appellant’s counsel’s argument is not meritful. The AFT’s judgment was upheld.
IMPORTANT PROVISIONS
- Section 165 of the Army act
OVERVIEW
- The appellant, a Transport Driver, was granted leave in 1998 and 1999, but failed to rejoin duty. He overstayed leave due to his wife’s illness. A Court of Inquiry was conducted in 1999, and the appellant was declared a deserter. The court ruled that the appellant’s actions were compassionate and he was declared a deserter.
- The appellant surrendered after 108 days in 1999 at HQ Wing, ASC Centre (South), Bangalore. Charged under Rule 22, he was heard by the Commanding Officer. Summary Court Martial was conducted, and the appellant was found guilty and dismissed from service.
- The appellant appealed the dismissal order under Section 164 of the Army Act, which was dismissed on October 4, 2001.
ARGUMENTS ADVANCED BY THE APPELLANT
- The appellant’s counsel argued that the respondents violated provisions of Section 39(b) and 120 of the Act, that the SCM could not have awarded dismissal from service, that Section 72 and 73 were applicable only to General Court Martials, and that Regulation 448 of the Defence Service Regulations, 19879 prescribed a scale of punishment for SCM. The appellant argued that the harsh punishment was disproportionate to the offense committed.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The Senior Advocate for the respondents refuted the appellant’s arguments, arguing that he was a habitual defaulter and had not reported for duty on the expiry of extended leave.
- He argued that the Court of Enquiry was conducted under respondent No. 4, and there was no prescribed procedure for respondent No. 4 to report the matter directly to respondent No. 3. The senior counsel concluded that the appellant could not renege subsequently and question the entire process.
JUDGEMENT ANALYSIS
- The appellant claimed to have been granted leave from November 8, 1998 to January 15, 1999, but his request for extension was rejected. He returned to the Unit on February 8, 1999, having overstayed leave by 34 days. The appellant failed to report to the Unit on February 18, 1999, and admitted to leaving his home and returning to Bangalore on May 3, 1999, after unauthorized absence for 108 days.
- The appellant did not provide a treatment summary or medical certificate for his wife’s serious illness, only a bald statement during the Summary of Evidence. He failed to cross-examine prosecution witnesses during the Summary of Evidence. During the SCM, he pleaded guilty to the charge of failing to rejoin duty after his leave expired from November 8, 1998 to January 15, 1999.
- In Union of India and Others v. Ex. No. 6492086 Sep/Ash Kulbeer Singh, the Court ruled that the respondent’s claim that he was dismissed from service was disproportionate to the offense was not meritful. The court found no merit in the first submission, as Section 39 of the Army Act, 1950, specifically addresses the punishment of dismissal from service on conviction by Court Martials.
- Regulation 448 of the DSR provides general instructions for officers holding SCMs to pass sentences, but does not limit the Court’s discretion to pass legal sentences. The table of punishments listed under Regulation 448 is unacceptable for absence without leave or overstaying leave, as it does not grant sufficient discretion for higher punishments.
- Sections 72 and 73 of the Act leave it to the Court Martial to award specific punishments based on the offense’s nature and degree. The appellant’s counsel’s submission that these provisions are not applicable to SCMs is not meritful.
- The AFT's judgment is not infirm due to the appellant's excessive liberties and previous punishments. He did not deserve leniency, and the appeal is dismissed as meritless, upholding the judgment. The parties are left to bear their own costs.
