EX SEPOY MADAN PRASAD versus UNION OF INDIA AND OTHERS

Citation: [2023] 9 S.C.R. 1199 · Decided: 28-07-2023 · Supreme Court of India · Bench: HIMA KOHLI · Disposal: Dismissed

Judgment (excerpt)

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[2023] 9 S.C.R. 1199 : 2023 INSC 656
1199
EX SEPOY MADAN PRASAD
v.
UNION OF INDIA AND OTHERS
(Civil Appeal No. 246 of 2017)
JULY 28, 2023
[HIMA KOHLI AND RAJESH BINDAL, JJ.]
Army Act, 1950 – s.39 (b) – Dismissal from service –
Overstaying the leave – Appellant was enrolled in the Army service
Corps as a Mechanical Transport Driver – Initially leave for 39
days granted to appellant – Further extension of leave was also
granted on compassionate grounds – However, further request for
extension of leave was rejected – Appellant failed to join – Court
of Inquiry conducted – Appellant was declared deserter – Appellant
finally surrendered after 108 days – Charges were framed –
Appellant was held guilty and awarded punishment of dismissal from
service – Appeal preferred was dismissed – Writ petition filed before
the High Court, subsequently transferred to AFT was also dismissed
– On appeal, held: Appellant had made a habit of remaining absent
without leave even on earlier occasions – Earlier, punishments for
overstayal of leave were also imposed – This was his sixth infraction
for the very same offence – Gross indiscipline on the part of the
appellant who was a member of the Armed Forces could not be
countenanced – He remained out 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, would have sent a wrong
signal to others in service – No infirmity found in the impugned
judgment passed by the AFT – Appellant deserves no leniency –
Impugned judgment upheld – Service Law.
Dismissing the appeal, the Court
HELD : 1. The appellant did not place any document on
record by way of the treatment summary or medical certificate of
his wife to demonstrate that she was seriously ill and required
his presence for constant treatment. Instead, a bald statement
was made by him during the Summary of Evidence to the effect
that he had remained absent without leave on account of his wife’s
ill health. Moreover, the appellant failed to cross-examine any of
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SUPREME COURT REPORTS
[2023] 9 S.C.R.
the prosecution witnesses produced by the respondents during
the Summary of Evidence conducted on 12th July, 1999.  Further,
the appellant pleaded guilty to the charge levelled against him of
having failed to rejoin duty on expiry of the leave granted to him
from 8th November, 1998 to 15th January, 1999. [Para 8][1204-
E-G]
3. Appellant had made a habit of remaining absent without
leave even on earlier occasions. It is apparent from the table
that the appellant was a habitual offender. Such gross indiscipline
on the part of the appellant who was a member of the Armed
Forces could not be countenanced. He remained out 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, would
have sent a wrong signal to others in service. One must be mindful
of the fact that discipline is the implicit hallmark of the Armed
Forces and a non-negotiable condition of service. [Paras 9 and
10][1204-H; 1205-D-E]
4. It is apparent from a bare reading of the provision which
deals with offences relating to absence without leave, that in case
of an offence of overstaying leave without sufficient cause, on a
conviction by a Court Martial, punishment by way of imprisonment
for a term that may extend to three years or such less punishment
as contemplated in the Act can be imposed on the delinquent
person. Section 71 that falls under Chapter VII of the Act deals
with punishments that may be inflicted for offences on conviction
by the Court Martial, listed in a sliding scale. The punishment of
imprisonment finds mention at sub-clause (c) whereas that of
dismissal from service is mentioned down below, in sub-clause
(e). In other words, the punishment of dismissal from service on
conviction by Court Martial has been treated as a lesser
punishment vis-à-vis the punishment of imprisonment for any
period below 14 years. That being the position, the appellant
cannot be heard to state that the punishment inflicted on him is
graver than the one contemplated under the Act. [Para 12][1206-
E-G]
5. For the aforesaid reasons, this Court do not find any
infirmity in the impugned judgment passed by the AFT. The
appellant had been taking too many liberties during his service
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and despite several punishments awarded to him earlier, ranging
from imposition of fine to rigorous impriso

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