SHEEL KR ROY versus SECRETARY M/O DEFENCE AND ORS.

Citation: [2007] 7 S.C.R. 475 · Decided: 18-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SHEELKRROY 
A 
-l 
v. 
SECRETARY MIO DEFENCE AND ORS. 
MAY 18, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
, 
Army Act, 1950: 
s.3(a)-Absence from duty-Recommendation of Court of Enquiry that c 
absence period to be regularized as during period of absence he was admitted 
in Hospital-Order of dismissal and 6 years rigorous imprisonment passed 
without considering the recommendation-Challenge against-Held, opinion 
of court of enquiry is only recommendary in nature but the commanding 
officer in a proceeding for summary court martial was required to take that 
into consideration-They ought to have explained as to why recommendations D 
of court of enquiry were not accepted-Once it has come on record that the 
_, 
appellant had not been absconding but was admitted in hospital, matters 
..... 
deserved deeper scrutiny by competent authority-Imposition of both 
punishment of rigorous imprisonment for six years as also dismissal ji-om 
service was wholly arbitrary-In view of peculiar facts and circumstances, 
E 
interest of justice would be met if it is directed that he should be deemed to 
have been discharged-He would, thus, be entitled to all benefits arising 
therefrom-Army Rules, 1954-r.22 . 
. Appellant joined the Army Service on or about 18.8.1981. While posted 
at Leh, owing to high altitude of the place, he developed psychiatric problems. F 
For want of necessary care, he became a psychiatry patient He had to undergo 
1 
treatments in the various Army Hospitals situated. In the Medical Board 
,. 
proceedings held on 22.4.1987, the appellant was put in medical category 
'CEE'. 
The medical re-categorization which was to take place on or about G 
21.10.1987 was delayed. He continued to be on medical leave and was 
categorized to be in CEE category for six months. Thereafter he went on leave 
as a part of annual leave, but he allegedly overstaye<! for about 96 days. Some 
,. 
punishment was imposed on him by an order dated 5.12.89. He prior to joining 
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his present posting, was posted in another unit on 20.1.1990. He was allegedly' 
475 
H 
476 
SUPREME COURT REPORTS 
[2007) 7 S.C.R. 
A found fit to join his duties. He was admitted to Medical Hospital, Ambala from 
13.5.1990 to 7.6.1990 for medical recategorisation. He was granted casual 
leave for the period of7.6.1990 to 18.6.1990 to visit his family, but he allegedly 
overstayed his leave again for 20 days, even though there is nothing to .show 
as to whether he had been declared fit for joining his duties or not. There is 
B al.,o nothing on record to show that any action was taken against him in respect 
thereof but admittedly he was admitted to Medical Hospita~ Ambala for medical 
re-categorization. He was transferred to Command Hospital on 16.7.1990. 
For his purported absence for the period from 16.7.1990 to 22.7.1991, 
a chargesheet was submitted. He had again been sent to Command Hospital 
C for medical re-categorization. Having been found fit, he was allegedly 
discharged from the Hospital on 12.8.1991 upon upgrading to Medical 
Category 'A YE'. He was summarily tried for another misconduct and was 
awarded 7 days Rigorous Imprisonment and 7 days Pay fine. 
A Court of Enquiry was held in terms of Rule 22 of the Army Rules, 
D 1954 on 3.9.1991 in regard to the alleged overstay from 16.07.1990. Court 
of Enquiry observed that the absence period to be regularized administratively 
as he was admitted in the hospital. Despite the recommendations of the Court 
of Enquiry, he while undergoing punishment of7 days' Rigorous Imprisonment 
by the order dated 30.8.1991, the charge-sheet in question being dated 
3.9.1991 was issued to the appellant by the Commanding Officer of his unit. 
E He was tried in a Summary Court Martial proceeding held on 7.9.1991 only 
for an hour. The Commanding Officer himself was the Prosecutor and also 
the Judge. He was held guilty and sentenced to undergo six months' rigorous 
imprisonment and was also the punishment of dismissal from service. On 
appeal, the Chief of Staff, however, by order dated 5.10.1991 remitted three 
F months' Rigorous Imprisonment maintaining the sentence of dismissal. He 
made representations before-the higher authorities. The Writ Petition filed 
by the appellant, was dismissed by the High Court. Hence the present appeal. 
Partly allowing the appeal, the Court 
G 
HELD: 1.1. From the records produced by the respondents, it is evident 
H 
that the appellant had remained in one or the other Army Medi

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