UNION OF INDIA AND ORS. versus EX LAC NALLAM SHIVA

Citation: [2017] 7 S.C.R. 530 · Decided: 10-08-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Case Partly allowed
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Judgment (excerpt)

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[2017] 7 S.C.R. 530 
UNION OF INDIA AND ORS. 
v. 
EX LAC NALLAM SHIVA 
(Criminal Appeal No. 967 of2017) 
AUGUST I 0, 2017 
(DIPAK MISRA, AMITAVA ROY, A. M. KHANWILKAR, JJ.f 
Service Law - Dismissal from service - On ground of 
overstaying leave period - Respondent while serving in Air force, 
overstayed the casual leave granted to him without informing his 
superiors - District Court Martial sentenced him to undergo rigorous 
imprisonment, dismissal fi'om service and reduction in rank -
Respondent served the sentence of imprisonment - Tribunal took 
note of regn. 754(C) and held that punishment awarded to the 
respondent was excessive and disproportionate and directed 
reinstatement with period between the date of dismissal to date of 
rejoining to be treated as non-qualifying service - Held: Respondent 
overstayed for period of around 1.5 years beyond the casual leave 
E period without informing his seniors or the nearest milita1y station 
which is indubitably against the requirement of discipline -
Punishment of dismissal was not vindictive, unduly harsh or 
disproportionate to offence committed by the respondent - Tribunal 
misdirected itself in invoking regn. 754(C) and exceeded its 
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jurisdiction in overturning the order of punishment -Air Force Act, 
1950 - Defence Service Regulations for Armed Forces - regn. 
754(C). 
Partly allowing the appeal, the Court 
HELD: I. A priori, reliance placed by the Tribunal on 
G Regulation 754(C) is misplaced in the fact situation of the present 
case. For, it was not a case of overstaying for couple of days or a 
technical and trivial offence committed by the respondent. He 
overstayed beyond the casual leave period for around 1 Y:z years 
without informing either his superiors or the nearest military 
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station as to his whereabouts. [Para 81 (536-H; 537-AI 
530 
UNION OF INDIA AND ORS. v. EX LAC NALLAM SHIVA 
531 
2. In the fact situation of the present case, it is not possible A 
to hold that the punishment of dismissal was vindictive, unduly 
harsh or disproportionate to the offence committed by the 
respondent and especially after the Tribunal has positively 
concluded that failure of the respondent to communicate either 
to his unit or to the nearest military station for around 1 Yi years B 
was uncondondable. Ordinarily, the Tribunal ought not to interfere 
with the order of punishment except in appropriate cases only 
after recording a finding that the punishment imposed is grossly 
or shockingly disproportionate after examining all the relevant 
factors including the nature of charges proved against the 
delinquent officer. [Para 9) [537-B-CJ 
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3. The Tribunal misdirected itself in invoking Regulation 
754(C) and to reckon the mitigating circumstance of respondent 
having already undergone punishment of sentence for the stated 
offence. Thus, the Tribunal exceeded its jurisdiction in 
overturning the order of punishment imposed by the disciplinary D 
authority and instead directing reinstatement of the respondent 
in service and treating the period between the date of dismissal 
of the respondent and the date of his rejoining service as non-
qualifying service, so as to give him a chance of rehabilitation in 
service. [Para 10) [537-D-E[ 
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4. However, the prayer of the respondent is accepted to 
modify the order of dismissal from service to one discharge from 
service simplicitor. [Para 12) [538-B] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
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967 of2017. 
From the Judgment and Order dated 09.12.2016 in 0. A. No.77 
of 2015 and Order dated 17.03.2017 in M.A. No.43 of 2017 in 0. A. 
No. 77of2015 of the Armed Forces Tribunal, Regional Bench, Chennai. 
R. Balasubramanian, Ms.Aarti Sharma, Mukul Sirigh, Prakash 
Gautam, Hemant Arya, Mukesh Kumar Maroria, Advs. for the 
Appellants. 
Rabin Majumder, Adv. for the Respondent. 
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SUPREME COURT REPORTS 
(2017] 7 S.C.R. 
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The Judgment of the Court was delivered by 
A. M. KHANWILKAR, J, 1. The respondent was enrolled in 
the Indian Air Force on 28'h March, 2006 and in clue course of time was 
promoted to the rank of Corporal. While serving in that capacity, he 
overstayed the casual leave granted to him from 20•h October, 2012 till 
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4•h November, 2012, until 11 'h April, 2014, allegedly due to his ill-health 
and family problems. Resultantly, he was tried before the District Court 
Martial (DCM) on 11 '11 November,2014. He was served with the charge-
sheet which reads thus:-
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