UNION OF INDIA & ORS. versus EX. NO.6492086A SEP/ASH KULBEER SINGH

Citation: [2019] 4 S.C.R. 1099 · Decided: 11-03-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1099
                               UNION OF INDIA & ORS.
v.
EX. NO.6492086A SEP/ASH KULBEER SINGH
(Civil Appeal No.3095 of 2017)
MARCH 11, 2019
 [DR DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Army Act, 1950 – s.106 – Inquiry into absence without leave
– Respondent-sepoy in the Indian Army failed to report to his new
unit – He was declared to be a deserter – However, respondent
reported after a lapse of 302 days – He was tried by a Summary
Court Martial – Respondent pleaded guilty and he was dismissed
from service – However, Armed Forces Tribunal came to conclusion
that the finding arrived at by the Summary Court Martial was correct,
but the sentence of dismissal was disproportionate – On appeal,
held: On perusal of record it is evident that the respondent did not
make any effort to apply for extension of his leave – Absence of
302 days from his duty by a member of the Armed Force was not
condonable – Tribunal was in error in coming to the conclusion
that the punishment which was imposed was harsh – The only basis
for finding was that the respondent had put in twelve years of service
– However, this was all more a reason why any responsible member
of the Armed Forces should not have absented himself from service
without permission – Judgment and order of the Armed Forces
Tribunal set aside.
The respondent was enrolled in the Indian Army as a Sepoy
in the Army Service Corps.  Having failed to report to his new
Unit, he was declared as absent without leave.  However, after a
lapse of 302 days, the respondent reported to the ASC Centre
(North) at Gaya. Thereafter, he was tried by a Summary Court
Martial, wherein respondent pleaded guilty. The Summary Court
Martial found the respondent guilty and sentenced him to
dismissal from service. The respondent challenged his conviction
and dismissal from service before the Armed Forces Tribunal.
The Tribunal came to the conclusion that the finding arrived at
by the Summary Court Martial was correct, but that the sentence
                                        [2019] 4 S.C.R. 1099
1099
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SUPREME COURT REPORTS
[2019] 4 S.C.R.
of dismissal was disproportionate. Hence, present Special Leave
Petition.
Allowing the appeal, the Court
HELD:  It is evident from the statement of the respondent,
that he had admitted his absence for 302 days without leave.  The
statement contains a justification for the absence.  From the
record, it is evident that the respondent did not make any effort
to apply for extension of his leave.  Absence of 302 days from his
duty by a member of the Armed Force could not be condoned.
This Court is clearly of the view that the Armed Forces Tribunal
was in error in coming to the conclusion that the punishment
which was imposed was harsh.  The only basis for the finding was
that the respondent had put in twelve years of service.  This was
all the more a reason why any responsible member of the Armed
Force should not have absented from service without permission.
The Tribunal clearly misdirected itself in law in coming to the
conclusion that the punishment of dismissal from service was
harsh and disproportionate.   [Paras 10 and 11] [1103-E-H]
CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 3095
of 2017
From the Judgment and Order dated 21.08.2015 of the  Armed
Forces Tribunal, Regional Bench, Lucknow in  O.A. No. 483 of 2012 /
Order dated 06.01.2016 in M.A. No. 2351 of 2015 in O.A. No. 483 of
2012
Ms. Madhavi Divan, ASG, Ms. Rukhmini Bobde,  Shailender Saini,
A.K. Sharma, Mukesh Kumar Maroria, Advs.  for the Appellants.
Ms. Anindita Pujari, Ms. Aarti Krupa Kumar, Advs. for the
Respondent.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Admitted.
2. The respondent was enrolled in the Indian Army as a Sepoy in
the Army Service Corps on 25 April 1996.  On 11 November 2007, he
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was dispatched on a permanent posting to 874 ASC Batallion, which
was deployed in Jammu and Kashmir.  Having failed to report to his
new Unit on 21 November 2007, he was declared as absent without
leave on 22 November 2007.  In terms of Section 106 of the Army Act
1950, a Court of Inquiry was held and the respondent was declared to
be a deserter with effect from 22 November 2007.  On 18 September
2008, after a lapse of 302 days, the respondent reported to the ASC
Centre (North) at Gaya.
3. On 12 November 2008, he was tried by a Summary Court
Martial on two counts: the first count was his unauthorized absence

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