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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3095 OF 2017

UNION OF INDIA & ORS.                    APPELLANT(s)

                         VERSUS

EX. NO.6492086A SEP/ASH KULBEER SINGH RESPONDENT(s)

J U D G M E N T

DR DHANANJAYA Y CHANDRACHUD,J.

Admitted.

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 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.   

On 12 November 2008, he was tried by a Summary Court

Martial  on  two  counts:  the  first  count  was  his

unauthorized absence over a period of 302 days without

leave;  while  the  second  count  related  to  the  loss  of

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certain equipment and clothing.  The respondent pleaded

guilty to the two charges.  In his statement before the

Summary Court Martial, the respondent stated thus:

“14. I No 6492086-A Sep/ASH Kulbeer Singh of 874 AT Bn ASC att with HQ Wing, ASC Centre (North) was  enrolled  in  the  Army  on  25  Apr  1996.   I belong to Vill – Sampla Begampur, PO – Sarsawa, PS  –  Nakur,  Teh  –  Nakur,  Distt  –  Saharanpur, State – UP.  My family consists of my father aged 55 yrs, mother aged 52 yrs, wife aged 29 yrs and son aged 3 yrs.

15. I was posted to 874 AT Bn ASC from 514 ASC Bn during Nov 2007.  During my preparatory leave I went to my house.  On reaching home, I cam to know that my uncle had taken possession of my old house.   The  matter  was  reported  to  Village Sarpanch & Tehsildar.  Tehsildar investigated the matter & the house was recovered from my uncle and  handed  over  to  my  father.   Thereafter  I reported  at  HQ  Wing  on  18  Sep  2008  afternoon after being absent for 302 days.

16. I was found to be deficient of clothing and equipment  items  for  Rs.2265/-  (Rupees  two thousand  two  hundred  sixty  five  only)  as mentioned in the kit deficiency list att as Appx to  IAFD-918  (Annexure  –  II  produced  by Prosecution Witness No.2).

17. The above statement has been read over to me in the language (Hindi).  I understand better and sign it as correct in the presence of independent witness.”

The Summary Court Martial found the respondent guilty

and sentenced him to dismissal from service.  

The respondent submitted a petition under Section 164

of the Army Act on 17 May 2010, which was rejected by the

GOC,  Madhya  Pradesh  Area  on  13  April  2011.   The

respondent challenged his conviction and dismissal from

service before the Armed Forces Tribunal at its Regional

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Bench in Lucknow.  By an order dated 21 August 2015, the

Tribunal came to the conclusion that the finding arrived

at by the Summary Court Martial was correct, but that the

sentence of dismissal was disproportionate.  The Tribunal

noted that in his twelve years of service, the respondent

had been punished in 2007 for having overstayed his leave

by 140 days and this was his second infraction.  In the

view  of  the  Tribunal,  the  punishment  could  have  been

modulated so as to allow the respondent to continue to

serve  the  Army  until  he  qualified  for  pension.   The

Tribunal found that the punishment which was awarded to

the respondent was disproportionate having regard to his

service  of  twelve  years  and,  accordingly,  issued  the

following directions:

“20. Accordingly,  the  O.A.  is  only  partly allowed.   While  affirming  the  Summary  Court Martial proceedings and the Attachment Order to be  a  valid,  we  direct  that  the  punishment  of dismissal be hereby quashed.  The petitioner will be  deemed  to  be  notionally  in  service  w.e.f. 12.11.2008  till  he  attains  the  service  which entitles him to receive pension and thereafter he shall be granted pension with all consequential benefits.  We clarify that the petitioner shall not be paid salary during the period of notional service.  No order as to costs.”

Assailing  the  aforesaid  directions,  the  Union  of

India is in appeal.

Ms.  Madhavi  Divan,  learned  Additional  Solicitor

General along with Ms. Rukhmini Bobde, learned counsel

appearing  for  the  appellants,  submitted  that  the

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respondent had duly admitted the charge of misconduct.

The Tribunal specifically found no reason to interfere

with the finding of the Summary Court Martial.  Once this

was duly established, there was no justification for the

Tribunal  to  hold  that  the  punishment  was

disproportionate, considering the fact that there was an

unauthorized absence of 302 days by a member of the Armed

Force.

Two  submissions  were  urged  on  behalf  of  the

respondent.  Firstly, it was submitted that Section 39 of

the Army Act, 1950 provides that on conviction by a Court

Martial, a person who has committed an offence inter alia

of  overstaying  the  leave  granted  shall  be  liable  to

suffer imprisonment for a term which may extend to three

years or such lesser punishment as may be mentioned in

the Act.  In the present case, it was, hence, urged that

instead  of  subjecting  the  respondent  to  a  term  of

imprisonment  under  Section  39,  he  was  dismissed  from

service.   Secondly,  it  was  submitted  that  if  the

statement of the respondent is duly construed, it would

be incorrect to hold that he had admitted the charge of

misconduct.   

We do not find any merit in the first submission.

Section 39 of the Army Act, 1950 is comprised in Chapter

VI which deals with “Offences”.  Section 39 provides that

on a conviction by Court Martial for an offence involving

absence without leave, a sentence of imprisonment which

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may extend up to three years may be imposed.  Chapter VII

which  deals  with  “Punishments”  contains  Section  71.

Clause (e) of Section 71 specifically contemplates the

punishment  of  dismissal  from  service  on  conviction  by

Court Martials.  Hence, we find no merit in the first

submission.

Insofar as the second submission is concerned, it is

evident from the statement, which was extracted earlier,

that the respondent 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.  We are

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.   

We accordingly allow the appeal and set aside the

impugned judgment and order of the Armed Forces Tribunal

dated 21 August 2015.  In consequence, OA 483 of 2012

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filed by the respondent shall stand dismissed.  However,

there shall be no order as to costs.

.............................J.  (DR DHANANJAYA Y CHANDRACHUD)

.............................J.  (HEMANT GUPTA)

NEW DELHI MARCH 11, 2019

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ITEM NO.45               COURT NO.11               SECTION XVII

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).3095/2017

UNION OF INDIA & ORS.                              Appellant(s)

                               VERSUS

EX. NO.6492086A SEP/ASH KULBEER SINGH              Respondent(s)

(WITH APPLN.(S) FOR STAY)   Date : 11-03-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Appellant(s) Ms. Madhavi Divan, ASG Ms. Rukhmini Bobde, Adv. Mr. Shailender Saini, Adv. Mr. A.K. Sharma, Adv.

                 Mr. Mukesh Kumar Maroria, AOR                     For Respondent(s) Ms. Anindita Pujari, AOR

Ms. Aarti Krupa Kumar, Adv.                      

UPON hearing the counsel the Court made the following                               O R D E R

Admitted.

The  appeal  is  allowed  in  terms  of  the  signed

reportable judgment.  However, there shall be no order as

to costs.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)