1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 967 OF 2017

Union of India and Ors. ….Appellant(s)

Versus  

Ex LAC Nallam Shiva …..Respondent(s)

J U D G M E N T

A.M. KHANWILKAR, J.

1. The respondent was enrolled in the Indian Air Force on 28th

March, 2006 and in due course of time was promoted to the rank

of Corporal.  While serving in that capacity, he overstayed the

casual  leave  granted  to  him  from  20th October,  2012  till  4th

November,  2012,  until  11th April,  2014,  allegedly  due  to  his

ill-health and family problems. Resultantly, he was tried before

the District Court Martial (DCM) on 11th November, 2014. He was

served with the charge-sheet which reads thus:-  “CHARGE SHEET

2

The  accused  916856-L  Corporal  Nallam  Shiva Comn.  Tech  of  Master  Control  Centre,  Air  Force Station Basantnagar, an airman of the regular Air Force, is charged with : -  

First Charge: Section 38 (1) AF Act, 1950 DESERTING THE SERVICE  In that he, At  Master  Control  Centre,  Air  Force  Station Basantnagar,  New  Delhi,  having  been  granted leave of absence from 20 Oct 12 to 04 Nov 12, did not rejoin his unit on expiry of the said leave, with the  intention  at  the  time  of  leaving  or  formed thereafter,  of  remaining  permanently  absent  and remained  absent  until  he  surrendered  himself  to 901799-B  Cpl  Deepak  Tiwari  IAF/P  of  said  Air Force Station on 11 Apr 2014.

Second  charge:  Section  39(b)AF  Act,  1950 (Alternative to the first charge)

WITHOUT  SUFFICIENT  CAUSE  OVERSTAYING LEAVE GRANTED TO HIM  In that he, At  Master  Control  Centre,  Air  Force  Station Basantnagar,  New  Delhi,  having  been  granted leave  of  absence  from  20  Oct  12  to  04  Nov  12, overstayed the said leave without sufficient cause, until  he  surrendered  himself  to  901799-B  Cpl Deepak Tiwari IAF/P of the said Air Force Station on 11 Apr 14.

Place: New Delhi Date: 21st  October, 2014

Sd/- (MS Shekhawat) Air Commodore

Air Officer Commanding  AF Stn Basant Nagar”

3

2. The  said  authority,  after  giving  opportunity  to  the

respondent,  on  11th November  2014  found  him  guilty  of  the

second charge only and sentenced him to undergo punishment of

four months’ rigorous imprisonment, dismissal from service and

reduction  in  rank.   However,  the  Air  Officer

Commanding-in-Chief, WAC, IAF reduced the period of rigorous

imprisonment  from  four  months  to  three  months.  The

respondent was kept in Air Force custody from 11th November,

2014 to 10th February, 2015 and was dismissed from service on

10th February, 2015.  The respondent submitted a petition under

Section 161(2) of the Air Force Act, 1950 before the Chief of the

Air  Staff  seeking  for  his  reinstatement  which,  however,  was

rejected vide order dated 12th February, 2015.  The respondent

then  filed  an  original  application  before  the  Armed  Forces

Tribunal,  Regional  Bench  at  Chennai,  Circuit  Bench  at

Hyderabad,  being  O.A.  No.77  of  2015.   The  same  was  partly

allowed  vide  the  impugned  judgment.  In  that,  the  Tribunal

rejected the plea of the respondent that the disciplinary action

suffered from legal infirmity and want of fairness of opportunity.

After rejecting that contention, however, the Tribunal proceeded

to  hold  that  the  second  charge  was  duly  proved  against  the

4

respondent.  But the Tribunal was impressed by the plea taken

by  the  respondent  that  he  overstayed  because  of  compelling

circumstances  due  to  matrimonial  dispute  and  illness  of  his

father resulting in mental  disturbances and more particularly,

because it was the first offence of the respondent.  The Tribunal

took note of Regulation 754(C) of the Defence Service Regulations

for Air Force and came to hold that the punishment awarded to

the respondent was excessive and disproportionate. For, it was

his first offence and that the respondent deserved a chance of

being  rehabilitated  in  service.   The  Tribunal  was,  therefore,

pleased to set aside the order of punishment of dismissal from

service  and,  instead,  directed  the  appellants  to  reinstate  the

respondent in service.  The Tribunal observed thus:-  

“17. In the instant case, admittedly, this is the first offence  by  the  applicant  and  otherwise  the applicant’s conduct has been exemplary.  Further, there are some mitigating circumstances, especially with regard to his family problems, including the ill health of his father.  In view of the foregoing, we find there is merit in remitting part of the sentence awarded  to  the  applicant.   The  fact  is  that  the applicant  had  already  undergone  punishment  of three  months  Rigorous  Imprisonment  in  Air  Force custody  and  reduction  in  the  rank  of  LAC  is  a pre-requisite for undergoing such punishment.  We are  of  the  view  that  the  applicant  deserves  a chance to be rehabilitated in service and, therefore, we set aside the punishment of “To be dismissed from  the  service”  alone,  and  other  punishments

5

shall  stand.   The  Respondents  are  directed  to reinstate the applicant in service within two months from the date of receipt of a copy of this order.  The period  between  the  date  of  dismissal  of  the applicant i.e. 10.2.2015 to the date of his rejoining service will be treated as non-qualifying service.

18. The appeal is ordered accordingly. No order as to costs.”

3. Shri R. Balasubramanian, learned counsel appearing for the

appellants,  would  contend  that  the  Tribunal  has  exceeded  its

jurisdiction in interfering with the order of punishment, which is

the prerogative of the disciplinary authority.  He submits that the

fact that the respondent committed his first offence per se cannot

be  the  basis  to  conclude  that  the  punishment  of  dismissal

awarded by the disciplinary authority in the fact situation of the

present case was disproportionate or excessive.  The justification

given by the respondent for committing the offence of overstaying

the casual leave period for almost around 1 ½  years, without

informing  any  competent  authority  about  the  cause  of  such

overstay, cannot be viewed lightly considering the requirements

of  the  disciplined  Force.  Further,  Regulation  754(C)  of  the

Defence Service Regulations for Armed Forces adverted to by the

Tribunal cannot be pressed into service in the fact situation of

the present case.  He submits that the Tribunal has misguided

6

itself in interfering with the order of punishment and, more so,

directing reinstatement of the respondent in service.

4. Learned counsel,  Mr.  Rabin Majumder,  appearing for  the

respondent, on the other hand, submits that the Tribunal justly

invoked  Regulation  754(C)  as  it  was  a  case  of  first  offence

committed  by  the  respondent,  for  which  reason  the  order  of

punishment of dismissal was unduly harsh and disproportionate

as to shock the conscience of any prudent person.  He submits

that  the  compelling  circumstances  in  which  the  respondent

overstayed the casual leave period has been rightly taken into

account by the Tribunal as mitigating circumstances, besides the

fact  that  it  was  a  case  of  first  offence  committed  by  the

respondent.  He  submits  that  even  though  the  disciplinary

authority  has  the  prerogative  to  choose  the  quantum  of

punishment, but while doing so it has to take into account the

totality of the circumstances including the circumstances which

drove the respondent to overstay the casual leave period.  It was

an unintentional  act  of  the  respondent  and,  more  so,  he  had

already  suffered  the  sentence  period  for  the  stated  offence.

Therefore, he submits that the appeal be dismissed.

7

5. After  cogitating  over  the  submissions  made  by  both  the

sides  and  perusing  the  record,  it  is  noticed  that  the  charge

against  the  respondent  of  overstaying  the  casual  leave  period

without communicating either to his superiors or to the nearest

military station, has been duly proved against the respondent.

Although the respondent asserted that  he had suffered health

problem, including mental stress due to matrimonial dispute, he

did not choose to go to a Military Hospital. Being a member of the

Armed Forces such indiscipline cannot be countenanced.  Even

the Tribunal has rejected the defence of the respondent in this

behalf, by observing thus:-  

“15.  From  the  above  pleadings,  it  appears  that there are some mitigating circumstances for the long absence of  the applicant  though his absence and his failure to communicate either to his unit or to the nearest Military Station are not condonable……”

(emphasis supplied)   

6. The Tribunal, nevertheless, was swayed by the justification

given by  the  respondent  (which,  according  to  the  respondent,

prevented  him  from  reporting  to  duty  or  for  that  matter,

intimating  either  to  his  superiors  or  to  the  nearest  military

station), singularly because it was his first offence. The Tribunal

relied  on  Regulation  754(C)  and  concluded  that  since  the

8

respondent’s conduct was otherwise exemplary and as it was his

first offence and that he had already undergone three months

rigorous  imprisonment  for  the  stated  offence,  the  order  of

punishment of dismissal from service was disproportionate and

unduly harsh.  

7. Regulation  754(C)  of  the  Defence  Service  Regulations  for

Armed Forces reads thus:-  

“Sentences must necessarily vary according to the requirements  of  discipline  but  in  ordinary circumstances, and for a first  offence,  a sentence should be light.”

Indeed, the respondent may have been charged for the first time

for  having  committed  offence  of  overstaying  the  casual  leave

period.  The respondent may also have offered explanation about

the matrimonial dispute, other family issues and his ill-health, as

the  cause  for  not  reporting  to  duty.  From  the  proved  facts,

however, it is evident that the respondent overstayed for a period

of  around  1½ years  beyond  the  casual  leave  period  which  is

indubitably  against  the requirements  of  discipline.  In that,  he

was  granted  casual  leave  from  20th  October,  2012  to  4th

November, 2012, but he surrendered only on 11th April,  2014.

He  did  not  bother  to  intimate  his  whereabouts  either  to  his

9

superiors or to the nearest military station during the intervening

period stretched upto around 1½ years. If he was suffering from

any illness personally or for that matter if his father suffered a

paralytic attack, he ought to have gone to the Military Hospital

for treatment. However, he did not choose to go to the Military

Hospital but to a quack. This is a serious misconduct and cannot

be countenanced in the disciplined force where the respondent

was serving. From the established facts it would not warrant a

lighter view, much less to direct reinstatement of the respondent,

as has been done by the Tribunal.   That would send a wrong

signal  and  impact  the  discipline  of  the  Armed  Forces.  The

respondent had just put in around six years of service when he

ventured into committing the stated offence.  The fact that he has

already undergone punishment of sentence period for the offence

of desertion also can be of no avail so as to interdict the decision

of  the  disciplinary  authority  to  dismiss  the  respondent  from

service.  

8. A  priori,  reliance  placed  by  the  Tribunal  on  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

10

beyond  the  casual  leave  period  for  around  1½ years  without

informing either his superiors or the nearest military station as

to his whereabouts.

9. To put it differently, in the fact situation of the present case,

it is not possible 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 1½ years was uncondonable. 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.

10. We  have  no  hesitation  in  concluding  that  the  Tribunal

misdirected itself in invoking Regulation 754(C) and to reckon the

mitigating  circumstance  such  as  respondent  has  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 authority and instead

11

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.  The judgment

under appeal, therefore, deserves to be set aside.

11. Counsel  for  the  respondent  made  a  fervent  alternative

submission that even if  the direction given by the Tribunal to

reinstate the respondent in service was to be set aside, this Court

may  take  a  sympathetic  view  as  the  respondent  has  already

suffered the sentence period for the stated offence. He submitted

that this Court may modify the order of dismissal from service to

one of discharge from service, so that the respondent may not be

disqualified from applying for employment elsewhere, considering

that he is young and has to support his family.  The counsel for

the  appellants,  in  all  fairness,  submits  that  so  long  as  the

respondent is not ordered to be reinstated in the Indian Air Force

Service and there is no financial implication for the department,

he may leave it to the discretion of this Court to pass orders as

may be deemed appropriate.

12. As a result,  even though we are inclined to set aside the

order of reinstatement of the respondent in service and to treat

12

the period between the date of dismissal of the respondent and

the date of his rejoining service as non-qualifying service, to do

complete justice we accept the prayer of the respondent to modify

the  order  of  dismissal  from  service  to  one  of  discharge  from

service simplicitor.

13. The appeal partly succeeds in the above terms with no order

as to costs.

………………………………….J. (Dipak Misra)

.………………………………...J. (Amitava Roy)

………………………………….J. (A.M. Khanwilkar)

New Delhi, Dated: August 10, 2017