EX SEPOY MADAN PRASAD V/S UNION OF INDIA AND OTHERS
| Citation | 2023 LIVELAW (SC) 580 : 2023 INSC 656 |
| Date of Judgement | 28 July 2023 |
| Court | Supreme Court of India |
| Case Type | Civil Appeal |
| Case No | Civil Appeal no.246 of 2017 |
| Appellant | Ex Sepoy Madan Prasad |
| Respondents | Union of India and Others |
| Bench | Justice. Hima KohliJustice. Rajesh Bindal |
| Referred | Army act,1950Section 39(B), 72, 73, 106, 120.Regulation 448 of the Defense Service regulations,1987 |
INTRODUCTION
- The present appeal is directed against the judgment and order dated 16th February, 2015, passed by the Armed Forces Tribunal , Regional Bench, Lucknow whereby the appeal originally filed by the appellant as a Writ Petition before the High Court of Judicature at Allahabad and subsequently transferred to the Armed force Tribunal(AFT), which was dismissed and the orders dated 24th August, 1999 and 4th October, 2001 passed by the respondents No. 5 and 2, respectively upholding the charge levelled against him under Section 39(b) of the Army Act, 1950 of overstaying the leave granted to him without sufficient cause, thereby dismissing him from service, were endorsed.
FACTS OF THE CASE
- The facts pertaining to the mechanical transport driver enrolled in the army service corps on 4th January , 1983 .
- The case is that, In the year 1998, The appellant was initially granted leave for 39 days from 8th November ,1998 to 16th December,1988. His request for extension of leave on compassionate grounds was also accepted by the respondants and he was granted advance annual leave for 30 days in the year 1999.
- However, his request for further extension of leave was turned down, despite which he failed to report for duty. Claiming that his wife had fallen ill and he was arranging her medical treatment and looking after her, he overstayed the leave granted to him.
- The Appellant telephonic request for extension of leave was rejected. After the rejection of the request he did not report back immediately.
- On 15th February 1999, a Court of Inquiry was conducted under Section 106 of the Army Act to investigate the circumstances under which the appellant had overstayed leave. The Court opined that the appellant be declared a deserter with effect from 16th January, 1999.The appellant only surrendered after 108 days ,on 3rd may,1999.
- The charge framed against him was heard by the Commanding Officer under Rule 22 of the Army Rules on 8th July, 1999. The appellant declined to cross examine any of the witnesses. After recording the Summary of Evidence, a Summary Court Martial was conducted by the Commanding Officer, HQ Wing Depot Coy (MT), ASC Centre (South), Bangalore, where the appellant was attached. The Summary Court Martial (SCM) found him guilty and awarded punishment of dismissed him from service.
APPEALS
- Aggrieved by the dismissal order, the appellant preferred an appeal under Section 164 of the Army ACT that came to be dismissed vide order dated 4th October, 2001.
- The said orders were challenged by the appellant before the High Court of Judicature at Allahabad by filing a writ petition that was transferred to the AFT for decision and was finally dismissed by the impugned order.
CONTENTIONS OF APPELLANTS
- Advocate Shiv Kant Pandey appearing for the appellant argued that the punishment of dismissal from service was disproportionate to the offence committed.
- It was argued that the punishment awarded is in violation of Sections 39(b) and 120 of the Act and that SCM could not award punishment of dismissal from service and the maximum punishment was of imprisonment for a period of one year which could have been awarded.
- Section 72 says about alternative punishment awardable by court martial and section 73 that contemplates a combination of punishments as a sentence of court martial ,as set out in section 71, is not applicable to a SCM but only to a General Court Martial or a District Court Martial.
- Lastly, that Regulation 448 of the Defense Service Regulations, 1987 prescribes the scale of punishment awardable by SCM and in the table of punishments mentioned in the Schedule, absence without leave or overstaying leave is at serial No. 4 which entails a punishment of rigorous imprisonment for three months or less, whereas the appellant has wrongly been imposed such a harsh punishment of dismissal from service.
- It was thus argued that the punishment of dismissal from service imposed on the appellant was disproportionate to the offence committed
CONTENTIONS OF RESPONDANTS
- Sr. Adv. R. Balasubramanian, appearing for the respondents, refuted the arguments and highlighted that the appellant was a habitual offender.
- It was argued that contrary to the assertion of the appellant that he had reported to his Unit on 18th February, 1999 but was not allowed entry, as per the records, he did not report for duty on expiry of the extended leave; nor did he provide any documents to support his claim that his wife was so unwell and he was getting her treated.
- The allegation of the appellant that the procedure followed during the conduct of the Court of Enquiry or the SCM was contrary to the Rules, was strongly refuted by the learned senior counsel.
- Learned senior counsel concluded by submitting that the appellant having pleaded guilty of the charge during the course of the SCM, he cannot be permitted to renege subsequently and question the entire process.
RATIO DECIDENDI
- It is also relevant to note that this was not the first occasion when the appellant had remained absent without leave. He had made a habit of remaining absent without leave even on earlier occasions.
- A summary of the punishments for overstay of leave imposed on the appellant under Sections 39 (b) and 63 of the Army Act, set out in the impugned judgment are extracted below :
| s.no | Army Act/Section | Punishment Awarded | Date of Award | Period Absence |
| a) | 63 | 3 day pay fine | 13.07.1987 | |
| b) | 39(a) | 28 days RI | 12.05.1990 | 20 days |
| c) | 39(b) | 28 days RI and 14 days detention in military custody | 10.12.1990 | 11 days |
| d) | 39(b) | 7 days RI in military custody | 17.11.1995 | 7 days |
| E) | 39(b) | Severe Reprimand and 14 days pay fine | 28.08.1998 | 150 days |
| f) | 39(b) | To be dismissed from the service | 24.08.1999 | 108 days |
- From the above table that the appellant was a habitual offender. The most mindful fact is that discipline is the implicit hallmark of the armed forces and non-negotiable condition of service.
CASE LAW
- In a case of proportionality of the punishment imposed for unauthorized absence in Union of India and Others v. Ex. No. 6492086 Sep/Ash Kulbeer Singh , this Court had turned down the contention made on behalf of the respondent therein that instead of subjecting him to a term of imprisonment under Section 39, he had been dismissed from the service, which was disproportionate to the offence.
- The Apex Court found that even though the reason given by the appellant for his absence was that his wife was unwell, he did not place any documents on record to show that she was seriously unwell and required his assistance. The Court also noted that he had made a habit of remaining absent without leave.
- Regulation 448 of the Defense Service Regulations, 1987 contemplates the scale of punishments that can be awarded by the SCM. This Regulation makes it clear that they are only general instructions for the guidance of officers of the SCM for passing a sentence, the Court observed.
- If there is good reason for doing so, nothing contained in the Regulation limits the discretion of the SCM to pass any legal sentence, the Apex Court concluded.
- Section 72 and 73 of the Act also give the SCM the discretion to inflict appropriate punishment it was observed.
JUDGEMENT
- SUPREME COURT dismissed the appeal by stating that,” we do not find any infirmity in the impugned judgment passed by the AFT. The appellant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the very same offence. Therefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him”.
- Accordingly, the present appeal is dismissed as meritless, while upholding the impugned judgment. The parties are left to bear their own costs.
CONCLUSION
- Such gross indiscipline on the part of the appellant, who was a member of the Armed Forces, could not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave, this time, for a prolonged period of 108 days which, if accepted, would have sent a wrong signal to others in service.
- One must be mindful of the fact that discipline is the implicit hallmark of the Armed Forces and a non-negotiable condition of service
REFERENCES
https://main.sci.gov.in/supremecourt/2016/6161/6161_2016_14_1501_45542_Judgement_28-Jul-2023.pdf
https://www.supremecourtcases.com/ex-sepoy-madan-prasad-v-union-of-india-and-others/
This article is written by Dharani M, an intern under legal Vihdiya.
