EX SEPOY MADAN PRASADversusUNION OF INDIA AND OTHERS

             [2023] 9 S.C.R. 1199 : 2023 INSC 656                       1199


                  EX SEPOY MADAN PRASAD                                 A
                                 v.
                UNION OF INDIA AND OTHERS
                   (Civil Appeal No. 246 of 2017)
                           JULY 28, 2023                                B
         [HIMA KOHLI AND RAJESH BINDAL, JJ.]
      Army Act, 1950 – s.39 (b) – Dismissal from service –
Overstaying the leave – Appellant was enrolled in the Army service
Corps as a Mechanical Transport Driver – Initially leave for 39
                                                                        C
days granted to appellant – Further extension of leave was also
granted on compassionate grounds – However, further request for
extension of leave was rejected – Appellant failed to join – Court
of Inquiry conducted – Appellant was declared deserter – Appellant
finally surrendered after 108 days – Charges were framed –
Appellant was held guilty and awarded punishment of dismissal from      D
service – Appeal preferred was dismissed – Writ petition filed before
the High Court, subsequently transferred to AFT was also dismissed
– On appeal, held: Appellant had made a habit of remaining absent
without leave even on earlier occasions – Earlier, punishments for
overstayal of leave were also imposed – This was his sixth infraction
                                                                        E
for the very same offence – 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 – No infirmity found in the impugned        F
judgment passed by the AFT – Appellant deserves no leniency –
Impugned judgment upheld – Service Law.
      Dismissing the appeal, the Court
       HELD : 1. The appellant did not place any document on
record by way of the treatment summary or medical certificate of        G
his wife to demonstrate that she was seriously ill and required
his presence for constant treatment. Instead, a bald statement
was made by him during the Summary of Evidence to the effect
that he had remained absent without leave on account of his wife’s
ill health. Moreover, the appellant failed to cross-examine any of      H
                                1199
1200           SUPREME COURT REPORTS                      [2023] 9 S.C.R.


 A     the prosecution witnesses produced by the respondents during
       the Summary of Evidence conducted on 12th July, 1999. Further,
       the appellant pleaded guilty to the charge levelled against him of
       having failed to rejoin duty on expiry of the leave granted to him
       from 8th November, 1998 to 15th January, 1999. [Para 8][1204-
       E-G]
 B
             3. Appellant had made a habit of remaining absent without
       leave even on earlier occasions. It is apparent from the table
       that the appellant was a habitual offender. 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
 C     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. [Paras 9 and
 D     10][1204-H; 1205-D-E]
              4. It is apparent from a bare reading of the provision which
       deals with offences relating to absence without leave, that in case
       of an offence of overstaying leave without sufficient cause, on a
       conviction by a Court Martial, punishment by way of imprisonment
 E     for a term that may extend to three years or such less punishment
       as contemplated in the Act can be imposed on the delinquent
       person. Section 71 that falls under Chapter VII of the Act deals
       with punishments that may be inflicted for offences on conviction
       by the Court Martial, listed in a sliding scale. The punishment of
       imprisonment finds mention at sub-clause (c) whereas that of
 F     dismissal from service is mentioned down below, in sub-clause
       (e). In other words, the punishment of dismissal from service on
       conviction by Court Martial has been treated as a lesser
       punishment vis-à-vis the punishment of imprisonment for any
       period below 14 years. That being the position, the appellant
 G     cannot be heard to state that the punishment inflicted on him is
       graver than the one contemplated under the Act. [Para 12][1206-
       E-G]
             5. For the aforesaid reasons, this Court do not find any
       infirmity in the impugned judgment passed by the AFT. The
 H     appellant had been taking too many liberties during his service
    EX SEPOY MADAN PRASAD v. UNION OF INDIA AND                             1201
                     OTHERS

and despite several punishments awarded to him earlier, ranging             A
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. [Para
17][1208-G-H; 1209-A]
                                                                            B
        Union of India and Others v. Ex. No. 6492086 Sep/Ash
        Kulbeer Singh (2019) 13 SCC 20 – relied on.
                           Case Law Reference
(2019) 13 SCC 20                     relied on             Para 13
                                                                            C
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.246 of
2017.
      From the Judgment and Order dated 16.02.2015 of the Armed
Force Tribunal, Lucknow Bench in T.A. No.1227 of 2010 and dated
06.07.2015 in M.A. Nos.1184 and 1185 of 2015 in T.A. No.1227 of             D
2010.
       Shiv Kant Pandey, Amit Pandey, Atul Sharma, Abhishek, Advs.
for the Appellant.
     R. Balasubramanian, Sr. Adv., Rajan Kumar Chourasia, Sachin
Sharma, Vinayak Sharma, Arvind Kumar Sharma, Advs. for the                  E
Respondents.
        The Judgment of the Court was delivered by
        HIMA KOHLI, J.
       1. The present appeal is directed against the judgment and order     F
dated 16th February, 2015, passed by the Armed Forces Tribunal1, Regional
Bench, Lucknow whereby the appeal2 originally filed by the appellant as
a Writ Petition before the High Court of Judicature at Allahabad3 and
subsequently transferred to the 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   G
Section 39(b) of the Army Act, 19504 of overstaying the leave granted
1
  For short “AFT”
2
  Transfer Application No. 1227 of 2010
3
  Writ Petition No. 3439 of 2003
4
  For short “The Act”                                                       H
1202              SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A     to him without sufficient cause, thereby dismissing him from service,
       were endorsed.
              2. Briefly stated, the facts of the case are that the appellant was
       enrolled in the Army Service Corps5 on 4th January, 1983 as a Mechanical
       Transport Driver. In the year 1998, he was initially granted leave for 39
 B     days from 8th November, 1998 to 16th December, 1998. His request for
       extension of leave on compassionate grounds was allowed by the
       respondents and he was granted advance annual leave for 30 days in
       the year 1999, from 17th December, 1998 to 15th January, 1999. However,
       the appellant failed to rejoin duty. Claiming that his wife had fallen ill and
       he was arranging her medical treatment and looking after her, he
 C     overstayed the leave granted to him. The petitioner’s telephonic request
       for extension of leave was rejected6. However, 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
 D     the appellant be declared a deserter with effect from 16th January, 1999.
             3. The appellant finally surrendered after 108 days, on 3 rd May,
       1999 at HQ Wing, ASC Centre (South), Bangalore. 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
 E     any of the witnesses. After recording the Summary of Evidence, a
       Summary Court Martial7 was conducted by the Commanding Officer,
       HQ Wing Depot Coy (MT), ASC Centre (South), Bangalore, where the
       appellant was attached. The respondent No. 5 constituted the Court to
       conduct SCM8 which held the appellant guilty and awarded punishment
       of dismissal from service.
 F
              4. Aggrieved by the dismissal order, the appellant preferred an
       appeal under Section 164 of the Army Act before the respondent No. 2
       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
 G     the AFT for decision and was finally dismissed by the impugned order.
       5
         For short “ASC”
       6
         Vide Telegram dt. 18.01.1999
       7
         For short ‘SCM’
       8
         On 24th August, 1999
 H
       EX SEPOY MADAN PRASAD v. UNION OF INDIA AND                              1203
                 OTHERS [HIMA KOHLI, J.]

       5. Mr. Shiv Kant Pandey, learned counsel for the appellant seeks         A
to assail the impugned order on the ground that the respondents have
violated the provisions of Section 39(b) and Section 120 of the Act; that
the SCM could not have awarded punishment of dismissal from service
and the maximum punishment was of imprisonment for a period of one
year which could have been awarded; that Section 72 which deals with
                                                                                B
alternative punishment awardable by the Court Martial and Section 73
that contemplates a combination of punishments as a sentence of a 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 and lastly, that Regulation
448 of the Defence Service Regulations, 19879 prescribes the scale of
punishment awardable by SCM and in the table of punishments mentioned           C
in the Schedule, absence without leave or overstaying leave features 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
                                                                                D
was disproportionate to the offence committed.
       6. Per contra, Mr. R. Balasubramanian, learned Senior Advocate
appearing for the respondents refuted the arguments advanced by the
other side and submitted that the appellant remained a habitual defaulter
which is apparent from the number of punishments imposed on him, as
set out in para 4 of the impugned order. It was argued that contrary to         E
the assertion of the appellant that he had reported to his Unit on 18 th
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         F
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
who stated that the Court of Enquiry was conducted under the orders of
the respondent No. 4 and there was no procedure prescribed for the
respondent No. 4 to have reported the matter directly to the respondent
No. 3, as contended. Learned senior counsel concluded by submitting             G
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.
9
    For short “DSR”
                                                                                H
1204             SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A            7. We have heard the arguments advanced by learned counsel
       for the parties and perused the records. The contention of the appellant
       that he was granted leave for the period between 8 th November, 1998
       and 15th January, 1999 and his request for extension of leave was
       unreasonably rejected by the respondents whereupon he had returned
       to the Unit on 8th February, 1999, thus, having overstayed leave only by
 B
       34 days, is not borne out from the records. The appellant was granted
       leave for 39 days from 8th November, 1998 to 16th December, 1998, and
       his request for extension was acceded to upto 15th January, 1999. When
       his request for further extension of leave was turned down by the
       respondents, the appellant ought to have reported for duty immediately
 C     on expiry of the extended leave but he failed to do so. No document was
       produced by the appellant to demonstrate that he had reported to the
       Unit on 18th February, 1999. In fact, even in his statement made during
       the Summary of Evidence, the appellant failed to mention that he had
       reported to the Unit on 18th February, 1999. Quite apparently, this was
       an after-thought. In fact, in his statement, the appellant had clearly
 D
       admitted that he left his home and came to Bangalore where he
       surrendered on 3rd May, 1999, after remaining unauthorizedly absent for
       108 days.
              8. The appellant did not place any document on record by way of
       the treatment summary or medical certificate of his wife to demonstrate
 E     that she was seriously ill and required his presence for constant treatment.
       Instead, a bald statement was made by him during the Summary of
       Evidence to the effect that he had remained absent without leave on
       account of his wife’s ill health. Moreover, the appellant failed to cross-
       examine any of the prosecution witnesses produced by the respondents
 F     during the Summary of Evidence conducted on 12th July, 1999. It is
       noteworthy that during the course of the SCM conducted on 24 th August,
       1999, after the charge sheet was read out and explained to the appellant
       when he was asked whether he pleaded guilty or not to the charge
       preferred against him, he had categorically answered in the affirmative,
       by stating “Guilty”. In other words, the appellant pleaded guilty to the
 G     charge levelled against him of having failed to rejoin duty on expiry of
       the leave granted to him from 8th November, 1998 to 15th January, 1999.
             9. 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
 H
    EX SEPOY MADAN PRASAD v. UNION OF INDIA AND                              1205
              OTHERS [HIMA KOHLI, J.]

summary of the punishments for overstayal of leave imposed on the            A
appellant under Sections 39 (b) and 63 of the Army Act, set out in the
impugned judgment are extracted below :



                                                                             B




                                                                             C


       10. It is apparent from the above table that the appellant was a
habitual offender. There were four red ink entries and one black ink
entry against him before the present incident cited at serial number (f)
above. Such gross indiscipline on the part of the appellant who was a        D
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    E
a non-negotiable condition of service.
      11. As for the plea taken on behalf of the appellant that the charge
under Section 39(b) is not maintainable or that the provisions of Section
120 provide for a maximum punishment of imprisonment for one year,
the same is found to be misconceived. Section 39 falling under Chapter       F
VI of the Act is extracted below for ready reference :
      “39. Absence without leave. Any person subject to this Act
      who commits any of the following offences, that is to say,-
          (a) absents himself without leave; or
                                                                             G
          (b) without sufficient cause overstays leave granted to
          him; or
          (c) being on leave of absence and having received information
          from proper authority that any corps, or portion of a corps, or
          any department, to which he belongs, has been ordered on
                                                                             H
1206                SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A                  active service, fails, without sufficient cause, to rejoin without
                    delay; or
                    (d) without sufficient cause fails to appear at the time fixed at
                    the parade or place appointed for exercise or duty; or
                    (e) when on parade, or on the line of march, without sufficient
 B                  cause or without leave from his superior officer, quits the parade
                    or line of march; or
                    (f) when in camp or garrison or elsewhere, is found beyond
                    any limits fixed, or in any place prohibited, by any general,
                    local or other order, without a pass or written leave from his
 C                  superior officer; or
                    (g) without leave from his superior officer or without due cause,
                    absents himself from any school when duly ordered to attend
                    there;

 D               shall, on conviction by court- martial, be liable to suffer
                 imprisonment for a term which may extend to three years or such
                 less punishment as is in this Act mentioned.”
               12. It is apparent from a bare reading of the aforesaid provision
       which deals with offences relating to absence without leave, that in case
       of an offence of overstaying leave without sufficient cause, on a conviction
 E
       by a Court Martial, punishment by way of imprisonment for a term that
       may extend to three years or such less punishment as contemplated in
       the Act can be imposed on the delinquent person. Section 71 that falls
       under Chapter VII of the Act deals with punishments that may be inflicted
       for offences on conviction by the Court Martial, listed in a sliding scale.
 F     The punishment of imprisonment finds mention at sub-clause (c) whereas
       that of dismissal from service is mentioned down below, in sub-clause
       (e). In other words, the punishment of dismissal from service on conviction
       by Court Martial has been treated as a lesser punishment vis-à-vis the
       punishment of imprisonment for any period below 14 years. That being
       the position, the appellant cannot be heard to state that the punishment
 G
       inflicted on him is graver than the one contemplated under the Act.
             13. In a case of proportionality of the punishment imposed for
       unauthorised absence in Union of India and Others v. Ex. No. 6492086
       Sep/Ash Kulbeer Singh10, this Court had turned down the contention
       10
 H          (2019) 13 SCC 20
    EX SEPOY MADAN PRASAD v. UNION OF INDIA AND                                1207
              OTHERS [HIMA KOHLI, J.]

made on behalf of the respondent therein that instead of subjecting him        A
to a term of imprisonment under Section 39, he had been dismissed from
the service, which was disproportionate to the offence, it was held thus:
      “6. 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 the Court        B
      Martial for an offence involving absence without leave, a sentence
      of imprisonment which 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.”              C

       14. The provision of Section 120 of the Act relied on by learned
counsel for the appellant is also inapplicable to the facts of the instant
case. Section 120 deals with the power of Summary Court Martial. Sub-
sections (1), (2) and (4) of Section 120 reads as follows :
                                                                               D
      “120. Powers of summary courts- martial.
          (1) Subject to the provisions of sub- section (2), a summary
          court- martial may try any offence punishable under this Act.
          (2) When there is no grave reason for immediate action and
          reference can without detriment to discipline be made to the         E
          officer empowered to convene a district court- martial or on
          active service a summary general court- martial for the trial of
          the alleged offender, an officer holding a summary court-
          martial shall not try without such reference any offence
          punishable under any of the sections 34, 37 and 69, or any           F
          offence against the officer holding the court .”
          xxxx            xxxx             xxxx
          (4) A summary court- martial may pass any sentence which
          may be passed under this Act, except a sentence of death or
          transportation, or of imprisonment for a term exceeding the          G
          limit specified in sub- section (5).”
       15. It is explicit from the aforesaid provision that the said section
deals with the offences punishable under Section 34 i.e., offences in
relation to the enemy and punishable with death, Section 37, i.e., Army
                                                                               H
1208             SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A     mutiny and Section 69 i.e., Civil Offences. Sub-section (2) of Section
       120 places an embargo on an officer holding a SCM to try any of the
       offences mentioned in Sections 34, 37 and 69 without any reference to a
       District Court Martial or a Summary General Court Martial for trial of
       the alleged offender. Read in the aforesaid context, sub-section (4) of
       Section 120 clearly states that a SCM can pass any sentence as
 B
       contemplated under the Act except for a sentence of death or
       transportation or of imprisonment for a term that may exceed a period
       of one year for an officer of the rank of Lieutenant Colonel and above
       and a period of three months for an officer below that rank, as specified
       in sub-section (5). Quite clearly, the aforesaid provision is not applicable
 C     here and cannot come to the aid of the appellant for insisting that a
       District Court Martial or Summary General Court Martial ought to have
       been convened in his case, when SCM can try any offence punishable
       under the Act.
              16. Regulation 448 of the DSR cited by learned counsel
 D     contemplated the scale of punishments awardable by the SCM. The
       said Regulation states in so many words that these are general instructions
       issued for the guidance of officers holding SCM for passing a sentence
       and that nothing contained in the said Regulation would be construed as
       limiting the discretion of the Court to pass any legal sentence, even if
       there is good reason for doing so. Therefore, citing the table of
 E     punishments listed under the Schedule appended to Regulation 448 to
       urge that for absence without leave or for overstaying leave, the normal
       punishment being rigorous imprisonment for three years or less to be
       undergone in military custody, punishment of dismissal from service could
       not have been inflicted on the appellant by the SCM, is unacceptable.
 F     Sufficient discretion vests in the SCM to inflict a higher punishment in
       the given facts and circumstances of a case. Same is the position under
       Sections 72 and 73 of the Act. Both the sections leave it to the discretion
       of the Court Martial to award a particular punishment, depending on the
       nature and degree of the offence. There is no merit in the submission
       made by learned counsel for the appellant that the said provisions are
 G     not applicable to a SCM.
             17. For the aforesaid reasons, 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
 H
    EX SEPOY MADAN PRASAD v. UNION OF INDIA AND                                 1209
              OTHERS [HIMA KOHLI, J.]

imprisonment, he did not mend his ways. This was his sixth infraction           A
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.
       18. Accordingly, the present appeal is dismissed as meritless, while
upholding the impugned judgment. The parties are left to bear their own         B
costs.

Ankit Gyan                                                  Appeal dismissed.
(Assisted by : Tamana, LCRA)

                                                                                C




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