UNION OF INDIA AND ORS.versusEX LAC NALLAM SHIVA

                           [2017] 7 S.C.R. 530


A                    UNION OF INDIA AND ORS.

                                    v.

                       EX LAC NALLAM SHIVA

B                   (Criminal Appeal No. 967 of2017)

                            AUGUST I 0, 2017

    (DIPAK MISRA, AMITAVA ROY, A. M. KHANWILKAR, JJ.f

         Service Law - Dismissal from service - On ground of
c overstaying leave period - Respondent while serving in Air force,
  overstayed the casual leave granted to him without informing his
  superiors - District Court Martial sentenced him to undergo rigorous
  imprisonment, dismissal fi'om service and reduction in rank -
  Respondent served the sentence of imprisonment - Tribunal took
D note of regn. 754(C) and held that punishment awarded to the
  respondent was excessive and disproportionate and directed
  reinstatement with period between the date of dismissal to date of
  rejoining to be treated as non-qualifying service - Held: Respondent
  overstayed for period of around 1.5 years beyond the casual leave
E period without informing his seniors or the nearest milita1y station
  which is indubitably against the requirement of discipline -
  Punishment of dismissal was not vindictive, unduly harsh or
  disproportionate to offence committed by the respondent - Tribunal
  misdirected itself in invoking regn. 754(C) and exceeded its
  jurisdiction in overturning the order of punishment -Air Force Act,
F 1950 - Defence Service Regulations for Armed Forces - regn.
   754(C).

          Partly allowing the appeal, the Court

          HELD: I. A priori, reliance placed by the Tribunal on
G   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 beyond the casual leave period for around 1Y:z years
    without informing either his superiors or the nearest military
    station as to his whereabouts. [Para 81 (536-H; 537-AI
H
                                   530
 UNION OF INDIA AND ORS. v. EX LAC NALLAM SHIVA                       531


       2. In the fact situation of the present case, it is not possible A
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 1 Yi years B
was uncondondable. 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. [Para 9) [537-B-CJ                                  C

      3. The Tribunal misdirected itself in invoking Regulation
754(C) and to reckon the mitigating circumstance of respondent
having 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 D
authority and instead 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. [Para 10) [537-D-E[                                        E

      4. However, the prayer of the respondent is accepted to
modify the order of dismissal from service to one discharge from
service simplicitor. [Para 12) [538-B]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.             F
967 of2017.

      From the Judgment and Order dated 09.12.2016 in 0. A. No.77
of 2015 and Order dated 17.03.2017 in M.A. No.43 of 2017 in 0. A.
No. 77of2015 of the Armed Forces Tribunal, Regional Bench, Chennai.
                                                                       G
      R. Balasubramanian, Ms.Aarti Sharma, Mukul Sirigh, Prakash
Gautam, Hemant Arya, Mukesh Kumar Maroria, Advs. for the
Appellants.

      Rabin Majumder, Adv. for the Respondent.
                                                                       H
S32           SUPREME COURT REPORTS                         (2017] 7 S.C.R.


A          The Judgment of the Court was delivered by
         A. M. KHANWILKAR, J, 1. The respondent was enrolled in
  the Indian Air Force on 28'h March, 2006 and in clue course of time was
  promoted to the rank of Corporal. While serving in that capacity, he
  overstayed the casual leave granted to him from 20•h October, 2012 till
B 4•h November, 2012, until 11 'h April, 2014, allegedly due to his ill-health
  and family problems. Resultantly, he was tried before the District Court
  Martial (DCM) on 11 '11 November,2014. He was served with the charge-
  sheet which reads thus:-
                              "CHARGE SHEET
 c
           The accused 916856-L Corporal Na/lam 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
D
           DESERTING Tlf,E SERVICE
           Jn that he,
           At Master Control Centre, Air Force Station Basantnagar. New
           Delhi, having been granted leave of absence from 20 Oct 12
 E
           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 JAFIP of said Air Force Station on 11 Apr 2014.

 F         Second charge: Section 39(b)AF Act, 1950 (Alternative to the
           first charge)
           WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE
           GRANTED TO HIM
           Jn that he,
 G ·       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 JAFIP of the said Air Force Station on 11Apr14.
 H
  UNION OF INDIA AND ORS. v. EX LAC NALLAM SHIVA                             533
               [A. M. KHANWILKAR, J.)

      Place: New Delhi                                                       A
      Date: 21" October, 2014
                                                         Sdl-
                                                 (MS Shekhawat)
                                                 Air Commodore
                                            Air Ojjicer Commanding
                                                                             B
                                             AF Stn Basant Nagar"


        2. The said authority, after giving opportunity to the respondent,
on 11 •h November 2014 found him guilty of the second charge only and
sentenced him to undergo punishment of four months' rigorous                 C
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 l l'h November, 2014 to lO'h Febrnary,
2015 and was dismissed from service on lQ•h Febrnary, 2015. The
respondent submitted a petition under Section 161(2) of the Air Force        D
Act, 1950 before the Chiefof the Air Staff seeking for his reinstatement
which, however, was rejected vide order dated l21h 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            E
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
respondent. But the Tribunal was impressed by the plea taken by the
respondent that he overstayed because of compelling circumstances d~e        F
to matrimonial dispute and illness of his father resulting in mental
 disturbances and more particularly, because it was the first offence of
 th.e 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                      G
 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:-
                                                                             H
534           SUPREME COURT REPORTS                         [2017] 7 S.C.R.



A           "17. Jn the instant case, admittedly, this is the.first offence by
           the applicant and otherwise the applicants 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 ofthe sentence awarded to the applicant.
B
           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
 c         service and, therefore, we set aside the punishment of "To be
           dismissed from the service" alone, and other punishments 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
D
           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
 E 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.
 F The justification given by the respondent for committing the offence of
   overstaying the casual leave period for almost around 1 Y, 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
 G 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 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
 H    respondent, on the other hand, submits that the Tribunal justly invoked
  UNION OF INDIA AND ORS. v. EX LAC NALLAM SHIVA                                535
               [A.M. KHANWILKAR, J.]

Regulation 754(C) as it was a case of first offence committed by the A
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
                                                                           B
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 c
suffered the sentence period for the stated offence. Therefore, he submits
that the appeal be dismissed.
       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          D
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
                                                                                E
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                      F
       condonable ... ... "
                                                     (emphasis supplied)
       6. The Tribunal, nevertheless, was swayed by the justification
given by the respondent (which, according to the respondent, prevented          G
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 respondent's conduct was otherwise exemplary and as it

                                                                                H
536            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


A 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:-
B
            "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
C 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 1Y2 years beyond the casual leave
  period which is indubitably against the requirements of discipline. In that,
D he was granted casual leave from 20th October, 2012 to 4th November,
  2012, but he surrendered only on l l'h April, 2014. He did not bother to
  intimate his whereabouts either to his superiors or to the nearest military
  station during the intervening period stretched upto around 1Yi years. If
  he was suffering from any illness personally or for that matter if his
E father suffered a paralytic attack, he ought to have gone to the Military
  Hospital for treatment. However, he did not choose to gci 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
F 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
G 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


H
  UNION OF INDIA A!'{D ORS. v. EX LAC NALLAM SHIVA                            537
               [A.M. KHANWILKAR, J.]

committed by the respondent. He overstayed beyond the casual leave            A
period for around 1Y2 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 8
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 1Y2 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 C
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 D
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 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 E
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 F
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 G
 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.

                                                                               H
538                SUPREME COURT REPORTS                      [2017] 7 S.C.R.


A            12. As a result, even though we are inclined to set aside the order
      of reinstatement of the respondent in service and to treat 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.
B
             13. The appeal partly succeeds in the above terms with no order
      as to costs.


      Ankit Gyan                                             Appeal partly allowed ..