IMPORTANT POINT
Overstaying leave for 1½ years without intimating the Unit or reporting to Military hospital even when ill is serious misconduct for a person in uniform entailing dismissal from service.

JUDGMENT

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

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”

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 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 re