IMPORTANT POINT
Absence of 302 days from his duty by a member of the Armed Force could not be condoned.

JUDGMENT :

DHANANJAYA Y CHANDRACHUD, J.

1. Admitted.

2. The respondent was enrolled in the Indian Army as a Sepoy in the Army Service Corps on 25 April 1996. On 11 November 2007, he was dispatched on a permanent posting to 874 ASC Batallion, which was deployed in Jammu and Kashmir. Having failed to report to his new Unit on 21 November 2007, he was declared as absent without leave on 22 November 2007. In terms of Section 106 of the Army Act 1950, a Court of Inquiry was held and the respondent was declared to be a deserter with effect from 22 November 2007. On 18 September 2008, after a lapse of 302 days, the respondent reported to the ASC Centre (North) at Gaya.

3. On 12 November 2008, he was tried by a Summary Court Martial on two counts: the first count was his unauthorized absence over a period of 302 days without leave; while the second count related to the loss of certain equipment and clothing. The respondent pleaded guilty to the two charges. In his statement before the Summary Court Martial, the respondent stated thus:

“14. I No 6492086-A Sep/ASH Kulbeer Singh of 874 AT Bn ASC att with HQ Wing, ASC Centre (North) was enrolled in the Army on 25 Apr 1996. I belong to Vill – Sampla Begampur, PO – Sarsawa, PS – Nakur, Teh – Nakur, Distt – Saharanpur, State – UP. My family consists of my father aged 55 yrs, mother aged 52 yrs, wife aged 29 yrs and son aged 3 yrs.

15. I was posted to 874 AT Bn ASC from 514 ASC Bn during Nov 2007. During my preparatory leave I went to my house. On reaching home, I cam to know that my uncle had taken possession of my old house. The matter was reported to Village Sarpanch & Tehsildar. Tehsildar investigated the matter & the house was recovered from my uncle and handed over to my father. Thereafter I reported at HQ Wing on 18 Sep 2008 afternoon after being absent for 302 days.

16. I was found to be deficient of clothing and equipment items for Rs.2265/- (Rupees two thousand two hundred sixty five only) as mentioned in the kit deficiency list att as Appx to IAFD-918 (Annexure – II produced by Prosecution Witness No.2).

17. The above statement has been read over to me in the language (Hindi). I understand better and sign it as correct in the presence of independent witness.”

4. The Summary Court Martial found the respondent guilty and sentenced him to dismissal from service.

5. The respondent submitted a petition under Section 164 of the Army Act on 17 May 2010, which was rejected by the GOC, Madhya Pradesh Area on 13 April 2011. The respondent challenged his conviction and dismissal from service before the Armed Forces Tribunal at its Regional Bench in Lucknow. By an order dated 21 August 2015, the Tribunal came to the conclusion that the finding arrived at by the Summary Court Martial was correct, but that the sentence of dismissal was disproportionate. The Tribunal noted that in his twelve years of service, the respondent had been punished in 2007 for having overstayed his leave by 140 days and this was his second infraction. In the view of the Tribunal, the punishment could have been modulated so as to allow the respondent to continue to serve the Army until he qualified for pension. The Tribunal found that the punishment which was awarded to the respondent was disproportionate having regard to his service of twelve years and, accordingly, issued the following directions:

“20. Accordingly, the O.A. is only partly allowed. While affirming the Summary Court Martial proceedings and the Attachment Order to be a valid, we direct that the punishment of dismissal be hereby quashed. The petitioner will be deemed to be notionally in service w.e.f. 12.11.2008 till he attains the service which entitles him to receive pension and thereafter he shall be granted pension with all consequential benefits. We clarify that the petitioner shall not be paid salary during the period of notional service. No order as to costs.”

6. Assailing the aforesaid directions, the Union of India is in appeal.

7. Ms. Madhavi Divan, learned A