IMPORTANT POINT
Dismissal from service – Gross indiscipline on part of member of Armed Forces could not be countenanced – Discipline is implicit hallmark of Armed Forces and a non-negotiable condition of service.

JUDGMENT :

HIMA KOHLI, J.

1. The present appeal is directed against the judgment and order dated 16th February, 2015, passed by the Armed Forces Tribunal¹ [for short “AFT”] Regional Bench, Lucknow whereby the appeal² [Transfer Application No. 1227 of 2010] originally filed by the appellant as a Writ Petition before the High Court of Judicature at Allahabad³ [Writ Petition No. 3439 of 2003] 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 Section 39(b) of the Army Act, 1950⁴ [for short “the Act”] of overstaying the leave granted 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 [for short “ASC”] on 4th January, 1983 as a Mechanical Transport Driver. In the year 1998, he was initially granted leave for 39 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 overstayed the leave granted to him. The petitioner’s telephonic request for the extension of leave was rejected⁶ [Vide Telegram dated 18.01.1999]. 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 the appellant be declared a deserter with effect from 16th January, 1999.

3. The appellant finally surrendered after 108 days, on 3rd 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 any of the witnesses. After recording the Summary of Evidence, a Summary Court Martial⁷ [for short ‘SCM’] 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 [On 24th August, 1999] which held the appellant guilty and awarded punishment of dismissal from service.

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 the AFT for decision and was finally dismissed by the impugned order.

5. Mr. Shiv Kant Pandey, learned counsel for the appellant seeks 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 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 [for short “DSR”] prescribes the scale of punishment awardable by SCM and in the table of punishments mentioned in the Schedule, absence without leave or overstayin