The principle of proportionality in punishment and the need for considering individual circumstances in imposing disciplinary action.

N. Paul Vasanthakumar, C.J.

1. The Union of India has filed this appeal against the order made in OWP No.48/1995 dated 14.12.1999 wherein the learned Single Judge allowed the writ petition by setting aside the order of dismissal and ordered to grant pension and the said order was directed to be implemented within a period of six months.

2. Brief facts necessary for disposal of the appeal are as follows:-

(a) The writ petitioner, namely Rattan Chand, who died during pendency of the appeal, was enrolled as Sepoy in the Indian Army in the year 1971 and was dismissed in the year 1992 on the ground that he has deserted from the Armed Force. According to the writ petitioner he was posted at Amritsar and on 10.08.1990 he received a telegram from his home town informing that his wife is seriously ill. He applied for casual leave for five days from 11.08.1990 to 16.08.1990, which was sanctioned. The writ petitioner came to his home town at Samba District Jammu on 11.08.1990 and found that condition of his wife was very serious. There was no adult member in his family to look after his wife. Due to the said reason he overstayed i.e. beyond the leave period and for the reason of his over-stay, he was dismissed from service even though he has shown sufficient cause for his overstay.

(b) His contention was that Section 38 of the Army Act, 1950 was invoked against him instead of invoking the provisions of Section 39(v), which states that if a person commits offence that is to say without sufficient cause to overstay 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 mentioned in the Act.

(c) The writ petitioner was dismissed from service on 04.01.1992 and by that time he had served for more than 21 years. The said dismissal order was challenged before the learned Single Judge and the order was set aside.

3. The contention of the appellant in this appeal is that the writ petitioner was a habitual absentee and had been awarded two red entries under Section 39(a) and 29(b) and the overstay of the writ petitioner having been committed for the third time, he was dismissed from service and Army being a disciplined force, overstay is not permissible and the order of dismissal was justified and the learned Single Judge was not right in setting aside the same.

4. We have considered the submissions of the learned counsel for the parties and gone through the relevant papers/material on record.

5. It is not in dispute that the writ petitioner had served in the Army for about 21 years on the date of dismissal and on earlier two occasions he was proceeded against and was awarded red entries. It is also an admitted fact that for five days the writ petitioner was granted leave on the ground that his wife was not doing well and the doctors have also given certificate to the effect that his wife was being treated even after five days. Therefore, sufficient cause is shown for his overstay. Still the Army being a disciplined force, the person serving in the Army cannot overstay as it will hamper the movement of Army personnel, whose duties are special in nature. The writ petitioner died and his wife was brought on record on 30.11.2006 as legal heir and she prosecuted the appeal and she also died on 29.01.2014 and her legal heirs were brought on record. In such circumstances, a proportionality of punishment can be considered by this Court. 6. The proportionality in punishment, whether commensurate with the gravity of the charge/charges, is one of the ground on which the court can interfere if the punishment is shockingly disproportionate in a given case. In the decision reported in (1987) 4 SCC 611 (Ranjit Thakur v. Union of India and ors), Hon’ble the Supreme Court in paragraph nos. 25 and 27 held thus:-

25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to