UNION OF INDIA Vs. ABDUL RASHID WAR

JUDGEMENT

(1.) The present writ petition is directed against the order dtd. 8/5/2023 passed by the Armed Forces Tribunal, Srinagar Bench at Jammu (hereinafter referred to as "the Tribunal") in OA No. 138/2021, whereby the Original Application filed by the respondent was partly allowed. By the said order, the Tribunal modified the punishment of dismissal imposed upon the respondent to one of discharge from service, with consequential benefits. However, such consequential benefits were restricted to a period of three years preceding the filing of the Original Application. The petitioners were further directed to implement the said order accordingly.

(2.) The brief facts necessary for adjudication are as follows. The respondent was enrolled in the Indian Army on 28/7/1983 and was serving with the Jammu and Kashmir Light Infantry Regiment (JAK LI). He was sanctioned 30 days' leave with effect from 6/7/1998 to 8/8/1998. As he could not rejoin his unit on the expiry of the said leave, he applied for an extension, which was granted from 9/8/1998 to 3/9/1998. Despite the extension, the respondent failed to report back and ultimately rejoined on 19/1/1999, expressing his willingness to resume duty. It thus transpired that he had overstayed his leave from 4/9/1998 to 19/1/1999, i.e., for a total period of 139 days. Consequently, he was tried by his Commanding Officer on 5/7/1999 under Summary Court Martial (SCM) proceedings and was sentenced to dismissal from service. Aggrieved by the said order of dismissal, the respondent approached the Tribunal by filing OA No. 138/2021, contending that during the period of leave he had met with an accident and was under severe mental stress owing to a failed marriage proposal, which led to depression and loss of mental balance. He claimed that he remained under medical treatment till 31/12/1998. The respondent further stated that he had made attempts to rejoin duty but refrained from doing so due to fear of his Commanding Officer. Later, while celebrating Eid, he met an officer of 24 Rashtriya Rifles, who called him to his camp on 19/1/1999, where he expressed his willingness to rejoin his unit. The respondent submitted before the Tribunal that the punishment of dismissal was excessively harsh and disproportionate, particularly in light of his over 15 years of satisfactory service. He urged that dismissal had rendered him ineligible for pensionary benefits, thereby depriving him of his livelihood. He pleaded that a lesser punishment, such as discharge, would have sufficed. The petitioners, on the other hand, defended the punishment, submitting that the SCM proceedings were conducted strictly in accordance with law and that the respondent's absence, extending to 139 days without authorisation, reflected a grave act of indiscipline. It was further submitted that the respondent was a habitual offender, having overstayed leave on multiple earlier occasions. Despite repeated warnings and disciplinary actions, his conduct did not improve, thereby setting a poor example for others. The punishment of dismissal, therefore, was fully justified and did not warrant interference. Upon consideration of the rival submissions, the Tribunal, by the impugned order, observed that the respondent's overall service record did not reveal any serious misconduct unbecoming of a soldier and that the reasons furnished for overstaying leave appeared genuine. The Tribunal held that the punishment of dismissal was disproportionate to the nature of the offence and accordingly modified it to one of discharge from service, with consequential benefits restricted to three years preceding the filing of the OA.

(3.) In the present writ petition, learned counsel for the petitioners assails the Tribunal's order as legally unsustainable, contending that it disregards the law laid down in "Ex Sepoy Madan Prasad v. Union of India & others" (Law Finder Doc Id #2275528), wherein dismissal of an Army personnel for repeatedly overstaying leave was upheld. It is urged that there was no procedural irregularity or illegality in the SCM proceedings and that the punishment was commensurate with the gravity of the misconduct. The respondent, having accepted the dismissal, did not challenge the same for over two decades and approached the Tribunal only in 2021, which demonstrates acquiescence and laches.