Discipline Is Implicit Hallmark Of Armed Forces & Non-Negotiable Condition Of Service: SC Upholds AFT’s Order Of Dismissal From Service

The appellant in the case was enrolled in the Army Service Corps on January 4, 1983, as a Mechanical Transport Driver.

A bench of Justice Hima Kohli and Justice Rajesh Bindal observed, "Such gross indiscipline on the part of the appellant who was a member of the Armed Forces could not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave, this time, for a prolonged period of 108 days which if accepted, would have sent a wrong signal to others in service. One must be mindful of the fact that discipline is the implicit hallmark of the Armed Forces and a non-negotiable condition of service."

In the pertinent matter, the appellant was initially granted leave for 39 days from November 8, 1998 to December 16, 1998. His request for extension of leave on compassionate grounds was allowed by the respondents and was granted advance annual leave for 30 days in the year 1999.

However, he did not report back immediately. On February 15 1999, a Court of Inquiry was conducted under Section 106 of the Army Act to investigate into the matter. The Court opined that the appellant be declared a deserter with effect from January, 16 1999.

The appellant though finally surrendered after 108 days, on May 3, 1999 at HQ Wing, ASC Centre (South), Bangalore.

After recording the Summary of Evidence, a Summary Court Martial (SCM) was conducted by the Commanding Officer which held the appellant guilty and awarded punishment of dismissal from service.

The appellant then preferred an appeal under Section 164 of the Army Act before the respondent No. 2 that came to be dismissed. The said orders were challenged before the High Court of Judicature at Allahabad, however, was transferred to the AFT for decision and was finally dismissed by the impugned order.

It was the contention of the appellant that the punishment of dismissal from service imposed on the appellant was disproportionate to the offence committed.

The Court, however, while refusing to accept the contention of the appeallant observed, “Sufficient discretion vests in the SCM to inflict a higher punishment in the given facts and circumstances of a case. Same is the position under Sections 72 and 73 of the Act. Both the sections leave it to the discretion of the Court Martial to award a particular punishment, depending on the nature and degree of the offence. There is no merit in the submission made by learned counsel for the appellant that the said provisions are not applicable to a SCM”.

Accordingly, the bench dismissed the appeal as meritless.

Cause Title: Ex Sepoy Madan Prasad v. Union Of India And Others

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