Dismissal Of Soldier For Unauthorized Absence Not Harsh Punishment, Says SC [Read Judgment]

Kulbeer Singh was tried in 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. After he pleaded guilty, he was sentenced to dismissal from service.

Partly allowing his plea, the Armed Forces Tribunal observed that the punishment could have been modulated so as to allow him to continue to serve the Army until he qualified for pension. The tribunal held that the soldier would 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.

In the appeal filed by Union of India, the bench comprising Justice DY Chandrachud and Justice Hemant Gupta disagreed with this view taken by the Tribunal and observed that it went wrong in the conclusion that the punishment of dismissal from service was harsh and disproportionate. The bench said:

"Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission."

The bench also rejected the submission made that, instead of subjecting him to a term of imprisonment under Section 39, Army Act, he was dismissed from service. The bench said:

"Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with "Offences". Section 39 provides that on a conviction by Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with "Punishments" contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials."

The bench then set aside the order of the Tribunal and restored the order of dismissal.

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