'Discipline Is A Non-Negotiable Condition Of Service In Armed Forces' : Supreme Court Dismisses Appeal Of Suspended Army Driver Who Overstayed Leave

The Supreme Court on Friday dismissed an appeal filed by a Mechanical Transport Driver enrolled in the Army Service who was dismissed from service for overstaying the leave granted to him. Finding him to be a habitual offender, the Apex Court held that such gross indiscipline by a member of the Armed Forces is unacceptable.

“Discipline is the implicit hallmark of the Armed Forces and a non-negotiable condition of service” the Top Court said in this regard.

The Armed Forces Tribunal had upheld his dismissal from service for having failed to rejoin duty on expiry of the leave granted to him. A division bench of Justice Hima Kohli and Justice Rajesh Bindal, while dismissing his appeal 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.”

The facts pertaining to the case is that the appellant was initially granted leave for 39 days and his request for extension was also accepted. However, his request for further extension of leave was turned down, despite which he failed to report for duty. The appellant only surrendered after 108 days. The Summary Court Martial (SCM) found him guilty and dismissed him from service.

Adv Shiv Kant Pandey appearing for the appellant argued that the punishment of dismissal from service was disproportionate to the offence committed. It was argued that the punishment awarded is in violation of Sections 39(b) and 120 of the Act and that the maximum punishment was of imprisonment for a period of one year. Sr. Adv. R. Balasubramanian, appearing for the respondents highlighted that the appellant was a repeat offender.

The Apex Court found that even though the reason given by the appellant for his absence was that his wife was unwell, he did not place any documents on record to show that she was seriously unwell and required his assistance. The Court also noted that he had made a habit of remaining absent without leave.

Regulation 448 of the Defence Service Regulations, 19879 contemplates the scale of punishments that can be awarded by the SCM. This Regulation makes it clear that they are only general instructions for the guidance of officers of the SCM for passing a sentence, the Court observed. If there is good reason for doing so, nothing contained in the Regulation limits the discretion of the SCM to pass any legal sentence, the Apex Court concluded. Section 72 and 73 of the Act also give the SCM the discretion to inflict appropriate punishment it was observed.

The Top Court observed that, the appellant being a habitual offender, did not deserve any leniency and hence dismissed his appeal:

“we do not find any infirmity in the impugned judgment passed by the AFT. The appellant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the very same offence. Therefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him.”

Case Title: Ex Sepoy Madan Prasad V. Union of India, Civil Appeal No. 246 Of 2017

Citation:  2023 LiveLaw (SC) 580

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