Supreme Court Upholds Dismissal for Unauthorized Absence in Army: Union of India vs. Kulbeer Singh (2019)

Date of the Judgment: 11 March 2019

Citation: [Not Available in Source]

Judges: Dr. Dhananjaya Y Chandrachud, J. and Hemant Gupta, J.

Can a member of the Armed Forces be dismissed for being absent without leave for 302 days? The Supreme Court of India recently addressed this question, overturning a decision by the Armed Forces Tribunal that had reduced the punishment to notional service until pension eligibility. This case highlights the importance of discipline within the armed forces and the limits of judicial intervention in matters of military justice. The Supreme Court bench consisted of Dr. Dhananjaya Y Chandrachud, J. and Hemant Gupta, J., with the judgment authored by Dr. Dhananjaya Y Chandrachud, J.

Case Background

The respondent, Kulbeer Singh, was enrolled as a Sepoy in the Indian Army on 25 April 1996. On 11 November 2007, he was posted to 874 ASC Battalion in Jammu and Kashmir. He failed to report to his new unit on 21 November 2007 and was declared absent without leave on 22 November 2007. A Court of Inquiry was held, and the respondent was declared a deserter from 22 November 2007. After 302 days, on 18 September 2008, the respondent reported to the ASC Centre (North) at Gaya. He was then tried by a Summary Court Martial on 12 November 2008 for unauthorized absence and loss of equipment. He pleaded guilty to both charges and was dismissed from service. The respondent’s petition against the dismissal was rejected by the GOC, Madhya Pradesh Area on 13 April 2011. Subsequently, the respondent challenged his conviction and dismissal before the Armed Forces Tribunal, which upheld the conviction but reduced the punishment to notional service until pension eligibility on 21 August 2015.

Timeline

Legal Framework

The case primarily revolves around the interpretation of the Army Act, 1950. Specifically, the following sections are relevant:

• Section 39 of the Army Act, 1950: Deals with offences related to absence without leave. It states that a person convicted by a Court Martial for such an offence may be sentenced to imprisonment for a term extending to three years or a lesser punishment.
• Section 71 of the Army Act, 1950: This section outlines the punishments that can be awarded by a Court Martial. Clause (e) of this section specifically includes dismissal from service as a possible punishment.

Arguments

Arguments by the Appellants (Union of India):

• The respondent had admitted to the charge of misconduct, specifically his absence for 302 days without leave.
• The Armed Forces Tribunal had found no reason to interfere with the finding of the Summary Court Martial.
• Given the unauthorized absence of 302 days, the Tribunal was not justified in holding that the punishment of dismissal was disproportionate.

Arguments by the Respondent:

• Section 39 of the Army Act, 1950, provides for imprisonment for overstaying leave, and the respondent should have been subjected to imprisonment instead of dismissal.
• The respondent’s statement should not be construed as an admission of misconduct, as he had provided a justification for his absence.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the Armed Forces Tribunal was correct in modifying the punishment of dismissal from service to notional service until pension eligibility, despite the respondent’s unauthorized absence of 302 days.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Section 39 of the Army Act, 1950: The Court clarified that this section deals with offences and does not limit the punishments that can be imposed.
• Section 71(e) of the Army Act, 1950: The Court emphasized that this section specifically allows for dismissal from service as a punishment.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The respondent’s admission of absence for 302 days without leave.
• The fact that Section 71(e) of the Army Act, 1950, specifically allows for dismissal as a punishment.
• The Tribunal’s error in finding the punishment disproportionate, especially given the respondent’s long service, which should have made him more responsible.

Fact:Law Ratio

Logical Reasoning:

The Court considered the respondent’s argument that he should have been imprisoned under Section 39 of the Army Act, 1950, but rejected it, emphasizing that Section 71(e) allows for dismissal. The Court also rejected the argument that the respondent’s statement was not an admission, stating that the respondent had admitted to his absence. The Court noted that the Tribunal had misdirected itself by finding the punishment disproportionate based solely on the respondent’s length of service. The Court stated, “The Tribunal clearly misdirected itself in law in coming to the conclusion that the punishment of dismissal from service was harsh and disproportionate.” The Court further stated, “Absence of 302 days from his duty by a member of the Armed Force could not be condoned.” The Court also observed, “This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission.”

Key Takeaways

• Members of the Armed Forces can be dismissed for unauthorized absence, especially for extended periods.
• The Armed Forces Tribunal’s power to modify punishments imposed by Court Martials is limited.
• Length of service does not justify leniency in cases of serious misconduct such as desertion.
• Discipline and adherence to duty are paramount in the Armed Forces.

Directions

The Supreme Court set aside the judgment of the Armed Forces Tribunal and dismissed the original application filed by the respondent. There were no specific directions given by the Supreme Court.

Development of Law

The ratio decidendi of this case is that the punishment of dismissal from service for unauthorized absence of 302 days by a member of the Armed Forces is valid and proportionate. This judgment reinforces the importance of discipline within the armed forces and clarifies that the Armed Forces Tribunal should not interfere with punishments imposed by Court Martials unless there is a clear error in law. There is no change in the previous position of law.

Conclusion

The Supreme Court allowed the appeal filed by the Union of India, setting aside the Armed Forces Tribunal’s order. The Court upheld the dismissal of the respondent from service, emphasizing the importance of discipline and adherence to duty within the Armed Forces. The Court clarified that unauthorized absence of 302 days could not be condoned and that the Tribunal had erred in finding the punishment of dismissal disproportionate.