/2023 INSC 0656/ CIVIL APPEAL NO. 2 46 of 201 7 Page 1 of 11 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 246 of 2017 EX SEPOY MADAN PRASAD .… APPELLANT Versus UNION OF INDIA AND OTHERS …. RESPONDENTS J U D G E M E N T HIMA KOHLI, J. 1. The present appeal is directed against the judgment and order dated 16 th February, 2015 , passed by the Armed Forces Tribunal 1, Regional Bench , Lucknow whereby the appeal 2 originally filed by the appellant as a Writ Petition before the High Court of Judicature at Allahabad 3 and subsequently transferred to the AFT, which was dismissed and the order s dated 24 th August, 1999 and 4 th October, 2001 passed by the respondents No. 5 and 2 , respectively upholding the charge levelled against him under Section 39(b) of the Army Act, 1950 4 of overstaying the leave granted to him without sufficient cause , thereby dismissing him from service , were endorsed. 1 For short “AFT” 2 Transfer Application No. 1227 of 2010 3 Writ Petition No. 3439 of 2003 4 For short “ The Act ” 2023 INSC 656 CIVIL APPEAL NO. 2 46 of 201 7 Page 2 of 11 2. Briefly stated, the facts of the case are that the appellant was enrolled in the Army Service Corps 5 on 4 th January, 1983 as a Mechanical Transport Driver. In the year 1998, he was initially granted leave for 39 days from 8 th November, 1998 to 16 th December, 1998 . His request for extension of leave o n compassionate grounds was all owed by the respondent s and he was granted advance annual leave for 30 days in the year 1999 , from 17 th December, 1998 to 15 th January, 1999. However, the appellant f ailed to rejoin duty . Claiming that his wife had fallen ill and he was arranging her medical treatment and looking after her, he overstayed the leave granted to him. The petitioner ’s telephonic request for extension of leave was rejected 6. However , he did not report back immediately . On 15 th February 1999, a Court of Inquiry was conducte d under Section 106 of the Army Act to investigate the circumstance s under which the appellant had overstayed leave . T he Court opined that the appellant be declared a deserter with effect from 16 th January, 1999. 3. The appellant f inally surrendered after 108 days, on 3rd May, 1999 at HQ Wing, ASC Centre (South ), Bang alore . The charge framed against him was heard by the Commanding Officer under Rule 22 of the Army Rules on 8 th July, 1999. The appellant decline d to cross examine any of the witnesses . After recording the Summary of Evidence, a Summary Court Martial 7 was conducted by the Commanding Officer, HQ Wing Depot Coy (MT), ASC Centr e ( South ), Bangalore , where the appellant was attached. The respondent No. 5 5 For short “ASC” 6 Vide Telegram dt. 18.01.1999 7 For short ‘SCM’ CIVIL APPEAL NO. 2 46 of 201 7 Page 3 of 11 constituted the Court to conduct SCM 8 which held the appellant guilty and awarded punishment of dismissal from service. 4. Aggrieved by the dismissal order , the appellant preferred an appeal under Section 164 of the Army Act before the respondent No. 2 that came to be dismissed vide order dated 4 th October, 2001. The said orders were challenged by the appellant before the High Court of Judicature at Allahaba d by filing a writ petition that was transferred to the AFT for decision and was finally dismissed by the impugned order. 5. Mr. Shiv Kant Pandey, learned counsel for the appellant seeks to assail the impugned order on the ground that the respondents have vio lated the provisions of Section 39(b) and Section 120 of the Act; that the SCM could not have awarded punishment of dismissal from service and the maximum punishment was of imprisonment for a period of one year which could have been awarded ; that Section 7 2 which deals with alternative punishment awardable by the Court Martial and Section 73 that contemplate s a combination of punishment s as a sentence of a Court Martial , as set out in Section 71 , is not applicable to a SCM but only to a G eneral Court Martial or a District Court Martial and lastly , that Regulation 448 of the Defen ce Service Regulations, 1987 9 prescribe s the scale of punishment awardable by SC M and in the table of punishments menti oned in the Schedule , absence without leave or overstaying leave features at serial No. 4 which entails a punishment of rigorous imprisonment for three months or less, whereas the appellant 8 On 24 th August, 1999 9 For short “DSR” CIVIL APPEAL NO. 2 46 of 201 7 Page 4 of 11 has wrongly been imposed such a harsh punishment of dismissal from service. It was thus argued that the punishment of dismissal from service imposed on the appellant was disproportionate to the offence committed. 6. Per contra , Mr. R. Balasubram ania n, learned Senior Advocate appearing for the respondent s refuted the arguments advanced by the other side and submitted that the appellant remained a habitual defaulter which is apparent from the number of punishments imposed on him , as set out in para 4 of the impugned order. It was argued that contrary to the assertion of the appellant that he had reported to his Unit on 18 th February, 1999 but was not allowed entry, as per the records , he did not report for duty on expiry of the extended leave ; nor did he provide any documents to support his claim that his w ife was so unwell and he was getting her treated. The allegation of the appellant that the procedure followed during the conduct of the Court of Enquiry or the SCM w as contrary to the Rules , was strongly refuted by the learned senior counsel who stated that the Court of Enquiry was conducted under the orders of the respondent No. 4 and there was no procedure prescribed for the respondent No. 4 to have report ed the matter directly to the r espondent No. 3 , as contended . Learned senior counsel concl uded by submitting that the appellant having pleaded guilty of the charge during the course of the SCM , he cannot be permitted to renege subsequently and question the entire process. 7. We have heard the arguments advanced by learned counsel for the parties and perused the records. The contention of the appellant that he was granted leave for the period between 8 th November, 1998 and 15 th January, 1999 and his request for extension CIVIL APPEAL NO. 2 46 of 201 7 Page 5 of 11 of leave was unreasonably rejected by the respondents whereupon he had returned to the Unit on 8 th February, 1999 , thus , having overstayed leave only by 34 days, is not borne out from the records . The appellant was granted leave for 39 days from 8 th Novem ber, 1998 to 16 th December, 1998 , and his request for extension was acceded to upto 15 th January, 1999. When his request for further extension of leave was turned down by the respondent s, the appellant ought to have reported for duty immediately on expiry of the extended leave but he failed to do so. No document was produced by the appellant to demonstrate that he had reported to the Unit on 18 th February, 1999 . In fact , even in his statement made during the Summary of Evidence, the appellant failed to mention that he had report ed to the Unit on 18 th February, 1999 . Quite apparently , this was an after - thought . In fact , in his statement , the appellant had clearly admitte d that he left his home and came to Bangalore where he surrendered on 3 rd May, 1999 , after remaining unauthorizedly absen t for 108 days. 8. The appellant did not place any document on record by way of the treatment summary or medical certificate of his wife to demonstrate that she was seriously ill and required his presence for constant treatment . Instead, a b ald statement was made by him during the Summary of Evidence to the effect that he had remained absent without leave on account of his wife’s ill health. Moreover, t he appellant failed to cross -examine any of the prosecution witnesses produced by the respondents during the Summary of Evidence conducted on 12 th July, 1999 . It is noteworthy that during the course of the SCM conducted on 24 th August, 1 999 , after the charge sheet was read out and explained to the appellant CIVIL APPEAL NO. 2 46 of 201 7 Page 6 of 11 when he was asked whether he pleaded guilty or not to the charge preferred against him , he had categorically answered in the affirmative, by stating “ Guilty ”. In other words , the appellant pleaded guilty to the charge levelled against him of having failed to rejoin duty on expiry of the leave granted to him from 8 th November, 1998 to 15 th January, 1999. 9. It is also relevant to note that this was not the first occasion when the appellant had remained absent without leave . He had made a habit of remain ing absent without leave even on earlier occasions. A summary of the punishments for oversta yal of leave imposed on the appellant under Section s 39 (b) and 63 of the Army Act , set out in the impugned judgment are extracted below : Sl. No. Army Act/Section Punishment Awarded Date of Award Period Absence a) 63 03 days pay fine 13.07.87 b) 39 (a) 28 days RI in 12.5.90 20 days c) 39(b) 28 days RI and 14 days detention In military custody 10.12.90 11 days d) 39(b) 07 days RI in Military Custody 17.11.95 07 days e) 39(b) Severe Reprimand and 14 days pay fine 28.8.98 150 days f) 39(b) To be dismissed from the service. 24.8.99 108 days 10. It is apparent from the above table that the appellant was a habitual offender . There were four red ink entries and one black ink entry against him before the present incident CIVIL APPEAL NO. 2 46 of 201 7 Page 7 of 11 cited at serial number (f) above. S uch gross indiscipline on the part of the appellant who was a member of the Armed F orces c ould not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave , this time, for a prolong ed period of 108 days which if accepte d, would have sen t a wrong signal to othe rs 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. 11. As for the plea taken on behalf of the appellant that the charge under Section 39(b) is not maintainable or that the provisions of Section 120 provide for a maximum punishment of imprisonment for one year , the same is found to be misconceived . Section 39 falling under Chapter VI of the Act is extracted below for ready reference : “39. Absence without leave . Any person subject to this Act who commits any of the following offences, that is to say, - (a) absent s himself without leave; or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has bee n ordered on active service, fails, without sufficient cause, to rejoin without delay; or (d) without sufficient cause fails to appear at the time fixed at the parade o r place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the pa rade or line of march; or (f) when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, w ithout a pass or written leave from his superior officer; or (g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there; shall, on conviction by court - martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.” 12. It is apparent from a bare reading of the aforesaid provision which deals with offences relating to absence without leave, that in case of an offence of ove rstaying leave without sufficient cause, on a conviction by a Court M artial , punishment by way of CIVIL APPEAL NO. 2 46 of 201 7 Page 8 of 11 imprisonment for a term that may extend to t hree years or such less punishment as contemplated in the Act can be imposed on the delinquent person . Section 7 1 that falls under Chapter VII of the Act deals with punishment s that may be inflicted for offences on conviction by the Court Martial , listed in a sliding scale. The punishment of imprisonment find s mention at sub -clause (c) whereas that of dismissal from service is mentioned down below, in sub -clause (e). In other words, the punishment of dismissal from service on conviction by Court Martial has been treated as a lesser punishment vis -à-vis the punishment of imprisonment for any period below 14 years . That being the position, the appellant cannot be heard to state that the punishment inflicted on him is graver than the one contemplated under the Act. 13. In a case of proportionality of the punishment imposed for unauthorised absence in Union of India and Others v. Ex. No. 6492086 Sep/Ash Kulbeer Singh 10, this Court had turned down the contention made on behalf of the respondent therein that instead of subjecting him to a term of imprisonment under Section 39, he had been dismissed from the service , which was disproportionate to the offence, it was held thus: “6. We do not find any merit in the first submission. Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with “offences”. Section 39 provides that on a conviction by the 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. Hence, we find no merit in the first submission. ” 10 (2019) 13 SCC 20 CIVIL APPEAL NO. 2 46 of 201 7 Page 9 of 11 14. The provision of Sect ion 120 of the Act relied on by learned counsel for the appellant is also inapplicable to the facts of the instant case . Section 120 deals with the power of Summary Court Martial . Sub -section s (1), (2) and (4) of Section 120 reads as follows : “120. Powers of summary courts - martial. (1) Subject to the provisions of sub - section (2), a summary court - martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court - martial or on a ctive service a summary general court - martial for the trial of the alleged offender, an officer holding a summary court - martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against th e officer holding the court .” xxxx xxxx xxxx (4) A summary court - martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub - section (5). ” 15. It is ex plicit from the aforesaid provision that the said section deal s with the offences punishable under Section 34 i.e., offences in relation to the enemy and punishable with death, Section 37 , i.e. , Army mutiny and Section 69 i.e., Civil Offences. Sub -section (2) of Section 120 places an embargo on an officer holding a S CM to try any of the offences mentioned in Sections 34, 37 and 69 without any reference to a District Court Martial or a Summary General Court Martial for tri al of the alleged offender. Read i n the aforesaid context , sub -section (4) of Section 120 clearly states that a SCM can pass any sentence as contemplated under the Act except for a sentence of death or transportation or of imprisonment for a term that may exceed a period of one year for an officer of the rank of Lieutenant Colonel and above and a period of three months for an officer below that rank , as specified in sub -section (5). Quite clearly, t he aforesaid provision is not applicable here CIVIL APPEAL NO. 2 46 of 201 7 Page 10 of 11 and cannot come to the aid of the appellant for insisting that a District Court Martial or Summary General Court Martial ought to have been convened in his case , when SCM can try any offence punishable under the Act. 16. Regulation 448 of the DSR cited by learned counsel contemplated the scale of punishments awardable by the SC M. The said Regulation states in so many words that the se are general instructions issued for the guidance of officer s holding SCM for passing a sentence and that nothing contained in the said Regulation would be co nstrued as limiting the discretion of the Court to pass any legal sentence, even if there is good reason for doing so. Therefore, citing the table of punishment s listed under the Schedule appended to Regulation 448 to urge that for absence without leave or for overstaying leave, the normal punishment being rigorous imprisonment for three years or less to be undergone in military custody , punishment of dismissal from service could not have b een inflicted on the appellant by the SCM , is unacceptable. Sufficient discretion vest s 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 l eave 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. 17. For the aforesaid reasons, we do not find any infirmity in the impugned judgment passed by the AFT. The appellant ha d been taking to o many liberties during his service CIVIL APPEAL NO. 2 46 of 201 7 Page 11 of 11 and despite several punishments awarded to him earlier, ranging from impositio n of fine to rigorous imprisonment , he did not mend his ways. This was his sixth infraction for the very same offence. T herefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him. 18. Accordingly, the present appeal is dismissed as meritless , w hile upholding the impugned judgment. T he parties are left to bear their own costs. ………………………………….J. [HIMA KOHLI] ………………………………….J. [RAJESH BINDAL] New Delhi; July 28 , 2023