WA 282/2008 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGEMENT AND ORDER (ORAL) Sharma, J This appeal is directed against the judgement and order dated 24.4.2008 passed in WP(C) 5214/2002, by which the learned Single Judge while not interferi ng with the disciplinary proceeding initiated and completed against the writ pet itioner, who is the sole respondent in this appeal, however, interfered with the penalty of dismissal from service with the direction for his reinstatement in s ervice with a lesser penalty. 2. The writ petitioner was appointed as Sepoy with the Army in the year 198 8. Pursuant to a Court Martial proceeding, he was dismissed from service by orde r dated 23.4.2002. It is on record that during the proceeding, he had pleaded gu ilty of the charge. 3. We have heard Mr. C. Baruah, learned CGC representing the appellants as well as Mr. S.K. Medhi, learned counsel representing the writ petitioner, the so le respondent in the appeal. 4. as noticed above, the only question which falls for our consideration is as to whether a direction could have been issued to impose a lesser penalty oth er than dismissal from service with the further direction to reinstate the petit ioner in service, even after holding that the charge against the petitioner, whi ch was unauthorized absence from duty, stood proved in the proceeding. 5. The writ petitioner went on leave for 3 (three) days w.e.f. 1.6.2001. Ho wever, he did not rejoin duty on expiry of the period of leave. It was only on 8 .2.2002 i.e. after expiry of more than 8(eight) months as against 3 (three) days leave, he reported back to his Battalion on 8.2.2002. Upon such rejoining, he was served with the charge sheet containing the following charge :- AA SEC 39(b) Without Sufficient Cause Over Staying Leave Granted to Him In that he, at peace C/O 99 APO having been granted 03 days CL wef 04 Jun 2001 t o 06 Jun, 2001, failed without sufficient cause to rejoin the unit on expiry of the said leave till he voluntarily rejoined the unit on 08 Feb 2002 (AN) . 6. In the summary Court Martial proceeding, the petitioner pleaded guilty t o the charge levelled against him and thereafter he was dismissed from service b y the impugned order dated 23.4.2002. In the writ petition, the petitioner had r aised the plea of procedural irregularity in conducting the proceeding but the s ame did not find favour of the learned Single Judge. However, while upholding th e proceeding and the findings thereof relating to the charge, the learned Single Judge issued the following direction. 12. In the opinion of this Court the disciplinary authority had several opti ons of inflicting lesser punishment under the provisions of Section 71 of the Ar my Act. But instead of inflicting any of the lesser penalties, the petitioner ha s been inflicted with the penalty of dismissal from service. This extreme punish ment appear to be disproportionate and is also shocking for the conscience of th is Court. In the perception of the Court a lesser punishment would have met the ends of justice. 13. In view of the above, the impugned dismissal order dated 23.04.2002 are held to be unsustainable and the same is quashed. But since this Court has not i nterfered with the Court Martial findings, the entire matter is remanded back fo r a fresh decision on a lesser punishment by the disciplinary authority. What wo uld be the lesser and appropriate punishment is left to the discretion of the di sciplinary authority. It is also ordered that the petitioner be permitted to res ume his duties as a Sepoy of the Army, subject to the petitioner’s meeting the p hysical standards for a serving sepoy. 7. Being aggrieved by the aforesaid direction even after holding that the t here was nothing wrong in conducting the proceeding against the petitioner, the Union of India has filed this writ appeal. While Mr. C. Baruah, learned CGC subm its that there could not have been a direction for reinstatement of the petition er in service upon setting aside the order of dismissal, Mr. S.K. Medhi, learned counsel representing the writ petitioner - respondent, submits that having reg ard to the un-blemished service career of the petitioner and rather his exemplar y service, the authority in the Army ought to have imposed any other penalty oth er than dismissal from service, which would have entitled the petitioner at-leas t the benefits of the service he had rendered prior to the impugned order of dis missal from service. 8. Having regard to the nature of the case, Mr. C. Baruah, learned CGC was requested to obtain instruction in the matter as to whether it would be possible for the Army authority to impose any other penalty other than dismissal from se rvice. He has been furnished with the written instruction dated 1.12.2011, which is quoted below :- COMMENTS/INSTRUCTIONS OF THE AUTHORITY ON THE PUNISHMENT AWARDED BY THE SCM IN RESPECT OF NO 4359974N EX SEP AJIT CHANDRA BORAH OF 14 ASSAM 1. ’Dismissal’ is an authorized award of punishment under the Army Act Sect ion 71. The Summary Court Martial is empowered to award any punishment specified under the Army Act Section 71 as per Army Act Section 120(4) except a sentence of death or imprisonment for life. Since ’Dismissal’ is an authorized punishment , the Summary Court Martial did not exceed the limitation while awarding the ’Di smissal’ to the petitioner on 23 Apr 2002. 2. Any person subject to the Army Act, on conviction by Court Martial for a n offence under Army Act Section 39(b) is liable to suffer imprisonment for a te rm which may extend to three years. If any imprisonment in civil custody is awar ded even for 90 days or more, the ’dismissal’ of the individual also becomes a s imultaneous and automatic award alongwith the sentence of imprisonment in civil as a persons subject to the Army act shall not be awarded imprisonment and sent to civil jail unless he is dismissed from service also. Therefore, the Summary C ourt Martial had logically awarded ’Dismissal’ so as to avoid awarding to punish ment viz dismissal as well as imprisonment. Thus, a lenient view has already bee n taken. Further, an award of ’Dismissal’ is lesser in severity than the impriso nment. 3. The punishment of dismissal has been imposed after adopting thorough pro cedure of the trial and the punishment was meted out that was deemed fit which i s just and lesser in terms of the punishment awarded by Court Martial for an off ence under Army Act 39(b). The law was applied proportionately to the degree of offence committed. 4. The Hon’ble High Court might be taking a lenient and sympathetic view on the humanitarian grounds towards the petitioner. The Hon’ble Court is humbly ap prised that the law is always above the humanity. As per the order of the Apex C ourt in a leading case UOI vs Param Nanda reported in AIR 1989 SC 1185, the quan tum of punishment in a discipline case is absolutely within the domain of the co mpetent disciplinary authority. 5. The summary Court Martial has already been taken a lenient view while aw arding the punishment to the defaulter and awarded lesser punishment. As per Arm y Act Section 121 any person subject to Army Act who is once convicted for an of fence by the Court Martial, shall not be liable to be tried again for the same o ffence or dealt with under the said sanction. Sd/- 01 Dec 2011 (Rajveer Singh ) Maj Senior Record Officer For Officer-in-Charge Records. 9. In the aforesaid instruction furnished by the Sr. Record Officer, the de cision of the Apex Court as reported in AIR 1989 SC 1185 (UOI Vs. Param Nanda) h as been referred to in which the Apex Court interfering with the order of the Ce ntral Administrative Tribunal held that in the matter of imposition of penalty p ursuant to a departmental proceeding, the matter is to be left open to the Disci plinary Authority for its sound discretion. It was held that if there has been a n enquiry consistent with the rules and in accordance with the principles of nat ural justice, what punishment would meet the ends of justice, is a matter exclus ively within the jurisdiction of the competent authority. Similar view has been expressed in Mithilesh Singh Vs. Union of India & Ors, reported in (2003) 3 SCC 309 which was an appeal from the judgement of the Division Bench of this Court r eported in 2000(3) GLT 62 (UOI Vs. Mithilesh Singh & Ors). 10. In view of the above, we are of the considered opinion that a mandamus c ould not have been issued to the Army authority to impose a lesser penalty than that of dismissal from service which was imposed on the petitioner on the basis of the charge of unauthorized absence from duty which was established and proved in the proceeding that was initiated against the petitioner. Consequently, the impugned order of dismissal could not have been set aside with further direction to reinstate the petitioner in service. However, we hasten to add that having r egard to the fact that the petitioner had rendered unblemished and rather exempl ary service, the authority in Army may consider the case of the petitioner appro priately within the parameters of law and taking note of the attending facts and circumstances. 11. In the result, the appeal is allowed. The impugned judgement and order d ated 24.4.2008 passed by the learned Single Judge in WP(C) No. 5214/2002 stands set aside and quashed. The matter shall now go back to the authority in the Army for re-consideration as to whether any other lesser penalty can be imposed on t he petitioner in the given facts and circumstances of the case, which will entit le him at-least some monetary benefits. The matter is left open to the sound dis cretion of the authority in the Army. 12. Writ appeal is allowed with the above observation. There shall be no ord er as to costs.