Case: Union Of India  Vs. Ex Lac Nallam Shiva

appeal be dismissed. 5. After cogitating over the submissions made by both the sides and perusing the record, it is noticed that the charge against the respondent of overstaying the casual leave period without communicating either to his superiors or to the nearest military station, has been duly proved against the respondent. Although the respondent asserted that he had suffered health problem, including mental stress due to matrimonial dispute, he did not choose to go to a Military Hospital. Being a member of the Armed Forces such indiscipline cannot be countenanced. Even the Tribunal has rejected the defence of the respondent in this behalf, by observing thus:-?15. From the above pleadings, it appears that there are some mitigating circumstances for the long absence of the applicant though his absence and his failure to communicate either to his unit or to the nearest Military Station are not condonable……?(emphasis supplied) 6. The Tribunal, nevertheless, was swayed by the justification given by the respondent (which, according to the respondent, prevented him from reporting to duty or for that matter, intimating either to his superiors or to the nearest military station), singularly because it was his first offence. The Tribunal relied on Regulation 754(C) and concluded that since the respondent?s conduct was otherwise exemplary and as it was his first offence and that he had already undergone three months rigorous imprisonment for the stated offence, the order of punishment of dismissal from service was disproportionate and unduly harsh. 7. Regulation 754(C) of the Defence Service Regulations for Armed Forces reads thus:-?Sentences must necessarily vary according to the requirements of discipline but in ordinary circumstances, and for a first offence, a sentence should be light.?Indeed, the respondent may have been charged for the first time for having committed offence of overstaying the casual leave period. The respondent may also have offered explanation about the matrimonial dispute, other family issues and his ill-health, as the cause for not reporting to duty. From the proved facts, however, it is evident that the respondent overstayed for a period of around 1½ years beyond the casual leave period which is indubitably against the requirements of discipline. In that, he was granted casual leave from 20th October, 2012 to 4th November, 2012, but he surrendered only on 11th April, 2014. He did not bother to intimate his whereabouts either to his superiors or to the nearest military station during the intervening period stretched upto around 1½ years. If he was suffering from any illness personally or for that matter if his father suffered a paralytic attack, he ought to have gone to the Military Hospital for treatment. However, he did not choose to go to the Military Hospital but to a quack. This is a serious misconduct and cannot be countenanced in the disciplined force where the respondent was serving. From the established facts it would not warrant a lighter view, much less to direct reinstatement of the respondent, as has been done by the Tribunal. That would send a wrong signal and impact the discipline of the Armed Forces. The respondent had just put in around six years of service when he ventured into committing the stated offence. The fact that he has already undergone punishment of sentence period for the offence of desertion also can be of no avail so as to interdict the decision of the disciplinary authority to dismiss the respondent from service. 8. A priori, reliance placed by the Tribunal on Regulation 754(C) is misplaced in the fact situation of the present case. For, it was not a case of overstaying for couple of days or a technical and trivial offence committed by the respondent. He overstayed beyond the casual leave period for around 1½ years without informing either his superiors or the nearest military station as to his whereabouts. 9. To put it differently, in the fact situation of the present case, it is not possible to hold that the punishment of dismissal was vindictive, unduly harsh or disproportionate to the offence committed by the respondent and especially after the Tribunal has positively concluded that failure of the respondent to communicate either to his unit or to the nearest military station for around 1½ years was uncondonable. Ordinarily, the Tribunal ought not to interfere with the order of punishment except in appropriate cases only after recording a finding that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the delinquent officer. 10. We have no hesitation in concluding that the Tribunal misdirected itself in invoking Regulation 754(C) and to reckon the mitigating circumstance such as respondent has already undergone punishment of sentence for the stated offence. Thus, the Tribunal exceeded its jurisdiction in overturning the order of punishment imposed by the disciplinary authority and instead directing reinstatement of the respondent in service and treating the period between the date of dismissal of the respondent and the date of his rejoining service as non-qualifying service, so as to give him a chance of rehabilitation in service. The judgment under appeal, therefore, deserves to be set aside. 11. Counsel for the respondent made a fervent alternative submission that even if the direction given by the Tribunal to reinstate the respondent in service was to be set aside, this Court may take a sympathetic view as the respondent has already suffered the sentence period for the stated offence. He submitted that this Court may modify the order of dismissal from service to one of discharge from service, so that the respondent may not be disqualified from applying for employment elsewhere, considering that he is young and has to support his family. The counsel for the appellants, in all fairness, submits that so long as the respondent is not ordered to be reinstated in the Indian Air Force Service and there is no financial implication for the department, he may leave it to the discretion of this Court to pass orders as may be deemed appropriate.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]5. After cogitating over the submissions made by both the sides and perusing the record, it is noticed that the charge against the respondent of overstaying the casual leave period without communicating either to his superiors or to the nearest military station, has been duly proved against the respondent. Although the respondent asserted that he had suffered health problem, including mental stress due to matrimonial dispute, he did not choose to go to a Military Hospital. Being a member of the Armed Forces such indiscipline cannot bethe respondent may have been charged for the first time for having committed offence of overstaying the casual leave period. The respondent may also have offered explanation about the matrimonial dispute, other family issues and hisas the cause for not reporting to duty. From the proved facts, however, it is evident that the respondent overstayed for a period of around 1½ years beyond the casual leave period which is indubitably against the requirements of discipline., he was granted casual leave from 20th October, 2012 to 4th November, 2012, but he surrendered only on 11th April, 2014. He did not bother to intimate his whereabouts either to his superiors or to the nearest military station during the intervening period stretched upto around 1½ years. If he was suffering from any illness personally or for that matter if his father suffered a paralytic attack, he ought to have gone to the Military Hospital for treatment. However, he did not choose to go to the Military Hospital but to a quack. This is a serious misconduct and cannot be countenanced in the disciplined force where the respondent was serving. From the established facts it would not warrant a lighter view, much less to direct reinstatement of the respondent, as has been done by the Tribunal. That would send a wrong signal and impact the discipline of the Armed Forces. The respondent had just put in around six years of service when he ventured into committing the stated offence. The fact that he has already undergone punishment of sentence period for the offence of desertion also can be of no avail so as to interdict the decision of the disciplinary authority to dismiss the respondent from service.A priori, reliance placed by the Tribunal on Regulation 754(C) is misplaced in the fact situation of the present case. For, it was not a case of overstaying for couple of days or a technical and trivial offence committed by the respondent. He overstayed beyond the casual leave period for around 1½ years without informing either his superiors or the nearest military station as to his whereabouts.To put it differently, in the fact situation of the present case, it is not possible to hold that the punishment of dismissal was vindictive, unduly harsh or disproportionate to the offence committed by the respondent and especially after the Tribunal has positively concluded that failure of the respondent to communicate either to his unit or to the nearest military station for around 1½ years was uncondonable. Ordinarily, the Tribunal ought not to interfere with the order of punishment except in appropriate cases only after recording a finding that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the delinquent officer.We have no hesitation in concluding that the Tribunal misdirected itself in invoking Regulation 754(C) and to reckon the mitigating circumstance such as respondent has already undergone punishment of sentence for the stated offence. Thus, the Tribunal exceeded its jurisdiction in overturning the order of punishment imposed by the disciplinary authority and instead directing reinstatement of the respondent in service and treating the period between the date of dismissal of the respondent and the date of his rejoining service asservice, so as to give him a chance of rehabilitation in service. The judgment under appeal, therefore, deserves to be set aside.