DATE : 30 JANUARY 2024 P.C. :-

2. We have heard the learned Counsel for the parties.

3. Under the Armed Forces Tribunal Act, 2007 , an appeal is provided from the final decision of the Tribunal to the Hon'ble Supreme Court with grant of leave to appeal. The aspect of maintainability and entertainability of the Writ Petition challenging the order passed by the Armed Forces Tribunal and the forum to be provided in the cases relating to service matter of the members of the armed forces was considered by the Hon'ble Supreme Court in the case of Union of India and Others v/s. Parashotam Dass1. The observations of the Hon'ble Supreme Court are as under :-

JPP 5 32. WP 7872.23-30.01.doc Thus Supreme Court while concluding that there cannot be a restriction on the High Court exercising powers under Article 226 of the Constitution of India, held that it would be in the restricted circumstances. While exercising the writ jurisdiction the High Court will not carry out a scrutiny akin to an appeal. Thus the question is whether the case brought before us by the Petitioner can be considered as such a nature where it has resulted in denial of fundamental rights or there is a jurisdictional error or there is any error apparent on the face of the record. cashiering

4. The Petitioner contends that there were justifiable reasons to remain absent for 67 days as he had taken leave since the wife was pregnant and after delivery the Petitioner himself had surrendered and had tendered an apology for overstaying for 67 days. It was contented that the punishment imposed is disproportionate and harsh relying on Clause 448 of the Manual dealing with the scales of punishment awarded by the Summary Court Martial. It was contended that for the absence without leave or overstaying leave, rigorous imprisonment for three months or less to be undergone in the military custody is provided and dismissal from service is not contemplated. The Respondents submitted that in view of Section 71(e) of the Army Act, this contention raised by the Petitioner is not correct. The Respondents submitted that it was not only a case of overstaying beyond leave but it was the case of ::: Uploaded on - 01/02/2024 ::: Downloaded on - 01/02/2024 22:16:45 ::: JPP 6 32. WP 7872.23-30.01.doc desertion when all units were asked to mobilize in an operation launched in response to movement of Chinese army.

5. In the Summary Court Martial, the Petitioner was given full opportunity to provide details in writing. After conclusion of hearing of charges, the Petitioner could exercise his right to call for any defense witness, but Petitioner neither cross-examined the witnesses nor provided any documentary proof. During the trial, the Petitioner pleaded guilty in the presence of two independent witnesses. Yet, the enquiry was not based only on his pleading as guilty but it was carried out as per the Rules. No contention is raised before us that the enquiry in the Summary Court Martial proceedings was not as per the Rules.

6. The Petitioner was granted 20 days casual leave to look after his wife and child. Thereafter, the relatives of his wife took his wife to their home. The Petitioner had sought permission to accompany them but he was not allowed to leave the station. Thereafter, on 31 July 2020 he was asked telephonically to rejoin the Unit as he had to leave the Unit to the operational area of Ladhkh as a part of Operation Snow Leopard which the Petitioner did not join. Petitioner when reported to duty on 5 October 2020, had overstayed for 67 days for which there was no written application seeking extension of leave. Respondent tried to contact the petitioner on telephone but he was out of reach. The Respondents ::: Uploaded on - 01/02/2024 ::: Downloaded on - 01/02/2024 22:16:45 ::: JPP 7 32. WP 7872.23-30.01.doc considered the absence of the Petitioner as desertion from the active field area during the Operation Snow Leopard. We do not find that the Deputy Judge Advocate General, who approved the same was in error to do so.

7. As regard the contention of the Petitioner that the punishment was disproportionate, it is on record that there was buildup of Chinese troops on the border and subsequent aggression reflecting the sensitivity of the deployment. Despite his Unit was mobilized against the Chinese on an operation in the high altitude areas, the Petitioner was given leave. However, the Petitioner put himself out of reach and deserted for 67 days to avoid the operational work. Respondents thus were not in error to conclude that the Petitioner deliberately avoided to participate in the operation and therefore, he had shown himself to be unfit to be part of the Army. It is on this basis punishment of dismissal is awarded. We do not find that there was any error in imposing penalty of dismissal from the service. Nor the punishment of dismissal in these circumstances is disproportionate.

8. It was sought to be contended that the order passed by the Tribunal is without hearing the Petitioner. We are informed that the Petitioner had engaged an advocate. There is no cogent reason given whatsoever as to why the Petitioner did not remain present even during the hearing of the Original Application. Before the ::: Uploaded on - 01/02/2024 ::: Downloaded on - 01/02/2024 22:16:45 ::: JPP 8 32. WP 7872.23-30.01.doc Tribunal, the Petitioner had filed a detailed appeal memo and reply affidavit. The Tribunal has therefore gone through the record and has passed a reasoned order recording the conclusion. We do not find that there is any impugned orders suffer from any jurisdictional error or error apparent on the face of the record or are perverse.

9. The Writ Petition is accordingly rejected.