Pravat Saha @ Pravat Kumar Saha Vs. Union of India Service Through the Secretary Ministry of Defence and Others - Court Judgment

Excerpt:

Judgment:

LT GEN K P D SAMANTA, MEMBER (ADMINISTRATIVE):

1. The petitioner, Pravat Kumar Saha, was enrolled in the Army Air Defence Corps of the Indian Army on 11 March 2005 and reported for training to Army Air Defence (AAD) centre at Nashik (Maharashtra). He was absent without leave on two occasions during training; once for eight days and second time for 83 days while undergoing advance training phase. He was summarily punished on each occasion by the Commanding Officer for the said offence under Section 39 (a) of the Army Act. In the process he was absent from advance training for 91 days. In accordance with a policy of the Army Headquarter, he was discharged from service on 4th March 2006 for being absent from training for more than 30 days consecutively. The petitioner represented against such discharge order before the higher authorities including a petition from his father to the Defence Minister, but such representations were rejected and the authorities maintained that the discharge was in order and in accordance with rules. The petitioner, therefore, filed a writ application (WP-1028/2008) before the Calcutta High Court in 2008 that was transferred to this Tribunal in 2010 and numbered as TA-61.

2. The petitioner in his writ application has submitted that he was undergoing recruit training at Army Air Defence Centre, subsequent to his recruitment into the Army on 11 March 2005. He admits to have absented from training without leave from 30th September 2005 till he voluntarily rejoined on 21 December 2005 (83 days of absence). In his defence, he has brought out that his father was seriously ill and he in normal course was not getting any leave. Therefore he went home without any permitted leave but harps on the fact that he rejoined voluntarily. Moreover, he has submitted that he was punished for the said offence of „absence without leave. He has challenged the rationale of being punished twice for the same offence. Elaborating further, the petitioner in his application reiterates that he was awarded seven days rigorous imprisonment (RI) by his Commanding Officer under a proper ‘offence report charged under Section 39 (a) of the Army Act, 1950. Therefore, it was, according to him, illegal to punish him again by discharging him from service for the same reason, though interpreted differently through an administrative order issued by the Military Training Directorate of the Army Headquarter on 28 February 1986 (Annexure R-4 of A/O). The Ld. Counsel for the petitioner during his submissions relied upon one Apex Court decision to strengthen the point that he could not be punished twice for the same offence. He also placed before us a judgement from the Calcutta High Court to connect its ratio to the present case to the extent that a compelling reason like in this case, „his fathers serious illness, provoked the petitioner to leave for home without any sanctioned leave, till he rejoined voluntarily. The ibid decisions are as under, which shall be discussed in later part of the Order:-

a) SCC 12 (2007) 462, 2007 (4) Supreme 389, Sheel Kr. Roy vs Secretary M/O Defence and Ors.

b) (2010) 2 CAL LT 375 (HC), Nageshwar Prasad vs Union of India and Ors.

3. Besides the above law points, the petitioner has mentioned that he was not supplied with copies of letters that were quoted in his ‘show cause notice; implying copy of Army HQ letter dated 28 February 1986 (Annexure R-4 of A/O) was not shown to him nor a copy was given. The petitioner has also submitted that he did not receive the ‘show cause notice and the termination order (discharge certificate), which has been denied by the respondents in their affidavit. In fact a signed undertaking dated 6th February 2006 by the petitioner to indicate that the contents of the subject ‘show cause notice were explained to him in the language he understood and his signed reply to said ‘show cause notice have been annexed as part of AAD Centre letter dated 9th September 2006 (Annexure P-4 to the WP). The petitioner accordingly has prayed seeking reinstatement in service by treating his discharge from service under authority of Army HQ letter of 28 Feb 1986 as illegal. Moreover, the petitioner also claims that he was not issued with any ‘discharge certificate mentioning under which clause of the Army Rules he was discharged, which has been denied by the respondents, who brought out that the petitioner was discharged under Army Rule 13 (3) (IV), ‘unlikely to make an efficient soldier and he was intimated with all details.

4. The respondents in their affidavit in opposition (A/O) have agreed to those aspects of the petition that were factual. They have contested the prayer of the petitioner by citing the same reasons as already mentioned while rejecting his representation before the higher authorities (Annexure P-1 and P-4). Following issues that have been brought out by the respondents in response to points raised by the petitioner are of relevance:-

a) The petitioner was a habitual offender. He was absent without leave twice during his advance leg of military training that commenced on 29th August 2005. For the first time he absented himself without leave on 11 September 2005 and rejoined voluntarily on 18th September 2005; total absence from duty being eight days. He was tried summarily for the said offence under Section 39 (a) of the Army Act and awarded a punishment of seven days RI in military custody (Annexure R-1). The above incident of being AWL for eight days, according to the respondents, was concealed by the petitioner in his WP, while he elaborated only the second instance of being AWL for 83 days (30th Sep 05 to 21 Dec 05). For the second time also he was punished summarily and awarded seven days RI in military custody.

b) The respondents have contested the plea of compassion taken by the petitioner citing his fathers serious illness to justify his absence without leave and pleading for leniency. In Paragraph 8 of the A/O the respondents have stated that there were two other adult male members (brothers of the petitioner) at his home to take care of the father of the petitioner who was stated to be ailing. Moreover, they state, the petitioner had availed his recruit leave of 28 days (31 Jul to 27 Aug 05), which should have been sufficient to tackle his home commitments. As per the representation submitted to the Defence Minister (Annexure P-1, collective) the petitioners father fell ill on 30th September 05, thus attempting to justify his absence from that day; whereas it is evident that the petitioner had also absented on 11 Sep 05 for eight days. Therefore, absenting without leave on both occasions was in total disregard to military discipline and the petitioner had become a habitual recruit to miss training.

c) The respondents in their A/O have tried to justify that the administrative action to discharge the petitioner from service had no link with the punishment awarded to him for being absent without leave on each of the two occasions. The ‘discharge was governed under an Army HQ policy letter dated 28 Feb 86 for missing training more than 30 consecutive days (Annexure R-4)

5. Having considered the submissions made by both sides and the decisions from the Apex Court and Calcutta High Court as mentioned above, we need to analyse the ratio of ibid judgements, besides analysing few other relevant issues as discussed in subsequent paragraphs.

6. SheelKr Roy vs. Union of India and Ors (Supra): The ibid judgment actually relates to excess punishment awarded to the petitioner in a Summary Court-Martial for an offence punishable under Section 39(a) of Army Act, “Absence without Leave”.

HonbleJustice S.B.Sinha, and his companion Judge, have brought out in paragraph-11(II), “Imposition of two punishments viz., rigorous imprisonment as also dismissal from service is violative of Section 39 read with Section 71 of the Act.” The ratio of this judgment brings out an important point, “It may be legally permissible to impose more than one punishment, but in doing so, all attending situations which fell for considerations by the punishing authorities in regard to quantum thereof must be taken into consideration.”

The ratio of this judgment however, does not relate to the point at issue as relevant to the instant case. In the instant case, punishment that was awarded was neither a duplication nor excessive. Therefore, the ratio of this judgment is not considered further.

7. NageshwarPrasad vs Union of India and Ors (supra): This judgment relates to grant of leave on very compassionate reasons and to an extent justifies that ‘grave compassionate reasons could provoke an employee to leave his duty station without formal sanction. The ratio of the ibid judgment is as under:-

“Where the cause of absence is genuine and unavoidable; authorities should condone the absence of formal leave keeping in mind the unforeseen circumstances and should not act in an arbitrary and discriminating way.”

In the ibid case, the petitioner was a Railway employee. This case relating to a Central Government employee cannot be applied in the same manner to a military employee in active service. In the instant case, the petitioner was an Army employee and such ‘absence without leave is a serious offence under the Army Act which cannot be compared with violation of service rules in civil services. The Army is a disciplined service, where the Army Act 1950 provides for strict disciplinary action for such lapses. Therefore, the relevance of the ratio of this judgment cannot indeed have much relevance with the instant case.

8. The petitioner was a recruit, who was young in age and service. It is quite natural for him to feel home-sick while undergoing the rigours of recruit- training. Notwithstanding the above, military discipline cannot be allowed to be diluted. Perhaps for this reason, the petitioner was punished very lightly when he was AWL for the first time on 11 Sep 05 for eight days. Seven days RI for being AWL is lenient enough and the petitioner should have drawn his lessons in discipline. Unfortunately he did not. Barely after five days of completion of his first punishment (and days RI), he absented again on the 30th Sep 05. This time he remained absent for 83 days till he rejoined voluntarily on 21st Dec 05. Whatever may have been the provocation, such an act of indiscipline soon after being punished for a same offence, should not normally have been let off as lightly as it was done in this case. He was again awarded just eight days RI. We did not find any court of inquiry or account of any other investigation to throw light on the circumstances leading to his absence for the second time in such close succession. It will therefore not be out of place for us to presume that the commanding officer must have had very good reasons not to punish him severely and let him off as lightly as he did. It is therefore, evident that the petitioner committed the offence of “absence without leave” on two occasions within the span of one month. Accordingly, he was punished under relevant Army Act on each of the occasions, although, the quantum of punishment was same on both the occasions. We do not find any irregularity in such disciplinary actions.

9. The petitioners main argument has been on his submission that he was punished for being absent without leave and yet he was discharged from service under administrative provisions for the same purpose. The learned counsel for the petitioner has brought out this aspect in his writ application by stating that such action would amount to double jeopardy to the petitioner which is not permissible under law. (Paragraph -9 of the writ petition). We have analysed this aspect in detail after considering the explanations given by the respondents in their affidavit. We are of the view that the administrative action of discharge from service was on the authority of Army Rule 13(3) (IV), in accordance with provisions contained under Army Headquarters Policy Letter of 28th Feb, 1986 (Annexure R/4). The ibid Policy Letter empowers the Commandant to use his discretion and discharge or relegate a recruit who would be missing advance recruit training for a period exceeding 30 days on account of being ‘absent without leave. We notice that the authorities have followed the due procedure in arriving at a decision to discharge the petitioner as required in the interest of discipline and efficiency of the Organisation. The petitioner was served with a ‘show cause notice and he was accorded an opportunity to explain his position through a reply. Therefore, discharge of the petitioner for “unlikely to make an efficient soldier under Army Rule 13(3) (IV) appears to be quite in order and such an action cannot be treated as a double jeopardy as pleaded by the petitioner. On one occasion, he was punished under Section 39(a) of the Army Act for being absent for 83 days. On the second occasion, he was discharged because the authorities decided that on account of such prolonged absence, he could not perhaps become an efficient soldier despite available training. Both are independent actions for different cause. In fact, the petitioner was given an opportunity to reform, when he was let off with a lenient punishment of 7 days RI for absenting without leave for eight days on the first occasion.

10. The other technical issues pointed out by the petitioner like he was unaware of such orders that would terminate his services for being absent beyond 30 days appear unfounded. The respondents have confirmed that there was a practice of briefing the recruits periodically about the consequences of such unauthorised absence, indiscipline, failure in training tests and other aspects relating to good conduct. The petitioner should have been fully aware of such rules.

11. Having considered the points as mentioned above and having heard the counsels for both the sides, we are of the view that the petition is devoid of any merit and therefore stands dismissed on contest without any cost. Let the Original Record received from the AAD Record Office be returned to the learned counsel for the respondents in a sealed cover. Let a plain copy of this order be handed over to the learned counsels for both the sides.