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1 Armed Forces Tribunal, Regional Bench, Chennai 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI CIRCUIT BENCH AT HYDERABAD O.A.(Appeal) No.77 of 2015 Friday, the 09th day of December, 2016 THE HONOURABLE JUSTICE S.S.SATHEESACHANDRAN (MEMBER-JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER–ADMINISTRATIVE) Rank-Ex-LAC, Name- Nallam Shiva, Service No.916856-L, Son of- Mr.N. Maheswara Rao, aged about 27 years, No.1-24-A/10, Savitri Nagar, Chinamushidivada, Visakhapatnam (AP), Pin-531 173. … Applicant By Legal Practitioners: M/s. M.K. Sikdar & S. Biju Vs 1. Union of India Represented by- The Secretary, Govt. of India, Ministry of Defence, South Block, New Delhi–110 011. 2. The Chief of the Air Staff, Air Headquarters, Vayu Bhavan, New Delhi-110 106. 3. The Directorate of Air Veterans, Air Headquarters, Subroto Park, New Delhi-110 010. 4. The Air Officer Commanding, Master Control Centre, Air Force Station Basant Nagar, New Delhi-110 010. … Respondents By Mr. K. Ramanamoorthy, CGSC 2 ORDER [Order of the Tribunal made by Hon’ble Lt Gen K. Surendra Nath, Member-Administrative] 1. The applicant, Ex-LAC Nallam Shiva, has filed this application to set aside the impugned Sentence awarded in District Court Martial (DCM) dated 11.11.2014 and impugned order dated 12.2.2015, passed by the 2nd Respondent and direct the Respondents to reinstate the applicant in service as Corporal with effect from 10.2.2015 with seniority, back wages and consequential monetary benefits. 2. Briefly, the applicant states that he was enrolled in Indian Air Force on 28.3.2006 and was promoted to the rank of Corporal. He overstayed the casual leave granted due to his ill health and family problems for which offence, he was tried before the District Court Martial (DCM) on 11.11.2014 and sentenced to undergo the punishment of 04 months rigorous imprisonment, dismissal from service, and reduction in rank. Later, the AOC-in-C, WAC, IAF reduced the period of RI from 04 months to 03 months and he was committed in Air Force prison from 11.11.2014 to 10.2.2015 and dismissed from service on 10.2.2015. His petition for reinstatement was rejected by the 2 nd Respondent vide order dated 12.2.2015. He further states that he got married on 24.2.2012, but due to marital discord, his wife sought divorce. While returning from duty on 19.4.2012, he fell down from his motor cycle and suffered “Lumbar Spondylosis & degenerative/Prolapsed disc disease at LT/S1 intervertebral disc” and 3 underwent treatment in SMC & Base Hospital, Delhi. Further, on a Police Complaint lodged by his wife in October, 2012, his parents were taken to Women Police Station, Vizianagaram, and he was also harassed by the police. Since his wife agreed for divorce on permanent alimony of Rs.6,36,000/-, he filed divorce petition under Section-13(B) on 17.4.2013, which was allowed on 4.11.2013. Thereafter, he reported for duty on 11.4.2014. He was brought before the 4 th Respondent and served Charge Sheet and subsequently sentenced by the District Court Martial on 11.11.2014. The applicant is undergoing mental agony due to the action of Respondents and therefore prayed to allow the application. 3. The Respondents in their Reply Statement would not dispute the facts that the applicant was enrolled in Indian Air Force and that he overstayed leave granted to him and was sentenced by the District Court Martial (DCM) to undergo punishment and that his petition under Section- 161(2) for reinstatement was rejected. They would state that the applicant was tried before the District Court Martial held on 11.11.2014 on two charges, i.e., first charge for desertion and the second charge for overstaying leave from 5.11.2012 to 11.4.2014 without sufficient cause and as per procedure, the applicant was given a legally qualified Officer, i.e., Sqn Ldr SD Narvekar as his Defending Officer. They would further state that the applicant pleaded ‘Not Guilty’ to the first charge and pleaded ‘Guilty’ to the second charge on his own volition and hence the 4 sentence awarded by the DCM was commensurate with the gravity of offence committed by him. Therefore, the Respondents would pray that the OA may be dismissed being devoid of merit or substance. 4. We heard the arguments of Mr. M.K. Sikdar, learned counsel for the applicant and Mr. K. Ramanamoorthy, learned CGSC appearing for the Respondents. Both sides filed written arguments reiterating the submissions made in the O.A. and Reply Statement. We have also perused all the material documents placed before us by both parties, including the District Court Martial proceedings. 5. On the above pleadings, the following questions are framed for consideration :- i) Whether proper proceedings were followed by the Respondents in the conduct of District Court Martial in accordance with law ? ii) Whether punishment given to the applicant is proportional and commensurate to the offence committed by applicant ? iii) Are there any mitigating circumstances as claimed by the applicant ? iv) To what reliefs, if any, the applicant is entitled to ? 5 Point No.1: 6. The facts that the applicant was enrolled in the Air Force on 28.3.2006 and that the applicant had overstayed the leave granted to him from 5.11.2012 to 11.4.2014, till he voluntarily reported for duty on 11.4.2014 and he was tried by the District Court Martial (DCM) for an offence under Rule-60(2) and Rule-119(2) of the Air Force Rules, 1969, and was awarded punishment of Rigorous Imprisonment for four months, reduced to ranks and dismissed from service of which the punishment of Rigorous Imprisonment was reduced from four months to three months by AOC-in-C, Western Air Command, IAF, are not disputed by either side. The applicant submits that the charges framed against him under Section- 38(1) of the Air Force Act, 1950, for deserting the service, and under Section-39(b) of the Air Force Act, 1950, for overstaying leave granted to him without sufficient cause, are not maintainable as the applicant had sufficient cause to overstay the leave in view of his own ill-health and that of his parents and that the marital dispute with his wife leading to his divorce and he prays that he could not defend himself properly as he was not given a Defending Officer of his choice and that the DCM proceedings was biased and malafide and liable to be set aside. 7. The Respondents, on the other hand, have vehemently denied this and stated that the District Court Martial was conducted in accordance with law and all proper procedures were followed and to buttress their claim, they have produced a copy of the Charge Sheet and the DCM 6 proceedings. The Charge Sheet framed against the applicant is reproduced as under :- CHARGE SHEET The accused, 916856-L Corporal Nallam Shiva Comn Tech of Master Control Centre, Air Force Station Basantnagar, an airman of the regular Air Force, is charged with :- First Charge DESERTING THE SERVICE Section 381(1) AF Act 1950 in that he, at Master Control centre, Air Force Station Basantnagar, New Delhi, having been granted leave of absence from 20 Oct 12 to 04 Nov 12, did not rejoin his unit on expiry of the said leave, with the intention at the time of leaving or formed thereafter, of remaining permanently absent and remained absent until he surrendered himself to 901799-B Cpl Deepak Tiwari IAF/P of said Air Force Station on 11 Apri 14. Second Charge WITHOUT SUFFICIENT CAUSE OVERSTAYING Section 39 (b) LEAVE GRANTED TO HIM AF Act 1950 (Alternative to in that he, The first charge) at Master Control Centre, Air Force Station Basantnagar, New Delhi, having been granted leave of absence from 20 Oct 12 to 04 Nov 12, overstayed the said leave without sufficient cause, until he surrendered himself to 901799- B Cpl Deepak Tiwari IAF/P of the said Air Force Station on 11 Apr 14. Place: New Delhi Sd/- Date: 21 Oct 14 (MS Shekhawat) Air Commodore Air Officer Commanding AF Stn Basant Nagar 7 8. We have examined the Summary of Evidence, the Charge Sheet and the proceedings of the DCM and it is seen that the applicant was charged under Section-38(1) of the Air Force Act, 1950 for desertion, and Section-39(b) of the Air Force Act, 1950, for overstayal of leave. The applicant pleaded not guilty to the first charge and this was not pressed and for the second charge, he had pleaded guilty. We also find that during the course of proceedings, he was provided with the assistance of Sqn Ldr SD Narvekar, a legally qualified officer, as his Defending Officer and therefore, his claim that he was not provided with proper officer to defend him is not borne by facts. 9. Prior to pronouncing the sentence by the Court, the applicant was given an opportunity to file a plea for mitigation. In his plea for mitigation, he submitted that the aspects of his domestic problems for mitigation were brought out to gain sympathy of the Court and it was not intended to use these facts as a line of defence for him. The accused further submitted that he had no other line of defence. Based on the Summary of Evidence, the Court had not found him guilty of the first charge and found him guilty of the second charge. The DCM in its findings recorded that though the applicant was granted 11 days of Casual Leave from 23.10.2012 to 2.11.2012 with prefix on 20, 21 and 22 October, 2012 and suffix on 3.11.2012 and 4.11.2012, he did not report back for duty on completion of the leave and that a Court of Inquiry was ordered in terms of Section-107 of the Air Force Act and subsequently a 8 Summary of Evidence was recorded upon the applicant reporting back for duty voluntarily.
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