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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 Represented by- The Secretary, Govt. of India, Ministry of Defence, South Block, –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

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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 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 ?

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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. It was further revealed that the applicant had surrendered at his own accord at 0930 hrs on 11.4.2014 and during the period of his absence, the applicant had made no contact with nor gave any intimation to his Unit, and that even his Mobile Number was switched off. Further, the Defending Officer of the accused confirmed to the Court that the applicant had been explained the meaning, nature and ingredients of the charge and the implications of the charge of pleading guilty was explained to him. He confirmed that the applicant had pleaded guilty voluntarily and also declined to make any statement with reference to the charge. He had also declined to use the facts regarding his domestic problem as brought out by him in his statement in the Summary of Evidence for mitigation of punishment. Whereupon, the District Court

Martial found him guilty of the charge and before sentencing him, the

Court asked Assistant Adjutant, Warrant Officer A.K. Maiti, the applicant’s superior, to testify regarding the character of the applicant. He stated that, “As per my interaction with the accused, I find him a sincere, honest and hard working air warrior and I can say that he is an asset to the organization. His general behaviour is good and I did not notice any act of indiscipline on his part.”

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10. At the end of the trial, the District Court Martial awarded the following sentence :-

SENTENCE

The Court sentences the accused, 016856-L Cpl Nallam

Shiva Comn Tech of MCC AF Stn Basant Nagar, to:-

(a) RIGOROUS - To suffer rigorous imprisonment for IMPRISONMENT four months.

(b) DISMISSAL - To be dismissed from the Service.

(c) REDUCTION - To be reduced to the ranks.

The Court is opened and the above sentence is announced

to the accused as subject to confirmation.

Signed at Air Force Station Basant Nagar, on this the

Eleventh day of November 2014.

Sd/ Sd/ (UN Pathak) (Ramanvir Singh) Sqn Ldr WgCdr Judge Advocate Presiding Officer

11. We do not find any procedural or legal infirmity in the conduct of

Summary of Evidence as well as the District Court Martial. Therefore, we are not inclined to agree with the plea of the applicant that the said proceedings should be quashed and set aside as it lacks merit and substance.

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Points No.2 to 4 :

12. The Learned Counsel for the applicant has submitted that the punishment awarded to the applicant was excessive and harsh and that there are number of mitigating circumstances including the fact the applicant’s parents were sick, he himself had an injury and he was having domestic problems with his wife which ultimately led to a divorce. He would also submit that since this was the first offence of the applicant and in accordance with Regulation-754(c) of Defence Service Regulations for

Air Force, he should be treated lightly.

13. On the other hand, the Respondents would state that given the long absence of the applicant from duty without communication to the Air

Force Headquarters or to any person superior to him or to the nearest

Military Station, i.e., NCC Battalion or the HQ ,

Visakhapatnam, which was only a few kilometers from his home town would go to show that the applicant was intending to desert and had only reported back for duty when his financial condition became bad. They would rely on the observation of the Hon’ble Supreme Court in the

Judgement dated 28.10.2015 in the case of Union of India & Ors. Vs.

Manoj Deswal & Ors. in Civil Appeal No.5015 of 2008, which, inter alia, noted that absence without leave is an act of gross indiscipline and a person who remains absent unauthorisedly can never turn out to be a good soldier and that he is unlikely to become an efficient soldier.

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14. There is no doubt that the conduct of the applicant in overstaying the leave for such a long period without communicating either to his superiors or to the nearest Military Station and his statement that even though he had a back problem, he chose not go to a Military Hospital, but to a quack would show that the applicant has set a bad example to his fellow soldiers in the Air Force. We also observe that the applicant during the proceedings of the District Court Martial did not make any plea for mitigation. However, in the Summary of Evidence, we note that the applicant had brought out that he was suffering from slip disc and after an

MRI scan, the Doctor advised that he may have to go for an operation and that he was scared of such an operation. He further stated that he had an estranged relationship with his wife and that he had to fight a case in

Civil Court and had to pay her a large amount as alimony for a permanent settlement. Further, his father had a paralytic attack. He was mentally disturbed with all these circumstances and finally he got a mutual divorce from his wife. He admitted to the fact that he failed to inform his

Headquarters of his absence due to fear of punishment. He further stated that his behaviour was childish and he was apologetic for his behaviour and that he should be given an opportunity to redeem his honour.

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. We observe from Regulation-754(c) of 12

Defence Service Regulations for Air Force that, “Sentences must necessarily vary according to the requirements of discipline but in ordinary circumstances, and for a first offence, a sentence should be light.” We also note that this is the first offence committed by the applicant in his entire service. Further, in the proceedings of the District

Court Martial, his superior officer, WO A.K. Maiti had stated that the applicant is a sincere, honest, hardworking and disciplined air warrior.

Having regard to these mitigating factors and that this is his first offence, we are inclined to examine the aspect of proportionality and severity of punishment in relation to the offence committed.

16. In the instant case, the punishment awarded to the applicant was four months RI which was reduced to three months RI by AOC-in-C,

Western Air Command, and reduction in ranks of Corporal to LAC and dismissal from service. In totality, we find the punishments given to the applicant considering that this is the first offence committed by him, appears to be somewhat harsh and excessive. The Hon’ble Apex Court in several Judgements has stated that when punishments, especially from

Court Martials, are grossly disproportionate, then it is justifiable to interfere with such punishments. In its Judgement in the case of Ranjit

Thakur vs Union of India and Ors reported in 1987 (4) SCC 611, the

Hon’ble Apex Court made the following observations :-

“The question of the choice and quantum of punishment is

within the jurisdiction and discretion of the Court-Martial. 13

But, the sentence has to suit the offence and the offender.

It should not be vindictive or unduly harsh. It should not

be so disproportionate to the offence as to shock the

conscience and amount in itself to conclusive evidence of

bias. The doctrine of proportionality, as part of the concept

of judicial review, would ensure that even on an aspect

which is, otherwise, within the exclusive province of the

Court-Martial, if the decision of the Court even as to

sentence is an outrageous defiance of logic, then the

sentence would not be immune from correction.

Irrationality and perversity are recognized grounds of

judicial review.”

17. In the instant case, admittedly, this is the first offence by the applicant and otherwise the applicant’s conduct has been exemplary.

Further, there are some mitigating circumstances, especially with regard to his family problems, including the ill health of his father. In view of the foregoing, we find there is merit in remitting part of the sentence awarded to the applicant. The fact is that the applicant had already undergone punishment of three months Rigorous Imprisonment in Air

Force custody and reduction in the rank of LAC is a pre-requisite for undergoing such punishment. We are of the view that the applicant deserves a chance to be rehabilitated in service and, therefore, we set aside the punishment of “To be dismissed from the service” alone, and 14

other punishments shall stand. The Respondents are directed to reinstate the applicant in service within two months from the date of receipt of a copy of this order. The period between the date of dismissal of the applicant i.e. 10.2.2015 to the date of his rejoining service will be treated as non-qualifying service.

18. The appeal is ordered accordingly. No order as to costs.

Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE S.S. SATHEESACHANDRAN MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

09.12.2016 (True copy)

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No

NCS

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To:

1. The Secretary, 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.

5. M/s. M.K. Sikdar & S. Biju, Counsel for applicant.

6. Mr. K. Ramanamoorthy, CGSC Counsel for Respondents.

7. OIC, Legal Cell (Air Force), 23 ED, AF Station, Avadi, Chennai.

8. Library, AFT/RB Chennai.

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Hon’ble Justice S.S.Satheesachandran (Member-Judicial) And Hon’ble Lt Gen K Surendra Nath (Member-Administrative)

O.A.(Appeal) No.77 of 2015

Dated: 09.12.2016