A.M.KHANWILKAR, J. - (1.) The respondent was enrolled in the Indian Air Force on 28th March, 2006 and in due course of time was promoted to the rank of Corporal. While serving in that capacity, he overstayed the casual leave granted to him from 20th October, 2012 till 4th November, 2012, until 11th April, 2014, allegedly due to his ill-health and family problems. Resultantly, he was tried before the District Court Martial (DCM) on 11th November, 2014. He was served with the charge-sheet which reads thus: JUDGEMENT_8_LAWS(SC)8_2017.htm
(2.) The said authority, after giving opportunity to the respondent, on 11th November 2014 found him guilty of the second charge only and sentenced him to undergo punishment of four months' rigorous imprisonment, dismissal from service and reduction in rank. However, the Air Officer Commanding-in-Chief, WAC, IAF reduced the period of rigorous imprisonment from four months to three months. The respondent was kept in Air Force custody from 11th November, 2014 to 10th February, 2015 and was dismissed from service on 10th February, 2015. The respondent submitted a petition under Section 161(2) of the Air Force Act, 1950 before the Chief of the Air Staff seeking for his reinstatement which, however, was rejected vide order dated 12th February, 2015. The respondent then filed an original application before the Armed Forces Tribunal, Regional Bench at Chennai, Circuit Bench at Hyderabad, being O.A. No.77 of 2015. The same was partly allowed vide the impugned judgment. In that, the Tribunal rejected the plea of the respondent that the disciplinary action suffered from legal infirmity and want of fairness of opportunity. After rejecting that contention, however, the Tribunal proceeded to hold that the second charge was duly proved against the respondent. But the Tribunal was impressed by the plea taken by the respondent that he overstayed because of compelling circumstances due to matrimonial dispute and illness of his father resulting in mental disturbances and more particularly, because it was the first offence of the respondent. The Tribunal took note of Regulation 754(C) of the Defence Service Regulations for Air Force and came to hold that the punishment awarded to the respondent was excessive and disproportionate. For, it was his first offence and that the respondent deserved a chance of being rehabilitated in service. The Tribunal was, therefore, pleased to set aside the order of punishment of dismissal from service and, instead, directed the appellants to reinstate the respondent in service. The Tribunal observed thus: "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 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."
(3.) Shri R. Balasubramanian, learned counsel appearing for the appellants, would contend that the Tribunal has exceeded its jurisdiction in interfering with the order of punishment, which is the prerogative of the disciplinary authority. He submits that the fact that the respondent committed his first offence per se cannot be the basis to conclude that the punishment of dismissal awarded by the disciplinary authority in the fact situation of the present case was disproportionate or excessive. The justification given by the respondent for committing the offence of overstaying the casual leave period for almost around 1 1/2 years, without informing any competent authority about the cause of such overstay, cannot be viewed lightly considering the requirements of the disciplined Force. Further, Regulation 754(C) of the Defence Service Regulations for Armed Forces adverted to by the Tribunal cannot be pressed into service in the fact situation of the present case. He submits that the Tribunal has misguided itself in interfering with the order of punishment and, more so, directing reinstatement of the respondent in service.;