2019 (7) TMI 1841 - SC - Indian Laws

Summary Court Martial - It is alleged that on 11 August 2007 while on duty for cleaning the service area in the morning, the appellant entered the residence of a colleague and while his spouse was washing her son, placed his hands on her shoulder - Armed Forces Tribunal, while holding that the charge had been duly established, came to the conclusion that the punishment of dismissal was disproportionate and should be modified to an order of discharge - Section 120 of the Army Act, 1950 - HELD THAT - The requirement of recording reasons for convening a Summary Court Martial shall apply from 5 July 2016. However, the fundamental principle of law which has been enunciated is that the power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary. Sub-section (2) of Section 120 is prefaced by the words when there is no grave reason for immediate action . In the present case, though the incident took place on 11 August 2007, the SCM took place on 22 May 2008. The convening of an SCM was contrary to law. The appellant had nearly twelve years service when he was dismissed from service. In this view of the matter, the ends of justice would be met if in the exercise of our jurisdiction under Article 142 of the Constitution of India, it is ordered and directed that the discharge of the appellant shall take effect from the date on which he completes fifteen years of service so as to render him eligible for the grant of pension. The appellant shall stand discharged from service on the completion of the minimum pensionable service with the result that he would be entitled to the disbursal of his pensionary benefits in accordance with law - appeal allowed.

Summary

Issues:
- Allegation of misconduct leading to dismissal from service
- Appeal challenging the punishment and seeking modification
- Interpretation of Section 120 of the Army Act, 1950 regarding convening of Summary Court Martial
- Review of previous judgments related to convening SCM and recording reasons

Allegation of Misconduct and Dismissal:
The appellant, enlisted in the 43 Armed Brigade, faced a Summary Court Martial (SCM) resulting in dismissal for allegedly entering a colleague's residence and inappropriately touching the colleague's spouse. The Armed Forces Tribunal upheld the charge but found the punishment disproportionate, modifying it to discharge.

Appeal and Challenge:
The appellant's counsel argued that the incident was fabricated as retaliation for the appellant reporting misconduct by the victim's spouse. The appellant also questioned the timing of the SCM, citing precedents like Ex Havildar Ratan Singh vs Union of India & Ors and Union of India vs Vishav Priya Singh, emphasizing the necessity of immediate action for convening an SCM.

Interpretation of Section 120 of Army Act, 1950:
Section 120 of the Army Act, 1950 was central to the legal arguments, defining the powers of summary courts-martial. The judgment referenced previous cases to highlight the importance of immediate action and the rare exercise of convening an SCM, emphasizing the need for specific reasons for its initiation.

Review of Previous Judgments:
The judgment delved into the interpretation of Section 120, referencing Ex-Havildar Ratan Singh and Vishav Priya Singh cases. A subsequent review clarified that the requirement of recording reasons for convening an SCM applies from 5 July 2016. The court emphasized the drastic nature of the power to order an SCM and the necessity for immediate action.

Conclusion:
The court concluded that the SCM convened in this case was contrary to law due to the lack of immediate action. Despite finding in favor of the appellant, the court acknowledged the practical difficulty in pursuing the matter after twelve years. In the interest of justice, the appellant was directed to be discharged after completing fifteen years of service, making him eligible for pension benefits. The appeal was allowed, modifying the Tribunal's order accordingly.