Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that judicial review over court-martial proceedings is limited and cannot be invoked solely because a punishment appears severe when the process has been carried out in accordance with law. The Court set aside the Armed Forces Tribunal’s direction converting the soldier’s dismissal into discharge and reinstated the original penalty imposed for overstaying leave for 139 days. The case concerned allegations of unauthorised absence and the respondent’s assertion of personal and medical difficulties, while the authorities maintained that the conduct undermined military discipline. The Court concluded that the punishment required no modification and must stand.

The petitioners challenged an order dated 08.05.2023 passed by the Armed Forces Tribunal, Srinagar Bench at Jammu, which had partly allowed an application filed by the respondent and modified the punishment of dismissal to discharge with limited consequential benefits. The respondent had been enrolled in the Army in July 1983 and was sanctioned leave from July to August 1998, followed by an extension. He failed to rejoin after the extended period and returned in January 1999, resulting in 139 days of unauthorised absence. He was tried under Summary Court Martial proceedings on 05.07.1999 and dismissed from service.

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Before the Tribunal, the respondent claimed he had met with an accident, suffered mental stress due to a failed marriage proposal, and had been under treatment until December 1998. He stated he refrained from reporting due to fear of his Commanding Officer and later expressed willingness to rejoin when called to a camp in January 1999. He argued the punishment was harsh and highlighted his long service and loss of pension.

The petitioners defended the dismissal, submitting that the respondent had repeatedly overstayed leave, had prior punishments for offences under Sections 63 and 39 of the Army Act, and was a habitual offender. They submitted that the Summary Court Martial proceedings conformed to law and that the disciplinary response was justified.

The respondent invoked proportionality, arguing the absence was medically and personally explained and that discharge would suffice. The petitioners relied on precedent supporting dismissal for repeated unauthorised absence, while the respondent cited decisions where dismissal was modified.

The Court recorded that the respondent had previously been punished for offences under Army Act Sections 63 and 39(b), including “28 days Imprisonment and 14 days detention” and deprivation of an appointment. It stated that “Section 39 of the Army Act penalises absence without leave or overstaying leave without sufficient cause.”

The Court recorded: “It is not in dispute that the respondent was not found guilty of desertion.” It observed that the only act considered in the Summary Court Martial was overstaying leave for 139 days.

The Court stated the petitioners had relied on Supreme Court precedent holding that dismissal for overstaying leave could be upheld, and the respondent relied on decisions where dismissal was modified.

The Court referred to “Union of India & ors. v. Major A. Hussain” and recorded: “where a court-martial is properly convened, the proceedings are regular, and the findings are supported by evidence, the scope of judicial review is extremely limited.” It stated that interference is justified only where punishment is “shockingly disproportionate or perverse.”

Similarly, the Court referred to “Ranjit Thakur v. Union of India & ors.” and recorded: “judicial intervention is permissible only when the punishment is so disproportionate as to shock the conscience of the Court.” It stated that “Compassion alone cannot justify interference.”

The Court observed: “In the present case, the procedure adopted by the Summary Court Martial has not been assailed.” It recorded that the respondent failed to produce substantive evidence before the Summary Court Martial regarding the alleged accident or depression. It further stated: “the fact remains that he remained absent for over four months without authorisation.”

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The Court recorded: “The Tribunal… has not recorded any cogent reasoning to demonstrate why the penalty of dismissal was disproportionate.” It stated: “As a member of the Armed Forces, the respondent was expected to maintain the highest standard of discipline.” The Court observed: “Unless the punishment is outrageously disproportionate or actuated by mala fides, judicial interference is unwarranted.”

The Court concluded: “the writ petition succeeds and is accordingly allowed. The impugned order dated 08.05.2023 passed by the Armed Forces Tribunal, Srinagar Bench at Jammu in OA No. 138/2021 is quashed. The punishment of dismissal imposed by the Summary Court Martial is upheld. No costs. Pending applications, if any, shall also stand disposed of.”

Advocates Representing the Parties

For the Petitioners: Mr. Rohan Nanda, CGSC
For the Respondent: Mr. Danish Butt, Advocate

Case Title: Union of India & Ors. v. Ex Rfn Abdul Rashid War
Case Number: WP(C) No. 1709/2024
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar