AFT orders retrial of jawan dismissed 10 years ago for unauthorised absence
Vijay Mohan
Chandigarh, December 23
About 10 years after a soldier was dismissed from service by a court martial for remaining absent without leave for more than two years, the Armed Forces Tribunal (AFT) has set aside the proceedings and directed the Army authorities to conduct a retrial after reinstating him in service.
Proceedings vitiated
- In 2010, the jawan proceeded on annual leave for a month and extended it by 23 days
- He failed to report back on duty on completion of leave
- In 2012, he surrendered voluntarily after a 2-yr absence
- Was tried by court martial in 2013, dismissed from service
- The AFT held that the trial was vitiated as the correct provisions of law were not applied
The tribunal held that the trial was vitiated as the correct provisions of law were not applied and there were errors and omissions in the record of the court proceedings. In 2010, the jawan proceeded on annual leave for a month, which was extended by 23 days, but failed to report back on duty on completion of leave.
In 2012, he surrendered voluntarily after remaining absent for a period of two years, three months and 12 days, contending that he could not join duty because of the illness of his wife and certain domestic issues. He was tried by a summary court martial (SCM) in 2013, which dismissed him from service.
The AFT observed that Army Rule 129, which pertains to the accused being entitled to a friend to assist him in the proceedings, was grossly violated during the course of the SCM and the contention of the respondents of typographical errors creeping in the court records could not be accepted.
The tribunal observed that the name of an officer would could be detailed as a friend of the accused mentioned in one letter also figured in another letter listing the members of the SCM, indicating a farce in the entire SCM proceedings.
“The petitioner’s fundamental right to access to a fair trial having been violated in the instant case by not having afforded him a right to choose his friend in terms of Army Rule 129, the court martial proceedings against the petitioner are undoubtedly vitiated,” the tribunal’s Bench comprising Justice Anu Malhotra and Vice Admiral Dhiren Vig ruled in its order of December 20.
While giving the Army an opportunity to reframe the phraseology of the charges sought to be levelled against the jawan, the Bench held that it could not overlook the factum that he had been absent for over two years and three months, which necessitated the need for a retrial in the interest of justice.
The Bench further directed that the jawan, though reinstated in service, would remain under suspension during the period of further proceedings and retrial. He would also not be entitled to consequential benefits or any kind of payment, it said.
