Punishment, then discharge from service for same offences amounts to double jeopardy, is unsustainable in law: AFT
Vijay Mohan
Chandigarh, November 14
The Armed Forces Tribunal has held that awarding punishment to a soldier for certain offences and then discharging him from service for the same reasons amounts to double jeopardy, which is unsustainable in the eyes of law.
Based on this observation, the Tribunal has quashed the discharge orders of a soldier from the Punjab Regiment about 14 years later and directed that he be given all consequential benefits as if he were to otherwise remain in service.
The soldier had been discharged from service in July 2008 after he received five ‘red-ink entries’ in his record for overstaying leave and remaining absent from duty without leave.
He had been awarded rigorous imprisonment or imposed fines on five instances for the same.
Referring to on an earlier judgement of the Supreme Court, the Tribunal’s bench comprising Justice Dharam Chand Chaudhary and Vice Admiral HCS Bisht said red ink entries alone cannot be made the basis to discharge a soldier from service and the overall scenario, that is, the total period of service rendered on the day of discharge and that he was about to acquire the qualifying service for grant of pension, should also have been taken into account.
The soldier had contended that he had completed 12 years and eight months of service at the time of discharge and was about to complete pensionable service in less than two years, but this had not been taken into consideration by the authorities when passing his discharge orders.
Though he did not deny the aforesaid offences, he averred that they were not of such a serious nature that discharge from service was the only option available with the authorities.
The Tribunal held that overstaying leave or absence from duty sometimes happens due to compelling family circumstances or hazards of army service and he was duly punished for the same.
The Tribunal also observed that punishment for the said offences can be awarded by the competent authority on the basis of an inquiry, but the record in this case was silent as to whether a court martial was convened and inquiry conducted while awarding the punishment.
Further, neither any show cause notice issued to the soldier or a reply to it was brought on record.
