CHENNAI: When a court martial results in punishment “grossly disproportionate”, it can be set aside, the Chennai bench of the Armed Forces Tribunal said, quashing an order to dismiss a soldier for being absent without taking leave.

The tribunal also warned the Army and the Union government of initiating contempt proceedings if they filed affidavits with “wilful misrepresentation of facts”.

Ex-sapper Neelam Moyyi, 29, said he had served in the Army for more than eight years. While posted at Jammu and Kashmir, his wife fell ill. He was then transferred to the the Army’s Corps of Engineers.

While reporting for the posting, he came to know that his wife had a high-risk pregnancy. His seniors did not grant him his annual leave, Moyyi went to his hometown and stayed with his wife from April 2010 till April 2011. He could not communicate with the regiment as Moyyi did not know its location. After he reported back to the unit, a Summary Court Martial (SCM) in August 2012 dismissed Moyyi from service.

He moved the tribunal, stating that the punishment was disproportionate to the offence. In its counter, the Army said Moyyi had been absent from duty for one year and seven days without any effort to communicate with his unit. He was a “habitual offender and had faced various disciplinary actions” for being absent without leave. The Union government had, in May 2014, rejected his mercy plea. So his punishment was “just”, it said.

A bench of judicial member V Periya Karuppiah and administrative member K Surendra Nath said Moyyi’s argument about not knowing the unit’s location was “an afterthought”. The Army had said Moyyi was a habitual offender but there were no records to show Moyyi had faced disciplinary cases. The commanding officer (CO) also certified his character as exemplary.

Assailing the Army’s argument as “totally incorrect and false,” the bench said “being responsible organizations the Union government and the Army ought not to make such submissions on affidavit without verifying records.The CO, however, said Moyyi’s punishment “would set an example” to all other ranks. As he was not a habitual offender, the officer had to consider mitigating circumstances. Though Moyyi was guilty of being absent without leave, he was fit to continue service if permitted to rejoin. The bench then set aside the dismissal and altered it to 75 days RI in military custody.

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Source: TOI-Che