Soldier dismissed 10 years ago for 2-year AWOL to face court martial again after AFT sets aside earlier proceedings

Vijay Mohan

Chandigarh, December 22

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 has set aside the proceedings and directed the Army authorities to conduct a retrial after reinstating him in service.

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 period of one month, which was extended by 23 days, but failed to report back to 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 Tribunal 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 cannot 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.

Stating that merely because the petitioner did not abject to a particular officer being detailed as a friend of the accused during the trial cannot detract from his right to choose his friend in terms of Rule 129, the Bench held that the right to a fair trial and the right to representation by the friend of the accused in court martial proceedings is an essential facet of a fair trial, which has been violated in this case.

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 cannot 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, through being reinstated in service, will remain under suspension during the period of further proceedings and retrial. He will, at present also not be entitled and consequential benefits or any kind of payment.