The Supreme Court upheld dismissal of a soldier who allegedly did not retaliate to the attack by militants during a military operation in 2006.
The charge against Appellant was that, during the military operation in a village in Jammu and Kashmir, despite the militants having attacked and killed Sapper Gurmail Singh who was in his group, he had not retaliated using either the AK-47 gun or the pistol which was in his possession. Instead, he allegedly abandoned the post and jumped over the wall to escape from the spot. After a summary court martial, he was dismissed from service has also been ordered to undergo rigorous imprisonment for six months.
The bench comprising Justice MR Shah and Justice AS Bopanna, on his appeal, observed that when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate to interfere in the matter.
While dealing with his submission that he had taken part in several operations earlier and the witnesses have admitted him to be a good soldier, the bench said:
"In the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice."
Though it upheld the dismissal, the bench set aside the sentence of rigorous imprisonment for six months.
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