A soldier should rise to every occasion to defend the integrity of the nation and if he turns his back to the challenge in 'grave situation', it would certainly amount to cowardice, the Supreme Court has said.
It further said that he cannot live merely on 'past glory' as the trust has been reposed in him for defending the country.
The remarks were made by the top court which rejected the petition of an Army personnel challenging his dismissal from service for not retaliating and escaping from the spot when terrorists opened fire at his post and killed his colleague during an operation in Jammu and Kashmir in 2006.
He was also charged with failing to use his AK-47 rifle and pistol due to which the militants broke the cordon, killed an Army personnel and took away the Light Machine Gun (LMG).
"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," a bench comprising Justices M R Shah and A S Bopanna said in its verdict on Tuesday.
The top court also dealt with the arguments advanced by the army personnel's counsel who referred to statements given by some of the witnesses examined during summary general court martial (SGCM) proceedings and said that the sacked Army man was a 'good soldier' and not scared to take part in any operation.
"Though the counsel for the appellant (petitioner) has sought to refer to the cross-examination (of witnesses)...to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, 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," the bench said.
The sacked Army personnel had approached the apex court challenging the August 2011 order passed by the Armed Forces Tribunal (AFT), Chandigarh, which had dismissed his appeal by upholding the sentence imposed by the SGCM.
The SGCM had dismissed him from service and had also ordered him to undergo rigorous imprisonment for six months.
The apex court, while upholding the order of dismissal from service, set aside the jail term saying that 'in so far as the order for imprisonment, in the present facts and circumstance we notice that though the appellant had exhibited cowardice, the fact remains that he had also received a gunshot injury in the incident'.
The petitioner was posted to 3 Rashtriya Rifles (RR) Battalion in 2006.
According to the charge levelled against the petitioner, in August 2006, a search operation was carried out in village Darigidiyan in Jammu and Kashmir.
When the Army team reached the village, there was a brief exchange of fire after which the militants took cover in a nearby field.
At around 11 pm, intense firing started at the LMG spot where the petitioner was positioned along with his colleagues.
"The charge against the appellant (petitioner) is that he left his post, jumped across the stone wall and failed to retaliate against the militants," the bench noted in its verdict.
The counsel appearing for the petitioner told the apex court that he himself was injured in the incident and in such a circumstance, he cannot be branded as a 'coward'.
The Centre's counsel argued that there was no explanation as to why even in such a grave situation, the petitioner had not used either the AK-47 rifle or the pistol which was in his possession as a mark of retaliation.
"Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed," the bench noted.
IAF member can't depart from service at will during term of engagement: SC
A person enrolled as a member of the Indian Air Force does not have an 'unqualified right' to depart from service at will during the term of engagement, the Supreme Court said on Wednesday.
Hearing a plea filed by an airman, the court said a balance has been sought to be drawn between interests of service with situations involving requests by persons enrolled in the IAF to take civilian employment.
But interests of service are of 'paramount importance', it observed.
The airman has challenged two orders of the Armed Forces Tribunal, passed in 2012, by which his petition seeking direction for grant of a no-objection certification and for discharge from the IAF to join a civil post in a bank was dismissed.
"A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement.
"Such a construction, as urged on behalf of the appellant, will seriously impinge upon manning levels and operational preparedness of the armed forces," a bench of Justices D Y Chandrachud and Hemant Gupta said in its verdict.
"With the rapid advancement of technology, particularly in its application to military operations, there has been a reconfiguration of the human and technological requirements of a fighting force," the bench said.
However, as nearly eight years have elapsed since the man left service, the bench said, no purpose will be served in directing his re-induction into the IAF.
The apex court said, "....we are of the view that the ends of justice would be met by directing that a final NOC and discharge be issued to the appellant no later than within a period of three months of the receipt of a copy of this order. At the same time, we are of the view that this should not be an unconditional direction."
"We accordingly issue an order in the above terms, subject to the appellant depositing with the Union of India a sum quantified at Rs three lakh within two months of the receipt of a copy of this judgment. A final NOC and discharge certificate shall be issued only after the above amount is deposited and within one month thereafter," it said.
The petitioner was enrolled as an airman in the IAF in January 2004 and his regular engagement was to come to an end in January 2024.
He had applied for the post of general banking officer in a bank in August 2010 and after a written test and an interview, he was declared successful.
In July 2011, he received an order of his appointment from the bank after which he moved the AFT Chandigarh, seeking direction for grant of an NOC and for discharge from the IAF to join a civil post.
The IAF said he had done this without completing the mandatory period of service of seven years and had not even obtained the prior permission of his unit authorities.
The AFT initially issued an interim direction to the IAF authorities to provisionally issue an NOC and discharge him so as to enable him to take up the new assignment after which he joined the bank in September 2011.
His application seeking NOC and discharge was rejected by the Air Force authorities in March 2012 and later, the provisional NOC issued to him was also cancelled.
Following the decision of the Air Force authorities, the AFT dismissed his plea saying it has become infructuous.