Summary
The finding that a soldier exhibited cowardice by abandoning his post without retaliating during a militant attack was upheld. The Armed Forces Tribunal’s assessment disclosed no perversity, and favourable past service did not answer the failure to perform the assigned duty on that occasion. Dismissal remained justified, but the six-month rigorous-imprisonment sentence was set aside considering the gunshot injury suffered in the incident and the long lapse of time.
Issues
- Whether the concurrent finding of cowardice and dismissal warranted interference.
- Whether imprisonment should remain in the particular circumstances.
Held
- The unexplained failure to use either available weapon and the evidence concerning abandonment supported the finding. The asserted unconsciousness was inconsistent with the soldier’s detailed account of intervening events; no perversity or evidence of victimisation was shown. (¶ 6–7)
- Past service remains relevant in service matters, including punishment, but members of disciplined forces must meet the particular operational duties entrusted to them. Earlier good performance did not displace the established failure during this attack. (¶ 8)
- Dismissal was justified. Nevertheless, the injury sustained and the long intervening period warranted setting aside imprisonment in these peculiar circumstances. (¶ 9–10)
Result
Dismissal from service upheld; sentence of six months’ rigorous imprisonment set aside. Appeal disposed of; no costs.