Summary
Convening a Summary Court Martial nine months after the alleged incident was contrary to the requirement that this drastic power be used where immediate action is imperative. The prospective clarification about recording reasons did not remove that underlying requirement. Given the twelve-year lapse and acknowledged impracticability of a fresh inquiry, the Court adjusted the discharge date to completion of minimum pensionable service rather than reopening factual findings.
Issues
- Whether the 2008 Summary Court Martial complied with the statutory requirement of an imperative need for immediate action.
- What relief was appropriate when a fresh inquiry after twelve years was impracticable.
Provisions considered
- Section 120, Army Act, 1950The underlying requirement of immediate necessity applied notwithstanding the prospective clarification concerning recording of reasons; the delayed Summary Court Martial was contrary to law. (¶ 9–12)
Held
- The requirement to record reasons applied from 5 July 2016, but the fundamental restriction on exercising the drastic Summary Court Martial power without imperative immediate necessity was distinct. The lapse from August 2007 to May 2008 rendered its convening unlawful here. (¶ 10–12)
- The Court did not reassess the affirmed factual findings. A further inquiry would ordinarily remain possible, but the twelve-year lapse and difficulty finding witnesses made it impracticable. (¶¶ 8, 13)
- Under Article 142, discharge was shifted to completion of fifteen years’ service so that the appellant would receive pensionary benefits in accordance with law. (¶ 14–15)
Result
Appeal allowed; Tribunal order modified so that discharge takes effect on completion of minimum pensionable service. Pensionary benefits to be disbursed according to law and pension arrears paid within three months of certified-copy receipt. No costs; pending applications disposed of.