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CASE NO.: Appeal (civil)  5799 of 2000

PETITIONER: Pradeep Singh

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 19/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment rendered by a  Division Bench of the Jammu and Kashmir High Court  dismissing the Letters Patent Appeal filed by the appellant.

Background facts in a nutshell are as follows:

Absence for a period of 2= months was treated as  misconduct and Summary Court Martial was convened in  terms of Section 116 of the Army Act, 1950 (hereinafter  referred to as the ’Act’).  He was charged under Section 39A of  the Act by order dated 7.8.1989 for having remained absent  from duty without leave. He was tried and punished by a  Summary Court Martial vide order dated 16.8.1989. The order  of dismissal passed by the Court Martial was challenged in the  writ petition primarily on the following grounds:

(i)     that officiating Commanding Officer was not  competent to convene the Summary Court  Martial and therefore, the proceedings and the  sentence awarded by the Summary Court  Martial is illegal being without jurisdiction;   (ii)    that the petitioner was neither provided any  legal assistance nor allowed to cross-examine  the witnesses, and therefore, the right of  hearing has been denied to him;                               (iii)   that the petitioner having been punished by  removal of the rank could not be tried and  punished on the same ground.  

The respondents took the stand that all the submissions  are without foundation.  The High Court noticed that the  appellant was posted somewhere in Leh and was deputed for  Commando course in December, 1988 which he joined in  January, 1989.  He completed the course on 7.2.1989, but  instead of reporting at the Transit Camp after completion of  the course, he went home on the assumption that he had  already applied for annual leave which must have been  sanctioned by his Commanding Officer. He finally reported at  259-Transit Camp on 21.4.1989 and reached his unit on  19.5.1989. His grievance was that immediately after he  reached the unit, his rank of Naik was withdrawn. Later he

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was directed to appear before the Summary Court Martial on  11.8.1989, which concluded the hearing and awarded the  punishment of dismissal. The High Court found that the stand  that Officiating Commanding Officer was not competent to  convene Summary Court Martial was without substance in  view of the definition of "Commandant Officer" as given in  Section 3(v) of the Act.  So far as the denial of legal assistance  is concerned, it was noted that the appellant admitted that  Major D.P. Naikavde was named as his friend to advise him  during the course of trial. His plea that he did not see the said  officer during the court martial was found to be without  substance.  It was noted that in case he was not assisting him,  he could have made a grievance before the Summary Court  Martial. That has not been done. There was no substance in  the plea. The appellant was informed that on completion of the  commandant course he did not immediately join the unit and  instead joined after 2= months. He assumed leave may have  been granted without any foundation. As he was holding  acting rank of Naik, he forfeited the right to hold the same  because of his absence from duty without leave as per army  Headquarter letter No.94930/AG/PSC (C) dated 21.11.1988.   Appellant was not holding the substantive rank of Naik, the  same was withdrawn, because of absence without leave.  It  was in essence withdrawal of a concession given. The plea  relating to dual jeopardy was, therefore, without any  substance. Accordingly, writ petition was dismissed. Before  the Division Bench the stand taken before the learned Single  Judge was reiterated. The Division Bench found that in view of  the factual scenario as noted by the learned Single Judge, the  writ petition had been rightly dismissed.  It, however, observed  that in case some persons similarly situated were treated with  leniency, it was open to the appellant to make a representation  which shall be duly considered by the respondents. With the  aforesaid observation the Letters Patent Appeal was dismissed.                           

The learned counsel for the appellant highlighted the  same aspects which were urged before the learned Single  Judge and the Division Bench. According to him, the  withdrawal of the rank was a punishment and the High Court  was, therefore, not justified in its view. Learned counsel for the  respondent on the other hand supported the orders. With  reference to Section 80 of the Act, learned counsel for the  appellant submitted that removal of stripes amounted to  punishment and, therefore, further action was not  permissible. In this context, the rules relating to acting ranks  need to be noted. The same is contained in Army Instructions  Nos. 84 and 88. Rule 84 relates to promotion for Junior  Commissioned Officers and other Ranks. According to the  instructions, there are two kinds of promotion, i.e. one acting  and other substantive.  So far as the acting rank is concerned,  they are dealt with in Part I.  The same so far relevant reads as  under:

"PART I .- ACTING RANKS

2.      The following are the general provisions  governing the above promotions:-  (a)     Acting promotion will be made to fill  vacancies in authorized  establishment, whether temporary  or permanent.  Acting rank will  remain unpaid until an unbroken  period of 28 days has been served in  that rank when acting rank will be  converted into paid acting rank; pay

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will be admissible with retrospective  effect from the date of the grant of  such acting rank.  (b)     The rank of Nb Ris/Nb Sub is a  substantive rank.  No acting  promotion to that rank will,  therefore, be made. A senior NCO  may, however, be authorized to  perform the duties of a Nb Ris/Nb  Sub where necessary. (c)     Every Commanding Officer of a Unit  or Officer-in-charge Records, where  acting promotions are centrally  controlled on Corps roster basis, is  empowered to make acting  promotions, provided that the  individuals concerned are in  possession of all the qualifications  prescribed for the higher rank.  The  authority competent to sanction  acting promotion is also empowered  to order reversion from such acting  rank. Acting and paid acting  promotions or reversions will be  published in Part II orders which  will be the authority for issue of pay  and allowances of the appropriate  rank.      (d)     Acting rank will be granted from the  day the vacancy occurs provided  that the individual has assumed the  duties of the higher rank from that  day and reversion will take place  with effect from the day the  individual ceases to perform the  duties of the appointment for which  acting rank is granted or the  vacancy ceases to exist except as  provided otherwise.  (e)     On casual, annual or accumulated  annual leave    (i)     On casual leave An individual will retain paid  acting rank or paid lance  appointment during the period  of casual leave and no acting  promotion will be permissible  in his place.  Acting rank will,  however, be relinquished from  the date of overstayal of casual  leave except when the period of  casual leave and its overstayal  is regularized against annual  leave entitlement for the year  in which casual leave is taken  and as Special Leave vide Rule  6 (d) (ii) of Leave Rules for the  Service, Vol. I- Army Cases of  overstayal of casual leave  owing to sickness will be dealt  with as in clause g (ii) below. (ii)    On annual or accumulated  annual leave      An individual will retain paid  acting rank or paid lance

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appointment during the period  of annual or accumulated  annual leave and no acting  promotion will be permissible  in his place.  Acting rank will,  however, be relinquished from  the date of expiry of such leave  unless the overstayal is due to  natural calamities and the  period of overstayal is  regularized as Special Leave  vide Rule 6(d) (ii) of Leave  Rules for the Services, Vol. I.- Army. xxx             xxx                     xx

       Part II deals with Substantive Ranks.

The withdrawal of ranks of Naik was on account of his  unauthorized absence and was not, therefore, punishment in  that sense. Section 80 on which strong reliance has been  placed reads as under:

"80.    Sitting in closed court \026 (1) A court- martial shall, where it is so directed by these  rules, and may in any other case on any  deliberation amongst the members, sit in  closed court. (2)     No person shall be present in closed  court except the members of the court, the  judge-advocate (if any) and any officers under  instruction. (3)     For the purpose of giving effect to the  foregoing provisions of the rule, the court- martial may either retire or cause the place  where they place where they sit to be cleared of  all other persons not entitled to be present. (4)     Except as hereinbefore mentioned all  proceedings, including the view of any place,  shall be in open court and in the presence of  the accused subject to sub-rule (5). (5)     The court shall have the power to exclude  from the court any witness who has yet to give  evidence or any other person, other than the  accused, who interferes with its proceedings."

A bare reading of the provisions along with the Army  Instructions make it clear that Section 80 has no application  to the facts of the present case.   

So far as legality of the Court Martial is concerned, the  learned Single Judge has found that the appellant was not  holding substantive rank of Naik. The rank which was  temporarily given was liable to be withdrawn in case of  absence from duty and somebody else had to hold that post.   This situation arises when a person who was acting as Naik is  not available.

The next ground of challenge relates to legality of  proceedings before the Court Martial.   

Though Court Martial proceedings are subject to judicial  review by the High Court under Article 226 of the  Constitution, the court-martial is not subject to the  superintendence of the High Court under Article 227 of the

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Constitution.  If a court-martial has been properly convened  and there is no challenge to its composition and the  proceedings are in accordance with the procedure prescribed  the High Court or for that matter any court must stay its  hands.  Proceedings of a court-martial are not to be compared  with the proceedings in a criminal court under the Code of  Criminal Procedure, 1973 where adjournments have become a  matter of routine though that is also against the provisions of  law.  It has been rightly said that court martial remains to be  significant degree, a specialized part of overall mechanism by  which the military discipline is preserved. It is for the special  need for the armed forces that a person subject to Army Act is  tried by court-martial for an act which is an offence under the  Act.  Court-martial discharges judicial function, and to a great  extent, is a court where provisions of the Evidence Act are  applicable.  A court-martial has also the same responsibility  as any court to protect the rights of the accused charged  before it and to follow the procedural safeguards.  If one looks  at the provisions of law relating to court-martial in the Army  Act, the Army Rules, Defence Service Regulations and other  Administrative Instructions of the Army, it is manifestly clear  that the procedure prescribed is perhaps equally fair if not  more than a criminal trial provides to the accused.  When  there is sufficient evidence to sustain conviction, it is  unnecessary to examine if pre-trial investigation was adequate  or not.  Requirement of proper and adequate investigation is  non-jurisdictional and any violation thereof does not invalidate  the court-martial unless it is shown that accused has been  prejudiced or a mandatory provision has been violated. One  may usefully refer to Rule 149 quoted above.  The High Court  should not allow the challenge to the validity of conviction and  sentence of the accused when evidence is sufficient, court- martial has jurisdiction over the subject matter and has  followed the prescribed procedure and it is within its powers to  award punishment.                     Above position was highlighted in Union of India and Ors.  v. IC \026 14827, Major A. Hussain  (AIR 1998 SC 577).

The inevitable result is that the appeal is without merit,  deserves dismissal which we direct.  However, liberty as given  to the appellant by the Division Bench, having not been  assailed by the respondents, remains unaltered.