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PETITIONER: VIDYA PRAKASH

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT10/02/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1988 AIR  705            1988 SCR  (2) 953  1988 SCC  (2) 459        JT 1988 (1)   284  1988 SCALE  (1)313

ACT:      Army Act, 1950/Army Rules, 1954: Sections 39(a), 71(e), 108 and  116/Rule  39(2)-Jawan-Absent  without  leave-Charge sheeted-Trial by Summary Court Martial-Held guilty-Dismissed from service-In  writ  petition  assailing  constitution  of summary  court   martial   by   Commanding   Officer-Whether Commanding officer  of Corps  competent  to  constitute  the summary court martial-Held order of dismissal valid.

HEADNOTE: %      The appellant  was appointed  to the  post of Craftsman (Jawan) on  November 23,  1973. He was later promoted to the post of  Naik in  view of his good services and subsequently confirmed in  that post.  He served at various places in the country, including  field areas.  He was,  however, reverted from the  post of  Naik to  the post  of Craftsman  (Jawan). While he  was in  service he incurred the displeasure of the Commanding Officer  of his  regiment (Major)  as he  did not comply with his directions. He was consequently harassed and maltreated in  various ways.  Unable to  bear the torture he surrendered to  the mercy  of the  Commanding Officer of the Battalion (Colonel).  He, however, directed him to surrender to the  Commanding Officer  of his  regiment and  gave him a certificate of  surrender. The  Commanding Officer  took him into custody.  He was  charge-sheeted for  the  purpose  and sentenced to  42  days  imprisonment  in  military  custody. During the  period of his remaining in military custody, his family suffered harassment. The appellant on 12th September, 1984 left  station with his wife and children without taking any leave. He stated that he became unwell and was under the treatment of  a doctor.  When he  reported back  to his unit with the  fitness certificate  the Commanding Officer of his regiment served  him with a charge-sheet on November 2, 1984 and directed that he be tried by a summary court-martial. On November 9,  1984, the  order of  dismissal of the appellant from service  was made  by the  Commanding  Officer  in  the Summary Court Martial.      The appellant  challenged the aforesaid order in a writ petition to  the High Court, and sought quashing of the same contending: that  the Commanding  Officer  was  not  legally

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competent to preside a summary 954 court martial, that the punishment of dismissal from service was disproportionate  to the  charge, that  he was  denied a fair opportunity  to defend  himself, and  was in  fact  not permitted to question the witnesses.      A Division  Bench of  the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court Martial that the appellant was not allowed to be  represented by  his counsel,  that no  objection  was taken as  to the competence of the Commanding Officer to act as a  Judge in the Summary Court Martial, that the appellant had earlier  been convicted four times and entries were made in red  ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the  court   martial  proceedings,  there  was  as  such  no illegality in  the order  of dismissal  made  in  the  court martial proceedings.      Dismissing the Appeal, ^      HELD: 1.  Four kinds of courts martial are specified in Section 108  of the  Army Act,  1950. These  are:(a) General Courts-Martial; (b)  District  Courts-Martial;  (c)  Summary General  Courts-Martial   and  (d)  Summary  Courts-Martial. [959G-H; 960A]      2. Section  116 of  the Act  says that  a summary court martial may  be held  by the Commanding Officer of any corps or department  or detachment  of the  regular Army,  and  he shall alone  constitute the  court, and that the proceedings shall be  attended throughout by two other persons who shall be Officers  or  junior  commissioned  officers  or  one  of either, and  who shall not as such, be sworn or affirmed. It is only  in the  case if  general court  martial or district court martial  that Rule  39(2) of  the Army  Rules 1954  is applicable and  the Commanding  Officer is  not competent to convene general or district court martial. [960B,D]      3. In  the instant  case, the summary court martial was held by  the Commanding  Officer of  the Corps,  Major  P.S. Mahant and  there were two other officers Captain K.J. Singh and another  officer to  attend  the  proceedings.  In  such circumstances, the  summary court  martial had been convened by the Commanding Officer according to the provisions of the Army Act, 1950. [960C, E-F]      4. Section 39(a) of the Act specifies that to be absent without leave  constitutes an  offence, while  Section 71(e) provides dismissal  from service  as one  of the punishments for such an offence. [960F] 955      5. The  appellant  in  the  instant  case,  undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, was charge-sheeted for the said  offence and  tried  by  a  summary  court  martial convened by  the Commanding  Officer. After  giving him  due opportunity it  was held  that the  appellant was previously punished also  for the  offence of absence from duty on four occasions and  there was  a red  ink entry.  Considering all this, in  the  summary  court  martial  proceedings  he  was convicted and  sentenced to the punishment of dismissal from service. The  submission on  behalf of  the  appellant  that punishment is  disproportionate  to  the  charge  is  wholly unsustainable. As such the said order of dismissal cannot be challenged as  disproportionate to  the  charge  or  as  one tainted  with  illegality.  It  is  also  evident  from  the judgment of  the High  Court that the appellant admitted his guilt of  absenting from  duty without  any leave.  [960G-H;

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961A-B,F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2107 of 1987.      From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985.      R.K. Garg and D.K. Garg for the Appellant.      M.S. Rao and C.V. Subba Rao for the Respondents.      The Judgment of the Court was delivered by      RAY, J.  Special  leave  granted.  Heard  arguments  of learned counsel for the parties.      This appeal  by special  leave is  against the judgment and order  dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985.      The facts  of the  case in brief are that the appellant was appointed  to the  post of Craftsman (Jawan) on November 23, 1973.  We was  sent  to  3  E.M.E.  Centre,  Bhopal  for training. After completion of his two years’ training he was posted to  80 EME Battalion C/o 56. A.P.O. on July 25, 1975. The appellant  in view  of his  good service was promoted to the post  of Naik  and subsequently he was confirmed in that post. During  his service  as  Jawan  and  as  a  Naik,  the appellant served  at various places in the country including the field area at Punj Sector in 956 Jammu & Kashmir. The appellant was reverted from the post of Naik to  the post  of Jawan  (Craftsman) by  Lt.  Col.  G.S. Srivastava and  he was,  thereafter, directed  to report  to NEFA. The  appellant joined  his post  in NEFA. However, the appellant  was   subsequently  transferred   and  posted  in Panagarh. One  Major N.K.  Tiwari  who  was  the  Commanding Officer of  the said  regiment became  very much  displeased with the  appellant as he did not comply with his directions to go  to Kanpur  to bring his personal goods from Kanpur to Panagarh. The  appellant  was  harassed  and  maltreated  in various ways. The appellant being unable to bear the torture caused  to   him  approached  Col.  R.K.  Mehta,  Commanding Officer, EME Depot Battalion, Sikandrabad and surrendered to the mercy  of the  said Colonel.  The  Colonel  advised  the appellant to go back to Panagarh and report to his Unit. The appellant was sent with the certificate of surrender. On his return, the  appellant was  not permitted  to join his duty; but he was taken into the custody immediately and thereafter he was  directed by Major Tiwari to be treated without leave for three  days and should be court-martialled for the same. The appellant  was charge-sheeted for the purpose and he was convicted to  42  days  imprisonment  in  military  custody. During the  period of  his remaining in military custody, he was given  only a  small sum of Rs.60 and as such his family had to  suffer much  harassment. The  appellant, however, on 12th  September,  1984  left  Panagarh  with  his  wife  and children for  Kanpur without  taking any leave. It is stated that he  became unwell  and he  was under the treatment of a doctor.      After coming round he reported to Panagarh and reported in his  Unit with the fitness certificate. The appellant was called by  the Officer  Commanding and  he was served with a charge-sheet on  November 2,  1984 wherein it was ordered by Major P.S.  Mahant that  the appellant be tried by a Summary Court  Martial.  It  has  been  alleged  that  Major  Mahant appointed his  close associate  Captain K.J. Singh to record summary of  evidence. The  appellant was  not  given  proper

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opportunity  to  defend  himself.  In  the  proceedings  the appellant was  not allowed  to raise  any objections. On 9th November, 1984,  the order  of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding Officer, in the summary court martial.      The appellant  challenged this order by a writ petition being Civil  Writ Petition  No. 2503  of 1985  on the ground that the  Commanding Officer  was not  legally competent  to preside a  summary court  martial. It was also stated in the petition that  the punishment  of dismissal from service was disproportionate to the charge; he was denied a fair 957 opportunity to  defend himself and was in fact not permitted to ask  questions to  the witnesses. The appellant so prayed for  issuance  of  an  appropriate  writ  for  quashing  the impugned order  of dismissal  from service  and also  for  a direction to  the respondents  to pay  the entire arrears of salary and allowances which are legally due to him.      The writ  petition was heard by a Division Bench of the High Court  at Delhi  and it  was dismissed on March 3, 1986 holding inter  alia that  no objection  was taken before the Summary Court  Martial that the appellant was not allowed to be represented  by his counsel. It was also held that in the writ petition no objection was taken as to the competence of Major P.S.  Mahant to  act as  a Judge  in the Summary Court Martial nor  objection was  made to  the effect that Captain K.J. Singh  ordered him  to keep his mouth shut. It was also observed that  besides Major  P.S. Mahant  who was presiding Summary Court  Martial there  were two  other  members.  The appellant, it  was held,  had earlier  been  convicted  four times and  entries were  made in  the red ink. The appellant was absent from duty without any leave and he pleaded guilty before the  court martial  proceedings and as such there was no illegality  in the  order of  dismissal made in the court martial proceedings.      It is  against this  judgment and  order, the  impugned appeal on  special leave  has  been  preferred  before  this Court.      An affidavit  in counter  sworn by one Capt. D.K. Ghosh on behalf  of the respondents has been filed. In paragraph 4 of the said affidavit, it has been submitted that Rule 39(2) of  the  Army  Rules  deals  with  the  disqualification  of officers for  General and  District Courts Martial. The said rule says  that an  officer is disqualified for serving on a general or  district court  martial if  he is the Commanding Officer of the accused. The appellant has assailed the court martial  proceedings  on  the  ground  that  the  Commanding Officer served  on the  Court Martial  and as such the court martial proceedings  are in breach of Rule 39(2) of the Army Rules, 1954.  It has  been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court  Martial constituted  under Section 116 of the Army Act,  1950. It  has been  further stated that a Summary Court Martial  may be  held by  a Commanding  Officer of any Corps, Department  or Detachment  of the  regular  army,  as stipulated by  Section 116(c)  of the  Army Act. It has been submitted that  the appellant  has been  tried by  a Summary Court Martial and he was sentenced to dismissal from 958 service on  November 9,  1984. It  has also been stated that the proceedings  have been  attended throughout by two other persons in  accordance with the provisions of Section 116(1) of the  said Act.  It has  been averred  that in  a case  of Summary Court  Martial as  per Section  116 of the said Act,

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the Commanding Officer shall alone constitute the Court. The proceedings  of   the  Court   shall  be   attended  by  two officers/JCOs or  one of  either. It has been further stated that the  appellant incurred  the following  red ink entries while serving  with various units prior to the summary court martial:           (i)  14 days  R.I. in  military custody  under  AA      (Army Act)  Sec. 39(a)  on September  3, 1975 by 80 EME      Bn.           (ii) 3 days  R.I. in  military custody  under A.A.      Sec. 39(a) on 22nd June, 1979 by 1 EME Centre.           (iii)     Reduced to  the rank under AA Sec. 63 on      24 January, 1983 by 174 Fd. Regt.           (iv) 28 days  R.I. and  14 days  detention in mil.      custody under  AA Sec.  39(a) on 10th July, 1984 by 986      AD. Regt WKSP.      The appellant  was  issued  a  show  cause  notice  for discharge  being  unsuitable  inefficient  soldier  on  30th August, 1984 to which he replied on 2nd September, 1984. The appellant  again   became  absent   without  leave  on  13th September, 1984.  The appellant  did  not  inform  the  Unit authority again  of  taking  his  family  to  Kanpur.  While leaving for  Kanpur he  locked his  quarter securely to keep possession of  the family  accommodation. The proceedings of the summary  court  martial  were  in  accordance  with  the provisions of  the Army  Act and the order of dismissal from service of the appellant is a valid order.      A rejoinder  was filed  by  the  appellant  wherein  he reiterated  that  the  order  of  dismissal  passed  by  the Commanding  Officer,  Major  P.S.  Mahant  was  illegal  and contrary to  the provisions  of natural justice. The charge- sheet was  given to  the appellant  by the  aforesaid  Major alleging  that  the  appellant  remained  absent  from  13th September, 1984  to 30.10.1984 without leave from the Unit’s line and  the said  officer himself  made an  order that the appellant shall  be tried by a summary court martial on that day. The said officer constituted the court of summary court martial and  himself presided  over the  same. The  order of dismissal was  passed in  violation of  the rules of natural justice. It  has also  been submitted that the conviction of the appellant 959 was  in   utter  breach   of  Articles  14  and  21  of  the Constitution of  India and as such the said order was liable to be set aside.      The first submission on behalf of the appellant is that the  constitution  of  the  Summary  Court  Martial  by  the Commanding Officer  Major P.S. Mahant is in contravention of Rule 39(2)  of the Army Rules, 1954. the relevant provisions of Rules 39 are in the following terms:           "Rule 39 ........           (2) An  officer is  disqualified for  serving on a           general or district court martial if he:           (a) is an officer who convened the court; or           (b)  is  the  prosecutor  or  a  witness  for  the           prosecution; or           (c) investigated the charges before trial, or took           down the summary of evidence, or was a member of a           court of  inquiry respecting  the matters on which           the charges  against the  accused are  founded, or           was  the  squadron,  battery,  company,  or  other           commander, who  made preliminary  inquiry into the           case, or  was a member of a previous court-martial           which tried  the accused  in respect  of the  same           offence; or

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         (d) is  the commanding  officer of the accused, or           of the corps to which the accused belongs; or           (e) has a personal interest in the case."      Rule  39(2)   provides  that  an  officer  who  is  the Commanding Officer  of the  accused or of the corps to which the accused  belongs or  who is  an officer who convened the court or  who  is  the  prosecutor  or  a  witness  for  the prosecution and  who has a personal interest in the case, is not eligible  for serving  on a  general or  district  Court Martial. There are four kinds of court martials specified in Section 108 of the Army Act, 1959. These are:      (a) General Courts-Martial;      (b) District Courts-Martial 960      (c) Summary General Courts-Martial;      (d) Summary Courts-Martial      Section 116  of the  said Act says that a summary court martial may  be held  by the commanding officer of any corps or department  or detachment  of the  regular Army,  and  he shall alone  constitute the  court. It further provides that the proceedings  shall be  attended throughout  by two other persons  who   shall  be  officers  or  junior  commissioned officers or  one of  either, and  who shall  not as such, be sworn or  affirmed. In  the instant  case  a  summary  court martial was  held by  the  Commanding  Officer,  Major  P.S. Mahant in  accordance with  the provisions of Section 116 of the  Army   Act.  The   Commanding  Officer  of  the  Corps, Department of  Detachment of  the Regular  Army to which the appellant belongs, is quite competent in accordance with the provisions of  Section 116  of the  said Act and as such the constitution of  the summary court martial by the Commanding Officer of  the Corps  cannot be  questioned as  illegal  or incompetent. It  is neither  a general  court martial  nor a district court  martial where the appellant’s case was tried and decided.  In case  of general  court martial or district court  martial  Rule  39(2)  of  the  Army  Rules,  1954  is applicable and  the Commanding  Officer is  not competent to convene general or district court martial. The summary court martial was  held by  the Commanding  Officer of  the corps, Major P.S. Mahant and there are two other officers including Capt.  K.J.   Singh  and   another  officer  to  attend  the proceedings.  In   such  circumstances,  the  summary  court martial having  been convened  by the  Commanding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails.      Chapter 6  of the  Army Act  specifies the offences and also  the  punishments  for  such  offences.  Section  39(a) specifies that  to be  absent without  leave constitutes  an offence and Section 71(e) of the said Act provides dismissal from service  as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any  leave from  the lines as required under the Army Act. The  appellant was  charge-sheeted for the said offence and he  was tried by a summary court martial convened by the Commanding Officer  and after  giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a  red ink  entry. Considering  all this  in the summary court martial  proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission 961 that the  punishment is disproportionate to charge is wholly unsustainable. The  summary  court  martial  constituted  by Major P.S.  Mahant after considering the evidences has found the appellant  guilty of  the alleged charge and awarded the

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said punishment  in accordance  with the  provisions of  the Army Act.  As such  the said  order of  dismissal cannot  be challenged as  disproportionate to  the  charge  or  as  one tainted with illegality.      It has  been urged  on behalf  of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary court  martial. It  has also  been urged that at the time of  taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine  the witnesses  examined on  behalf of the prosecution, thereby  the principles of natural justice have been violated.  It appears  that the appellant has not filed any objection  before the summary court martial objecting to the presiding of the court martial proceedings by Major P.S. Mahant nor  any such  objection had  been taken  in the writ petition moved  before the  High Court.  It is for the first time in  the appeal  which the  appellant filed  before  the Chief  of   the  Army   Staff  (Competent  Authority),  Army Headquarters, New  Delhi that  he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings. It has been rightly held by the High Court that this is  an after-thought and as such this submission cannot be permitted  to be  made by  the appellant  after the court martial  proceedings   were  completed   and  the  order  of dismissal from  service  was  made.  As  regards  the  other objection that  he was  directed by Capt. K.J. Singh to keep his mouth  shut, it is also without any substance in as much as it  appears from  the summary  of the  evidences recorded that the  appellant in  fact cross-examined  the prosecution witnesses. It is also evident from the judgment of the Delhi High  Court   that  the  appellant  admitted  his  guilt  of absenting from duty without taking any leave.      Considering all  these  facts  and  circumstances,  the judgment and order passed by the High Court of Delhi appears to us as unassailable. We, therefore, dismiss the appeal and affirm the  judgment and order of the High Court. There will be no order as to costs. N.V.K.                                     Appeal dismissed. 962