Case: Union Of India  Vs. Dinesh Prasad

as he was denied a fair trial. In our view, the learned Single Judge was clearly in error in allowing such argument. Firstly, the argument was raised without any foundation in the writ petition. No plea of actual or likelihood of bias was raised in the writ petition. There was also no plea taken in the writ petition that he was denied fair trial in the course of summary court-martial. Secondly, and more importantly, the learned Single Judge overlooked and ignored the statutory provisions referred to hereinabove. The Division Bench also failed in considering the matter in right perspective and in light of the provisions in the Army Act and the Army Rules. 19. Absence without leave is one of the offences under the Army Act. On conviction by the court-martial of the said offence, the offender is liable to suffer imprisonment for a term which may extend to three years. Alternatively, for such offence any of the punishments provided in Section 71 may be awarded by the court- martial. Clause (e) of Section 71 provides dismissal from the service as one of the punishments awardable by the court-martial for such an offence. The respondent was served with the charge sheet which was in conformity with Rule 31 of the Army Rules and Sections 39 and 116 of the Army Act. The respondent admittedly absented himself from unit line for 808 days. He did not obtain any leave. He pleaded guilty before the summary court-martial. The summary court-martial followed the procedure provided under Rule 116 of the Army Rules and awarded punishment of his dismissal from service. Neither constitution of the summary court-martial nor the procedure followed by that court can be said to suffer from any illegality. The facts are eloquent inasmuch as respondent remained absent without leave for more than two years in the service of about five years. The order of dismissal, in the facts and circumstances of the case, by no stretch of imagination, can be said to be disproportionate or oppressive or founded on extraneous consideration. 20. The decision of this Court in Vidya Parkash v. Union of India and Ors [((1988) 2 SCC 459) ]. squarely applies to the present situation. Unfortunately, the judgment in Vidya Parkash1 was not brought to the notice of the Single Judge and the Division Bench. The facts in Vidya Parkash1 were these: the appellant was posted as Jawan in Panagarh. He left Panagarh with his wife and children for Kanpur without taking any leave. According to Vidya Parkash, he became unwell and he was under treatment of a doctor. When he reported to Panagarh unit with his fitness certificate, he was served with a charge sheet wherein it was ordered by Major P.S. Mahant that he would be tried by summary court-martial. The summary court- martial which was presided over by Major P.S. Mahant ordered his dismissal from service. Vidya Parkash challenged that order in a writ petition before Delhi High Court. Inter alia, a plea was set up that the commanding officer Major P.S. Mahant was not legally competent to preside over a summary court-martial. The Division Bench of the Delhi High Court dismissed the writ petition. It was held that no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in summary court-martial. It was from the order of the Delhi High Court that the matter reached this Court. This Court considered Sections 108 and 116 of the Army Act, Rule 39(2) of the Army Rules and held that the summary court martial held by the commanding officer Major P.S. Mahant was in accordance with the provisions of Section 116 of the Army Act. This Court further observed : “13 - The Commanding Officer of the Corps, Department or 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 appellants 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.” 21. The legal position exposited by this Court in Vidya Parkash renders the impugned judgments unsustainable. 22. Learned counsel for the respondent placed heavy reliance upon the decisions of this Court in Punjab National Bank and Ors. v. Kunj Behari Misra [(1998) 7 SCC 84] , Maneka Gandhi v. Union of India & Anr. [AIR 1978 SC 597 ] and Roop Singh Negi v. Punjab National Bank & Ors. [(2009) 2 SCC 570] , in support of his submission that the order of dismissal from service by the summary court-martial was in violation of principles of natural justice. We are afraid none of these decisions has any application to the facts of the present case. There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the court-martial.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the