Case: Vidya Prakash Vs. Union Of India &amp; Ors

3. The facts of the case in brief are that the appellant was appoin-ted to the post of Craftsman (Jawan) on November 23,1973. He 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 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 subse-quently 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 Panagaih. 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, Sikandarabad 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 doctor4. 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 appoin-ted his close associate Captain K.J. Singh to record summary of evidence. The appellant was not given proper 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 martial5. 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 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 direc-tion to the respondents to pay the entire arrears of salary and allowances which are legally due to him6. 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 proceedings7. It is against this judgment and order, the impugned appeal on special leave has been preferred before this Court.

Reasoning:
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 applicant admitted his guilt of absenting from duty without taking any leave.