UNION OF INDIA & ORS.versusDINESH PRASAD

                         [2012] 11 S.C.R. 440


 A                    UNION OF INDIA & ORS.
                                   v.
                           DINESH PRASAD
                   {Civil Appeal No. 1961 of 2010)

                         OCTOBER 30, 2012
 B
              [R.M. LODHA AND ANIL R. DAVE, JJ.]

          Army Act, 1950 - s.116 - Respondent, washermanl
    rifleman in the Assam Rifles, charge-sheeted for remaining
C absent without leave for more than two years - Dismissal of
    respondent by summary court-martial - Challenged, on
    ground of violation of the principles of natural justice -
    Competence of the commanding officer of the respondent,
    who had signed and issued the charge sheet, to convene and
o conduct the summary court-martial against the respondent
   questioned - High Court held that the summary court-martial
   proceedings held against the respondent were vitiated on
   account of likelihood of bias, and thus, set aside his dismissal
   - On appeal, held: Col. 'S', the commanding officer of the
E respondent, did not suffer from any disability, ineligibility or
   disqualification to serve on the summary court-martial to try
   the respondent despite the fact that he had signed and issued
  the charge sheet against the respondent - As a matter of fact,
  the competence or eligibility of Col. 'S' to serve on the
F summary court-martial for trial of the respondent was not at
  all put in issue by the respondent in the entire writ petition -
  It was only in the course of arguments before the High Court
  that such a submission was made on behalf of the respondent
  - No plea of actual or likelihood of bias was raised in the writ
G petition - There was also no plea taken in the ~rit petition that
  the respondent was denied fair trial in the course of summary
  court-martial - Further, and more importantly, High Court
  overlooked and ignored the statutory provisions -
  Respondent was served with the charge sheet which was in

H                               440
    UNION OF INDIA & ORS. v. DINESH PRASAD                 441


conformity with the Army Rules and the Army Act - Neither A
constitution of the summary court-martial nor the procedure
followed by that court could be said to suffer from any illegality
- There was no violation of principles of natural justice -
Respondent pleaded guilty before the summary court-martial
and the summary court-martial found him guilty - It was only B
then that the order of dismissal of respondent was passed -
 The order of dismissal, in the facts and circumstances of the
case, could not be said to be disproportionate or oppressive
 or founded on extraneous consideration - Army Rules, 1954
 - Rule 31 and 39.                                                 c
     Army Act, 1950 - s. 108 - Court-martial - Kinds of - Held:
The courts-martial are of four kinds, (a) general court-martial;
(b) district court-martial; (c) summary general court-martial;
and (d) summary court-martial.
                                                                   D
    The respondent was a washerman/rifleman in the
Assam Rifles. While in active service, he unauthorizedly
remained absent for 808 days. He was served with a
charge sheet under Section 39(a) of the Army Act, 1950
and a summary court-martial was constituted to try him.            E
The respondent pleaded guilty whereafter the summary
court-martial passed order dismissing respondent from
service. The punishment of dismissal was confirmed by
the Reviewing Officer.
     The respondent filed writ petition challenging the F
 punishment of dismissal. He explained in the writ petition
 the reason for his absence stating that he had lost his
 mental balance while in service and was suffering from
 mental depression. However, at the time of arguments
 before a Single Judge of the High Court, he submitted that G
 the very Commandant of the Battalion, who had signed
 and issued the charge sheet to him, convened and
  presided over the summary court-martial and on
  conclusion thereof the punishment of dismissal from
  service was imposed, which vitiated the court-martial H
    442     SUPREME COURT REPORTS             [2012] 11 S.C.R.

 A proceedings as the respondent was denied a fair trial.
        The Single Judge held that while issuing a charge
   sheet the Commandant had tentatively made up his mind
   that there was some material against the delinquent and
  accordingly, after having issued charge sheet, the
8 Commandant ought not to have convened the court-
  martial and in any event ought not to have conducted the
  proceedings of the court-martial leading to the dismissal
  of respondent. The Single Judge held that in the facts of
  the case, the proceedings of the summary court-martial
C held against the respondent were vitiated on account of
  likelihood of bias and accordingly set aside his dismissal.
  The Division Bench of the High Court declined to interfere
  with the conclusion reached by the Single Judge, and
  therefore the instant appeal.
D
       Allowing the appeal, the Court
       HELD: 1. Section 3(v) of the Army Act, 1950 defines
   'commanding officer'. Section 108 of the Army Act
   describes the kinds of courts-martial. Section 116
E provides that the summary court-martial may be held by
   the commanding officer of any corps, department or
  detachment of the regular Army, and he shall alone
  constitute the court. As per sub-section (2) of Section 116,
  the proceedings shall be attended throughout by two
F other persons who shall be officers or junior
  commissioned officers or one of either, and who shall not
  as such, be sworn or affirmed. Section 71 provide: for
  punishments awardable by courts-martial. One of the
  punishments awardable by the courts-martial is dismissal
G of the delinquent from service. [Paras 6, 9, 10 and 11]
  [448-F; 450-C-F-G]
       2. The Army Rules, 1954 were framed by the Central
  Government in exercise of its powers under Section 191
  for the purposes of carrying into effect the provisions of
H the Army Act. Rule 31 of the Army Rules provides that the
   UNION OF INDIA & ORS. v. DINESH PRASAD            443


charge sheet shall be signed by the commanding officer A
of the accused and shall contain the place and date of
such signature. Rule 39 deals with ineligibility and
disqualification of officers for court-martial. Rules 106 to
133 of the Army Rules provide for the proceedings for
conduct of summary court-martial. The summary court- B
martial has to follow the procedure provided in these
Rules. Arraignment of the accused is provided in Rule
111. Rule 115 deals with general plea of 'guilty' or 'not
guilty'. Rule 116 deals with the procedure after plea of
 'guilty'. Rule 123 provides for procedure on conviction c
 and Rule 124 deals with the sentence. Rule 187(3)(a)
 provides that every battalion is 'corps' for the purpose of
 summary court-martial. [Paras 12, 13, 14 and 15] [450-H;
 451-A-B-C; 452-B-C; 453-H; 454-A]
    3. Section 4 of the Army Act makes applicable its D
provisions to certain forces under the Central
Government. By virtue of Section 4 of the Army Act read
with S.R.0.318 dated 6.12.1962 (as amended by S.R.O.
325 dated 31.08.1977), the Army Act has been made
applicable to the Assam Rifles. The respondent was thus E
subject to the provisions of the Army Act. [Paras 7, 16]
[449-B-C; 454-B]
      4. The courts-martial are of four kinds, (a) general
 courts-martial; (b) district courts-martial; (c) summary
 general courts-martial; and (d) summary courts-martial as F
 per Section 108. Rule 39 of the Army Rules deals with
 ineligibility and disqualification of officers for court-
 martial. In terms of this Rule, an officer is disqualified for
 serving on general court-martial or district court-martial
 if he is an officer who convened the court. A commanding G
 officer of the accused or of the corps to which the
 accused belongs is also disqualified for serving on
 general court-martial or district court-martial. However, no
 disqualification is attached to the officer who convened
 the court or the commanding officer of the accused or of H
     444     SUPREME COURT REPORTS               [2012] 11 S.C.R.


A the corps to which the accused belongs for serving on
   the other two kinds of courts-martial, namely, summary
  general courts-martial or summary courts-martial. There
   is neither any impediment nor embargo in the Army Act
  or the Army Rules for an officer who convened the
B summary general courts-martial or summary courts-
  martial or the commanding officer of the accused or of
  the corps to which the accused belongs to serve on such
  court. Section 116 of the Army Act rather provides that a
  summary court-martial may be held by the commanding
C officer of any corps, department or detachment of the
  regular Army and he shall alone constitute the court
  (summary court-martial). [Para 17] [454-D-H; 455-A]
      5.1. If the provision contained in Section 116 of the
  Army Act is read with Rules 31 and 39 of the Army Rules,
D there remains no manner of doubt that Col. 'S', the
  commanding officer of the respondent, did not suffer
  from any disability, ineligibility or disqualification to serve
  on the summary court-martial to try the respondent
  despite the fact that he signed and issued the charge
E sheet against the respondent. [Para 17] [455-A]
        5.2. As a matter of fact, the competence or eligibility
  of Col. 'S' to serve on the summary court-martial for trial
  of the respondent was not at all put in issue by the
  respondent in the entire writ petition. It was only in the
F course of arguments before the Single Judge that such
  a submission was made on behalf of the respondent. The
  Single Judge was clearly in error in allowing the said
  argument. Firstly, the argument was raised without any
  foundation in the writ petition. No plea of actual or
G 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 Single Judge
  overlooked and ignored the statutory provisions. The
H Division Bench also failed in considering the matter in
    UNION OF INDIA & ORS. v. DINESH PRASAD              445

right perspective and in light of the provisions in the Army   A
Act and the Army Rules. [Para 18] [455-F-H; 456-A-B]
      5.3. 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 B
imprisonment for a term which may extend to three years. ·
Alternatively, for such offence any of the punishments
provided in Section 71 may bi! awarded by the court-
martial. Clause (e) of Section 71 provides dismissal from
the service as one of the punishments awardable by the C
 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- D
 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 E
 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 F
  disproportionate or oppressive or founded on extraneous
  consideration. There was no violation of principles of
  natural justice. No illegality was committed in convening
  the summary court-martial by the commanding officer nor
  there was any illegality in the conduct of the summary G
   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. Further, no reasons were required to be H
     446     SUPREME COURT REPORTS               (2012] 11 S.C.R.


A recorded by the court-martial. [Paras 19, 22] [456-B-F;
  458-D-F]

          Vidya Parkash v. Union of India and Ors. (1988) 2 SCC
     459: 1988 (2) SCR 953 - held applicable.

         Punjab National Bank and Ors. v. Kunj Behari Misra
     (1998) 7 SCC 84: 1998 (1) Suppl. SCR 22; Maneka Gandhi
     v. Union of India & Anr. AIR 1978 SC 597: 1978 (2) SCR 621
     and Roop Singh Negi v. Punjab National Bank & Ors. (2009)
     2 SCC 570: 2008 (17) SCR 1476 - held inapplicable.
c
                          Case Law Reference:
       1988 (2) SCR 953           held applicable      Para 20
       1998 (1) Suppl. SCR 22 held inapplicable        Para 21
D      1978 (2) SCR 621           held inapplicable    Para 21
       2008 (17) SCR 1476         held inapplicable    Para 21

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1961 of 2010.
E
        From the Judgment & Order dated 28.08.2008 of the High
    Court of Gauhati at Gauhati in Writ Appeal No. 364 of 2007.

      R. Balasubramanium, Asha G. Nair, Vikash Malhotra,
F Santosh Kumar (For B. Krishna Prasad) for the Appellants.

        Apurb Lal, Daleep Singh (For Susmita Lal) for the
    Respondent.

        The Judgment of the Court was delivered by
G
         R.M. LODHA, J. 1. This appeal raises the question of the
    competence of the commanding officer of the accused, who
    signed and issued the charge sheet, to convene and conduct
    the summary court-martial against that very accused.
    UNION OF INDIA & ORS. v. DINESH PRASAD                447
                [R.M. LODHA, J.]
      2. The above question arises in this way. The respondent, A
Dinesh Prasad, joined the 11th Assam Rifles as washerman/
rifleman in 1995. For the period between 26.07.1998 and
11.10.2000 (FN), he absented himself from unit unauthorisedly
while in active service. On 03.08.2001, Col. A.S. Sehrawat,
Commandant, under his signature served a charge sheet under B
Section 39(a) of the Army Act, 1950 (for short, 'Army Act') on
the respondent for the absence without leave for 808 days. The
Commandant constituted summary court-martial to try the
 respondent for the above charge. The respondent pleaded
 guilty to the charge before the summary court-martial. The C
 summary court- martial, after taking into consideration the facts
 and circumstances of the case, passed an order on 04.08.2001
 dismissing the respondent from service. The Reviewing Officer
 has confirmed the punishment of dismissal from the service
 awarded to the respondent.
                                                                   D
         3. The respondent challenged the punishment awarded to
  him by the summary court-martial in a writ petition before the
  Gauhati High Court. The respondent (petitioner therein)
  explained in the writ petition the reason for his absence.
  According to him, he lost his mental balance while in service E
  and was suffering from mental depression. At the time of
  arguments before the Single Judge, it was submitted on his
  behalf that the very Commandant of the Battalion, who signed
  and issued the charge sheet to him, convened and presided
  over the summary court-martial and on conclusion of which the F
  punishment of dismissal from service was imposed which
  vitiated the court-martial proceedings as he was denied a fair
  trial.
      4. The learned Single Judge held that while issuing a
 charge sheet the Commandant tentatively made up his mind G
 that there was some material against the delinquent and
 accordingly, after having issued charge sheet, Col. A.S.
 Sehrawat, who was Commandant of the Battalion, ought not to
  have convened the court-martial and in any event ought not to
                                                                H
     448      SUPREME COURT REPORTS                   [2012] 11 S.C.R.


 A have conducted the proceedings of the court-martial leading to
    the punishment of dismissal from the service. The Single Judge
    held that in the facts of the case, the proceedings of the
   summary court-martial held against the delinquent were vitiated
   on account of likelihood of bias. By the judgment and order
 B dated 07.09.2006, the Single Judge allowed the writ petition
   and set aside the respondent's dismissal from service. It was
   observed, however, that it would be open for the concerned
   authority to proceed in the matter afresh in accordance with law,
   if it so desired.

C        5. Being not satisfied with the judgment and order dated
   07.09.2006, the present appellants preferred writ appeal. The
   Division Bench of the Gauhati High Court found that under
   Section 116 of the Army Act, the summary court-martial
   proceedings could be held by the commanding officer of any
D corps, department or detachment of the regular Army and it
   need no( necessarily be the commanding officer of the Battalion
  in which the accused was serving. The Division Bench thus in
  its order of 28.08.2008 was of the view that there was no
  justification to interfere with the view taken and the conclusion
E reached by the Single Judge in the impugned judgment. It is
  from this order that the present appeal by special leave has
  arisen.

       6. It is necessary to refer to the relevant statutory provisions
  in the Army Act and the Army Rules, 1954 (for short, 'Army
F Rules') for consideration of the question raised before us.
  Section 3(v) defines 'commanding officer' as under:
        "S.3(v}- "commanding officer'', when used in any provision
        of this Act, with reference to any separate portion of the
G       regular army or to any department thereof, means the
        officer whose duty it is under the regulations of the regular
        Army, or in the absence of any such regulations, by the
        custom of the service, to discharge with respect to that
        portion of the regular Army or that department, as the case
H
   UNION OF INDIA & ORS. v. DINESH PRASAD                     449
               [R.M. LODHA, J.]
    may be, the functions of a commanding officer in regard            A
    to matters of the description referred to in that provision'.'.

     7. Section 4 of the Army Act makes applicable its
provisions to certain forces under the Central Government. In
exercise of the powers conferred by sub-section (1) of Section         B
4 of the Army Act, the Central Government has issued SRO 117
dated 28.03.1960 and SRO 318 dated 6.12.1962. SRO 318
has been subsequently amended by SRO 325 dated
31.8.1977. SRO 318 dated 6.12.1962 (as amended by SRO
325 dated 31.8.1977) reads as follows:
                                                                       c
     "S.R.O. 318 dated 6th December, 1962 (as amended by
     S.R.O. No. 325 dated 31st August, 1977). - In exercise of
     the powers conferred by sub-section (1) of Section 4 of
     the Army Act, 1950 and in supersession of the notification
     of the Government of India in the late Affair Department          D
      No. 93-X dated 25th June 1942, as subsequently
      amended, the Central Government hereby -

     (i) Applies to every unit of the Assam Rifles, (and to recruits
     and personnel or the said Assam Rifles when undergoing                E
     training in any army training establishments) being a force
     raised and maintained in India under authority of the
     Central Government, all the provisions of the said Act,
     except those specified in Part A of the Schedule annexed
     hereto, subject to the modifications set forth in Part B of           F
     the that (sic) Schedule, when attached to or acting with any
      body of the regular army; and

      (ii) suspends, while this notification remail'ls in force the
      operation of sections 6,7,8 and 9 of the Assam Rifles Act,
      1941 (5 of 1941)".                                                   G

      8. Chapter VI of the Army Act deals with the offences.
  Sections 34 to 70 fall under Chapter VI. Section 39, to the
  extent it is relevant, reads as under:-
                                                                           H
         450       SUPREME COURT REPORTS                [2012) 11 S.C.R.

    A          "39. Absence without leave.- Any person subject to this Act
               who commits any of the following offences, that is to say,


               (a) absents himself without leave; or
 B           (b) to (g) .................. .

            shall on conviction by court-martial, be liable to suffer
            imprisonment for a term which may extend to three years
            or such less punishment as is in this Act mentioned".
 c           9. Section 108 describes the kinds of courts-martial. The
        said provision reads as under:

            "108. Kinds of courts-martial. - For the purposes of this Act
            there shall be four kinds of courts-martial, that is to say, -
D
                     (a) general courts-martial;

                     (b) district courts-martial;

                     (c) summary general courts-martial; and
E
                     (d) summary courts-martial".

        10. Section 116 provides that the summary court-martial
  may be held by the commanding officer of any corps,
  department or detachment of the regular Army, and he shall
F alone constitute the court. As per sub-section (2) of Section
  116, 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.
G
        11. Section 71 provides for punishments awardable by
  courts-martial. One of !he punishments that is awardable by the
  courts-martial is dismissal of the delinquent from service.

           12. The Army Rules have been framed by the Central
H
   UNION OF INDIA & ORS. v. DINESH PRASAD                    451
               [R.M. LODHA, J.]
Government in exercise of its powers under Section 191 for the A
purposes of carrying into effect the provisions of the Army Act.
The powers of the commanding officers in relation to
investigation of charges and trial by court-martial are provided
in Chapter V of the Army Rules. Rule 31 provides that the
charge sheet shall be signed by the commanding officer of the 8
accused and shall contain the place and date of such signature.

      13. Rule 39 deals with ineligibility and disqualification of
officers for court-martial. It reads as under:

     "39 Ineligibility and disqualification of officers for court-   C
     martial;

     (1) An officer is not eligible for serving on a court-martial
    .if he is not subject to the Act.

     (2) An officer is disqualified for serving on a general or D
     district court-martial if he--
             (a) is an officer who convened the Court; or

             (b) is the prosecutor or a witness for the              E
             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         F
             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                                            G

             (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.
                                                                     H
    452       SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A         (3) The provost-marshal or assistant provost-marshal is
          disqualified from serving on a general court-martial or
          district court-martial."
       14. -Rules 106 to 133 of the Army Rules provide for the
  proceedings for conduct of summary court-martial. The
8 summary court-martial has to follow the procedure provided in
  these Rules. Arraignment of the accused is provided in Rule
  111. Rule 115 deals with general plea of 'guilty' or 'not guilty'.
  Rule 116 deals with the procedure after plea of 'guilty'. Rule 116
  provides as follows:
c
        "116 Procedure after plea of "Guilty":-

        (1) Upon the record of the plea of "Guilty", if there are other
       charges in the same charge-sheet to which the plea is "Not
       Guilty", the trial shall first proceed with respect to the latter
D
       charges, and, after the finding of these charges, shall
       proceed with the charges on which a plea of "Guilty" has
       been entered; but if they are alternative charges, the Court
       may either proceed with respect to all the charges as if
       the accused had not pleaded "Guilty" to any charge, or
E      may, instead of trying him, record a finding upon any one
       of the alternative charges to which tie has pleaded "Guilty''
       and a finding of "Not Guilty" upon all the other alternative
       charges.

F       (2) After the record of the plea of "Guilty" on a charge (if
        the trial does not proceed on any other charges), the Court
       shall read the summary of evidence, and annex it to the
        proceedings or if there is no such summary, shall take and
       record sufficient evidence to enable it to determine the
G      sentence, and the reviewing officer to know all the
       circumstances connected with the offence. The evidence
       shall be taken in like manner as is directed by these rules
       in case of a plea of "Not Guilty".

       (3) After such evidence has been taken, or the summary
H
UNION OF INDIA & ORS. v. DINESH PRASAD                   453
            [R.M. LODHA, J.]
of evidence has been read, as the case may be, the                A
accused may address the Court in reference to the charge
and in mitigation of punishment and may call witnesses as
to his character.
(4) If from the statement of the accused, or from the             8
summary of evidence, or otherwise, it appears to the Court
that the accused did not understand the effect of his plea
of "Guilty", the court shall alter the record and enter a plea
of "Not Guilty", and proceed with the trial accordingly."

 (5) If a plea of "Guilty" is recorded and the trial proceeds C
 with respect to other charges in the same charge-sheet,
 the proceedings under sub-rules (2) and (3) shall take
 place when the findings on the other charges in the same
 charge-sheet are recorded.
                                                              D
  (6) When the accused states anything in mitigation of
  punishment which in the opinion of the Court requires to
  be proved, and would, if proved, effect the amount of
  punishment, the court may permit the accused to call
  witnesses to prove the same.                                E
 (7) In any case where the Court is empowered by section
 139 to find the accused guilty of an offence other than that
 charged, or guilty of committing an offence in
 circumstances involving a less degree of punishment, or
 where it could, after hearing the evidence, have made a              F
 special finding of guilty subject to exceptions of variations
  in accordance with sub-rule (3) of rule 121, it may, if it is
  satisfied of the justice of such course accept and record
  a plea of guilty of such other offence, or of the offence as
  having been committed in circumstances involving such               G
   less degree of punishment, or of the offence charged
   subject to such exceptions or variations".
  15. Rule 123 provides for procedure on conviction and Rule
                                                                      H
      454      SUPREME COURT REPORTS                   (2012] 11 S.C.R.


 A   124 deals with the sentence. Rule 187(3)(a) provides that every
     battalion is 'corps' for the purpose of summary court-martial.

        16. It may be immediately stated that by virtue of Section
   4 of the Army Act read with S.R.0.318 dated 6.12.1962 (as
   amended by S.R.O. 325 dated 31.08.1977), the Army Act has
 8
   been made applicable to the Assam Rifles. The respondent
   was thus subject to the provisions of the Army Act.

          17. That the Commandant, Col. A.S. Sehrawat, signed and
     issued the charge sheet to the respondent and convened and
 C presided over the summary court-martial is not in dispute. It is
     also not in dispute that the summary court-martial presided over
    by Col. A.S. Sehrawat awarded to the respondent the
  . punishment of dismissal from service. Whether the above
    procedure has vitiated the court-martial proceedings against
 D the respondent is the question. The courts-martial are of four
    kinds, (a) general courts-martial; (b) district courts-martial; (c)
    summary general courts-martial; and (d) summary courts-
    martial as per Section 108. Rule 39 of the Army Rules deals
    with ineligibility and disqualification of officers for court-martial.
E In terms of this Rule, an officer is disqualified for serving on
    general court-martial or district court-martial if he is an officer
    who convened the court. A commanding officer of the accused
    or of the corps to which the accused belongs is also
    disqualified for serving on general court-martial or district court-
F martial. However, no disqualification is attached to the officer
   who convened the court or the commanding officer of the
   accused or of the corps to which the accused belongs for
   serving on the other two kinds of courts-martial, namely,
   summary general courts-martial or summary courts-martial.
G There is neither any impediment nor embargo in the Army Act
   or the Army Rules for an officer who convened the summary
   general courts-martial or summary courts- martial or the
   commanding officer of the accused or of the corps to which the
   accused belongs to serve on such court. Section 116 of the
H Army Act rather provides that a summary court-martial may be
    UNION OF INDIA & ORS. v. DINESH PRASAD                  455
                [R.M. LODHA, J.]
held by the commanding officer of any corps, department or A
detachment of the regular Army and he shall alone constitute
the court (summary court-martial). If the provision contained in
Section 116 of the Army Act is read with Rules 31 and 39 of
the Army Rules, there remains no manner of doubt that Col. A.S.
 Sehrawat, who was commanding officer of the respondent, did B
 not suffer from any disability, ineligibility or disqualification to
 serve on the summary court-martial to try the respondent
 despite the fact that he signed and issued the charge sheet
 against the respondent.

       18. As a matter of fact, the competence or eligibility of Col. C
A.S. Sehrawat to serve on the summary court-martial for trial
of the respondent was not at all put in issue by the respondent
in the entire writ petition. The petitioner therein set up the
following grounds, namely; (1) the charge against the petitioner
for absenting himself without leave being an offence under D
 Section 39(a) of the Army Act has to be proved beyond
 reasonable doubt; (2) the petitioner's absence from Unit
 Headquarters was not willful and intentional; it was for the
 reason beyond his control; and (3) the punishment awarded by
 the summary court-marti=il was not rational and commensurate E
 with the offence proved; it did not ruaintain the proportion; the
 punishment was oppressive and out of tune of the occasion. It
 was only in the course of arguments before the learned Single
 Judge that a submission was made on behalf of the petitioner
 that the very Commandant of the Battalion, who signed and F
  issued the charge sheet to him, convened and presided over
  the summary court-martial and on conclusion of which the
  punishment of dismissal from service was imposed which
  vitiated the court-martial proceedings as he was denied a fair
  trial. In our view, the learned Single Judge was clearly in error G
  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 H
       456      SUPREME COURT REPORTS                [2012) 11 S.C.R.


 A     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.
 B
        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
C 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
D 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
E 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
F 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
G of India and Ors1. squarely applies to the present situation.
  Unfortunately, the judgment in Vidya Parkash 1 was not brought
  to the notice of the Single Judge and the Division Bench. The
  facts in Vidya Parkash 1 were these: the appellant was posted
  as Jawan in Panagarh. He left Panagarh with his wife and
H 1.     (1988) 2 sec 459.
    UNION OF INDIA & ORS. v. DINESH PRASAD                  457
                [R.M. LODHA, J.]
children for Kanpur without taking any leave. According to Vidya A
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. Mahan! that he would be tried by
summary court-martial. The summary court-martial which was B
presided over by Major P.S. Mahan! 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. Mahan! was not legally
 competent to preside over a summary court-martial. The c
 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. Mahan! 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 D
 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. Mahan! was in accordance with
 the provisions of Section 116 of the Army Act. This Court further
 observed:
                                                                      E
       "13 - The Commanding Officer of the Corps, Department
       or Detachment of the Regular Anny 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 F
        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 G
        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. Mahan! and there are two
        other officers including Capt. K.J. Singh and another officer H
         458      SUPREME COURT REPORTS             [2012] 11 S.C.R.

A              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."
B
         21. The legal position exposited by this Court in Vidya
     Parkash 1 renders the impugned judgments unsustainable.

         22. Learned counsel for the respondent placed heavy
   reliance upon the decisions of this Court in Punjab National
C Bank and Ors. v. Kunj Behari Misra 2 , Maneka Gandhi v. Union
   of India & Anr. 3 and Roop Singh Negi v. Punjab National Bank
   & Ors. 4 , 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
D 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
E 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.
F       23. Civil appeal is allowed. The judgment and order of the
    Single Judge dated 7.09.2006 and the order of the Division
    Bench dated 28.08.2008 are set aside. No order as to costs.
    8.8.B.                                         Appeal Allowed.



    2.    (1998) 7 sec 84.
    3.    AIR 1978 SC 597.
    4.    (2009) 2 sec 570.