Union Of India (Uoi) And Ors. vs Shri S.K. Sharma
2003 Latest Caselaw 161 Del

JUDGMENT

Vijender Jain, J.

1. This appeal has been preferred by the appellants aggrieved by the judgment of learned Single Judge. Respondent Havaldar S.K. Sharma had filed a writ petition aggrieved by his dismissal from service in pursuance to the finding and sentence of a summary court-martial dated 4.3.1996.

2. The charges against the respondent related to making accusations against his Commanding Officer for failure to take action on his application for railway warrant and other was regarding allotment of accommodation knowing fully well that such accusations were false. The respondent, it seems filed his petition dated 1.6.1995 addressed to the GOC-in-C, Eastern Command, complaining that Lt. Col. K.L. Yadav did not take action on his application for railway warrant dated 18.5.1995. The charge-sheet was issued against the respondent that the respondent made this false accusation fully knowing the same to be false. The respondent was further charged with act prejudicial to good order and military discipline by making correspondence to higher officials on service matters without proceeding through authorised channels.

3. The respondent had put in more than 11 years of service in the rank of Havildar as Education Instructor. The learned Single Judge held that in view of Section 116 of the Army Act and Note 5 of the Manual of Military Law, the only exception when a summary court-martial was to be held by Commanding Officer of a different unit would be in the case of a deserter and as the respondent-petitioner was admittedly not a deserter, holding of the Summary Court Martial by Commanding Officer of a different unit was bad in law.

4. The learned Single Judge relying upon a decision of Ex-Havildar Mahipal Singh vs. Union of India & Others , observed that the trial of the respondent by the summary court-martial after the initial recommendation was made for the trial of the respondent by district summary court-martial was illegal. It was noted by the learned Single Judge that the summary court martial could not have been conducted by the Commanding Officer of 1842, Light Regiment, as the respondent belonged to 20, Mountain Division.

5. The respondent was tried by summary court-martial on three charges; two charges under Section 56(a) of the Army Act and one charge under Section 63 of the Act. We have perused through Section 116 of the Act which is to the following effect :-

"116. Summary Court-martial-(1) A 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.

(2) 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."

6. Note 5 which has been dealt in Ex Havildar Mahipal Singh's case (supra), which is appended to the Section in the publication 'Manual of Military Law', Ministry of defense , reads as follows:-

"5. See Regulations Army para 381 for the circumstances under which a CO of a different unit may hold the trial by SCM of a person subject to Army Act."

Army paragraph regulation 381 is to the following effect:-

"381. Trial of Deserters:---Under normal circumstances trial by summary court martial for desertion will be held by the CO of the unit of the deserter. However, when a deserter or an absentee from a unit shown in column one of the table below surrenders to, or is taken over by, the unit shown opposite in column two and is properly attached to and taken on the strength of the latter unit he may, provided evidence, particularly evidence of identification, is available with the latter unit, be tried by summary court-martial by the OC of that unit when the unit shown in column one is serving in high altitude area or overseas or engaged in counter-insurgency operation or active hostilities or Andaman and Nicobar Islands.

In no circumstances will a man be tried by summary court-martial held by a CO other than the CO of the unit to which the man properly belongs; a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs."

7. A bare reading of regulation 381 and the operative words as set out in regulation 381 makes it manifestly clear that the said regulation is only for the trial of deserters and in an eventuality where a deserter has to be tried by a summary court-martial, such deserter has to be tried by the Commanding Officer of that unit only to which he belongs. How the procedure prescribed under regulation 381 for the trial of deserter can be applied for offences under Section 56(a) and Section 63 of the Act? Therefore, the reliance placed by the learned Single Judge on Ex Havildar Mahipal Singh's case is misplaced.

8. The next contention of the learned counsel for the appellants was that the learned Single Judge has gone wrong in ordering that the convening order dated 22.2.1996 by the competent authority was without jurisdiction as the same was not issued by the competent authority in terms of Army Rule 37. The learned Single Judge relying on the judgment of Union of India & Ors. vs. Harish Chandra Goswami JT 1999(3) 324 held that in the absence of any record showing that the record having been taken by the Commanding Officer, the convening of the court-martial was not sustainable in law.

9. We are afraid, the law laid down in Harish Chandra Goswami's case pertains to convening of a general court-martial. Therefore, the same could not have been applied in relation to holding of the summary court-martial. Army Act deals with courts-martial under Chapter 10. Section 108 deals with the kinds of courts-martial i.e. general courts-martial, district courts-martial, summary general courts-martial, and summary courts-martial. Section 109, 110 and 112 deal with convening of a general court-martial, a district court-martial, and a summary general court-martial respectively. The word appearing in all the aforesaid sections is `convened/convene' whereas in Section 116, which deals with summary court-martial, the word used is `held' and not `convened/convene'. When a general court-martial, district court-martial or summary general court-martial, as the case may be, has to be convened, Rule 37 of the Army Rules comes into play, which is to the following effect:-

"37. Convening of General and District Court-martial. - (1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.

(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene.

(3) The officer convening a court-martial shall appoint or detail the officers to form the court and, may also appoint, or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.

(4) The officer convening a court-martial shall furnish to the senior member of the court with the original charge-sheet on which the accused is to be tried and, where no judge-advocate has been appointed, also with a copy of the summary of evidence and the order for the assembly of the court-martial. He shall also send, to all the other members, copies of the charge-sheet and to the judge-advocate when one has been appointed, a copy of the charge-sheet and a copy of the summary of evidence."

10. Once summary court-martial has to be held Rule 106 of the Rules will operate the field. Rule 106 is to the following effect :-

"106. Proceedings. - (1) The officer holding the trial hereinafter called the court, shall record, or cause to be recorded (in the Hindi or English language), the transactions of every summary court-martial.

(2) The evidence shall be taken down in a narrative form in as nearly as possible the words used; but in any case where the court considers it material, the question and answer shall be taken down verbatim."

11. Therefore the reliance placed by the learned Single Judge in Union of India vs. Harish Chandra Goswami's case was misplaced as in Harish Chandra Goswami's case, the Supreme Court upheld the applicability of Rule 37 of the Army Rules vis-a-vis cases of general court-martial. On this ground also the order of the learned Single Judge cannot be sustained in the eyes of law.

12. However, with regard to the finding of the learned Single Judge on the disproportionality of the punishment, we find no fault with the observation of the learned Single Judge. It is a well settled principal of law that normally the Court will not interfere in the adequacy or the inadequacy of the punishment given by the authorities more so the military authorities. However, from the catena of the cases and the ratio emerging out of the decisions on the point, under the power of judicial review, which has to be exercised by the Court in exercising of its jurisdiction under Article 226 of the Constitution of India, the Court has to take into consideration if the decision making process has suffered either on account of irrationality, arbitrariness or the decision arrived at is one which shocks the conscience of the Court and in such cases the Courts are not without power to look into the disproportionality of punishment awarded. The learned Single Judge has rightly noted that the punishment awarded sounds harsh and disproportionate in view of the fact that the respondent was dismissed from service after putting more than 11 years of service and that the nature of allegations made against him were not of a very serious nature. While setting aside the impugned judgment upsetting the findings of the summary court martial, we sustain the judgment of the learned Single Judge on sentence. The net result would be that the order on sentence dated 4.3.1996 is quashed. It will be open to the respondents to pass a fresh order on sentence, in accordance with law, in view of findings of the summary court martial, keeping in mind the observations made hereinabove.

13. The appeal is disposed of in the aforesaid terms.

14. No order as to costs.

15. In view of the order passed in this writ petition LPA No. 192/2002 is also disposed of.