Singh Vs. Union of India &
Ors  Insc 428 (19 April 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a Division Bench of
the Jammu and Kashmir High Court dismissing the Letters Patent Appeal filed by
Background facts in a nutshell are as follows:
Absence for a period of 2= months was treated as misconduct and Summary
Court Martial was convened in terms of Section 116 of the Army Act, 1950
(hereinafter referred to as the 'Act'). He was charged under Section 39A of the
Act by order dated 7.8.1989 for having remained absent from duty without leave.
He was tried and punished by a Summary Court Martial vide order dated
16.8.1989. The order of dismissal passed by the Court Martial was challenged in
the writ petition primarily on the following grounds:
(i) that officiating Commanding Officer was not competent to convene the
Summary Court Martial and therefore, the proceedings and the sentence awarded
by the Summary Court Martial is illegal being without jurisdiction;
(ii) that the petitioner was neither provided any legal assistance nor
allowed to cross-examine the witnesses, and therefore, the right of hearing has
been denied to him;
(iii) that the petitioner having been punished by removal of the rank could
not be tried and punished on the same ground.
The respondents took the stand that all the submissions are without
foundation. The High Court noticed that the appellant was posted somewhere in
Leh and was deputed for Commando course in December, 1988 which he joined in
January, 1989. He completed the course on 7.2.1989, but instead of reporting at
the Transit Camp after completion of the course, he went home on the assumption
that he had already applied for annual leave which must have been sanctioned by
his Commanding Officer. He finally reported at 259-Transit Camp on 21.4.1989
and reached his unit on 19.5.1989. His grievance was that immediately after he
reached the unit, his rank of Naik was withdrawn. Later he was directed to
appear before the Summary Court Martial on 11.8.1989, which concluded the
hearing and awarded the punishment of dismissal. The High Court found that the
stand that Officiating Commanding Officer was not competent to convene Summary
Court Martial was without substance in view of the definition of
"Commandant Officer" as given in Section 3(v) of the Act. So far as
the denial of legal assistance is concerned, it was noted that the appellant
admitted that Major D.P. Naikavde was named as his friend to advise him during
the course of trial. His plea that he did not see the said officer during the
court martial was found to be without substance. It was noted that in case he
was not assisting him, he could have made a grievance before the Summary Court
Martial. That has not been done. There was no substance in the plea. The
appellant was informed that on completion of the commandant course he did not
immediately join the unit and instead joined after 2= months. He assumed leave
may have been granted without any foundation. As he was holding acting rank of
Naik, he forfeited the right to hold the same because of his absence from duty
without leave as per army Headquarter letter No.94930/AG/PSC (C) dated
Appellant was not holding the substantive rank of Naik, the same was
withdrawn, because of absence without leave. It was in essence withdrawal of a
concession given. The plea relating to dual jeopardy was, therefore, without
any substance. Accordingly, writ petition was dismissed. Before the Division
Bench the stand taken before the learned Single Judge was reiterated. The
Division Bench found that in view of the factual scenario as noted by the
learned Single Judge, the writ petition had been rightly dismissed. It,
however, observed that in case some persons similarly situated were treated
with leniency, it was open to the appellant to make a representation which
shall be duly considered by the respondents. With the aforesaid observation the
Letters Patent Appeal was dismissed.
The learned counsel for the appellant highlighted the same aspects which
were urged before the learned Single Judge and the Division Bench. According to
him, the withdrawal of the rank was a punishment and the High Court was,
therefore, not justified in its view. Learned counsel for the respondent on the
other hand supported the orders. With reference to Section 80 of the Act,
learned counsel for the appellant submitted that removal of stripes amounted to
punishment and, therefore, further action was not permissible. In this context,
the rules relating to acting ranks need to be noted. The same is contained in
Army Instructions Nos. 84 and 88. Rule 84 relates to promotion for Junior
Commissioned Officers and other Ranks. According to the instructions, there are
two kinds of promotion, i.e. one acting and other substantive. So far as the
acting rank is concerned, they are dealt with in Part I. The same so far
relevant reads as under:
"PART I .- ACTING RANKS
2. The following are the general provisions governing the above promotions:-
(a) Acting promotion will be made to fill vacancies in authorized
establishment, whether temporary or permanent. Acting rank will remain unpaid
until an unbroken period of 28 days has been served in that rank when acting
rank will be converted into paid acting rank; pay will be admissible with
retrospective effect from the date of the grant of such acting rank.
(b) The rank of Nb Ris/Nb Sub is a substantive rank. No acting promotion to
that rank will, therefore, be made. A senior NCO may, however, be authorized to
perform the duties of a Nb Ris/Nb Sub where necessary.
(c) Every Commanding Officer of a Unit or Officer-in-charge Records, where
acting promotions are centrally controlled on Corps roster basis, is empowered
to make acting promotions, provided that the individuals concerned are in
possession of all the qualifications prescribed for the higher rank. The
authority competent to sanction acting promotion is also empowered to order
reversion from such acting rank. Acting and paid acting promotions or
reversions will be published in Part II orders which will be the authority for
issue of pay and allowances of the appropriate rank.
(d) Acting rank will be granted from the day the vacancy occurs provided
that the individual has assumed the duties of the higher rank from that day and
reversion will take place with effect from the day the individual ceases to
perform the duties of the appointment for which acting rank is granted or the
vacancy ceases to exist except as provided otherwise.
(e) On casual, annual or accumulated annual leave (i) On casual leave An
individual will retain paid acting rank or paid lance appointment during the
period of casual leave and no acting promotion will be permissible in his
place. Acting rank will, however, be relinquished from the date of overstayal
of casual leave except when the period of casual leave and its overstayal is
regularized against annual leave entitlement for the year in which casual leave
is taken and as Special Leave vide Rule 6 (d) (ii) of Leave Rules for the
Service, Vol. I- Army Cases of overstayal of casual leave owing to sickness
will be dealt with as in clause g (ii) below.
(ii) On annual or accumulated annual leave An individual will retain paid
acting rank or paid lance appointment during the period of annual or
accumulated annual leave and no acting promotion will be permissible in his
place. Acting rank will, however, be relinquished from the date of expiry of
such leave unless the overstayal is due to natural calamities and the period of
overstayal is regularized as Special Leave vide Rule 6(d) (ii) of Leave Rules
for the Services, Vol. I.- Army.
xxx xxx xx Part II deals with Substantive Ranks.
The withdrawal of ranks of Naik was on account of his unauthorized absence
and was not, therefore, punishment in that sense. Section 80 on which strong
reliance has been placed reads as under:
"80. Sitting in closed court (1) A court- martial shall, where it is
so directed by these rules, and may in any other case on any deliberation
amongst the members, sit in closed court.
(2) No person shall be present in closed court except the members of the
court, the judge-advocate (if any) and any officers under instruction.
(3) For the purpose of giving effect to the foregoing provisions of the
rule, the court- martial may either retire or cause the place where they place
where they sit to be cleared of all other persons not entitled to be present.
(4) Except as hereinbefore mentioned all proceedings, including the view of
any place, shall be in open court and in the presence of the accused subject to
(5) The court shall have the power to exclude from the court any witness who
has yet to give evidence or any other person, other than the accused, who
interferes with its proceedings."
A bare reading of the provisions along with the Army Instructions make it
clear that Section 80 has no application to the facts of the present case.
So far as legality of the Court Martial is concerned, the learned Single
Judge has found that the appellant was not holding substantive rank of Naik.
The rank which was temporarily given was liable to be withdrawn in case of
absence from duty and somebody else had to hold that post.
This situation arises when a person who was acting as Naik is not available.
The next ground of challenge relates to legality of proceedings before the
Though Court Martial proceedings are subject to judicial review by the High
Court under Article 226 of the Constitution, the court-martial is not subject
to the superintendence of the High Court under Article 227 of the Constitution.
If a court-martial has been properly convened and there is no challenge to its
composition and the proceedings are in accordance with the procedure prescribed
the High Court or for that matter any court must stay its hands. Proceedings of
a court-martial are not to be compared with the proceedings in a criminal court
under the Code of Criminal Procedure, 1973 where adjournments have become a
matter of routine though that is also against the provisions of law. It has
been rightly said that court martial remains to be significant degree, a
specialized part of overall mechanism by which the military discipline is
preserved. It is for the special need for the armed forces that a person
subject to Army
Act is tried by court-martial for an act which is an offence under the Act.
Court-martial discharges judicial function, and to a great extent, is a court
where provisions of the Evidence Act are applicable. A court-martial has also
the same responsibility as any court to protect the rights of the accused
charged before it and to follow the procedural safeguards. If one looks at the
provisions of law relating to court-martial in the Army Act, the Army
Rules, Defence Service Regulations and other Administrative Instructions of the
Army, it is manifestly clear that the procedure prescribed is perhaps equally
fair if not more than a criminal trial provides to the accused. When there is
sufficient evidence to sustain conviction, it is unnecessary to examine if
pre-trial investigation was adequate or not. Requirement of proper and adequate
investigation is non-jurisdictional and any violation thereof does not
invalidate the court-martial unless it is shown that accused has been
prejudiced or a mandatory provision has been violated. One may usefully refer
to Rule 149 quoted above. The High Court should not allow the challenge to the
validity of conviction and sentence of the accused when evidence is sufficient,
court- martial has jurisdiction over the subject matter and has followed the
prescribed procedure and it is within its powers to award punishment.
Above position was highlighted in Union of India and Ors.
v. IC 14827, Major A. Hussain (AIR 1998 SC 577).
The inevitable result is that the appeal is without merit, deserves
dismissal which we direct. However, liberty as given to the appellant by the
Division Bench, having not been assailed by the respondents, remains unaltered.