LexUNION OF INDIA & ORS. versus DINESH PRASAD
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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[2012] 11 S.C.R. 440
UNION OF INDIA & ORS.
v.
DINESH PRASAD
{Civil Appeal No. 1961 of 2010)
OCTOBER 30, 2012
[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
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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
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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
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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.
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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.
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.
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.
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The respondent filed writ petition challenging the
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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
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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
8 accordingly, after having issued charge sheet, the
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 disExcerpt shown. Read the full judgment & AI analysis in Lexace.