Judgment

RAY, J. :- Special leave granted. Heard arguments of learned counsel for the parties.

2. This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985.

3. The facts of the case in brief are that the appellant was appointed 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 56A. 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 subsequently transferred and posted in Panagarh. One Major N. R. 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 Panagarh. 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, Sikandrabad 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-martial lied 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 doctor.

4. 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 appointed 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-martial.

5. 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 direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him.

6. The writ petition was heard by a Division Bench of the High Court at Delhi and it was dismissed on March 3, 1985 holding inter alia that