SC upholds army commanding officers' power to sack

There is no legal infirmity if an army personnel is dismissed in summary court martial proceedings conducted by a commanding officer who also issues the charge sheet against him, the Supreme Court has said.

"There is no violation of the principle 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 summary court martial," said the apex court bench of Justice R.M. Lodha and Justice Anil R. Dave in a recent judgment.

The court said this while addressing the challenge about the competence of the an accused army man's commanding officer, who signed and issued the charge sheet, to convene and conduct the summary court martial proceedings.

The question arose during the hearing on the central government's appeal challenging the two concurring judgments of the Gauhati High Court Sep 7, 2006, and Aug 28, 2008, setting aside the dismissal of washerman/rifleman Dinesh Prasad.

The high court held that the disciplinary proceedings were vitiated by the likelihood of bias and suffered from the breach of the principle of natural justice because the commanding officer who had issued the charge sheet also presided over the summary court martial which dismissed Prasad.

Referring to the Army Rules dealing with court martial proceedings, the apex court said the commanding officer of the accused or of the corps to which the accused belonged was not  qualified for serving on general court martial or district court martial, two different types of court martial proceedings.

"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," the judgment said.

"Section 116 of the Army Act rather provides that 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 (summary court-martial)," the judges said.
Prasad, who belonged to 11 Assam Rifle, went on unauthorized leave for 808 days from July 26, 1998, to Oct 11, 2000.

Col. A.S. Sehrawat Aug 3, 2001, served him a charge sheet to explain his absence without leave and constituted a summary court martial where Prasad admitted his guilt Oct 4, 2001.

Before being dismissed, Prasad sought to explain his unauthorised absence on the grounds of his poor mental health.

Setting aside the concurrent judgments of the high court, the apex court said that absence without leave was an offence under the Army Act. On conviction by the court martial of the said offence, the offender was liable to suffer imprisonment for a term which may extend to three years.