S.U.KHAN, J. - (1.) HEARD learned Counsel for the parties.
(2.) PETITIONER was a Sepoy in Indian Army. He was recruited in 1979. In the year 1986 petitioner was attached to 104 Engineer Regiment, Allahabad. Petitioner was charged with dereliction of duty on the allegation that he had left the guard duty without order from his superior officers on 8.5.1986. Petitioner pleaded not guilty and asserted that he was absent from quarter guard only during the time when he was not doing duty of No. 1 sentry. The time when petitioner was found absent was in between 3.10 a.m. to 4.10 a.m. on 8.5.1986. Petitioner was charged with the misconduct as described under section 36 (d) of Army Act. A summary Court Martial was held in which petitioner was found guilty and sentenced to suffer rigorous imprisonment for six months in civil prison and he was also dismissed from service. The order was passed on 29.5.1986 which is contained in Annexure 2 to the writ petition and has been challenged through this writ petition. Against the said finding/order peti­tioner filed appeal under section 164 of Army Act which was rejected in April 1988. Copy of the rejection order is Annexure 4 to the writ petition and the same has also been challenged. One of the main arguments of the learned Counsel for the petitioner was that absolutely no reason was given in the punishment order. It is correct that in the punishment order or in the appellate order no reason has been given. However, detailed reason has been given in para 23 of the counter affidavit. The Supreme Court in the Constitution Bench Authority in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 (Para 43), has held that in Court Martial it is not necessary to record any reason while recording the finding and sentence except when the Court makes a recommendation to mercy. The said authority has also been referred to in Union of India v. Shivendra Bikaram Singh, AIR 2003 SC 2481.
(3.) THE other argument of learned Counsel for the petitioner is that at the relevant time (3.10 am to 4.10 am on 8.5.1986) petitioner was not on actual duty of No. 1 Sentry. Before the Court Martial several witnesses were examined' which has also been mentioned in para 7 of the writ petition.;