Deo Narayan Thanvi, J. - (1.) THIS Special Appeal by Union of India is directed against the judgment of the learned Single Judge whereby while allowing the writ petition of respondent Ex Lans Nayak Bega Ram, he quashed the proceedings of summary Court Martial dt.23.09.1992 and ordered to make payment of Rs. 30,000/ - as compensation in lieu of six months ' rigorous imprisonment and dismissal, with order of reinstatement and all consequential service benefits.
(2.) IN the writ petition, it is stated that the respondent joined Indian Army on 27.09.1983 and was serving in the 4th Battalion of Rajputana Rifles as Lans Nayak. On 13.09.1992 when the respondent was ordered by Sub Jai Karan Singh of the Unit to leave immediately at 2100 Hrs for patrolling duty at 5 A.P., he picked up his loaded rifle, cocked the same and threatened to shoot him by uttering the following words ''Who the hell are you to tell me, I will shoot you ''. The chargesheet was issued to the respondent and summary Court martial was held, whereby he was awarded six months ' rigorous imprisonment with the order of dismissal from service on 23.09.1992. His appeal and representations were also rejected. Thereupon, he filed a writ petition under Article 226 of the Constitution of India before this Court, wherein the learned Single Judge while setting aside the punishment awarded to the respondent, held that the summary Court martial was conducted in violation ofR.115(2) of the Army Rules, 1954, hereinafter referred -to as ''the Rules ''. While relying upon the decision of the Division Bench of this Court in Union of India v. Ex Sepoy Chander Singh reported in, 1997 (6) SLR 643 and also the judgment of Jammu & Kashmir High Court in Prithpal Singh v. Union of India reported in, 1984 (3) SLR 675, the learned Single Judge came to the conclusion that non -compliance of the mandatory provisions ofR.115(2) of the Rules to the extent by not getting the plea of guilty signatured by the accused, amounts to violation of Article 14 of the Constitution and passed the impugned judgment, which is under challenge in this appeal. Mr. Vineet Mathur, learned Senior Standing Counsel for the Union of India has vehemently argued that the learned Single Judge has grossly erred in relying upon the judgment of Ex Sepoy Chander Singh 's case (supra). According to him, the provisions ofR.125 of the Rules have not been taken into consideration in this case, which prescribes a procedure to be applied while conducting summary Court Martial. In this rule, it is clearly stated that if the Court Martial proceedings are signed at the last, it is not obligatory on the part of the Sentencing Authority to sign on each paper. That apart, a certificate has also been appended in compliance toR.115(2) of the Rules, which was not accepted by the learned Single Judge, therefore, the judgment in Chander Singh 's case is per incuriam. He has placed reliance upon the judgment of Madhya Pradesh High Court in Ismail Khan v. General Officer Commanding -in -Chief reported in, Mil LJ 2004 MP 55 wherein it has been held that the High Court in its writ jurisdiction, cannot sit as a Court of appeal upon the finding of the summary Court Martial. That was a case where the allegation against the army man was with regard to absence from duty for 98 days with two earlier absence of 34 days and 39 days respectively. His dismissal from service and rigorous imprisonment of two months was not treated to be either too severe or shockingly disproportionate. In our view, the learned Single Judge rightly observed that this citation is absolutely misplaced for the reason that the Madhya Pradesh High Court rightly declined to interfere in the question of fact in its exercise of powers under Article 226 of the Constitution by way of judicial review. There was no question involved in that case for non -compliance of the statutory provisions contained in the Army Rules. The contention of the learned Counsel for the Union of India that the judgment in Chander Singh 's case (supra) is per incuriam, is devoid of force. A judgment is said to be per incuriam, when it is against the statutory provisions or law of precedent based on the doctrine of stare decisis. Merely because, a particular provision of law has not been discussed in the judgment, it cannot be termed as per incuriam.
(3.) ON the contrary, Mr.Nanda learned Counsel appearing for the respondent Lans Nayak has placed much reliance upon the decision of Chander Singh 's case (supra) in which the Special Leave Petition filed by the Union of India was dismissed by the Hon 'ble Supreme Court and submitted that the Division Bench of this Court in Chander Singh 's case (supra) has rightly held the compliance ofR.115(2) of the Rules as mandatory and this Court, if takes a contrary view, should refer the matter to the larger Bench, as the facts of Chander Singh 's case with regard to interpretation ofR.115(2) of the Rules are squarely covered with the legal position involved in the present case. According to him, neither the respondent nor the Court Martial has signed about the guilty plea in accordance with the relevant rule.;