JUDGMENT D.S. Sinha, J. - This petition, under Article 226 of the Constitution of India, is directed against the order dated 23-3-1982, passed by the Officer Commanding, Military Hospital, Bhuj, in the Summary Court Martial proceedings convened on the basis of the charge-sheet dated 23-3-1982, whereby the petitioner has been sentenced to six months rigorous imprisonment and dismissed from service. 2. At the relevant time, the petitioner was serving with the Military Hospital, Bhuj, as a regular Soldier. Allegedly, the petitioner was found in improper dress while on duty in the Medical Inspection Room (P. P. C. D.) of the Hospital on 16-3-1982 and it was an offence punishable under Section 63 of the Army Act, 1950 (hereinafter referred to as the Act). After due trial the petitioner was awarded to pay fine for seven days on 20-3-1982. After the punishment was awarded the petitioner had quietly run away from the hospital during duty hours for which he was apprehended and marched before the Commanding Officer on the same day i.e., on 20-3-1982. When the petitioner was marched before the Commanding Officer he was asked as to why he had run away from duty. It is asserted that the petitioner was defiant and tended to be insubordinate by stating that he would not accept punishment and wanted to see the higher authorities. He was apprised of the correct procedure in that regard and cautioned not to run away from the place of his duty without prior permission. On 22-3-1982 the petitioner wanted to have an interview with the Commanding Officer. He was, therefore, marched before the Commanding Officer. At this stage the petitioner said that he wanted to consult the Medical Officer because he got headache from time to time. The Commanding Officer, therefore, directed the Senior J.C.O. to take the petitioner to the Medical specialist for thorough check up and treatment. While on way to the office of Medical specialist the petitioner suddenly ran out from the hospital. He was subsequently apprehended out side the unit and marched before the Commanding Officer. The petitioner was told of the offence of running away from the Unit without permission on two occasions i.e., on 20-3-1982 and again on 22-3-1982. The petitioner again expressed his desire to see the higher authorities. The petitioner had already been, earlier, advised the correct procedure and cautioned against leaving the unit without permission. The petitioner was told of the offence of running away from the Unit without permission on two occasions i.e., on 20-3-1982 and again on 22-3-1982. The petitioner again expressed his desire to see the higher authorities. The petitioner had already been, earlier, advised the correct procedure and cautioned against leaving the unit without permission. However, according to the respondents, warning and earlier lighter punishment had no effect on the behaviour of the petitioner and he was showing more and more defiance. The Commanding Officer, therefore, awarded the petitioner 14 days' Rigorous imprisonment in Military custody under Section 39 (d) of the Act. The petitioner kept on delaying his lodging into the military cell with defiance upto the evening and only with great difficulty he could be taken to the military cell on 22-3-1982. On his arrival into military cell on 22-3-1982 the petitioner refused to take his meal brought before him with a view to get his punishment quashed. The refusal of the meal was reported to the duty Medical Officer. Next day the petitioner was marched before the Commanding Officer and was asked if he had refused the meal on the previous evening which was Monday i.e., 22-3-1982. The petitioner replied in affirmative. On 23-3-1982 again the petitioner was ordered to eat food placed before him as he had refused to take his morning break-fast and had also not taken his meal in the previous evening. The petitioner again did not eat the food placed before him. He was, therefore, the Commanding officer for refusal to eat his food. On being asked by the Commanding officer for the reasons for not eating food the petitioner failed to give any reason and replied that not only that he would not eat the food he would not even take water. Thereupon the Commanding officer ordered the petitioner to be marched before him on the charge-sheet under Section 41 (2) of the Act. The petitioner was marched accordingly before the Commanding officer on a charge for refusal to eat food. On being asked as to whether he had refused to eat food, placed before him the petitioner relied in affirmative. Then the Commanding officer ordered summary of evidence to be recorded. The petitioner was marched accordingly before the Commanding officer on a charge for refusal to eat food. On being asked as to whether he had refused to eat food, placed before him the petitioner relied in affirmative. Then the Commanding officer ordered summary of evidence to be recorded. After the summary of evidence was recorded and submitted to the Commanding officer the petitioner was again marched before the Commanding Officer and the charge was read over to him and thereafter his Summary Court Martial was ordered and held. The Court Martial of the petitioner resulted in the impugned order dated 23-3-1982. 3. We have heard Sri G.D. Mukerji and Sri Shekhar Srivastava, learned Counsel appearing for the petitioner and the respondents respectively. 4. According to Shri Mukerji, the learned Counsel for the petitioner, the first grievance of the petitioner is that the authority which signed the charge-sheet, held the Court Martial and passed and signed the order of sentence was merely Officiating Commanding Officer, Military Hospital, Bhuj, whereas under the provisions contained in the Act, the Rules and the Regulations, framed under the Act, Commanding Officer alone was competent to sign the charge-sheet to hold the Court Martial and pass and sign the order of sentence. Reliance, in this connection, is placed on Section 116 read with Section 3 (v) of the Act, Rule 81 of the Army Rules, 1954, and Paragraph 54 of the Defence Services Regulations, framed under Section 192 of the Act. On this premise the learned Counsel for the petitioner contends that the entire proceeding of the Court Martial, including the order of sentence, was invalid. The contention, in our opinion, needs no scrutiny inasmuch as it is misconceived being contrary to the facts on record. A bare perusal of the charge-sheet as well as the order of punishment dated 23-3-1982, true copies whereof are Annexures 5 and 6 to the writ petition, would reveal that the charge-sheet was signed by Sri Y.C. Misra, Lieutenant Colonel Officer Commanding Military hospital, Bhuj, and it was this officer who held the Court Martial proceedings. The above annexures clearly show that the officer, who signed the charge-sheet, held the Court Martial and signed the order of sentence, was the Commanding officer and not officiating Commanding Officer. 5. The above annexures clearly show that the officer, who signed the charge-sheet, held the Court Martial and signed the order of sentence, was the Commanding officer and not officiating Commanding Officer. 5. Next contention of Shri Mukerji, the learned Counsel for the petitioner, is that there was violation of sub-rule (7) of Rule 33 and Rule 34 of the Army Rules 1954, hereinafter called the Rules, inasmuch as the petitioner was not handed over the charge-sheet and summary of evidence 96 hours in advance and also that he was not warned for his trial by Summary Court Martial. The charge-sheet was drawn on 23-3-1982 and the sentence was also passed on the same day. Consequently the petitioner was deprived of full opportunity of making his defence including the facility for preparing the defence. The necessary averments in this regard have been made in Paragraph 22 of the Writ petition. Paragraphs, 23, 24 and 25 of the counter-affidavit, filed on behalf of the respondents, deal with the averments of the petitioner contained in Paragraph 22 of the writ petition. It is not disputed by the respondents that the provisions of sub-Rule (7) of Rule 33 and Rule 34 applied in the case of the trial of the petitioner. In the counter-affidavit it has been admitted that the charge-sheet and a copy of Summary of evidence was not handed over to the petitioner 96 hours prior to the trial. Non-compliance of Rule 34 also is not disputed. But the stand taken in the counter-affidavit is that the requirement of the compliance with regard to the provisions of Rules 33 and 34 can be dispensed with where it appears impossible or inexpedient to comply with the same for the reasons given in Rule 36 and the instant case warranted such dispensation. 6. For proper appreciation of rival contentions it will be appropriate to notice the Rules 33, 34 and 36, aforesaid, which are as follows : "33. Rights of accused to prepare defence. - (1) Correspondence between the accused and his legal advisers shall not be liable to be censored. The accused shall inform his commanding officer of the names of such advisers and shall also inform him of any distinctive marks that such correspondence will bear. (2) An accused person shall have the right to interview any witnesses whom he may wish to call in his defence. The accused shall inform his commanding officer of the names of such advisers and shall also inform him of any distinctive marks that such correspondence will bear. (2) An accused person shall have the right to interview any witnesses whom he may wish to call in his defence. The provisions of Rule 137 shall apply to procuring the attendance of such witnesses. (3) If the accused so desires, the commanding officer of the accused shall take such steps as the circumstances of the case permit to obtain a written statement from a witness whom the accused may wish to call in his defence. The statement shall be obtained in a closed envelope which shall be given to the accused person unopened. (4) If the accused person gives to his commanding officer the name of any person whom he wishes to call in his defence, no person shall interview such witness with reference to the charges against the accused except in the presence of the accused, unless the accused agrees to dispense with his presence in writing. Similarly if the accused wishes to interview a witness whom the prosecutor intends to call, the interview shall be in the presence of an officer detailed by the Commanding Officer of the accused person. (5) The commanding officer of the accused person or the officer responsible for his custody shall take adequate precautions so that no conversation which the accursed person may have with his legal advisers or witnesses is liable to be overheard. (6) The accused person shall have the right to address an application to the Deputy or Assistant Judge, Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence. (6) The accused person shall have the right to address an application to the Deputy or Assistant Judge, Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence. (7) As soon as practicable after an accused has been remanded for trial by a general or district court-martial, and in any case not less than ninety six hours or on active service twenty-four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, or in the case of an officer where there is no summary of evidence an abstract of the evidence, and explain to him his rights under these rules as to preparing his defence and being assisted or represented at the trial, and shall ask to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. The convening officer shall be informed whether or not the accused so elects." "34. Warning of accused for trial. - (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours. (2) The officer at the time of so informing the accused shall given him a copy of the charge-sheet and shall, if necessary, read and explain to him the charges brought against him. It the accused desires to have it in a language which he understands, a translation thereof shall also be given to him. (3) The officer shall also deliver to the accused a list of the names, ranks and corps (if any), of the officers who are to form the court, and where officers in writing are named, also of those officers in courts-martial other than summary courts-martial. (3) The officer shall also deliver to the accused a list of the names, ranks and corps (if any), of the officers who are to form the court, and where officers in writing are named, also of those officers in courts-martial other than summary courts-martial. (4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced." "36. Suspension of rules on the ground of military exigencies or the necessities of discipline. Where it appears to the officer convening a court-martial, or to the senior officer on the spot, that military exigencies, or the necessities of discipline render it impossible or inexpedient to observe any of the Rules, 23, 24, 25, 33 and 34 and sub-rule (2) of Rule 95, he may, by order under his hand, make a declaration to that effect specifying the nature of such exigencies or necessities, and thereupon the trial or other proceedings shall be as valid as if the rule mentioned in such declaration had not been contained herein ; and such declaration may be made with respect to any or all of the rules aforesaid in the case of the same court-martial ; Provided that the accused shall have full opportunity of making his defence, and shall be afforded every facility for preparing it which is practicable, having due regard to the said exigencies or necessities." 7. Sub-rule (7) of Rule 33 provides that as soon as practicable after an accused has been remanded for trial by a general or district Court Martial, and in any case not less than ninety-six hours or on active service twenty-four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence or in the case of an officer where there is no summary of evidence an abstract of the evidence, and explain to him his rights under the Rules to preparing his defence and being assisted or represented at the trial, and shall ask him to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. The convening officer shall be informed whether or not the accused so elects. The convening officer shall be informed whether or not the accused so elects. 8. Under Rule 34 after the accused is arraigned he is to be informed by an officer of every charge for which he is to be tried. The rule further contemplates that interval between his being informed of the charge and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours. 9. Admittedly the requirements of giving a copy of the charge-sheet and the summary of evidence before ninety-six hours of the actual trial, and allowing a gap of ninety-six hours between the petitioner being informed and his actual trial were not complied with. In the absence of dispensation under Rule 36 compliance of the requirements of Rules 33 and 34 is a must and non-compliance would vitiate the proceedings. 10. The observance of various specified rules including the Rules 33 and 34 can be suspended or dispensed with on the existence of military exigencies or the necessities of discipline but such suspension or dispensation can be done only in accordance with Rule 36. This contemplates an order under the hands of the officer convening Court specifying the nature of military exigencies or necessities of discipline rendering it impossible or inexpedient to observe various rules listed in Rule 36 and declaring that observance the said rules is impossible or inexpedient. The exercise of power under Rule 36 is further circumscribed by its proviso which commands giving to the accused full opportunity of making his defence and affording of every facility for preparing it which is practicable having due regard to the exigencies and necessities. In the instant case there is no material on record to indicate that the officer convening the Court Martial had actually by an order under his hand made any order or declaration to the effect that the military exigencies or necessities of discipline had rendered it impossible or inexpedient to observe Rules 33 and 34. There being no suspension or dispensation as envisaged by Rule 36 and the provisions of sub-rule (7) of Rule 33 and Rule 34 having, indisputably, not been complied with, the proceedings of the Court Martial and consequential order sentencing the petitioner are invalid. 11. There being no suspension or dispensation as envisaged by Rule 36 and the provisions of sub-rule (7) of Rule 33 and Rule 34 having, indisputably, not been complied with, the proceedings of the Court Martial and consequential order sentencing the petitioner are invalid. 11. Further contention of Shri Mukherji, the learned Counsel for the petitioner, is that t the provisions of Rule 106 of the Rules were not complied with and his rendered the proceedings of Court Martial as well as impugned order illegal. Rule 106 reads thus. "106. Proceedings.-(1) The officer holding the trial, hereinafter called the court, shall record, or cause to be recorded, in the English language, the transactions of every summary court-martial. (2) The evidence shall be taken down in a narrative form in as nearly as possible the words used; but in any case where the court considers it material, the question and answer shall be taken down verbatim." 12. In Paragraph 18 of the counter-affidavit filed on behalf of the respondents it is asserted that "the evidence of the witnesses for prosecution was recorded in the presence of the petitioner and his friend Shri Nb/Sub M. Virumandi. The petitioner was given full opportunity to cross-examine the witnesses but he declined to do so". In Paragraph 32 it is pleaded that "the petitioner pleaded guilty at the trial and even at the stage of recording of summary of evidence when given an opportunity, he refused to cross-examine any witness". But in Paragraph-31 the stand taken is that "the petitioner pleaded guilty at the trial and as such there was no occasion to examine any witnesses." The two stands, one in Paragraphs 18 and 32 on one hand and the other in Paragraph 31 on the other, verified on the perusal of record, contradict each other and cannot be reconciled. The petitioner has specifically pleaded in Paragraphs 29 and 30 of the writ petition that "there was no proceeding as such held and the officer just passed the sentence in clear violation of the provisions of Section 152 of the Army Act and Rule 106" and "no witnesses were called, no evidence taken." This pleading can not be taken to have been specifically and effectively rebutted in view of the contradictory stand taken by the respondents in this regard. In the absence of any material on record indicating different conclusion it would be reasonable to conclude that there was violation of Rule 106 of the Army Rules which rendered the proceedings of the Court Martial of the petitioner and the order of punishment bad in law. 13. Lastly, Shri Mukerji, the learned Counsel for the petitioner, urges that, in any case, the penalty of six months Rigorous Imprisonment and dismissal from the service is not commensurate with the gravity of the charge and that being so it is violative of Article 14 of the Constitution of India. The submission of the learned Counsel is well founded. 14. In the case of Ranjit Thakur v. Union of India and others, reported in AIR 1987 SC 2386 . Hon'ble Supreme Court had the occasion to consider the proportionality of punishment awarded to a Signal Man of "4 Crops Operating Signal Regiment" of the Indian Army for almost identical offence, namely, refusal to cat food when ordered amounting to disobedience of lawful command given by his superior officers as contemplated by Section 41 (2) of the Act. The punishment of rigorous imprisonment for one year and his dismissal from the service was held by Hon'ble Supreme Court to be "strikingly disproportionate as to call for and justify interference". Hon'ble Supreme Court found that it could not be "allowed to remain uncorrected in judicial review." In the instant case also we do feel that punishment awarded to the petitioner, tested on the doctrine of proportionality, is not commensurate to the gravity of the charge levelled against him and, therefore, violative of the provisions of Article 14 of the Constitution of India. 15. In view of the foregoing reasons the writ petition succeeds and is allowed. We find that the proceedings of Summary Court Martial of the petitioner in pursuance of the charge-sheet dated 23-3-1982 and the consequent order punishment dated 23-3-1982 are bad in law and deserves to be quashed. We order accordingly. Personal bond and sureties furnished in pursuance of the order of this Court dated 30-4-1982 are discharge. The petitioner shall be reinstated to all the benefits of continuous service. There will, however, be no order as to costs.