JUDGMENT - P.S. PATANKAR, J.:---The petitioner, who was working as Topass (Sweeper) with Indian Navy, by this petition is challenging his dismissal order dated 4-4-1997 passed by Commanding Officer INS ANGRE and subsequent approval thereof by the Union of India on 19-1-1998. He is further praying that he be reinstated in service. 2. The petitioner was working in the category of Sailor as Topass (First Class) with Indian Navy. It seems that initially he was working on ship by name INS Viraat and later on came to be transferred to INS Agnibabu. According to the petitioner when he was working in INS Agnibabu his Commanding Officer asked him to go to his home for some work. When he went home, wife of Commanding Officer asked him to take her clothes for washing to the Dhobi. He declined the same on the ground that he was not a civilian. She informed this to the Commanding Officer and thereafter all his stars changed. He was harassed from time to time by the said Commanding Officer and he has been given punishments. Later on he came to be transferred from INS Agnibabu to INS Angre. According to him the harassment culminated in the dismissal order. Hence it is mala fide and arbitrary. 3. By filing reply, Commanding Officer Shri M.S. Joshi INS Angre has not only denied the allegations of mala fide etc. but has given the service record of the petitioner. He has pointed out that before August 1996 petitioner was required to be declared "Run" twice. At the time also all the required procedure was followed in May 1996. Not only letter of stigma was issued, but warrant of arrest was also issued against him. On 2-6-1996 the petitioner telephonically informed that his mother has expired on 13-5-1996 hence asked for extension of his leave. Though leave was not available to his credit, he was granted compassionate leave for the following year i.e. advance annual leave and warrant issued against him came to be reversed and the Genform making the petitioner Run. But again he remained absent without leave from 16-6-1996 and was marked as Run. But he surrendered on 20-6-1996. 4. On 1-8-1996, the petitioner again deserted his work place. There was no leave application filed by him. Further there was no leave balance to his credit. He was fully aware about this. But again he remained absent without leave from 16-6-1996 and was marked as Run. But he surrendered on 20-6-1996. 4. On 1-8-1996, the petitioner again deserted his work place. There was no leave application filed by him. Further there was no leave balance to his credit. He was fully aware about this. Therefore this required issuance of Genform and also signals were issued to mark the petitioner Run. The stigma letter was also issued dated 8-8-1996. It was sent to his brother. Warrant of arrest was also issued against the petitioner on 8-8-1996. Ultimately he surrendered on 31-8-1996. He was taken in custody and punishment No. 2 i.e. detention of 30 days came to be awarded on 9-9-1996 which came to be approved on 25-9-1996. 5. While in custody the petitioner complained of headache and that he was not able to get sleep. Hence he was admitted in INHS Asvini Hospital at psychiatric ward. A guard was also kept. This has happened on 13-9-1996. However he escaped from the lawful custody on 19-9-1996. Petitioner was again marked as Run with effect from 19-9-1996 by INS Agnibabu, Genform 1754/S dated 21-9-1996 and dated 22-9-1996 respectively. A warning telegram was also sent to the petitioner to report for duty. Petitioner did not report hence warrant of arrest came to be issued along with a stigma letter. It was sent to his next of kin of the petitioner. On 25-9-1996, the petitioner surrendered to INS Agnibabu and was placed in safe custody. Thereafter on 18-12-1996 he came to be transferred to Indian Navel Detention Quarters to undergo 30 days detention i.e. punishment no earlier imposed. This happened on 18-12-1996. It has been pointed out that the contention raised that he left as his mother was serious is not true as he himself has earlier reported about her death. 6. The petitioner came to be summarily tried for escaping from the safe custody on 19-9-1996 and hence committing an offence punishable under section 71 of Navy Act, 1957. Further for deserting Indian Naval Hospital Ship Asvini on 19-9-1996 till 25-11-1996. Hence for committing offence under section 49(2)(b) of the Navy Act, 1957. After following the procedure, order of dismissal of the petitioner came to be passed on 4-4-1997 which came to be approved by the Union of India by order dated 19-1-1998. 7. The learned Counsel for the petitioner has raised 5 contentions. Hence for committing offence under section 49(2)(b) of the Navy Act, 1957. After following the procedure, order of dismissal of the petitioner came to be passed on 4-4-1997 which came to be approved by the Union of India by order dated 19-1-1998. 7. The learned Counsel for the petitioner has raised 5 contentions. We are considering them though we do not find place in the petition. He first submitted that provisions of section 49(2)(b) are not attracted in the present case as there was no desertion as such. The petitioner on his own surrendered on 25-11-1996 and hence there was no desertion. 49. Desertion.---(1) Every person subject to naval law who absent himself from his ship or from the place where his duty requires him to be, with an intention of not returning to such ship or place, or who at any time and under any circumstances when absent from his ship or place of duty does any act which shows that he has an intention of not returning to such ship or place is said to desert. Section 49(2)(b) provides for punishment for desertion. We cannot forget that petitioner surrendered after the procedure was followed. Hence he did not surrender on his own. But was compelled or required to surrender. The Naval Regulations (Statutory) Part II (section 4) provide for "Deserters and Absentees". Regulation Nos. 132 and 133 deal with the procedure which is required to be followed for declaring a person as a deserter. In the present case this was followed. Therefore merely because the petitioner surrendered on 25-11-1996 does not mean that he cannot be termed as a deserter. The learned Counsel for the petitioner in this connection relied upon the judgment of the Apex Court reported in 1986 Cri.L.J. 848 (Virendra Kumar through his wife v. The Chief of the Army Staff, New Delhi)1. It was relating to sections 38 and 39 of Army Act (46 of 1950). The Apex Court observed "sections 38 and 39 and sections 104 and 105 make a clear distinction between "desertion" and "absence without leave" and section 106 prescribed the procedure to be followed when a person absent without leave is to be deemed to be deserter. Clearly every absence without leave is not treated as desertion but absence without leave may be deemed to be desertion if the procedure prescribed by section 106 is followed. Clearly every absence without leave is not treated as desertion but absence without leave may be deemed to be desertion if the procedure prescribed by section 106 is followed. Since every desertion necessarily implies absence without leave the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus deserendi the absence is straightway desertion". In the present case procedure was followed before petitioner was declared as a deserter. Giving of false explanation that his mother was serious also indicates animus. Therefore in this case it cannot be said that animus deserendi was absent or his surrender shows that there was no such animus. Hence we reject this contention. 8. The learned Counsel for the petitioner next submitted that the petitioner cannot be called as an escapee and cannot fall under section 71 of the Navy Act 1957. Section 71 deals with escape from custody. It runs as under :- 71. Escape from custody.---Every person subject to naval law who being in lawful custody escapes or attempts to escape from such custody shall be punished with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. In the present case the petitioner was taken in the lawful custody and in view of his complaint he was kept in psychiatric ward. On 19-9-1996, even though a guard was kept, he escaped. Therefore it was a clear case of escape from custody. Hence we reject this contention. 9. The learned Counsel for the petitioner next submitted that there is double punishment awarded to him i.e. first the detention 30 days and thereafter his dismissal. We have already pointed out the chronology of events and dates. The detention order of 30 days was passed against the petitioner because of the earlier offence committed i.e. he was absent from duty and was declared as Run from 1-8-1996. This has nothing to do with the present offence and punishment. Hence we rejected this contention. 10. The learned Counsel for the petitioner next submitted that punishment imposed upon the petitioner was too severe. In that connection he relied upon the judgment of the Apex Court reported in 1992 Cri.L.J. 289 (Ex. Naik Sardar Singh v. Union of India and others)2. Hence we rejected this contention. 10. The learned Counsel for the petitioner next submitted that punishment imposed upon the petitioner was too severe. In that connection he relied upon the judgment of the Apex Court reported in 1992 Cri.L.J. 289 (Ex. Naik Sardar Singh v. Union of India and others)2. It was the case where the army Jawan was found to have extra 7 bottles of Rum within an area under prohibition while going to home town. He was having valid permit to carry 5 bottles. He was carrying 7 extra bottles which were purchased from Army Canteen of a chit given by higher authority. He was awarded punishment of 3 months R.I. and dismissal from service. The Apex Court held that doctrine of proportionality was attracted and the punishment imposed was totally disproportionate. Hence liable to be set aside being severe, arbitrary and violative of section 72 of the Army Act, 1950. Hence it came to be set aside. In the present case we have already seen that the petitioner is a habitual deserter. Secondly the petitioner's conduct goes to show violation of discipline of the navy. In view of this, the said judgment is not at all attracted in the present case. 11. The learned Counsel for the petitioner next submitted that Commanding Officer could not have tried and imposed punishment upon the petitioner and there should be Court Martial under section 93. However the Navy Regulations (Statutory) Part II (section 1) deal with the powers of punishment. Regulation 7 gives powers of punishment to the Commanding Officer. The procedure prescribed under said Regulation is summary and imposition of the punishment. The Regulation 13 deals with summary punishments. There are 14 different types of punishment mentioned. Punishment No. 2 is detention for a period not exceeding 3 months and punishment No. 3 is dismissal from Naval service. Even section 93 does not require Court Martial in every case and also gives powers to Commanding Officer to try offences under section 93. The present offence committed by the petitioner could have been tried by Commanding Officer and there is no illegality. Hence we reject this contention. 12. There is no merit in this petition. Petition is rejected. Petition rejected. -----