Decided on October 10,1991

UNION OF INDIA Respondents


Devinder Gupta, J. - (1.) In this petition filed under Article 226 read with Article 227 of the Constitution of India, petitioner has sought the quashing of an order passed on July 29, 1986, by Summary Court Martial (In brief SCM) sentencing him to suffer imprisonment for a period of six months and ordering his dismissal from service and subsequent order passed by respondent No.2 dismissing his petition on March 23, 1987 (Annexure PD) and order Annexure PF dated October 27, 1983 passed by respondent No.1 dismissing his petition.
(2.) Petitioner, a member of the Indian Armed Forces, was a Gunner in 200 Field Regiment, which was attached with 5 Training Regiment, Artillery Centre, Hyderabad. He was granted annual leave from June 23, 1983 to July 22, 1983. On expiry of leave, he failed to rejoin the unit and thereby overstayed the leave from July 23, 1983 to May 9, 1986. During the period of absence, petitioner neither informed his Unit about his whereabouts nor disclosed the reasons of his over-stay. As a consequence thereto, he was declared a deserter on and with effect from July 23, 1983 by a court of inquiry on August 22, 1983 and apprehension roll was accordingly issued to the police authorities by his regiment, in pursuance to which he was apprehended by civil police from his native village in Tehsil Chopal, District Shimla, on May 9. 1986. Since the act of overstay, while on leave, was an offence punishable under clause (b) of Section 39 of Army Act, 1 950 (Act No. 46 of 1950) (hereinafter to be called as the Act), Commanding Officer of his Regiment charged him of having overstayed his leave without sufficient cause and convened a SCM. On conclusion of the proceedings of SCM he was found guilty of the charge and was accordingly convicted with the aforementioned punishments.
(3.) Feeling aggrieved, petitioner presented a petition under Section 164 of the Act to respondent No.2. Since the said petition was not disposed of by the said respondent, petitioner approached this Court by filing Criminal Writ Petition No. 26 of 1986. In the petition presented before respondent No.2 as well as in the Criminal Writ Petition filed in this Court, petitioner narrated circumstances, which, according to him, prevented him to join his duty due to which he overstayed the leave period. The grounds submitted were that while on leave at his home village, he went to forest to fetch fuel wood. While cutting one of the branches of the trees, he fell from a height of about 3000 ft. which resulted in the fracture of his back-bone and he also received head injury. In an unconscious condition he was admitted in the Indira Gandhi Medical and College Hospital, Shimla, where he remained under treatment for one year. Though he was not fully cured but was discharged from the hospital and thereafter he got treatment from a private doctor and regained his memory. The petitioner, due to his illness and unconscious condition, remained under the impression that he was still on two months leave and had yet to rejoin duties. A letter was stated to have been posted to the Commanding Officer informing him of the incident but that was not responsed. Pradhan of Gram Panchayat of the petitioner is also stated to have written a letter to the Officer In charge Records Nasik, explaining the reasons of the petitioner in not joining the duties but no reply was received. Petitioner was still planning to join the duty, after wailing cave, when according to him he was apprehended and charge-sheeted later on and punished as aforementioned.;

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