Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment rendered by a Division Bench of the Jammu and Kashmir High Court dismissing the Letters Patent Appeal filed by the appellant.
(2.) Background facts in a nutshell are as follows:
(3.) Absence for a period of 2 months was treated as misconduct and Summary Court Martial was convened in terms of Section 116 of the Army Act, 1950 (hereinafter referred to as the Act). He was charged under Section 39A of the Act by order dated 7.8.1989 for having remained absent from duty without leave. He was tried and punished by a Summary Court Martial vide order dated 16.8.1989. The order of dismissal passed by the Court Martial was challenged in the writ petition primarily on the following grounds: (i) that officiating Commanding Officer was not competent to convene the Summary Court Martial and therefore, the proceedings and the sentence awarded by the Summary Court Martial is illegal being without jurisdiction; (ii) that the petitioner was neither provided any legal assistance nor allowed to cross-examine the witnesses, and therefore, the right of hearing has been denied to him; (iii) that the petitioner having been punished by removal of the rank could not be tried and punished on the same ground. ;