Mukul Mudgal, J. - (1.) Rule was issued on 9th February, 1998. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.
(2.) On 8th December, 1984, the petitioner was enrolled as Sepoy Ex.No.15100548M G.N.R. (OPR) of 1889 LT Regiment. The petitioner went on leave with effect from 13th October, 1993 to 26th October, 1993 which leave was granted to him. On 24th October, 1993 the petitioner's sister died leaving behind her 5 minor children. On 26th October, 1993 the petitioner sought extension of leave. This extension was granted upto 1st November, 1993. But the petitioner did not rejoin his duties upon expiry of his leave but his wife send a letter/application for extension of leave for seven months with medical certificate Psychiatric disorder. The petitioner eventually rejoined his duties on 30th April, 1994. The petitioner was chargesheeted and his plea of guilt was recorded. On 11th May, 1994 pursuant to the summary court martial the petitioner was dismissed from service.
(3.) The learned counsel for the petitioner, Shri Sanjiv Rajpal has contended by relying on Section 39 of the Army Act, 1950(in short the `Act') that the petitioner could not have been awarded the punishment of dismissal from service on the basis of the Section 39 of the Act and at best he could have been awarded a punishment of imprisonment for a term not more than 3 years. Section 39 of the Act reads as follows:- 39. Absence without leave. Any person subject to this Act who commits any of the following offences, that is to say,__ (a) absents himself without leave; or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or (d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line or march, without sufficient cause or without leave from his superior officer, quits the parade or line or march; or (f) when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or (g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned. (underlining supplied) He submits by relying on the underlined portion of Section 39 of the Act that the punishment of dismissal from service is unsustainable as the said provision did not warrant such punishment and only the punishment of imprisonment was provided under Section 39 of the Act.;