JANARDAN SAHAI, J. - (1.) THIS application has been received by transfer from the High Court of Allahabad, Lucknow Bench. The petition is directed against an order of conviction and sentence of one year rigorous impris­onment and dismissal from service awarded to the petitioner who was a Sepoy/Cook. The punishment was awarded by a Summary Court Martial on 11.1.2007 by the Commander, Administrative Battal­ion, Rajput Regimental Centre, Fatehgarh. The facts giving rise to the application may be stated briefly as follows :-
(2.) A charge-sheet was issued to the petitioner under section 39(b) of the Army Act for the charge that he while at Field on 21.8.2002 having been granted leave of ab­sence from 8.8.2002 to 20.8.2002 to proceed home, failed without sufficient cause to rejoin duty on expiry of said leave, till he surrendered voluntarily at the Rajput Regimental Centre on 14.12.2006 at 12.00 hours of his own accord. It appears that 16 Rajput was deployed at Kiran Sector, Jammu and Kashmir where the petitioner was on active service. In the proceedings under Army Rule 22 one witness, namely, CHM Ran Singh was orally examined. Thereafter the Summary of Evidence was recorded and in the Summary of Evidence three witnesses were examined i.e. Prose­cution Witness - I Ram Deo Singh who stated that the petitioner surrendered him­self on 14.12.2006 at 12.00 hours where­upon the witness reported the matter to Major P. Basu, Adjutant. Prosecution Wit­ness - 2 CHM Ran Singh proved the sur­render of the petitioner. Prosecution Wit­ness - 3 is Hav/Clerk Raja Kumar. He was employed as Depot Company Clerk, Ra­jput Regimental Centre, Fatehgarh. He stated that Ran Singh handed over the sur­render certificate of the petitioner. He also produced Court of Enquiry and IAFD-918 (Declaration of deserter). The petitioner gave his own statement to the effect that his uncle had broken his leg in an accident; his grandfather is blind and partially deaf and his father is no more and being the eldest in the family he did not rejoin the unit primarily to look after his family. One defence witness Sepoy Sanjeev Kumar was also examined. He stated that the petitioner Raj Kumar belongs to the same district and his house is very near to the house of the witness and he had over stayed leave due to family problems. A Summary Court Martial was convened by the Commanding Officer of the Administrative Battalion Ra­jput Regimental Centre, Fatehgarh. The petitioner pleaded 'guilty' and was awarded punishment of dismissal from service and rigorous imprisonment for one year against which the petitioner filed the Writ Petition which has been transferred to this Tribunal. We have heard Shri P.N. Chaturvedi learned Counsel for the peti­tioner and Shri Dinesh Kumar Pandey learned Central Government Counsel.
(3.) THE learned Counsel for the peti­tioner made the following submissions on merits:- (i) that the Commanding Officer, Administrative Battalion, Rajput Regimental Centre, Fatehgarh had no jurisdiction to try the petitioner who belonged to another Unit 16 Rajput Regiment (ii) That the trial was barred by limita­tion under section 122 of the Army Act. (iii) That Rules 22,115 and 116(4) of the Army Rules were not complied with. (iv) That Subedar Om Prakash who was detailed as friend of the ac­cused was illiterate and was not competent to defend the petitioner. (v) That as the procedure provided in the aforesaid Rules was not com­plied with there is a violation of Article 14 of the Constitution of India. ;