- (1.) ASHOK Bhushan, J. Heard Sri G. D. Mukherji, Counsel for the petitioner and Sri S. K. Srivastava, Additional Standing Counsel appearing for the respondents.
(2.) BY this writ petition, the petitioner has prayed for quashing the discharge order dated 23rd December, 2001. Further a writ of mandamus has been sought directing the respondents to reinstate the petitioner in service and allow him to undergo advanced training with his subsequent batch. The facts of the case as given in the writ petition are; the petitioner was enrolled in Indian Army as Recruit Gunner on 14h March, 2001 and reported for training on 16th March, 2001 in Artillery Centre, Hyderabad. It is stated that he left the training unit on 20th September, 2001 and came back to his home. The petitioner parents and well wishers took him back to Hyderabad to report at Artillery Centre, Hyderabad. When the petitioner re-joined on 12th November, 2001 after being absent for 53 days; 10 days rigorous imprisonment under Section 39 (a) of the Army Act, 1950 (hereinafter referred to as Army Act) was awarded to the petitioner. The petitioner was discharged from service with effect from 22nd March, 2001 under Rule 13 (3) Item IV of the Army Rules, 1954 (hereinafter referred to as Army Rules ). The petitioner filed writ Petition No. 5526 of 2002 (Jay Shiv Kushwaha v. Union of India and others) challenging his discharge order. The writ petition was dismissed on the ground that petitioner has alternate remedy of filing statutory complaint under Section 26 of the Army Act. The petitioner claims to have sent statutory complaint dated 18th February, 2002 through his Counsel, copy of the said complaint has been filed as Annexure-3 to the writ petition. A letter dated 18th March, 2002 was sent on behalf of the Commandant in reference to the statutory complaint of the petitioner dated 18th February, 2002 to the Counsel for the petitioner at Allahabad intimating that petitioner cannot be reinstated in service. The Counsel for the petitioner, Sri G. D. Mukherji, made statement that the order dated 18th March, 2002, in fact, decides statutory complaint dated 18-2-2002, hence the petitioner has right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
(3.) THE Counsel for the petitioner made following submissions in support of the writ petition - (i) THE petitioner was awarded 10 days rigorous imprisonment under Section 39 (a) of Army Act for his offence of being absent without leave. THE subsequent discharge of the petitioner on same ground is impermissible and amounts to violation of protection given by Article 20 of the Constitution of India. THE principle of doubled jeopardy is attracted in the present case and discharge is vitiated due to that reason. (ii) THE order of discharge was issued by Battery Commander, Major V. Rajender Menon whereas according to Army Rule 13 (3) Item IV only the Commanding Officer has got power to discharge a recruit, hence the order of discharge is without jurisdiction. The Additional Standing Counsel appearing for the respondents refuted the submissions of Counsel for the petitioner. The submissions of Counsel for the respondents is that there is no question of applicability of principle of double jeopardy. The sentence of an offence is entirely different thing from discharge. With regard to second submission of Counsel for the petitioner, learned Additional Standing Counsel referred to paragraph 6 of the letter dated 18th March, 2002 where a categorical finding has been recorded that before issuing the discharge sanction of the Commandant, Artillery Centre, Hyderabad has been obtained and the discharge was not issued by Major V. Rajendra Menon.;